People v. Berry

• Decision Date: 18 May 2017
• Docket Number: Court of Appeals No. 15CA1394
• Citation: 459 P.3d 578
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William Steven BERRY, Defendant-Appellant.
• Court: Colorado Court of Appeals

459 P.3d 578

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.William Steven BERRY, Defendant-Appellant.

Court of Appeals No. 15CA1394

Colorado Court of Appeals, Division II.

Announced May 18, 2017

Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Elkus Sisson & Rosenstein, P.C., Donald C. Sisson, Reid J. Elkus, Denver, Colorado, for Petitioner-Appellant

Opinion by JUDGE J. JONES

¶ 1 A jury found William Steven Berry guilty of embezzlement of public property and first degree official misconduct. He appeals, contending that (1) there was insufficient evidence to support the convictions; (2) the district court erred in defining for the jury "public property" as used in the embezzlement statute; and (3) the embezzlement conviction and felony theft acquittal were inconsistent, requiring that the embezzlement conviction be vacated.

¶ 2 We affirm Berry's conviction for first degree official misconduct, but, because we conclude that there was insufficient evidence to prove the embezzlement of public property charge, we vacate that conviction.

I. Relevant Facts and Procedural History

¶ 3 Berry was a sheriff's deputy when he and two other deputies responded to a domestic violence call involving a husband and his wife. The wife told the officers that her husband owned four guns and she wanted them removed from her home. The officers took the guns and put them in the Lake County Sheriff's evidence locker, where the guns remained while the domestic violence charges against the husband were pending.

¶ 4 After those charges were resolved, the district attorney authorized the sheriff to either destroy the guns or return them to their rightful owner. Because the owner of the guns (the husband) had been deported from the United States, the sheriff could not return them to him (even if he were otherwise legally entitled to them), so the sheriff planned to destroy them. However, before the guns were destroyed, Berry supposedly bought the guns from the wife.

¶ 5 Berry saw the wife while he was on duty, in full uniform, and driving his patrol car. He followed her in his patrol car to a nearby gas station and approached her to discuss buying the guns. When she questioned the legality of such a sale, Berry said, "of course [it is legal]. I am a representative of the law. If I come to you with this offer, it is because I can do it, because it is legal." The wife agreed to sell the guns, including a rare and valuable pistol, to Berry, for $500.

¶ 6 After obtaining the guns, Berry gave one of them to the deputy in charge of the evidence locker who had released the guns, and agreed to sell the pistol to an out-of-state buyer.

¶ 7 Both Berry and the wife agreed that Berry paid the wife $500 for the guns, but the evidence regarding how or from whom Berry obtained possession of the guns was inconsistent. Berry argued that the wife signed a sheriff's department release form and then sold the guns to him a week later. But the wife testified that she never signed the release form, denied that she had ever gone to the sheriff's office to pick up the guns, and testified that she never saw the guns after she asked the officers to remove them from her home.

¶ 8 As a result of these events, the People charged Berry with embezzlement of public property, felony theft, taking possession of a firearm before completion of a firearms transfer background check, and first degree official misconduct. The district court instructed the jury, over defense counsel's objection, that "property is something owned or possessed." The jury acquitted defendant of felony theft and the background check charge, but found him guilty of embezzlement of public property and first degree official misconduct.

II. The Evidence Was Insufficient to Support the Embezzlement Conviction

¶ 9 Berry argues that the evidence admitted at trial was, for two reasons, insufficient to support a guilty verdict on the embezzlement charge. First, he argues that the statute under which he was charged—section 18-8-407, C.R.S. 2016—requires proof that the property he converted—the four guns—was owned, and not merely possessed, by Lake County, and that there was no evidence that Lake County owned the guns. Second, he argues that there was no evidence that he converted the guns: he had no authorization to remove them from the Sheriff's Office evidence room, and it was undisputed that another deputy actually removed them from the evidence room. We agree with Berry's first argument, and therefore do not reach his second.

A. Standard of Review

¶ 10 Berry's first argument requires us to determine two things. Initially, we must determine the meaning of "public property" in section 18-8-407(1). That, of course, is an issue of law that we decide de novo. Marsh v. People , 2017 CO 10M, ¶ 19, 389 P.3d 100. If we determine that "public property" in section 18-8-407(1) is limited to property that is publicly owned, we must then determine whether the evidence was sufficient to establish that element.¹ That too is an issue that we decide de novo. Id.

