Auman takes plea deal
Accessory in officer's death
agrees to 20-year term, avoids retrial
By Howard Pankratz - Denver Post
July 12, 2005
Lisl Auman pleaded guilty Monday
to burglary and accessory to first-degree murder in connection with
the slaying of Denver police officer Bruce VanderJagt on Nov. 12,
Auman, 29, agreed to the maximum
sentence of 20 years.
Prosecutors stipulated that the
sentence will be served in the community-corrections system. That
would mean that Auman might be out of prison and in a halfway house
within months if her scheduled sentencing on Aug. 22 proceeds without
a hitch - which is not guaranteed.
After the hearing, Auman issued a
statement through defense attorney Susan Fisch.
"I realize how emotionally
painful and difficult a trial can be. As a result, I feel ...
accepting this plea agreement ... is an opportunity to alleviate any
further pain for the VanderJagt family, my family, the community and
myself," Auman said.
"This plea agreement gives me the
opportunity to pursue the goals and dreams that I've only been able to
think about for the last eight years as well as to give back to the
community in a way that I could not do from prison," she added.
VanderJagt's widow, Anna
VanderJagt, said Monday she agrees with the plea, although she has
previously advocated that Auman not be released.
"I've been through a lot of
prayer," she told The Denver Post, "and I accept that at this moment
in time, under these current circumstances, that this is the right
Auman was convicted in July 1998
of first-degree felony murder, second-degree burglary, menacing and
conspiracy to commit first-degree burglary. The first-degree felony
conviction carried a life sentence without parole.
However, in March, the Colorado
Supreme Court threw out the felony first-degree murder and burglary
convictions, saying that the trial judge left out a crucial word -
"knowingly" - when instructing the jury about the elements of
The high court ordered a new
trial on those counts.
Lynn Kimbrough, spokeswoman for
the Denver district attorney's office, said that the pleas were the
first acknowledgment by Auman of wrongdoing on her part. Kimbrough
said the admission of guilt was key to prosecutors accepting the deal.
"It had to be a just disposition,
and it had to be one where Miss Auman would accept her responsibility
and her role in causing the events that led to the death of a Denver
police officer," Kimbrough said. "She pleaded guilty today. She stood
up there and acknowledged that she had a role in the events that led
to the death of that officer."
But Robert Simonich, VanderJagt's
brother-in-law, said Auman was given the second chance that VanderJagt
never had. He said he felt it wasn't right that Auman not face a
Simonich said he wears a bracelet
as a tribute to VanderJagt. "Sadly, we move on. Bruce has been reduced
to nothing but a memory," he said.
Matt Moseley, the Auman family
spokesman, said that the family's "greatest sympathies continue to be
with the VanderJagt family. But we are very excited that she is coming
home - the possibility that she will be coming home."
Denver Police Chief Gerry Whitman
issued a statement Monday after the hearing:
"If released to community
corrections, I hope Ms. Auman takes advantage of the second chance
that has been granted her by a technicality of the legal system to
undo the damage she has done to innocent people who suffered from her
VanderJagt was killed by skinhead
Matthaeus Jaehnig, one of several people who went to the Jefferson
County boarding house of Auman's former boyfriend Shawn Cheever.
The prosecution claimed that the
Auman-led group went there not only to recover some of Auman's
belongings but to steal Cheever's property.
But the defense claimed Auman
intended to retrieve only her belongings and that the four others
agreed to help. The defense said there was no agreement to steal
The couple was chased from the
boarding house into Denver, where Denver police picked up the pursuit
and VanderJagt was killed.
At the time VanderJagt was shot,
Auman had been sitting handcuffed in a police car for five minutes.
Auman's plea agreement in the
case Monday stipulated a community-corrections sentence, but that
Greg Mauro, assistant director of
Denver Community Corrections, said that the 21-member Denver Community
Corrections Board first has to accept Auman. They could reject her
application at an Aug. 17 meeting.
Among the considerations is the
nature of the case and an individual's danger to the community.
"They will look at the risk to
public safety," he said.
Also, Denver District Judge
Christina Habas told Auman that she could reject the plea agreement.
Mauro said that people accepted
into community corrections often can return home within a year. He
said on average they stay in a halfway house for about nine months and
then can move to an apartment or house. That house could be Auman's
The Lisl Auman Story
The Denver Post is running a
three part series on the story. Here's a quick synopsis of the day's
Lisl Auman said she just wanted
to get her stuff back. So on Nov. 12, 1997, she, a friend from high
school and three men headed to the lodge where she and her boyfriend
lived in Buffalo Creek. The trip led to a high-speed police chase to a
Denver apartment building, where Denver police officer Bruce
VanderJagt was shot and killed by one of the men.
Auman, who was in police custody
when the officer was slain, was convicted of felony murder and
imprisoned for life without parole.
The case remains controversial.
The application of the felony murder statute to Auman's circumstances
is unique in Colorado and rare nationally. Three police officers
changed their accounts of the shooting. And one juror says she regrets
buckling to pressure to convict.
The prosecution says Auman
committed a crime and rightly paid the price for an officer's death.
Within weeks, Auman is expected
to appeal her conviction.
In anticipation of that, and now
that emotions have eased for many, this three-part series raises new
issues, unearths details and reviews the unusual qualities of the
It is the product of five months
of reviews of police reports, videotapes and trial transcripts, and
interviews with the attorneys, jurors and the defendant.
Lisl Auman: Hostage or
By Diane Carman - Denver Post
April 30 - Police cars blocked
the streets, lights flashing, radio chatter blasting from open car
Officers crouched behind
shrubbery. SWAT team members wearing protective vests and helmets
surrounded the Monaco Parkway Apartments complex, some using their
vehicles for cover. Their weapons were drawn.
A news helicopter hovered over
the building, its camera sweeping the scene. The noise was deafening.
It was just before 3 p.m., and
17-year-old Travis Ford was walking home from school near Monaco and
Hampden when an officer shouted at him.
"Get the f--- down!"
Ford dropped to the ground behind
a police car.
Policemen were running, peering
around corners, yelling to one another, but the helicopter, the radio
chatter, the noise swallowed their voices.
Then the sound of gunshots, an
unmistakable staccato, pierced the din.
"Officer down! Officer down!"
"We need an ambulance. Code 10."
