The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John Taylor MOODY, Defendant-Appellee.
No. 82SA515.
Supreme Court of Colorado, En Banc.
Jan. 9, 1984.
676 P.2d 695 | 366-371
KIRSHBAUM, Justice.
Paul Q. Beacom, Dist. Atty., Steven L. Bernard, Chief Trial Deputy, Kathryn J. Aragon, Deputy Dist. Atty., Brighton, for plaintiff-appellant. David F. Vela, Colorado State Public Defender, Dorian E. Welch, Deputy State Public Defender, Denver, for defendant-appellee.
The Court of Appeals in International Technical Instruments, Inc. v. Engineering Measurements Co., (Colo.App.1983), adopted a definition of “frivolous” to be used in applying
III.
KERE‘s appeal cannot be deemed frivolous in the light of the standards set forth in this opinion. From our review of the record, we cannot conclude that KERE presented no rational argument based on the evidence. The appeal sought reversal in the Court of Appeals because the trial court‘s findings either were not supported by any evidence or were not sustained by competent, adequate evidence which appeared in the record. We do not find that KERE‘s appeal, merely because ultimately unsuccessful, presented no rational argument in support of its claims or that the purpose was for harassment or delay.
IV.
When an appellate court imposes C.A.R. 38 sanctions upon an appellant, due process requires that the appellant be afforded certain protections before being deprived of his property. He is entitled to notice and an opportunity to respond, Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).
If an appellee requests the reviewing court to impose C.A.R. 38 sanctions in his opposition brief, the appellant will necessarily have notice and can respond. If C.A.R. 38 sanctions are to be imposed, sua sponte, against an appellant, however, the appellant must be given an opportunity to respond after he is provided with notice.
Appellee never asked the Court of Appeals to impose sanctions. Appellant first learned that it had prosecuted what the Court of Appeals believed to be a frivolous appeal when the court‘s opinion was published. KERE did not receive notice. Its petition for rehearing which addressed the issue was denied.
Accordingly, since KERE‘s appeal was not frivolous, we reverse and dismiss the sanctions imposed by the Court of Appeals.
ROVIRA, J., does not participate.
The People, pursuant to
At the conclusion of the prosecution‘s case-in-chief defendant moved for a judgment of acquittal, asserting that the evidence failed to establish the offense charged in the information. The prosecution then moved to amend the information, pursuant to Crim.P. 7(e).2 The trial court
I.
Defendant was charged with a violation of
“(1) A person commits theft of rental property if he:
. . . .
(b) Having lawfully obtained possession for temporary use of the personal property of another which is available only for hire knowingly fails to reveal the whereabouts of or to return said property to the owner thereof or his representative or to the person from whom he has received it within seventy-two hours after the time at which he agreed to return it.” (emphasis added)
The information contains the following allegations:
“Between January 4, 1982 to the 6th day of January A.D. 1982, at the ... County of Adams in the State of Colorado [defendant] having lawfully obtained possession for temporary use of semi-trailer, serial # 68463, the personal property of the victim, American Storage [Trailer] Leasing, which property was available only for hire, did feloniously, unlawfully and knowingly fail to reveal the whereabouts of and return said property to said victim and his representative and to the person from whom the defendant had agreed to return the property....”
In its opening brief the People have conceded that the information as filed informed the defendant that the dates of the offense charged were between January 4 and January 6, 1982. The People‘s evidence established that the contract in question was executed on January 4, 1982, and that, pursuant to its express terms, the semi-trailer was to be returned by midnight on January 6, 1982. The owner of the rental agency testified that on or about January 8 defendant telephoned him from New Mexico, disclosed where he was calling from, and indicated he would not be coming directly back to Colorado. The owner also testified that defendant at some later time spoke with another employee of the agency by telephone about the vehicle. Defendant never returned the semi-trailer to the agency, although the agency regained possession of the vehicle in May of 1982.
Two distinct acts are prohibited by
II.
The People also contend that the trial court erred in granting defendant‘s motion for judgment of acquittal. The People assert that any variance between the evidence and the allegations of the information was immaterial and of no prejudice to defendant. We have indicated that in prosecutions commenced under this statute, allegations of time are substantive allegations, not merely matters of form. The record supports the trial court‘s conclusion that the evidence did not establish that an offense occurred between January 4 and January 6, 1982, as alleged. Under these circumstances, the trial court did not err in granting defendant‘s motion.
The judgment is affirmed.
LOHR, Justice, dissenting:
In this appeal of a question of law by the prosecution after jeopardy has attached,1 there are two issues presented: whether an information that charges the defendant with failing to reveal the whereabouts of and return rental property is sufficient under the felony theft of rental property statute,2 and whether if it is insufficient the trial court may properly deny a motion before the verdict to amend it by specifying the date on which criminal liability arose, in conformance with the evidence presented by the prosecution. The majority holds that the information is insufficient because it appears to allege that the criminal conduct took place during a period when the defendant lawfully possessed the rental property. It further holds that the trial court did not err in granting the defendant‘s motion for judgment of acquittal, and that the court properly exercised its discretion in refusing to permit amendment of the information. Because I disagree with each of these conclusions, I respectfully dissent.
