People v. Berry

• Decision Date: 18 February 2020
• Citation: People v. Berry, 457 P.3d 597 (Colo. 2020)
• Docket Number: 17SC430
• Parties: The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. William Steven BERRY, Respondent/Cross-Petitioner.
• Court: Colorado Supreme Court

457 P.3d 597

The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent,

v.William Steven BERRY, Respondent/Cross-Petitioner.

Supreme Court Case No. 17SC430

Supreme Court of Colorado.

February 18, 2020

Attorneys for Petitioner/Cross-Respondent: Philip J. Weiser, Attorney General Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado

Attorneys for Respondent/Cross-Petitioner: Elkus & Sisson, P.C. Reid J. Elkus Lucas Lorenz Kathryn Sheely, Greenwood Village, Colorado

En Banc

JUSTICE HART delivered the Opinion of the Court.

¶1 In 2014, William Steven Berry, who was at the time a deputy of the Lake County Sheriff's Office, obtained several firearms from the office evidence locker, gave one away, attempted to sell another, and kept two for himself. For this conduct, Berry was convicted of embezzlement of public property in violation of section 18-8-407, C.R.S. (2019), and first-degree official misconduct in violation of section 18-8-404, C.R.S. (2019). This case requires us to answer a question of first impression about each of these statutory provisions. First, does "public property" include property that is in the government's possession but not owned by the government? And second, what is an act "relating to [an official's] office" for purposes of the crime of official misconduct?¹

¶2 We hold that the statute prohibiting embezzlement of public property criminalizes only the embezzlement of property that is owned by the government. Further, we conclude that the prohibition on official misconduct should be broadly construed to include circumstances, like those in this case, in which an official uses the opportunities presented by his or her office to engage in improper conduct. We therefore affirm the decision of the court of appeals on both questions.

I. Facts and Procedural History

¶3 In August 2013, Berry was one of several Lake County Sheriff's Office deputies who responded to a report of domestic violence involving P.E. and J.V. After J.V. was arrested, P.E. informed the officers that J.V. kept several firearms in the home and that she did not feel comfortable having them there. At P.E.'s request, the officers confiscated four firearms—one of which was a rare Colt handgun worth several thousand dollars—and stored them in the sheriff's office evidence locker.

¶4 After the charges against J.V. were resolved, the district attorney authorized the sheriff to either release or destroy the firearms. Because J.V. was an undocumented immigrant who had since been deported, there was no possibility of releasing the firearms back to him. While P.E. remained in Lake County, she too was an undocumented immigrant, and the sheriff had a policy against releasing weapons to undocumented immigrants. Consequently, the sheriff planned to destroy the firearms.

¶5 Before the firearms could be destroyed, however, Berry saw P.E. exiting a store and followed her in his patrol car as she drove away. When she stopped at a gas station, Berry approached her and inquired about purchasing the firearms from her for $500. During this encounter, he was on duty and in full uniform. When P.E. expressed concern about whether such a transaction would be legal, Berry responded by telling her "[o]f course. 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." P.E. then agreed to sell the firearms, including the rare Colt, to Berry for $500. Berry subsequently went to P.E.'s house, paid her $500, and had her sign a bill of sale for the firearms.

¶6 What happened next was disputed at trial. Berry claimed that P.E. went to the sheriff's office and had the firearms released to her. In support of this claim, Berry produced a release form to collect the firearms from the evidence locker that was purportedly signed by P.E. P.E. testified, however, that Berry had told her he would be able to "grab" the firearms from the locker. Further, she testified that she had neither seen nor signed the release form, that she never went to the evidence locker to retrieve the firearms, and that she never saw them again after they were removed from her home. One way or another, Berry ended up in possession of the four firearms.

¶7 Berry gave one of the firearms to the deputy in charge of the evidence locker when the firearms were removed as a show of gratitude for his help with obtaining the weapons. Berry attempted to sell the Colt handgun to a buyer in California, but the firearms dealer he used ran into trouble shipping the handgun, so the sale was not completed.

