People v. Foster, 97CA1340

• Decision Date: 24 December 1998
• Docket Number: No. 97CA1340,97CA1340
• Citation: 971 P.2d 1082
• Parties: 98 CJ C.A.R. 6369 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Eugene FOSTER, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 1082

971 P.2d 1082

98 CJ C.A.R. 6369

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Eugene FOSTER, Defendant-Appellant.

No. 97CA1340.

Colorado Court of Appeals,

Div. II.

Dec. 24, 1998.

Rehearing Denied Jan. 21, 1999.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John D. Seidel, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Ann M. Roan, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge CRISWELL.

Defendant, Eugene Foster, appeals the judgment entered upon a jury verdict finding him guilty of robbery, third degree assault, and theft. We affirm.

The evidence established that a security guard in a mall department store observed defendant, whom he recognized from previous contacts, as he walked to the bedding department of the store. There, defendant put two bed skirts in his jacket and exited the store. The guard, who had followed defendant to the bedding area and had observed his activities, followed him out of the store.

After defendant left the store, the guard called out to him several times, identifying himself as a loss prevention officer for the store. Defendant ignored the guard and ran into the parking lot towards a van. As defendant attempted to enter the passenger side of the van, the guard seized his jacket. Defendant then slammed the car door at least three times on the guard's hand, and the guard was forced to release him. The van then drove away.

Defendant was later charged with robbery of the security guard, conspiracy to commit robbery, third degree assault on the guard, and theft from the store. The conspiracy charge was dismissed prior to trial, and defendant was convicted on all remaining counts.

I.

Defendant first contends that there was insufficient evidence to convict him of robbery because the prosecution failed to prove that he took the bed skirts from the "person or presence" of the security guard. Specifically, he argues that the guard did not have the right to exercise control over the merchandise, and therefore, there was insufficient evidence to support the conclusion that the bed skirts were taken from the guard's "presence." We disagree.

If the sufficiency of the evidence is challenged on appeal, our task is to determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crimes charged beyond a reasonable doubt. In doing so, we must give the prosecution the benefit of every reasonable inference which might fairly be drawn from the evidence and defer to the jury's resolution of conflicting evidence. Kogan v. People, 756 P.2d 945 (Colo.1988).

Under § 18-4-301(1), C.R.S.1998, robbery occurs when:

A person ... knowingly takes anything of value from the person or presence of another by the use of force, threats, or intimidation....

In People v. Bartowsheski, 661 P.2d 235, 244 (Colo.1983), our supreme court held that property is taken from the "presence" of another when the property is "so within the victim's reach, inspection, or observation that he or she would be able to retain control over the property but for the force, threats, or intimidation directed by the perpetrator against the victim." To take property from someone's "presence," that person much be exercising, or have the right to exercise control over the article taken. People v. Benton, 829 P.2d 451 (Colo.App.1991).

In People v. Ridenour, 878 P.2d 23 (Colo.App.1994), a division of this court held that money taken from a theater office safe was not taken from the "presence" of the ticket taker because the evidence did not indicate that the ticket taker had access to the safe or could exercise control over its contents.

In contrast, here, sufficient evidence exists to support the jury's verdict. The victim here testified that, in his capacity as a security guard, or "loss prevention officer," he had the duty to deter shoplifting and to apprehend shoplifters. Further, he testified that he was authorized to contact an individual who has left the department store without paying for the store's property and to use limited force if that individual refuses to return to the store with the property.

Considering this evidence and all its reasonable inferences, we conclude that a reasonable juror could find beyond a reasonable doubt that the security guard, pursuant to his employment, was the custodian of the property and had a right to exercise control over it. See People v. Estes, 147 Cal.App.3d 23, 194 Cal.Rptr. 909 (1983) (department store security guard was a robbery victim where, as agent of the owner of the goods stolen, he was person directly responsible for the security of the items); Johnson v. State, 293 So.2d 71 (Fla.1974) (security guard is charged with the duty of protecting the store and its contents); People v. Miller, 18 Cal.3d 873, 135 Cal.Rptr. 654, 558 P.2d 552 (1977) (robbery conviction upheld on the grounds that security guard had constructive possession of the property); see also Commonwealth v. Grassa, 42 Mass.App. 204, 675 N.E.2d 799 (1997) (because police officer had "protective concern" for vehicle in parking lot, challenge to armed robbery conviction rejected).

