County District Court No. 14CR32 Honorable D. Wayne Patton,
AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH
Cynthia H. Coffman, Attorney General, Jacob R. Lofgren,
Assistant Attorney General, Denver, Colorado, for
Sisson & Rosenstein, P.C., Donald C. Sisson, Reid J.
Elkus, Denver, Colorado, for Petitioner-Appellant
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.
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
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.
Evidence Was Insufficient to Support the Embezzlement
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.
Standard of Review
10 Berry's first argument requires us to determine two
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. That too is an issue that we decide de
"Public Property" as Used in Section 18-8-407(1) Is
Limited to Property Owned by the State or a ...