People v. Griffie, 78-799

Decision Date07 February 1980
Docket NumberNo. 78-799,78-799
Citation44 Colo.App. 46,610 P.2d 1079
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Derrick Lynn GRIFFIE, Defendant-Appellant. . III
CourtColorado Court of Appeals

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., John Daniel Dailey, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, State Public Defender, Michael R. Enwall, Sp. State Public Defender, Boulder, for defendant-appellant.

VAN CISE, Judge.

The defendant was initially charged with burglary, theft, and theft by receiving. A jury acquitted defendant of burglary and theft but was unable to reach a unanimous verdict on the theft by receiving charge. Defendant was retried for theft by receiving and was found guilty. Alleging insufficiency of the evidence, double jeopardy, and error in instructing the jury, defendant appeals. We affirm.

Based upon our review of the record, we find that, viewed as a whole and in the light most favorable to the prosecution, People v. Medina, 185 Colo. 183, 522 P.2d 1233 (1974), the evidence was sufficient to sustain the conviction. So viewed, the evidence shows that the defendant was present and participated in placing stolen office machines located in an alley into the trunk of a car belonging to some undercover agents, and that the defendant returned with the others to the apartment with the stolen goods and participated with two others in negotiating a price for the sale of the stolen goods to the undercover agents. This evidence, with the reasonable inferences to be drawn therefrom, was sufficient to support the conclusion that the defendant was guilty beyond a reasonable doubt, and we will not disturb the verdict on appeal. People v. Medina, supra.

Defendant's primary contention is that the offenses of theft and theft by receiving require proof of the same elements and that, therefore, under the doctrine of double jeopardy, defendant's acquittal on the theft charge in the first trial was a bar to a retrial of the theft by receiving charge. As a corollary to this, defendant contends that, to avoid double jeopardy, the jury should have been instructed, as requested by him, that the prosecution had to prove that the property had been stolen by someone other than the person accused or charged with the theft by receiving. Defendant argues that otherwise the jury could have concluded that the crime of theft by receiving encompasses receiving stolen property that the defendant himself stole and the defendant thereby was retried on the theft charge for which he had been previously acquitted. We do not agree with either contention.

The test for determining whether a person has been placed in double jeopardy is set out in People v. Hancock, 186 Colo. 30, 525 P.2d 435 (1974), quoting People v. Bugarin, 181 Colo. 62, 507 P.2d 875 (1973):

" '(A) single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.'

"Summarized, this test holds there is a merger of the offenses when the elements of...

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6 cases
  • Leonardo v. People
    • United States
    • Colorado Supreme Court
    • 2 Diciembre 1986
    ...or believing that said thing of value [had] been stolen...." § 18-4-410, 8B C.R.S. (1986) (emphasis added); see also People v. Griffie, 44 Colo.App. 46, 610 P.2d 1079 (1980). The instructions given to the jury included this "knowing or believing" requirement as one of the elements of theft ......
  • People v. Smith
    • United States
    • Colorado Supreme Court
    • 28 Abril 1997
    ...the theft by receiving charge, but even if it had, a trial on the theft charge would not be precluded. See People v. Griffie, 44 Colo.App. 46, 47-48, 610 P.2d 1079, 1080-81 (1980) (defendant acquitted of theft and jury was unable to reach verdict on theft by receiving; defendant was later r......
  • People v. Baca
    • United States
    • Colorado Court of Appeals
    • 22 Octubre 1992
    ...obtained possession of or exercised control over property either without authorization or by theft or deception. See People v. Griffie, 44 Colo.App. 46, 610 P.2d 1079 (1980). Under that statute, the perpetrator must be aware that he or she is obtaining control over a thing of value without ......
  • People v. Smith
    • United States
    • Colorado Court of Appeals
    • 9 Noviembre 1995
    ...as to the charge of theft. See Turner v. Arkansas, supra; see also People v. Morgan, 785 P.2d 1294 (Colo.1990); cf. People v. Griffie, 44 Colo.App. 46, 610 P.2d 1079 (1980) (acquittal of charge of burglary and theft does not preclude retrial on charge of theft by receiving); but see People ......
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