v. Berry, 2020 CO 14

In 2013 Lake County deputy William Steven Berry removed four firearms from the sheriff’s office evidence locker after they were seized in a domestic-violence investigation; the firearms were owned by a private individual (J.V.).
The district attorney authorized release or destruction; because the owner and the witness were undocumented and release was impracticable the sheriff planned to destroy the guns.
While on duty and in uniform, Berry followed the witness (P.E.), told her he could legally buy the firearms because of his status, paid $500, produced a bill of sale, and later obtained the guns from the evidence locker (with help from another deputy).
Berry kept two guns, gave one to another deputy, and attempted to sell a rare Colt; an internal investigation led to criminal charges.
A jury convicted Berry of embezzlement of public property and first-degree official misconduct; the court of appeals vacated the embezzlement conviction and affirmed official misconduct; the Colorado Supreme Court affirmed the court of appeals.

Issue	Plaintiff's Argument (People)	Defendant's Argument (Berry)	Held
Whether “public property” in § 18-8-407 includes property in the government’s possession but not owned by the government	“Public property” covers property owned or possessed by the state/political subdivision; possession suffices	“Property of the state” requires ownership/proprietary interest; possession alone is insufficient	The statute covers only property owned by the state or a political subdivision; firearms were privately owned, so no embezzlement under § 18-8-407
What constitutes an act “relating to [an official’s] office” for official misconduct (§ 18-8-404)	Berry’s on-duty, uniformed approach and use of evidence-locker access relied on his office, so the act related to his office	The conduct was personal, not an exercise of official duties, and thus did not relate to his office	Official misconduct is construed broadly: using opportunities afforded by office suffices; Berry’s conduct was an act relating to his office and violated § 18-8-404

State v. Bullock, 642 A.2d 397 (N.J. 1994) (when officers commit malfeasance made possible by their office or the opportunity it affords, the act relates to their office for official-misconduct purposes)
People v. Gallegos, 260 P.3d 15 (Colo. App. 2010) (applies Black’s definition of “public property” in interpreting § 18-8-407)
Wright v. People, 91 P.2d 499 (Colo. 1939) (discusses meaning of public funds/property in statutory context)
Starr v. People, 157 P.2d 135 (Colo. 1945) (interprets public-funds/property statutes in light of ownership)
Price v. People, 240 P. 688 (Colo. 1925) (treats funds held in trust by a municipality as belonging to the municipality in embezzlement context)
McCoy v. People, 442 P.3d 379 (Colo. 2019) (de novo review and statutory-interpretation principles)