Zero to Life

Lisl Auman had met Matthaeus Jaehnig only that morning. By day's end, he and a cop were dead--and her life was over.

By Juliet Wittman - Westword.com

April 15, 1999

Freeze this image in your mind.

It's the afternoon of November 12, 1997. Lisl Auman, 21 years old, is standing in front of a boxy condominium, part of a sprawling complex on Monaco Parkway in southeast Denver. Behind her is the hulking form of Matthaeus Jaehnig, struggling frantically with the lock on the condominium door. In front of Lisl are first two, then three police officers. She has her hands up. She is taking one, two hesitant steps forward.

In seconds she will be on the ground, hands behind her for the handcuffs, an officer's knee in her back, his voice in her ear, yelling, calling her a bitch. She will be bundled into a police car and driven a short way off in the condo parking lot.

Jaehnig, meanwhile, will have veered from the door, around a set of stairs--coming within a few feet of the officers--and into an alcove. The alcove is roughly fifteen feet long and blind. There is no exit from it other than the stairs he has just passed or the locked doorway to a second condo.

Unaware of this, the two cops who first grabbed Auman run around the building in opposite directions, hoping to cut Jaehnig off.

Officer Bruce VanderJagt arrives with his partner, Sergeant Dean Jones. VanderJagt is a courageous and much-admired eleven-year veteran of the Denver Police Department. He has twice received a Distinguished Service Cross--once for disarming a gunman terrorizing the employees of Porter Memorial Hospital, once for running into a burning building to help save the occupants. While Jones maneuvers for a cautious look into the alcove, VanderJagt peers around the corner. There's a fusillade of shots. More quickly than the mind can grasp, a bullet rips away the right side of VanderJagt's head. For long seconds he remains standing. Then he falls.

By now, dozens of police officers are on the scene. Bullets are flying in every direction: twenty or thirty of them from Jaehnig's SKS semi-automatic assault rifle; hundreds from police guns. Wood splinters into dust. Glass flies. Nine more bullets hit Officer VanderJagt's prone body; some 200 penetrate the walls of the condo, many boring their way through and out the other side of the building. On the floor, Lisl's brown-and-white dog, Gene--named for a recently deceased grandfather--cowers in terror.

An officer approaches the car where Auman is sitting. "You're going down for murder," he tells her, according to her later testimony. "You're gonna go down."

Three hours later, Matthaeus Jaehnig, too, is dead, of a single bullet that entered under his chin and ricocheted around his skull. Having run out of bullets, he had inched forward to steal Bruce VanderJagt's revolver and then shot himself.

Lisl Auman is being questioned by DPD sergeant Jon Priest. Chief Deputy District Attorney Lamar Sims of the Denver District Attorney's Office is present; the interview is videotaped. Face hidden by her hands, slumped forward on the table, Auman sobs violently.

She's asked if her testimony has been coerced. Well, she says, the cop at the scene did threaten her...

Does she feel coerced at the moment?

"No," she responds.

Is she talking to them because of what the cop said to her?

"No."

The interview proceeds. She is inert, passive, a stubborn hulk of a girl droning on endlessly, tonelessly. Her basic story is that she went up to Buffalo Creek with Matthaeus Jaehnig and another carload of his friends because she was breaking up with her boyfriend and wanted to retrieve her belongings from the lodge where both of them lived.

What actually happened at the lodge is unclear. But as she and Jaehnig--whom she inexplicably calls Sardine--drove away, police began following and Jaehnig accelerated, weaving around cars, sometimes crossing the median, reaching speeds of up to 120 miles an hour. When they came to the city limits, Denver police took up the chase, finally cornering Auman and Jaehnig at the Monaco Place apartments.

Lisl is evasive, vague about the names of her companions. She says that Jaehnig's red Trans Am was green. She spouts nonsense about a mystery man named Dave who responds to her page whenever she needs help; she implies that Dave and Sardine belong to some menacing and shadowy group whose purpose she cannot define. The more she's pressed about this group, the fuzzier her answers become: "These people don't let a lot known about them, and I probably wouldn't want to know a lot about them," she says. "I've seen movies like Reservoir Dogs. Kind of like that."

She is doubtless describing Jaehnig and his friends, known Denver skinheads. One of these friends, Dion Gerze, will testify at Lisl's trial wearing a "Support Your Local Sons of Silence" baseball cap.

During the course of the interview, two things become clear: Lisl is afraid to identify Jaehnig and his friends (unaware at this point that Jaehnig is dead, she describes herself as "a walking dead person"), and she's desperately anxious to appease the police. "I could beat myself in the head trying to come up with something that would satisfy you," she says at one point.

Still, her performance is infuriating. Periodically she bites at a fingernail or pulls at a strand of hair. "I'm going bald," she jokes mirthlessly. "Lisl," says Priest, "do you really understand how important this is? This is murder. We need to know every bit of the truth." Lisl nods and promptly returns to her fabricated story.

Later that same evening of November 12, Lisl makes a second tape. Although she still maintains she does not know Jaehnig's name, still describes his car as green, she is clearer and more focused here. In some areas the two tapes are entirely consistent--in her insistence that all she wanted to do was retrieve her own belongings, in her description of the jolting, mind-numbing ride down the mountain. She says over and over again that she was terrified, that she begged Jaehnig to stop, that she tried to get out of the car.

"Sardine said, 'Well, I guess this is what I'm gonna have to do,' and he pulled out the gun and set it on his lap and he popped it, or whatever it is you do to guns. He rolled down a window, he looked back outside, and we're swerving all over the road, and at this point I was afraid for my life, and he asked me if I would take hold of the wheel, and if I didn't...basically, he didn't give me a chance to respond. He just put his head out of the window and proceeded firing. If I hadn't put my hand on the wheel, we would have been off the road and I definitely would have died."

"You're holding on to the steering wheel?"

"I held on to it for about three seconds."

This admission will be the basis for some of the charges filed against Lisl Auman: attempted murder of a peace officer, assault and felony menacing. The jury will acquit her of the first two but find her guilty of felony menacing.

In addition, Denver District Attorney Bill Ritter will charge her with second-degree burglary and--stemming from the burglary--felony murder. The crime of felony murder occurs when someone is killed during the commission of a felony or while the perpetrators are in flight--whether or not that death was intended. All those who committed the felony, as well as any accomplices to it, are equally guilty under this law, even those who were physically absent when the death occurred. The law of felony murder goes back hundreds of years and is based in English common law. The British, however, abandoned it over forty years ago.

It will send Lisl to prison for the rest of her life.

"It's all kind of blurry to me, the order it happened," Lisl continues. "But we ended up hitting a car, like, head-on, and then there was traffic behind us, and at that point I opened the car door and wanted to get out, and he told me, 'What the fuck are you doing? Get back in here,' and all this shit, and he was very angry. I just wanted it to be over. I listened to him because he had this huge gun. I stayed in the car, he shut the door, and he sped off again." Lisl also says that something struck her on the back of the head at the moment of impact.

The Trans Am had smashed into a BMW on East Eastman Avenue. Later in the interview, Lisl says: "I was just, like, praying to myself, praying to God that everything would end soon and everybody would be all right."

Throughout the two interviews, you can see Auman fashioning a noose that Deputy District Attorney Tim Twining will eventually use to hang her. He will say that she voluntarily steered the car so that Jaehnig could shoot at the police. He will say that she is a vengeful woman who enlisted the aid of skinheads to terrorize and rob her ex-boyfriend, Shawn Cheever. In support of this latter theory, he will cite--again and again--the following statement, which occurs on Lisl's second tape: "Shawn lied to me and made me feel like a piece of shit, and basically I wanted to retaliate, I guess." Twining will not stress the clarification that follows: "He lied to me, and I wanted my stuff back."

On that tape, Lisl denies emphatically that she intended Cheever to be burglarized, but there is a moment that suggests she may have been aware the night before the trip that one of her companions, Dion Gerze, had larcenous intentions. She quotes him as saying, "What else does he have?" and, weeping, admits that she mentioned "a couple of speakers."

And she quotes another damning exchange with Gerze: "I said, take it easy on him. He's like, 'Well, I'll do the best I can,' and I think I said something like, just don't kill him, and he said something to the effect of either 'I won't' or 'I can't promise anything,' or something like that."

During both interviews, Lisl often obligingly adopts her interrogator's vocabulary. When Priest suggests she brought the skinheads with her as "muscle," she responds "I guess" and proceeds to employ the word herself later in the conversation. When he asks if Jaehnig, who sat outside in his car while the others were in the lodge at Buffalo Creek, was acting as a "lookout," Lisl responds, "I think so..."

"What do you think he was looking out for?"

he seems confused. "He might have been looking out...I don't even think he knew Shawn was not there, though...Just looking out for whatever."

On November 14, after having met with Deputy District Attorney Twining, Officers Jason Brake and Marc Bennett amend their original reports on the events at 3323 South Monaco two days earlier. Brake's first report said only that Lisl Auman had been ordered to come out and lie on the ground and had then been "removed." In his second report, he now says: "I could see the female standing at the corner of the hallway and as Marc was ordering her out observed her lean to her right, as if to drop something then stand back up with no weapons in her hands. Directly behind the female suspect I observed the male leaning over at a doorway...then turn around and run north in the hallway...At this time I did not observe any weapon in his hands either." Bennett at first said only that Auman had "turned around and put her hands in the air." His November 14 report is considerably more elaborate: "I observed the suspect [Jaehnig]...attempting to gain entry into Apt. A. Both of his hands were visible and he did not have any weapons in his hands. A female was looking into the parking lot and was two-thirds visible with her right shoulder and arm concealed behind a plywood wall. As I began to order her out she leaned slightly to the right before stepping into the doorway with her hands up."

This was the basis of the prosecution's assertion in court--and of numerous statements in the press--that Lisl had passed Matthaeus Jaehnig the rifle he used to kill Bruce VanderJagt.

Several startling incidents followed the deadly events at Monaco Place apartments. Six days after the murder of Officer VanderJagt, skinhead Nathan Thill allegedly murdered African immigrant Oumar Dia at a downtown bus stop, wounding Jeannie VanVelkinburgh. The next day, a dead pig with the word "VanderJagt" scrawled on its side was tossed in front of the District 3 police substation. On November 20, Officer Greg Vacca, responding to reports of a prowler near a west Denver apartment complex, was shot at in the parking lot, and huge numbers of police went on alert. Some days later, Steven Duprey--a friend of Matthaeus Jaehnig's--was arrested for his role in the Buffalo Creek burglary. The Denver Post reported that shell casings in the area of the west Denver apartments matched his gun and that his fingerprints had been found in one of the apartments.

Speeches, sermons and anti-hate rallies followed. It was a rare Denver official who didn't have something to say about skinheads. President Bill Clinton himself, in town for a fundraising visit, said: "We must not--and I know the city of Denver will not--tolerate acts of violence that are fed by hate against people of another color. And we must not tolerate violence and hatred targeted against police officers, the people who put their lives on the line for us every single day."

In articles with titles like "Scene of a Manhunt" and "Ten Days of Rage," the media fed the growing hysteria. Carl Raschke, a professor at the University of Denver, fanned the apocalyptic furies. "These people [skinheads] see themselves as warriors in a race with their enemies," he said. "They've been talking about real war for a long time."

It seemed Denver had become the locus for an archetypal struggle between good and evil--symbolized by the larger-than-life figures of the heroic policeman and his murderous, skulking skinhead enemies. In the eye of the storm stood the sorrowful figures of Anna VanderJagt and her three-year-old daughter, Hayley.

In this universe of absolutes, there was no place for contradiction, fine distinctions, shades of gray. The voices of reason--those who pointed out that there appeared to be no link between the murder of Dia and that of VanderJagt or who dared suggest that things are not always what they seem at first glance--were treated with hatred and suspicion. And there was no one to absorb all this opprobrium, all this high-minded public rage, but the young girl who happened to be in the killer's car just before the shooting.

In the absence of any evidence to the contrary--her lawyers advised the family not to talk--Lisl Auman was turned into a hate-filled, gun-carrying skinhead, a vicious woman hellbent on revenge against the man who had rejected her.

That was the story, anyway.

From the start, Officer Shana Stone said that Lisl was belligerent and quoted her as saying, "I'm not telling you anything. I plead the Fifth on this entire thing."

But Brake and Bennett were not the only cops whose stories changed in the days after VanderJagt's death. In a videotape made November 12, Officer Michael Gargaro had described Lisl's arrest: "I apprehended the female, handcuffed her and removed her from the immediate area...She didn't say anything until I got her on the ground and handcuffed her and then she said, I don't know what this is all about. I don't know what's going on."

In the car, before the shooting, Gargaro had asked Auman if Jaehnig had any weapons: "She said he has a gun, and I said, what kind of gun--and we already knew he did because he had been firing at the Jefferson County police. I said, is it big, like I have? And she said, no, it's like a rifle. And I asked, does he have any extra ammunition? She said, I don't know. He's wearing a black leather jacket."

On the way to the police station, Gargaro said, Lisl asked him if he knew the fallen officer. He said that he did and that VanderJagt was a good man and had a little daughter. Gargaro said that Lisl had responded, "I don't know anything. I can't help you. I just met him [Jaehnig] today. I'm really sorry for your friend. I didn't mean for anything bad like this to happen."

But here's how Gargaro described the arrest six months later, during a preliminary hearing: "I ordered her at least four times to go to the ground...She just wouldn't do it...She was loud to me. She was almost as though she was shouting to me...And she was aggressive...She began to move as though she wanted to get up...The defendant did not cooperate in any way or answer any of my questions...She had an occasion to look towards the area where the other police officers were...And she really showed no emotion of any kind."

1997 was a restless year for Lisl Auman. By that summer, she was living with several friends in a house in Englewood, drifting from job to job.

Her parents had divorced ten years earlier, and her mother remarried. Although all three parents--her father, Don Auman; Rob Auerbach, her stepfather, and her mother, Colleen--cooperated to provide warm, stable and loving homes for Lisl and her brother, Mason, the divorce hit hard. Through high school, Lisl lived alternately with Don and then with Rob and Colleen.

Lisl was intelligent and artistically inclined, but she had trouble deciding on a career or a direction in life. And after one disastrous teenage experience with a boy who hit her, Lisl had no serious relationships with men. A reborn hippie, a fan of the Grateful Dead, she lived in the moment. She liked to read, hang with her friends, party, walk in the mountains, take photographs and work on stained-glass projects with her mother.

Yet something about this young woman inspired profound affection in those who knew her. Most of her friends are now settling down, working or in college, some with small children. When they talk about Lisl, they tend to say similar things. They say that she's gentle, warm and giving. Fun to be around. That she'd let you bum her last cigarette, do anything to make you laugh, sing at the top of her voice in the shower.

"We'd sit on the porch and watch storms," says Robin Bartholomew, a former roommate. "We chased a rainbow once in Lisl's car. We ended up just driving to a high spot and looking down at it."

"The prosecution said this was a vindictive angry woman and she wanted revenge and would go to any length to get it," says longtime friend Alicia Frederick. "It was not Lisl. I almost wanted to laugh. I thought, they're describing themselves."

But things went wrong between the roommates in the Englewood house. There were squabbles about bills, dishes, housekeeping, who'd last bought toilet paper. Lisl, along with a couple of friends, decided to spend some time in the mountains. She had been offered a job working on forest rehabilitation.

Lisl's mother was pleased at the idea. A slender woman with a narrow face, blond hair and a trusting manner, Colleen has spent the past year trying to puzzle out what has happened to her daughter--the steady stream of misinformation in the press, the vilification. Can they do that? she keeps asking. Can they just print whatever they want? Colleen has been a second mom to many of Lisl's friends, who remember summer afternoons in the Auerbachs' backyard, meals at their table.

