People v. Gibson, No. 06CA0796.

• Decision Date: 21 August 2008
• Docket Number: No. 06CA0796.
• Citation: 203 P.3d 571
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Royce Carsey GIBSON, Defendant-Appellant.
• Court: Colorado Court of Appeals

203 P.3d 571

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Royce Carsey GIBSON, Defendant-Appellant.

No. 06CA0796.

Colorado Court of Appeals, Div. II.

August 21, 2008.

Rehearing Denied November 6, 2008.

John W. Suthers, Attorney General, Cheryl Hone Canaday, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge BERNARD.

Defendant, Royce Carsey Gibson, appeals the judgment of conviction entered on a jury verdict finding him guilty of one count of class five felony attempted second degree burglary and one count of misdemeanor criminal mischief. We affirm.

I. Background

On January 15, 2004, at about 10:00 p.m., the owner of a closed Lakewood store was in the back room making a telephone call. He heard loud banging noises from the front door, and saw two men there. He noticed they were African-American, less than six feet tall, but one was several inches taller than the other. Both men wore padded winter coats and one wore a multi-colored, horizontally-striped knit cap. The owner yelled at the men, who ran south down Wadsworth Avenue toward Mississippi Avenue.

The owner immediately called the police, and a Lakewood police officer arrived within a minute. The owner showed the officer the doorjamb, which had been damaged during the attempted break-in, and the officer left to search for the perpetrators. As the officer drove out of the parking lot, an unidentified bystander flagged him down and told him he had seen two African-American men running westbound on Mississippi Avenue.

The officer aired this information over the radio. A second officer saw two men running across a nearby street. After a short search, a third officer located two African-American men hiding behind separate clumps of bushes at an apartment complex located close to the street where the second officer had seen the running men.

One of these men was later identified as Michael Marshall; defendant was the other man. Defendant wore a padded winter coat, and carried gardening gloves and a ski mask in his pocket. The police did not find a multi-colored knit hat. In response to a question from an officer, defendant denied knowing Marshall.

Shortly after Marshall and defendant were arrested, the police brought the store owner to the apartment complex to see if he could identify them as the men he had seen at his door. Although the owner could not positively identify either man, he said defendant had the same height and build as one of the men who had tried to break into his store.

The police located a car in the parking lot in front of the store. They saw a photograph of Marshall on the dashboard.

They discovered that the car was owned by Marshall's brother-in-law. The brother-in-law testified at trial that (1) he had given Marshall the car between six and eighteen months before the attempted burglary; (2) he met defendant a few times at parties at Marshall's residence; and (3) Marshall and defendant lived close to each other in Aurora, at locations over twenty miles from the Lakewood store.

II. Impeachment Evidence

Defendant contends the trial court improperly ruled that the prosecution would be allowed to impeach him with the contents of his notice of alibi, which he had previously withdrawn. Defendant further argues that this error "misled" him about the consequences of his testifying, and, therefore, his decision not to testify was not knowing and intelligent under People v. Chavez, 853 P.2d 1149, 1151 (Colo.1993), and People v. Curtis, 681 P.2d 504, 509-10 (Colo.1984). We conclude that we will not address this claim.

In People v. Blehm, 983 P.2d 779, 792 (Colo.1999), the supreme court held:

[W]e believe sound reason exists to modify the review afforded to a defendant's claim of invalid waiver of the right to testify. These claims are best addressed in post-conviction[ ] proceedings where an evidentiary hearing is available if necessary to ascertain facts not present in the original trial record.

This is a direct appeal, not a postconviction proceeding. Therefore, under Blehm, we shall not address this claim.

III. Hearsay Statement

Defendant contends the trial court's admission of the bystander's hearsay statement violated his right to confront the witnesses against him. We are not persuaded.

Defendant's counsel, not the prosecutor, first elicited this statement, asking two different officers about it. Then, in closing argument, defendant's counsel contended that, by not identifying the bystander, the police had negligently failed to gather potentially exculpatory evidence that would have shown that defendant and Marshall were not the men the bystander had seen.