"We need help over here. It's not
A hail of gunfire followed, the
sound ripping through the air, pounding and ricocheting through the
Barbara Happel was inside her
neighboring Monaco Parkway apartment when bullets burst through the
dining room wall. She ran to the living room, threw herself to the
floor and called 911.
The scream of sirens followed.
Ambulances and fire trucks careened down the street.
SWAT team members Mark Haney and
Andy Ramirez dragged Officer Bruce VanderJagt out of the hallway,
trailing his blood across the snow. Officers scooped his body onto a
stretcher and loaded him into an ambulance. Bullets had torn through
the right side of his head, his chest, his arms, his legs.
Paramedics squeezed air into his
lungs with a ventilator bag, pumped his chest. They raced to Denver
General Hospital, alerting trauma surgeons on the way.
The 47-year-old VanderJagt never
moved, never spoke, never drew another breath.
In the back of a police car,
21-year-old Lisl Auman watched the tumult.
Handcuffed, searched for weapons,
belted into the seat and locked into cruiser No. A6979, she heard the
gunfire, saw the frantic scene all around her.
Finally, the shooting stopped.
Sgt. Calvin Hemphill strode
toward the police car and looked hard into her face.
"This is murder one, and you're
going down," he said.
"You're going down." As if it
Two and a half years later, Auman
recalls Nov. 12, 1997, as if it were yesterday.
She looks much the same as in her
police mug shot. Her blond hair is a little longer. She has gained a
She idly, self-consciously pulls
at her prison suit as she talks. She's 24 now, living at the Colorado
Women's Correctional Facility, doing life without possibility of
She was convicted of felony
murder on July 17, 1998. Her appeal is set to begin this spring.
The controversy over Auman's
conviction has never waned.
Her defenders say she was wrongly
convicted in a rage-inspired campaign to avenge the death of a police
officer. In their view, Auman was a hostage caught up in a maelstrom
of terror created by a drug-crazed, violent lunatic. They say lies,
police intimidation and grotesque manipulation of public opinion were
used to extract a conviction from the jury.
Her accusers say she was part of
the criminal subculture and the mastermind behind the plot to
burglarize and terrorize her former boyfriend, which started the chain
of events that led to VanderJagt's murder, for which she must bear
Legal experts continue to debate
the troubling questions of the case. At the very least, some say, her
conviction for a crime that was committed while she was in police
custody breaks new legal ground, sending a chilling message about the
increasingly long arm of the law.
The typical felony murder
conviction goes like this:
A couple of crooks - let's call
them Bonnie and Clyde - decide to hold up a liquor store, a bank, a
7-Eleven. Something goes wrong, somebody panics. Clyde shoots and
kills a clerk.
It doesn't matter that Bonnie
never fired her revolver, never meant to kill. Under the law, she
still is liable for the clerk's death.
Colorado law states, "The purpose
of the felony murder statute is to hold a participating robber
accountable for a non-participant's death, even though unintended, as
long as death is caused by an act committed in the course of or in
furtherance of the robbery, or in the course of immediate flight
therefrom." Lisl Auman was convicted under the felony murder statute.
anything but typical.
No one else has been convicted in
Colorado of felony murder for a killin that occurred while the suspect
was in police custody.
Though not unique in U.S.
history, it's rare.
University of Denver criminal law
professor Jeffrey Hartje said the closest thing to recent relevant
case law is in the area of conspiracy.
Courts have generally found that
"your obligation as a conspirator ends once you get caught, especially
with regard to crimes that go beyond the contemplation of the original
conspiracy," he said. District Attorney Bill Ritter disagrees.
"She wasn't at the margin with
respect to involvement in felony murder," he said. "Felony murder is a
powerful statute." Some say too powerful.
"Conspiracy and felony murder are
the favored children in the prosecutor's nursery," Hartje said.
District attorneys love them because "their responsibility as
prosecutors is significantly diminished." Ordinarily, if you're trying
to prove murder, you have to demonstrate beyond reasonable doubt that
the mental state of the defendant is such that he intended to kill,
"With felony murder and
conspiracy, you don't have to show intention, making a conviction much
The statutes are "draconian," he
said, the penalties are severe, and in many cases, circumstantial
evidence and public outrage have been enough to convict.
But that is an
oversimplification, Ritter said. To understand Lisl Auman's
conviction, he said, you must go back to Nov. 11, 1997. The story
began that night.
"We were drinking sake," Auman
A few days before, Auman had left
her rented room in the old Hudson Hotel lodge at Buffalo Creek. She
was fed up with her boyfriend, Shawn Cheever.
"I felt like he was cheating on
me, whatever, and I was just like, you know, I don't like this. It
doesn't feel right . . .
"I remember one weekend I went
back home to my mom and I was telling her about Shawn, how I didn't
trust him and I felt like he was playing games with me. She said,
"Let's go up there and get your stuff."
"And I said, "Well, I don't know'
and I thought about it and I guess I just didn't want to bring my mom
into that." But soon after that conversation, Auman knew she had to
get out of Buffalo Creek.
She packed a few days' worth of
clothes and her dog and went to her dad's house in Denver. She spent
one or two nights there, then called her best friend from high school,
Auman told Soriano she wanted to
leave Cheever, and Soriano invited her to move in with her.
Soriano lived with her boyfriend,
Dion Gerze, in an apartment at Monaco and Hampden in Denver. But the
relationship was ending, and the two women saw it as an opportunity to
"We bonded," Auman said. "She's
like, "Dion's a real jerk and he's moving out soon.' " Auman had been
renting a room at the lodge but had spent considerable time in
Cheever's room. She said she wanted to retrieve a comforter, the rest
of her clothes, her mandolin, jewelry, dog food, a camcorder, a
"I told her I needed to go back
and get my stuff, but my plates were expired on my car. . . . I needed
help and Deme was like, "Well, I'll help you,' and I knew it was going
to take more than one car.
"And so I think Dion was
somewhere in on the conversation. I remember he set up the plan that
his friend was going to help us with his car to move my stuff." Dion's
friend, Matthaeus Jaehnig, came to the apartment briefly that night.
