2017 COA 65
Colo. Ct. App.2017Background
- William Berry, a Lake County sheriff’s deputy, helped seize four guns during a domestic-violence call; the guns were held in the sheriff’s evidence locker while charges were pending.
- After the charges resolved and the owner was deported, the sheriff authorized destruction or return of the guns; before destruction, Berry (in uniform and driving a patrol car) arranged to buy the guns from the victim’s wife for $500.
- The wife testified she never signed a release or retrieved the guns; Berry claimed she had signed a release and later sold them to him. Another deputy removed at least one gun from the evidence locker and returned it to Berry or his associate.
- Berry was charged with embezzlement of public property (section 18-8-407), felony theft, unlawful firearm transfer, and first-degree official misconduct; the jury acquitted on theft and the transfer charge but convicted on embezzlement and official misconduct.
- On appeal, Berry argued insufficient evidence for embezzlement, error in the court’s jury instruction defining “property,” and inconsistency between embezzlement conviction and theft acquittal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether “public property” in § 18-8-407(1) includes property merely possessed by a public entity | The People argued “public property” can include property in the government’s custody/possession (not only owned) | Berry argued the statute requires the property be owned by the state or political subdivision | Court held “public property” is limited to property owned by the state or political subdivision; custody/possession alone is insufficient. |
| Sufficiency of evidence that Lake County owned the guns | People relied on evidence that the guns were in the sheriff’s evidence locker and subject to department control | Berry pointed out the husband owned the guns and the county never acquired ownership | Held there was no evidence Lake County owned the guns; embezzlement conviction vacated for insufficiency. |
| Whether Berry converted public property | People argued Berry effectively took/control of guns and thus converted them | Berry argued he lacked authorization and another deputy physically removed the guns | Court did not reach the conversion factual dispute because the ownership element was unmet; conviction vacated. |
| Sufficiency of evidence for first-degree official misconduct (use of office) | People argued Berry used his office (uniform, patrol car, authority) to facilitate the purchase, satisfying “act relating to his office” | Berry argued buying the guns was not an act relating to his office | Court held evidence that Berry used his office to effectuate the transaction supported the official-misconduct conviction. |
Key Cases Cited
- Wright v. People, 104 Colo. 335, 91 P.2d 499 (interpretation that statute applies to funds that “belong[] to” the county)
- Starr v. People, 113 Colo. 268, 157 P.2d 135 (distinguishing funds that belong to the state and are subject to statutory restrictions)
- People v. Fielden, 162 Colo. 574, 427 P.2d 880 (embezzlement requires property owned by another and conversion without consent)
- People v. Skrbek, 42 Colo. App. 431, 599 P.2d 272 (qualified governmental ownership supports embezzlement charge; read as consistent with ownership requirement)
- Gill v. People, 139 Colo. 401, 339 P.2d 1000 (discussing embezzlement as extension of larceny where property comes into lawful possession)