No. 89CA0992Colorado Court of Appeals.
Decided May 23, 1991. Rehearing Denied July 5, 1991. Certiorari Granted November 12, 1991 (91SC471).
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Cross-Petition for Certiorari Denied November 12, 1991 (Schuett). Certiorari Granted on the following issues: Whether the court of appeals erred in holding that the second-degree kidnapping element, “without lawful justification,” is a term of art which has no common meaning, is defined as “in the pursuit or furtherance of an illegal purpose,” and that the trial court is required to instruct the jury on that judicial definition. Whether the court of appeals erred by finding plain erro sua sponte on the basis of the trial court’s failure to give a judicial definition of the term “without lawful justification” in answer to a question asked by the jury during deliberations, where the defense neither objected in the trial court to the answer given nor claimed error on appeal on the basis of the answer, and where the answer contained no misstatement of law.
Appeal from the District Court of Jefferson County Honorable Henry E. Nieto, Judge.
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Clement P. Engle, Assistant Attorney General, for Plaintiff-Appellee.
Lowery, Lamb and Lowery, P.C., Philip E. Lowery, Timothy J. Lamb, Teresa W. Seymour, for Defendant-Appellant.
Division I.
Opinion by JUDGE PIERCE.
[1] Defendant, Sherman Schuett, appeals from a judgment of conviction entered upon a jury verdict finding him guilty of second degree kidnapping, second degree forgery, and theft. He also appeals the sentence imposed thereon. We affirm in part and reverse in part. [2] There was evidence present that, in July 1987, defendant removed the alleged victim, an elderly and allegedly senile woman for whom he was caring, from Jefferson County, Colorado, to Guadalajara, Mexico, where he had her admitted to a rest home. That transaction formed the basis of the kidnapping charge. [3] There was also evidence presented to prove that, in November 1987, while the victim was still in Mexico, defendant simulated her signature on one check and cashed two others for which he received cash. The forgery and theft charges were based on those transactions. Defendant was sentenced to five years on each count, to be served concurrently. [4] Defendant asserts that the evidence was insufficient to sustain his conviction on any of the counts. I.
[5] Defendant first contends that the People have not established a prima facie case of second degree kidnapping as defined in § 18-3-302, C.R.S. (1990 Cum. Supp.). That statute requires that the prosecution prove the following elements:
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[13] Defendant next maintains that the prosecution failed to establish that the trip to Mexico was taken without the victim’s consent. [14] At trial, the prosecution proceeded under the theory that the victim was unable to give her consent because she suffered from the mental disease of senility. Section 18-1-505(3)(b), C.R.S. (1986 Repl. Vol. 8B) provides, in relevant part, that: [15] “[a]ssent does not constitute consent if it is given by a person who, by reason of . . . mental disease or mental defect . . . is manifestly unable and is known or reasonably should be known by the defendant to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense.” [16] The prosecution produced testimony from three expert witnesses who established that the victim suffered from senility to the extent that she did not know where she was, what day it was, and that she was unable to make a reasonable judgment as to whether the Mexico trip might be harmful to her or her interests. Moreover, the testimony established that the victim’s disease would be obvious to anyone who spent time with her. [17] Another prosecution witness testified that, four months prior to her departure, the victim objected to going to Mexico. This witness also testified that defendant took the victim to Mexico so that he could retain control over her money. [18] Even though defendant testified that he acted only in the victim’s best interests, it is the fact finder’s function to determine what weight should be given to all parts of the evidence, including resolving conflicts, inconsistencies, and disputes in the evidence. Kogan v. People, 756 P.2d 945 (Colo. 1988). Viewing the evidence in the light most favorable to the prosecution, we conclude that there was sufficient evidence to submit the issue of consent to the jury. [19] The final element mentioned in the statute is that the seizing and carrying away of a person must be “without lawful justification.” This element also must be proved beyond a reasonable doubt. People v. Rex, 636 P.2d 1282 (Colo.App. 1981). [20] We would further note that this element is of special importance in this statute because without it, a result would be reached that would surely not be within the intent of the General Assembly. For example, if a person were to, even at their own considerable expense, remove a senile parent from the parent’s home and place the parent in a retirement home, this statute would be technically violated. [21] The element presents a perplexing problem because of the facts of this case and an incident that occurred during the jury deliberations. The jury was instructed that each element of the crime had to be proved beyond a reasonable doubt and all of the elements were listed. [22] During their deliberations, however, the jury posed the following question regarding this instruction to the trial court: [23] “Please define the term `lawful justification’ in part 6. [24] “Are the terms `legal authority’ and `lawful justification’ synonymous ? If not, please explain the difference. [25] The trial court answered as follows: [26] “The term `without lawful justification’ is not defined in the Colorado statutes. Therefore you must give this term the common meaning that the words imply. [27] “Since the term `legal authority’ is not included in Instruction 13, the court cannot define it for you.” [28] In addition, the trial court further instructed the jury: [29] “I know that you have asked one question concerning terms, so I want to remind you specifically that you must not refer to dictionaries, encyclopedias, world books, city directories, nothing, a textbook, no reference book of any kind. You must rely on the directions that the court has given you and your own memories of the evidence that was presented to you.” [30] Since defendant failed to object to the instruction given and the trial court’s subsequent response, reversible error exists only if the omission of the definition ofPage 1066
this element rises to the level of plain error. See People v. Fuller, 791 P.2d 702 (Colo. 1990). We realize that the statute and case law provided the trial court with no guidance. We conclude, however, that the failure to offer definitions, after the jury had shown its confusion, was plain error since members of a jury must be adequately instructed in order to enable them to assess whether every element has been proven beyond a reasonable doubt. See Chambers v. People, 682 P.2d 1173 (Colo. 1984).