They agreed to drive to the lodge the next day when Cheever would be
Sometime after noon on Nov. 12,
the group met at Soriano's apartment. Auman rode with Jaehnig in his
red Trans Am, and Soriano, Gerze and another friend of Jaehnig's named
Steven Duprey piled into Soriano's black Chevy for the trip to Buffalo
There, two residents, Carrie and
Sabrina Matthews, watched from a window as Auman and Soriano got out
of the cars and went to Auman's room. Gerze and Duprey went to
Cheever's room, carrying bolt cutters. Jaehnig stayed in the driveway
in the parked Trans Am.
Another resident of the lodge,
Mary Lucas, said Auman stopped by her room and said hello.
Lucas recalled asking her, "What
are you doing here?"
She said Auman didn't reply. She
simply walked down the hall toward her room.
Lucas told police that Cheever
had placed a padlock on his door because he "didn't trust Lisl." She
watched Soriano and Auman carry clothes and other items from Auman's
room and load them into the cars.
At one point, she said, Auman
carried a white basket containing a video recorder and tripod down to
the Trans Am. Auman sat in the passenger seat and tried to put the
basket on her lap. Unable to do so, she got out of the car, put the
basket on the floor on the front passenger side, and got back into the
car with her feet straddling the basket.
That detail would prove important
later in the trial.
Daniel Mattson told police he was
lifting weights in his room at the lodge when he heard the cars
approach outside. Moments later, he stepped into the hall and saw a
man with a handlebar mustache carrying a speaker from Cheever's room.
He went back into his room, looked out the window and saw another guy
putting bolt cutters into the Trans Am.
Mattson said he was "convinced
they were ripping off Shawn." He went downstairs, walked outside the
lodge, and approached the black car.
"Do you mind if I write down your
One of the men responded that he
didn't want him recording the license numbers, but Mattson stood there
with paper and pen and wrote "black car, EHZ8886" and "red temporary,
Jefferson County sheriff's Deputy
Phil Pedigo was having lunch with fellow Deputy Michael Sensano at the
Conifer Plaza Subway when the call came in at 2:33 p.m. - a burglary
Two cars were identified as
suspect vehicles, a black Chevy and a red Trans Am with temporary
Sensano was on his way to the old
Hudson Hotel when he radioed that he thought he saw the red Trans Am
around Kennedy Gulch.
Pedigo turned around and followed
the car. He noticed that the occupants were watching him in their
He requested backup and said he'd
try to stop the Trans Am when it emerged from the canyon, where it
would be safer. Deputy Ed Pearson joined the pursuit near Parmalee
The officers followed the Trans
Am, driving about 40 mph on the narrow road through Aspen Park. Just
north of Turkey Creek, they hit the overhead lights, signaling the
driver to pull over.
Auman later told police that
Jaehnig looked at the flashing lights and told her, "I'm not
"The chase started at that
point," Pedigo told Denver police in a videotaped interview. It was
2:46 p.m. "We hit 85 to 90 real quick." "We were going very fast, very
fast," Auman said.
Pedigo, whose patrol car was a
Chevy Blazer, had trouble keeping up with the Trans Am.
"He's changing lanes around other
cars . . . then a vehicle moved over and he took off like a shot. He
was going 100 mph. . . . That's as fast as the Blazer will go."
The chase continued through the
heavy afternoon traffic on U.S. 285 past Kipling, Wadsworth and Santa
"A few different times I wanted
to get out of the car," Auman said. "I asked him why he wouldn't pull
over. He just kept on going." Pedigo lost sight of the Trans Am just
east of Interstate 25.
"Traffic was at a dead stop . . .
I lost him," Pedigo said. "But then someone at the intersection was
pointing" into the neighborhood to the north of Hampden at Dahlia.
Pedigo and Pearson cruised the
neighborhood with their overhead lights off, seeking the Trans Am.
"I was by an elementary school,"
Pedigo said. "I was driving real slow. I had my window down, trying to
hear the vehicle. I had a feeling we would terminate the chase. It was
done. We had lost them."
"All of a sudden," Pearson told
Denver Police, "there's the suspect vehicle again." Auman said Jaehnig
"Well, I guess this is what I'm
going to have to do, and he pulled out this gun and sat it on his lap.
He popped it, or whatever it is you do with a gun. He rolled down the
window and looked back outside. We're swerving all over the road."
Auman said she had not seen the gun in the car. It was "in a sleeve or
something," she said.
"At this point, I was afraid for
my life. He asked me to take ahold of the wheel and basically he
didn't wait for me to respond. He just put his head out the window and
proceeded firing." Pearson said the Trans Am was traveling about 35
mph. He saw the driver lean out the window with both hands on an
"He shot three rounds at me, bam,
bam, bam." Pearson said he dropped back briefly, but tried to follow
the TransAm until he lost sight of the car on Monaco about a block
north of Hampden.
After shooting at Pearson, Auman
said, "We ended up hitting a car head on. I opened the car door and I
wanted to get out. I just wanted it to be over." Schoolchildren in the
neighborhood reported seeing the passenger door fly open and a basket
- the one witnesses saw Auman place between her feet when she left
Buffalo Creek - come out before the door slammed and the car sped
away. Auman said the basket flew out the door between her feet as she
tried to jump.
Auman said Jaehnig yelled at her
to shut the door. He said, "What the f--- are you doing? Get back in
"I listened to him because he had
this huge gun," Auman said.
Moments later, the Trans Am
backed into the last empty parking place at the apartment complex at
Monaco and Hampden.
"He was right behind me" Jaehnig
and Auman ran toward apartment No. 3323, Soriano's place.
"I got out of the car," Auman
said. "He was right behind me." When they got to the apartment, the
door was locked and the police had surrounded the building. Auman and
Jaehnig were in an exterior hallway that went through the complex.
The officers were yelling. "Come
out." "Show me your hands." "Get on your knees."
"I just came out with my hands
up," Auman said. "I came out walking real slow. I did exactly what
they told me to do." One of the officers called Auman a "b----" and
said, "We're not f------ around. Where the f--- is he?"
"They were asking me where he was
and I had no idea where he was," Auman said. "The last time they saw
him was the last time I saw him," she explained.
"I have no idea what happened
after I came out. It was really intense at that point in time."