Our review of the record supports the conclusion that defendant's counsel made a deliberate, tactical choice to introduce this evidence into the case. Therefore, he invited any error that may have resulted from its introduction. See People v. Stewart, 55 P.3d 107, 119-20 (Colo.2002).

IV. Sufficiency of the Evidence

Defendant contends the evidence introduced at trial was insufficient to support the jury's verdict. We disagree.

We review de novo a defendant's contention that the evidence was insufficient to support a conviction for an offense. Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005). The test we apply is whether, when viewed as a whole and in the light most favorable to the prosecution, the proof is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the offense beyond a reasonable doubt. People v. Dunaway, 88 P.3d 619, 625 (Colo.2004). In making this determination, we are mindful that "it is the jury which should decide the difficult questions of witness credibility and the weight to be given to conflicting items of evidence." People v. Brassfield, 652 P.2d 588, 592 (Colo.1982). We give the prosecution the benefit of all reasonable inferences drawn fairly from the evidence, and we recognize we do not function as a thirteenth juror, reversing convictions merely because we might reach different conclusions. People v. McIntier, 134 P.3d 467, 471-72 (Colo. App.2005).

Here, defendant argues the prosecutor did not provide sufficient evidence to show defendant's identity as one of the persons who attempted to break into the store, damaging the doorjamb. We disagree because:

• The owner identified defendant as being of the same race, having the same build, and being dressed similarly to one of the men at the door of his store.

• The owner saw the men run from his business when he yelled at them.

• A police officer, who testified at trial, saw the men running in the same direction.

• Defendant and Marshall were found hiding in the bushes at an apartment complex close to the store, which was located in the direction in which the men had run from the store.

• Marshall's car was found in the store's parking lot.

• Defendant and Marshall knew each other, and lived close to each other.

• Defendant and Marshall lived over twenty miles away from the store.

The evidence sufficiently established defendant's involvement in the attempted burglary. Therefore, we conclude that the proof here was sufficient to support a reasonable person's rational conclusion, beyond a reasonable doubt, that defendant was guilty of the crimes with which he had been charged.

V. Jury Instruction

Defendant contends the trial court erred by giving a theft instruction that failed to inform the jury that the mental state "knowingly" applied to the element of the crime of theft that the taking had to be "without authorization." Defendant submits this was a structural error that requires reversal. We disagree.

A. Structural Error

Defendant argues this error is structural. He recognizes that, in Griego v. People, 19 P.3d 1, 8 (Colo.2001), the supreme court overruled prior precedent and concluded that "elemental omissions or misdescriptions" in instructions are "subject to constitutional harmless or plain error analysis and [are] not reviewable under structural error standards." In reaching this conclusion, the court expressly overruled contrary precedent, including Cooper v. People, 973 P.2d 1234, 1242 (Colo.1999).

Defendant submits that the decision in Cooper was based upon both the United States and Colorado Constitutions, and that Griego was only based on the United States Constitution. Thus, he concludes, Griego only overruled Cooper to the extent it relied on the United States Constitution, and so Cooper now stands for the proposition that the Colorado Constitution requires structural error analysis in these circumstances.

We disagree with this chain of reasoning. Although Cooper referred to the Due Process Clauses of both the federal and state constitutions, it did not suggest any significant differences between them that would compel a different analysis. In fact, they are almost identically worded. Compare U.S. Const. amend. XIV, § 1 ("nor shall any state deprive any person of life, liberty or property without due process of law"), with Colo. Const. art. II, § 25 ("no person shall be deprived of life, liberty or property without due process of law"). This likeness indicates that we look to cases interpreting the parallel federal constitutional language as persuasive. See Dunaway, 88 P.3d at 630 ("Where the analogous federal and state constitutional provisions are textually identical, we have always viewed cases interpreting the federal constitutional provision as persuasive authority.").

Cooper did not indicate that there should be a different standard of instructional error under the state constitution than would be applied under the federal constitution, and defendant has not cited any other case that stands for this proposition. In fact, Cooper relied heavily on Bogdanov v. People, 941 P.2d 247, 252-55 (Colo.1997), which was based on People v. Vance, 933 P.2d...