People v. Dunoyair

Decision Date14 March 1983
Docket NumberNo. 81SA516,81SA516
Citation660 P.2d 890
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Paul B. DUNOYAIR, Defendant-Appellant.
CourtColorado Supreme Court

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 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 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

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 valued from $50 to $200 is a class 2 misdemeanor, section 18-4-401(2)(b), C.R.S.1973 (1978 Repl.Vol. 8), punishable by three to twelve months imprisonment, a fine of $250 to $1000, or both, section 18-1-106, C.R.S.1973 (1982 Supp.), and a class 4 felony if the value of the thing taken was $200 or more but less than $10,000, section 18-4-401(2)(c), C.R.S.1973 (1978 Repl.Vol. 8).

The criminal mischief statute, in our view, addresses conduct that is separate and distinct from theft. The gravamen of criminal mischief is the knowing causation of damage to another's property with resulting economic loss to the owner or possessor of the property. The crime of theft, in contrast, is a crime of misappropriation or wrongful taking with no added element of damage or destruction to the property taken. These differences between the two offenses are real and substantial. The legislature acted within its discretion in determining that the conduct encompassed by criminal mischief was sufficiently serious in character to justify a line of demarcation at $100 or more for the felony grade of this offense. That the legislature also chose a line of demarcation at $200 or more for the felony classification of theft is of no constitutional significance in view of the substantial differences in the conduct proscribed by the different statutes. 6 The challenged legislative classification, therefore, does not violate equal protection of the laws. 7

III.

The defendant argues that his conviction for felony criminal mischief cannot stand because the prosecution failed to carry its burden of establishing the market value of the undamaged painting at $100 or more. The defendant's argument is based upon the unsupported assumption that there was no evidence of the painting's value on the date of the offense. The evidence, however, established that the painting was purchased in March 1977 for $400 and was in perfect condition on the date of the crime. We are not dealing here with a mechanical object that substantially depreciated in market value during a three to four year period of time. See People v. Paris, 182 Colo. 148, 511 P.2d 893 (1973); Noble v. People, 173 Colo. 333, 478 P.2d 662 (1970). Rather, in the period of three and one-half years from the purchase of the painting to the date of the offense, there is nothing to suggest that the painting depreciated in value at all. Moreover, Jalal Quinn, the art director who restored the painting, testified without objection that in her opinion the cost of replacement would be $800 to $1000. There was thus sufficient evidence to establish the actual value of the painting on the date of the crime at $100 or more.

We recognize that the damage element in criminal mischief relates to economic loss caused by the knowing infliction of damage to the real or...

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