Officer Michael Gargaro pushed
Auman's face into the snow. He put his knee on her back, handcuffed
her and pulled her off the ground by her arms. He led her away to a
patrol car. When Auman surrendered, Jaehnig "took off real fast" down
the hallway, according to Denver Police Officer Jason Brake. Seeing
that, Officer Marc Bennett ran around the complex to intercept Jaehnig,
but the hallway was a dead end. Meanwhile, VanderJagt stepped around
the corner of the building toward the hallway.
Jaehnig opened fire. When
VanderJagt fell to the ground, Jaehnig grabbed his service revolver
and scrambled back to the hallway.
A roar of gunfire erupted as
police officers poured more than 150 rounds into the small alcove. The
percussion from the automatic rifle shots reverberated on the chests
of the officers as their hearts pounded. VanderJagt's body was dragged
to safety and then carried to an ambulance.
The shooting stopped. "They were
telling people to settle down, regain their composure," Pearson said.
"Everyone was upset from seeing the injured officer." An eerie quiet
followed. Finally the officers entered the bullet-ridden alcove.
Jaehnig's body was sprawled on
the ground. He had put VanderJagt's revolver to his chin and pulled
The Lisl Auman Story Part 2
Words return to haunt Lisl
By Diane Carman - Denver Post
May 1 - The afternoon she was
arrested in connection with the shooting death of Denver police
officer Bruce VanderJagt plays like a cheap horror movie inside her
"Oh, man, I was a mess," recalls
Lisl Auman, who is serving life in prison without possibility of
parole. "I wanted to get out of the situation. I wanted it to be over.
I was scared.
"I knew that the officer had been
shot ... and I was remorseful about that." But she had no idea what
had happened to the gunman, Matthaeus Jaehnig, whom she had last seen
alive when she surrendered to police.
"There was a point in time before
Matthaeus had shot himself I was afraid
for the retaliation he would take against me. ... Not only was I
him, but I was afraid of the police, too. 'Cause they had threatened
kept on threatening me that I was going to go down for murder, I was
to go down for murder, and, you know, at the time I was afraid, but I
thought they can't do that to me because I didn't do anything." It
never occurred to her to request an attorney.
"Gosh, I wish I would have.
"It's so silly to say this now,
but as I look back, I was sitting there and
I don't think that I thought it was as serious as it was. I thought I
going to be able to go home." Tears well in her eyes and spill onto
cheeks. She shudders, wipes her face with her hands.
"I didn't know I was going to be
charged with murder.''
When a police officer is killed
in the line of duty, the response is
enormous. Emotions run high.
"There was a lot of guilt among
those officers," said Denver Deputy District
Attorney Tim Twining. "They experienced 'it could have been me, should
been me' kind of thoughts. Those are conversations I had with those
Law enforcement agencies in
Denver, Jefferson County, Arapahoe County,
Castle Rock and Lakewood were among those cooperating in the sprawling
investigation. Resources from the Colorado Bureau of Investigation
tapped. Efforts continued around the clock.
Critical information in the case
emerged from the three hours of police
interviews with Auman that night. The expert questioning and her
naive and concocted responses became the foundation for the
case against her.
Auman's words, her description of
the day's events, would come back to haunt
It was 4:50 p.m. Nov. 12, 1997,
inside the interview room at the Denver
Police Department. Auman sat across the table from Detective Jon
Detective Kelly O'Hayre and Denver Chief Deputy District Attorney
were also in the room.
The video camera was rolling.
"I want you to understand my
situation," said Auman, drinking from a paper
cup. "I would have pulled over if it was me. I wouldn't have shot
just wanted to give up." Auman had been read her rights. She had
right to an attorney.
The videotape continues. Priest
asked how she knew Matthaeus Jaehnig. "I
know this person who knows him." She fidgeted. She looked at her
A friend named Dave sent Jaehnig
to help her move from Buffalo Creek, she
said. Auman planned to live with a high school friend, Demetria
The officer asked if she knew
"We're close, yeah. He's like my
big brother. He looks out for me." Priest
wanted to know his last name.
"I'd like to tell you," she said,
"but I'm afraid for my life."
"You couldn't be safer anywhere
in the world than you are right now," Priest
Auman paused. "It's Vargas."
"So you wanted someone there for
some muscle for you?" Priest suggested.
The interview continued.
She told the officers she didn't
know Soriano's last name, although they'd
been friends since high school. She offered a description of the
Dave, complete with tattoos. She made up a fake last name for her
boyfriend, Shawn Cheever. She said his room was unlocked when they
at the lodge and that the door was open. She described Jaehnig's red
Am as a Firebird, "I think it was green." "I sure don't want to catch
a lie," Priest said.
"I'm not lying," Auman replied.
"I'm not a liar. I might have told you some
things before because I was afraid for my life ..."
Her eyes glanced from the table
to the officer.
"We're not just here to talk
about what happened," Priest said. "We're here
to help as best we can any problems you might be involved in."
"I just wish I'd never gotten
involved with these people," Auman said.
The interview had been under way
for nearly two hours. Auman was biting her
fingers, shaking her head.
"It's not a good day," she said.
"Two people that I don't even know ... are
dead because of me." "Why is that?" said Priest, drawing more detail
her in this critical area of criminal responsibility.
"Just because I wanted a little
muscle to back me up when I wanted to go get
my stuff," she said.
She'd used the very word Priest
had suggested earlier. Prosecutors later
would use this to show she knew her companions had violence in mind
She started to cry.
"Lisl, we're not trying to say
you're a bad person," said O'Hayre.
"I'm not a bad person," she said.
"We're not out to hurt you,"
O'Hayre added. "I know you didn't intend for
this to happen today. But there are some things that got set in
is a big-time thing." "I'm just scared as hell now," Auman said.
The interview ended at 6:43 p.m.
Denver District Attorney Bill
Ritter had been watching through a two-way
mirror. He already had enough to prosecute.
One by one the other suspects
Soriano was arrested at her
parents' home in Highlands Ranch. Her boyfriend,
Dion Gerze, called from the Super 8 Motel in Castle Rock, saying he
to turn himself in. A warrant was issued for Jaehnig's friend Steven
who was hiding in the basement of a friend's house on South Federal
The mysterious tattooed Dave
Vargas didn't exist.
Denver Police evidence teams
worked in the dark at the crime scene,
videotaping blood stains, bullet holes, spent shells and the body of
sprawled on the concrete, with the murder weapon at his feet, the
weapon at his side. Blood trailed from his head.