We do not suggest, of course, that every act of shoplifting constitutes an act of robbery, even if there is a security guard on the premises. Here, however, reasonable jurors could find that the guard had authority to retrieve the articles from the defendant, that he took actions to effect such retrieval, that defendant used force to continue his unlawful possession of those articles, and that, in doing so, defendant removed the articles from the "presence" of the guard. This evidence, in our view, was sufficient to support the robbery conviction. See People v. Fox, 928 P.2d 820 (Colo.App.1996).

II.

Defendant next contends that the trial court erred by allowing the prosecutor to make three improper comments which diverted the jury's attention from the factual issues in the case. We are not persuaded.

As a preliminary matter, we note that defendant did not object to either of the first two comments challenged here. Accordingly, we review these statements under the plain error standard. See People v. MacBlane, 952 P.2d 824 (Colo.App.1997).

Under that standard, reversal is not warranted unless the incidents so affected the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment. Walker v. People, 932 P.2d 303 (Colo.1997). Hence, prosecutorial misconduct amounts to plain error only if there is a substantial likelihood that it affected the verdict or deprived the defendant of a fair and impartial trial. People v. Constant, 645 P.2d 843 (Colo.1982), cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 72 (1982).

Further, the determination whether a prosecutor's statements constitute inappropriate prosecutorial argument is an issue within the trial court's discretion. Harris v. People, 888 P.2d 259 (Colo.1995).

A.

Defendant's first assertion relates to the prosecutor's characterization of the charge of third degree assault as "a lesser offense." Defendant claims that this characterization was made to distract the jury from its role as a fact-finder, rather than as a sentencer. However, defendant does not assert how his defense was harmed by this remark.

Further, a review of the remark in context reveals that the reference to third degree assault as "one of the lesser offenses here," was followed by a list of objective facts that the jury had to find to convict defendant of that offense. This does not constitute plain error. See United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (criminal conviction not to be lightly overturned on the basis of a prosecutor's comments standing alone; only by viewing the statements in context can it be determined whether the prosecutor's conduct affected the fairness of the trial).

Finally, the court instructed the jury that, if it found that the prosecution had proven a crime beyond a reasonable doubt, it would be the court's responsibility to decide defendant's punishment. The jury was further instructed not to consider what defendant's punishment might be. It is presumed that the jury followed the court's instructions. See People v. Moody, 676 P.2d 691 (Colo.1984).

B.

Next, defendant claims that the prosecution's following comment was improper:

[T]he evidence that this prosecutor believes that you heard was that ... [the defendant] knew that if he was able to get that door closed that he'd get away with those bed skirts and he wouldn't get caught. That's the evidence that this prosecutor believes that you jurors heard.

This statement was made in response to defendant's argument that the jurors could infer from the evidence that defendant had no intention of exercising force against the security guard. Defendant asserts that this statement impermissibly injected the prosecutor's personal beliefs into the jury's deliberations.

In general, any statement of personal belief by counsel is improper. See generally I ABA, Standards for Criminal Justice, Standard 3-5.8(b) (2d ed.1980). The situation is most egregious when the ultimate guilt of the defendant is averred. People v. Loscutoff, 661 P.2d 274 (Colo.1983).

However, that is not what happened here. Instead, here, the prosecutor was responding to defendant's argument with respect to the evidence that had been presented. By his statement, there was no implication that the prosecutor had access to information that the juror did not. Although it would have been better for the prosecutor to have refrained from such commentary, it does not rise to the level of plain error. See People v. Loscutoff, supra.

C.

In defendant's final claim of prosecutorial...