in Interest of N.D.O

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
July 22, 2021
2021COA100
No. 20CA0214, People in Interest of N.D.O. — Juvenile Court —
Delinquency — Special Offenders — Violent Juvenile Offender;
Criminal Law — Complicity
In this appeal by the prosecution, a division of the court of
appeals concludes that complicitor liability can support a crime of
violence finding — a sentence enhancer — in juvenile delinquency
proceedings. Because the trial court instructed the jury to the
contrary, the division disapproves the court’s ruling.
The division also concludes that the jury’s general verdicts
finding the juvenile guilty of aggravated robbery did not establish
that he committed a crime of violence. Accordingly, the trial court
was not required to adjudicate the juvenile a violent juvenile
offender, and the sentence imposed was not illegal.
COLORADO COURT OF APPEALS 2021COA100
Court of Appeals No. 20CA0214
Jefferson County District Court No. 18JD483
Honorable Gregory G. Lyman, Judge
The People of the State of Colorado,
Petitioner-Appellant,
In the Interest of N.D.O.,
Juvenile-Appellee.
RULING DISAPPROVED AND SENTENCE AFFIRMED
Division IV
Opinion by JUDGE NAVARRO
Brown and Martinez*, JJ., concur
Announced July 22, 2021
Peter A. Weir, District Attorney, Colleen R. Lamb, Deputy District Attorney,
Golden, Colorado, for Petitioner-Appellant
Nicole M. Mooney, Alternate Defense Counsel, Denver, Colorado, for Juvenile-
Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 In the proceedings below, the juvenile, N.D.O., was
adjudicated delinquent. The prosecution raises two arguments on
appeal. First, the prosecution argues that the trial court incorrectly
stated the law by instructing the jury that complicitor liability
cannot support a crime of violence finding, which is a sentence
enhancer. Applying the combined force of our supreme court’s
decisions in People v. Swanson, 638 P.2d 45 (Colo. 1981), and
People in Interest of B.D., 2020 CO 87, we agree with the
prosecution and disapprove the court’s ruling as to that instruction.
Second, the prosecution contends that N.D.O.’s sentence is illegal
and asks us to remand with directions to sentence him as a violent
juvenile offender. We deny that request because N.D.O.’s sentence
is not illegal given the jury’s findings.
I. Factual and Procedural History
¶2 Several teenagers stole a car and committed armed robberies
of four gas stations. The prosecution alleged that N.D.O. was the
getaway driver for two other teenagers who entered the stores and
demanded, at gunpoint, that the clerks empty the registers.
¶3 The prosecution filed a petition in delinquency charging
N.D.O. with (1) four counts of aggravated robbery with a
1
confederate; (2) four counts of aggravated robbery while possessing
any article used or fashioned in a manner as to convince a person
that it is a deadly weapon; and (3) one count of conspiracy to
commit aggravated robbery while possessing any article used or
fashioned as a deadly weapon. See § 18-4-302(1)(c)-(d), C.R.S.
2020 (aggravated robbery); § 18-2-201, C.R.S. 2020 (conspiracy).
The petition also alleged that N.D.O. was a violent juvenile offender
under section 19-2-516(3), C.R.S. 2020, because the robberies
involved the use, or possession and threatened use, of a deadly
weapon (i.e., they were crimes of violence), see § 18-1.3-
406(2)(a)(I)(A), C.R.S. 2020.1
¶4 N.D.O. exercised his statutory right to a jury trial. § 19-2-
107(1), C.R.S. 2020. At trial, the prosecution did not allege or
present evidence that N.D.O. personally entered the gas stations.
Instead, the prosecution argued that he committed the aggravated
robbery offenses as a complicitor.
¶5 The trial court instructed the jury on the elements of
complicitor liability and instructed the jury that complicitor liability
1In addition, the petition charged N.D.O. with possession of a
handgun by a juvenile and aggravated motor vehicle theft. Neither
of those adjudications is pertinent to, or affected by, this appeal.
