Decided October 26, 1981.
Certiorari to the Colorado Court of Appeals
J. E. Losavio, Jr., District Attorney, Stephen A. Jones, Deputy, for petitioner.
J. Gregory Walta, State Public Defender, Steven K. Jacobson, Deputy, for respondent.
Respondent, R.V., a juvenile, was tried and convicted of motor vehicle theft, section 18-4-401, C.R.S. 1973 (1978 Repl. Vol. 8), and was adjudicated a "delinquent child," section 19-1-103(9), C.R.S. 1973 (1978 Repl. Vol. 8). The court of appeals reversed the judgment and remanded for a new trial. People v. R.V., 43 Colo. App. 349, 606 P.2d 1311 (1979).
A summary of the events giving rise to the charges filed against respondent, R.V., is set forth in the opinion of the court of appeals and is not material to the issue for decision on this review.
We granted certiorari to review the holding of the court of appeals that the complicity instructions given by the trial court were insufficient to properly advise the jury on the law of complicity. Sections 18-1-601 and 18-1-603, C.R.S. 1973 (1978 Repl. Vol. 8). We reverse the holding of the court of appeals on that issue.
The jury was instructed on the elements of complicity as follows:
"A person is guilty of an offense if it is committed by another person for whom he is legally accountable. A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he aids, abets, or advises such other person in planning or committing the offense." Colo. J.I. (Crim.) 6:5.
The instruction substantially embodies the language of sections 18-1-601 and 18-1-603, C.R.S. 1973 (1978 Repl. Vol. 8). The respondent tendered instructions defining the elements of "specific intent" and "intentionally or with intent" contending they were necessary to fully define complicity. See Colo. J.I. (Crim.) 6:1(1) and 6:2. The trial judge refused to give the definitional instructions. The court of appeals reversed, holding that the jury should have been instructed regarding the definition of "specific intent," section 18-1-501(4), C.R.S. 1973 (19798 Repl. Vol. 8). This ruling was based on language found in People v. Marques, 184 Colo. 262, 520 P.2d 113 (1974). We do not agree with the court of appeals.
The trial court properly gave the instruction defining "knowingly" as the mens rea element of the underlying substantive offense with which the respondent was charged.
In order to convict a defendant, every element of a charged offense must be proven beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) and People v. Hardin, 199 Colo. 229, 607 P.2d 1291 (1980). For this reason a defendant is entitled to instructions on every element of the substantive offense of which he is charged. See People v. Hardin, supra.
Complicity, however, is not a separate and distinct crime or offense under the existing Criminal Code. People v. Pepper, 193 Colo. 505, 568 P.2d 446 (1977). An offense is defined under section 18-1-104, C.R.S. 1973 (1978 Repl. Vol. 8), as follows: "The terms `offense' and `crime' are synonymous and mean a violation of, or conduct defined by, any state statute for which a fine or imprisonment may be imposed." No fine or imprisonment may be imposed for complicity, since it is merely a theory of law by which a defendant becomes accountable for a criminal offense committed through the conduct of another. People v. Pepper, supra. The punishment is imposed for the underlying crime, in this case, theft, and not for complicity.
Under the predecessor statute, section 40-1-12, C.R.S. 1963, an accessory was "deemed and considered as principal and punished accordingly." In contrast, under section 40-1-12, C.R.S. 1963, an accessory during the fact and an accessory after the fact were substantive offenses and punishable as such. The offenses of accessory during and after the fact were repealed by the adoption of the Criminal Code which redefined the offense as accessory to crime in section 18-8-105, C.R.S. 1973 (1978 Repl. Vol. 8).
Under a theory of complicity, "[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 offense, he aids, abets, or advises the other person in planning or committing the offense." Section 18-1-603, C.R.S. 1973. "A person is guilty of an offense if it is committed by the behavior of another person for which he is legally accountable as provided in sections 18-1-602 to 18-1-607." Section 18-1-601, C.R.S. 1973.
Our statute defining the various culpable mental states is expressly made applicable to "offenses." Section 18-1-501, C.R.S. 1973. Since complicity is not a substantive crime, the statutory definitions of mens rea do not apply. Thus, the tendered jury instructions defining the mens rea elements of "specific intent" and "intentionally or with intent" requested by the respondent are not applicable to or a necessary element of the definition of complicity.
The descriptive language in the complicity statute "with intent to promote or facilitate," is not statutorily defined. We have often held that an instruction basically in the language of the statute may be sufficient in the absence of additional statutory definitions. People v. Crawford, 191 Colo. 504, 553 P.2d 827 (1976); People v. Bowen, 182 Colo. 294, 512 P.2d 1157 (1973); People v. Gilmer, 182 Colo. 96, 511 P.2d 494 (1973); Blincoe v. People, 178 Colo. 34, 494 P.2d 1285 (1972); Mathis v. People, 167 Colo. 504, 448 P.2d 633 (1968). We do not think it necessary to inject a non-statutory definition into the instruction on complicity. In our view, the words "with intent to promote or facilitate" are not words of uncommon meaning which are apt to be misunderstood by a jury and therefore require further definition. See Simms v. People, 174 Colo. 85, 482 P.2d 974 (1971). Accordingly, we hold that it was not error for the trial court to deny the tendered instructions on "specific intent" and "intentionally or with intent."
The holding of the court of appeals as to the trial court's instruction on complicity is reversed. However, since there was an independent ground for granting a new trial, which is not challenged in this appeal, the case was properly remanded by the court of appeals to the trial court for a new trial.
JUSTICE ERICKSON, JUSTICE DUBOFSKY, and JUSTICE QUINN dissent.