People v. Nerud
2015 COA 27
Colo. Ct. App.2015Background
- Defendant Joseph S. Nerud stole cash and a backpack from gym lockers on three occasions; he was caught during the third theft and admitted all three thefts but claimed the lockers in the first two incidents were unlocked.
- Nerud was charged with two counts of third-degree burglary (relating to the first two incidents) and three counts of theft (including the admitted third incident).
- The disputed factual issue at trial was whether the first two victims’ lockers were locked; both victims testified they had secured their lockers with personal combination locks.
- The jury convicted Nerud on all counts; he appealed raising constitutional, sufficiency, instruction, and prosecutorial-misconduct claims.
- The Court of Appeals affirmed, rejecting vagueness and as-applied challenges to the statute, finding sufficient evidence of locked lockers, upholding the jury instructions, and finding any instructional or argument errors harmless or not plain error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vagueness of "other apparatus or equipment" (facial) | Statute provides sufficient guidance under ejusdem generis; not at issue for People | Nerud: phrase is unconstitutionally vague on its face | Rejected — statute is not vague on its face; ejusdem generis limits the phrase to containers designed for safekeeping of money/valuables |
| Vagueness (as-applied to gym lockers) | People: locked gym lockers fall within "other apparatus or equipment" as used for safekeeping | Nerud: phrase vague as applied; signs and public access mean lockers not covered | Rejected — lockers secured with personal locks have features showing use for safekeeping and statute applies |
| Sufficiency of evidence for burglary convictions | People: victims’ testimony that lockers were locked suffices for jury verdict | Nerud: no locks found and no damage/corroboration, so evidence insufficient | Rejected — victim testimony alone was sufficient; credibility/resolution of conflict for jury |
| Jury instruction on possession of recently stolen property & prosecutor comments | People: instruction supported by evidence; prosecutor’s remarks were anchored in evidence | Nerud: instruction emphasized evidence only relating to third (admitted) theft; prosecutor vouched for witnesses and referenced drug paraphernalia improperly | Instruction error, if any, harmless; prosecutor’s credibility statements were permissible argument; drug-paraphernalia remark not plain error |
Key Cases Cited
- People v. Garcia, 784 P.2d 823 (Colo. App.) (statute covers devices designed to receive and hold money; upheld parking-lot collection box as money depository)
- People v. Geyer, 942 P.2d 1297 (Colo. App.) (display case constituted "other apparatus or equipment" because similar to a vault)
- Winter v. People, 126 P.3d 192 (Colo. 2006) (applied ejusdem generis: "other apparatus or equipment" limited to containers designed for safekeeping of money/valuables; unsecured employee lockers not covered)
- Wells v. People, 592 P.2d 1321 (Colo.) (approved model instruction on unexplained exclusive possession of recently stolen property as permissive inference)