Denver police officer Nick Rogers
interviewed Cheever about the burglary
from his room at the Hudson Hotel in Buffalo Creek. "I locked my room
decided to tell her to get lost," he wrote in the statement to police
Nov. 12. "I had nothing in my room that belonged to her." At her home
Littleton, Colleen Auerbach talked to Denver police by phone. Her
Lisl, was in custody, they explained.
"Tell her just to tell the
truth," Auerbach said. "Tell her that her mother
says to tell the truth.''
At 11:25 p.m., the video camera
began taping Auman's second police
interview. Once again, Ritter was watching through the two-way mirror.
was crying. No defense attorney was present.
"Are you OK?" asked Priest.
"I guess so," she answered,
Priest handed her some tissues.
"Thank you," she said.
Priest asked Auman to explain
what had happened.
"Shawn lied to me and made me
feel like s---," she said. "I wanted to
retaliate, I guess." She identified Soriano and Cheever. She explained
Soriano's friends had offered to help her move. She continued to use
fake names of "John" and "Dan" for Gerze and Duprey, and said the only
she knew for Jaehnig was a nickname, "Sardine." "I wanted my stuff
she said. "At this point in time, I didn't realize that whatever of my
I got back, I was going to have to split with them and I didn't
were going to take stuff that did not belong to me." Auman said they
to go to the Hudson Hotel to pick up her belongings during the day
Cheever was at work because there would be "less conflict, I guess."
talked to "John" about Cheever.
"I said, "Take it easy on him.'
And he said, "I'll do the best I can." "I
said, "Don't kill him.'- " This was just the kind of testimony the
prosecution needed. They were building a case that violence was
Priest kept prodding.
Auman said they all were talking
the night before about moving her things to
Denver and "I opened my big mouth and I told them he had a couple of
speakers." She was implicating herself in a conspiracy to commit
Priest kept her talking.
At the lodge, "John," "Dan" and
Auman were in Cheever's room, she explained.
"You knew they were taking things
that didn't belong to you?" asked Priest.
"Right," Auman said.
In another interview room at
Denver Police headquarters, Detective Alex
Woods was questioning Soriano.
She said she and Auman had
enlisted the help of three guys to drive to the
mountains and get some property that belonged to Auman. She identified
guys as "Tao" (Matthaeus Jaehnig), "John" and "Dan." She admitted that
took things that belonged to Cheever and she told the detective they
wanted to scare Cheever.
In the middle of the interview,
Woods was notified that detectives
interviewing Soriano's parents had learned her boyfriend, Dion Gerze,
been along on the trip to Buffalo Creek.
At that point, Soriano requested
an attorney. The interview abruptly ended.
At 6:15 p.m. Nov. 12, a Denver
police officer filed a statement about the
homicide, which included the following:
"I ran over to him (Officer Marc
Bennett) as he was ordering a white female,
(unidentified) to exit the hallway of the building and lay (sic) on
ground. As she was removed by myself and Officer Bruce VanderJagt and
believe Officer Tony Martinez, my partner yelled that the suspect
possibly have access to the other side of the building. I then ran
the north side of this same building and observed no footprints in the
and no obvious access to this courtyard area. ..." Signed, Jason Brake
At 6:45 p.m. Nov. 12, another
police report was filed on the arrest of
"As I started towards the
apartments, I observed a male attempting to force
entry into the southernmost apartment with a female standing in front
watching the parking lot. I began to yell for them to get their hands
air. When I began yelling the female turned around and put her hands
air while the male ducked down and began to run northbound behind a
type hallway. I continued to yell for the female to get to her knees
began to go to her knees when I grabbed her and started to pull her to
"I passed the female to Officer
VanderJagt who took control of her and
eventually handcuffed her with Officer Brake. ...
"After realizing that there was
no way for the party (Jaehnig) to escape I
went to the southeast corner ..." Signed, Marc Bennett Two days later,
and Bennett revised their statements, filing additional police reports
supplemental videotaped interviews.
The officers, who were partners
at the District 3 substation, said they had
not discussed the arrest or their earlier reports. They said it was
coincidence that they remembered additional details on the same day,
days after the shooting.
Brake now said that as Auman
emerged from the hallway to surrender to
police, "I observed her lean to her right as if to drop something,
stand back up with no weapon in her hands.
"We weren't sure what she was
setting down or if she was setting anything
down. It just appeared like she was going to set something down or
something." Demonstrating the same movements that Brake had performed
tape, Bennett told the detective, "She did this, a slight movement. I
thought she was setting something down. ... I didn't know what was
there." Bennett said otherwise his report of Nov. 12 was complete.
"I put everything in there but
seeing the female dip. I came in today to add
that." The "dip" implied that Auman handed the murder weapon to
supported the prosecution's contention that she actively assisted in
murder of VanderJagt.
Officer Michael Gargaro also
amended his statement two days after the
shooting, changing the way he characterized Auman's behavior after her
In a videotaped interview on the
day of the murder, Gargaro, who had
handcuffed Auman and drove her to police headquarters, described her
frightened and compassionate.
On the way to headquarters, he
said, "the suspect asked me if I knew the
officer" who had been killed. "I told her that I did. I told her that
a little child and that he was a really wonderful guy and that he
deserve what happened.
"I wanted to know if she was
going to cooperate with me and help me out.
"She said, "I don't know anything
... I just met him today. I'm really sorry
for your friend. I'm sorry that happened. I didn't mean for anything
like this to happen.'- " In his amended report two days later, he
characterized Auman as unfeeling and uncommunicative.
"Sergeant (Calvin) Hemphill
walked up to my police unit and began to ask the
female suspect who the other person is," Gargaro wrote. "The female
stated all she knew was "Sardine." "... Sgt. Hemphill became angry ...
female continued to be uncooperative, stating "I just don't know
... "At this time, gunfire erupted. Within moments, officers announced
an officer was down. I advised the female of this situation. No
Auman's lawyers later would say the revised reports were inspired and
orchestrated by the prosecution team to help their case.
Prosecutors said they believed
the officers were providing additional
information to their reports to be conscientious, and said the changes
Defense attorneys challenged the
truthfulness of another key prosecution
witness, even before Auman's trial began.
