People v. Ridenour, 92CA0104

• Decision Date: 13 January 1994
• Docket Number: No. 92CA0104,92CA0104
• Citation: 878 P.2d 23
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Randy Eugene RIDENOUR, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 23

878 P.2d 23

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Randy Eugene RIDENOUR, Defendant-Appellant.

No. 92CA0104.

Colorado Court of Appeals,

Div. I.

Jan. 13, 1994.

Rehearing Denied Feb. 17, 1994.

Certiorari Denied Aug. 15, 1994.

Robert R. Gallagher, Jr., Dist. Atty., Brian K. McHugh, Deputy Dist. Atty., and Patryce S. Engel, Intern Deputy Dist. Atty., Englewood, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, and Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge CRISWELL. ^*

Defendant, Randy Eugene Ridenour, appeals the judgment of conviction entered on a jury verdict finding him guilty of two counts of aggravated robbery, one count of second degree kidnapping, and one count of first degree burglary. We reverse the conviction on one count of aggravated robbery, but otherwise affirm.

Shortly after midnight on September 30, 1990, a man later identified as defendant followed a theater customer into the otherwise empty theater restroom and drew a gun. He stated that he intended to rob the theater and demanded the customer's cooperation. The robber then concealed the gun in a shoulder holster and forced the customer to walk to the ticket booth.

There, the robber told the ticket taker that he had caught the customer doing something wrong and asked that they be taken to see the manager. The ticket taker, robber, and customer then entered the manager's office, where an assistant manager was engaged in a social visit with a non-employee.

The robber informed all those present that he was robbing the theater and instructed everyone but the assistant manager to lie on the floor. He ordered the assistant manager's friend to tear out the telephone wires and forced the assistant manager to open the safe and to give him the money inside. The robber, who wore an earpiece with a wire running under his shirt, warned them not to alert the police for five minutes because he had a police radio scanner and might return and harm them if he heard an alarm called in.

As a result of this incident, defendant was charged, tried, and convicted of second degree kidnapping of the theater customer, two counts of aggravated robbery of both the assistant manager and the ticket taker, and first degree burglary of the theater.

I.

Defendant first asserts that the jury was not properly instructed that the asportation element of second degree kidnapping requires a substantial increase in risk of harm to the victim. We disagree.

Section 18-3-302(1), C.R.S. (1986 Repl.Vol. 8B) provides that:

[A]ny person who knowingly, forcibly, or otherwise seizes and carries any person from one place to another ... commits second degree kidnapping.

To satisfy the "seizes and carries," or asportation, element of second degree kidnapping, the victim must not only be moved, but that movement must also substantially increase the risk of harm to the victim. People v. Fuller, 791 P.2d 702 (Colo.1990); Apodaca v. People, 712 P.2d 467 (Colo.1985).

Here, the elemental instruction merely required that the jury find that defendant "seized and carried [the victim] from one place to another." However, another instruction further defined "seized and carried" as meaning "any movement, however short in distance, that results in a substantial increase in harm to the victim."

The form of jury instructions given at trial is within the sound discretion of the trial court. States v. R.D. Werner Co., 799 P.2d 427 (Colo.App.1990). Furthermore, it is not error for the court to refuse a tendered instruction, even if correct in legal effect, if the other instructions given adequately apprise the jury of the appropriate law. People v. Mackey, 185 Colo. 24, 521 P.2d 910 (1974); People v. Banks, 804 P.2d 203 (Colo.App.1990).

We are satisfied, therefore, that, taken together, the instructions here properly apprised the jury of all of the elements of second degree kidnapping.

II.

Defendant next contends that the evidence presented at trial was insufficient to establish the "substantial increase in risk of harm" element of second degree kidnapping. We also disagree with this contention.

Defendant, relying on People v. Bell, 809 P.2d 1026 (Colo.App.1990), argues that the movement of the theater patron from the restroom to the manager's office, where several people were present, actually decreased the victim's risk of harm. However, in Bell, the victim was moved at gunpoint from a living room to a bedroom, where he was left unattended long enough to call the police. Because the victim was not confined at gunpoint once in the bedroom and escape routes were available, the court concluded that no substantial increase in risk of harm to the victim had occurred. See Bell, supra.

