People v. Serpa, 97CA2243.

• Decision Date: 16 September 1999
• Docket Number: No. 97CA2243.,97CA2243.
• Citation: 992 P.2d 682
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ross SERPA, Defendant-Appellant.
• Court: Colorado Court of Appeals

992 P.2d 682

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ross SERPA, Defendant-Appellant.

No. 97CA2243.

Colorado Court of Appeals, Div. IV.

September 16, 1999.

Certiorari Denied February 14, 2000.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Catherine P. Adkisson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Cynthia Camp, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge STERNBERG.¹

Defendant, Ross Serpa, appeals the judgment of conviction entered on jury verdicts finding him guilty of illegal discharge of a firearm and reckless endangerment. We affirm.

Defendant was arrested after his neighbor complained that several gunshots had been fired at his home. A police investigation revealed that a propane tank outside the neighbor's home had been hit by several bullets. In addition, one of the shingles on the neighbor's house was scored by a bullet, and a bullet jacket was found in an adjacent rain-gutter. The prosecution and conviction at issue followed.

I.

Defendant first contends that the trial court erred when it refused to excuse a juror for cause after the juror revealed that she was associated with a victim's assistance group. We disagree.

A defendant accused of a crime has a fundamental right to a trial by fair and impartial jurors. It is the trial court's responsibility to assure that the jurors selected meet this standard. People v. Abbott, 690 P.2d 1263 (Colo.1984).

However, in the absence of an affirmative showing that the trial court has abused its discretion in passing on a challenge for cause, its decision will not be disturbed on appeal. People v. Russo, 713 P.2d 356 (Colo.1986). In determining whether the trial court clearly abused its discretion, the entire voir dire examination of the potential juror must be reviewed. People v. Abbott, supra.

Here, prior to voir dire, members of the panel responded to a questionnaire. One prospective juror wrote in response to the questionnaire that she had experience with and was a member of "victim assistance of Douglas County," and that she had "victim assistance friends."

During voir dire, after questioning, and without specifying a reason, defense counsel challenged this potential juror for cause. Defendant now asserts that the challenge was for bias. The prosecutor objected to the challenge, stating that information provided by the juror was insufficient to excuse her for cause. Defense counsel declined the court's offer to reply to the objection, and the court denied the challenge.

The quoted references in the record to the potential juror's association with "victim assistance" are not dispositive on the issue of her prejudice. Despite defendant's contention to the contrary, there is no indication that the individual was an advocate for or a fiduciary of the victims. Further, in the same questionnaire, the potential juror stated that she would have no difficulty remaining fair and impartial, and she did not respond to the trial court's inquiries of the venire regarding their ability to remain impartial. See People v. Abbott, supra

(juror's assurance of impartiality is one factor which supports denial of a challenge for cause).

Moreover, there was no attempt to establish a more adequate basis for the challenge. Defense counsel did not inquire into the matter when he questioned the panel member during voir dire, nor did he attempt to reinitiate questioning following the prosecution's objection to his challenge. See People v. Backus, 952 P.2d 846, 852 (Colo.App.1998)

("The failure to use reasonable diligence on voir dire to determine if a challenge for cause exists may result in a waiver of the challenge."); People v. Crespin, 635 P.2d 918 (Colo.App.1981) (same).

Under these circumstances, the trial court did not abuse its discretion in refusing to excuse the juror.

II.

Defendant next contends that the trial court erred when it refused to grant his motion for a judgment of acquittal on the illegal discharge of a firearm charge. We disagree.

Section 18-12-107.5, C.R.S.1998, states that: "[A]ny person who knowingly or recklessly discharges a firearm into any dwelling or any other building or occupied structure... commits the offense of illegal discharge of a firearm." (emphasis added)

Defendant argues that physical evidence of the crease created by the bullet on the roof does not satisfy the statutory use of the word "into." Instead, defendant would have us hold that the word "into" requires that the discharged bullet actually enter the interior of the building. Therefore, defendant argues the evidence was insufficient as a matter of law to sustain the conviction, and that the trial court should have granted his motion for a judgment of acquittal following the presentation of the prosecution's case-in-chief.

The word "into" in the context of § 18-12-107.5 is not defined in the statutes and has not been determined in Colorado by appellate decision.

The cardinal rule in construing a statute is to ascertain and give effect to the intent of the General Assembly. People v. Swain, 959 P.2d 426 (Colo.1998). In determining legislative intent, we look first to the plain language of the statute. If that language is clear and unambiguous, then we need not resort to rules of statutory construction. Brock v. Nyland, 955 P.2d 1037 (Colo.1998).

The statute proscribes discharging a firearm "into" a dwelling. Here, the evidence disclosed that a bullet struck and scored a shingle on the roof of the house. In our view, firing a bullet into materials of which the house is built, here a shingle, violates the statute. There is no requirement in the statute that the bullet pierce the exterior of the building and enter the interior of the house. We decline to expand the language of the statute to add the element that the bullet end up inside the house. Thus, the court was correct in denying defendant's motion for acquittal.

III.

In a related argument, defendant asserts that the trial court erred in its response to inquiries by the jury about the meaning of the word "into." Again, we disagree.

Whether to provide a jury with additional written instructions which properly state the law is a matter committed to the trial court's sound discretion. People v. Mascarenas, 972 P.2d 717 (Colo.App.1998). Nonetheless, if a jury inquires about the meaning of a particular...