Colleen explains that when she herself was eighteen and unsure about what she wanted to do in life, she moved to Alaska with a friend. There she worked on fishing boats and lived in a cabin without electricity or running water. It was a defining experience, and she hoped that Lisl's sojourn in the mountains would prove equally beneficial for her.

At first Lisl stayed in a house in Buffalo Creek with Robin and another friend, Steffany Froemel. Steffany introduced her to Shawn Cheever, who was living in an old stone-and-wood lodge that had once been beautiful. Now the building was run-down, the outside littered with broken glass and bits of colored plastic. Lisl got a room there but spent most of her time in Cheever's room with him. There was neither running water nor electricity, and Lisl bought Cheever a heater.

In the beginning, Cheever was affectionate and attentive, but his interest soon cooled. Lisl remained smitten. She made him breakfast. She bought him presents. She had never dated anyone like Cheever before, and she found his tough logger persona romantic. But she was also becoming aware that he was a thief and a liar with an extensive arrest record.

"Shawn Cheever showed me a shoebox full of other people's checkbooks once," Froemel says. "He did petty crime, tons of it. Impersonation. He was always in jail under a different name."

During Lisl Auman's trial, Cheever would admit that he had deliberately exploited her for sex and money.

Looking back, Froemel struggles to describe the atmosphere at the lodge. It was a crazy period, she says: "For some reason, everybody was going through a massive personality change, the whole group of friends. We were doing things that were deteriorating our morals: too much partying, drinking, being very preoccupied with the wrong things." She herself was a "fierce emotional monster" at the time. As for her friend: "In hindsight, she was perfectly chaotic, perfectly out of her mind, perfectly not Lisl."

Although she vacillated for a time, within a month Lisl came to understand the self-destructive nature of her relationship with Cheever. It came home full force when he left for Denver to celebrate his birthday without her, after she'd bought him an expensive snowboard as a gift. She was left alone at the lodge, with half her possessions locked in Cheever's room.

She became desperate to move out. At separate times in the week preceding November 12, both Colleen and Don offered to help, but Lisl was embarrassed at the idea of her parents meeting the rough-edged, gap-toothed Cheever. And she was estranged from her closest friends since leaving the house she'd shared with them. It was then that she thought of Demetria Soriano.

Lisl had known Deme, as everyone calls her, for years. For a time they were very close. Once, before a Grateful Dead performance, they had danced in the parking lot in a lashing rainstorm and seen a man get hit by lightning. As the medics hustled him away, Soriano remembers, he was still waving his ticket and insisting he had to go to the concert.

When Lisl graduated from high school, Colleen had bought both girls tickets to San Francisco and arranged for them to stay with her sister there. Lisl and Soriano visited Haight-Ashbury and Chinatown. They rode the ferry to Alcatraz, played on the beach and leapt into the cold waters of the sea. "It was the first time I ever saw the sun set into the ocean," Soriano recalls.

But there had also been periods of estrangement. One of these had occurred some time before Lisl's move to the mountains. Lisl and Soriano had just begun tentative attempts at rapprochement a week or so before Lisl decided to leave Cheever.

That year, Deme Soriano had been going through a transformation of her own. The man she'd loved for a long time had left her early in the summer, and she was despondent and insecure, partying, drinking, smoking dope. She rented a room in her condo at the Monaco Place apartment complex to a friend from junior high, Dion Gerze; two months after he moved in, she became his girlfriend. "I was still trying to sew my heart back together," she says now.

Michael Jackson, an old friend of both Lisl's and Soriano's, visited Deme during this time. He noted that the apartment had changed. Soriano's tie-dye and tapestries were gone, and in their place were a case full of medieval torture instruments, a Confederate flag, a gun lying on the table.

Soriano introduced him to Gerze and to Gerze's friend Matthaeus Jaehnig. "I shook Jaehnig's hand," says Jackson, who is black. "There was a swastika tattooed on his arm. They acted perfectly pleasant, but I got out fast."

Soriano, with her dark, tumbling hair and olive skin, defines herself as Indian, Spanish, Irish, English and Filipino. Jaehnig was a friend, she says, one she liked and admired.

The only time Lisl visited, about a week before she decided to leave Cheever, Jaehnig wasn't at the apartment. On that occasion, Gerze and Soriano got into a fight. With Lisl in the next room, Gerze choked Soriano until she blacked out.

But when Lisl called November 11, distraught, Soriano told her to come right over. Lisl did, bringing her dog, Gene, with her. The two young women spent the evening demolishing a bottle of sake and planning their future. They would retrieve Lisl's possessions, get rid of their no-good boyfriends and live together, they decided. "It was just, Lisl, you and me are back together," Soriano remembers, in her slightly hoarse, throaty voice. "We'll have fun with our lives again."

There was some conversation between the two women and Gerze about helping Lisl move and enlisting the aid of Gerze's friends. Who said exactly what is still unclear. Everyone agrees on one thing, however: At no point did Lisl use the word "revenge" or appear angry and vindictive toward Cheever. Gerze--who otherwise shows no particular inclination to protect Lisl--was very clear about this during his police interview, despite intense and persistent questioning.

"Was she mad at him?" asks the interviewer on the videotape.

"No. She was just sad. I don't think she was mad at all."

"Spiteful?"

"I don't think so. I think she just fucking felt like a piece of shit."

"You know we've talked to Lisl...Are you sure that you did not hear anyone talk about punishing Shawn?"

"No. No. Bullshit, no. No punishment. We went there to get her stuff. Her fucking clothes."

"Any conversation before you went or while you were there: I'm gonna get that son of a bitch?"

"I heard nothing out of her mouth like that."

"Nothing?"

"No."

"I'm gonna take this because he doesn't deserve it and I paid for it?"

"I heard I'm gonna take that because I paid for it, because it's mine. But I didn't hear I'm gonna get him, or no shit like that. No...We weren't there like that."

By the next morning, though, Lisl was having serious doubts about the entire enterprise. She was afraid of Gerze and his friends and unsure of their intentions. When she and Soriano went to a Taco Bell to cash a check, she told Soriano she wanted to abandon the idea of getting her belongings, at least for that day. Soriano, however, urged her to go through with it. She pointed out that Lisl had written checks for Cheever's gifts that she might not be able to cover. Besides, she said, Gerze had set things up and it was too late to back out now.

Lisl knew what that meant.

She knew I was scared of Dion," Soriano says of her then-boyfriend. "I was terrified of him. He had threatened to kill me. He had threatened to kill my whole family.

"If you went against Dion, you might find yourself not there the next day."

he friends Gerze had recruited were Matthaeus Jaehnig, who had a record for assault and drug and weapons possession, and Steven Duprey, whose rap sheet was even longer.

Soriano and Lisl had planned to ride together, but the men insisted that Lisl travel in Jaehnig's red Trans Am with him. ("Tao [Jaehnig]...probably wanted to fuck her," Gerze speculates on the interview video.) Soriano and Duprey rode with Gerze in Soriano's black Chevy Cavalier. Gerze describes his own mood as lighthearted. His intentions were simply to help his girlfriend's friend move, he told the police, and to play in the mountains.

At the lodge, Lisl greeted some people she knew. She and Soriano began retrieving clothes, books and other belongings from her room. Jaehnig stayed outside in his car; at one point, Soriano joined him for a smoke break. Meanwhile, someone--no one has said precisely who--cut the lock on Cheever's door with bolt cutters. Prosecutor Twining attributes this act to Lisl, because Soriano testified that Lisl came down the stairs and handed her the cutters. But it is more likely that this large, cumbersome implement was wielded by one of the men.

Amid the flurry of accusations and counter-accusations that followed the burglary, it was hard to ascertain exactly what was taken from Cheever's room: The disputed items are the snowboard Lisl had bought; two camcorders, one Lisl's, the other broken; a pair of Cheever's speakers, one of which had been outside his door in the hallway; a tripod; an amplifier; and a box of CDs in which Auman's and Cheever's discs were mixed together.

At some point, Lisl did become aware that the men were taking items that were not hers. Soriano believes she was afraid to challenge them. "They were on top of us the whole time," she says. "There was really nothing she could have done."

Steffany Froemel has her own take on what happened. "I guess you could call it a burglary," she says. "Shawn's the one that stole the things. If that makes them his, well, there you go."

The cars outside the lodge were loaded up. Concerned at what he'd seen, one of Cheever's friends took down Jaehnig's license plate number. Someone else called 911. The red Trans Am sped away. Soriano's car left, then returned. Duprey jumped out to help himself to another box of discs.

Nine days after Lisl's trip to the lodge, a pizza was delivered to a room at a Quality Inn in Wheat Ridge. The bill was only $14 or $15; the delivery man was handed a $25 check with a woman's signature. He left, then returned to point out the discrepancy. It was Shawn Cheever who opened the door. Just give me five dollars, Cheever told the pizza man, according to police reports, and we'll call it even.

The check was forged. When police arrived, they discovered handgun shells in the room, cocaine and four women's purses--all stolen from maids at the Quality Inn. They also found Lisl Auman's checkbook.

Cheever had been frequenting upscale Denver hotels and stealing patrons' IDs to set up bank accounts. He had rented and never returned a chainsaw. Eight months before the Buffalo Creek break-in, he'd been arrested in Aurora for attacking his common-law wife. He had swung a vacuum cleaner at her, almost striking their five-month-old baby.

Two and a half months after the burglary, in January 1998, Cheever informed his Buffalo Creek landlords Red Jessup and Connie Matthews that he had impregnated their thirteen-year-old daughter. Furious, Jessup reported it to police, but no charges were filed against Cheever. In a motion to exclude this information from Lisl's trial (at one point the young girl was expected to testify against her; Cheever, too, would be taking the stand), Twining and DA Bill Ritter explained why:

"Other than the parents [sic] oral report to the unknown Denver Police Detective, there are no other reports concerning this allegation. Moreover, because all that was reported were [the child's] parents allegations, the Denver Police never opened an investigation, much less were charges ever filed." In addition, the motion stated, the thirteen-year-old was unlikely to cooperate in an investigation.

Lisl doesn't even bother to tell [police] it's a dead end there. She knows where he [Jaehnig] is. She knows it is a dead end... At that moment, there is one person--one person only--that can save Bruce VanderJagt's life, and that is Lisl Auman.

--Prosecutor Tim Twining at Auman's trial

"I have provided security for that complex for approximately seven years."

--Officer Michael Gargaro, preliminary hearing

"Officer VanderJagt says that there isn't any other way out of there. He said, do you want to go in or do you want me to go in? Sergeant Jones comes up. Officer VanderJagt apprises him of the same thing. That there's no way out."

--Officer Donald Bowling, on a video made the day of VanderJagt's murder

"If VanderJagt knew...that he [Jaehnig] was armed with the armament he had available, VanderJagt would not have peeked around the corner in the fashion that he did."

--Prosecutor Henry Cooper

"She said he has a gun...We already knew he did because he had been firing at the Jefferson County police."

--Officer Michael Gargaro, on a video made the day of VanderJagt's murder

Lisl Auman went on trial in Denver District Court in July 1998.

Before the trial, the district attorney's office offered Auman a plea bargain. "Lisl would have had to plead guilty to assaulting the officer when she took the wheel," says Angela Kruse, Lisl's defense attorney. "She would have had to plead guilty to knowing that Matthaeus Jaehnig had weapons in his car. These things would have been with her for life when she didn't do them." In exchange for these pleas, Auman would have received a thirty-year prison sentence.

She turned down the deal.

ithout the draconian felony murder law, there would not have been much of a case. Her lawyers believe that if Jaehnig had lived, Lisl would have been used as a witness against him and might never have been charged at all.

The felony murder law, however, made it possible to argue that if Lisl knew Gerze and his friends intended to burglarize Cheever's room and then directed them to it, she was an accomplice to the felony and hence guilty of the murder. Still, this theory might have struck a jury as a flimsy structure on which to hang a capital conviction. Postulate that Lisl was a willing participant in all that happened after the burglary, however--that she was filled with anger and the thirst for revenge, that she deliberately steered the car so that Jaehnig could shoot, that she handed him the gun at the condo complex, that she was hostile to the police--and you had a much more compelling argument. Add to all of this some passionate rhetoric, insist it was Lisl's lack of cooperation that doomed Bruce VanderJagt, factor in the intense public feelings swirling round the case, and your chances of conviction skyrocket.

Constructing the necessary narrative requires selective use of the available facts. It means insisting that Lisl knew Jaehnig had a rifle in his car because the weapon was simply too big to conceal--but accepting that she could somehow sneak this same weapon to Jaehnig at the condo complex without the cops who were standing a few feet away from her seeing it. It means believing Lisl when she uses the words "muscle" or "retaliate" in her interviews with police--while refusing to believe her frequent and consistent protestations of fear and revulsion (duress would be a valid defense against the burglary charge).

Cab driver Art Kent witnessed the collision caused by Jaehnig during his wild drive down the mountain. "He passed right next to me going up Eastman," Kent told the newspapers immediately after the incident. "He was definitely scared. He was stressed. I could see it in his eyes. He didn't hesitate at all after he hit her. He just threw it into reverse and burned rubber." In the courtroom, however, Kent said Lisl had had plenty of time to get out of the car if she wanted to.

In court, Kruse described a second attempt by Lisl to escape from Jaehnig's car. Passing a school, the car slowed momentarily; some children saw the passenger door open and a white laundry basket fly out. The attorneys said the basket had been between Lisl's legs, and she was preparing to jump from the car when Jaehnig threatened her again.

But Twining characterized this incident as an attempt to get rid of stolen loot. Fellow prosecutor Henry Cooper hypothesized that Lisl had thrown out the basket to allow Jaehnig easier access to his gun.

Did Lisl pass the gun to Matthaeus Jaehnig at the complex? No one who knows either Auman or Jaehnig finds the idea remotely plausible. Sam Jaehnig says his brother would never have left his car without his weapon once shots had been fired. Lisl's friends speak of her fear and hatred of guns; her mother remembers her long, passionate arguments with a grandfather who hunted.

But it's the physical evidence that's most compelling. A videotape taken the day of the murder reveals deep gouges on the door of Soriano's Monaco Place apartment. The likeliest explanation is that these were made by the butt of Jaehnig's rifle as he hammered furiously at the lock.

Auman's fingerprints were not found on the gun. Twining says no usable fingerprints at all were detected.

Demetria Soriano, Dion Gerze and Steven Duprey had pleaded guilty to the Jefferson County burglary long before Auman came to trial. Although any and all of them could have been charged under the felony murder law, their sentences were relatively light. Only Duprey, who violated parole on the day of the killing, is still in prison. According to Assistant District Attorney Chuck Lepley, the gun found on Duprey at his arrest was indeed the one used to shoot at Officer Greg Vacca. But after seeing Duprey in a lineup, Vacca was positive that he was not the gunman.

When asked about the other defendants' plea bargains, Twining responds that they "were not charged in this jurisdiction, and we had no communications whatsoever with them about anything that they were going to do about that. We were very careful not to be involved at all in their cases."

"The DA was anxious from the get-go," says Jim Dodd, Demetria Soriano's attorney. "[Denver Chief Deputy DA] Lamar Sims contacted me within 24 hours attempting to cut a deal to get her to provide information. They actually talked to her--the prosecution and the police--in advance of my being retained. It was a classic Monica Lewinsky kind of thing. She got told if she didn't help they'd come down on her pretty hard."

Both Gerze and Soriano testified at Auman's trial. But for the most part, their version of events jibed with hers.

Lisl's family and friends found the atmosphere in the courtroom intensely intimidating. Michael Jackson, who spoke as a character witness, was astonished when Judge Nancy Rice made a joke about his name. "Michael Jackson?" he remembers her saying. "I thought we'd already tried him."

