The Colorado Court of Appeals issued its opinion in People v. Gibbons on September 15, 2011.
Theft by Receiving—Perjury—Jury Instruction—Deadlock—“Time-Fuse” Jury Instruction—Ex Parte Jury Communications—Evidence—Prosecutorial Misconduct.
Defendant appealed his convictions of theft by receiving and second-degree perjury. The convictions were affirmed.
Defendant contended that the trial court gave an incomplete modified Allen instruction to the jury when the jury indicated it was deadlocked [see Allen v. People, 660 P.2d 896 (Colo. 1983)]. The trial court, in the event of jury deadlock, should not instruct the jurors that they will be excused and a mistrial declared if they cannot reach a unanimous verdict. Here, the court’s instruction, which tracked the pattern instruction for deadlocked juries, was appropriate.
Defendant argued that the trial court committed plain error in giving the jury an improper “time-fuse” instruction. A time-fuse instruction “grants the jury a time limit to finish its deliberations, at the end of which the jury will be dismissed.” Here, the trial court did not give the jury a timeline for its deliberations; it merely gave the jury additional time to deliberate.
Defendant also contended that the trial court committed plain error in conducting an impermissible ex parte conference with the jury. However, the record does not indicate that the trial court itself ever engaged in any ex parte communications with the jury. Therefore, there was no error.
Defendant further argued that the evidence was insufficient to convict him of either theft by receiving or second-degree perjury. Based on the incongruities between defendant’s statements to the ranger and (1) the ranger’s testimony as to how trailer licenses were granted, (2) the incorrect registration number on the jet ski, (3) the fact that both permits were inaccurate, and (4) the fact that both permits were inconsistent with each other; and based on defendant’s false or contradictory statement about when he first acquired and used the jet ski, the evidence supports the reasonable inference of defendant’s guilty knowledge or belief that the jet ski and trailer had been stolen. In addition, because defendant possessed the trailer and jet ski at the time the officer discovered they were stolen property, the evidence supports the independent reasonable inference that defendant knowingly used the trailer and jet ski in a manner inconsistent with the owner’s permanent use and benefit and, thus, that he intended to permanently deprive the lawful owner of their use and benefit.
Finally, defendant contended that the trial court abused its discretion in allowing certain challenged comments by the prosecutor during closing argument and rebuttal closing. However, the prosecutor’s comments constituted proper argument on the reasonable inferences that could be drawn from the circumstantial evidence concerning defendant’s state of mind. These comments did not shift the burden of proof to defendant. Therefore, the prosecutor’s comments did not constitute reversible error.