People v. Swanson
| Decision Date | 07 December 1981 |
| Docket Number | No. 80,80 |
| Citation | 638 P.2d 45 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael Lee SWANSON, Defendant-Appellant. SA 125. |
| Court | Colorado Supreme Court |
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Nathan B. Coats, Asst. Atty. Gen., Denver, for plaintiff-appellee.
J. Gregory Walta, State Public Defender, Harvey Palefsky, Deputy State Public Defender, Denver, for defendant-appellant.
The defendant Michael Lee Swanson appeals his conviction in the district court of El Paso County based on jury verdicts of guilty to counts of aggravated robbery, section 18-4-302(1)(a), C.R.S.1973 , first-degree kidnapping, section 18-3-301(1)(a), C.R.S.1973 , and crime of violence, section 16-11-309(2), C.R.S.1973 . 1 The defendant contends that the evidence was insufficient to sustain his conviction, that the district attorney improperly commented on the evidence, and that the verdict form for crime of violence was improper because it omitted the specific finding required by statute. We disagree, and affirm his conviction.
On the evening of February 25, 1978, the defendant, and his co-defendant, Albert Csee, were hitch-hiking on Nevada Avenue in Colorado Springs. A van driven by John Seabloom stopped to pick them up. Because a passenger, Terry Cook, occupied the other front seat, one of the hitch-hikers sat on the bed in the back of the van and the other knelt behind the front seats. The chief evidentiary issue at trial and on appeal is the identity of the hitch-hiker who knelt behind the front seat.
The hitch-hikers said they wanted to go to the Peppermint Lounge. Several blocks north of the Lounge, the hitch-hiker immediately behind the front seats put a pistol against Seabloom's head and ordered him to drive down Route 115 toward Fort Carson. When Cook laughed at the order, the gunman raked the pistol across the back of Cook's head. Cook testified that he never looked at the gunman although, when ordered to do so, he handed back his wallet containing $2.00. The hitch-hikers inquired whether there were any woods along the road, and after passing the gate to Fort Carson, directed Seabloom to stop the van, hand the keys back over his shoulder, and leave. As Seabloom ran from the van, the gunman followed him out the driver's door and fired a shot in his direction. The gunman then went to the passenger door of the van and ordered Cook to leave. After the hitch-hikers drove away, Seabloom and Cook stopped a highway patrolman who broadcast a description of the van.
An El Paso County deputy sheriff spotted the van near Fountain about twenty minutes later. The deputy sheriff stopped the van, and the co-defendant, Csee, got out of the driver's side. The defendant leapt from the passenger's side and ran. After the police caught him, they found a pistol under the driver's seat.
Both the defendant and Csee were charged with aggravated robbery and first-degree kidnapping. Because Csee confessed to the police that he was the gunman, he alone was charged with crime of violence. The defendant failed to appear for trial on June 12, 1978, and Csee was tried and convicted in his absence of aggravated robbery, second-degree kidnapping, and crime of violence. The defendant was arrested on September 11, 1978. On November 15, 1978, the district attorney filed a motion to amend the information filed against the defendant to add a charge of crime of violence. The defendant opposed the district attorney's motion because Csee had previously been convicted of crime of violence and only one gun was involved. The trial court refused to consider the substance of the defendant's opposition and instead ruled that the amendment had been made sufficiently in advance of trial to give the defendant time to defend against the charge. The jury found the defendant guilty of aggravated robbery, first-degree kidnapping and crime of violence on January 25, 1979. 2
On appeal, the defendant argues that the evidence was insufficient to demonstrate his participation in any of the crimes charged. Although he admits his presence in the van, he maintains that he was intoxicated and passed out on the bed in the back. He specifically asserts as insufficient the evidence that he forced Seabloom and Cook to make a concession or give up anything of value in order to secure their release as required under the first-degree kidnapping statute. The defendant also argues that Csee's conviction collaterally estops the prosecution from proving that he committed the crime of violence offense. The defendant claims that the district attorney's statements during closing argument that Csee was a liar were expressions of the district attorney's personal belief and improper comments on the evidence. Finally, the defendant challenges the crime of violence conviction as improper because the jury received only a general verdict form.
