Paso County District Court No. 10CR4504. Honorable Robert L.
H. Coffman, Attorney General, Katherine A. Aidala, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
K. Wilson, Colorado State Public Defender, Anne Stockham,
Deputy State Public Defender, Denver, Colorado, for
by JUDGE DAILEY. Hawthorne and Dunn, JJ., concur.
[¶1] Defendant, Joann Dinapoli, appeals the
judgment of conviction entered after a jury found her guilty
of second degree assault. We affirm.
[¶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
[¶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.
[¶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
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
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. ...