"My hands were already sweaty," says Jackson. "The jury laughed. The cops were laughing. I had to bite my tongue and just sit there."

Other friends speak of police glaring at them, blocking the doorway so they could not leave the courtroom until all of the officers had exited.

Some witnesses, standing outside in the corridor, were surprised to hear police officers discussing their experiences on the stand. "I was told you're not supposed to talk to any other witnesses," says one. "But they'd say to each other, 'Well, what did you say? What kind of questions did they ask?'"

Given the devastating impact of her videotaped police interview--which the jurors viewed--it might have helped her case for Lisl herself to testify, particularly since duress was an important factor in her defense. Kruse will not say why she did not put her client on the stand. She may have hesitated to let Lisl testify because of her poor performance on the police videos; she may have felt that the defense was sufficiently compelling without Lisl's testimony.

It wasn't. The jury found Lisl guilty of felony murder. In accordance with the law, they had not been told before they deliberated that a felony murder conviction would mean a mandatory life sentence.

A few days later, Lisl Auman was sentenced to spend the rest of her life in prison.

That sentence haunts one juror, who found the DA's witnesses and presentation unconvincing. "I'm thinking there is no way anybody is going to convict this girl of felony first-degree murder," says juror Linda Chin. "I almost felt sorry for the district attorneys." But in the jury room, Chin found herself in the minority. The discussion was legalistic, hewing closely to the definition of felony murder and whether Auman's actions fit that definition. Most of the jurors seemed to find the weapon-passing argument less than credible, but they also did not believe that Lisl had tried to escape from Jaehnig's car. Slowly, Chin became convinced it was her duty to hang the jury.

"But the next day--I guess I started thinking, 'Am I going to be the only person here that the whole city of Denver and the police department know wouldn't vote for conviction?'" Chin remembers. "The night before, I was sure I could do it."

The jurors decided to watch Lisl's second videotaped interview with the police again. There she was, her voice flat and gravelly, lying about Jaehnig's name, the color of his car. "I just lost my desire to keep fighting," says Chin, her eyes filling with tears. The jurors took another vote, and this time Chin voted guilty.

"Within thirty minutes, I regretted it," she says. "Even when they were polling the jury, it flashed through my mind: I wonder what would happen if all of a sudden I said, 'No--I've changed my mind.'"

Herbert Greenberg, a retired University of Denver professor who served on the jury, felt that Twining had successfully assembled all of the elements required to prove felony murder. And although he did not believe that Auman had passed the gun to Jaehnig, he found the defense's contention that the police had lied profoundly distasteful.

Two weeks after Lisl Auman's trial ended, Judge Nancy Rice was appointed to the Colorado Supreme Court by Governor Roy Romer.

On January 25 of this year, Shawn Cheever was finally charged with sexual assault on a child. The date of the alleged offense was November 1, 1997--eleven days before Lisl Auman went to his room to get her things.

Replaying the events of November 12, 1997, Lisl Auman keeps returning to that moment outside the Monaco Place apartments, with a crazed gunman at her back and battle-ready police in front of her.

The moment before anyone had died.

She is sitting at a table in the visiting area of the Colorado Women's Correctional Facility, looking as unlike the morose, leaden creature on the police videotape as humanly possible. Her hair is light and flyaway, her face soft, open, vulnerable.

"Sometimes it seems like a dream," she says. "A nightmare. But I'll never wake up." She talks about her undeserved reputation as a skinhead and how frightened she was when she first entered jail and had to convince the black and Mexican inmates the image was false. It's a lot harder, she says, to convince the rest of the world.

She veers between hope and despair, tries to meditate, read (she's currently racing through Barbara Kingsolver's The Poisonwood Bible) and keep her mind steady. She misses her family and friends, long walks in the mountains, her dog. "I'm only 23 years old," she says. "I still want to have children."

Her days in the courtroom were terrifying. She remembers the way the police looked at her. "I would think to myself, they think I'm this horrible person who killed their friend, or brother, or loved one, and they'd sit there and look at me with such hate in their eyes...and that was really hard. I just wish there was something I could do to prove to them that I'm not the person they think I am. I know that wouldn't make any difference, but it would make me feel better.

"Mrs. VanderJagt wouldn't even accept my apology in court. I can understand she's just lost somebody she loves very much and she's grieving. But later she did a press conference, and she said, 'I do not accept Lisl Auman's apology or condolences, because I think she should take responsibility for what happened.'

"I'm not going to take responsibility for something I did not do."

This woman is the catalyst to everything that happened that day," Tim Twining said of Lisl Auman after the verdict. "She is the fuse to the powder keg at Monaco Place."

But Matthaeus Jaehnig's friends are sure he was fleeing police--not because he thought he'd been involved in a burglary, but because his car was stolen and, despite arrests for weapons possession, he was carrying guns. His sister, Jelena, says Jaehnig was withdrawn and angry during the last months of his life. Lyman Jackson says Matthaeus "was completely wiped out. The human being was gone. There were still a few people who could reach him, but a lot of his friends were scared and staying away." When Jaehnig's body was autopsied, it was found to contain enough methamphetamine to kill the average person.

Jaehnig's fury, madness and hatred of police created the explosive power that destroyed Officer VanderJagt. Lisl Auman's misfortune was to have been with him on the day he blew.

Last year, about this time, when police were chasing Matthaeus Jaehnig through the dusky shadows of the southeast Denver condo complex, Lisl Auman was sitting in a squad car telling cops to go to hell.

She wasn't giving them any information about her fresh new friend Jaehnig. It was reported that, amidst her obscenities, she spit in the face of one police officer asking questions...

She might as well have pulled the trigger herself, and the jurors knew it.
--Chuck Green, Denver Post

"Spit on a police officer, tell him to go to hell. Sweet little girl. You assholes at Sherman Way ought to be in prison with her. Have a nice life?

One more thing, scumbags. You may be able to change your phone number to try to hide from decent people, but can you afford to change your address? Later, jackass. We're not like the cops. We don't have our hands tied. Two words for Colleen: Suck it."

--Message left on the Auerbachs' answering machine shortly after the trial.

Lisl Auman's life sentence has had a devastating effect on her family and friends, most of whom have never been in any kind of trouble with the law. "I'm afraid of the police," says Alicia Frederick. "Obviously, they can do whatever they want to." Jaime Sostman, too, is afraid. "What if I'm in the wrong place at the wrong time someday?" she says.

"You don't know how much I feel this is my fault," says Demetria Soriano, crying. "She was my best friend. She didn't know these people. She didn't have a clue what she was in for that day. Once she got in that car with Tao and closed the door, there was nothing she could have done."

Don Auman has set up a Web page for his daughter, www.lisl.com. He spends long hours researching her case, hoping for a reversal on appeal. A hardworking, law-abiding man, he has found his faith in the government and the legal system sorely tested.

After the verdict, Rob Auerbach, Lisl's stepfather, made a comment that he regretted almost immediately and continues to regret. As the police filed past him, he said, "There go the Nazis."

Today Auerbach still weeps when he talks about Lisl's predicament. Colleen remembers being at a picnic last summer and hearing a neighbor talk about a nervous breakdown she'd suffered. "I remember thinking, 'Well, how do you have one of those?'" Colleen says. "I qualify to have one."

She thinks about her daughter constantly. "Her life has been so short," Colleen says. "She hasn't had an opportunity to make major decisions and plan long-range goals. Our kids do things that make us mad sometimes and things we question, but Lisl is anybody's kid. And we are just any family.

Supreme Court of Colorado

David S. Kaplan, Colorado State Public Defender, Kathleen A. Lord, Chief Appellate Deputy State Public Defender, Denver, for Petitioner.John W. Suthers, Attorney General, Paul Koehler, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, for Respondent.Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, P.C., Norman R. Mueller, Rachel Bellis, Denver, for Amicus Curiae National Association of Criminal Defense Lawyers.Colorado District Attorneys' Council, Peter A. Weir, Former Executive Director, Denver, Steven L. Bernard, Assistant District Attorney, Nineteenth, Judicial District, Brighton, for Amicus Curiae Colorado District Attorneys' Council.

I. INTRODUCTION

In this appeal, we review the court of appeals' decision in People v. Auman, 67 P.3d 741 (Colo.App.2002), which affirmed Lisl Auman's convictions for first degree felony murder and second degree burglary.¹  We agree with the court of appeals that, as a matter of law, Auman's arrest did not terminate her liability for felony murder and that whether a co-participant's arrest terminates his or her immediate flight from the commission of the predicate felony while another participant remains in flight is a question for the jury to decide.

However, proof of the predicate crime is just as important an element of the crime of felony murder as is proof that death occurred in immediate flight.   Here, the predicate felony was second degree burglary, which requires that the defendant intend to commit the crime of theft when unlawful entry occurs.   Hence, we also address whether an error in the theft instruction requires reversal of Auman's conviction for second degree burglary and, if so, then necessarily of her conviction for felony murder as well.

Our review of the record leads us to conclude that the erroneous theft instruction may have deprived Auman of her right to a full and fair jury consideration of her defense to burglary.   Hence, we reverse her second degree burglary conviction.   Because Auman's felony-murder conviction was based upon the jury's finding that she committed second degree burglary, we similarly reverse that conviction and remand for a new trial.

In November 1997, Auman and a few others moved her belongings out of a room that she had been renting at an eleven-bedroom lodge (the Lodge) in the Denver foothills.   In the process of moving her things out, the evidence supported a conclusion that Auman and the others with her broke the padlock to the room of another tenant, Shawn Cheever, and removed some of his belongings as well as some of Auman's things which were also in Cheever's room.

According to the evidence presented, after loading the items into two cars they had driven to the Lodge, the group drove away in their separate cars.   When the police attempted to stop the car that Auman was riding in, Matthew Jaehnig, the driver of that car, led law enforcement officers on a high-speed chase into Denver.   During this chase, and while Auman held the steering wheel, Jaehnig shot at an officer's car with an assault rifle.   He then drove to the apartment complex to which Auman was moving.

Upon reaching the apartment complex, police officers saw Auman and Jaehnig run into a small alcove of the complex, and, shortly thereafter, Auman surrendered to police.   She had been under arrest for approximately five minutes when a Denver police officer, Bruce VanderJagt, who was searching for Jaehnig, looked around the corner of the alcove and was shot and killed by Jaehnig.   In the period between her arrest and the fatal shooting, Auman did not tell police, despite their repeated questions, that she knew that Jaehnig was probably still cornered in the alcove and that he was armed with an assault rifle.

Under our relevant statute and established case law, each felony-murder case involving immediate flight, in which a death is caused after the arrest of a co-participant, must be decided according to its unique set of circumstances.   Unless the connection between the resulting death and the co-participant's arrest, the predicate felony, or immediate flight is so attenuated that the trial court must order the entry of a judgment of acquittal under Colorado Rule of Criminal Procedure 29, the trial court shall submit this issue for decision by the jury.²  We hold that, as a matter of law, arrest, by itself, does not terminate a co-participant's liability for felony murder when death occurs at the hands of another participant who remains in flight.

A conviction for the crime of felony murder requires that a death occur in the commission of a specifically enumerated felony.   Here, Auman's conviction for second degree burglary served as the predicate felony for her felony-murder conviction.   Second degree burglary requires that a defendant possess the intent to commit a crime when he or she breaks an entrance into a building or occupied structure.   The People charged that Auman intended to commit the crime of theft when she, and the others with her, broke the lock and entered Cheever's room.   Hence, the jury's understanding of the definition of theft formed an essential element of Auman's conviction for felony murder.

However, the theft instruction omitted a required element of theft.   The element which was omitted was the requirement that the defendant acted “knowingly” without authorization in taking the other person's property.   Based on this omission, the court of appeals determined that the theft instruction was erroneous.  Auman, 67 P.3d at 760.   The People agree that the instruction was improper.   If a proper theft instruction had been incorporated into the instruction on second degree burglary, the jury, to convict Auman of burglary, would have been required to find that she intended to steal (to knowingly take Cheever's property without his authorization) when she unlawfully entered Cheever's room.

Auman admitted she entered Cheever's room unlawfully but claimed she did so only to retrieve her property and contended that the taking of Cheever's property occurred by the others involved.   In making this admission, Auman conceded that she committed the crime of criminal trespass, which is a lesser included crime of second degree burglary and is not burglary.   The erroneous instruction here, however, allowed the jury to convict Auman of burglary without considering her defense to that crime.   According to the terms of the improper instruction, it was irrelevant to the jury's decision to convict her of burglary whether Auman intended to take only those items which she believed she was authorized to take when she entered Cheever's room.

Auman's defense to burglary centered upon the claim that she had not formed the intent to steal when the unlawful entry occurred.   The evidence, when viewed in its entirety, was not so overwhelming that she formed this required intent to sufficiently cure the instructional error.   Thus, we conclude that this erroneous instruction substantially affected Auman's right to a full and fair jury consideration of her defense to burglary.   It is reasonably possible that the error contributed to Auman's burglary conviction such that the fundamental fairness of her trial is called into question and serious doubt is cast upon the reliability of the jury verdict.

Hence, we reverse the judgment of the court of appeals affirming those convictions which were based upon the erroneous theft instruction:  second degree burglary and felony murder.   We remand this case to the court of appeals to be returned to the trial court for a new trial on these charges.

II. FACTS AND PROCEEDINGS BELOW

Auman was convicted of felony murder for her role in an alleged burglary which resulted in the shooting death of a Denver police officer, Bruce VanderJagt, on November 12, 1997.

Auman had rented a room at an eleven-bedroom lodge (the Lodge) in Buffalo Creek, Colorado and had dated another Lodge tenant, Shawn Cheever, while she was there.   Approximately one week before the alleged burglary, Auman learned that Cheever no longer wanted to continue his relationship with her.

Auman made plans to move out of the Lodge and to move in with her friend, Demetria Soriano, at Soriano's apartment in southeast Denver. On the evening before the alleged burglary, Auman and Soriano were at the apartment with Soriano's live-in boyfriend, Dion Gerze, and Gerze's friends, Matthew Jaehnig and Stephen Duprey.   At Auman's request, the group agreed to help her retrieve her belongings, some of which were in Cheever's room, from the Lodge.   At that same time, Auman indicated to the group that Cheever had mistreated her.

In a post-arrest interview with police, Auman stated that she had wanted the men to come along as “muscle” in case a problem with Cheever were to arise when she tried to get her things.   She admitted she was aware that Gerze and Jaehnig carried guns, and she had asked Gerze not to kill Cheever.   In response, Gerze stated he could not promise anything.

At approximately noon on the day of the alleged burglary, the group headed to the Lodge in two cars.   Auman rode with Jaehnig in a Trans Am, which, according to Detective Rick Schneider's testimony, was stolen.   The others followed in Soriano's car.   Prosecution photos showed that Jaehnig was carrying a shotgun and two assault rifles in his car, which were visible from the passenger seat.   Auman told police she did not notice the assault rifle until Jaehnig took it out during the later police chase into Denver.

Upon arriving at the Lodge, Auman and Soriano began moving Auman's things out of her room and loading them into the cars.   Cheever was at work during this time, and, at some point, the padlock securing his room was cut with bolt cutters.   Auman, Gerze, and Duprey then removed several items from Cheever's room, including some of Cheever's property.   Tenants at the Lodge saw Auman and the others as they were carrying items from Cheever's room.   One of the tenants openly recorded the license plate numbers of the cars.

While the others were making trips in and out of the Lodge, Jaehnig stayed at his car.   In response to a question by police as to whether Jaehnig had acted as a “lookout,” Auman stated, “I think so.”   The evidence showed that Jaehnig provided the bolt cutters which were used to cut the padlock on the door to Cheever's room and also helped load items into his car.

