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People v. Berry

Court of Appeals of Colorado, Second Division

May 18, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
William Steven Berry, Defendant-Appellant.

         Lake County District Court No. 14CR32 Honorable D. Wayne Patton, Judge

         JUDGMENT AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS

          Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Elkus Sisson & Rosenstein, P.C., Donald C. Sisson, Reid J. Elkus, Denver, Colorado, for Petitioner-Appellant

          OPINION

          JONES J., JUDGE

         ¶ 1 A jury found William Steven Berry guilty of embezzlement of public property and first degree official misconduct. He appeals, contending that (1) there was insufficient evidence to support the convictions; (2) the district court erred in defining for the jury "public property" as used in the embezzlement statute; and (3) the embezzlement conviction and felony theft acquittal were inconsistent, requiring that the embezzlement conviction be vacated.

         ¶ 2 We affirm Berry's conviction for first degree official misconduct, but, because we conclude that there was insufficient evidence to prove the embezzlement of public property charge, we vacate that conviction.

         I. Relevant Facts and Procedural History

         ¶ 3 Berry was a sheriff's deputy when he and two other deputies responded to a domestic violence call involving a husband and his wife. The wife told the officers that her husband owned four guns and she wanted them removed from her home. The officers took the guns and put them in the Lake County Sheriff's evidence locker, where the guns remained while the domestic violence charges against the husband were pending.

         ¶ 4 After those charges were resolved, the district attorney authorized the sheriff to either destroy the guns or return them to their rightful owner. Because the owner of the guns (the husband) had been deported from the United States, the sheriff could not return them to him (even if he were otherwise legally entitled to them), so the sheriff planned to destroy them. However, before the guns were destroyed, Berry supposedly bought the guns from the wife.

         ¶ 5 Berry saw the wife while he was on duty, in full uniform, and driving his patrol car. He followed her in his patrol car to a nearby gas station and approached her to discuss buying the guns. When she questioned the legality of such a sale, Berry said, "of course [it is legal]. I am a representative of the law. If I come to you with this offer, it is because I can do it, because it is legal." The wife agreed to sell the guns, including a rare and valuable pistol, to Berry, for $500.

         ¶ 6 After obtaining the guns, Berry gave one of them to the deputy in charge of the evidence locker who had released the guns, and agreed to sell the pistol to an out-of-state buyer.

         ¶ 7 Both Berry and the wife agreed that Berry paid the wife $500 for the guns, but the evidence regarding how or from whom Berry obtained possession of the guns was inconsistent. Berry argued that the wife signed a sheriff's department release form and then sold the guns to him a week later. But the wife testified that she never signed the release form, denied that she had ever gone to the sheriff's office to pick up the guns, and testified that she never saw the guns after she asked the officers to remove them from her home.

         ¶ 8 As a result of these events, the People charged Berry with embezzlement of public property, felony theft, taking possession of a firearm before completion of a firearms transfer background check, and first degree official misconduct. The district court instructed the jury, over defense counsel's objection, that "property is something owned or possessed." The jury acquitted defendant of felony theft and the background check charge, but found him guilty of embezzlement of public property and first degree official misconduct.

         II. The Evidence Was Insufficient to Support the Embezzlement Conviction

         ¶ 9 Berry argues that the evidence admitted at trial was, for two reasons, insufficient to support a guilty verdict on the embezzlement charge. First, he argues that the statute under which he was charged - section 18-8-407, C.R.S. 2016 - requires proof that the property he converted - the four guns - was owned, and not merely possessed, by Lake County, and that there was no evidence that Lake County owned the guns. Second, he argues that there was no evidence that he converted the guns: he had no authorization to remove them from the Sheriff's Office evidence room, and it was undisputed that another deputy actually removed them from the evidence room. We agree with Berry's first argument, and therefore do not reach his second.

         A. Standard of Review

         ¶ 10 Berry's first argument requires us to determine two things.

         Initially, we must determine the meaning of "public property" in section 18-8-407(1). That, of course, is an issue of law that we decide de novo. Marsh v. People, 2017 CO 10M, ¶ 19. If we determine that "public property" in section 18-8-407(1) is limited to property that is publicly owned, we must then determine whether the evidence was sufficient to establish that element.[1] That too is an issue that we decide de novo. Id.

         B. "Public Property" as Used in Section 18-8-407(1) Is Limited to Property Owned by the State or a ...


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