People v. Mayfield
| Decision Date | 08 April 1974 |
| Docket Number | No. 25599,25599 |
| Citation | 520 P.2d 748,184 Colo. 399 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David Hill MAYFIELD, Defendant-Appellant. |
| Court | Colorado Supreme Court |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., David A. Sorenson, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, T. Michael Dutton, Deputy State Public Defender, Denver, for defendant-appellant.
Defendant-Appellant David Hill Mayfield was charged with assault with intent to murder (count one); conspiracy to commit murder (count two); assault against a peace officer with a deadly weapon (count three); and conspiracy to assault a peace officer with a deadly weapon (count four). After trial to a jury, Mayfield was acquitted of the first two counts, convicted of the latter two, and subsequently sentenced to the penitentiary. He brings this appeal pursuant to that conviction, contending that (1) the evidence was insufficient to sustain a conviction for assault upon the person of a police officer; (2) the trial court abused its discretion in denying defendant's motion to require the prosecution to elect between the two substantive counts; (3) the trial court erred in failing to grant defendant's motion for a new trial since the verdicts of not guilty on 'assault with intent to murder' and guilty of 'assault on a peace officer with a deadly weapon' were inconsistent. We affirm.
We deal first with Mayfield's contention that since the testimony reveals shotgun blasts were fired at the police Car there was insufficient evidence to prove that the assault was with intent to produce great bodily injury Upon the person of a peace officer as required by 1967 Perm.Supp., C.R.S.1963, 40--7--54.
We note the general rule that when a defendant has claimed the evidence in the trial court was insufficient upon which to base a conviction, an appellate court must view the evidence in the light most favorable to the People. People v. Focht, Colo., 504 P.2d 1096; People v. Vigil, Colo., 502 P.2d 418.
Viewed in this context, the record indicates that in the early morning of March 6, 1971, Jesse Brezzel, a Denver police officer, commenced routine patrol duties in a marked police car. He saw three men run out of an alley toward his car. One of the men, carrying a shotgun, fired one shot, striking the car's grill. After the shot was fired, Officer Brezzel accelerated and as he went past the man, two more shots were fired, both striking the car. A fourth shotgun blast was then fired at the rear of the car. After Brezzel radioed for help, another officer found the defendant hiding under a tree with a shotgun which had recently been fired. At the trial, Officer Brezzel identified the defendant as the person who fired the shots.
C.R.S.1963, 40--2--33 provides that '(a)n assault is an unlawful attempt coupled with a present ability to commit a violent injury on the person of another.' Under the circumstances revealed by the record, the evidence clearly established the elements of assault. In response to the issue of sufficiency of evidence of assault on the Person of a peace officer, we bear in mind that while examining the facts of a particular case, this Court must assume that the jury adopted the evidence, or any reasonable inferences therefrom, which support the verdict. People v. Naranjo, Colo., 509 P.2d 1235.
The record supports a reasonable inference that the assault was directed at Officer Brezzel and that the attempt failed because the defendant's aim was bad. If we follow defendant's argument to its logical conclusion, only if Officer Brezzel was actually hit would the evidence have been sufficient to prove assault on the person of a peace officer. However, it is not necessary that the defendant's attempt be successful for there to be sufficient evidence to convict. See People v. Focht, Supra; People v. Olinger, Colo., 502 P.2d 79; People v. Prante, 177 Colo. 243, 493 P.2d 1083.
Mayfield next contends that the trial court should have required the prosecution to elect between the two...
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