People v. Thompson, 26094
| Decision Date | 06 January 1975 |
| Docket Number | No. 26094,26094 |
| Citation | 529 P.2d 1314,187 Colo. 252 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Earl Vernon THOMPSON, Jr., Defendant-Appellant. |
| Court | Colorado Supreme Court |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., David A. Sorenson, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Earl Vernon Thompson, Jr., pro se.
Appellant was convicted of second-degree assault in violation of 1971 Perm.Supp., C.R.S.1963, 40--3--203(1)(d). He was sentenced to the state penitentiary for a term of not less than four nor more than nine years. He seeks reversal of the judgment of conviction, contending that prejudicial error occurred in several particulars hereinafter discussed. We find no merit to appellant's contentions and therefore affirm.
The charges against appellant arose out of a shooting incident. The People's evidence established that Morris Ayres and his brother, Paul Ayres, became involved in a confrontation with appellant during the afternoon of July 4, 1972. A quarrel ensued because Morris Ayres had temporarily parked his automobile in an alley adjacent to his wife's residence, blocking the exit and thereby preventing appellant from proceeding out of the alley. Appellant demanded that the Ayres' vehicle be moved. Heated words were exchanged. When Morris said 'Okay, baby, I'll move it,' appellant became enraged and uttered threats to the effect, 'I'll show you something' or 'I'll fix you.' Appellant left his car and walked back to his house. In the meantime, Morris removed his car from the alley. He went into his wife's house, while his brother Paul remained outside on the porch.
Appellant returned to the scene, brandishing a handgun. He approached Paul and pointed the weapon at Paul's head, and, while meancing him, struck Paul with his other hand, knocking him over the porch rail to the ground. This event was witnessed by Morris's wife from inside the house. Morris asked his wife to call the police. He then armed himself with an aluminum pipe, left the house by the back door, circled from the rear and approached appellant from behind. Morris struck appellant's arm with the pipe several times, attempting to dislodge the gun. In the struggle for the gun that followed, appellant shot Morris four times in the abdomen and chest. One of the bullets penetrated the left ventricle of his heart.
The police arrived at the scene and quickly apprehended appellant. The victim was transported to a hospital, where he underwent surgery.
Appellant was charged in a two-count information under section 40--3--203(1). Count one accused him of recklessly causing serious bodily injury to Morris Ayres by means of a deadly weapon, under subsection (d) of the statute; count two charged him with intentionally causing bodily injury to Morris Ayres by means of a deadly weapon, under subsection (b) of the statute. At the conclusion of the evidence, upon motion of appellant, the district attorney elected to proceed under count one of the information and count two was thereupon withdrawn from the jury's consideration.
Appellant first contends the court erred in denying his motion for judgment of acquittal, for the reason that the People's evidence was not sufficient to constitute a prima facie case. We do not agree.
We note here that appellant was represented by the public defender and chose to offer no evidence in defense but relied upon the weakness of the People's case against him and his theory of self-defense.
When viewed in the light most favorable to the People, the evidence, and reasonable inferences drawn therefrom, in our opinion, was ample to establish a prima facie case and to sustain the jury's verdict of guilty. Wilson v. People, 143 Colo. 544, 354 P.2d 588. The evidence, viewed in its most favorable light, disclosed that appellant assaulted Paul Ayres without justification or provocation; that Morris Ayres justifiably came to the defense of Paul against the appellant, who had not yet withdrawn from his attack upon Paul. Under these circumstances, the jury could properly conclude that Morris Ayres was using a lawful and reasonable physical force against the appellant. The sufficiency of the proof of the crime charged and of the defense of justifiable self-defense were matters for the jury's resolution We will not substitute our determination for that of the jury.
Appellant further insists that his motion for judgment of acquittal should have been granted on the theory that he had been placed in jeopardy when, upon his motion requiring the district attorney to elect between the first and second counts of the information, the district attorney elected to withdraw the second count, which amounted to a dismissal as to that count. He argues this was the equivalent of an acquittal on that count and, inasmuch as the evidence offered by the People in support of both counts was the same, dismissal of the one count necessarily precluded further prosecution on the other count. The argument is ingenious but not persuasive.
Appellant misconceives the double jeopardy rule. His specific argument in this regard was considered and rejected by this Court in Crane v. People, 91 Colo. 21, 11 P.2d 567. We conclude that the election by the district attorney to proceed only on count one of the information and to withdraw count two--even though the withdrawal of count two may be considered as an acquittal thereof--did not preclude the court from submitting count one to the jury for determination.
Appellant next contends that it was error for the court not to submit to the jury the lesser included offense of third-degree assault, as was requested at trial.
Third-degree assault is defined as follows:
1971 Perm.Supp., C.R.S.1963, 40--3--204.
Under the lesser included offense theory, as set forth in People v. Rivera, Colo., 525 P.2d 431, and ...
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...has been applied in a number of instances. See, e.g., People v. Martinez, 189 Colo. 408, 540 P.2d 1091 (1975); People v. Thompson, 187 Colo. 252, 529 P.2d 1314 (1975). The defendant contends that defining "serious bodily injury" is more difficult in the context of the sexual assault statute......
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