Arapahoe County District Court No. 11CR2158. Honorable Elizabeth B. Volz, Judge.
Cynthia H. Coffman, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Rebecca R. Freyre, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by CHIEF JUDGE LOEB. Sternberg[*] and Vogt*, JJ., concur.
LOEB, CHIEF JUDGE.
[¶1] Defendant, Joseph S. Nerud, appeals the judgment of conviction entered on jury verdicts finding him guilty of two counts of third degree burglary and three counts of theft. We affirm.
[¶2] Nerud stole money and a backpack from three gym lockers at a 24-Hour Fitness Center on three separate occasions. He was apprehended by police during the third theft, and he eventually admitted to all three thefts in a police interview. However, he denied breaking any locks to enter the lockers. He claimed that he rummaged through belongings in unlocked lockers until he found money to take.
[¶3] Nerud was charged with two counts of third degree burglary related to the first two incidents and three counts of theft. The primary contested issue at trial was whether the first two victims' lockers were locked or unlocked. Both victims testified that they had secured their lockers with personal combination locks prior to the thefts. The defense theory was that the victims were mistaken, and Nerud merely stole from unlocked lockers. Nerud asked the jury to convict him of theft but not burglary. The jury found Nerud guilty on all counts. This appeal followed.
[¶4] On appeal, Nerud contends that (1) the trial court erred by denying his pretrial motion in which he argued that the third degree burglary statute is unconstitutionally vague on its face and as applied to him; (2) there was insufficient evidence to convict him of third degree burglary; (3) the trial court's jury instruction defining the phrase " other apparatus or equipment" in the third degree burglary statute was improper; (4) the trial court reversibly erred in giving a jury instruction on possession of recently stolen property; and (5) the trial court plainly erred in allowing the prosecutor to make improper statements in closing argument.
For the reasons set forth below, we reject each of these contentions and, therefore, affirm the judgment of conviction.
[¶5] Nerud contends, as he did in the trial court, that the third degree burglary statute, section 18-4-204(1), C.R.S. 2014, is unconstitutionally vague insofar as it prohibits entering or breaking into " other apparatus or equipment." Nerud argues that this phrase is vague both on its face and as applied to him. We disagree.
A. Standard of Review and Applicable Law
[¶6] The constitutionality of a statute is a legal question that we review de novo. People v. Allman, 2012 COA 212, ¶ 7, 321 P.3d 557. We presume that the statute is constitutional, and the challenging party bears the burden of proving its unconstitutionality beyond a reasonable doubt. People v. Baer, 973 P.2d 1225, 1230 (Colo. 1999).
[¶7] " A statute is void for vagueness where its prohibitions are not clearly defined and it is reasonably susceptible of more than one interpretation by a person of common intelligence." Allman, ¶ 18 (internal quotation marks omitted). A vague statute violates due process because it fails to give fair notice of what conduct is prohibited and it does not supply adequate standards to prevent arbitrary and discriminatory enforcement. Baer, 973 P.2d at 1233.
[¶8] We will sustain a facial challenge only where a statute is impermissibly vague in all of its applications. Id. If the facial challenge fails, the defendant must demonstrate that the statute is impermissibly vague as applied to him or her. Id.
B. Third Degree Burglary Statute and Relevant Case Law
[¶9] Section 18-4-204(1) provides that " [a] person commits third degree burglary if with intent to commit a crime he enters or breaks into any vault, safe, cash register, coin vending machine, product dispenser, money depository, safety deposit box, coin telephone, coin box, or other apparatus or equipment whether or not coin operated." The statute does not explain or define the phrase " other apparatus or equipment."
[¶10] Three cases interpreting this statute are relevant to our analysis. First, in People v. Garcia, 784 P.2d 823, 825 (Colo.App. 1989), a division of this court explained that the statute was intended " to address the problem of unauthorized entry into any structure or apparatus designed to receive and hold money or valuables." The division held that a parking lot money collection box was a " money depository" within the meaning of the statute. Id.
[¶11] In People v. Geyer, 942 P.2d 1297, 1300 (Colo.App. 1996), a division of this court held that the phrase " other apparatus or equipment" was not unconstitutionally vague as applied to a defendant who broke into a locked glass display case. The division reasoned that the display case constituted " other apparatus or equipment" within the meaning of the statute because it was " similar to a 'vault,' i.e., a room or area designed for the safekeeping of valuables." Id.
[¶12] More recently, in Winter v. People, 126 P.3d 192, 196 (Colo.
[¶13] 2006), our supreme court held that unlocked employee lockers were not " other apparatus or equipment" under the third degree burglary statute. To interpret that phrase, the court applied the doctrine of ejusdem generis, a rule of statutory interpretation by which " general terms are applied only to those things of the same general kind or class as those specifically mentioned." Id. at 195. Based on the characteristics of the items listed in the statute, the court articulated the following standard for determining whether a container constitutes " other apparatus or equipment" :
[W]hether any given container falls within the purview of the statute depends on whether the apparatus or equipment is merely a storage receptacle or is of the same kind or class as those items enumerated in the statute, that is, whether the container is designed for the safekeeping of money or valuables, and whether that design or use is evident.
[¶14] The court stated that, given the frequent use of lockers for safekeeping valuables,
their omission from the statute's enumerated list is " significant." Id. However, the court noted that lockers may be used to store any manner of items, may be secured or unsecured, may be any size, and may be constructed from n numerous materials. Id. at 196. Given these variations, whether a locker falls within the ...