*1 Colorado, the State of The PEOPLE of
Plaintiff-Appellee, RIDENOUR,
Randy Eugene
Defendant-Appellant. 92CA0104.
No. Appeals,
Colorado Court
Div. I. 13, 1994.
Jan.
Rehearing 1994. Denied Feb. Aug. Denied 1994.
Certiorari *2 Jr.,
Robert R. Gallagher, Atty., Dist. Brian McHugh, Deputy K. Atty., Patryce Dist. Engel, S. Intern Deputy Atty., Engle- Dist. wood, for plaintiff-appellee. Vela,
David F. Colorado State Public De- fender, Cleave, III, and Thomas M. Van Dep- uty Defender, Denver, State Public for de- fendant-appellant.
Opinion by Judge CRISWELL.* Defendant, Randy Ridenour, Eugene ap- peals judgment of conviction entered on a finding verdict guilty him of two counts * Sitting by assignment 24-51-1105, (1988 § the Chief Justice 10B). under Repl.VoI. C.R.S. Const, provisions VI, 5(3), of the Colo. art. Sec. [A]ny person knowingly, forcibly, or robbery, who one count second any person count of first otherwise and carries kidnapping, and one seizes degree ... place one to another commits degree burglary. We conviction reverse aggravated robbery, degree kidnapping. but count of second on one affirm. otherwise carries,” satisfy aspor- *3 To the “seizes and tation, degree kidnapping, element of second 30, midnight September Shortly after on moved, victim not but that the must as a man later identified defendant substantially increase movement must also into the other- a theater customer followed People of harm to the victim. v. the risk a empty and drew wise theater restroom Fuller, (Colo.1990); Apodaca 791 702 v. P.2d he intended to rob the gun. He stated that (Colo.1985). People, 712 467 P.2d coop- and customer’s theater demanded the Here, merely the re- elemental instruction gun concealed the eration. The robber then jury that that defendant quired the find and forced the customer in a shoulder holster [the victim] and carried from one “seized to to walk the ticket booth. However, in- place to another another.” There, that told the ticket taker the robber and defined “seized carried” struction further caught doing something the customer he had movement, meaning “any however short as they wrong and be taken to see asked distance, in- that results in a substantial taker, robber, manager. and The ticket the in harm to the victim.” crease office, manager’s the customer then entered jury given The of instructions form manager engaged was an assistant where of trial is within the sound discretion the trial non-employee. a a social visit with Co., R.D. P.2d court. States v. Werner 799 present that informed all those robber Furthermore, is not (Colo.App.1990). 427 robbing the and he was theater instructed to refuse a for the court tendered error manager lie on everyone but the assistant to effect, instruction, legal if if correct in even manag- ordered the assistant the floor. He given adequately ap other the instructions telephone wires friend tear out the er’s to appropriate law. prise jury the manager open to the forced the assistant and (1974); Mackey, P.2d 521 910 to him inside. The give and the safe Banks, robber, earpiece with a wire wore an who 1990). shirt, to running them not under his warned satisfied, therefore, to- taken We are police he the for five minutes because alert properly ap- the here gether, instructions might return police radio scanner and had a all the of prised jury the elements if he an alarm called harm them heard and degree kidnapping. second in. incident, was a result of this As II. tried, of second de- charged, and convicted evi next contends Defendant customer, two gree kidnapping of theater to trial insufficient presented at dence robbery of both counts in risk of increase establish “substantial taker, and assistant kidnapping. degree harm” element of second theater. degree burglary of the first disagree with this contention. We also Bell, Defendant, relying 809
I.
argues
(Colo.App.1990),
patron
of the theater
movement
first
Defendant
asserts
manager’s
sev-
where
restroom the
asporta
that the
properly
not
instructed
actually
present,
decreased
people were
eral
degree kidnapping
tion element
second
Bell,
However, in
risk of harm.
the victim’s
increase in risk
requires
substantial
gunpoint from
moved at
victim was
disagree.
victim. We
harm the
bedroom,
he was left
living room a
where
(1986
enough
police.
to call the
18-3-302(1),
long
unattended
C.R.S.
Section
gun-
8B)
was not confined at
victim
provides
Because
Repl.Yol.
that:
point
escape
person
once in
bedroom and
routes
per
cause
reasonable
believe no
available,
required.”
were
the court concluded that no
to enter or remain is
mission
(Colo.
Bozeman,
substantial increase
risk of harm to the
P.2d
Bell, supra.
victim
App.1980).
had occurred. See
here,
contrast,
In
the victim was forced at
Here,
manager’s
complete-
office was a
gunpoint
accompany a
from a
criminal
theater,
ly
space
enclosed
within the
used
public
to the site of an armed rob
restroom
records,
storage
supplies,
business
small,
bery
fully
in a
enclosed office. He was
employees
safe.
