People v. Scearce, No. 01CA1660.

• Citation: 87 P.3d 228
• Decision Date: 04 December 2003
• Docket Number: No. 01CA1660.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Terry SCEARCE, Defendant-Appellant.
• Court: Colorado Court of Appeals

87 P.3d 228

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Terry SCEARCE, Defendant-Appellant.

No. 01CA1660.

Colorado Court of Appeals, Div. I.

December 4, 2003.

Rehearing Denied January 15, 2004.

Ken Salazar, Attorney General, Deborah Isenberg Pratt, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge DAILEY.

Defendant, Terry Scearce, appeals the judgment of conviction, habitual offender sentence, and order of restitution, entered following a jury verdict finding him guilty of conspiracy to commit aggravated robbery. We reverse the judgment of conviction, vacate the habitual criminal adjudication and restitution order, and remand the case for a new trial.

Defendant was charged in this case with attempted second degree murder, first degree assault, aggravated robbery, conspiracy to commit first degree assault and aggravated robbery, and two crimes of violence, all arising from acts undertaken by him and two others to obtain a laptop computer from the victim.

A woman, a mutual friend of defendant and the victim, asked defendant to go to the victim's motel room to help her retrieve the computer, whose ownership was in dispute. The woman arrived at the motel room alone, and, after being told by the victim that he had sold the computer, she started to leave the room. According to the victim, defendant and another man were standing at the door when the woman opened it to leave; according to the woman and defendant, the two men knocked on the door just as she was about to leave. She informed the two men that the victim had sold her computer and then left the room.

Defendant asked the victim why he had sold the computer and the other man demanded that the victim give them the proceeds from the sale. The victim then told defendant the computer was in a dresser drawer, when in fact, only a phone book was inside the computer case in the drawer.

According to the victim, he heard the sound of switchblade knives "clicking" open, and, after catching a glimpse of the knives, hit one of the men in the head with a soda can. In the ensuing melee, the victim was stabbed seven times in the front and back. The victim claimed to have been stabbed by both men.

Defendant took the computer case, complete with phone book, from the room.

The police arrested defendant twenty days later. From his car, they recovered three knives, two of which were switchblades, but none of them tested positive for traces of blood.

At trial, defendant denied that he went to the motel intending to rob or hurt the victim. Instead, he said, he went because he thought he could reason with the victim, and he entered the fray only after the victim attacked his companion and, even then, only to separate the two men. He denied having a knife at any time during the incident and related that he realized that a knife had been present and someone had been stabbed only after returning to his car, where his companion showed him his bloody knife.

The jury found defendant guilty of conspiracy to commit aggravated robbery and acquitted him of all other charges. Subsequently, the trial court found that he had twice been previously convicted of a felony and sentenced him, as an habitual offender, to twenty-four years imprisonment.

I.

Defendant contends that the evidence is insufficient to sustain his conviction, because: (1) under People v. Gallegos, 130 Colo. 232, 235, 274 P.2d 608, 609 (1954), overruled by People v. Moseley, 193 Colo. 256, 566 P.2d 331 (1977),

taking property by force from another under a claim of right is not robbery; (2) the woman claimed to own the computer; and thus (3) any agreement defendant had with her to retrieve the computer could not qualify as a conspiracy to commit robbery, much less aggravated robbery. We disagree.

Because defendant did not raise this contention either before the trial court or in his opening brief, but only during oral argument, we need not consider it. See Bd. of County Comm'rs v. City of Greenwood Village, 30 P.3d 846, 849 (Colo.App.2001)

(court will not consider arguments raised for the first time in reply brief or during oral argument); see also People v. Hall, 59 P.3d 298, 301 (Colo.App.2002)(arguments raised for the first time in reply brief need not be considered on appeal).

Ordinarily we would not countenance the injection of an additional issue at this late stage of the appeal. However, because of its obvious significance and the great likelihood that it would arise, in one form or another, in future proceedings, we elect to address it now.

The premise upon which this argument rests is no longer sound. In Gallegos, supra, the court held, based on "generally accepted doctrine," that "where property is taken under a bona fide claim of right the requisite animus furandi [element of robbery] is lacking." Animus furandi, the court explained, is the "intent to steal, that is, a criminal intent or an intent to feloniously deprive an owner of his property." People v. Gallegos, supra, 130 Colo. at 234-35, 274 P.2d at 609.

