People v. Lobato

• Decision Date: 13 January 1975
• Docket Number: No. 26008,26008
• Citation: 530 P.2d 493,187 Colo. 285
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gerald Jerome LOBATO, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 493

530 P.2d 493

187 Colo. 285

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gerald Jerome LOBATO, Defendant-Appellant.

No. 26008.

Supreme Court of Colorado, En Banc.

Jan. 13, 1975.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Gregory L. Williams, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colo. State Public Defender, James F. Dumas, Jr., Chief Deputy Public Defender, Thomas M. Van Cleave III, Deputy State Public Defender, Denver, for defendant-appellant.

PRINGLE, Chief Justice.

The defendant, Gerald Jerome Lobato, appeals from his convictions of robbery and third-degree assault. He contends that the evidence was insufficient to support the guilty verdicts and that the trial court improperly permitted testimony that one of the persons at the scene of the alleged offenses pointed a gun at the robbery victim. We disagree with the defendant and therefore affirm the convictions.

The charges in this case grew out of events occurring in the late evening of September 4, 1972 and the early morning of September 5, 1972. Daryle and Dorothy Baker had been drinking in a neighborhood bar in Colorado Springs and were proceeding in separate cars to another bar for a final drink and an early breakfast. Mrs. Baker was proceeding in the lead car, and another car backed out of a parking space and struck the side of her car. She stopped to exchange information with the driver of the other car, and a seemingly hostile crowd began to form around the two drivers. A man with a gun initially prevented Mr. Baker from getting out of his car, but the gunman was distracted by a commotion in the crowd which enabled Mr. Baker to join his wife. Because of the situation, Mr. Baker suggested to his wife that they leave the scene of the accident, and Mr. Baker again followed his wife in his car.

Mrs. Baker, however, changed her mind and circled a couple of blocks to return to the accident scene to obtain the name of the driver who had backed into her. After arriving at the scene again, a man identified only by Mr. Baker as the defendant reached through the doorway of Mrs. Baker's car and began choking her with one hand. Mr. Baker then approached the defendant and demanded that he get out of his wife's car. Heated words were exchanged, and when Mr. Baker turned to face a disturbance in the crowd, the defendant hit him. Baker fell to the ground and was kicked several times by the defendant. When Baker finally regained his feet, he was pushed onto the front seat of his wife's car by Lobato. As he was falling into the car, Baker felt his billfold being removed from his rear pocket, and he turned to see the defendant running away with his wallet.

The Bakers then drove away from the crowd, but when a police car was spotted, Mr. Baker flagged it down. The defendant was then identified by Mr. Baker and arrested shortly thereafter. The wallet was discovered under the seat of the car where the defendant was sitting when he was apprehended. The $24 that Mr. Baker said was in his billfold prior to the altercation had been removed.

I.

The defendant's first contention is that the evidence is insufficient to support the conviction of third-degree assault on Dorothy Baker. Lobato bases this contention on the fact that Mrs. Baker could not identify the man who was choking her and on the argument that Mrs. Baker did not suffer 'bodily injury,' a requirement for conviction under the third-degree assault statute, 1971 Perm.Supp., C.R.S.1963, 40--3--204.

Mr. Baker, however, positively identified Lobato as the person who was choking his wife. Since we must assume that Baker's testimony was believed by the jury, this identification was sufficient to allow the jury to conclude that Lobato choked Mrs. Baker.

Mrs. Baker responded negatively to questions asked by the prosecution as to whether she had received any injuries or had been hurt in any way. However, she elaborated on these responses and explained that she sustained bruises on her neck which appeared as red fingerprints and later developed a sore throat.

Apparently, Mrs. Baker did not consider bruises and pain, which did not incapacitate her, to be 'bodily injuries.' Under the...