I.
Before the defendant‘s motion for judgment of acquittal, the evidence presented by the prosecution established that the defendant contracted in Dupont, Colorado, to rent a forty-foot semi-tractor trailer worth $4,000 from January 4, 1982, to January 6, 1982, that he agreed to pick it up on the former date and return it on the latter date, that he in fact picked it up on the former date, that he did not return it on the latter date, that he never returned it to the owner, that he never revealed the whereabouts of the trailer to the owner except in a telephone call from New Mexico one or two days after the return date,3 and that the trailer was recovered by the owner from a truck stop in Los Angeles on May 18, 1982.
On March 9, 1982, before the trailer was recovered, the district attorney charged the defendant with theft of rental property. The information identified the defendant and the victim, and described the stolen property as a “semi-trailer, serial # 68463 ... of a value of Two Hundred Dollars or more.” The information also lists the rental agreement period dates, January 4, 1982, and January 6, 1982. The trial court be-
As the majority notes, under the theft of rental property statute the prosecution must prove that the defendant failed to reveal the whereabouts of or return the rental property within seventy-two hours after the time at which he agreed to return it. On the facts of this case, that would be January 9, 1982. As I interpret the information, the defendant was charged with failing to reveal the whereabouts of or return the rental property through March 9, 1982, the date when the information was filed. This includes failing to do so after January 9, 1982.
The information is somewhat ambiguous, and it must be noted that the defendant has the right to demand the nature and cause of the accusation.
Our decisions elaborating on what is required to render an information technically sufficient and correct make it clear that the information in this case was sufficient. Generally, an information must answer the questions of who, what, where and how. See People v. Tucker, 631 P.2d 162 (Colo. 1981) (considering challenge to indictment). This information did so. It must be sufficient to advise the accused of the charges against him, give him a fair and adequate opportunity to prepare his defense, ensure that he is not taken by surprise by the evidence offered at trial, and allow him to plead the judgment to bar further prosecutions for the same offense. People v. Cooke, 186 Colo. 44, 525 P.2d 426 (1974); People v. Flanders, 183 Colo. 268, 516 P.2d 418 (1973). This information did so. There is no requirement that every element of the offense be alleged in the information. People v. Ingersoll, 181 Colo. 1, 506 P.2d 364 (1973). Specifically, we have held on many occasions that a variance between the date of the offense as alleged in the information and as proven at trial is not fatal where the defendant makes no showing of prejudice. E.g., People v. Adler, 629 P.2d 569 (Colo. 1981); Marn v. People, 175 Colo. 242, 486 P.2d 424 (1971); Albritton v. People, 157 Colo. 518, 403 P.2d 772 (1965); Laycock v. People, 66 Colo. 441, 182 P. 880 (1919). If the defendant must show prejudice when the date in the information is incorrect, then clearly he must show prejudice when the date is ambiguous, as here. People v. Donelson, 194 Colo. 175, 570 P.2d 542 (1977), cited by the majority as contrary, is distinguishable. That case concerned sufficiency of the evidence, not the information; there was no evidence that the defendant there intentionally had not returned the rental property before the rental period expired. Where a criminal scheme is ongoing, as this one was, we have held that a defendant charged with committing a crime on a date within the period of the statute of limitations may be convicted if the evidence shows that the crime occurred at any time within that period. Peters v. People, 151 Colo. 35, 376 P.2d 170 (1962).
There was no showing that the defendant was prejudiced by the alleged ambiguity in the information. The prosecution‘s evidence established that the defendant failed to return the trailer or inform the victim of its whereabouts within 72 hours after the return time specified in the rental agreement. The defendant does not allege that he was denied access to this evidence in discovery or at the pretrial conference. Indeed, he did not even raise the issue of any ambiguity in the information until long after it was issued, after jeopardy had at-
II.
Assuming, for the sake of argument, that the information was technically inaccurate, if the defendant was not prejudiced thereby then the trial court should have permitted amendment of the information. See People v. Buckner, supra. This is specifically provided for in Crim.P. 7(e), which allows amendment “as to form” at any time before the verdict “if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” The district attorney suggested amendment of the information when the issue arose. The amendment would have been an elaboration of the original charge, not a different charge. By refusing to permit amendment of the information before the verdict contrary to the specific standards set forth in Crim.P. 7(e), the trial court abused its discretion. People v. Hertz, 196 Colo. 259, 586 P.2d 5 (1978). This court has expressly adopted a liberal policy regarding amendment of charging documents to avoid dismissal for technical irregularities that can be cured, so that substance prevails over form. Id.; People v. Bowen, 658 P.2d 269 (Colo.1983).
III.
The legislature has prescribed recommended forms of indictments and informations to be deemed technically sufficient.
DUBOFSKY and ROVIRA, JJ., join in this dissent.