People v. Traubert, 80SA109
| Decision Date | 16 March 1981 |
| Docket Number | No. 80SA109,80SA109 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Thomas E. TRAUBERT, Defendant-Appellee. |
| Court | Colorado Supreme Court |
Dale Tooley, Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellant.
No appearance for defendant-appellee.
The People appeal the trial court's entry of a judgment of acquittal of the charges against the defendant Traubert. From our review of this record, we conclude that the trial court erred. The judgment of acquittal was entered on defendant's motion after the close of the People's case. Jeopardy has therefore attached and the defendant cannot be retried. Consequently, we can only disapprove the judgment of the trial court.
We normally disfavor an appeal by the People where trial is to a jury and the trial court enters a judgment of acquittal on a defendant's motion grounded on insufficiency of the evidence. Any decision rendered usually has no significant precedential value, and if the trial court did commit error, the defendant's acquittal cannot be reversed. The time and expense of such appellate review is non-productive. People v. Kirkland, 174 Colo. 362, 483 P.2d 1349 (1971). See People v. Berry, 198 Colo. 258, 598 P.2d 1044 (1979). In this case, however, the trial court error involves a basic misconception of renunciation and abandonment as an affirmative defense, section 18-2-101 (3), C.R.S. 1973 (1978 Repl. Vol. 8), and a misapplication of the guidelines set forth in People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973) which established the substantial evidence test as a basis for ruling on a motion for a judgment of acquittal at a jury trial.
The defendant was charged with attempted second-degree burglary, possession of burglary tools, and conspiracy to commit these offenses. These charges were tried to a jury.
The evidence presented by the People establishes these facts. Majestic Building Products occupies space in a building located across from the Rainbow Music Hall. A parking lot for the use of patrons of the music hall separates the two business establishments. On the evening in question, an employee of the music hall was checking the parking lot for the purpose of guarding the patron's cars. At about 7:50 p. m. while walking through the parking area, this employee observed two men, who appeared to be trying to break into the premises of Majestic Building Products. He testified that one man was trying to pull down on a window screen or pane while the other man appeared to be on watch and was looking out into the parking lot and toward the music hall. The employee walked slowly toward the music hall and summoned two police officers who were on duty at the music hall. The employee had the two men continuously in sight during all this time. The officers ran across the parking lot and promptly apprehended and arrested the two men, one of whom was the defendant.
Both officers testified that as they were approaching the scene, the two men were walking hurriedly away. The officers intercepted the men at a point approximately 30 feet from the window, which was later noted to have its security screen hanging ajar. One of the officers testified that he saw the men drop objects behind them. This officer testified that he retrieved the objects which were a large screwdriver and a pair of rubber gloves.
At the close of the People's case, defense counsel in argument on the motion for judgment of acquittal, raised the affirmative defense of abandonment as described in section 18-2-101 (3), C.R.S. 1973 (1978 Repl. Vol. 8). The People, in effect, conceded that this defense was available to the defendant. See section 18-1-407 (1), C.R.S. 1973 (1978 Repl. Vol. 8). Purportedly applying the People v. Bennett, supra, standard for granting a motion for judgment of acquittal, the trial court then ruled that the prosecution failed to meet its burden of proof and entered a judgment of acquittal as to each of the counts. The People appealed pursuant to section 16-12-102, C.R.S. 1973 (1978 Repl.Vol. 8). The principal question presented is whether there was insufficient evidence presented by the People to rebut the defendant's affirmative defense of abandonment. The question is also presented whether there was sufficient evidence, under the standards set forth in Bennett v. People, supra, to submit each of the charges to the jury.
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