People v. Dunoyair, No. 81SA516

Docket NºNo. 81SA516
Citation660 P.2d 890
Case DateMarch 14, 1983
CourtSupreme Court of Colorado

Page 890

660 P.2d 890
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Paul B. DUNOYAIR, Defendant-Appellant.
No. 81SA516.
Supreme Court of Colorado,
En Banc.
March 14, 1983.

Page 891

J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Susan P. Mele-Sernovitz, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Bruce W. Warren, Niwot, for defendant-appellant.

QUINN, Justice.

The defendant, Paul Dunoyair, appeals his conviction of felony criminal mischief. He challenges the constitutionality of the criminal mischief statute, the sufficiency of the evidence to support his conviction, and the trial court's failure to order a new trial due to a juror's inadvertent nondisclosure during voir dire of his familiarity with a prosecution witness. Finding no error, we affirm. 1

I.

The defendant was charged in the Boulder District Court with criminal mischief by knowingly damaging the personal property of the University of Colorado, the aggregate damage being $100 or more, on August 8, 1980. Section 18-4-501, C.R.S.1973 (1978 Repl.Vol. 8). Prior to trial the defendant moved to dismiss the information on the ground that the criminal mischief statute unconstitutionally imposed a greater penalty for the same or less serious conduct than that authorized by the theft statute. The court denied the motion to dismiss.

Trial commenced to a jury on December 11, 1980. The evidence established that on August 8, 1980, at about 6:30 p.m., the defendant, who was then present at the Alferd Packer Grill at the University Memorial Center on the Boulder campus, deliberately damaged a large canvas painting of

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Packer which hung on the wall of the grill. 2 The defendant used an ashtray to poke a hole into the canvas, inflicted two massive tears on the painting, and then crumpled the canvas and threw it to the floor. The incident was witnessed by several persons and was reported to a security guard. The guard went to the grill and detained the defendant for the university police.

The painting was owned by the University of Colorado and had been commissioned for $400 in March 1977 by Art Ingraham, the University Food Service Director. The painting at the time of the incident, according to Mr. Ingraham, was in perfect condition. It was restored by Jalal Quinn, the art director at the University Memorial Center, at a cost of $212. This restoration cost was below the normal cost of restoration because Ms. Quinn was able to purchase various materials from the campus book store at a price considerably below the retail cost. The art director testified that the painting had sustained considerable damage, including massive tears and cracks, and that the replacement cost of the painting was between $800 and $1000.

The defendant testified on his own behalf. He stated that on the date of the offense he was neither a student nor an employee of the university. He went to the grill and ordered a meal. After observing the painting he decided to tear it down because he considered it "obsessively large and distasteful and anti-social."

At the conclusion of the evidence the court submitted to the jury the charge of felony criminal mischief involving damage of $100 or more and the lesser offense of criminal mischief involving damage of less than $100. The court instructed the jury that the amount of damage should be determined by considering "the reasonable cost of repairing the property, unless the cost of repair exceeds the market value of the property before the damage occurred," in which event the amount of damage must not exceed the market value. The jury returned a guilty verdict of felony criminal mischief.

The defendant filed a motion for a new trial. The motion alleged that after the trial one of the jurors informed defense counsel that he knew a prosecution witness,

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Richard Bourie, who was the security guard at the campus center and testified about his detention of the defendant until the university police arrived. It was also alleged that the juror failed to disclose this fact when the jury panel was asked during jury selection whether they knew any of the prosecution witnesses. The defendant's motion was supported by an affidavit of the juror which stated:

"I realized during the trial that I was acquainted with a witness for the prosecution, Richard Bourie, when I saw Mr. Bourie in the Courtroom.

"I did not recognize Mr. Bourie's name when the list of prospective witnesses was read during voir dire, and did not indicate that I was acquainted with him.

"I became acquainted with Mr. Bourie several years ago while I was a student at the University of Colorado, working on a work-study program at the Veteran's Club offices. Mr. Bourie was a member of the Veteran's Club at that time."

The defendant offered no evidence that the juror's acquaintance with the witness affected in any manner the juror's ability to decide the case in accordance with the evidence and the law. The court denied the motion for a new trial and this appeal followed.

We consider first the defendant's constitutional challenge to the criminal mischief statute, next the claimed insufficiency of the evidence to support his conviction, and last the trial court's denial of a new trial notwithstanding the juror's nondisclosure of his acquaintance with one of the prosecution witnesses.

II.

The defendant argues that the criminal mischief statute violates equal protection of the laws because on the date of the offense it authorized a disproportionately greater penalty for what the defendant asserts is the same conduct proscribed by the theft statute. We find no merit in his argument.

