No. 82CA1267Colorado Court of Appeals.
Decided May 2, 1985. Rehearings Denied May 30, 1985. Certiorari Denied Williams October 21, 1985. Certiorari Denied People October 21, 1985.
Appeal from the District Court of Adams County Honorable Dorothy Binder, Judge
Page 1024
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, David K. Rees, Special Assistant Attorney General, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Rachel A. Bellis, Deputy State Public Defender, for Defendant-Appellant.
Division II.
Opinion by JUDGE BERMAN.
[1] Defendant, Thaddiues Martinez Williams, appeals the judgment of conviction entered following a jury verdict finding him guilty of conspiracy to commit criminal extortion and attempted theft but acquitting him of extortion. We affirm in part and reverse in part. [2] The prosecution’s evidence showed that a person purporting to be an FBI agent called an Aurora shoe store and told the store employee that an informant had indicated that her shoe store would be the target of an extortion attempt that day. A few minutes later a “gruff sounding” man called and demanded that she take all the money in the store, put it into a bag, and drop it behind a dumpster at a nearby convenience store. The caller threatened to throw a grenade into the store if she did not comply. [3] At this point, the victim contacted the police department. The police put the drop site under surveillance and assisted the victim in carrying out the extortionist’s demand. Surveillance officers identifiedPage 1025
defendant and two co-defendants in the immediate vicinity of the drop. Officers observed the defendant approach the bag containing the money on two occasions, but on neither occasion did he touch the bag.
[4] Defendant also looked into vehicles in the area surrounding the drop. One of the vehicles contained police officers who thought that defendant had seen them lying on the floor of their car. [5] After defendant first approached the bag of money, officers saw him talking with two men in the entryway to a nearby apartment building. The two men were later charged as co-defendants in this case. Defendant led one of these men back to the area where the officers were lying on the floor of their car and pointed out the car. One of the co-defendants’ voices was identified by the victim as the person claiming to be the FBI agent and probably the extortionist. The other co-defendant accompanied a four-year-old boy, who picked up the money bag. Following defendant’s arrest, police discovered that defendant had been wearing two sets of clothing at the time of the incident. I.
[6] Defendant contends the evidence was insufficient to support the verdict on the charge of conspiracy to commit extortion because the prosecution did not prove the agreement element of conspiracy. We disagree.
(1976). [8] Evidence is sufficient to support the verdict if, when the evidence is viewed in a light most favorable to the prosecution, a jury could reasonably conclude therefrom that each material element of the offense had been proven beyond a reasonable doubt. People v. Loscutoff, 661 P.2d 274
(Colo. 1983); People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973). [9] Here, the evidence showed that defendant approached the money bag on two occasions and looked into the cars surrounding the drop site. Defendant also pointed out a car containing the officers to the man who eventually attempted to retrieve the money with the assistance of a little boy. This evidence, viewed in a light most favorable to the prosecution, was sufficient for a jury reasonably to conclude that there was an agreement to accomplish the extortion, and that defendant played a part in the crime.
II.
[10] Defendant next contends that the verdicts were inconsistent and, thus, the trial court erred in denying his motion for acquittal to the conspiracy charge notwithstanding the verdict. We disagree.
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C.R.S. (1978 Repl. Vol. 8); Robles v. People, 160 Colo. 297, 417 P.2d 232
(1966).
III.
[14] Defendant contends the trial court committed plain error in instructing the jury on the elements of attempted theft. We agree.
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necessary in order to be convicted of the crime of Theft.”
[17] Defendant failed to object to the instruction at trial or in his motion for new trial. [18] To be guilty of criminal attempt, the actor must act with the kind of culpability otherwise required for commission of the underlying offense and must engage in conduct which constitutes the substantial step with the further intent to perform acts which, if completed, would constitute the underlying offense. People v. Frysig, 628 P.2d 1004 (Colo. 1981). The intent to complete the underlying offense element of the crime of attempt may be satisfied by proof that the defendant acted either intentionally or knowingly, depending upon the mens rea required by the underlying offense People v. Krovarz, 697 P.2d 378 (Colo. 1985). [19] The instruction here was erroneous because it failed to instruct the jury that in order to be found guilty of attempt, the defendant must intend to complete the underlying crime. People v. Frysig, supra. In Frysig, although the court erroneously instructed the jury, that error was cured by a contemporaneous instruction defining the term substantial step. [20] Failure to instruct the jury properly with respect to an essential element of the crime charged constitutes plain error. Ramirez v. People, 682 P.2d 1181 (Colo. 1984). Under this standard, we test the sufficiency of the instructions by examining them as a whole to ascertain whether the appropriate mental state was clearly explained to the jury. People v. Mattas, 645 P.2d 254 (Colo. 1982). [21] Here, the instructions taken as a whole failed to instruct the jury that the defendant must intend to complete the crime attempted. Unlike the situation in People v. Frysig, supra, there was no definition of substantial step that cured the deficient instruction. [22] The judgment of conviction of conspiracy to commit extortion is affirmed, the judgment of conviction of attempted theft is reversed, and the cause is remanded for a new trial as to that crime. [23] JUDGE KELLY concurs. [24] JUDGE VAN CISE concurs in part and dissents in part. [25] JUDGE VAN CISE concurring in part and dissenting in part. [26] I concur in parts I and II of the majority opinion and in the affirmance of defendant’s conviction of conspiracy to commit extortion. I respectfully dissent from part III and, instead, would affirm his conviction of attempted theft. [27] The jury was instructed that a person commits the crime of attempted theft if: [28] “He voluntarily engages in conduct constituting a substantial step toward the commission of the crime of Theft and has the required culpability of acting knowingly and intentionally which is necessary in order to be convicted of the crime of Theft. [29] “The elements of criminal attempt are therefore: [30] “(1) Voluntarily engaging in conduct constituting a substantial step toward the commission of the crime of Theft and [31] “(2) Having the required culpability of acting knowingly and intentionally which is necessary in order to be convicted of the crime of Theft.” [32] Defendant contends that this instruction was erroneous in that it failed to define the term “substantial step.” Admittedly, the instruction could have been more artfully drawn. However, failure to define “substantial step” does not rise to the level of plain error. See Crim. P. 52; People v. Dillon, 655 P.2d 841 (Colo. 1982); 501 P.2d 1041 (1972).