People v. Lahr
| Decision Date | 25 August 1980 |
| Docket Number | No. 79SA12,79SA12 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Richard LAHR, Defendant-Appellee. |
| Court | Colorado Supreme Court |
J. E. Losavio, Jr., Dist. Atty., Amy S. Isaminger, Deputy Dist. Atty., Pueblo, for plaintiff-appellant.
No appearance for defendant-appellee.
The People appeal 1 the trial court's dismissal of the attempted second-degree kidnapping charge after the prosecution had concluded its case, and the decision of the trial court to instruct the jury on misdemeanor menacing, a lesser included offense of felony menacing. We affirm in part and disapprove in part.
Shortly after midnight on April 30, 1978, the defendant stopped a passing car and braced his shotgun on the hood, pointing it at the people inside. He told them, "Don't move or I'll blow you away." He then went to the open window on the driver's side, put the shotgun against the driver's head, and told him to slide over. The driver moved to the front passenger seat, and his wife, who had been in the passenger seat, fled. Two other people were in the back seat.
The defendant dropped his shotgun to the level of the driver's stomach as he got into the car. The car was running, but the handbrake was on. The defendant tried to put the car in gear, but it stalled. When he was not successful in re-starting the car, the defendant threw the shotgun away, stating that it was not loaded anyway. The police arrived shortly thereafter.
At trial, the defendant testified that he remembered nothing of the event. The trial judge instructed the jury on felony menacing and the lesser included offense, misdemeanor menacing. The jury acquitted the defendant of felony menacing, but found him guilty of misdemeanor menacing. The trial judge dismissed an attempted second-degree kidnapping charge at mid-trial.
The defendant was charged with attempted second-degree kidnapping under section 18-3-302, C.R.S.1973 (1978 Repl.Vol. 8), and section 18-2-101, C.R.S.1973 (1978 Repl.Vol. 8). 2 A person is guilty of attempted second-degree kidnapping if he knowingly engaged in conduct which is strongly corroborative of the firmness of his purpose to knowingly seize or carry another person from one place to another without his consent and without lawful justification. At the close of the prosecution's case-in-chief, the trial court granted the defendant's motion for a directed judgment of acquittal on the attempted kidnapping charge because the evidence viewed in the light most favorable to the prosecution was insufficient.
The district attorney urges that the evidence tending to show that the defendant had taken a substantial step toward commission of second-degree kidnapping was sufficient, as a matter of law, to withstand a motion for directed judgment of acquittal. The test for sufficiency is stated in People v. Downer, 192 Colo. 264, 268, 557 P.2d 835, 837-39 (1976):
See also People v. Roberts, 197 Colo. 304, 592 P.2d 801, 802 (1979).
Questions of the sufficiency of the prosecution's evidence "by (their) very nature must be reviewed on an ad hoc basis, and it is the exceptional case where such review will involve questions of 'sufficiency' generally applicable to future cases." People v. Kirkland, supra, 174 Colo. at 364, 483 P.2d at 1351; People v. Samora, 188 Colo. 74, 532 P.2d 946 (1975). This is not such a case. Nor is review merited to "settle a controversy" since the defendant cannot be placed in jeopardy a second time. People v. Kirkland, supra.
Therefore, we affirm the trial court's judgment dismissing the attempted second-degree kidnapping charge.
The People contend that the court's decision to give the instruction on misdemeanor menacing was error because the defendant's use of a shotgun, a deadly weapon, intentionally placed another in fear of imminent bodily injury. 3 The trial court found that the shotgun was jammed against the head of one of the victims, and that the evidence was adequate to show in this instance menacing by use of a deadly weapon. The court refused to accept the People's argument that a shotgun is a deadly weapon as a matter of law and instructed the jury on felony menacing and the lesser included offense, misdemeanor menacing. The jury acquitted the defendant of felony menacing and convicted him of misdemeanor menacing.
Our decision in People v. McPherson, Colo., 619 P.2d 38 (1980) controls the result in this case. We held there as a matter of law that an unloaded firearm is a deadly weapon. The court erred in submitting to the jury the issue of whether the shotgun was a deadly weapon. We disapprove the court's ruling.
The elements of misdemeanor menacing and felony menacing are identical but for the added requirement of the use of a deadly...
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