Equal protection of the laws under the Colorado Constitution is violated when criminal statutes proscribe identical conduct but impose different criminal sanctions for that conduct. 3 E.g., People v. Taggart, 621 P.2d 1375 (Colo.1981); People v. Burns, 197 Colo. 284, 593 P.2d 351 (1979); People v. Marshall, 196 Colo. 381, 586 P.2d 41 (1978); People v. Czajkowski, 193 Colo. 352, 568 P.2d 23 (1977). On August 8, 1980, the date of the offense, section 18-4-501, C.R.S.1973 (1978 Repl.Vol. 8), defined the crime of criminal mischief as follows:

"Any person who knowingly damages the real or personal property of one or more other persons in the course of a single criminal episode commits a class 2 misdemeanor where the aggregate damage to the real or personal property is less than one hundred dollars. Where the aggregate damage to the real or personal property is one hundred dollars or more, he commits a class 4 felony." 4

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A class 4 felony was and is punishable by a presumptive sentence of two to four years, plus one year of parole. Section 18-1-105(1)(a), C.R.S.1973 (1982 Supp.). The crime of theft is committed when a person knowingly obtains or exercises control over anything of value of another without authorization, or by threat or deception, and either intends to permanently deprive or disposes of the property in such a manner as to permanently deprive the other person of the use or benefit of the property. Section 18-4-401(1), C.R.S.1973 (1978 Repl.Vol. 8). 5 Theft of property...

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40 practice notes
  • People v. Wiedemer, No. 92SA231
    • United States
    • Colorado Supreme Court of Colorado
    • May 10, 1993
    ...includes a guarantee of equal protection of the laws even though that guarantee is not explicitly set forth. People v. Dunoyair, 660 P.2d 890, 893 n. 3 (Colo.1983); People v. Montoya, 647 P.2d 1203, 1205 n. 4 (Colo.1982); People v. Gutierrez, 622 P.2d 547, 554 n. 6 We declined to address wh......
  • People v. Stewart, No. 56629
    • United States
    • Supreme Court of Illinois
    • October 19, 1984
    ...the giving of a similar instruction. (Commonwealth v. Travaglia (1983), 502 Pa. 474, 467 A.2d 288; People v. Dunoyair (Colo.1983), 660 P.2d 890; Commonwealth v. Benoit (1983), 389 Mass. 411, 451 N.E.2d 101; State v. Burgoyne (Me.1982), 452 A.2d 393; Pixley v. State (Wyo.1965), 406 P.2d 662.......
  • 81 Hawai'i 39, State v. Jackson, No. 17367
    • United States
    • Supreme Court of Hawai'i
    • February 23, 1996
    ...of rendering a fair and impartial verdict in the matter. Furutani, 76 Hawai'i at 182, 873 P.2d at 61 (quoting People v. Dunoyair, 660 P.2d 890, 895 (Colo.1983)). The instant case, however, cannot be properly characterized as one involving knowing concealment during voir dire. First, because......
  • Watson v. Regional Transp. Dist., No. 86SC230
    • United States
    • Colorado Supreme Court of Colorado
    • September 12, 1988
    ...negligence of the defendants is more than fifty percent. See § 13-21-111, 6A C.R.S. (1987); Mountain Mobile Mix, Inc. v. Gifford, 660 P.2d at 890. However, when the defendants' combined negligence is equal to or less than the negligence of the driver of the vehicle in which the plaintiff wa......
  • Request a trial to view additional results
40 cases
  • People v. Wiedemer, No. 92SA231
    • United States
    • Colorado Supreme Court of Colorado
    • May 10, 1993
    ...includes a guarantee of equal protection of the laws even though that guarantee is not explicitly set forth. People v. Dunoyair, 660 P.2d 890, 893 n. 3 (Colo.1983); People v. Montoya, 647 P.2d 1203, 1205 n. 4 (Colo.1982); People v. Gutierrez, 622 P.2d 547, 554 n. 6 We declined to address wh......
  • People v. Stewart, No. 56629
    • United States
    • Supreme Court of Illinois
    • October 19, 1984
    ...the giving of a similar instruction. (Commonwealth v. Travaglia (1983), 502 Pa. 474, 467 A.2d 288; People v. Dunoyair (Colo.1983), 660 P.2d 890; Commonwealth v. Benoit (1983), 389 Mass. 411, 451 N.E.2d 101; State v. Burgoyne (Me.1982), 452 A.2d 393; Pixley v. State (Wyo.1965), 406 P.2d 662.......
  • 81 Hawai'i 39, State v. Jackson, No. 17367
    • United States
    • Supreme Court of Hawai'i
    • February 23, 1996
    ...of rendering a fair and impartial verdict in the matter. Furutani, 76 Hawai'i at 182, 873 P.2d at 61 (quoting People v. Dunoyair, 660 P.2d 890, 895 (Colo.1983)). The instant case, however, cannot be properly characterized as one involving knowing concealment during voir dire. First, because......
  • Watson v. Regional Transp. Dist., No. 86SC230
    • United States
    • Colorado Supreme Court of Colorado
    • September 12, 1988
    ...negligence of the defendants is more than fifty percent. See § 13-21-111, 6A C.R.S. (1987); Mountain Mobile Mix, Inc. v. Gifford, 660 P.2d at 890. However, when the defendants' combined negligence is equal to or less than the negligence of the driver of the vehicle in which the plaintiff wa......
  • Request a trial to view additional results

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