2
could apply to the aggravated robbery offenses. In addition, on
each verdict form for the aggravated robbery and conspiracy counts,
the court submitted the following interrogatory: “Did the juvenile
use, or possess and threaten the use of, a deadly weapon?” During
deliberations, the jury asked, “Does complicity apply to the yes/no
[deadly weapon] question on the Aggravated Robbery charges?” The
prosecutor asked the court to instruct the jury that complicitor
liability applied to the deadly weapon interrogatories. The court
decided that the original instructions did not answer the jury’s
question and, thus, a supplemental instruction was necessary. But
the court rejected the prosecutor’s position and told the jury instead
that, while complicitor liability applied to a substantive offense, the
“theory of complicity” did not apply to the deadly weapon
interrogatories.
¶6 The jury found N.D.O. guilty on all counts, but the jury found
that he did not use, or possess and threaten the use of, a deadly
weapon to commit any offense. The trial court adjudicated N.D.O.
delinquent and sentenced him to two years of probation, with
forty-five days of detention as a condition thereof.
3
II. The Complicity Instruction
¶7 N.D.O. does not appeal the delinquency judgment. The
prosecution, however, appeals the trial court’s decision to instruct
the jury that the theory of complicity did not apply to the deadly
weapon interrogatories relevant to whether N.D.O was a violent
juvenile offender. The prosecution asks us to disapprove the court’s
instruction. See § 19-2-903(2), C.R.S. 2020 (“The prosecution in a
delinquency case may appeal any decision of the trial court as
provided in section 16-12-102, C.R.S.”); § 16-12-102(1), C.R.S.
2020 (“The prosecution may appeal any decision of a court in a
criminal case upon any question of law.”).
¶8 Under the Colorado Children’s Code, “a trial court normally
has broad discretion to craft a sentence it deems appropriate for a
particular [juvenile] offender.” A.S. v. People, 2013 CO 63, ¶ 15.
But for certain classes of juveniles called “special offenders,” the
Colorado Children’s Code imposes mandatory sentences. See § 19-
2-908, C.R.S. 2020. One such class includes a “[v]iolent juvenile
offender,” a person who “is adjudicated a juvenile delinquent for a
delinquent act that constitutes a crime of violence as defined in
section 18-1.3-406(2).” § 19-2-516(3). A violent juvenile offender
4
“shall be placed or committed out of the home for not less than one
year,” with an exception not applicable here. § 19-2-908(1)(c)(I)(A).
A trial court has no jurisdiction to depart from this sentence absent
a statutory exception. People in Interest of M.M.O.P., 873 P.2d 24,
26 (Colo. App. 1993).
¶9 As noted, the petition alleged that N.D.O. was a violent
juvenile offender because he committed a delinquent act that
constituted a crime of violence as defined in section 18-1.3-
406(2)(a)(I)(A). That provision defines aggravated robbery as a crime
of violence if the offense was “committed, conspired to be
committed, or attempted to be committed by a person during which,
or in the immediate flight therefrom, the person: (A) [u]sed, or
possessed and threatened the use of, a deadly weapon.” § 18-1.3-
406(2)(a)(I)(A) & (2)(a)(II)(F).
¶ 10 The prosecution asks whether a trier of fact may find that a
juvenile’s delinquent act constituted a crime of violence (e.g., the act
involved the use, or possession and threatened use, of a deadly
weapon) under a complicity theory. See § 18-1-603, C.R.S. 2020
(defining complicity). We answer that question “yes” and thus
disapprove the trial court’s ruling and supplemental instruction.
5
A. Invited Error
¶ 11 N.D.O. argues that the prosecution invited the alleged error by
tendering the original complicity instructions without specifying
that complicitor liability applied to the deadly weapon
interrogatories. We disagree.
¶ 12 The invited error doctrine prevents a party from complaining
on appeal of an error that he or she has invited or injected into the
case. People v. Rediger, 2018 CO 32, ¶ 34. N.D.O. is correct that a
party can invite an error by tendering an erroneous instruction.
See id. And, while the record does not make entirely clear who
tendered the original instructions, the prosecution does not dispute
N.D.O.’s claim that it submitted them. The original instructions
specifically applied complicity to the aggravated robbery charges
(among others) but not to the deadly weapon interrogatories. The
original instructions did not follow the advice of the Model Jury
Instructions, which counsel that, in cases involving complicity, it
may be appropriate to modify a crime of violence interrogatory by
adding the words “or a complicitor” when asking if “the defendant”
used, or possessed and threatened the use of, a deadly weapon.