In contrast, here, the victim was forced at gunpoint to accompany a criminal from a public restroom to the site of an armed robbery in a small, fully enclosed office. He was then warned of retribution if he called the police. This is more than sufficient evidence to establish movement that substantially increases the risk of harm to the victim. See People v. Huggins, 825 P.2d 1024 (Colo.App.1991) (moving victim short distance, from office to small enclosed bathroom with no escape route, increased risk of harm); Sheriff v. Medberry, 96 Nev. 202, 606 P.2d 181 (1980) (moving persons to different part of prison, where gunfire was being exchanged, substantially increased risk of harm).

III.

Defendant next asserts that the evidence presented at trial was insufficient to sustain the conviction for aggravated burglary. We find no error.

Prior to the holdup, defendant entered the theater by purchasing a ticket. Because he possessed a valid license to enter and remain in the theater for the purpose of viewing a film, defendant argues that he further possessed an implied right to enter the manager's office, thereby negating the "unlawful entry" element essential to the offense of burglary.

Unlawful entry, for purposes of burglary, is defined by 18-4-201(3), C.R.S. (1986 Repl.Vol. 8B), which provides, in relevant part:

A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege.... A license or privilege to remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public. (emphasis supplied)

Premises "open to the public" for purposes of the statute means premises which "would cause a reasonable person to believe no permission to enter or remain is required." People v. Bozeman, 624 P.2d 916, 918 (Colo.App.1980).

Here, the manager's office was a completely enclosed space within the theater, used for storage of business records, supplies, and the theater safe. One of the theater employees specifically testified that the manager's office was not open to the public. In addition, the defendant's use of a pretense in order to gain the ticket taker's permission to enter this office indicates that he was aware that it was not open to the public.

We conclude, therefore, that sufficient evidence was presented to establish that a reasonable person would believe that the office was closed to the public, and defendant's entry was unlawful despite any limited license previously granted. See People v. Barefield, 804 P.2d 1342 (Colo.App.1990) (general grant of authority to an employee to enter or remain in a building does not automatically grant that employee the right to enter offices within the building); State v. Sanchez, 105 N.M. 619, 735 P.2d 536 (App.1987) (unlawful entry into office located inside church which was otherwise open to public).

IV.

Defendant also asserts that the evidence was insufficient to establish that the money in the office safe was taken from the "presence" of the ticket taker, as required by § 18-4-301(1), C.R.S. (1986 Repl.Vol. 8B), and that his conviction of that robbery must, therefore, be set aside. With this contention, we agree.

In People v. Bartowsheski, 661 P.2d 235, 244 (Colo.1983), our supreme court concluded that property is taken from the presence of another when the article is "so within the victim's reach, inspection or observation that he or she would be able to retain control over the property but for the force, threats, or intimidation directed by the perpetrator against the victim." (emphasis supplied)

The meaning of "presence" was further elaborated upon in People v. Benton, 829 P.2d 451 (Colo.App.1991), in which the defendant held a customer of a fast-food restaurant at knife point and demanded that the restaurant employees give him cash from the register. In reversing that defendant's conviction for the robbery of the customer, a division of this court stated that: "[I]n order to commit the crime of robbery against an individual who does not have physical possession of the article taken, i.e., in order to take the property from such an individual's 'presence,' that individual must be exercising, or have the right to exercise, control over the article taken." People v. Benton, supra, 829 P.2d at 453. Because the customer did not have possession of, or any right to control, money in the cash register, the Benton court concluded that the customer could not have been the victim of a robbery.

Here, the ticket taker accompanied the robber to the manager's office, where he and all others present, save the assistant manager, were instructed to lie on the floor. The robber then directed the assistant manager alone to open and retrieve cash from the safe.

Because the ticket taker did not have physical possession of the money taken, he could have been the victim of a robbery only if he had the right to exercise control over that money. However, no evidence that he had such right was offered at trial. On the contrary, the only evidence presented established that the ticket taker's...