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People v. Gregor12/21/2000
e).
Consequently, the trial court did not err in failing to define "operate" as requiring actual movement of the vehicle. Our rejection of defendant's contention in this regard also negates his assertion that the prosecution failed to prove every element of the offense.
III. Due Process
Defendant argues that the trial court violated his due process rights when it instructed the jury that it was required to find that defendant was in "actual physical control" of the motor vehicle by only a "totality of the circumstances" rather than "beyond a reasonable doubt." In addition, defendant argues that the trial court violated his due process rights when it provided the jury with an instruction listing factors to consider when determining if he was in "actual physical control" of the motor vehicle. We disagree.
Under the doctrine of invited error, a party may not complain on appeal of an error that he or she has invited or injected into the case; he or she must abide the consequences of his or her acts. People v. Zapata, 779 P.2d 1307 (Colo. 1989).
Here, defendant not only consented to the use of the three jury instructions that he now claims violated his due process rights; he suggested adding the words "or drove" to the instruction concerning the DARP statute. As noted above, that statute only requires a finding that a defendant "operate" a motor vehicle. Had defendant not so requested, the court would have been able to instruct the jury without using the phrase "actual physical control" to which defendant now objects. Furthermore, defendant did not object to the instruction defining the term "drove" as requiring "actual physical control of a motor vehicle . . . to be decided by a totality of the circumstances." See People v. Swain, 959 P.2d 426 (Colo. 1997) (defining the term "drive" as requiring "actual physical control" of a vehicle as decided by a totality of the circumstances).
Likewise, defendant consented to the instruction listing factors that the jury could consider when determining whether defendant was in "actual physical control" of the vehicle.
Thus, defendant's affirmative proposal with respect to one instruction and acquiescence in two others, which related directly to the first instruction, led to invited error here. Accordingly, the doctrine of invited error precludes defendant from challenging the instructions to which he expressly consented at trial
IV. Void for Vagueness
Defendant finally contends that if we conclude that "actual physical control" defines the term "operate" in the DARP statute, then the trial court's definition of "actual physical control" in the jury instructions rendered the DARP statute, as applied, unconstitutionally void for vagueness. We disagree.
Our determination that defendant invited any error resulting from his proposed jury instruction extends to the issue of whether the court's instruction defining "drove" as "actual physical control" renders the DARP statue unconstitutionally void for vagueness. But for defendant's urging that the jury be instructed as to the term "drove," no instruction containing the phrase "actual physical control" would have been necessary, nor would the court have needed to define "drove" using the phrase "actual physical control." Therefore any error was invited. See People v. Zapata, supra.
Judgment affirmed.
JUDGE MARQUEZ and JUDGE CASEBOLT concur.
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