COLJI-Crim. ch. 1.3 cmt. 2 (2020).
6
¶ 13 As a result, the original instructions were, at the very least,
ambiguous as to whether complicity applied to the deadly weapon
interrogatories. We thus understand why the jury asked its
question and why the trial court found that the original instructions
did not answer the question. Still, the jury’s question gave the
court and the parties the opportunity to clarify the original
instructions and to correct any erroneous impression left by them.
¶ 14 The error asserted on appeal is not in the original complicity
instructions but in the court’s supplemental instruction answering
the jury’s question. Because the prosecution objected to that
supplemental instruction, we do not discern invited error, and we
turn to the merits.
B. The Merits
¶ 15 In our view, the combined force of two decisions from our
supreme court compels the conclusion that a juvenile can be held
accountable under a complicity theory for a crime of violence.
¶ 16 Under a complicity theory, “[a] person is legally accountable as
principal for the behavior of another constituting a criminal offense
if, with the intent to promote or facilitate the commission of the
7
offense, he or she aids, abets, advises, or encourages the other
person in planning or committing the offense.” § 18-1-603.
¶ 17 In People v. Swanson, 638 P.2d 45 (Colo. 1981), the supreme
court decided that complicity liability applied to a substantially
similar version of the crime of violence statute. That is, the court
rejected the notion that the crime of violence statute applied “only to
a defendant who personally used or possessed and threatened to
use a deadly weapon during the commission of a crime.” Id. at 49(citing § 16-11-309(2), C.R.S. 1973 (1978 Repl. Vol. 8)). The court
emphasized that “[t]he mandatory sentence for conviction of [a]
crime of violence is based on a recognition of the increased potential
for harm arising from the manner in which the crime was
committed” and “[t]his heightened danger is present regardless of
which robber held the gun.” Id. at 50. The court thus concluded
that “an accessory to [a] crime of violence may be charged, tried and
punished as a principal.” Id. (holding that, “[b]ecause we determine
the principles of complicity apply to a crime of violence,” the trial
court’s contrary instruction was erroneous).
¶ 18 In People in Interest of B.D., 2020 CO 87, the supreme court
applied the complicity theory in the juvenile context. Several boys
8
broke into two homes, one of which was owned by a man
considered an “at-risk” victim. Id. at ¶ 1. While B.D. waited
outside, the man returned home and happened upon another boy
stealing from his home. Id. B.D. was adjudicated delinquent, on a
complicity theory, for theft in the presence of an at-risk victim. Id.
at ¶ 3. B.D. challenged the sufficiency of the evidence on the
ground that, to prove complicity liability, the prosecution had to
show that he was aware that the at-risk victim was present during
the theft, yet no such evidence was presented. Id. at ¶¶ 2, 5, 12.
Rebuffing this challenge, the supreme court held that, because the
at-risk victim’s presence was merely a sentence enhancer of the
theft offense (not an element), B.D. did not have to be aware of the
at-risk adult’s presence to be subject to this sentence enhancer. Id.
at ¶¶ 2, 15, 26.
¶ 19 In so holding, the court also rejected B.D.’s argument that,
because the complicity statute makes a complicitor accountable
only for the principal’s criminal offense, a complicitor cannot be
subject to sentence enhancers given that they are not part of the
offense. Id. at ¶ 16. The court explained that “complicity is a
theory of liability, not an offense” and “once a defendant is found
9
guilty of the underlying offense, he ‘is legally accountable as
principal . . . for [the] criminal offense,’ including any sentence
enhancers related to the nature of the offense.” Id. at ¶ 16 (quoting
§ 18-1-603) (emphasis added). Accordingly, the complicity statute
put “B.D. on equal footing with his principal regarding the
circumstances accompanying the commission of the offense, which
then allow[ed] any relevant sentence enhancers to apply by their
own force.” Id.