One of the theater
then
retribution if
warned of
he called the
specifically
testified that
office
police.
than
This is more
sufficient evidence
addition,
public.
substantially
to establish
in
movement
pretense
gain
defendant’s use of a
in order to
*4
creases the risk of harm to the victim. See
permission
the ticket taker’s
to enter this
People Huggins,
v.
viction for the
handguns
At
three
and a holster
“[I]n
division of this court stated that:
order
seized from defendant’s home were admitted
robbery against
to commit the crime of
error;
into evidence. Defendant claims
he
physical posses-
individual who
not have
does
testimony
pre
asserts
because no
taken, i.e.,
sion of the article
in order to take
sented
trial
that connected either the
property
‘pres-
from such an individual’s
handguns
robbery charged,
or holster to the
ence,’
exercising,
that individual must be
or
probative
this evidence lacked
value. We
exercise,
have the
control
over
disagree.
Benton,
supra,
article taken.”
trial
is vested with wide discre
P.2d at 453. Because the
customer did
determining
relevancy
prof
tion in
of,
control,
possession
any right
And,
fered evidence.
evidence which tends
register,
in the cash
the Benton court
logically
prove
disprove
or to
a fact at
concluded that the customer could not have
*5
issue or which allows reasonable inferences
robbery.
the victim of a
been
upon contested matters is relevant. CRE
Here,
accompanied
taker
Carlson,
402; People
401 &
V. operandi identity and modus establish However, this the trial the admission of evidence Defendant next contends admitting proper. court erred into evidence items identify manager out-of-state witness failed defen- assistant of another
At
an
jury.
Sunday
dant was read to the
in Denver testified
on a
February
gun
evening in
man with
given
that he was
insuffi-
Defendant claims
the other
the theater
told
entered
cient
the attendance of the
notice to obtain
floor,
lie on
employees present
given
defendant was
over
witness. Because
give him
the assistant
ordered
a month
the attendance of the
to secure
that the
the safe. She testified
cash from
witness,
sufficient notice.
there was
earpiece
running
with a
wire
i’obber wore
that the court
He also asserts
erred
employees
warned
down
shirt and
his
failing
the motion to continue.
to rule on
scanner,
they
police
should
that he had a
argument
at least two
This
fails for
reasons.
they
police, and that
were to wait
not call the
pulled
First,
able,
office. He
five minutes
also
appears
through
that he was
wall.
out of the
The assistant
telephone
cord
stipulation,
advise the
absent
as the
manager also identified defendant
identify
witness’ failure to
defendant.
pre-
at a
perpetrator of this other
Second,
ruling
requesting a
on his
not
lineup and at trial.
police
trial
by accepting
stip
motion to continue and
ulation,
argument is
as-
he
the motion
waived
limited to the
abandoned
Defendant’s
appeal.
not
to assert error
See
the two robberies were
sertions
sufficiently
People,
for the Feldstein v.
similar' to
admissible
(1966) (the
reject
identity.
argu-
moving party
must see to it
purpose of
this
issue);
that the
the matter at
court rules on
ment.
Weese,
striking similarity of the two
Given the
1987) (failure
waiver).
is
to renew motion
robberies,
this
the admission of
evidence was
of discretion.
an abuse
See
*6
VII.
(Colo.1990).
P.2d 1100
Czemerynski, 786
contends
Defendant next
that
the
denying
trial court
in
his motion to
erred
VI.
suppress testimony of several witnesses that
also contends that he was
Defendant
they
the
had identified
as
robber
defendant
present
a
the
denied the
defense
reject
police lineup.
in a
alsoWe
this con
grant a
failure to
continuance to allow
court’s
tention.
him
attendance of
to obtain the
a witness
age
Defendant asserts that
differences be-
robbery.
agree.
the
We do
other
lineup partici-
other
tween himself and the
testimony
to secure
Defendant wished
the
pants
wore
and the fact that defendant
white
theater,
employee
of the other
who
an
during
lineup,
tennis
the
while all
shoes
other
pick
out
the
failed to
defendant
same
shoes,
participants
black dress
created
wore
police lineup from which the assistant man-
lineup in
impermissibly suggestive
an
viola-
ager
him.
identified
Defendant was notified
process rights.
of his
tion
due
1991,
than a
August
in
more
month before
physical lineup
An
is im-
out-of-court
trial,
People
attempt
pres-
that the
would
permissibly suggestive only if there is a sub
robbery.
ent
the other
A hear-
evidence
misidentification,
possibility
stantial
based
19,
ing
September
on
in
the
held
which
totality
circumstances.
on the
of the
Man
admissibility
the
of that evi-
court ruled on
Brathwaite,
2243,
97
son v.
432 U.S.
S.Ct.
stated at
dence. The defense
that time
(1977); People Walford,
L.Ed.2d
v.
53
140
securing
having
it was
trouble
the attendance
(Colo.App.1985).