After they finished loading the cars, Auman and Jaehnig drove toward Denver in the Trans Am. Although the others had left before them, Gerze, Duprey, and Soriano returned to the Lodge in their car shortly thereafter but then left the Lodge in the opposite direction of Auman and Jaehnig.

Responding to a 911 burglary-in-progress call from Lodge residents, two sheriff's deputies in separate vehicles began to follow the Trans Am. When the deputies turned on their emergency lights and sirens, Jaehnig sped off, and a high-speed chase ensued.   Auman told police that she thought Jaehnig was fleeing from the deputies because he was “wanted.”

As the chase proceeded through Denver, the Trans Am came to a complete stop two separate times.   Auman did not get out of the car either time.   She later told police that the second time the car stopped, which lasted for up to thirty seconds, she considered getting out, but Jaehnig told her, “[D]on't even think about it.”

At one point during the chase, Auman held the steering wheel while Jaehnig leaned out of the car window and shot at one of the deputies with an assault rifle.   Auman told police that Jaehnig had asked her to take the wheel and that she had steered so that they did not lose control of the car.

When the Trans Am reached Soriano's apartment complex, Auman and Jaehnig ran into an alcove outside Soriano's apartment because they did not have keys to unlock Soriano's door.   The alcove was essentially a dead end.   They would have been plainly visible to pursuing police officers had they fled from the small alcove area.   Police officers had seen Auman and Jaehnig standing at the door of Soriano's apartment and had seen them head to the alcove, but, because of their viewing angle, they could not determine whether the pair could have escaped, undetected, from the alcove.   Police officers repeatedly ordered the pair to surrender, and, shortly thereafter, Auman surrendered to the officers, who forced her to the ground and handcuffed her before placing her in a police car.

Immediately after Auman was arrested, Officer Jason Brake repeatedly asked her about Jaehnig's whereabouts.   When Auman gave no reply, Brake became adamant, saying, “Where the fuck is he?   We're not fucking around.   Where the fuck is he?”   Brake stated that Auman “glared” at him and responded, “I don't know what you're talking about.”   Auman gave the same response to another officer's repeated pleas regarding Jaehnig's whereabouts.

The officers, not realizing that Jaehnig was essentially cornered in the alcove, ran around the complex to see if he had fled from the back, but they saw neither Jaehnig nor footprints in the snow.   Officer VanderJagt then volunteered to see whether Jaehnig was in the alcove.   When he peered around the corner of the alcove, Jaehnig shot Officer VanderJagt in the head at point-blank range, killing him instantly.   Jaehnig then spent all of his ammunition in a gun battle with officers before killing himself with Officer VanderJagt's gun.   Officer VanderJagt's death occurred approximately five minutes after Auman's arrest.

Later that day at police headquarters, Auman consented to two videotaped interviews, which were played to the jury at her trial.   During these interviews, Auman admitted that the group took property belonging to Cheever.   Police later found several items taken from Cheever's room in the two cars, including:  a snowboard, two camcorders, a tripod, two stereo speakers, an amplifier, a Sony Discman, and several CDs. Auman also admitted that she was aware when she was arrested that Jaehnig was still carrying the assault rifle he had used to shoot at the sheriff's deputy and that he probably could not have escaped from the alcove without being seen by police.

Auman was charged with several criminal offenses, including first degree felony murder, attempted first degree murder, first degree assault, menacing, first degree burglary, and conspiracy to commit first degree burglary.   At the request of Auman's counsel, and as lesser included offenses to the charge of first degree burglary, the court instructed the jury on second degree burglary and first degree criminal trespass.

At the preliminary hearing, the trial court found that the burglary, flight, and shooting were connected by a “continuing sequence of events.”   Relying on our holding in People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976), and, after viewing the facts in the light most favorable to the prosecution, the court concluded, as a matter of law, that immediate flight had not terminated upon Auman's arrest and that the question of whether she was guilty of felony murder could thus be submitted to the jury.

At trial, following the prosecution's presentation of evidence, Auman's counsel called six witnesses.   One witness testified that Jaehnig looked “evil” and that Auman did not have an opportunity to get out of the car at the intersection.   Three of Auman's friends testified that she was a nonviolent person.   A forensic toxicologist testified that Jaehnig's autopsy revealed high levels of methamphetamines which would have caused him to act aggressively and recklessly.

In closing, the People argued that Auman committed felony murder because she was guilty of burglary and because Officer VanderJagt's death was caused by Jaehnig in immediate flight from that burglary.   The People argued that Auman's arrest did not terminate her liability for felony murder while Jaehnig's immediate flight continued and while she lied to and withheld information from police. The People also argued that Auman did not meet the statutory affirmative defense to felony murder because, among other things, she did not immediately disengage herself from immediate flight upon having reasonable grounds to believe that Jaehnig was armed or dangerous.

In response, Auman's counsel argued that she had not committed felony murder under several different theories, including:  (1) that immediate flight had terminated upon Auman's arrest, thereby terminating her liability for felony murder;  and (2) that she did not commit the predicate felony of burglary.   Auman's counsel also argued that the prosecution did not disprove the statutory affirmative defense to felony murder.

The trial court submitted a jury instruction which tracked the language of the felony-murder statute and included the immediate flight element.   The court declined to submit supplemental instructions tendered by the People and Auman.³  The People's instruction tracked the language of this court's decision in McCrary, stating that “[t]here can be no exact measure of the time or distance which is dispositive of whether Felony-Murder exists.”   See 190 Colo. at 553, 549 P.2d at 1332.   Auman's tendered instruction defined immediate flight and the factors that could terminate flight.

The jury acquitted Auman of first degree burglary ⁴ but found her guilty of first degree felony murder, second degree burglary, conspiracy to commit first degree burglary and menacing.

Auman appealed her convictions to the court of appeals.   She made numerous arguments, asserting that the trial court had committed reversible error in improperly instructing the jury on the required elements of second degree burglary and theft.   The court rejected each of these arguments, finding that the alleged errors did not contribute to the jury's verdict on the second degree burglary count. Auman, 67 P.3d at 759-761.

With regard to Auman's appeal of her felony-murder conviction, the court of appeals held that, as a matter of law, arrest does not terminate a co-participant's liability for felony murder while another participant remains in flight.  Id. at 751-54.   The court thus held that the trial court properly left to the jury the issue of whether Auman's arrest terminated immediate flight.  Id. at 754.   In addition, the court held that the trial court's failure to properly instruct the jury on the immediate flight element of felony murder did not constitute plain error because the instruction followed the recommended language of the Colorado Criminal Jury Instruction on felony murder.   See CJI-Crim. 9:02.   The court held that the instruction, as worded, “sufficiently required that the People prove a causal connection beyond a reasonable doubt.”  Auman, 67 P.3d at 759.   The court also rejected Auman's assertion that the trial court had committed reversible error in failing to define “immediate flight.”  Id. at 755.

Auman now appeals to this court, arguing that arrest, as a matter of law, terminates liability under Colorado's felony-murder statute.   She also asserts that the trial court committed reversible error in improperly instructing the jury on felony murder, second degree burglary, and theft.⁵

III. WHETHER AUMAN'S ARREST TERMINATED HER LIABILITY FOR FELONY MURDER

A. The Felony-Murder Statute:  Four Requirements

On its face, Colorado's felony-murder statute is broad in scope.   The words of the statute provide that if a person commits a specifically enumerated felony and an innocent party dies during that felony or during immediate flight from that felony, then that person commits felony murder:

A person commits the crime of murder in the first degree if:  ․ [a]cting either alone or with one or more persons, he [or she] commits or attempts to commit ․ burglary ․ and, in the course of or in furtherance of the crime that he [or she] is committing or attempting to commit, or of immediate flight therefrom, the death of a person, other than one of the participants, is caused by anyone.

§ 18-3-102(1)(b), 6 C.R.S. (1999).

Pursuant to the terms of this statute, it does not matter that the defendant had no intent to kill or that the defendant did not cause the killing.   Liability arises from the defendant's participation in, and intent to commit, one of the specifically named, or predicate, felonies.   According to the felony-murder doctrine, the intent to kill is imputed from the participant's intent to commit the predicate felony.   See Whitman v. People, 161 Colo. 110, 114-15, 420 P.2d 416, 418 (1966) (“The turpitude of the felonious act is deemed to supply the element of deliberation or design to effect death.”).   Our felony-murder statute provides severe penalties for those who participate in specifically enumerated felonies involving a risk of death when death is caused during a felony or in immediate flight from that felony.⁶

Under this statute, a defendant who commits a predicate felony may be liable when death occurs during either of two events, namely:  (1) “in the course of or in furtherance of the crime that [the defendant] is committing or attempting to commit;” or, (2) “in the course of or in furtherance ․ of immediate flight therefrom.” ⁷ § 18-3-102(1)(b).  Here, we address only whether the death was caused in the course of or in furtherance of immediate flight from the predicate felony, which in this case was burglary.

According to the plain language of the immediate flight provision of the statute, there are four limitations on liability for felony murder when a death occurs during flight from the predicate felony.

First, the flight from the predicate felony must be “immediate,” which requires a close temporal connection between the predicate felony, the flight, and the resulting death.   See Webster's New World College Dictionary 713 (4th ed.1999) (defining “immediate” as “without delay” or “of the present time”).

Second, the word “flight” limits felony-murder liability in such cases to those circumstances in which death is caused while a participant is escaping or running away from the predicate felony.  Id. at 541 (defining “flight” as “a fleeing from ․ to run away”).

Third, the death must occur either “in the course of” or “in furtherance of” immediate flight, so that a defendant commits felony murder only if a death is caused during a participant's immediate flight or while a person is acting to promote immediate flight from the predicate felony.   See id. at 333 (defining “in the course of” as “in the progress or process of;  during”);  and id. at 575 (defining “furtherance” as “a furthering, or helping forward;  advancement;  promotion”).

Fourth, the immediate flight must be “therefrom,” indicating that the flight must be from the predicate felony, as opposed to being from some other episode or event.

In 1971, the General Assembly added the words “immediate flight therefrom” to the statute.   See ch. 121, sec. 1, § 40-3-102(1)(b), 1971 Colo. Sess. Laws 388, 418.   When these words are read together with the initial words of the statute, which provide that one may act “either alone or with one or more persons,” immediate flight terminates when a sole participant in the subject felony is subject to complete custody, or, alternatively, when all participants in a predicate felony involving more than one participant are subject to complete custody.⁸

The plain language of our statute supports the legal principle that a co-participant in a predicate felony may be liable for felony murder even after arrest while another participant remains in immediate flight.   The statute deems conduct as murder when one participates in the predicate felony and a death is caused in the course of or in furtherance of “immediate flight,” which, by its terms, is not limited to the flight of any particular participant.   The felony-murder statute regards all participants as liable for felony murder when a person acts “with one or more persons” in the commission of a specifically enumerated felony and death is “caused by anyone” “in the course of or in furtherance ․ of immediate flight” from the predicate felony. § 18-3-102(1)(b).

Just as important as what the statute says is what the statute does not say.   As it is worded, the statute does not differentiate between liability for participants in the predicate felony who are in immediate flight and those who are not;  nor does the statute state that some participants may be liable for a death that occurs in the course of or in furtherance of immediate flight but that others may not.   The statute also does not state that if a co-participant's actual flight ends as a result of arrest, and another participant remains in flight, that immediate flight has ended for the co-participant under arrest.   Most importantly, the statute does not say that a co-participant may be liable for felony murder for only those deaths caused during that co-participant's immediate flight.   We should not construe these omissions by the General Assembly as unintentional.  Zamarripa v. Q & T Food Stores, Inc., 929 P.2d 1332, 1339 (Colo.1997).

We next turn to the statutory affirmative defense to determine how it affects our analysis of this statutory crime.   The General Assembly created an affirmative defense to felony murder that allows a defendant to avoid felony-murder prosecution if “he not only had nothing to do with the killing itself, but was unarmed and had no reason to believe that any of his confederates were armed or intended to engage in any conduct dangerous to life.” § 40-3-102 cmt., 12 C.R.S. (1963) (1971 Perm. Cum.Supp.).⁹  The affirmative defense also provides that if a defendant discovers that a co-participant is armed or dangerous during the commission of the crime or in flight therefrom, the defendant may obtain the benefit of this defense by immediately disengaging from either the predicate felony or the flight.   See § 18-3-102(2)(f).

Like the plain language of the statutory offense, the affirmative defense provides no support for the theory that arrest, by itself, terminates a co-participant's liability for felony murder as a matter of law.   This conclusion, however, does not mean a jury should not consider a co-participant's arrest as a factor in deciding whether the prosecution has satisfied its burden of proving that the affirmative defense does not apply.

B. Immediate Flight Before and After Our Present Statute

Colorado's former felony-murder statute provided that “[a]ll murder ․ which is committed in the perpetration ․ [of a predicate felony] ․ shall be deemed murder of the first degree ․” § 40-2-3(1), 3 C.R.S. (1963).  In Bizup v. People, 150 Colo. 214, 371 P.2d 786 (1962), a pre-code case, we interpreted this statute and held that the perpetration of the predicate felony encompasses the act of flight from that felony.   In addition, in McCrary, another pre-code case, we upheld the defendant's conviction for felony murder even though the flight of the defendant and his co-participant was purportedly interrupted twice before the eventual killing:  first, when they stopped at a bar for up to a half hour;  and second, when the co-participant molested the victim.  190 Colo. at 552-53, 549 P.2d at 1331-32.   In that case, we approved the jury's finding that liability continued despite these alleged interruptions.  Id. at 553, 549 P.2d at 1332.

Under Bizup and McCrary, the concept of flight is broad.   Together, these pre-code cases stand for the proposition that, as a matter of law, felony murder does not terminate where death occurs during continuous flight from the predicate felony, nor does it terminate where intervening events interrupt flight.

In interpreting the phrase “immediate flight therefrom,” we have relied upon and applied Bizup, McCrary, and other pre-code cases construing the meaning of flight under our pre-code statute.   See People v. Hickam, 684 P.2d 228, 231-32 (Colo.1984).   We conclude that the General Assembly's 1971 addition of the words “immediate flight therefrom” incorporates into our present statute the concept derived from these pre-code cases that a defendant may be liable for felony murder for a death caused either during the predicate felony or during immediate flight from that felony.

Our pre-code precedent concerning immediate flight is consistent with judicial decisions from New York interpreting that state's felony-murder statute, N.Y. Penal Law § 125.25(3) (McKinney 1967),¹⁰ the statute upon which our General Assembly largely modeled section 40-3-102(1)(b).¹¹  See People v. Irby, 47 N.Y.2d 894, 419 N.Y.S.2d 477, 393 N.E.2d 472 (1979);  Donovan, 53 A.D.2d at 33, 385 N.Y.S.2d 385.   Like the Colorado General Assembly, New York's legislature added the words “immediate flight therefrom” to its statute to clarify that felony-murder liability does not terminate upon the completion of the predicate felony.   See Practice Commentary, N.Y. Penal Law § 125.25 (McKinney 1967).

Further, under New York's statute, arrest does not terminate immediate flight or liability for felony murder as a matter of law.  Irby, 419 N.Y.S.2d 477, 393 N.E.2d at 472-73.   Interpreting the scope of “immediate flight therefrom,” the New York Appellate Division's decision in Donovan paralleled our McCrary holding in stating that “[t]here is no exact minute on the clock or milepost along the escape route, the passage of which terminates a crime.”   Donovan, 53 A.D.2d at 33-34, 385 N.Y.S.2d 385 (rejecting argument that the passing of 45 minutes and more than 37 miles between felony and death preclude the jury from finding that defendant was in “immediate flight”).