¶ 20 Applying B.D. and Swanson to this case, we disapprove the
trial court’s supplemental instruction as to the crime of violence
sentence enhancer.2 Neither the complicity statute nor the
Children’s Code indicates that complicitor liability applies any
differently in juvenile delinquency proceedings than it does in adult
criminal proceedings. And our supreme court has applied the
complicity statute to a juvenile in the same way it applies to an
adult. See B.D., ¶ 16. Because complicitor liability can support a
crime of violence finding in the adult context, see Swanson, 638
P.2d at 49, complicitor liability can support a crime of violence
2We acknowledge that the trial court did not have the benefit of the
decision in People in Interest of B.D., 2020 CO 87.
10
finding in the juvenile context. In other words, the complicity
statute puts the juvenile complicitor on equal footing with the
principal regarding the circumstances accompanying the
commission of the offense, including those making the offense a
crime of violence. See B.D., ¶ 16.
¶ 21 N.D.O.’s arguments do not convince us otherwise. He argues
that the plain language of the violent juvenile offender statute
applies only to the juvenile’s own conduct, and not to another’s
conduct — especially not to the conduct of any adult involved in the
crime. (One teenager who robbed the stores in this case was
eighteen.) N.D.O. notes that section 19-2-516(3) addresses an
adjudication “for a delinquent act that constitutes a crime of
violence,” and he contends this delinquent act must be committed
by the charged juvenile because the statute does not expressly
permit complicity liability. In support, he cites Allman v. People,
2019 CO 78, ¶¶ 29-33, which concluded that, because the
probation statute does not grant courts the power to impose
sentences to both imprisonment and probation in a multi-count
case, a court may not impose imprisonment for some offenses and
probation for others. But cf. People v. Keen, 2021 CO 50, ¶¶ 1, 22-
11
39 (limiting Allman’s reach where a defendant is sentenced to
probation under the Colorado Sex Offender Lifetime Supervision Act
of 1998).
¶ 22 Yet, N.D.O does not appeal the jury’s finding that he
committed aggravated robbery under a complicity theory. See
People v. Ramirez, 997 P.2d 1200, 1207 (Colo. App. 1999) (“A
defendant is not convicted of complicity, but rather is convicted of
an offense under a theory of complicity as the means by which the
offense was committed by a particular defendant.”), aff’d by an
equally divided court, 43 P.3d 611 (Colo. 2001). It is that
delinquent act for which he is accountable to the same extent as
the principal. See B.D., ¶ 16. And, as noted, section 19-2-516(3)
expressly permits a juvenile to be designated a violent juvenile
offender for a delinquent act that constitutes a crime of violence.
The only question left, therefore, was whether N.D.O.’s delinquent
act constituted a crime of violence.
¶ 23 On that question, N.D.O. points out that the crime of violence
statute does not mention complicity; it includes only an enumerated
crime that is “committed, conspired to be committed, or attempted
to be committed.” § 18-1.3-406(2)(a)(I). To reiterate, however,
12
complicity is a theory by which a person commits a crime. Given
that the crime of violence statute applies to an enumerated crime
committed by one who used (or possessed and threatened to use) a
deadly weapon — and considering B.D. and Swanson — we
conclude that the jury should have been instructed to consider
whether N.D.O.’s delinquent act constituted a crime of violence
under a complicity theory.
¶ 24 N.D.O. also seems to claim that, pursuant to the applicable
statutes, complicity liability cannot apply to (1) juveniles generally;
(2) sentence enhancers with which juveniles are charged; or
(3) crime of violence findings because they are not elements of an
offense. To the extent he raises these claims, we reject them as
foreclosed by B.D. and Swanson. We must follow our supreme
court’s precedent. See In re Estate of Ramstetter, 2016 COA 81,
¶ 40. Relatedly, we are not persuaded by N.D.O.’s suggestion that
Allman conflicts with Swanson and, thus, Allman implicitly
overruled Swanson.