In People v. Moseley, supra,

the supreme court disavowed the continuing viability of Gallegos in light of revisions to the robbery statute, which are still in effect. See § 18-4-301(1), C.R.S.2003. These revisions, the court said, contain "no suggestion that robbery requires any specific intent to permanently deprive the owner of the use or benefit of the thing taken." People v. Moseley, supra, 193 Colo. at 262, 566 P.2d at 335.

Indeed, unlike theft, which involves the taking of "anything of value of another," § 18-4-401(1), C.R.S.2003, robbery involves the taking of "anything of value from the person or presence of another." Section 18-4-301(1). The difference in statutory text supports the supreme court's observations that the current robbery statutes "are primarily intended to protect persons and not property," and that "[p]roof of ownership of the property taken is immaterial [to robbery] so long as the victim had sufficient control over it at the time of the taking." People v. Borghesi, 66 P.3d 93, 101 (Colo.2003).

Thus, we conclude that, contrary to defendant's contention, the robbery statutes endorse the basic public policy that "even rightful owners should not be permitted to ... use force to regain their property, once it has been taken." State v. Miller, 622 N.W.2d 782, 786 (Iowa Ct.App.2000); see also Whitescarver v. State, 962 P.2d 192, 195 (Alaska Ct.App.1998)

(rejecting claim of right defense to robbery); State v. McMillen, 83 Hawai`i 264, 266-67, 925 P.2d 1088, 1090-91 (1996)(recognizing trend rejecting claim of right defense); cf. People v. Rosenberg, 194 Colo. 423, 427, 572 P.2d 1211, 1213 (1978)(rejecting claim that efforts to collect a legally enforceable debt fall outside the scope of the criminal extortion statute: "If the appellants honestly believed that they were entitled to payment ... they should have availed themselves of appropriate civil remedies.").

Defendant is thus not entitled to relief on this ground.

II.

Defendant contends that his conviction must be vacated because the verdict upon which it is based is inconsistent with that acquitting him of aggravated robbery. We disagree.

"A person may not be convicted of conspiracy to commit an offense if he is acquitted of the offense which is the object of the conspiracy where the sole evidence of conspiracy is the evidence establishing the commission of the offense which is the object of the conspiracy." Section 18-2-206(2), C.R.S.2003.

Section 18-2-206(2) codifies the supreme court's ruling in Robles v. People, 160 Colo. 297, 301, 417 P.2d 232, 234 (1966). See People v. Frye, 898 P.2d 559, 567 n. 12 (Colo.1995)

. The inconsistent verdict rule is:

premised on the existence of only one fund of evidence which is utilized to prove both the substantive offense and conspiracy charge. On this basis, if a jury disbelieves this evidence or has a reasonable doubt that it is sufficient to prove the substantive offense, it logically follows that it is likewise unbelievable or insufficient to support a verdict of guilty to the conspiracy charge.

Thus, the basic reason for the ... rule disappears when the evidence can be segmented or is different as to both offenses....

Armijo v. People, 170 Colo. 411, 413-14, 462 P.2d 500, 501 (1969); see Hughes v. People, 175 Colo. 351, 354, 487 P.2d 810, 812 (1971)

("[T]he jury cannot be permitted to believe the testimony for the purposes of the conspiracy and disbelieve it for purposes of the substantive crime. This does not mean, however, that ... where there was different evidence relating to the conspiracy and the substantive crime that the jury may not return different verdicts as to the two charges."); People v. Harrison, 746 P.2d 66, 67 (Colo.App.1987)("contrary verdicts on the substantive offense and the related conspiracy charge are not inconsistent if there is evidence in the record which implicates the defendant in the conspiracy and which is separate and independent from that of participation in the substantive offense").

Thus, if independent evidence in the record implicates the defendant in the conspiracy, separate and distinct from that supporting the substantive crime, the jury may properly acquit on the substantive charge, yet convict on the conspiracy. Further, as an appellate court, our duty is to reconcile and uphold verdicts if the evidence so permits. If the verdicts are consistent in any view of the evidence, the presumption is that the jury took that view. People v. Hood, 878 P.2d 89, 92 (Colo.App.1994).

In determining whether a separate and distinct fund of evidence exists, apart from that concerning the substantive crime, we may consider any evidence other than that concerning the commission of the substantive crime itself. See People v. Forbes, 185 Colo. 410, 413,...