People v. Austin
| Decision Date | 17 June 1974 |
| Docket Number | No. 25825,25825 |
| Citation | 523 P.2d 989,185 Colo. 229 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Leon AUSTIN, Defendant-Appellant. |
| Court | Colorado Supreme Court |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., E. Ronald Beeks, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colo. State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Alvin D. Lichtenstein, Deputy State Public Defender, Denver, for defendant-appellant.
The defendant was convicted in the district court of theft of an automobile having a value of more than $100. We affirm.
The complaining witness, David Chambers, commenced drinking beer at about 6:00 p.m. at the home of a neighbor, Annie Bell. The defendant arrived there about 8:00 p.m. Around 9:30 p.m. the defendant and Chambers left in Chambers' automobile to get more beer and liquor. The defendant drove the car back to Annie Bell's at Chambers' request as Chambers was too intoxicated to drive. Chambers testified that during the ride back the defendant asked him if he would sell his car, and Chambers indicated that he was not interested. Upon returning to Annie Bell's, Chambers continued drinking and eventually passed out. When he awoke the next morning, his billfold, car keys and car were missing.
Two days later Chambers, Annie Bell and the defendant's sister saw the defendant driving Chambers' car in north Denver. When the defendant saw the trio, he sped away. Chambers subsequently recovered his car, which had been found and impounded by the police. He discovered his billfold stuffed in a rip in the front seat of the car.
Chambers testified that he had purchased the car a year prior to the theft for $700, and that, if he were to sell it at the time of the theft, he would have asked at least $400 for it. Annie Bell testified that Chambers and the defendant had discussed the sale of Chambers' car in her presence, that Chambers had said he wanted eighty some odd dollars for the car, and that she saw the defendant pay Chambers $40 as a downpayment. She also testified that Chambers had offered to sell the car to her son a couple weeks earlier for $85. The defendant did not testify.
The defendant first argues that there was insufficient evidence to sustain the conviction of theft of more than $100.
The jury may infer that the accused committed the theft from the circumstance of his recent, unexplained, exclusive possession of the article involved. Noble v. People, 173 Colo. 333, 478 P.2d 662 (1970); Foster v. People, 56 Colo. 452, 139 P. 10 (1914).
According to the testimony of the complaining witness, there was no explanation, aside from theft, for the defendant's recent, exclusive possession of the vehicle here involved. While Annie Bell testified that the defendant had purchased the car from the complaining witness, the jury was at liberty to, and did, disbelieve that testimony. People v. Gomez, Colo., 519 P.2d 1191 (1974); People v. McCormick, Colo., 508 P.2d 1270 (1973).
The defendant also contends that the verdict of theft of more than $100 was not supported by competent evidence. The test of value is the reasonable market value of the stolen article at the time of the commission of the alleged offense. People v. Paris, Colo., 511 P.2d 893 (1973); Noble, supra. As mentioned, the complaining witness testified that he had purchased the vehicle for $700 one year prior to the alleged theft, and that if he were to sell it at the time of the offense, he would have asked at least $400. From this testimony the jury could properly conclude that the stolen vehicle was worth more than $100 at the time of the offense.
The defendant and the People agree that the conviction was based upon circumstantial evidence. The trial court submitted the following instruction to the jury concerning this evidence:
The defendant's tendered instruction on circumstantial evidence, which was refused by the trial court, provided in addition as follows:
'Where a conviction is sought on circumstantial evidence alone, as in this case, the prosecution must not only show beyond a reasonable doubt that the alleged facts and circumstances are true, but the facts and circumstances must be such as are incompatible, upon any reasonable hypothesis, with the innocence of the defendant, and incapable of explanation upon any reasonable hypothesis other than that of the guilt of the defendant.'
In People v. Bennett, Colo., 515 P.2d 466 (1973), we adopted the substantial evidence test and pointed out that that test
Thus, there was no error in refusing the defendant's tendered instruction.
The defendant tendered an instruction to the effect that, if the jury found that the defendant Believed he had entered into an agreement to purchase the car, then he could not be found guilty of theft. The court amended the instruction so that it read as follows:
'If you find from all the evidence that the Defendant Leon Austin entered into an agreement, or have a reasonable doubt whether the Defendant Leon Austin entered into an agreement, with David Chambers on June 21, 1971, for the purchase of David Chambers' 1962 Chevrolet automobile and that the Defendant Leon Austin drove what he believed to be his own automobile, then you must find the Defendant Leon Austin not guilty of the charge of theft, as charged in this Information.'
A defendant is entitled to a jury instruction on his theory of the case provided that the instruction is in proper form and there is evidence to support the theory. Marn v. People, 175 Colo. 242, 486 P.2d 424 (1971); Allen v. People, 175 Colo. 113, 485 P.2d 886 (1971). The only evidence on the subject of defendant's Belief was Annie Bell's testimony that the complaining witness entered into a sales agreement. The complaining witness denied this. There was no evidence, either direct or circumstantial, upon which the jury could find a belief by defendant of right to possession except under the agreement to purchase. Thus, the trial court committed no error in modifying the theory-of-defense instruction to conform to the evidence.
Following closing arguments, the jury retired to deliberate. At 3:30 p.m. the parties signed a stipulation for a sealed verdict. When a verdict had not been reached by 10:00 p.m., the bailiff, after unsuccessfully attempting to secure housing for the jurors, permitted the jurors to separate and return to their homes. The defendant argues that the court erred in allowing the jury to separate, especially since no cautionary instruction was given to the jury immediately prior to their separation.
In Colorado, mere separation of the jury does not constitute a ground for reversal. The question of whether a jury should be permitted to separate rests in the sound discretion of the trial court, and, absent a showing of prejudice or abuse of discretion, this Court will not intervene. Feldstein v. People, 159 Colo. 107, 410 P.2d 188 (1966). The defendant failed to show prejudice or an abuse of discretion. While...
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