Peo v. Denny

23CA0638 Peo v Denny 02-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0638
El Paso County District Court No. 21CR3232
Honorable Jessica L. Curtis, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daniel Lucky Denny,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE KUHN
Harris and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 13, 2025

Philip J. Weiser, Attorney General, Lauren Davison, Assistant Attorney
General, Abigail M. Armstrong, Assistant Attorney General Fellow, Denver,
Colorado, for Plaintiff-Appellee

Joseph Chase, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Daniel Lucky Denny, appeals his convictions for

second degree kidnapping, false imprisonment, obstruction of

telephone service, third degree assault, and harassment. We affirm.

I. Background

¶2 In June 2021, Denny and his then girlfriend, the victim, were

alone in her home. That night, Denny accused her of cheating on

him, and an argument ensued. It escalated to the point that the

victim called 911 and tried to escape the home. Denny stopped her

as she got to the front door, grabbed her, and moved her across the

living room to the ground before taking her to the bedroom and

keeping her there. The victim’s home had an internal camera facing

the living room and the front door. This camera recorded audio and

video of the majority of the incident, and the prosecution presented

the recordings as evidence at trial.

¶3 The police responded to the 911 call. During that visit, the

victim did not report the incident between her and Denny. She told

the police that two other people were in the home and had an

argument before she kicked them out. However, a couple of days

later, she contacted the police again, described the incident, and

gave them her video and audio evidence.

1
¶4 The prosecution charged Denny with second degree

kidnapping, obstruction of telephone or telegraph service, assault in

the third degree, and harassment. See § 18-3-302(1), C.R.S. 2024;

§ 18-9-306.5, C.R.S. 2024; § 18-3-204(1)(a), C.R.S. 2024;

§ 18-9-111(1)(a), C.R.S. 2024. The prosecution also charged Denny

with six counts as a habitual criminal under section 18-1.3-801,

C.R.S. 2024.

¶5 During voir dire at his second trial,1 several jurors expressed

their feelings about domestic violence, shared their knowledge

about domestic violence and the criminal justice system, and

questioned their ability to be impartial. These jurors were not

empaneled, and the trial proceeded.

¶6 The jury returned a guilty verdict on all charges. A couple of

months after trial — at a conflict hearing — Denny, citing People v.

Joyce, 68 P.3d 521 (Colo. App. 2002), and People v. Viburg, 2021

CO 81M, argued that because he was convicted of false

imprisonment, a lesser included offense of second degree

kidnapping, he was automatically acquitted of the greater offense of

1 Denny’s first trial ended in a mistrial due to an issue with the jury

pool.

2
second degree kidnapping itself. He also argued that the jury

instructions were in error.

¶7 The court denied Denny’s request and determined that any

prejudice arising from the jury instruction issue would be cured at

sentencing when the court would merge the two relevant

convictions. At the sentencing hearing, the court found that Denny

had been convicted of four of the six habitual offender predicate

counts and adjudged him a habitual criminal. As promised, the

court also merged the conviction for false imprisonment into that

for second degree kidnapping. The court sentenced Denny to a

total of twenty-four years in prison.

II. Analysis

¶8 Denny contends that the trial court reversibly erred because

(1) a mistrial was required given that multiple jurors’ statements

during voir dire prejudiced the jury pool, which was not cured;

(2) there was insufficient evidence to support his conviction for

second degree kidnapping; and (3) the jury instructions were

incorrect. We address each contention in turn.

3
A. Whether Statements by Prospective Jurors During Voir Dire
Required the Trial Court to Declare a Mistrial

¶9 Denny contends that the trial court erred by (1) denying his

request for a mistrial and (2) failing to sua sponte provide a curative

instruction. We disagree.

1. Standard of Review and Preservation

¶ 10 Denny challenges the trial court’s denial of his motions for

mistrial. A trial court has broad discretion to grant or deny a

mistrial, and its decision will not be disturbed on appeal absent an

abuse of discretion and resulting prejudice to the defendant. People

v. Mersman, 148 P.3d 199, 203 (Colo. App. 2006). A trial court

abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair. Id. When preserved, “[a]n error in a trial

court’s ruling on a motion for mistrial is subject to harmless error

review.” People v. Pernell, 2014 COA 157, ¶ 26, aff’d on other

grounds, 2018 CO 13.