C. Additional Cases from Other Jurisdictions

The cases cited by Auman to support her view that, as a matter of law, arrest terminates a co-participant's liability for felony murder do not support a different reading of Colorado's felony-murder statute.   These cases fall into one of two categories.   First, they involve either the arrest of a sole participant or the arrest of all participants, and, as a matter of law, arrest therefore terminates liability for felony murder.¹²  The same would be true under our statute as well if Auman had been the only participant, or if Auman and all of her co-participants had been arrested, and the death occurred after arrest.   Second, there exists precedent from other jurisdictions where, as a matter of law, the statute in question dictates that arrest terminates liability.¹³  Neither category applies to this case.

D. Whether Arrest Terminates Liability for Felony Murder Is a Jury Question

As discussed, Colorado modeled its felony-murder statute on New York's statute, which treats the issue of whether arrest terminates liability for felony murder as a jury question.  Irby, 419 N.Y.S.2d 477, 393 N.E.2d at 472-73.   In adopting its present felony-murder statute, New York rejected the “arbitrary,” “strict,” and “technical” legal rules that formerly left a judge to resolve, as a matter of law, the issue of when the commission of a felony ended.   See People v. Gladman, 41 N.Y.2d 123, 390 N.Y.S.2d 912, 359 N.E.2d 420, 423-24 (1976);  Practice Commentary, N.Y. Penal Law § 125.25 (McKinney 1967).   Under the new statute, the scope of immediate flight is a factual question for a jury to decide because immediate flight differs according to the unique facts and circumstances of each case, such as the time and distance between the felony and the killing.  Gladman, 390 N.Y.S.2d 912, 359 N.E.2d at 424.   In addition, the statute requires a jury to decide the factual issue of whether a defendant is liable for felony murder following the defendant's arrest.  Irby, 419 N.Y.S.2d 477, 393 N.E.2d at 472-73.

Similarly, Colorado's pre-code cases left it to the jury to decide whether flight had ended under the facts of a given case.   See, e.g., McCrary, 190 Colo. at 553, 549 P.2d at 1332.   Under McCrary, the jury is left with considerable discretion in deciding when flight ends.   See id. at 553, 549 P.2d at 1331-32.

Our present felony-murder statute requires a jury to decide factual issues relating to the effect of arrest on felony-murder liability, such as whether, in spite of arrest, the temporal connection between the predicate felony, flight, and death is “immediate,” and whether a death following a defendant's arrest is still “in the course of or in furtherance of” immediate flight from the predicate felony.

We hold that under our statute and precedent, each felony-murder case involving immediate flight must be decided according to its unique set of circumstances.   As a matter of law, arrest, by itself, does not terminate a co-participant's liability for felony murder when a death occurs at the hands of another participant who remains in flight.   Hence, whether Auman's arrest terminated her liability for felony murder was properly left to the jury.

IV. THE TRIAL COURT'S INSTRUCTION ON FLIGHT AND THE LACK OF AN INTERVENING CAUSE INSTRUCTION

Having concluded that the trial court properly left to the jury the determination of whether Auman's arrest terminated her liability for felony murder, we next consider whether the trial court improperly instructed the jury on the offense of felony murder and, if so, whether reversible error was committed.

A. The Trial Court's Instruction on Immediate Flight

The trial court followed the recommended language of the Colorado Criminal Jury Instruction on felony murder, see CJI-Crim. 9:02, and instructed the jury that it could hold Auman liable for felony murder if it found beyond a reasonable doubt that Officer VanderJagt's death was caused by anyone “in the course of or in the furtherance of Burglary, or in the immediate flight therefrom.”

Auman contends that the error occurred in the fifth element of the felony-murder instruction:

(1) That the Defendant,

(2) in the State of Colorado, on or about November 12, 1997,

(3) acting with one or more persons,

(4) committed Burglary, and

(5) in the course of or in the furtherance of Burglary, or in the immediate flight therefrom,

(6) the death of Officer Bruce Vanderjagt [sic], other than one of the participants, is caused by anyone,

(7) without the affirmative defense in Instruction No. 16.

(Emphasis added.)

As noted, section 18-3-102(1)(b) provides that a person commits felony murder if a death is caused “in the course of or in furtherance of the crime that he [or she] is committing or attempting to commit, or of immediate flight therefrom ․” (emphasis added).   In interpreting this statute with regard to the immediate flight element, we previously held that a person commits felony murder when a co-participant causes death “in the course of or in furtherance ․ of immediate flight [from the predicate felony].”   Auman contends that by substituting the preposition “in” for “of” in the phrase “or in the immediate flight therefrom,” ¹⁴ the trial court failed to connect the immediate flight element to the phrase directly preceding it and thus did not properly inform the jury that the language “in the course of or in furtherance of” also applied to the immediate flight element.   If the language “in the course of or in furtherance of” had been applied to the immediate flight element by the use of the preposition “of,” Auman contends that the jury would have been properly instructed that, consistent with our previous holding, a person is liable for felony murder when a death is caused “in the course of or in furtherance ․ of immediate flight.”

While Auman maintains that, at the least, the trial court should have used “of” instead of “in,” she asserts that the entire phrase “in the course of or in furtherance of immediate flight therefrom,” (underlined words omitted), should have been inserted into the fifth element of the instruction.

By instructing the jury that Auman could be found guilty of felony murder if death were caused “in the immediate flight therefrom,” Auman contends that the jury was permitted to find only a temporal, as opposed to the required causal, connection between the felony, flight, and death.   Auman asserts that the trial court should not have instructed the jury that a person commits felony murder when a death occurs “in,” which connotes “during,” immediate flight from a predicate felony.   Rather, Auman argues that by using the word “of” from the statute, which relates back to the phrase “in the course of or in furtherance of” immediate flight therefrom, or by inserting the phrase in its entirety into the felony-murder instruction, the jury would have been required to find that the burglary, flight, and death were not just temporally, but also causally, related.

We agree with Auman that the instruction here should have tracked the precise language of the felony-murder statute;  however, we disagree that the instruction constituted reversible error.¹⁵  As submitted, the instruction's requirement that the jury find that the death occurred “in immediate flight therefrom” expressly contained three of the four limitations included in the felony-murder statute:  first, it required the jury to find that the connection between the predicate felony, flight, and death was “immediate”;  second, it required that a participant be in “flight” when the death was caused;  and third, it required the jury to find that the immediate flight was “therefrom,” or from the predicate felony rather than from some other event.   See Webster's New World College Dictionary at 1485 (defining “therefrom” as “from this;  from that;  from it”).   We conclude that the immediate flight language in the instruction was well within the comprehension of the jury.

Contrary to Auman's contention, the instruction, as worded, expressly required the jury to find a causal relationship between the burglary, flight, and death.   The term “immediate” requires a close connection between the burglary, flight, and death.   The presence of the word “flight” in the instruction required the jury to find that one of the participants was still attempting to evade capture at the time of death.   Further, the instruction required the jury to find that Officer VanderJagt's death occurred in the immediate flight “therefrom,” i.e., that death was caused while one of the participants was fleeing from the burglary rather than from some other event.

The only statutory limitation not expressly included in the instruction was that a participant must have been “in the course of or in furtherance of” immediate flight when death was caused.   In parsing the language used in the actual instruction tendered to the jury, we note that the court used the term “in” to describe Auman's potential liability for a death caused “in the immediate flight [from the burglary].”   The term “in” has a nearly identical meaning to the phrase “in the course of.”   Webster's New World College Dictionary at 719 (defining “in” as “during the course of”).   Because the term “in” and the phrase “in the course of” are nearly synonymous, we conclude that the phrase at issue in the instruction submitted here, “in the immediate flight therefrom,” may reasonably be understood as meaning “in the course of immediate flight therefrom,” consistent with the required language of section 18-3-102(1)(b).

While there is no express reference to “in furtherance of” in the immediate flight portion of the instruction, it is significant that in the felony-murder statute, the phrases “in the course of” and “in furtherance of” are phrased in the disjunctive, requiring that the jury find that the death was caused either “in the course of” or “in furtherance of” immediate flight.   As we discussed earlier, the phrase “in immediate flight therefrom” is synonymous with “in the course of immediate flight therefrom.”   Here, in convicting Auman of felony murder, the jury must necessarily have found that Officer VanderJagt's death was caused “in the course of immediate flight” from the burglary.   Without considering any other factors affecting the validity of her conviction, this finding would be legally sufficient to convict her of felony murder even though the jury was not expressly instructed on the alternative language of “in furtherance of.”   See People v. Dunaway, 88 P.3d 619, 629 n. 9 (Colo.2004) (concluding that where elements of instruction were disjunctively phrased, proof of one was sufficient).

Although the instruction should have tracked the precise language of the felony-murder statute, the instruction required the jury to find that Auman committed burglary;  that she or Jaehnig was in immediate flight from the burglary when death was caused;  and that there was a necessary causal connection between the burglary, flight, and death.   Under these circumstances, we hold that the trial court's instruction, while not complete, did not constitute reversible error.

Next, Auman argues that the trial court committed reversible error by failing to submit to the jury her tendered supplemental instruction defining immediate flight and the factors that could terminate flight, ranging from intervening causes to arrest to the distance and time between the felony and death.¹⁶  Initially, we note that in a felony-murder case where a death occurs in the course of or in furtherance of immediate flight, the trial court's instruction must include, either explicitly or implicitly, the four limitations on immediate flight which we have set forth in this opinion pursuant to our reading of the felony-murder statute.   However, with regard to providing specific definitions of terms, it is well established that it is within the discretion of the trial court to submit an instruction to the jury providing supplemental guidance in a criminal setting.   See People v. Rodriguez, 794 P.2d 965, 987-88 (Colo.1990);  People v. Ross, 179 Colo. 293, 298, 500 P.2d 127, 129 (1972).   Because each felony-murder case in which a death is caused after a defendant's arrest must be decided according to its unique set of circumstances, a trial court has the discretion to-but is not required to-further define immediate flight and the factors which may terminate flight.   In this case, the instruction submitted by the trial court included, in effect, the four limitations on immediate flight contained in the felony-murder statute.   Accordingly, the trial court did not abuse its discretion in declining to submit to the jury Auman's tendered supplemental immediate flight instruction.

B. The Lack of an Intervening Cause Instruction

We now turn to Auman's final argument on this issue, in which she contends that the trial court erred by not submitting an intervening cause instruction to the jury.   Auman claims that Jaehnig may have been fleeing from police for reasons unforeseeable to her, such as because the Trans Am he was driving was stolen or because he had high levels of methamphetamines in his system,¹⁷ and not because of the alleged burglary.

Auman did not tender a traditional intervening cause instruction to the jury.   However, her supplemental immediate flight instruction would have required the jury to consider whether Jaehnig “committed any intervening acts which weakened the causal connection between the burglary and the death” and “whether the death was too dependent on another person's volitional act to have just bearing on [the] defendant's culpability.”

In People v. Calvaresi, we stated that to be liable for a homicide offense under Colorado law, death must be a “natural and probable consequence of the [defendant's] unlawful act.”  188 Colo. 277, 283, 534 P.2d 316, 319 (1975) (quoting 1 Wharton's Crim. Law & Pro. § 200, at 448 (12th ed.1957)).   See also State v. Martin, 119 N.J. 2, 573 A.2d 1359, 1374 (1990) (following Model Penal Code, court concludes that “probable consequence” is one that is reasonably foreseeable).

If an act of some other person, or intervening cause, breaks the causal connection between the defendant's unlawful acts and the victim's injury, then the defendant is relieved of liability.  People v. Stewart, 55 P.3d 107, 121 (Colo.2002).   As a threshold matter, a defendant is not entitled to an intervening cause instruction unless the following three conditions are met:  first, a defendant must introduce competent evidence to show that the ultimate harm would not have occurred in the absence of the claimed intervening cause;  second, a claimed intervening cause must be one that the defendant could not foresee;  and third, such a cause must be one in which the defendant does not participate.  Id. at 121;  People v. Saavedra-Rodriguez, 971 P.2d 223, 228-29 (Colo.1998);  Calvaresi, 188 Colo. at 283, 534 P.2d at 319.

Initially, we turn to Saavedra-Rodriguez, where the defendant, who stabbed the victim in the chest, made an offer of proof that improper medical care contributed to the victim's death.  971 P.2d at 225.   In that case, we held that the defendant was not entitled to an intervening cause instruction because he had not offered sufficient evidence to prove that the victim's death would not have occurred in the absence of the intervening cause, i.e., the improper medical care.  Id. Similarly, Auman claimed that Jaehnig's actions-driving a stolen Trans Am and using methamphetamines-were intervening causes, but she failed to introduce any evidence to show that Officer VanderJagt's death would not have occurred absent these alleged intervening causes.   Because Auman failed to satisfy one of the threshold requirements warranting an intervening cause instruction, the trial court did not commit reversible error in not submitting an intervening cause instruction to the jury.   See also Stewart, 55 P.3d at 121 (holding defendant was not entitled to intervening cause instruction because claimed intervening cause did not occur between the unlawful act and the ultimate harm).

Further, the two contributing causes alleged by Auman do not meet the threshold requirements to be deemed intervening causes because they occurred, or existed, prior to Auman's unlawful acts.   Accordingly, there was no conduct which “intervened” to break the chain of causation between Auman's unlawful acts and Officer VanderJagt's death.   Thus, we hold that the trial court did not commit reversible error in not submitting an intervening cause instruction to the jury.

V. AUMAN'S FELONY-MURDER CONVICTION MUST BE REVERSED BECAUSE THE JURY WAS IMPROPERLY INSTRUCTED ON THE PREDICATE FELONY UPON WHICH HER FELONY-MURDER CHARGE WAS BASED

We next consider Auman's claims concerning the erroneous instruction on theft.   This issue was raised by Auman in the court of appeals and argued to us as part of her appeal because Auman's intent to commit theft was a required element of second degree burglary, the predicate felony for her felony-murder conviction.   In granting certiorari review, our focus was primarily on two issues:  (1) whether arrest terminates a co-participant's liability for felony murder while another participant remains in flight;  and (2) whether the instruction on felony murder appropriately reflected the requirements of our felony-murder statute and properly connected the predicate felony, flight, and the resulting death.   Related to the propriety of the felony-murder instruction, although not the primary focus of our certiorari questions, is the issue of whether the error in the definition of the predicate felony warrants reversal of Auman's convictions.   We therefore now address the error in the theft instruction.

Analysis

Turning to the instruction on theft, we note that the People concede that this instruction was erroneous.   The court of appeals determined that the instruction was erroneous but concluded that the error did not require reversal.   The question for us to determine is whether this improper instruction constitutes reversible error.

A. The Error in the Theft Instruction

A person commits second degree burglary ¹⁸ when he or she knowingly breaks an entrance into a building or occupied structure with the intent to commit a crime therein. § 18-4-203(1), 6 C.R.S. (1998).  To be guilty of second degree burglary, Auman must have had the specific intent to commit the crime of theft when she unlawfully entered Cheever's room.   See Cooper v. People, 973 P.2d 1234, 1240 (Colo.1999) (holding that the crime of burglary requires that the person have “intended to commit a crime inside at the moment he first became a trespasser”), disapproved on other grounds by Griego, 19 P.3d at 7-8.   Theft, in turn, occurs when a person knowingly obtains or exercises control over another's valuable property, knowing that he or she is without authorization to do so, and intends to permanently deprive the other person of the use or benefit of the property. § 18-4-401, C.R.S. (2004).

Here, the theft instruction given to Auman's jury failed to expressly modify the “without authorization” element of the crime of theft with the culpable mental state of “knowingly.”   The instruction told the jury:

The elements of the crime of Theft are:

(1) That the Defendant,

(2) in the State of Colorado, on or about November 12, 1997,

(3) knowingly,

(a) obtained or exercised control over,

(b) anything of value,

(c) which is the property of another,

(4) without authorization, or by deception, and

(5) with intent to permanently deprive the other person of the use or benefit of the thing of value.