[31] Here, the jury could well have come up with a definition which, in fact, placed the burden on the defendant to prove that he did have legal justification. [32] In addition, this element constitutes a term of art, which is not within laymen’s knowledge. Furthermore, whether the asportation of the victim was done with “lawful justification” was a contested issue at trial and, therefore, affected the defense raised and the jury’s deliberation See People v. Esquibel, 794 P.2d 1065 (Colo.App. 1990). [33] Finally, after the jury indicated its confusion as to the application of a legal standard as an element of the charged offense, the trial court erred in referring the jury back to the original instruction and directing that the “common meaning” of this legal term be employed. See People v. Alexis, 806 P.2d 929 (Colo. 1991); Leonardo v. People, 728 P.2d 1252 (Colo. 1986). [34] We appreciate the dilemma the trial court was faced with when the statute did not contain a definition of this term, but this term does not have a common meaning. In our search for a proper definition to be given upon retrial of this charge, we have obtained no assistance from the statute itself, its legal history, the briefs in this case, or the oral argument. Likewise, our research of case and statutory law of this state and other states has provided little insight. [35] In looking at the probable intent of the General Assembly in using this language and in further considering the evil which this statute is designed to punish, we conclude that such statutory language exists to protect those who have legal authority, based on their relationship to the victim, to seize and carry a person from one place to another. See Lewis v. State, 250 N.E.2d 358 (Ind. 1969). Therefore, we define the term “without lawful justification” to mean that the actions of the defendant were committed “in the pursuit or furtherance of an illegal purpose.” [36] Examples of an illegal purpose would be an asportation with intent to commit a sexual assault, Yescas v. People, 197 Colo. 379, 593 P.2d 358(1979), the violation of a court order, see Armendariz v. People, 711 P.2d 1268 (Colo. 1986), or, in this case, if the jury believes the prosecution’s theory that placing the victim in the nursing home in Mexico was done in pursuance of the commission of a felony, for the purpose of gaining greater or easier access to deprive her of her money. [37] Therefore, we rule that the jury should have been given a definition of the term it requested and that the error entitles defendant to a new trial on the second degree kidnapping charge.
II.
[38] Defendant further argues that the evidence was insufficient to support his conviction of forgery or theft. He maintains that the prosecution failed to prove beyond a reasonable doubt that he acted without authorization or with the intent permanently to deprive the owner of her property. We reject this contention.
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[40] Because direct evidence of a defendant’s state of mind is rarely available, his intent to commit theft may be inferred from his conduct and the circumstances surrounding the case. People v. District Court, 779 P.2d 385 (Colo. 1989). [41] Defendant refers mostly to his own testimony to support his contention that the victim granted him authority to sign her name to checks and that he used all of the money to provide for the victim. However, conflicting testimony from an attorney the defendant consulted indicated that the defendant knew he was no longer authorized to deal with the victim’s assets at the time of these transactions. This testimony was admitted without objection. [42] We conclude that sufficient evidence was produced at trial to support the jury’s conclusion that defendant was guilty, beyond a reasonable doubt, of forgery and theft. Giving the prosecution the benefit of every reasonable inference and deferring to the jury’s determination of credibility, we find no merit in defendant’s assertions with regard to the sufficiency of evidence as to these two charges. See Kogan v. People, supra. III.
[43] Defendant also contends that the trial court abused its discretion in denying his motion for a continuance. Again, we find no error.
IV.
[48] Defendant next contends that the trial court committed reversible error by allowing the prosecution to impeach him with collateral source evidence, namely a bank card and loan applications prepared by defendant which contained false statements. We disagree.
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the prior inconsistent statements precluded admission of the evidence. The statute controls over CRE 613 under these circumstances. Montoya v. People, supra.
V.
[52] Defendant claims that the presentence report contains improper matters, causing him prejudice during the sentencing proceedings.
VI.
[55] Finally, defendant asserts that the sentence of three concurrent terms of five years is excessive. We address this contention as to the convictions for forgery and theft which we affirm, and as to those convictions find no abuse of discretion.