¶ 11 Denny also contends the trial court erred by failing to sua

sponte give a curative instruction. Inherent in this argument is the

acknowledgment that Denny did not raise this issue before the trial

court or request a curative instruction. Thus, this argument is

4
unpreserved. See People v. Howard, 89 P.3d 441, 446 (Colo. App.

2003).

¶ 12 “We review unpreserved claims of error for plain error.” People

v. Van Meter, 2018 COA 13, ¶ 26. “Plain error addresses error that

is obvious and substantial and that so undermines the

fundamental fairness of the trial itself as to cast serious doubt on

the reliability of the judgment of conviction.” People v. Acosta, 2014

COA 82, ¶ 77 (quoting People v. Herdman, 2012 COA 89, ¶ 16).

2. Applicable Law

¶ 13 Throughout voir dire, one or more prospective jurors may

make statements that are potentially prejudicial to the defendant.

For example, a juror statement might “constitute an opinion

concerning the guilt or innocence of the defendant[], . . . [or] relate

to knowledge about the facts, parties, or witnesses involved in th[e]

case.” Vititoe v. Rocky Mountain Pavement Maint., Inc., 2015 COA

82, ¶ 27 (quoting United States v. Tegzes, 715 F.2d 505, 508 (11th

Cir. 1983)); see also Mersman, 148 P.3d at 203 (“During voir dire,

the prospective juror stated that she knew G.D., [the defendant’s]

only witness. When asked in front of the entire panel about the

5
nature of her acquaintance with G.D., the prospective juror replied

that her brother had known G.D. “through the drug scene.”).

¶ 14 These types of statements may require the court to canvass

the jury and give curative instructions. See Mersman, 148 P.3d at

203. And “[g]enerally, curative instructions issued after a

prejudicial statement is made will remedy any harm caused by the

statement.”2 Id.

3. The Potential Jurors’ Statements

¶ 15 During voir dire, the trial court informed the jury that this

case involved allegations of domestic violence and asked the jurors

whether there was “anything about the nature of the case that

would prevent any of [them] from being fair and impartial in

deciding this case based only on the evidence?” Several prospective

jurors, none of whom were empaneled, made statements about the

cycle of domestic violence and their personal or work experience

with domestic violence.

2 Though “a mistrial is warranted . . . where the prejudice to the

accused is too substantial to be remedied by other means,” People
v. Mersman, 148 P.3d 199, 203 (Colo. App. 2006), Denny’s counsel
conceded during oral argument that the comments in this case did
not rise to that level.

6
¶ 16 Juror L informed the court of her thoughts:

• She had years of experience in counseling and court

advocacy for survivors of domestic violence and her

experience would make her impartiality questionable.

• Regarding domestic violence, “[t]he worst hurt no one

ever sees. It’s the emotional abuse that no one ever sees.

That is the most destructive.”

• She stated that domestic violence survivors act in ways

that might seem counterintuitive to an observer. But in

response to the prosecutor’s question about how those

actions manifest, she said, “I think there [are] as many

ways as there are people. I think every survivor reacts

and manages their situation differently. So I’m not sure

you can paint such a broad stroke on that one.”

• “Most people don’t go to court, and . . . in ten minutes, I

could give everyone here the bullet points of the cycle of

abuse that happens, because it’s not ever a one-time

thing and it never doesn’t escalate.”

¶ 17 Juror P likewise informed the court of his experiences:

• He agreed with Juror L.

7
• He was an EMT who answered many domestic violence

calls and stated that survivors would often appear

nonchalant after an assault.

¶ 18 Juror D also shared her experiences with the court:

• She had personal experience with domestic abuse.

• She didn’t think she could be impartial or put that

experience aside.

¶ 19 And as voir dire progressed Juror D became very emotional,

and the court dismissed her and canvassed the jurors sitting near

her.

¶ 20 When it was his turn, Juror T said,

I honestly don’t think I can be impartial. It’s,
you know, . . . just the way I am. . . . When I
walked in the courtroom I already -- I was able
to pick the crime and just -- you know, I
honestly don’t think I can be impartial. . . .
I’ve been on both sides of the law. I’ve seen
why people ask for jury trials. I’ve seen -- and
I don’t know -- just from where I’ve been years
ago, I don’t know one jury trial where they
were actually innocent. They were just trying
to find a loophole.

¶ 21 When the court asked whether he could afford Denny the

presumption of innocence, Juror T replied, “I really don’t. Like I

8
said, I walked in the courtroom and I thought of two charges. I was

right with one.”

