People v. Simien, (Colo.App. No. 80CA0052, November 19, 1981) (not selected for publication). Affirming in part and reversing in part, the Colorado Supreme Court held that the evidence, although insufficient to support the first degree burglary conviction, supported a conviction of the lesser included offense of attempted burglary, and therefore, the aggravated motor vehicle theft conviction must be reinstated. People v. Simien, 656 P.2d 698 (Colo. 1983). The matter is before us again on remand for consideration of other arguments raised by the defendant on appeal which were not previously considered, namely: (1) Whether the trailer was a "building" within the meaning of § 18-4-101(1), C.R.S. 1973 (1978 Repl. Vol. 8); (2) whether the trial court erred in failing to instruct the jury on complicity; (3) whether failure to give a "mere presence" instruction was erroneous; and (4) whether a mistrial should have been granted on the ground that the prosecutor's use of peremptory challenges denied the defendant a jury drawn from a representative cross-section of the community.
¶ 18 Our supreme court has held in a burglary case that the act of opening a trailer door that had been latched is insufficient to constitute an entry of the trailer. People v. Simien, 656 P.2d 698, 700 (Colo.1983). In Simien, the owner of a roofing company closed and latched a trailer full of roofing materials that was on a job site.
¶18 Our supreme court has held in a burglary case that the act of opening a trailer door that had been latched is insufficient to constitute an entry of the trailer. People v. Simien, 656 P.2d 698, 700 (Colo. 1983). In Simien, the owner of a roofing company closed and latched a trailer full of roofing materials that was on a job site.
A conviction for aggravated motor vehicle theft will be upheld when the evidence shows that a motor vehicle was used in the commission of a crime, including the use of such to flee the scene of the crime. See People v. Simien, 656 P.2d 698 (Colo. 1983). See also In re Gaspar D., 22 Cal.App.4th 166, 170, 27 Cal. Reptr. 2d 152, 154 (Cal. Dist. Ct. App. 1994)("use of the vehicle for transportation . . . away from the chosen crime scene" constitutes use of "a vehicle in the commission of a felony"); Langfield v. Department of Public Safety, 449 N.W.2d 738 (Minn.App. 1990); City of Worthington Police Department v. One 1988 Chevrolet Berreta, 516 N.W.2d 581, 584 (Minn.App. 1984)("A vehicle used to provide transportation . . . from the crime scene has been used to commit . . . the crime.").
See Peoplev. Young, 694 P.2d 841 (Colo. 1985); People v. Simien, 656 P.2d 698 (Colo. 1983). It is true, at least as a general rule, that a mere conspiracy or attempt that does not result in a completed act will normally not constitute the basis for a civil claim because, unless a completed act occurs, there will normally be no resulting damage.