Nunn v. People

• Decision Date: 24 January 1972
• Docket Number: No. 24324,24324
• Citation: Nunn v. People, 493 P.2d 6, 177 Colo. 87 (Colo. 1972)
• Parties: Billy Gene NUNN, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 6

493 P.2d 6

177 Colo. 87

Billy Gene NUNN, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 24324.

Supreme Court of Colorado, In Department.

Jan. 24, 1972.

Joseph G. Studholme, Stanley J. Walter, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., David A. Sorenson, Asst. Atty. Gen., James W. Creamer, Jr., Sp. Asst. Atty. Gen., Denver, for defendant in error.

HODGES, Justice.

Defendant Nunn was found guilty by a jury of burglary and theft. By writ of error, he urges reversal because allegedly the evidence was insufficient to sustain the conviction and because the court erred in giving an instruction on flight. Neither of these contentions are meritorious, and we therefore affirm the judgment of the trial court.

The evidence which the People introduced for the purpose of establishing the defendant's guilt is wholly circumstantial. During the nighttime, a police officer on routine patrol in a shopping center observed a car backed up to the curb in front of a men's clothing store. Upon approaching closer, the police officer noted that the glass had been broken out of the store door; that several men were carrying clothing from the store to the car; and that the back trunk of the car and its doors were open. The approaching police car was apparently observed by the culprits who jumped into the car which then sped away from the scene. A short distance away, the pursuing police officer was able to stop this car, at which time, three men jumped from it and fled. The police officer observed that one of the men was wearing bright green trousers. A large number of men's suits and other clothing items were found in the 1958 Plymouth car. These suits and clothing items were identified as having been stolen from the men's clothing store which had been burglarized.

About one hour later, another police officer noticed two men walking across the parking lot of the shopping center. He stopped them and questioned them concerning their presence in the shopping center at that time of night. One of the men was wearing bright green trousers and the arm of his sweater was soaked with, what appeared to be, blood. Also, dark red spots were observed on his green trousers. These two men were arrested by the police officer. One of them was the defendant Nunn, the wearer of the bright green trousers. The police officer who gave chase to the burglars' car and observed the three men fleeing from it after it had been stopped, testified that the green pants which the defendant was wearing appeared to be the same trousers which were worn by one of the fleeing culprits. It was also testified that at the time of the defendant's arrest, he had a cut above his right elbow which was bleeding. Blood spots were found on the rear seat of the car and on some of the stolen suits.

I.

The foregoing is a summary of the circumstantial evidence which the People rely upon to uphold the jury's verdicts of guilty to burglary and theft. The defendant states that this circumstantial evidence is insufficient as a matter of law, and that the trial court therefore erred in denying his motion for acquittal.

Where circumstantial evidence alone is relied upon for conviction, Colorado has consistently adhered to the generally accepted rule of law that a conviction can not be sustained if this evidence is consistent, upon any reasonable hypothesis, with the innocence of the accused. Pieramico v. People, Colo., 478 P.2d 304; Ziatz v. People, 171 Colo. 58, 465 P.2d 406; Maynes v. People, 169 Colo. 186, 454 P.2d 797; and Allison v. People, 109 Colo. 295, 125 P.2d 146. See also 23 C.J.S. Criminal Law § 907 c.

In Cobianchi v. People, 111 Colo. 298, 141 P.2d 688, it was held that a conviction cannot stand where the People's case was dependent solely upon circumstantial evidence which was consistent with guilt, but also was equally consistent with the innocence of the accused.

When the trial court denied the defendant's motion for acquittal, it, in effect, ruled that the circumstantial evidence presented by the People was entirely consistent with the defendant's guilt and that upon any reasonable hypothesis, this evidence was not also consistent with the defendant's...