¶ 22 Later during voir dire, when the prosecution returned to

question Juror T again, he said,

Like I say, when I walked in the courtroom, I
looked at the defense and I already picked out
what crime it was. And in my -- you know, I
was raised around domestic violence. I’ve been
convicted of domestic violence. I’ve seen it. It
just doesn’t happen one time. It just doesn’t,
boom, wind up in a courtroom. . . . Am I free
to say what I feel?

¶ 23 The court instructed the prosecutor to move on before Juror T

made additional statements.

4. The Trial Court’s Lack of a Sua Sponte
Curative Instruction is Not Plain Error

¶ 24 Denny argues in his briefing that a mistrial was warranted

because during voir dire, the prospective jurors made comments

that prejudiced the remaining jurors and constituted improper

expert testimony.3 However, he also agrees that a mistrial was not

3 The People contend that Denny did not preserve his argument

regarding some, but not all, of the prospective jurors. We decline to
address the two groups of prospective jurors separately because
Denny’s challenge fails regardless of preservation.

9
required in this case and that the prejudice could have been cured

through canvassing or a limiting instruction.

¶ 25 Denny’s primary complaint is that several prospective jurors,

none of whom were empaneled, made statements about the cycle of

domestic violence and their personal or work experience with

domestic violence. For example, Juror L’s statements touched on

unseen emotional abuse and stated that domestic violence is “not

ever a one-time thing and it never doesn’t escalate.” Additionally,

Denny’s attorney told the trial court that Juror D became emotional

and “sa[id] things like ‘Mr. Denny doesn’t have a chance at trial.’”

¶ 26 “When a prospective juror makes a potentially prejudicial

statement during voir dire, the trial court may issue a curative

instruction; canvass the jury; or declare a mistrial.” Vititoe, ¶ 20

(citing Mersman, 148 P.3d at 203-04). Denny acknowledges that

the jurors’ statements were not so prejudicial that they could not be

cured through canvassing and curative instructions. Instead, he

contends that a mistrial was necessary only because the court

failed to adequately canvass the jury or give any instructions. But

“a mistrial is the most drastic of remedies.” People v. Abbott, 690

P.2d 1263, 1269 (Colo. 1984). And “a mistrial is only warranted

10
where the prejudice to the accused is too substantial to be remedied

by other means.” Id.

¶ 27 These other means were available and, in fact, utilized when

the court canvassed the jurors sitting near Juror D after her

statements were brought to its attention. After completing its

canvass, the trial court found that Juror D’s emotional reaction,

and alleged statement regarding guilt, did not have an impact on

the jurors near her.

¶ 28 True, the trial court did not canvass or give curative

instructions after comments by other jurors, such as Juror L. But

these are remedies that Denny had to request. See Mersman, 148

P.3d at 204 (concluding a trial court did not commit plain error by

not sua sponte giving a curative instruction or canvassing the

jurors). He did not do so.

¶ 29 Thus, there were other means that could have remedied any

prejudice caused by the prospective jurors’ statements.

Accordingly, we discern no abuse of discretion in the trial court’s

denial of Denny’s motion for mistrial. See id. And because “a trial

court does not commit plain error if it does not give a curative

instruction sua sponte,” id. at 203, the trial court did not plainly err

11
by not sua sponte giving such an instruction here. See also People

v. Valencia-Alvarez, 101 P.3d 1112, 1117 (Colo. App. 2004); People

v. Ned, 923 P.2d 271, 275-76 (Colo. App. 1996); People v. Pennese,

830 P.2d 1085, 1089 (Colo. App. 1991).

B. Whether There is Sufficient Evidence to Support Denny’s
Conviction for Second Degree Kidnapping

¶ 30 Denny next contends that the prosecution failed to present

sufficient evidence to sustain his conviction for second degree

kidnapping. We disagree.

1. Applicable Law and Standard of Review

¶ 31 “[T]he prosecution, when charging a defendant with second

degree kidnapping, must convince the jury beyond a reasonable

doubt that the defendant (1) seized the victim and (2) carried the

victim ‘from one place to another.’” Garcia v. People, 2022 CO 6,

¶ 20 (quoting § 18-3-302(1), C.R.S. 2021).4

4 Denny’s actions occurred before the second degree kidnapping

statute was amended in 2023. We apply the version of the statute
in effect at the time of his actions. See People v. Di Asio, 2022 COA
140, ¶ 15 (“Absent express legislative intent to the contrary, we
presume a statute only operates prospectively, meaning it solely
applies to events occurring after its effective date.”). As relevant
here, increasing an individual’s risk of harm was not an element of
second degree kidnapping at the time of Denny’s offense. Compare
§ 18-3-302(1), C.R.S. 2022, with § 18-3-302(1), C.R.S. 2024.

