People v. Jenkins, 87CA0196

• Decision Date: 21 July 1988
• Docket Number: No. 87CA0196,87CA0196
• Citation: 768 P.2d 727
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Earl JENKINS, Defendant-Appellant. . IV
• Court: Colorado Court of Appeals

Page 727

768 P.2d 727

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Earl JENKINS, Defendant-Appellant.

No. 87CA0196.

Colorado Court of Appeals Div. IV.

July 21, 1988.

Rehearing Denied Sept. 22, 1988.

Certiorari Denied Feb. 6, 1989.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Cheryl A. Linden, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Rachel A. Bellis, Deputy State Public Defender, Denver, for defendant-appellant.

JONES, Judge.

Defendant, Robert Earl Jenkins, appeals the judgment of conviction entered on jury verdicts finding him guilty of second degree burglary and theft. Defendant contends: (1) the evidence was insufficient to support the verdict; (2) the prosecution failed to establish the value of the stolen goods; and (3) the trial court's admission of evidence of a prior inconsistent statement was reversible error. We affirm.

On January 29, 1986, after being away all day, the victim returned home to discover that a window had been broken and her apartment burglarized. Various electronic items and clothing had been taken. The police were called and her apartment dusted for fingerprints. Defendant's fingerprint was found on a decorative wood box in the victim's living room. A neighbor told police that he had heard the sound of breaking glass and that approximately fifteen minutes later a stranger had come to his door asking to use his telephone. The stranger had commented about noise from a recent car accident, but the neighbor was convinced that the sounds he had heard were the result of a window breaking. The neighbor subsequently identified the defendant from a photo array as the stranger who had used his telephone.

Three days prior to the burglary, defendant had attended a party given by another neighbor of the victim's. During the party this neighbor and the defendant spent approximately ten minutes in the victim's apartment, sitting on the couch and smoking marijuana. During this visit, defendant used the victim's telephone. The evidence is in conflict as to which items defendant touched while in the victim's apartment and the location of those items.

The morning after the party, but the day before the burglary, the victim saw the defendant standing outside her door as she left for work, and several days later a witness saw defendant wearing a new blue shirt similar to one taken from the victim's apartment.

I.

Defendant contends that the prosecution failed to present sufficient evidence to show that he was the perpetrator of the crimes. We disagree.

A challenge to the sufficiency of the evidence requires a reviewing court to determine whether the evidence, both direct and circumstantial, when viewed as a whole and in a light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crimes charged beyond a reasonable doubt. Taylor v. People, 723 P.2d 131 (Colo.1986).

For the evidence to be sufficient it is not essential that an identifying witness make a positive identification or that he be free from doubt as to the correctness of his opinion. People v. Watkins, 191 Colo. 440, 553 P.2d 819 (1976). Rather, uncertainty in identification is a matter of weight and witness credibility to be considered by the jury in reaching its determination. People v. Watkins, supra. Similarly, occasional gaps and inconsistencies in the evidence are matters for jury resolution. Taylor v. People, supra.

Applying these standards to the record here, we conclude that ample direct and circumstantial evidence exists to support the jury's determination that defendant was guilty of the crimes charged beyond a reasonable doubt. From the totality of the evidence, a reasonable juror could infer that defendant staked out the victim's apartment, broke a window to gain entry, touched a decorative box when illegally inside the apartment, not having previously touched it, and left with a variety of electronic items and clothing, including a blue shirt he was later seen wearing.

Defendant's reliance on People v. Ray, 626 P.2d 167 (Colo.1981) is misplaced. Here, the fingerprint evidence does not stand alone, but was considered by the jury along with additional substantial evidence and reasonable inferences, all of which link defendant to the charged offenses. Cf. People v. Angel, 701 P.2d 149 (Colo.App.1985).

II.

Defendant next contends that his conviction must be vacated because the evidence presented as to the element of value did not substantiate the values attached to the stolen items. Again, we disagree.

The owner of stolen goods is competent to testify as to the value of his property, People v. Paris, 182 Colo. 148, 511 P.2d 893 (1973), and the measure of value to be attached to stolen goods is their reasonable market value at the time of the taking. People v. Evans, 44 Colo.App. 288, 612 P.2d 1153 (1980).

Here, the victim testified about the dates the stolen items were purchased, their original purchase price, whether that original price was less than actual retail value, and gave her opinion as to their value at the time of the offense. Under the circumstances, the jury's determination that the value of the stolen items exceeded $300 was neither speculative nor unreasonable.

III.

Defendant also contends the trial court erred in admitting...