¶ 25 Finally, N.D.O., in arguing that juveniles should not be treated
the same as adults, cites federal cases addressing constitutional
limits on sentencing a juvenile as an adult. See Miller v. Alabama,
13
567 U.S. 460, 467 (2012); Graham v. Florida, 560 U.S. 48 (2010);
see also Lucero v. People, 2017 CO 49, ¶ 15 (“Graham and Miller
apply only where a juvenile is sentenced to the specific sentence of
life without the possibility of parole for one offense.”); cf. People in
Interest of T.B., 2021 CO 59, ¶ 74 (holding that mandatory lifetime
sex offender registration for offenders with multiple juvenile
adjudications constitutes punishment and is cruel and unusual in
violation of the Eighth Amendment). But N.D.O. does not raise a
constitutional challenge or contend that any statute is ambiguous
and must be construed to avoid constitutional infirmity. See People
v. Ross, 2021 CO 9, ¶ 35 (“The ‘doctrine of constitutional avoidance’
. . . applies only when courts interpret statutes that are
ambiguous.”). So those federal cases do not persuade us that we
may depart from our supreme court’s application of complicity
liability to juveniles. See B.D., ¶ 16.3
3 We also find inapposite the decision in J.D.B. v. North Carolina,
564 U.S. 261, 264-65 (2011) (“[W]e hold that a child’s age properly
informs the Miranda custody analysis.”).
14
¶ 26 For all these reasons, we disapprove the trial court’s ruling
and resulting instruction to the effect that complicity did not apply
to the crime of violence interrogatories.4
III. N.D.O.’s Sentence
¶ 27 Next, the prosecution contends that the trial court’s “failure to
designate N.D.O. as a violent juvenile offender when he was
adjudicated delinquent for a delinquent act that constituted a crime
of violence as defined in section 18-1.3-406(2) resulted in an illegal
sentence.” See People v. Anaya, 894 P.2d 28, 31 (Colo. App. 1994)
(recognizing that the People may challenge an illegal sentence for
the first time on appeal); cf. Crim. P. 35(a) (“The court may correct a
sentence that was not authorized by law or that was imposed
without jurisdiction at any time . . . .”). We disagree.
¶ 28 We review the legality of a sentence de novo. People in Interest
of J.S.R., 2014 COA 98M, ¶ 12. “An illegal sentence is one that is
not authorized by law, meaning that it is inconsistent with the
sentencing scheme established by the legislature.” People in
4 Because the issue is not before us, we do not address the
requirements of complicitor liability on which a jury must be
instructed in this context. Cf. People v. Childress, 2015 CO 65M,
¶¶ 29, 34, 39 (addressing complicitor liability generally).
15
Interest of J.C., 2018 COA 22, ¶ 14 (citation omitted). The legality of
N.D.O.’s sentence raises questions of statutory interpretation,
which we also review de novo. B.D., ¶ 8.
¶ 29 Initially, we note that, even if we concluded that the trial
court’s instructional error affected the jury’s decision to acquit
N.D.O. of the crime of violence charges, we could not remand for a
new trial with correct instructions. “Any prosecutorial appeal under
section 16-12-102(1) is necessarily limited to questions of law only.
This section does not give the People a basis upon which to
challenge the trial court’s assessment of the evidence.” People v.
Martinez, 22 P.3d 915, 919 (Colo. 2001) (citations omitted). Hence,
an “appellate court is limited in its review to determining whether
the trial court erred, and it may not order a new trial if an error was
committed and the defendant was subsequently acquitted.” People
v. Allee, 740 P.2d 1, 8 (Colo. 1987); see § 16-12-102(1) (“Nothing in
this section shall authorize placing the defendant in jeopardy a
second time for the same offense.”).
¶ 30 The prosecution, however, does not request a remand for a
new trial. Instead, the prosecution contends that it does not matter
that the jury answered “no” to the deadly weapon interrogatories
16
because — unlike when an adult is charged with a crime of violence
— such specific findings are not necessary to designate an accused
a violent juvenile offender (i.e., to conclude that a juvenile
committed a crime of violence). Cf. § 18-1.3-406(4) (requiring the
jury to make “a specific finding” as to whether the accused used, or
possessed and threatened to use, a deadly weapon). Therefore, the
prosecution continues, we need only look to the jury’s general
verdicts on the substantive offenses. According to the prosecution,
the jury found N.D.O. guilty of crimes of violence because the jury
found him guilty of eight counts of aggravated robbery and “[e]ach
of those counts required a deadly weapon finding as one of the
elements of the offense.” So, the prosecution concludes that the
“jury necessarily found the use of a deadly weapon when it found
[N.D.O.] guilty of each of those counts.”
¶ 31 We need not decide if we agree with the prosecution that no
specific crime of violence findings by the jury were necessary. Even
if the prosecution were right, we would still reject the prosecution’s
conclusion because the general verdicts do not show that the jury
necessarily found the use of a deadly weapon.