(Emphasis added.)

Auman asserts, and the People agree, that the error occurred in the omission of “knowingly” from paragraph four of the instruction. While they disagree on the impact of this error on Auman's convictions, both parties cite People v. Bornman, 953 P.2d 952 (Colo.App.1997), in their respective discussions of the error.   In Bornman, the court of appeals held that the trial court committed reversible error when it gave a theft instruction nearly identical to the one given here.¹⁹  See 953 P.2d at 954.   The court held that the theft instruction was erroneous because it “allowed a guilty verdict to be returned without a determination that [the] defendant was aware of his lack of authority.”  Id. Because the court determined that the primary issue at trial concerned the subject of this instructional error, i.e., whether the defendant was aware that he was unauthorized in taking the property at issue, it reversed the defendant's theft conviction.  Id.

In Bornman, the defendant was charged with theft, and the error in the theft instruction thus affected only his conviction for that crime.   Here, Auman was not charged directly with theft but, rather, with burglary.   While, as in Bornman, the instruction was erroneous in allowing a guilty verdict to be returned without requiring the jury to determine whether Auman was aware of her lack of authority over the property that she took, we must consider the effect of this error in relation to Auman's burglary conviction.²⁰

To convict Auman of burglary, a properly instructed jury would have been required to find that she intended to commit theft when she unlawfully entered Cheever's room.   However, here, as a result of omitting the required culpable mental state from the “without authorization” element, the improper instruction could have led Auman's jury to convict her of burglary based only on a finding that Auman and the others with her were in fact without authorization in taking Cheever's property, irrespective of what their intent was when they illegally entered Cheever's room.   In simpler terms, the erroneous theft instruction, when incorporated into the instruction on second degree burglary, allowed the jury to convict Auman of burglary without requiring them to find that she intended to knowingly take Cheever's property without his authorization (to steal his property) at the time of unlawful entry.²¹

In failing to require the jury to find that Auman intended to commit theft when she unlawfully entered Cheever's room, we conclude that the error allowed the jury to convict Auman of burglary even if they found that she did not form the intent to steal Cheever's property until after she entered Cheever's room.   Whether this error impacted Auman's burglary conviction is vigorously disputed by both parties and is dependent upon a record review of the evidence linking Auman to the crime of burglary.   Before assessing the impact of this error, we first address the standard of review appropriate for our analysis.

B. Standard of Review

Not all instructional errors require reversal of a defendant's convictions.   Instead, we evaluate the evidence pertaining to the subject of the instructional error under the appropriate standard of review to determine the impact, if any, of the error on the jury's verdict.   In this case, we must determine whether the subject of the error was in dispute at trial and, if so, whether there was overwhelming evidence of the defendant's guilt such that we can say that the error was effectively cured.

We review for plain error rather than constitutional harmless error.²²  The instructional error here was of constitutional magnitude, but it was an error to which Auman made no objection at trial.   Our case law is conflicting as to whether plain error or constitutional harmless error review applies in such a situation.²³  We leave the resolution of this conflict for another day and review here for plain error because a finding of plain error implies a finding of constitutional error.

Plain error review requires us to focus upon whether the instructional error prevented the jury from making a finding that the law requires so as to affect a substantial right of Auman's and undermine the fundamental fairness of her trial.   In this regard, we must determine whether a reasonable possibility exists that the erroneous instruction contributed to Auman's conviction such that serious doubt is cast upon the reliability of the jury's verdict.   See Stewart, 55 P.3d at 119;  People v. Garcia, 28 P.3d 340, 344 (Colo.2001).

In reviewing for plain error, we are not concerned with whether there was sufficient evidence to convict Auman of burglary, which would require us to review the evidence in the light most favorable to the prosecution and to uphold her conviction if the record reveals that there is substantial evidence to support the jury's verdict.   See Mata-Medina v. People, 71 P.3d 973, 983 (Colo.2003).   Instead, “[f]ailure to instruct the jury properly does not constitute plain error where the subject of the error in the instruction is not contested at trial, or where evidence of the defendant's guilt is overwhelming.”  Bogdanov v. People, 941 P.2d 247, 255 (Colo.1997), opinion amended on other grounds by Bogdanov v. People, 955 P.2d 997 (Colo.1997), disapproved on other grounds by Griego, 19 P.3d 1. If the error concerned an uncontested issue, or if the evidence of her guilt is overwhelming, then Auman's substantial rights were not affected, and no reasonable possibility exists that the improper instruction contributed to her conviction.   However, if the evidence of her guilt is not overwhelming, and if there existed an evidentiary dispute as to whether Auman intended to commit theft when she entered Cheever's room, then it is likely that Auman's substantial rights were affected, and a reasonable possibility exists that the improper instruction contributed to her conviction.   In such a case, serious doubt would be cast upon the fairness of Auman's trial and the reliability of her convictions, and reversal would be required.   See Bogdanov, 941 P.2d at 255 (citing People v. Fichtner, 869 P.2d 539 (Colo.1994) and People v. Cowden, 735 P.2d 199 (Colo.1987)).

C. The Impact of the Error

Having determined that we will review the improper instruction for plain error, we discuss the arguments and evidence presented at trial to assess the impact of the instructional error on Auman's burglary conviction to determine whether reversal is required.   The plain error standard of review requires us to focus on the quantum and certainty of evidence presented at trial on either side of the issue in question.

1. The Evidence Presented

Auman's counsel argued that she went to the Lodge to retrieve property that was hers in Cheever's room and that she did not go there to take any of Cheever's property.   Her attorneys advanced two positions to claim that she did not commit burglary.   First, they conceded that Auman may have been guilty of criminal trespass when she illegally entered Cheever's room, but, nonetheless, they argued that she did not commit burglary because she did not intend to take Cheever's property.   Second, they argued that Auman did not commit burglary because the actual taking of Cheever's property by Gerze and Duprey occurred suddenly and only after gaining entry into Cheever's room.   They claimed she did not know in advance that his property would be taken.

By making these arguments, Auman's defense was in effect claiming that the evidence established that she was not guilty of burglary because she had no intent to take Cheever's property when she entered his room.   Unlike the crime of burglary, the crime of trespass does not require the intent to steal at the time of unlawful entry as does the charge here of burglary-breaking and entering with the intent to commit theft.   In addition, if Auman formed the intent to take Cheever's property after the illegal entry, she would not have committed burglary.   As we have stated:  “If the defendant forms the intent to commit the crime after the trespass is under way, he or she may be guilty of that underlying crime ․ and of trespass-but is not guilty of burglary.   Both circumstances reflect criminal acts, but burglary is the more serious.”   Cooper, 973 P.2d at 1236 (emphasis added).   Thus, with respect to burglary, although not expressly articulated by her attorneys, Auman's theory of defense and her attorneys' arguments centered upon the intent she had when she entered Cheever's room unlawfully.²⁴

Auman's attorneys argued that she did not have the intent to take Cheever's property at the time of unlawful entry.   In closing, her attorney stated, “We know when they went in there that she went and got her stuff.”   Her attorney pointed out that Auman's things were in Cheever's room because she had until recently been spending time in that room.   He stated:  “All she wanted to do was to get her stuff,” and he repeated this theme throughout his closing remarks.

During her two police interviews, Auman said, “I just went up there for my stuff,” or words to that effect, more than twenty times.   In her statements, Auman told of some of the items she wanted to retrieve:  for example, her camera and some CDs. Cheever admitted that three of the CDs recovered from the cars were Auman's.   He also testified that one of the two camcorders that was taken belonged to Auman.   In addition, Auman's checkbook was discovered in Cheever's room in a police search following the reported burglary.

Supporting Auman's argument that she just intended to retrieve her things, and not take Cheever's property, was the testimony of both Gerze and Soriano who said that they went to the Lodge to remove only Auman's things.   Also supporting Auman's view of the evidence was the testimony of Mary Lucas, a tenant at the Lodge and a prosecution witness, who said that Duprey told her as he carried items from Cheever's room:  “All I know is this chick wanted us to come help her get her stuff.”

Auman did concede that the group at some point in time took some of Cheever's things.   Her attorneys argued that this taking was neither intended nor planned by Auman.   Pointing to her police statement where she said, “And then all of a sudden it wasn't just taking what I had paid for,” they argued that events at the Lodge escalated beyond Auman's control to the point at which Cheever's property was taken but only after entry was gained into his room.   The defense indicated that Gerze and Duprey may have planned on burglarizing Cheever's room before they went to the Lodge ²⁵ but that the men's intent to commit theft was shared only among themselves and not with or by Auman.

To counter evidence that Auman, herself, and not just the two men, had taken some of Cheever's things from his room, Auman's defense counsel argued that she believed she was justified in taking those items for which she had personally paid.   Auman did not dispute that she had given Cheever some of the items which were recovered from the later police search of the group's two cars.   However, she claimed that because she had paid for these items, she was authorized to take them.   In her police statements, she referred to these items as “rightfully” belonging to her.   Thus, she argued she was not guilty of burglary because she had intended when she entered Cheever's room unlawfully to reclaim only property that was hers.

With respect to whether Auman could be held liable for burglary as a complicitor, the defense pointed to both Gerze's and Soriano's testimony that they went to the Lodge only to get Auman's things and not to steal anything.   Also, the defense argued that the behavior of the others after they had removed Cheever's items inferentially established that they were not aware that they had committed a crime, much less that they had intended to commit burglary.   They pointed to Gerze's testimony that he did not think they were committing a crime and that, as a result, the group did not interfere with Dan Mattson, a tenant at the Lodge, when he openly recorded their license plate numbers.   Gerze testified that he still did not know if some of the things that had been taken were in fact Cheever's.   He said he had never been to the Lodge before, and he did not know which things in Cheever's room belonged to Cheever:  “I assumed anything we were taking belonged to [Auman].”

Other evidence inferentially supported Auman's theory that she did not commit burglary.   Lucas testified that Auman pulled back the blanket covering the doorway to the common TV room and said “hi” to her during the alleged burglary.   This, the defense argued, would not have happened if Auman had been aware she was committing the crime of burglary.   Soriano testified that before driving to the Lodge, Auman told her she was concerned Cheever would fight with her “over some things she had written checks for.”   According to Soriano, one of these items was the snowboard which the prosecution claimed was stolen by the group.   Cheever testified equivocally as to whether he owned the snowboard, saying that he “assume[d]” that it belonged to him, and admitted that Auman had bought it for him.   In sum, the defense pointed to substantial evidence indicating that Auman had not possessed the required intent when she unlawfully entered Cheever's room to be guilty of burglary.

In contrast to the aspects of the evidence we have highlighted concerning Auman's theory that she was guilty of trespass and not of burglary, the prosecution argued that Auman and her co-participants fully intended to take Cheever's property before going to the Lodge and, thus, necessarily committed burglary when they illegally entered Cheever's room by cutting the padlock on the door to his room.   They argued that Auman, acting as either a principal or a complicitor, intended to take Cheever's things (and thereby commit burglary) to retaliate against Cheever for ending their relationship. They claimed that a theft occurred because the undisputed evidence showed that items belonging to Cheever had in fact been taken which, they argued, inferentially proved that Auman and the two men intended to commit theft, and thus committed burglary, when they entered Cheever's room.

The prosecution pointed to Auman's police statement where she said that the night before the alleged burglary she had been questioned by one of the men as to what “else” Cheever had in his room, and she admitted that “I opened my big mouth and I told ․ that he had a couple of big speakers.”   The prosecution argued that this statement, coupled with the fact that the two stereo speakers, which Auman did not dispute were Cheever's, were recovered from the group's cars, established that Auman intended to take Cheever's property and help the others do so as well.

The People also argued that Auman's behavior the morning of the alleged burglary showed that she intended to commit theft before going to the Lodge.   Soriano testified that on that morning, Auman expressed second thoughts about going to the Lodge.   In addition, the People pointed to Auman's admissions to police that she had told Soriano before going to the Lodge that she did not want to “go through with it” and that she had also told Gerze “just don't kill [Cheever]” as evidence that she knew the group intended to commit an illegal act-burglary.   The People also argued that the group took bolt cutters to the Lodge because Auman intended to take Cheever's things.

In support of the prosecution's retaliation theory, Lucas testified that although Auman and Cheever had dated, they had broken up about one week earlier, at which time Cheever had placed the padlock on the door to his room to keep Auman out.   Also, Mattson testified that when he saw Auman carrying a snowboard down the hallway from Cheever's room, she said, “[Cheever] really fucked up this time.”   Further, Auman, herself, admitted in her statements to police that “I wanted to ․ retaliate.”   Also, in Soriano's initial police statement, she admitted that they “wanted to scare [Cheever] ․”

The prosecution also argued that inconsistencies in Auman's and her co-participants' account of events rendered their versions untrustworthy and self-serving.   Although Soriano and Gerze testified that they did not go to the Lodge to take Cheever's property, both had previously admitted under oath, when they pled guilty to the second degree burglary of Cheever's room, that they did enter his room with the intent to take his property.   The People also argued that although Auman and Soriano had no contact with each other after leaving the Lodge, they independently gave the same false names to police of two of the three men involved, Gerze and Duprey, telling them their names were John and Dan. This identity of names, they argued, revealed a plan not only to commit the burglary but to cover it up as well.

In closing, the prosecutor argued that the jury should infer that the group intended to commit theft, and thus committed burglary, because Cheever's property was in fact taken.   He stated:  “There was definitely a theft.   Things were definitely stolen out of Shawn Cheever's room.”   The prosecutor also argued that inconsistencies in Auman's two police interviews, in which she admitted at one point that “[e]arlier ․ I fibbed a little bit,” required the jury to discount her version of events.

2. Evaluation of the Evidence

As our summary of the evidence and the arguments made by both sides reveals, the subject of the instructional error-Auman's intent, or lack thereof, to steal Cheever's property at the time of unlawful entry-was contested.   Auman pointed to a substantial amount of evidence, both direct and circumstantial, and argued reasonable, credible inferences based upon the evidence that she did not possess the required criminal intent at the time of the trespass necessary to find her guilty of burglary.   Throughout the trial, including during opening and closing arguments, defense counsel maintained that Auman's intent when she unlawfully entered Cheever's room was to retrieve her property and those items she believed were hers.   It was, they stressed, never her plan or intent at the time of unlawful entry to steal Cheever's things.   Auman's defense to burglary thus centered upon the subject of the erroneous instruction. Hence, we conclude that the erroneous instruction effectively omitted an explanation that the law requires on an issue vigorously contested by Auman.

To determine whether the evidence of Auman's guilt of burglary was overwhelming, we briefly summarize the evidence already discussed.   Auman's theory of defense was that she had entered Cheever's room unlawfully but that she had done so only to retrieve her property.   According to Auman, the others with her took Cheever's property after they unlawfully entered the room.   By admitting to unlawful entry, Auman conceded that she committed the crime of criminal trespass, a crime which is not the same as second degree burglary but, rather, is a lesser included crime of burglary.   If the jury believed Auman's theory of defense that she did not intend to steal when she unlawfully entered Cheever's room, then one element necessary to find her guilty of the crime of burglary was missing.²⁶  In other words, if the jurors believed Auman formed the intent to steal after she unlawfully entered Cheever's room, then she would have been entitled to an acquittal on this charge.   We therefore must evaluate the evidence of Auman's guilt to determine whether it was sufficiently overwhelming so as to cure the instructional error.