We determine that the evidence is sufficient to support the jury's verdict of guilt as to each count; that the prosecution was not collaterally estopped from charging the defendant with crime of violence because the definition of crime of violence does not require that the defendant personally possess and use a deadly weapon during the commission of the specified crimes; that the defendant did not properly preserve his objection to the district attorney's comments concerning Csee's credibility; and that the statutory requirement of a specific finding to support the jury's verdict of guilt of crime of violence need not be applied to this case. For these reasons, we affirm the defendant's conviction.
The defendant asserts that the only direct evidence of his participation in the acts which serve as the basis for the aggravated robbery and kidnapping convictions was the identification by Seabloom of the defendant as the hitch-hiker who knelt behind him in the van and wielded the pistol. He questions the identification based only on Seabloom's glimpse of him in the poorly lighted van and points to Csee's admission that he was the gunman. While there is no question that the defendant entered the van with Csee and participated to some degree in the subsequent events, there was a direct conflict between Csee's and Seabloom's testimony. However, since Csee admitted at the defendant's trial that he fabricated his earlier testimony, the jury could reasonably have resolved the conflict between Csee's and Seabloom's testimony against Csee based on Csee's apparent lack of credibility. It is the province of the jury to determine the credibility of witnesses and the weight to be given to the evidence. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973). In addition, shortly after the crime Seabloom identified the defendant, not Csee, as the gunman from a photo line-up which included photographs of both Csee and the defendant.
The defendant also argues that the evidence is insufficient as a matter of law to establish first-degree kidnapping. The first-degree kidnapping statute, section 18-3-301, C.R.S.1973 , provides:
(1) Any person who does any of the following acts with the intent thereby to force the victim or any other person to make any concession or give up anything of value in order to secure a release of a person under the offender's actual or apparent control commits first degree kidnapping:
(a) Forcibly seizes and carries any person from one place to another.
In People v. Bridges, Colo., 612 P.2d 1110, 1116 (1980), we described the relationship between the statutory requirements of intent to force a concession and movement of the victim, stating:
(f)or first-degree kidnapping, the prosecution must prove, in addition to movement, that the intent of the defendant is to force the victim to make a concession or give up a thing of value in order to secure release. Circumstantial evidence of such intent may be derived from an examination of the amount and character of the movement surrounding the robbery, taking into account, for example, the time of detention, the distance, any changed environmental factors, whether the commission of the underlying crime and the movement were simultaneous, and the consistency of the defendant's actions with an independent intent to kidnap. (Emphasis in original.)
A key issue in our analysis in Bridges was whether the movement of the victim in that case was simply "incidental" or "substantial in nature," and whether the movement would "substantially increase the risk of harm over and above that necessarily present in the crime ... itself." Id.
The record here discloses that the defendant and Csee, by threatening Seabloom and Cook with a pistol, forced them to drive a substantial distance. Ultimately, in order to secure their release unharmed, they were forced to leave the van at an isolated spot chosen by the defendant and Csee. The risk of harm was substantially greater in the uninhabited area than it was where Seabloom and Cook picked up the hitch-hikers. As we stated in Bridges, supra, intent may be inferred from evidence of the amount and character of movement. The evidence establishes the intent necessary for first-degree kidnapping. People v. Morgan, Colo., 637 P.2d 338 (1981); People v. Chatfield, Colo., 612 P.2d 516 (1980).
The defendant asserts that the trial court erred in allowing the prosecution to put evidence before the jury that he personally possessed and used the pistol during the commission of the aggravated robbery and kidnapping because Csee had already been convicted of crime of violence based on possession and use of the pistol during the same episode. The defendant argues that the evidence would have been insufficient to sustain the charge of crime of violence had the prosecution been foreclosed from proving that he personally possessed and used the pistol. He relies upon the doctrine of non-mutual...
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