Drahn v. People
| Decision Date | 29 March 1971 |
| Docket Number | No. 23401,23401 |
| Citation | 483 P.2d 209,174 Colo. 157 |
| Parties | Richard David DRAHN and Bruce Basil McDowell, Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Thomas K. Hudson, Alice Loveland, Denver, for Richard David drahn.
Martin, Brotzman, Caplan & Knapple, Gerald A. Caplan, G. Lane Earnest, Boulder, for Bruce Basil McDowell.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Robert L. Hoecker, Asst. Atty. Gen., Denver, for defendant in error.
This writ of error is brought to review the conviction of plaintiffs in error for larceny and conspiracy to commit larceny on jury verdicts in the Boulder County District Court. We refer to plaintiffs in error herein by their names or as defendants.
Inasmuch as the convictions were based on circumstantial evidence, it is necessary to detail the facts as shown by the record of evidence presented at trial.
Richard David Drahn and Bruce Basil McDowell were senior students at the University of Colorado. Both had scholarships. Both were members of the varsity wrestling team. Drahn had injured his left shoulder and on the day of the events hereinafter related was wearing a tight sling which suspended and covered his entire left arm. He wore a heavy-weight wool shirt. McDowell was wearing a ski parka.
On the morning of February 20, 1967, Kenneth Raper, the prosecutor's chief witness, was in the discount store in Boulder operated by Gibson Products Company, Inc. Raper was in the sporting goods department in the rear of the store inspecting a Redfield telescopic gunsight (scope). He did not purchase it and the clerk returned it to its box and placed the box in the unlocked display case.
McDowell and Drahn, who that morning had been engaged in loading shells at McDowell's home preparatory to a hunting trip, ran out of bullets. After lunch on their way to wrestling practice they stopped at Gibson's to purchase the needed bullets. They proceeded to the gun section of the sporting goods department, where they waited for a sales clerk. None appeared and Drahn wandered into the automotive department, eventually returning to the sporting goods department. During this interim McDowell had been looking at various articles of merchandise on the counter.
By coincidence Kenneth Raper had returned to Gibson's and was also in the sporting goods department, also intent on purchasing ammunition, and also waiting for a sales clerk. He was at the next counter over from where McDowell was waiting. At approximately the same time Drahn returned to where McDowell was standing, Raper testified that he noticed McDowell had the scope in his left hand. McDowell stepped towards Raper and according to Raper inquired 'if they had to pay for the scope here, or could they go up front?' Raper replied 'they could go up front and pay for its since the clerk was not there at the time.' Raper testified McDowell and Drahn turned and started walking up the aisle, McDowell holding the scope in his left hand. Raper then related that at the time McDowell and Drahn turned and started toward the aisle his attention was diverted to an employee and friend of his by the name of Van Teager who had been stocking the shelves. Raper stated to Teager: Raper and Teager turned toward the aisle and observed McDowell and Drahn about three-fourths of the way up the aisle walking towards the check-stands area. Both Raper and Teager admitted they could not see McDowell or Drahn carrying the scope or the box as they proceeded up the aisle.
McDowell and Drahn proceeded through an unmanned check-stand to the exit and outside the store. Teager then pursued them, stopping them a few feet from the doors. He asked them if they had taken the scope, to which they replied they had not. He watched them as they got into McDowell's jeep and drove away.
Teager testified he did not at any time see the scope or box on the persons of either McDowell or Drahn as they walked up the aisle or as he confronted them outside the store.
Upon returning to the store, Teager and other employees searched for the scope, which was never located.
On cross-examination, Raper clarified his testimony to the effect that what he saw in McDowell's left hand was not actually the scope but rather the scope box. The prosecution had marked as exhibit A, a scope similar to that which was missing from the store, and as exhibit B the box in which the scope was contained. These, of course, were both viewed by the jury; only the scope was offered and admitted into evidence. Both have been transmitted here as a part of the record. The scope measures 12 1/2 inches long and 2 inches in diameter. The scope box measures 13 1/2 inches long by 2 1/2 inches square.
Later that day, in the early evening, McDowell and Drahn returned to Gibson's to talk with Teager. McDowell stated to him: 'Would we have come back if we had stolen a scope?' To which Teager replied: 'This is just a way of proving to us that you didn't take it but you still might have.'
The foregoing summary was the entire case of the People. Defendants' motion for acquittal was denied. Both defendants testified, and consistently denied the accusations at all stages of the investigation and in court.
McDowell admitted having the scope box in his hand. However, his version of the brief conversation with Raper was significantly different from Raper's. He testified he asked Raper: 'Do you think we could pay for something up front if we took it from back here (referring to bullets)?' To which Raper replied: 'I don't know.' McDowell then turned around back toward the aisle, placed the box on the counter and suggested to Drahn: 'I think maybe we better get to wrestling practice.' They then commenced walking up the aisle toward the front of the store.
Three character witnesses testified to the good character of the defendants. Both McDowell and Drahn readily consented to a search of their...
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Macias v. People, 23844
...by the evidence be consistent with his guilt and exclude every reasonable hypothesis of his innocence. * * *' See also Drahn v. People, Colo., 483 P.2d 209, announced March 29, Since the evidence in this case is wholly circumstantial and did not exclude every reasonable hypothesis of defend......
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People v. Triggs, 26165
...in denying the defendant's motion for a judgment of acquittal. Solis v. People, 175 Colo. 127, 485 P.2d 903 (1971); Drahn v. People, 174 Colo. 157, 483 P.2d 209 (1971), and Stevenson v. People, The judgment is reversed. ...