The prosecution's argument for guilt of burglary involved the following main points:  Cheever's property was in fact taken;  Auman told about Cheever's stereo speakers the night before the alleged burglary;  the group took bolt cutters to the Lodge;  Auman intended to retaliate against Cheever;  Soriano and Gerze pled guilty to burglary;  and Auman had second thoughts about going to the Lodge the morning of the alleged burglary, fearing that the men might kill Cheever.   These circumstances may have led the jury to infer that Auman intended to steal Cheever's property when she entered his room unlawfully.

However, these circumstances are also subject to contrary and competing inferences.   For example, the taking of Cheever's things could be viewed as the men doing what they wanted to do, independent from what Auman had intended and anticipated.   Taking the bolt cutters could be viewed as evidence that Auman knew she would need to break into Cheever's room to retrieve her things even if she had no intention of taking Cheever's property.   Similarly, the jury could have believed that Auman intended to retaliate by retrieving her property and those items which she had bought for Cheever, and not by stealing Cheever's property.   Thus, the circumstances relied upon by the prosecution to argue Auman's guilt of burglary do not lead to the inescapable conclusion that she intended to steal at the time of unlawful entry.

The possibility of these competing inferences, when coupled with Auman's presentation of credible arguments based upon the evidence that she did not have the intent to steal when she unlawfully entered Cheever's room, leads us to conclude that the evidence, when viewed as a whole, did not present such an overwhelming case of Auman's guilt of burglary as to cure the instructional error.   Auman told police numerous times that she returned to get her stuff which was in Cheever's room;  Soriano and Gerze testified that they went to take only Auman's things;  and even after the group left, Auman's checkbook was found in Cheever's room.

Because the evidence of Auman's commission of burglary was not overwhelming, it is reasonably possible that the improper instruction contributed to her burglary conviction.   The instruction allowed the jury to convict her without resolving the contested issue of whether she possessed the criminal intent necessary to commit burglary.   By effectively omitting the requirement that the jury find that Auman intended to steal Cheever's property when she unlawfully entered, the erroneous instruction allowed the jury to convict her of burglary even if they believed her defense that she did not enter Cheever's room intending to steal his property.   In other words, even if the jury believed Auman entered with the intent to retrieve just her property and then, only after entry, contrary to her plan and unanticipated by her, she went along with the men in taking Cheever's things, they still could have convicted her of burglary because the erroneous instruction did not require them to determine whether she intended to steal when she unlawfully entered.²⁷  The erroneous instruction could have falsely led Auman's jury to convict her of burglary whether they believed either the prosecution's theory of the case or her theory of defense.   Our review of the record reveals that the evidence was not so overwhelming as to effectively cure this error.

The impact of Auman's conspiracy to commit first degree burglary conviction does not change our analysis.   The jury may have found, based upon the facts here and the instructed elements of both the crime of conspiracy and the crime of burglary, that Auman, after entering without the intent to commit theft, took advantage of the situation by assisting the others in taking, or actually taking, herself, Cheever's property.   Spontaneously acting in concert with the others to take more than her things would make her guilty of conspiracy to commit burglary because the agreement necessary for that crime is implied by the actions of the co-conspirators.   It is well established that to prove conspiracy, “[i]t is not necessary to prove that co-conspirators came together and actually agreed in terms to have a common design and to pursue it by common means.”  People v. Torres, 536 P.2d 868, 871 (Colo.App.1975) (citing Smaldone v. People, 103 Colo. 498, 510, 88 P.2d 103, 110 (1938)). Rather, to establish a conspiracy, it is sufficient that the acts of the co-conspirators demonstrate that they pursued the same object, with one performing one part and the other another part.  Id.

With respect to the entry element, the Auman jury instructions contained different statutory requirements for first degree burglary and second degree burglary.   First degree burglary required either “unlawfully entering” or “remaining unlawfully.”   As instructed, second degree burglary did not include the element of “remaining unlawfully.”   When taken together, the conspiracy and first degree burglary instructions did not require the jury to find a link between Auman's intent to steal and her unlawful entry into Cheever's room, which is the requirement of second degree burglary.   Auman's jury could have believed that Auman “remained unlawfully” in Cheever's room and then conspired with the others to steal.   As a result, her conspiracy conviction for first degree burglary does not indicate whether her intent to steal was formed when she entered or after entry.   Hence, the conspiracy verdict does not impact our analysis of whether the evidence was sufficiently overwhelming so as to cure the instruction's failure to require the jury to find Auman's intent to commit theft at the time of unlawful entry.

Likewise, the fact that the jury found Auman guilty of second degree burglary, and not specifically of criminal trespass, does not affect our analysis.   The crime of trespass is included or implied in the jury finding of second degree burglary.   In other words, second degree burglary requires a criminal trespass (unlawfully entering) plus additional elements.   Of relevance here, one of these additional elements is that a person must possess the intent to steal when the unlawful entry occurs.   As discussed, Auman's jury was never instructed on this necessary element.   Thus, its conviction of Auman for second degree burglary does indicate that it found that she committed criminal trespass and, further, that Cheever's property was in fact stolen.   Auman never disputed either that she was guilty of criminal trespass or that Cheever's property was eventually taken. We cannot place any significance on the jury's decision to convict her of second degree burglary based on a faulty instruction for that crime.

We conclude that the instructional error here substantially affected Auman's right to a full and fair jury consideration of her defense to burglary.   It is thus reasonably possible that the error contributed to Auman's burglary conviction such that the fundamental fairness of her trial is called into question and serious doubt is cast upon the reliability of the jury's verdict.   The improper theft instruction therefore constitutes plain error, and we reverse Auman's second degree burglary conviction.

As we explained earlier, Auman's felony-murder conviction is premised upon her second degree burglary conviction.   Therefore, because this burglary conviction must be reversed, so must the felony-murder conviction.

Accordingly, we vacate Auman's judgments of conviction for felony murder and second degree burglary and remand for a new trial.

VI. CONCLUSION

For the reasons stated, we reverse the court of appeals' decision and remand this case to that court with directions to return it to the trial court for a new trial.

I respectfully dissent from part V of the majority opinion and its judgment reversing the defendant's convictions.

This case turns on the effect of an error in a jury instruction describing the state of mind required to commit the crime of theft.   Because the defendant did not object to the jury instruction, the trial court had no opportunity to correct the instruction, and the error was not properly preserved for review on appeal.  Crim. P. 30 (requiring party to object to instructions before they are given to the jury and stating that only such objections will be considered on review).   Consequently, this error can be considered on appeal only if it rises to the high standard of plain error “affecting substantial rights.”   Crim. P. 52.   To constitute plain error, the error must be so obvious and serious that there is a reasonable possibility that the error contributed to the defendant's conviction. People v. Stewart, 55 P.3d 107, 120 (Colo.2002).   When the claimed plain error involves a jury instruction, we must evaluate it in the context of all of the jury instructions and the trial record as a whole.  Id.

The majority finds in part V of its opinion that the theft instruction is plain error.   It then reverses the defendant's convictions for second degree burglary and felony murder and remands the case for a new trial.   In my opinion, the instruction error does not amount to plain error, and the defendant's convictions should be affirmed.   I reach this conclusion by considering the error in the theft instruction together with the other jury instructions and the verdicts returned by the jury.   I analyze the instructions and verdicts in light of the evidence before the jury and the parties' theories of the case, as argued to the jury.

As relevant to this part of the case, the amended complaint charged the defendant, Lisl Auman, with four crimes:  first degree burglary, conspiracy to commit first degree burglary, second degree burglary, and conspiracy to commit second degree burglary.   The burglary charges alleged that the defendant feloniously, unlawfully and knowingly entered a structure occupied by Shawn Cheever with the intent to commit the crimes of theft or theft by receiving against Cheever.   The conspiracy charges alleged that the defendant and four other people (Mattheus Jaehnig, Demetria Soriano, Steven Duprey, and Dion Gerze) unlawfully and feloniously agreed to commit the crimes of burglary or attempted burglary and committed an overt act in furtherance of the conspiracy.

The case was submitted to the jury with instructions on the four crimes charged in the information and on two additional crimes:  first degree criminal trespass and conspiracy to commit first degree criminal trespass.   The trespass charges were added at the defendant's request.

The jury rejected the defendant's criminal trespass theory and convicted the defendant of second degree burglary and conspiracy to commit first degree burglary.

As charged, theft and theft by receiving were the crimes underlying both first and second degree burglary.   As instructed, however, theft and theft by receiving were the predicate crimes for first degree burglary but only theft was the predicate crime for second degree burglary.   Turning to the theft instruction, I agree that the elements of the crime are not correctly stated.   Jury Instruction 32 reads as follows:

The elements of the crime of Theft are:

(1) That the Defendant,

(2) In the State of Colorado, on or about November 12, 1997,

(3) Knowingly

(a) obtained or exercised control over,

(b) anything of value,

(c) which is the property of another,

(4) without authorization, or by deception, and

(5) with intent to deprive the other person of the use or benefit of the thing of value.

The culpable mental states are defined in Instruction 34.  “Knowingly” is explained as follows:

A person acts “knowingly” with respect to conduct or to a circumstance described by a statute defining an offense when she is aware that her conduct is of such a nature or that such a circumstance exists.   A person acts “knowingly” with respect to a result of her conduct when she is aware that her conduct is practically certain to cause the result.

The crime of theft, now codified at section 18-4-401(1), C.R.S. (2004), provides in relevant part:  “A person commits theft when he knowingly obtains or exercises control over anything of value of another without authorization, or by ․ deception, and (a) Intends to deprive the other person permanently of the use or benefit of the thing of value.”

Comparison of Instruction 32 and the statute shows that the instruction did not track the statutory language accurately.   The instruction does not connect “without authorization or by deception” with the mental state of “knowingly.”   Under our case law, “knowingly” could have been placed in its own numbered paragraph and it would have applied to all conduct described in the succeeding numbered paragraphs.  People v. Bossert, 722 P.2d 998, 1011 (Colo.1986).   Under the format used in Instruction 32, “knowingly” was placed in paragraph (3).   It applies to the conduct described in subparagraphs (a), (b), and (c) but it does not expressly apply to the “without authorization, or by deception” conduct contained in paragraph (4).   The error could have been corrected easily if it had been brought to the court's attention.   But we know it was not, and the issue before us is the likely effect of the error.

I doubt that the error had any direct effect on the jury's determination that a theft occurred.   A proper theft instruction would have required the jury to determine whether the defendant obtained Cheever's property “knowingly without authorization or by deception.”   With respect to whether the defendant acted “knowingly without authorization,” there was no factual dispute.   Before the theft occurred, defendant knew that Cheever had not authorized her to take his property and she knew that the tripod and the sound system were his property.   A few days earlier, Cheever had broken off his relationship with the defendant and padlocked his room to exclude the defendant from his room and its contents.   The addition of the word “knowingly” would not have changed the jury's reliance on “without authorization.”

Rather than relying on the mental state of “without authorization,” the jury in this case could have found that the defendant acted “by deception.”   Omission of “knowingly” from the phrase “by deception” seems to have little practical effect.   The concept of acting “by deception” carries with it an inherent requirement of knowledge.   One cannot accidentally or unknowingly act by deception.   The common dictionary definition of deception is “the act of deceiving, cheating, hoodwinking, misleading, or deluding.”   Deception is described as “a general term for any sort of deceiving by whatever method for whatever purpose.”   Webster's Third New International Unabridged Dictionary 585 (1986).   For these reasons, it seems highly unlikely that the error in Instruction 32 affected the jury's finding that the defendant committed theft, the predicate crime for burglary.¹

The majority, however, finds the theft instruction to be a fatal error requiring reversal of the defendant's second degree burglary conviction and, ultimately, the defendant's felony murder conviction. Maj. Op. at 663-665.   The majority notes that the crime of burglary required the defendant to unlawfully enter the premises with the intent to commit theft, and the defendant's intent when she entered Cheever's room was hotly contested.   The prosecution contended that the defendant and her co-conspirators planned to steal Cheever's property from the time they first met on the night before the crimes and that they did steal his property.   The defendant contended that she only intended to retrieve her belongings, and that the theft of Cheever's property happened spontaneously after they entered Cheever's room.

The majority reasons that the jury may have convicted the defendant of burglary without finding that she entered Cheever's room with the intent to commit theft, as properly defined, because the faulty instruction did not require the jury to determine that Auman knowingly acted without authorization or by deception.   I acknowledge that there is a theoretical possibility that one or more of the jurors may have been misled by Instruction 32.   But that possibility did not ripen into plain error.   The record as a whole, especially the other instructions and the verdicts returned by the jury, demonstrate that the jury understood the decisions it was required to make.   The verdicts show that the jury carefully differentiated among the charges against the defendant.   It accepted the prosecution's theory in part and rejected it in part, and it rejected the defendant's defense.   The error in Instruction 32 did not contribute to the defendant's convictions.

I turn first to the evidence and the parties' theories.   The following facts are undisputed.   The defendant, Soriano, Duprey, Gerze, and Jaehnig were all at Soriano's apartment in Denver on the evening of November 11, 1997.   On the next day, the five drove to the Lodge.   The defendant, Soriano, Duprey, and Gerze cut a padlock on Cheever's door and entered his room while Jaehnig waited in a car outside the Lodge.   Various items were taken from Cheever's room including property that belonged to the defendant, property that belonged to Cheever, and property that the defendant had given to Cheever but claimed was rightfully hers.   Cheever's property taken from his room included a tripod and a sound system consisting of an amplifier and two large speakers.

The prosecution's theory was that, on November 11, the defendant and the four others entered into a conspiracy to commit burglary.   They agreed to break into Cheever's room in order to recover the defendant's property and to steal Cheever's property as revenge for Cheever's mistreatment of the defendant.   They agreed to use force, including deadly force, against Cheever if necessary to accomplish their plan.   On November 12, the conspirators carried out their plan.   Although they were armed with deadly weapons, they did not encounter Cheever.   They broke into his room and took various items including Cheever's tripod and sound system.

The defense theory was that the defendant only intended to retrieve her belongings from Cheever's room, and that the other four persons agreed to help her.   There was no agreement to steal Cheever's property.   In her view, Duprey and Gerze spontaneously decided to steal Cheever's sound system and tripod after they entered Cheever's room.

As evidence to support its theory, the prosecution relied on the undisputed evidence that Cheever's tripod and his sound system were stolen by the conspirators, that Jaehnig had several loaded guns in his car, and that Soriano and Gerze pled guilty to burglary.   To prove motive and intent, the prosecutors relied on the defendant's videotaped statements to the police.   In the tapes, Auman described her anger at Cheever and her desire for “revenge,” saying she had been “screwed over,” “insulted,” and “treated like a piece of shit” by Cheever.   She told the police that she sought help from the others because she needed some “muscle” to retrieve her stuff from Cheever's room.

Describing what happened on the evening of November 11, the defendant said she had asked the men not to kill Cheever but they refused to give her that assurance.   One of the men asked her if Cheever had anything of value.   Explaining her response, the defendant said, “I should never have opened my big mouth, but it's too late now, but I opened my big mouth and told him that he [Cheever] had a couple of big speakers.”   In its closing argument, the prosecution argued that this conversation on November 11, “is the Conspiracy.   They're sitting around discussing it ․ The plan is set that night.   That's the conspiracy.”

Another indication that the defendant was aware that the planned trip to the Lodge involved criminal conduct that went far beyond mere retrieval of her property, occurred on the morning of November 12, Auman told Soriano that she did not want to go through with the plan and Soriano replied “Well, it's a little too late now.”

The defendant supported her theory by emphasizing other parts of her videotaped statements in which she repeatedly stated that her intent was only to move her things out of Cheever's room.   The testimony of Soriano and Gerze also supported the defense.   Although both had pled guilty to burglary, each testified that there had been no plan to steal Cheever's property.   Their only reason for breaking into Cheever's room was to help Auman get her things.