12
¶ 32 We review the record de novo to determine whether the

prosecution presented sufficient evidence to sustain a conviction.

Maestas v. People, 2019 CO 45, ¶ 13. In doing so, we employ a

substantial evidence test, asking “whether the evidence, ‘viewed as

a whole and in the light most favorable to the prosecution, is

substantial and sufficient to support a conclusion by a reasonable

mind that the defendant is guilty of the charge beyond a reasonable

doubt.’” Gorostieta v. People, 2022 CO 41, ¶ 16 (quoting People v.

Harrison, 2020 CO 57, ¶ 32). “[W]e must ‘give the prosecution the

benefit of every reasonable inference which might be fairly drawn

from the evidence.’ It does not matter that we might have reached a

different conclusion were we the triers of fact.” Id. at ¶ 17 (quoting

Harrison, ¶ 32).

2. There is Sufficient Evidence to
Support the Kidnapping Conviction

¶ 33 Denny argues that the prosecution failed to prove the

kidnapping charge because he did not seize and carry the victim;

alternatively, even if he did seize and carry her, he argues that the

movement was not from one place to another.

13
¶ 34 The prosecution presented the jury with video and audio

evidence of the incident — taken from the camera inside the home

— and testimony from the responding officers and the victim.

Viewing this evidence in the light most favorable to the prosecution

and giving the prosecution the benefit of every reasonable inference

that might be fairly drawn from it, see Gorostieta, ¶¶ 16-17, the

evidence supports the jury’s determination.

¶ 35 First, the video recording includes audio of Denny and the

victim arguing off camera about alleged infidelity. The two argue as

they walk into frame, across the living room, and then move off

camera again into the kitchen. In the kitchen, the victim denies the

infidelity and yells at him to let her out of the kitchen area, to which

he replies, “You want to fuck with me . . . , stop it, you’re not going

nowhere.”

¶ 36 The victim makes a phone call, and Denny asks who she is

calling before realizing that it is 911. She then moves back into the

living room, phone in hand, and hurries toward the front door of the

residence. Denny chases after her. Just as the victim reaches the

door to escape, he grabs her from behind, dragging her away from

the door and across the room while she yells, “Let me go!” He then

14
tackles her to the floor on the other side of the living room, grabs

her cell phone out of her hands, and keeps it from her.

¶ 37 The victim starts to crawl away from him and out of the living

room, but Denny quickly follows, appearing to grab her, while she

repeats, “Let me go,” her voice escalating toward screams. At trial,

the victim testified that after she tried to crawl away, Denny

“grabbed [her] again and took [her] into the bedroom and held [her]

on the floor up against the back of the bed.”

¶ 38 The evidence presented to the jury supports a finding that

Denny seized the victim when he grabbed her, dragged her from the

door, and tackled her to the ground before grabbing her again. See

Garcia, ¶ 23 (defining “seize” as “to take possession of” or “to take

hold of” and defining “possession” as “the act of having or taking

into control” before determining that second degree kidnapping

statute requires that a “defendant knowingly took possession of or

had control over the victim”) (citations omitted).

¶ 39 Further, the evidence presented supports a finding that the

asportation element was satisfied — that Denny carried the victim

from one place to another. Denny moved the victim from one place

to another when he dragged her away from the door, cutting off her

15
means of escape, and across the living room, where he tackled her

to the floor — placing his body between her and the door — before

moving her into the bedroom and containing her there.

¶ 40 Relying on People v. Bell, 809 P.2d 1026, 1033 (Colo. App.

1990), Denny argues that because this was a movement within a

home, it was insubstantial and cannot support a kidnapping

charge.5 But Bell does not support Denny’s argument.