Cheever, the alleged burglary
victim, was arrested Nov. 21, 1997, accused of
theft, forgery, criminal impersonation and drug possession. When
searched the hotel room where he had been staying, they reported
marijuana, four stolen purses and three checkbooks, including one in
name of Lisl Auman.
Nine days earlier, Cheever told
police that nothing belonging to Auman was
in his room.
Auman by that time had also
produced canceled checks to show she'd purchased
the video recorder and snowboard she was accused of stealing from
The case sped forward.
On Nov. 28, 16 days after the
VanderJagt shooting, Steven Duprey was
arrested outside a South Federal house. He was charged with illegal
possession of a semiautomatic handgun, possession of a controlled
burglary and parole violation.
Meanwhile, several reports were
filed from the crime labs.
Pathologist Thomas Henry stated
that a drug screen found 772 nanograms of
methamphetamine per milliliter of Jaehnig's blood. Any level over 500
nanograms per milliliter is considered "significant." In most people,
nanograms would be considered a toxic, potentially lethal dose.
And in what would become a
critical element to impeach Brake and Bennett's
statements implying that Auman handled the murder weapon, the Colorado
Bureau of Investigation reported its analysis "failed to reveal the
of gunshot primer residue" on any samples from Auman's body or
that Auman's fingerprints were not found on the murder weapon.
The officers stood by their
Tim Twining and Henry Cooper, the
deputy district attorneys handling the
prosecution, said it was clear to them from the start that Auman was
The interviews with Auman and Soriano tipped them off.
Interestingly, Lisl and Demetria
Soriano both used the same fictitious names for the men," Twining
recalled. "This is a plan that was hatched down at the apartment
before they ever got to (Buffalo Creek). These were the names they'd
all agreed upon." Auman admitted to lying in the police interviews but
is adamant that she intended only to retrieve her belongings in
Buffalo Creek and that the much debated "dip" never happened.
I can't think of anything that
would have made them think that I leaned over, because I walked out
very slowly with my hands out right in front of me. I didn't want to
make any sudden moves because they were angry," Auman recalled. "I
never leaned over to do anything ... I never touched the gun.
"I think they just made that up
to justify the murder charge." But Twining supported the officers.
"I believe what the officers
said. It makes logical sense to me." Twining said the officers
remembered the same thing on the same day two days after the event,
because they had been traumatized by the sight of one of their
"brethren" being "brutally murdered." Cooper agreed. He said he
believes the officers did not talk to each other at the station house
at District 3 before they amended their reports, that the fact that
they both came forth on the same day with the same incriminating
information was strictly
"I was totally convinced that
what they were saying was true," he said.
The Lisl Auman Story Part 3
Juror: We 'got sucked in'
By Diane Carman - Denver Post
May 2 - The trial has haunted her
for nearly two years.
"If Matthaeus Jaehnig hadn't
killed himself, we'd have never even known Lisl Auman," said Linda
Chin, a member of the jury that convicted Auman of felony murder,
second-degree burglary and lesser charges on July 17, 1998.
Chin said she never believed
Auman was responsible for officer Bruce VanderJagt's murder or the
burglary that preceded it. To this day she doesn't accept the
prosecution's argument. To this day she maintains that the jury made a
She held out for an acquittal
through hours of jury deliberations but finally broke down under the
intense pressure to convict.
"I regretted it when I did it but
justified it long enough to go through with it," Chin said. "It
actually went across my mind when they were polling the jury, what if
I said no? What if I changed my mind when they come to me?
"But I didn't. I lost courage,"
she said. "I even made the remark in the jury room (that) I have not
changed my opinion, but I've lost the desire to keep fighting for
her." Then the realization of what she'd done overwhelmed her.
"I just couldn't get over the
fact (that) I knew I'd done wrong." But it was too late.
"They never would have gone to
trial with this if it had not been a policeman who had been shot. I'm
sure they figured somebody's got to pay," Chin said.
It was for that reason, she said,
that she believes some of the police officers who took the stand lied
in their testimony about whether Auman might have handed a gun to
Jaehnig just before her arrest.
"I and some of the most vocal
persons on the jury did not believe them," she said.
Herb Greenberg, another juror,
told reporters after the trial that the jury "didn't really worry
about" whether Auman handed the rifle to Jaehnig as police testified
was possible. Other jurors were unavailable or unwilling to talk about
Chin said they voted to convict
Auman because "they wanted her to pay for something because it was so
political. They wanted to vote what they thought was the right way.
"People really got sucked in."
Denver District Attorney Bill
Ritter said he has no second thoughts about the case.
"I'm comfortable that everything
we did along the way that bore the consequences ultimately that they
bore for Lisl is a reflection of what the community believes should
happen in combination with what the law is," Ritter said.
VanderJagt's murder stunned and
horrified the community, especially in the context of what was
happening in Denver in the fall of 1997.
Two days before the shooting,
President Clinton appeared at the White House Conference on Hate
Crimes and declared a "war on hate." With that message still fresh,
the profile of Matthaeus Jaehnig seemed to reveal a culture of violent
extremists in Denver.
Jaehnig, 25, a skinhead and white
supremacist, had been arrested eight times since 1992 for weapons
violations, menacing, assault, drug possession, criminal mischief and
keeping dangerous dogs. In 1995, he had trained at the Aryan Nations
compound in Idaho. Then in November 1997, after a highspeed chase from
Buffalo Creek, Jaehnig was cornered by police and shot and killed
VanderJagt at a Denver apartment complex. He then committed suicide.
Early press reports, later
retracted, described Auman as a fellow militant and girlfriend of
In contrast, VanderJagt was a
decorated and much admired police officer with a grief-stricken wife
and young daughter left fatherless.
Six days after the VanderJagt
shooting, West African refugee Oumar Dia was murdered and bystander
Jeannie VanVelkinburgh was shot and paralyzed in a racially motivated
crime at a Downtown Denver bus stop.
The next day, Nov. 19, 1997, a
dead pig with the name "VanderJagt" scrawled on its side was left in
the parking lot of the Denver Police District 3 substation, where the
slain officer had worked.
On Nov. 22, Clinton traveled to
Denver to meet with his widow, Anna Marie VanderJagt, and to rally the
community. "We must not tolerate violence and hatred against police
officers, the people who put their lives on the line for us every
day," the president said.