The defense theory that the defendant did not intend to steal Cheever's property was put before the jury in the defendant's opening statement and in the defendant's closing argument.   The defense specifically argued that Auman was not guilty of burglary because she did not enter Cheever's room with the intent to steal his property.   The defendant argued that, at most, she had committed criminal trespass by breaking into Cheever's room in order to retrieve her property.   Indeed, defense counsel argued in closing arguments

There was no First Degree Burglary at all.   Lisl went into the room.   Things were taken.   She probably should not have been in there, we probably would all agree, but that's Criminal Trespass.   Going in someplace where you don't have a right to be, that's not First Degree Burglary and its not Conspiracy to Commit First Degree Burglary or Complicity to Commit First Degree Burglary.   There is nothing, nothing that she intended, that her conscious objective was to commit the burglary.   There is nothing that said that with that knowledge, she intended to aid and abet and assist these people in anything.

Consistent with the defense theory, the jury was instructed on first degree criminal trespass and conspiracy to commit first degree criminal trespass.   Instruction 28 informed the jurors that second degree burglary and first degree criminal trespass are lesser included offenses of first degree burglary.   It stated that, if the jurors were not satisfied beyond a reasonable doubt that the defendant had committed first degree burglary, the defendant could be convicted of a lesser offense.   The instruction concluded by advising the jury that, while it could acquit the defendant of all three offenses, it could convict the defendant of only one of the three offenses.   Jury Instruction 28 reads as follows:

If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the offense charged, she may, however, be found guilty of any lesser offense, the commission of which is necessarily included in the offense charged if the evidence is sufficient to establish his guilt of the lesser offense beyond a reasonable doubt.

The offense of First Degree Burglary as charged in the Information in this case necessarily includes the lesser offense(s) of Second Degree Burglary and First Degree Criminal Trespass.

The elements of the crime of second degree burglary are:

1.  That the defendant

2. in the State of Colorado, at or about the date and place charged,

3. knowingly,

4. broke an entrance into a dwelling or a building or occupied structure other than a dwelling

5. with an intent to commit therein the crime of theft.

The elements of first degree criminal trespass are:

1.  That the defendant,

2. in the state of Colorado, at or about the date and place charged,

3. knowingly and unlawfully entered or remained in a dwelling.

You should bear in mind that the burden is always upon the prosecution to prove beyond a reasonable doubt each and every material element of any lesser included offense which is necessarily included in any offense charged in the information;  the law never imposes upon a defendant in a criminal case the burden of calling any witnesses or producing any evidence.

After considering all the evidence, if you decide that the prosecution has proven each of the elements of the crime charged or of a lesser included offense, you should find the defendant guilty of the offense proven, and you should so state in your verdict.

After considering all the evidence, if you decide that the prosecution has failed to prove one or more elements of the crime charged or of a lesser included offense, you should find the defendant not guilty of the offense which has not been proved, and you should so state in your verdict.

While you may find the defendant not guilty of any or all of the crime(s) charged, or of any or all lesser included offenses;  you may not find the defendant guilty of more than one of the following offenses:

First Degree Burglary

Second Degree Burglary

First Degree Criminal Trespass

Instruction 31 similarly instructed the jury that conspiracy to commit second degree burglary and conspiracy to commit first degree criminal trespass are lesser included offenses of conspiracy to commit first degree burglary.   It likewise advised the jury that it could acquit the defendant of all three conspiracy offenses but it could only convict her of one conspiracy offense.

On the verdict form for the substantive crime, the jury convicted the defendant of second degree burglary and rejected first degree burglary and first degree criminal trespass.   On the conspiracy verdict form, the jury convicted the defendant of conspiracy to commit first degree burglary and rejected conspiracy to commit second degree burglary and conspiracy to commit criminal trespass.

From the evidence, arguments, instructions and verdicts, I conclude that the jury considered and rejected the defendant's claim that she did not intend to steal Cheever's property when she entered his room.   By convicting the defendant of conspiracy to commit first degree burglary, the jury accepted the prosecution's theory that the defendant and her four acquaintances agreed to break into Cheever's room and steal his property.   Convicting the defendant of conspiracy to commit first degree burglary also required the jury to find that the conspirators planned to use a deadly weapon or commit an assault in carrying out the crime.

By convicting the defendant of second degree burglary and rejecting first degree burglary, the jury necessarily found that a deadly weapon or assault was not used in the actual commission of the burglary.   By rejecting first degree criminal trespass, the jury rejected the defendant's argument that she did nothing more than commit criminal trespass by knowingly and unlawfully entering or remaining in Cheever's room.

For all of these reasons, I do not agree that the error in the theft instruction was plain error.   This jury was not misled.   Accordingly, I respectfully dissent from part V of the majority opinion and from the court's judgment.

FOOTNOTES

1.  Auman's conviction of conspiracy to commit first degree burglary is not the subject of her appeal to this court, and we therefore do not address the court of appeals' decision to affirm that conviction.

2.  Although not raised before us on appeal, we note that the court of appeals upheld the trial court's denial of Auman's motion for judgment of acquittal, concluding that the People had presented sufficient evidence to warrant the jury's consideration of whether Auman's arrest terminated her liability for felony murder.  Auman, 67 P.3d at 756-57.   We agree with that court's ruling on this issue.

3.  However, the trial court allowed both Auman and the People to argue to the jury the effect of Auman's arrest on immediate flight.   In closing, Auman's counsel argued that she had been under arrest for five minutes when the shooting occurred and that the arrest had terminated her immediate flight.   The People argued that even though Auman was under arrest at the time of the shooting, immediate flight does not terminate under Colorado's felony-murder statute while another participant continues in flight from the scene of the underlying felony.

4.  The jury also acquitted Auman on the charge of attempted first degree murder.   Pleading the affirmative defense of duress, Auman's counsel argued that she was not a complicitor in this crime even though she held the steering wheel while Jaehnig shot at the pursuing sheriff's deputy.   The jury also acquitted Auman on the charge of first degree assault.

5.  We initially granted certiorari review on the following issue:(1) Whether the court of appeals properly determined that the petitioner's arrest by police did not preclude her liability for felony murder.After initial briefing and arguments, we requested supplemental briefing and heard arguments by both parties on the following issue as well:(2) If a defendant's conviction for felony murder may be premised on a co-felon causing death in the course of and in furtherance of the co-felon's immediate flight from the underlying felony, was the jury properly instructed on the elements of felony murder, including the concepts of “in furtherance of” and “immediacy” as they relate to this case, and if not, was any error reversible?

6.  The following felonies, all of which involve a risk of death, trigger liability for felony murder under the statute:  arson, robbery, burglary, kidnapping, certain forms of sexual assault and sexual assault on a child, and the crime of escape. § 18-3-102(1)(b).

7.  See § 18-3-102(1)(b) (“of immediate flight therefrom” relates back to the preceding phrase “in the course of or in furtherance of”);  accord People v. Donovan, 53 A.D.2d 27, 34, 385 N.Y.S.2d 385 (1976) (“in the course and furtherance of immediate flight”);  N.Y. Penal Law § 125.27(1)(a)(vii) (McKinney 2004) (“in the course of and furtherance of immediate flight after committing or attempting to commit [an enumerated felony]”).

8.  While arrest of a sole participant, or of all participants, may terminate flight for the purposes of felony-murder liability, this principle should not be confused with situations where the commission of the crime has not yet been completed when the arrest takes place.   Even after the defendant's arrest, the defendant may commit felony murder when death is caused by deadly force that continues or carries over from the commission of the predicate felony.   See State v. Hokenson, 96 Idaho 283, 527 P.2d 487 (1974) (upholding felony-murder conviction where police officer was killed in explosion by bomb that robber had planted prior to being arrested);  People v. Keshner, 304 N.Y. 968, 110 N.E.2d 892 (1953) (upholding felony-murder conviction for arsonist who was under arrest when fire killed police officer).

9.  In full, the affirmative defense to Colorado's crime of felony murder provides:(2) It is an affirmative defense to a charge of violating subsection (1)(b) of this section [the felony-murder provisions] that the defendant:(a) Was not the only participant in the underlying crime;  and(b) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof;  and(c) Was not armed with a deadly weapon;  and(d) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article, or substance;  and(e) Did not engage himself in or intend to engage in and had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious bodily injury;  and(f) Endeavored to disengage himself from the commission of the underlying crime or flight therefrom immediately upon having reasonable grounds to believe that another participant is armed with a deadly weapon, instrument, article, or substance, or intended to engage in conduct likely to result in death or serious bodily injury.§ 18-3-102(2), C.R.S. (2004).

10.  The relevant provisions of New York's earlier felony-murder statute and affirmative defense read as follows:A person is guilty of murder when:  ․ [a]cting either alone or with one or more other persons, he commits or attempts to commit ․ burglary ․ and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants;  except that in any prosecution under this subdivision, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof;  and(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons;  and(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance;  and(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.N.Y. Penal Law § 125.25(3) (McKinney 1967).   The language of New York's current section 125.25(3) is identical to this earlier version except that felony murder under this section is now classified as “murder in the second degree.”   See N.Y. Penal Law § 125.25(3) (McKinney 2004).   Cf. N.Y. Penal Law § 125.27(1)(a)(vii) (McKinney 2004) (defining first degree felony murder).

11.  See also § 40-3-102 cmt. (legislative comment on Colorado's felony-murder statute incorporates language from the 1967 Practice Commentary to New York's section 125.25).

12.  See Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), overruled on other grounds;  State v. Milam, 163 N.E.2d 416 (Ohio Ct.Com.Pl.1959).

13.  See, e.g., Coleman v. U.S., 295 F.2d 555 (D.C.Cir.1961).

14.  As noted, the fifth element of the Colorado Criminal Jury Instruction on felony murder, CJI-Crim. 9:02, uses the same language used here by the trial court in its instruction to the jury:  “in the course of or in [the] furtherance of [applicable felony], or in the immediate flight therefrom.”

15.  We review the alleged omissions in the jury instruction for plain error.   See Griego v. People, 19 P.3d 1, 7-8 (Colo.2001) (discussing plain error).

16.  In full, Auman's tendered “immediate flight” instruction read as follows:Immediate Flight means that no intervening event has broken the continuity of the underlying crime;  a person is not in the immediate flight from a burglary if an entirely new episode of events has begun;  nor is a person in immediate flight if she has reached a point of temporary safety or is subject to complete custody at the time the death is caused.The factors to be considered in determining whether the burglary was still in progress or had been terminated by intervening events are as follows:1.  Whether the location of the burglary was the same as that where the death was caused[;]2.  The distance between the locations[;]3.  The interval of time between the burglary and the death[;]4.  Whether the defendant still possessed the fruits of the burglary at the time the death was caused[;]5.  The causal relationship between the underlying felony and the causation of death[;]6.  Whether the co-perpetrator of the burglary had committed intervening acts which weakened any causal connection between the burglary and the death[;]7.  Whether the death was too dependent on another person's volitional act to have just bearing on the defendant's culpability[;]8.  Whether the police were in close pursuit of the defendant at the time the death was caused[;]9.  Whether the defendant had reached a place of temporary safety or was in complete custody at the time the death was caused.

17.  At trial, Auman's expert testified that the high levels of methamphetamines in Jaehnig's system would have made him aggressive and reckless.

18.  The jury acquitted Auman of first degree burglary but found her guilty of second degree burglary and conspiracy to commit first degree burglary.   Because conspiracy to commit burglary cannot, by definition, serve as a predicate felony for a felony-murder conviction, Auman's second degree burglary conviction served as the predicate felony for felony murder.

19.  Like the concededly erroneous instruction in this case, the theft instruction in Bornman failed to expressly modify the “without authorization” element with the mens rea term “knowingly.” See 953 P.2d at 953.

20.  Although neither Auman nor the People cited Bornman to the trial court, both parties agree that the theft instruction, as tendered and obtained from the 1993 pattern Colorado Criminal Jury Instruction on theft, CJI-Crim. 16:01, was incorrect.   We note that the Bornman case was decided after the 1993 update, which is the most recent version, of the pattern instruction on theft.   It is therefore understandable that this improper instruction was given to Auman's jury.

21.  The error in omitting “knowingly” from the “without authorization” element is not cured by the fact that “or by deception” was included in the instruction on that element.   Neither evidence nor argument was presented that Auman, or the others with her, committed theft by deceiving Cheever.

22.  We do not consider the error here to have been invited by Auman.   Although Auman tendered the second degree burglary instruction, the error at issue is in the theft instruction which was not tendered by her defense.   Instead, the theft instruction was required for incorporation into the instruction on first degree burglary as well.   Because Auman did not cause or invite the error in the theft instruction, we conclude that the invited error doctrine does not apply.   See People v. Zapata, 779 P.2d 1307, 1309 (Colo.1989).

23.  Our precedent indicates that we have applied, or at least discussed applying, the plain error or the constitutional harmless error standard of review to an error of constitutional dimension not objected to at trial.   See Auman, 67 P.3d at 758 (recognizing split of authority regarding appropriate standard of review).   For cases applying constitutional harmless error, see People v. Harlan, 8 P.3d 448, 490 (Colo.2000);  People v. Davis, 794 P.2d 159, 189 (Colo.1990);  and People v. Rodgers, 756 P.2d 980, 984 (Colo.1988).   For cases suggesting an application of plain error under such circumstances, see Griego, 19 P.3d at 7-8;  and People v. Dunlap, 975 P.2d 723, 737 (Colo.1999).

24.  Throughout our discussion of the evidence and arguments presented, we refer to Auman's intent to commit theft at the time of trespass.   Although a complicity instruction for the burglary charges was given and the evidence could have supported a finding that Auman's role in the alleged burglary was that of either a complicitor or a principal, under either theory of criminal liability, Auman, herself, must have intended to commit theft when she unlawfully entered Cheever's room irrespective of whether the jury viewed her as a principal or as a complicitor in the commission of burglary.   See Bogdanov, 941 P.2d at 250-51 (explaining that “(1) the complicitor [must have] the culpable mental state required for the underlying crime committed by the principal;  and (2) the complicitor [must] assist[ ] or encourage[ ] the commission of the crime committed by the principal ‘with the intent to promote or facilitate’ ․ such commission” (emphasis added));  see also Palmer v. People, 964 P.2d 524, 528 (Colo.1998).

25.  Defense counsel told the jury, “And once in the [L]odge, Gerze and Duprey did what they wanted to do, what they wanted to do, not what [Auman] wanted them to do.”

26.  While Auman could possibly have been convicted of theft if the jury believed she stole Cheever's property or was a complicitor to that crime, she was not charged with the crime of theft.   Theft is not a specifically enumerated predicate crime necessary to establish liability for felony murder.   See § 18-3-102(1)(b).

27.  We note that the prejudicial impact of the erroneous instruction may have been unintentionally reinforced by the People's closing argument that Auman was guilty of burglary because Cheever's property was in fact taken.   This argument may have increased the likelihood that the jury could find Auman guilty of burglary irrespective of whether she intended to steal Cheever's property when she entered his room unlawfully, or at some later time, and thus possibly undermined her defense.

1.  Theft by deception does not require that the victim be deceived. Rather, the crime requires the actor to obtain the property of another by deception.Here, the jury could have found that Auman's stated reason for going to the rooming house in the mountains where she had lived and where Cheever rented a room (the Lodge) and breaking into Cheever's room-that she only wanted to retrieve her “stuff”-was a ruse designed to conceal her true intent to take Cheever's property.   The jury may have found that Auman used this ruse to recruit the other four people to help her or to lull the Lodge residents into complacency when they saw Auman and the others removing items from Cheever's room.

BENDER, Justice.