17
¶ 32 The jury convicted N.D.O. of the following forms of aggravated
robbery:
(1) A person who commits robbery is guilty of
aggravated robbery if during the act of robbery
or immediate flight therefrom:
...
(c) He has present a confederate, aiding or
abetting the perpetration of the robbery, armed
with a deadly weapon, with the intent, either
on the part of the defendant or confederate, if
resistance is offered, to kill, maim, or wound
the person robbed or any other person, or by
the use of force, threats, or intimidation puts
the person robbed or any other person in
reasonable fear of death or bodily injury; or
(d) He possesses any article used or fashioned
in a manner to lead any person who is present
reasonably to believe it to be a deadly weapon
or represents verbally or otherwise that he is
then and there so armed.
§ 18-4-302. Robbery occurs where a person “knowingly takes
anything of value from the person or presence of another by the use
of force, threats, or intimidation.” § 18-4-301(1), C.R.S. 2020.
¶ 33 Neither form of aggravated robbery described above requires
the use, or possession and threatened use, of a deadly weapon.
Subsection (1)(c) of section 18-4-302 requires the presence of a
confederate armed with a deadly weapon who has the intent to
18
harm another person if resistance is offered or who, by the use of
force, threats, or intimidation, puts any person in reasonable fear of
death or bodily injury. Simply possessing a deadly weapon with the
intent to use it does not satisfy the applicable crime of violence
definition. See § 18-1.3-406(2)(a)(I)(A). Nor does subsection (1)(c)
require that the confederate use force, threats, or intimidation with
a deadly weapon — in contrast to subsection (1)(b) of the same
statute (“by the use of force, threats, or intimidation with a deadly
weapon puts the person robbed or any other person in reasonable
fear of death or bodily injury”). § 18-4-302(1).5
¶ 34 Likewise, subsection (1)(d) does not require the use of an
actual deadly weapon. Id. Rather, “a defendant may be convicted if
the robbery is committed with the use of an item in a manner in
which the victim would reasonably believe it to be a deadly weapon
(i.e., a simulated deadly weapon).” People v. Palmer, 2018 COA 38,
5 In full, section 18-4-302(1)(b), C.R.S. 2020, provides that a person
who commits robbery is guilty of aggravated robbery if, during the
robbery or the immediate flight therefrom, “[h]e knowingly wounds
or strikes the person robbed or any other person with a deadly
weapon or by the use of force, threats, or intimidation with a deadly
weapon knowingly puts the person robbed or any other person in
reasonable fear of death or bodily injury.”
19
¶ 19; see People v. Manyik, 2016 COA 42, ¶ 50 (noting that section
18-4-302(1)(d) does not create a per se crime of violence).
¶ 35 Not surprisingly, then, only conduct falling within
subsection (1)(b) constitutes a per se crime of violence. Terry v.
People, 977 P.2d 145, 151 (Colo. 1999); see § 18-4-302(4) (“If a
defendant is convicted of aggravated robbery pursuant to
paragraph (b) of subsection (1) of this section, the court shall
sentence the defendant in accordance with the provisions of section
18-1.3-406.”). N.D.O. was not found guilty of violating
subsection (1)(b).
¶ 36 Because N.D.O. could have committed aggravated robbery
under subsections (1)(c) and (1)(d) without using, or possessing and
threatening to use, a deadly weapon, such a crime of violence
finding was not implicit in the jury’s guilty verdicts as to those
offenses. See People v. Lutz, 803 P.2d 184, 185 (Colo. 1990)
(“Because the two crimes require different elements of proof, the
jury could reasonably find, from the same evidence, that the
elements of aggravated robbery were present, while the elements of
crime of violence were absent.”). Therefore, the jury’s verdicts do
20
not establish that N.D.O. was adjudicated for a delinquent act that
constituted a crime of violence.
¶ 37 As a result, the trial court did not impose an illegal sentence
by failing to designate N.D.O. a violent juvenile offender with a
corresponding sentence.
IV. Conclusion
¶ 38 The ruling is disapproved, and the sentence is affirmed.
JUDGE BROWN and JUSTICE MARTINEZ concur.
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