¶ 41 The Bell division observed that “[t]he movement of the victim

necessary to sustain a second degree kidnapping conviction need

not be substantial.” Id. (emphasis added). True, in concluding that

the prosecution failed to present sufficient evidence supporting the

asportation element of the charge, the division also observed that

the movement of the victim within his own house was insubstantial

under the facts of that case. Id. But the division did not create a

5 When People v. Bell, 809 P.2d 1026, 1033 (Colo. App. 1990), was

decided, the asportation element required a showing of “a
demonstrable increase in risk of harm to the victim.” Apodaca v.
People, 712 P.2d 467, 475 (Colo. 1985). At the time of Denny’s
actions and trial, however, an increase in the risk of harm was not
a required finding but instead a factor that may be considered in
reviewing a sufficiency of the evidence challenge. See Garcia v.
People, 2022 CO 6, ¶ 42.

16
blanket rule that movement within a home can never be substantial

or that it cannot support a kidnapping charge. Id.

¶ 42 Further, the supreme court has made this point explicitly. In

Garcia, the court addressed whether a trial court erred by not

including whether movement “substantially increased the risk of

harm to the victim” in a jury instruction. Id. at ¶ 41. The court

said, “As we have noted before, and now reiterate, that standard is

not an element of second degree kidnapping.” Id.6 Instead, it is “a

factor that appellate courts may consider when evaluating a

challenge to the sufficiency of the evidence in a second degree

kidnapping case.” Id. at ¶ 42. That is, “when the issue is whether

there was sufficient evidence to show that the victim was moved

from one place to another, a reviewing court may consider whether

that movement resulted in a ‘demonstrable increase in risk of harm

to the victim.’” Id. (quoting Apodaca v. People, 712 P.2d 467, 475

(Colo. 1985)).

6 We note that after the supreme court issued Garcia, the General

Assembly amended the second degree kidnapping statute to include
“increases the risk of harm” as an element of the crime. See
§ 18-3-302(1), C.R.S. 2024; Ch. 298, sec. 6, § 18-3-302, 2023 Colo.
Sess. Laws 1784. But as we stated above, that amendment does
not apply to Denny’s case.

17
¶ 43 The video and testimonial evidence presented to the jury

paints a clear picture here. Denny dragged the victim away from

the front door — her clear means of escape — before tackling her

and taking her phone. He then moved her to the bedroom, where

he held her down, trapping her inside. His actions prevented her

from escaping and calling for help. This increased the victim’s risk

of harm and supports a finding of asportation. Cf. Bell, 809 P.2d at

1033 (determining that the risk of harm was not substantially

increased when a victim was moved to a room with an escape route,

left alone, and left with a phone to dial 911).

¶ 44 We conclude that a reasonable juror could find on this record

that Denny seized and carried the victim from one place to another,

supporting his conviction for second degree kidnapping. Thus,

Denny’s sufficiency challenge fails.

C. Whether the Jury Instructions Require Reversal

¶ 45 Denny contends that the trial court erred when it included the

elemental instruction on false imprisonment, a lesser included

offense of second degree kidnapping, but didn’t instruct the jury

that a defendant cannot be convicted of both a greater and lesser

included offense. We perceive no reversible error.

18
1. Standard of Review and Applicable Law

¶ 46 We review jury instructions de novo to determine whether, as

a whole, they accurately informed the jury of the governing law.

Riley v. People, 266 P.3d 1089, 1092-93 (Colo. 2011). If we

determine that an elemental jury instruction was incorrect or

misleading, we will review the error under the constitutional

harmless error standard as long as the objecting party properly

preserved the issue. See Garcia, ¶ 18. However, “[w]hen a

defendant fails to object to a trial court’s jury instructions, the

instructions are reviewed for plain error.” Hoggard v. People, 2020

CO 54, ¶ 13. An error is plain when it is “both obvious and

substantial.” Id. An error is substantial when it “so undermine[d]

the fundamental fairness of the trial itself as to cast serious doubt

on the reliability of the judgment of conviction.” Id. (quoting People

v. Weinreich, 119 P.3d 1073, 1078 (Colo. 2005)).

¶ 47 “Waiver occurs when a party intentionally relinquishes a

known right.” People v. Geisick, 2016 COA 113, ¶ 16. Put another

way, a party waives arguments “[w]hen [the] party specifically

removes issues from a trial court’s consideration.” Id.

19
¶ 48 The doctrine of invited error prevents a party from complaining

on appeal of an error that the party has invited or injected into the

case; the party must abide the consequences of their acts. People v.

Rediger, 2018 CO 32, ¶ 34. Put in the context before us, “under the

invited error doctrine, we will not review alleged errors in jury

instructions drafted and tendered by the now objecting party.” Day

v. Johnson, 255 P.3d 1064, 1067-68 (Colo. 2011).

