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People v. Dinapoli

Court of Appeals of Colorado, Third Division

February 12, 2015

The People of the State of Colorado, Plaintiff-Appellee,
v.
Joann Dinapoli, Defendant-Appellant

          El Paso County District Court No. 10CR4504. Honorable Robert L. Lowrey, Judge.

         Cynthia H. Coffman, Attorney General, Katherine A. Aidala, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

         Douglas K. Wilson, Colorado State Public Defender, Anne Stockham, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

         Opinion by JUDGE DAILEY. Hawthorne and Dunn, JJ., concur.

          OPINION

         DAILEY, JUDGE.

          [¶1] Defendant, Joann Dinapoli, appeals the judgment of conviction entered after a jury found her guilty of second degree assault. We affirm.

         I. Background

          [¶2] K.M. testified as follows. Her dog and defendant's dog " got into a tussle." After the dogs separated, defendant screamed at K.M. In response, K.M. mocked defendant's accent. Defendant then hit K.M. with a " giant tree branch." Defendant hit her a second time, dislocating her arm.

          [¶3] A defense witness testified that after the dogs fought, K.M. began swinging a leash that had a metal clip on it. Defendant argued that she hit K.M. once to protect herself and her dog from K.M.

          [¶4] The jury found defendant not guilty of harassment and two counts of second degree assault. As noted above, it found her guilty of one count of second degree assault.

          [¶5] On appeal, defendant contends that she is entitled to a new trial because (1) the trial court should have told the jury that it would declare a mistrial if the jury could not reach a unanimous verdict; and (2) the prosecutor committed misconduct by referring to K.M. as the " victim" during trial. We address and reject each contention in turn.

         II. Mistrial Advisement

          [¶6] The jury sent the court the following note during deliberations: " We have agreement on three charges. What happens if we can't agree on the fourth charge?" In response, over defendant's objection, the court gave the jury a modified- Allen instruction:

Since it appears to the Court that your deliberations have been somewhat lengthy, without a verdict being reached, the Court wishes to suggest a few thoughts which you should consider. In your deliberations, along with the evidence in the case and all of the instructions previously given, it is your duty as jurors to consult with one another and to deliberate with a view towards reaching a verdict, if you can do so without violence to individual judgment. Each of you must decide the case for yourself but do so only after an impartial consideration of the evidence with your fellow jurors.
In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion, if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. You are not partisans. You are judges. ...

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