People v. Benton, 90CA0153
| Decision Date | 26 September 1991 |
| Docket Number | No. 90CA0153,90CA0153 |
| Citation | 829 P.2d 451 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael Bruce BENTON, Defendant-Appellant. . II |
| Court | Colorado Court of Appeals |
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John J. Krause, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Lawrence S. Mertes, P.C., Lawrence S. Mertes, Boulder, for defendant-appellant.
Opinion by Judge CRISWELL.
Defendant, Michael Bruce Benton, appeals the judgment of conviction entered on jury verdicts finding him guilty of three counts of aggravated robbery, one count of aggravated criminal extortion, one count of misdemeanor theft, and of being a habitual criminal. He received concurrent life sentences on each of the three aggravated robbery convictions and on the conviction for aggravated criminal extortion. We affirm the judgment except in one respect.
All of defendant's convictions arose out of the same criminal episode at a fast food outlet. According to the evidence at trial, defendant approached the front counter, where two cash registers were located, and requested change from one of the two employees. Upon being given the change requested, defendant seized a customer who had just been waited upon by one of the employees, placed a knife to the customer's body, and demanded that the two employees give him all of the cash in both registers. The two employees complied.
The three counts of aggravated robbery were each based upon defendant's actions in threatening the customer and demanding money, and each identified a separate victim. Two of the counts each named one of the employees, and the third count named the unidentified customer.
The crime of robbery consists of taking a thing of value "from the person or presence of another by the use of force, threats, or intimidation." Section 18-4-301(1), C.R.S. (1986 Repl.Vol. 8B) (emphasis supplied). The crime becomes aggravated robbery if, among other things, the perpetrator "is armed with a deadly weapon with the intent, if resisted, to kill, maim, or wound the person robbed or any other person." Section 18-4-302(1)(a), C.R.S. (1986 Repl.Vol. 8B) (emphasis supplied).
The term "presence" is not defined by the statutes. However, in People v. Bartowsheski, 661 P.2d 235 (Colo.1983), the supreme court considered the circumstances necessary to demonstrate that the taking of an article is from the presence of another. After first noting that presence is not so much a matter of the victim being able to see the article as it is a matter of "proximity and control," the court concluded that property is taken from "the presence of another" when the article:
"is so within the victim's reach, inspection or observation that he or she would be able to retain control over the property but for the force, threats, or intimidation directed by the perpetrator against the victim." (emphasis supplied)
Thus, in Bartowsheski, the court upheld the defendant's conviction of robbery, even though the articles taken were physically located in a different room from the room in which the force was applied to the victim.
Here, after giving an instruction setting forth the elements of aggravated robbery, as set out in COLJI-Crim. No. 15:02 (1983), the court gave an additional instruction in which it defined "presence" by using the language from Bartowsheski set forth above.
Defendant first asserts that the giving of the instruction itself was error because it is not contained within COLJI-Crim. (1983) and was, instead, based upon the language in Bartowsheski. This contention is without merit.
In asserting error in this respect, defendant misinterprets the significance of the holdings in Gill v. People, 139 Colo. 401, 339 P.2d 1000 (1959) and People v. Zuniga, 631 P.2d 1157 (Colo.App.1981). While the opinion in each of these cases cautions trial courts against the mechanical repetition in jury instructions of language employed in previous opinions of appellate courts, neither erected any prohibition against such practice. Rather, both opinions merely emphasized the necessity, in some instances, of editing the language used in prior opinions to meet differing factual circumstances.
Here, the fact that the cash taken was not upon the "person" of any of the three alleged victims presented the question, in the case of each of the three counts, whether it was within the "presence" of each of them. See People v. Marquez, 692 P.2d 1089 (Colo.1984). Thus, some instruction defining the concept of "presence" under the statute was appropriate.
Further, the general definition of "presence" contained in the Bartowsheski opinion was the accurate standard to be applied in determining whether the two employees had control over the cash in the two registers at the time that it was taken. With respect to the two counts of aggravated robbery that named the two employees as victims, therefore, the instruction defining "presence" was warranted by the evidence, and its form was not improper.
We do agree with defendant, however, that his conviction of aggravated robbery of the restaurant customer cannot stand. While his argument as to this count is framed as a claim of instructional error, his argument leads to the conclusion that the evidence was insufficient to sustain his conviction upon this count, and with this conclusion we agree.
As the Bartowsheski opinion notes, "presence" within the meaning of § 18-4-301(1) does not require the article to be within the eyesight or the reach of the victim so long as it is sufficiently proximate to the victim that he or she may exercise control over it. At the same time, § 18-4-302(1)(a) recognizes that the force applied to obtain the article may be applied to some "other person" and not necessarily to the "person robbed."
Hence, we conclude that, in order to commit the crime of robbery against an individual who does not have physical possession of the article taken, i.e., in order to take property from such an individual's "presence," that individual must be exercising, or have the right to exercise, control over the article taken. See Rex v. Fallows, 5 Car. & P. 508, 172 Eng. Reprint 1075 (1832) (); 4 C.E. Torcia, Wharton's Criminal Law § 482 at 76 (14th ed. 1981) ().
Here, the undisputed evidence was that the customer did not have possession of the money in the cash registers, he was not exercising any control over it at the time he was assaulted,...
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