¶8 When the buyer did not receive the Colt, he called the Lake County Sheriff's Office looking for Berry. The sheriff's office conducted an internal investigation and concluded that Berry had, with the help of another deputy, improperly removed the firearms from the evidence locker and kept them for himself, seeking to profit from the sale of the valuable Colt handgun.

¶9 Berry was charged with, among other offenses, embezzlement of public property and first-degree official misconduct. A jury found Berry guilty of both crimes, and he was sentenced to probation. On appeal, a division of the court of appeals vacated Berry's conviction for embezzlement of public property and affirmed his conviction for first-degree official misconduct.

¶10 The People petitioned for certiorari on the embezzlement issue, and Berry cross-petitioned on the official misconduct count. We granted both petitions.

II. Analysis

¶11 After setting forth the standard of review, we consider whether Berry's removal of the firearms from the evidence locker in the Lake County Sheriff's Office and conversion of those weapons for his own personal use constituted embezzlement of public property. We conclude that because the firearms were not public property, Berry's actions did not violate the statutory prohibition against embezzlement of public property. We then examine whether Berry committed official misconduct when he approached P.E. in his patrol car while he was on duty and in uniform to purchase the firearms from her. We conclude that Berry's conduct did amount to official misconduct.

A. Standard of Review

¶12 Both questions we address in this case are matters of statutory interpretation that we review de novo. McCoy v. People , 2019 CO 44, ¶ 37, 442 P.3d 379, 389. Our goal in construing a statute is to determine and give effect to the intent of the General Assembly. People v. Diaz , 2015 CO 28, ¶ 12, 347 P.3d 621, 624. "In so doing, we interpret words and phrases used in statutes according to their generally accepted meaning. In addition, we examine particular statutory language in the context of the statute as a whole." People v. Graves , 2016 CO 15, ¶ 27, 368 P.3d 317, 326 (citation omitted). If we conclude that the statutory language is unambiguous, we end our inquiry there. McCoy , ¶ 38, 442 P.3d at 389. Only if the statutory language, considered in context, is susceptible of more than one reasonable interpretation will we turn to other rules of statutory construction. See People v. Jones , 2015 CO 20, ¶ 10, 346 P.3d 44, 48.

B. "Public Property" Is Property Owned by the State or a Political Subdivision

¶13 Colorado has criminalized the embezzlement of public property since it became a state. See G.L. 1877, § 658. As the court of appeals noted, the current version of the embezzlement statute, section 18-8-407, is a direct descendant of the first such law. People v. Berry , 2017 COA 65, ¶ 19, ––– P.3d ––––. Section 18-8-407(1) provides:

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.

No definition of "public property" is provided in the statute. However, both the phrase itself and the statutory context suggest a definition: Public property, as used in section 18-8-407, is property owned by a state or a political subdivision of the state.

¶14 We must attribute to words their plain and ordinary meaning. Graves , ¶ 27, 368 P.3d at 326. "Public property" is commonly defined to mean "something owned by the city, town, or state." Public Property , Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/public%20property; [https://perma.cc/5PAZ-P39W]; see also 63 Am. Jur. 2d Property § 11 (2019) ("Public property is that owned by the public as such in some governmental capacity."); Public Property , Black's Law Dictionary (11th ed. 2019) ("State- or community-owned property not restricted to any one individual's use or possession."); cf. People v. Gallegos , 260 P.3d 15, 22 (Colo. App. 2010) (applying the Black's Law Dictionary definition to interpret "public property" as used in section 18-8-407 ). Thus, the phrase "public property" alone appears unambiguous.

¶15 The context of the phrase "public property" within the criminal statutes further supports this plain meaning in at least three ways. First, the prohibition against embezzlement of public property is contained within the article of our criminal code focused on offenses related to governmental operations, not the article focused on offenses against property. Thus, unlike other "offenses against property," where the identity of the property owner is largely inconsequential, for embezzlement of "public property," the identity of the property owner—the public—is an essential part of the offense.²

¶16 Second, immediately following the phrase "public property" is the explanatory phrase "being the property of the state or of any political ...