2. Preservation, Waiver, and Invited Error

¶ 49 The People argue that Denny failed to preserve, waived, or

invited any error arising from this issue. We agree that this issue is

not preserved but disagree that it was waived or invited.

¶ 50 “[T]he ‘purpose of an objection is to provide the court with an

opportunity to cure the defect at a time when the error may readily

be corrected.’” Forgette v. People, 2023 CO 4, ¶ 22 (quoting People

v. Jimenez, 434 N.Y.S.2d 251, 252 (App. Div. 1981)). A defendant

doesn’t preserve an objection to the trial court’s inadvertent

omission of a jury instruction unless the defendant timely objects,

affording the court an opportunity to remedy the omission. See id.

(citing Jimenez, 434 N.Y.S.2d at 252).

20
¶ 51 At the close of the trial, the court accepted Denny’s proposed

jury instruction on false imprisonment. After the jury rendered its

verdict and was excused, Denny’s counsel stated that she believed

false imprisonment was a lesser included offense of second degree

kidnapping, to which the prosecution incorrectly disagreed. The

court said that it would address this issue at sentencing.

¶ 52 Approximately two months later, the court held a conflict

hearing where Denny, himself, objected to the fact that there was

no jury instruction that a defendant couldn’t be convicted of both a

greater and lesser included offense.

¶ 53 This objection, raised for the first time at the conflict hearing,

came two months too late. By failing to object before the end of his

trial, Denny did not raise a timely objection that would have

afforded the court an opportunity to remedy the omission. See

Forgette, ¶ 22. Thus, this issue is unpreserved, and we review it for

plain error. See Hoggard, ¶ 13.

¶ 54 Conversely, we do not agree that this issue was waived or that

error was invited. The People argue that defense counsel was aware

all along that false imprisonment was a lesser included offense and

21
made a strategic choice not to contemporaneously raise the issue.

We first address waiver before turning to invited error.

¶ 55 Waiver is an intentional act. See Rediger, ¶ 39. “We ‘do not

presume acquiescence in the loss of fundamental constitutional

rights, and therefore indulge every reasonable presumption against

waiver.’” Id. (quoting People v. Curtis, 681 P.2d 504, 514 (Colo.

1984)). During the conflict hearing, Denny testified that at trial, he

asked his counsel about an instruction regarding false

imprisonment as a lesser included offense and that his counsel told

him that “false imprisonment [was] a [lesser] non-included offense.”

However, at the conflict hearing, defense counsel said, “I agree with

Mr. Denny that false imprisonment is a lesser included offense. I

did not think it was ripe to make that argument until sentencing.”

¶ 56 Denny’s counsel’s statements do not reflect a knowing or

intentional relinquishment of the right to request the omitted jury

instruction. Regardless of whether counsel believed that false

imprisonment was a lesser included offense or that the issue was

not yet ripe, we see little strategic advantage in omitting the

instruction. As the People note on appeal, defense counsel’s closing

argument focused on why the jury, if it chose to convict on

22
anything, should only convict on false imprisonment. The omitted

instruction would have only strengthened this argument. Under

these circumstances, the failure to request the instruction was an

omission or oversight. See People v. Gross, 2012 CO 60M, ¶ 16

(noting that counsel’s failure to request a jury instruction where

there was no strategic advantage “was not a strategic decision but

rather was an oversight or inadvertent omission”). Thus, this issue

was not waived.

¶ 57 Likewise, “[i]nvited error is a narrow doctrine and applies to

errors in trial strategy but not to errors that result from oversight.”

Rediger, ¶ 34. The invited error doctrine is inapplicable here for the

same reasons the issue was not waived.

¶ 58 We now turn to the merits of Denny’s instructional challenge,

reviewing for plain error.

3. The Lack of Additional Jury Instruction Didn’t
Undermine the Fundamental Fairness of Denny’s Trial

¶ 59 It is settled that “false imprisonment is a lesser included

offense of second degree kidnapping.” Joyce, 68 P.3d at 525; see

also People v. Williams, 736 P.2d 1229, 1232 (Colo. App. 1986);

People v. Arispe, 555 P.2d 525, 527 (Colo. 1976). “And a defendant

23
cannot ‘be made to suffer simultaneous convictions for greater and

lesser included offenses.’” Viburg, ¶ 21 (quoting People v. Rock,

2017 CO 84, ¶ 11).

¶ 60 Denny argues, citing Viburg, that had the jury been properly

instructed, the jurors would have “known to consider the charges

together” and they would not have convicted him on both charges.

