Bogdanov v. People
In Bogdanov v. People, 941 P.2d 247, amended, 955 P.2d 997 (Colo. 1997) the jury instruction at issue was COLJI-Crim. No. 6:04 (1983), which provides that:
A person is guilty of an offense committed by another person if he is a complicitor.
To be guilty as a complicitor, the following must be established beyond a reasonable doubt:
A crime must have been committed.
Another person must have committed all or part of the crime.
The defendant must have had knowledge that the other person intended to commit all or part of the crime.
The defendant did intentionally aid, abet, advise, or encourage the other person in the commission or planning of the crime. (Bogdanov v. People, supra, 941 P.2d at 252.)
The Bogdanov court analyzed the assertion that the instruction failed to instruct the jury properly of the statutory requirement, set forth in 18-1-603, that the defendant intended "to promote or facilitate the commission of the offense."
In doing so, the supreme court first looked at People v. Wheeler, supra, in which it held that the prosecution needs only to prove that the complicitor had knowledge that the principal was engaged in, or about to engage in, a crime where the mens rea is recklessness or negligence.
The court then reviewed People v. Close, in which a division of this court extended the holding in People v. Wheeler to apply to an underlying crime in which the mens rea was knowingly.
The Bogdanov court disapproved of the reasoning in People v. Close, to the extent that it ruled that the required intent element was only that the complicitor had knowledge that the principal was engaged in, or about to engage in, the underlying crime. Bogdanov v. People, supra, 941 P.2d at 251 n.9.
The court concluded that two mental states must be proven for complicity liability to exist with regard to knowing or intentional crimes. First, the complicitor must have the culpable mental state required for the underlying crime committed by the principal. Additionally, the complicitor must assist or encourage the commission of the crime committed by the principal "with the intent to promote or facilitate" such commission. Bogdanov v. People, supra (citing 18-1-603).
Accordingly, the Bogdanov court reviewed the pattern jury instruction, finding that it omitted the statutory language "with intent to promote or facilitate the commission of the offense." To be convicted as a complicitor, under the instruction given in Bogdanov, the defendant must "intentionally aid, abet, advise, or encourage the other person in the commission or planning of the underlying crime." Bogdanov v. People, supra, 941 P.2d at 252.
The court concluded that the missing statutory language was not structural error because the language of the given instruction "adequately directs the jury to determine whether the defendant had the requisite mens rea of the crime, because the defendant could not have intended his participation to further the crime unless he also intended the underlying crime to occur." Bogdanov v. People, supra, 941 P.2d at 254. Thus, the court concluded that the plain language of the entire instruction adequately advised the jury to find the two mental states required to convict under a theory of complicity because the fact that the defendant intended the crime to occur necessarily meant that he intended his participation to further the underlying crime. Bogdanov v. People, supra.
The Bogdanov court acknowledged that the "pattern jury instruction should more properly mirror the applicable statutory language" and, as a result, suggested a future pattern jury instruction. The suggested instruction added a paragraph, which requires a jury to find that that the defendant "must have had the intent to promote or facilitate the commission of the crime." The suggested instruction also deleted the word "intentionally" from paragraph 4 of the pattern instruction. Bogdanov v. People, supra, 941 P.2d at 254 n.10, 955 P.2d at 997. In Bogdanov v. People, the defendant did not commit any of the essential elements of the underlying crimes; the principal alone committed the essential elements of the robbery and theft crimes. Accordingly, the court distinguished:
The fact pattern of this case where the accomplice is not charged with committing any act essential to the elements of the underlying crime, from the fact pattern wherein the principal and at least one other person, possibly the defendant, together commit the essential elements of the crime.
Bogdanov v. People, supra, 941 P.2d at 256.