B. "Public Property" as Used in Section 18-8-407(1) Is Limited to Property Owned by the State or a Political Subdivision Thereof

¶ 11 Section 18-8-407(1) provides as follows:

Every public servant who lawfully or unlawfully comes into possession of any public moneys or public property of whatever description, being the property of the state or of any political subdivision of the state, and who knowingly converts any of such public moneys or property to his own use or to any use other than the public use authorized by law is guilty of embezzlement of public property. Every person convicted under the provisions of this section shall be forever thereafter ineligible and disqualified from being a member of the general assembly of this state or from holding any office of trust or profit in this state.

¶ 12 Because no statutory provision defines the term "public property" as used in section 18-8-407(1), we must determine the General Assembly's intent in using the term by employing well-established maxims of statutory construction.

¶ 13 We begin by attributing to the words and phrases used in the statute their plain and ordinary meanings. People v. Perez , 238 P.3d 665, 669 (Colo. 2010). And we consider the words or phrases at issue in context—both in the context of the statute of which the words or phrases are a part and in the context of any comprehensive statutory scheme of which the statute is a part. People v. Hill , 228 P.3d 171, 173-74 (Colo. App. 2009) ; see Krol v. CF & I Steel , 2013 COA 32, ¶ 15, 307 P.3d 1116. By applying these principles, we may discover more or less direct clues to the meaning of the pertinent words or phrases, while harmonizing that meaning with the remainder of the related statutory provisions. See Doubleday v. People , 2016 CO 3, ¶ 20, 364 P.3d 193 (court must "read the scheme as a whole, giving consistent, harmonious, and sensible effect to all of its parts"). And if, after applying these principles, we determine that the relevant words or phrases are unambiguous, we enforce them as written, and we won't resort to other rules of statutory construction. People v. Zapotocky , 869 P.2d 1234, 1238 (Colo. 1994) ; People v. Shores , 2016 COA 129, ¶ 16, 412 P.3d 894.

¶ 14 But sometimes applying these principles to statutory language fails to yield a clear meaning; the language remains susceptible of more than one reasonable interpretation. See People v. Diaz , 2015 CO 28, ¶ 13, 347 P.3d 621 ("[I]f the statutory language is susceptible of more than one reasonable interpretation, it is ambiguous...."). When that is the case, we may, indeed must, employ other rules of statutory interpretation. Id. ; People v. Jones , 2015 CO 20, ¶ 10, 346 P.3d 44. Those rules include rules adopted by the General Assembly, see, e.g. , § 2-4-203, C.R.S. 2016, and those created by the courts, see Jones , ¶ 10. Which of these rules sheds light obviously varies from case to case.

¶ 15 So, does the term "public property" have a plain meaning? Considered in isolation, it doesn't. Or at least its meaning is not sufficiently plain to resolve the issue before us.² This is because, in ways relevant to this case, "property" can mean different things. A perusal of various dictionaries shows that "property" can mean something either owned or possessed—a definition that would support the People's position—or something owned (i.e., something that someone has the exclusive right to possess, enjoy, and dispose of)—a definition that would support Berry's position. See, e.g. , Merriam-Webster's Collegiate Dictionary 996 (11th ed. 2004); Webster's Third New International Dictionary 1818 (2002); The American Heritage Dictionary 1405 (4th ed. 2000); Webster's Third New International Dictionary 1818 (1976); Webster's New International Dictionary 1984 (2d ed. 1940).³ Adding the word "public" to the term aids little in determining the meaning of "property" under the statute because that word merely indicates whose property must be converted.

¶ 16 Turning to the context of the language, we see that it gives some indication of the meaning of "public property." Immediately following the term "public property" is the modifying or explanatory phrase "being the property of the state or any political subdivision of the state." The phrase "property of the state" tends to indicate that property subject to the statute is property belonging to the state. See United States v. Mason , 218 U.S. 517, 521, 531, 31 S.Ct. 28, 54 L.Ed. 1133 (1910) (applying federal statutes; court clerk not guilty of embezzling "public moneys" or "money or other property of the United States" because the funds received never "belong[ed] to" the United States) (citation omitted); Fellers v. State , 138 Tex.Crim. 307, 136 S.W.2d 217, 217-18 (1940) (embezzlement statute prohibiting an agent from embezzling "property of" a principal or employer requires...