People v. Rice, No. 75--005

Docket NºNo. 75--005
Citation551 P.2d 1081, 37 Colo.App. 346
Case DateFebruary 19, 1976
CourtCourt of Appeals of Colorado

Page 1081

551 P.2d 1081
37 Colo.App. 346
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Kenneth RICE and Ronald M. Kelsey, Defendants-Appellants.
No. 75--005.
Colorado Court of Appeals, Div. II.
Feb. 19, 1976.
Rehearing Denied April 8, 1976.
Certiorari Granted June 28, 1976.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Thomas J. Tomazin, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Page 1082

[37 Colo.App. 347] Roger Cisneros, Denver, for defendants-appellants.

RULAND, Judge.

Following a trial to the court, defendants, Kenneth Rice and Ronald M. Kelsey, were found guilty of menacing with a deadly weapon in violation of § 18--3--206, C.R.S.1973. Defendants appeal alleging that: The evidence, and especially the evidence relating to the use of a deadly weapon, was insufficient to warrant their conviction; they did not waive their right to a jury trial; and they were not adequately represented by trial counsel. We affirm the convictions.

While the evidence was in sharp conflict, we must view it in a light most favorable to the People. People v. Mayfield, 184 Colo. 399, 520 P.2d 748. On this basis, the record discloses that the defendants threatened the victims by pointing a pistol at them and that defendant Rice stated that the pistol was loaded and would discharge easily. The victims were thus placed in fear for their safety. Shortly thereafter the pistol was recovered by an investigating officer in defendant Kelsey's residence with a loaded clip inserted and a round of ammunition in the chamber. This evidence was sufficient to sustain the guilty verdict, and it is the function of the trial court and not the reviewing court to resolve the issue presented by conflicting evidence. Baker v. People, 176 Colo. 99, 489 P.2d 196.

As to defendants' contention regarding the use of a deadly weapon, § 18--1--901(e), C.R.S.1973, defines a 'deadly weapon' as any firearm. A 'firearm' is defined in subparagraph (h) as any pistol 'capable or Intended to be capable of discharging bullets . . ..' (emphasis added) While defendants testified that the pistol was inoperable, the People's evidence was sufficient to establish, prima facie, that the pistol was capable or intended to be capable of discharging bullets.

Defendants next contend that they did not waive their right to a jury trial by an express written instrument filed of record, or by an announcement to that effect in open court,...

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2 practice notes
  • People v. McPherson, No. 78-562
    • United States
    • Colorado Court of Appeals of Colorado
    • 2 Agosto 1979
    ...regardless of whether it is loaded or unloaded, or capable of being fired. In support they cite this court's opinion in People v. Rice, 37 Colo.App. 346, 551 P.2d 1081r (1976), Rev'd on other grounds, 193 Colo. 270, 565 P.2d 940 (1970). In Rice, however, this court held only that a pistol c......
  • Rice v. People, No. C-958
    • United States
    • Colorado Supreme Court of Colorado
    • 6 Junio 1977
    ...of menacing with a deadly weapon in violation of section 18-3-206, C.R.S.1973. The court of appeals affirmed the convictions, Colo.App., 551 P.2d 1081 (1976), holding inter alia that there had been an effective waiver of the right to a jury trial. We granted certiorari and we now reverse th......
2 cases
  • People v. McPherson, No. 78-562
    • United States
    • Colorado Court of Appeals of Colorado
    • 2 Agosto 1979
    ...regardless of whether it is loaded or unloaded, or capable of being fired. In support they cite this court's opinion in People v. Rice, 37 Colo.App. 346, 551 P.2d 1081r (1976), Rev'd on other grounds, 193 Colo. 270, 565 P.2d 940 (1970). In Rice, however, this court held only that a pistol c......
  • Rice v. People, No. C-958
    • United States
    • Colorado Supreme Court of Colorado
    • 6 Junio 1977
    ...of menacing with a deadly weapon in violation of section 18-3-206, C.R.S.1973. The court of appeals affirmed the convictions, Colo.App., 551 P.2d 1081 (1976), holding inter alia that there had been an effective waiver of the right to a jury trial. We granted certiorari and we now reverse th......

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