In preparing their case against
Auman, one of the first things prosecutors did was offer immunity to
other participants in the events on Nov. 12. Demetria Soriano, Dion
Gerze and Steven Duprey retained legal counsel on their arrests.
Soriano and Gerze were granted immunity from prosecution in exchange
for their testimony against Auman. All of them could have faced felony
Auman was the only one of the
group who had no prior arrest record and the
only one to submit to extended questioning without a lawyer.
The two police interviews with
Auman the night of the shooting were the
foundation of the prosecution's case and key factors in Ritter's
charge her with felony murder.
But, Ritter said, getting a
conviction on the felony murder charge was
hardly a slam-dunk.
"Quite frankly, there is this
issue of her being under arrest and him
committing the murder after she was under arrest," he said. "In spite
what the felony murder statute says, we knew there may be jurors who
look at that and question it." With that in mind, Denver Deputy
Attorneys Tim Twining and Henry Cooper contacted Auman's defense
about a plea bargain.
Though the negotiations never
reached the point of a formal offer, Cooper
said they were discussing a "rough number" of 30 years in prison in
for a guilty verdict on a lesser charge. "That was just flatly . . .
laughed at," Cooper said.
Public defenders Angela Kruse and
Cyrus Callum, who represented Auman,
rejected the deal. Auman's mother, Colleen Auerbach, said they were
confident Auman would be acquitted of the felony murder charge. So the
went to trial on July 7, 1998, with Denver District Judge Nancy Rice
It took eight days.
Auman never took the stand.
The prosecution called Soriano
and Gerze in an attempt to establish that
Auman had planned to burglarize and terrorize her former boyfriend,
Cheever, and had enlisted their help.
This was an important part of
their case because the Colorado felony murder
statute states: "One cannot be held guilty of murder as an aider and
if he has acted without knowledge or malice on his part and was
the malicious motives and felonious intent on the part of the actual
The judge called Soriano and
Gerze "hostile witnesses." They testified that
the trip to Buffalo Creek was to move Auman's things to Denver, that
planned to go when Cheever was at work to avoid a confrontation and
they were unaware Jaehnig had brought guns.
Next in court was a parade of
The most controversial testimony
came from three of the officers involved in
Auman's arrest: Marc Bennett, Jason Brake and Michael Gargaro. Bennett
Brake, who were partners, amended their police reports two days after
VanderJagt shooting to suggest that Auman passed the murder weapon to
Jaehnig just before she surrendered and that she had been
At the trial, they testified they
had not discussed those details and that
it was coincidental that they remembered the additional information at
But the defense cited a
videotaped statement by Brake, recorded the day the
amended reports were filed, in which he refers to conversations with
between Nov. 12 and 14. "I thought my partner ran this way originally,
after talking to him . . . ,"
Brake said on the videotape.
The defense also argued that the
district attorney's office had talked to
the officers prior to the filing of the supplemental reports and
them on how to change their stories to bolster their case.
The judge ruled that they had
insufficient evidence to prove that. She
allowed the officers' testimony to stand.
Gargaro, who also worked at
District 3 with Bennett and Brake, altered his
report on Auman's arrest on Nov. 14, the same day Bennett and Brake
In his original statement, he
said Auman was arrested without incident. The
later report described her behavior as uncooperative.
The prosecution contended that
Auman could have saved VanderJagt's life if
only she had told the police that the alcove area where she and
standing was a dead end and that he had a gun. They speculated that
VanderJagt pursued Jaehnig, thinking he was fleeing through another
from the hallway.
The defense argued, however, that
Auman had last seen Jaehnig at the same
time the officers saw him, when she surrendered, which explained why
said, "I don't know what you're talking about," when asked where he
They also reminded jurors that
Jaehnig had fired at an officer during the
chase, so it should have been obvious he was armed, and that she had
correctly told officers that he had a rifle when they asked her to
Gargaro also testified that he
had been an off-duty security guard at the
Monaco Parkway apartment complex for seven years. The defense
he knew the layout and could have told his fellow officer the alcove
The defense also painted Bennett
as racked with guilt and eager to deflect
responsibility for the loss of VanderJagt.
"You said you were - you were
feeling really crummy about what happened
because you felt that you should have taken a shot at Matthaeus
"I felt I was the only guy that
had a shot at the time." But while the
officers' testimony was controversial, it did not irreparably damage
They had a powerful weapon
against Auman in their arsenal. They had her
The prosecution led the jury
through Auman's incriminating remarks step by
"You very seldom see a smart
criminal," said Twining, recalling how she
helped their case.
In the hands of the police
interview team, Auman was thoroughly
outmaneuvered though she clearly tried a few tricks of her own.
She lied about the names of her
companions, using the same fictitious names
that Soriano had used at the time of her arrest. Auman lied about how
was introduced to Jaehnig and how they got into Cheever's room.
When officer Jon Priest asked if
they recruited the three guys to help with
the move because they needed some "muscle," she parroted the word back
to him. It was used repeatedly during her trial to imply that she
intended for them to injure Cheever.
At the end of the first
interview, Auman delivered a statement the
prosecution would use again and again to argue for a conviction.
"Two people that I don't even
know . . . are dead because of me." In the
second videotaped police interview, she still lied about the names of
and Duprey, then implicated herself further in plotting the burglary
scenario, complete with a suggestion of possible violence.
"Shawn lied to me and made me feel like s---," she said. "I wanted to
retaliate, I guess." She also told the police that she told her
"Just don't kill him." Her statements about her intent to only pick up
belongings, how she grabbed the wheel of Jaehnig's car to prevent a
and not to help him shoot at the police, and her attempts to escape
were emphasized by the defense throughout the trial.
Her earlier lies undermined her
Closing arguments came on July
16, 1998. Prosecutor Cooper went first.
"What are the elements of felony
murder?" he said. "Basically, you find the
defendant committed a burglary and you find that she or one of her
co-participants killed somebody while they were trying to get away.
Then he repeated statements from
Auman's interviews once more and spoke
directly to the jury.
"You stated you understood the
law and you would follow the law. . . . And
if you apply the law to the facts in this case, it's clear the
Callum argued that Auman was
wrongly accused of murder and was not even
guilty of burglary. Would burglars have talked to the residents at the
Hudson Hotel and allowed them to write down their license numbers?
