People v. Bueno, 26128

• Decision Date: 12 May 1975
• Docket Number: No. 26128,26128
• Citation: 534 P.2d 1196,188 Colo. 396
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Frank Emiliano BUENO, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1196

534 P.2d 1196

188 Colo. 396

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Frank Emiliano BUENO, Defendant-Appellant.

No. 26128.

Supreme Court of Colorado, In Department.

May 12, 1975.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., James S. Russell, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Randolph M. Karsh, T. Michael Dutton, Deputy State Public Defenders, Denver, for defendant-appellant.

LEE, Justice.

Appellant was convicted by a jury of burglary of a dwelling house in violation of 1965 Perm.Supp., C.R.S. 1963, 40--3--5(1). We affirm the judgment of conviction.

Appellant's only ground for reversal is that the evidence was insufficient to sustain the verdict of guilty. We, therefore, briefly review the evidence.

The People's evidence showed that on December 1, 1971, John Baca left his house at about 8:30 p.m., at which time all of the doors and windows were locked. He had given no one permission to enter his home in his absence. When he returned shortly after midnight, Baca discovered that his house had been broken into and ransacked. Among the missing items were a portable TV set and a clock radio.

Detective J. C. Tyus, Jr. of the Denver police department then testified that on the evening of December 10 he and his partner had an apartment complex in north Denver under surveillance. Both were dressed in plainclothes and occupied an unmarked police vehicle. At about 10 o'clock, a car pulled into the apartment parking lot, backed past several vacant spaces and into a space adjacent to a sidewalk in between two buildings. Officer Tyus then saw the driver get out of the car and take a TV set out of the truck. His suspicions were aroused by the man's actions, so he approached the man from behind. When he came within about ten feet of the man, he stated, 'Hold it. Police officer.' The man turned and began to run and the officer gave chase. The man ran into the basement of one of the apartment buildings and then into an apartment just ahead of the officer, slamming the door. The officer then heard a man's voice and a yell. He demanded that the door be opened. Momentarily, a woman came to the door and let him in. Both she and another woman in the room appeared in a state of great excitement and agitation. The detective searched the apartment and found appellant, whom he recognized as the man with the TV he had chased. He took the appellant into custody, along with a portable TV which was found in the living room. A later search of the car's trunk revealed a clock radio. Both the TV and the radio were identified as those taken from the Baca residence. Scattered inside the car which appellant had been driving were several screwdrivers.

The defense presented three alibi witnesses, all of whom stated that defendant was with them all day in the Jolly Roger Bar continuously, up until around 9:30 that evening. Appellant took the stand in his own behalf and stated that he had purchased the TV set and radio for $15 from a friend in the parking lot outside the bar, and had just borrowed the car to take them over to the apartment of another friend, which was the apartment in which he was apprehended. He testified that he did not run from the officer outside the apartment, and that although he heard the officer he ignored him and continued walking as he did not hear him say 'Police officer,' and did not realize that he really was an officer.

Appellant argues that this evidence was insufficient to sustain his conviction. There was no direct evidence to link him with the burglary at the Baca home, but the trial court permitted the jury to infer guilt from appellant's possession of goods recently stolen in a burglary.

The law is well settled that recent, unexplained, and exclusive possession of goods stolen in a burglary will support the inference that the one in possession is guilty of the crime. People v. McClendon, Colo., 533 P.2d 923; Noble v. People, 173 Colo. 333, 478 P.2d 662; Diaz v. People, 161 Colo....