Further, he asserts that it is speculative to assume that they would

have reached the same outcome.7 Denny contends that because

there was not clear evidence of kidnapping and because the jury

asked the trial court about the difference between the two charges,

reversal is required. We are not persuaded.

¶ 61 Denny’s argument that the jury would have only convicted of

the lesser included charge if it had been instructed to pick between

7 We note that the facts and criminal charges before us are distinct

from those in People v. Viburg, where the supreme court considered
whether “double jeopardy bar[red the defendant’s] retrial for felony
DUI because he already [stood] convicted of a lesser included
offense.” 2021 CO 81M, ¶ 20. However, here we consider
whether — without an instruction to the contrary — a jury’s
conviction of both a greater and lesser included offense undermined
the fundamental fairness of Denny’s trial. Viburg’s statement that
“a conviction of a lesser included offense would generally mean an
acquittal on the greater” is inapplicable to our precise factual
scenario. Id. at ¶ 21.

24
that charge and second degree kidnapping is speculative at best.

The jury convicted Denny beyond a reasonable doubt of all elements

of both charged crimes. It was properly instructed on the burden of

proof and the elements of second degree kidnapping and false

imprisonment.

¶ 62 Because false imprisonment is a lesser included offense of

second degree kidnapping, the elements of second degree

kidnapping necessarily includes all the elements of false

imprisonment. See Reyna-Abarca v. People, 2017 CO 15, ¶ 64

(“[W]e hold that an offense is a lesser included offense of another

offense if the elements of the lesser offense are a subset of the

elements of the greater offense, such that the lesser offense

contains only elements that are also included in the elements of the

greater offense.”). The requirement that the defendant seize and

carry the victim from one place to another is the distinguishing

element between second degree kidnapping and false imprisonment.

See Arispe, 555 P.2d at 527 (“The element contained in second

degree kidnapping and not contained in false imprisonment is that

of transportation of the victim.”).

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¶ 63 The jury here convicted Denny of both crimes. In doing so, it

found that he had committed all of the elements of second degree

kidnapping, including seizing and carrying the victim from one

place to another. Denny provides us with no compelling reason

why the jury would have concluded that he was not guilty of second

degree kidnapping if it were forced to choose between the two

crimes.

¶ 64 The only thing Denny offers in support of this argument is an

expansion of his earlier sufficiency of the evidence challenge by

again asserting the seizure and carry element was not proved. But

as we note above, there is ample evidence upon which the jury

could conclude that this seizure and carrying occurred. And having

already determined that sufficient evidence supported the jury’s

conclusion, we will not reweigh that evidence now. See People v.

Strickler, 2022 COA 1, ¶ 11 (noting that an appellate court “may not

reweigh the evidence or substitute our judgment for that of the

jury”).

¶ 65 For an error to be substantial, it “must [have] ‘so undermine[d]

the fundamental fairness of the trial itself as to cast serious doubt

on the reliability of the judgment of conviction.’” Hoggard, ¶ 13

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(quoting Weinreich, 119 P.3d at 1078). Under these circumstances,

we conclude that any alleged error in the instructions did not affect

the fundamental fairness of Denny’s trial and was therefore not

plain.

¶ 66 Further, the outcome of the trial was that the jury rendered

verdicts against Denny on both charges. But Denny is not entitled

to be free of a jury verdict on two crimes arising from the same

conduct. He is only entitled to be free of “multiple punishments in

the form of two convictions for the same conduct when the lesser

offense is included in the greater offense,” unless the General

Assembly specifically provides otherwise. Whiteaker v. People, 2024

CO 25, ¶ 10. When the trial court merges multiple convictions

before sentencing, multiple punishments for multiplicitous

convictions are not imposed. See People v. Rhea, 2014 COA 60,

¶ 19 (“[A]ny double jeopardy concerns arising from multiplicitous

charges and convictions were cured by merger at sentencing . . . .”).

¶ 67 Thus, the trial court did not plainly err by not providing an

additional instruction, and it appropriately resolved any

constitutional concerns with the verdict by merging the convictions.

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III. Disposition

¶ 68 The judgment is affirmed.

JUDGE HARRIS and JUDGE YUN concur.

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