(620 P.2d 36)
No. 78-1011Colorado Court of Appeals.
Decided April 3, 1980. Rehearing denied June 5, 1980. Certiorari denied September 8, 1980.
Defendant was convicted by a jury of felony theft and acquitted of second degree burglary of a dwelling, and he appealed.
Affirmed
1. CRIMINAL LAW — Jury Instruction — No Prejudicial Error — Defects — Assertedly Corrected — Defendant’s Revisions. Defendant could not assert prejudicial error as to jury instruction on possession of recently stolen property where he was claiming that instruction was defective on precisely same grounds which he maintained at trial were rectified by changes in the instructions which he made.
2. Instruction — Recent Possession — Stolen Property — Later Case — Recommended Model Instruction — No Error — Instruction Given. Although in case announced subsequent to defendant’s theft trial, the Supreme Court recommended model instructions on inference which may be drawn from recent and unexplained possession of stolen property, that case also expressly approved inference of guilt that may be drawn and refused to disturb previous decisions holding that a defendant’s rights to due process are not violated by a recent possession instruction; consequently, there was no error in the recent possession instruction given in defendant’s trial.
Appeal from the District Court of the City and County of Denver, Honorable Susan G. Barnes, Judge.
J.D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Assistant Attorney General, William Morris, Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Robert Breindel, Deputy State Public Defender, for defendant-appellant.
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Division III.
Opinion by JUDGE BERMAN.
Defendant, Stephen G. Szloboda, was convicted by a jury of felony theft and acquitted of second degree burglary of a dwelling. His sole contention on appeal is that the trial court’s instruction on exclusive, unexplained possession of recently stolen property was violative of his rights to due process of law. We affirm.
The record reflects that nine days after the burglary and theft the police recovered the victim’s truck parked near defendant’s home. Keys for the truck had been taken from the victim’s home and the truck from in front of the house. Defendant had been observed driving the truck by two of his neighbors, and items identified as belonging to him were found in it.
Evidence presented by defendant sought to establish that the truck was in the possession of another man who gave him a ride in it two days after commission of the offenses and from whom he subsequently borrowed it. Defendant testified that he did not learn until later that the truck had been stolen.
The trial court initially rejected instructions on exclusive, unexplained possession of recently stolen property tendered by both the prosecution and by defendant. The prosecution submitted an instruction substantially similar to that approved in People v. McClendon, 188 Colo. 140, 533 P.2d 923 (1975), with an addition reflecting that defendant had furnished evidence purporting to explain his possession. Defendant thereafter, at the court’s request, “refined” this instruction, and his revised instruction was utilized by the court.
The instruction read:
“You are instructed that recent, unexplained, and exclusive possession of stolen goods from a theft or burglary will support the inference that the person in possession of the goods is guilty of the theft or burglary and that such an inference can be sufficient in and of itself to sustain a conviction for burglary or theft. But you may draw that inference, and convict the defendant of burglary or theft based upon that inference, only if you decide that recent, unexplained, and exclusive possession of the goods by the defendant has been established by the evidence beyond a reasonable doubt.
‘Unexplained’ for the purpose of this instruction means that there is no explanation derived from the evidence in the case or furnished by the defendant which raises a reasonable doubt as to his guilt.”
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In support of this instruction, defense counsel argued, inter alia, that it clearly required the prosecution to prove beyond a reasonable doubt defendant’s recent, unexplained, exclusive possession of the recently stolen truck before it received the benefit of any inference and also that it clearly set forth that defendant did not have the burden of proof. He argued to the jury that defendant’s testimony, corroborated by that of other witnesses, offered an explanation sufficient to raise a reasonable doubt as to his guilt.
Relying on Wells v. People, 197 Colo. 350, 592 P.2d 1321 (1979), which was announced after the instant case was tried, defendant now alleges that the instruction permits an impermissible inference that the corpus delicti
was proven and fails to instruct on the prosecution’s burden of proof and the defendant’s right to remain silent.
Judgment affirmed.
JUDGE PIERCE and JUDGE VAN CISE concur.
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