He said she was attempting to
jump from Jaehnig's car when the
schoolchildren saw the passenger side door open and a basket fly out,
same basket another witness saw Auman place between her legs on the
And he accused the police
officers of lying under oath.
"We don't want to believe that
police officers lie. . . . We don't want to
believe that police officers fabricate. We want to trust police
but the police officers that testified . . . are not worthy of your
Finally, he reminded them of the key element in Auman's defense.
"Where was she at the time of the
shooting? She was in the police car.''
The concept of felony murder has
been controversial since its inception more
than 200 years ago in England. Defense attorneys argue that it is
and applied unfairly.
But prosecutors say it is an
important means to hold people accountable for
participating in life-threatening criminal behaviors.
Over the years, felony murder
statutes have evolved to include "affirmative
defenses" for the accused.
"The statute places a tremendous
burden on the defendant," said Jeffrey
Hartje, professor of criminal law at the University of Denver. "In the
affirmative defenses, the burden of persuasion shifts to the
Among the six elements the
defense needs to prove are such things as the
defendant being unarmed, attempting to disengage from the crime and
knowing that others intended to commit murder. Auman's attorneys
emphasized these elements of her story.
But Hartje said the thorniest -
and most interesting - part of this case
remains the undisputed fact that she was in police custody when
"I just have problems with the
notion of the death occurring in the course
of or furtherance of the original felony," he said. "The statute says
felony murder if the murder occurs in the furtherance of the original
or the immediate flight therefrom.
"Her flight ended when she was
taken into police custody.''
The jury deliberations began with
a vote to see where everyone stood. It was
11 to 1 for a guilty verdict.
"I was shocked," Chin said.
"Maybe they didn't like her
character. Some people, you could tell, even
faulted her for drinking a bottle of alcohol the night before, getting
with her friend."
But the main reason they voted to
convict her, Chin said, was because "if it
hadn't been for her, they wouldn't have all gone there. She got the
together to go get her stuff, regardless of whether it was a burglary
After hours of deadlock in the
jury room and orders from the judge to keep
talking, the jurors decided to watch Auman's videotaped police
one more time.
After the tape ended, Chin voted
"I wish I had waited an hour
after seeing those before I voted again," Chin
said, "because after seeing that, you're not sympathetic. She comes
flaky, not interested.
"For whatever reason, I seemed to
justify in my mind that it was OK to
change my vote." Later, when she discovered that the mandatory
felony murder is life without possibility of parole, she was angry.
"I never would have voted to
convict her if I had known that, and I know
some of the other jurors wouldn't have either. We had no idea. There
some jurors saying, "I just want to make sure she does more time in
than what she's served.' " Jurors are asked to reach a verdict based
facts. They aren't told about penalties and aren't supposed to
in their deliberations.
One element of the defense
strategy definitely backfired, Chin said. Even
though they were told it was her right not to testify, jurors were
influenced by the fact that Auman didn't take the stand.
"She should have taken the stand
because I think she could have explained away a lot of this or given
her side of it, other than just her video. That was not good, not good
at all." When the verdict was read, Auman and her family burst into
tears. Several jurors were crying.
Her sentence was mandatory: life
in prison without parole.
She was 22 years old.`
The appeal process is to begin in
several weeks when Auman's attorney is expected to file an opening
brief in the Colorado Court of Appeals. Only then will the public have
any indication what the strategy will be.
While the case has fascinated the
legal community, the prospect for overturning the conviction is hard
"It'll be a struggle in the
appeals court," Hartje said, "even though I think this conviction was
a very bizarre result if she was in fact in custody when this guy shot
the cop." Once a jury convicts someone, regardless of the facts of the
case, it's an uphill battle to reverse it, he said.
"It's not hopeless though," said
Kathleen Lord of the public defender's Office, who is handling the
Lord would not discuss the
strategy for Auman's appeal.
"You can't bring new evidence
in," she said. "You can bring new legal arguments to the table."
Usually, the procedure in the
appeals court is to allow each side 15 minutes to argue his case
before a judge. "Then it could be five weeks or it could be a year
before we get a ruling," Lord said.`
Auman has time.
The days and years stretch before
her in endless monotony. She counsels juvenile offenders as part of
the "Shape Up" program at the prison. She writes in her journal. She
"I will not stop fighting," she
said. "I won't give up until the day I die." At this point, death is
her only ticket out.
Tears well up in her eyes and she
looks away to compose herself. She dreams of walking out of the
prison, moving to Oregon to live in the woods and make stained glass
and never come back to Colorado again. It's the fantasy that gets her
through each day. She leans forward in the plastic visiting room chair
and confronts reality once more.
"If my appeals don't succeed,
then I guess this is it," she said. "This will be my life. This right
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
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
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
"No," she responds.
Is she talking to them because of
what the cop said to her?
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
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
"I held on to it for about three
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
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
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
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
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
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
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
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
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
During Lisl Auman's trial,
Cheever would admit that he had deliberately exploited her for sex and
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
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
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
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
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
"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."
"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
"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
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
"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
--Prosecutor Tim Twining at
"I have provided security for
that complex for approximately seven years."
--Officer Michael Gargaro,
"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
--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
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
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
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
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
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
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
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,
"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
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
"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
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
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:
--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
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
AUMAN v. PEOPLE
Lisl AUMAN, Petitioner, v. The PEOPLE of the State of Colorado,
March 28, 2005
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.
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
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
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
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
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
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
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;
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,
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
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
the statute upon which our General Assembly largely modeled section
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
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
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
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
(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
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
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
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
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
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
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
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
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
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
(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.
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
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
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
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
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
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
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
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
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.
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
(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
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
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
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
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
1. That the defendant
2. in the State of Colorado, at or about the date
and place charged,
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
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
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
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.
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.
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.
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
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.
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?
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).
§ 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
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).
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).
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).
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).
e.g., Coleman v. U.S., 295 F.2d 555 (D.C.Cir.1961).
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
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
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.
trial, Auman's expert testified that the high levels of
methamphetamines in Jaehnig's system would have made him aggressive
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
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.
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.
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
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).
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
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).
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.”
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).
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
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
Chief Justice MULLARKEY concurs in part and
dissents in part. Justice RICE and Justice COATS do not participate.