P.2d
137
witness,
Washington
lived in
of a
who now
voluntarily
videotape
We
reviewed a
the line-
refused
come to Colorado
perceive only
Although
up and
minimal differences in
trial.
defendant later filed
apparent
ages
of defendant and
other
a motion to exclude the evidence or to contin-
fact,
partic-
trial,
lineup
the other
apparently
participants.
ue
ruled
never
motion,
request
ipants closely
height,
a
defendant
nor did the defense
resembled
this
Nevertheless,
color,
weight,
general physical
stipulation
hail'
char-
ruling.
courts,
Any apparent age
acteristics.
difference was
and a denial of such a motion will not
that,
law,
slight
so
as a matter of
it could not
be overturned
showing
without a clear
of an
lineup.
Gutierrez,
People
constitute an unfair
See
abuse
of discretion.
v.
(Colo.1981).
Walford, supra.
Such motion should
only
granted
if the defendant shows:
Further, although defendant’s white tennis
compared
shoes were
[T]hat
distinctive
to the other
the evidence was discovered after
footwear,
trial;
participants’
given
totality
that defendant and his counsel
circumstances, including
that witnesses
diligence
exercised reasonable
to discover
ample
had
time to
during
possible
observe the robber
all
evidence favorable to the de-
crime,
accuracy
prior
descrip
prior
trial;
of their
during
fendant
to and
tions,
physical
and the
newly
similarities and other
discovered evidence is material
clothing
wise identical
of the defendant and
to the issues involved ...
and that on
lineup participants,
other
we
newly
conclude that
retrial
discovered evidence
supports
finding
the record
the trial
probably produce
court’s
acquittal.
would
types
the different
of shoes worn
Scheidt,
lineup participants
and other
(1974).
232, 233
impermissibly
not so
suggestive as to
raise
standards,
Applying these
the trial court
possibility
substantial
of misidentifícation.
grant
refused to
a new trial based on this
Martin,
(Colo.
See
evidence.
It concluded that
this new evi-
App.1989).
dence,
technically part
which was
of defen-
trial,
knowledge
dant’s
at the time of
could
VIII.
trial,
have been
presented
discovered and
finally argues
Defendant
especially
light
period
of the seven-month
denying
court erred in
his motion for a new between arrest and trial.
newly
trial based on
discovered evidence.
Further,
the court determined that
this
disagree.
evidence would not have made a
difference
verdicts,
After the
returned its
defen-
the outcome of the trial because it
ex-
during
dant asserted
his wife
plained defendant’s whereabouts until 10:00
program,
had discovered a church service
p.m.
night
on the
There was
day
robbery,
dated the same
as the
in one of
testimony from the witnesses that the movie
*7
discovery allegedly
defendant’s suits. This
purchased
for which defendant
a ticket did
jogged
memory
her
that she and defendant
not start until 10:20
that
and
defendant was
attended that church service
on
with friends
persons
purchase
one of the last
to
a ticket
day
robbery
the
of the
and had afterwards
before the start of the film.
at the
had dinner
friends’ house. Defendant
Hence,
explain
the
could not
“alibi”
defen-
allegedly
and his wife
left for
around
home
dant’s
at the time the
whereabouts
robber
p.m.
10:00
theater, much
entered the
less his where-
Although
allegedly
this new evidence was
robbery
abouts at the time of
some two
the
trial,
by
during
discovered
defendant’s wife
it
hours later.
brought
to the
was
court’s attention until
after
when
filed a motion for
Accordingly,
perceive
we
no abuse of dis
a new trial with attached affidavits
the
from
in
cretion
the trial court’s denial of defen
in support
friends
of this alibi defense. De-
Guiterrez,
dant’s motion. See
su
during
post-trial
fense counsel stated
the
pra;
Estep,
PIERCE, J., threats, the or intimidation directed concurs. perpetrator against the victim. METZGER, J., part in and concurs case, supreme upheld In our part. in dissents robbery of aggravated conviction defendant’s concurring Judge part in and METZGER present 8-year-old of an child who was dissenting part. taking- family one room of the home while portion respectfully I from dissent within another room. occurred majority’s reversing opinion defendant’s Here, two ticket taker was one of aggravated robbery of the of the conviction during premises on the employees theater ticket taker. duties, de- of his as he Some Benton, Relying them, prop- patrons to direct to scribed were majority (Colo.App.1991),the concludes that make er within the theater and to locations support is to a rob- the evidence insufficient patrons had the theater sure that all left bery there is conviction because no direct night. before it for he closed showing that taker had control waiting While ticket taker over, control, right money. In con- front of the theater the movies to Benton, supra a division of our court clude, (who, and a customer unbe- the robber held: taker, being held knownst to Hence, in order we conclude to com- said, hostage) approached him. The robber robbery against crime mit the an indi- something. I caught gentleman doing “I this physical posses- vidual who does not manager.” The speak would like to ie., taken, sion article order replied, corner ticket taker “She’s around the property an take from such individual’s office,” pointed in her and the direction. out ‘presence,’ must be that individual exercis- asked, you me The then “Can robber take exercise, ing, or have the control her?” The ticket taker led men to both over the article taken. door, opened all and Thus, concluded, hostage a customer held x three inside the 9' 9' room. went body a with a knife to was not victim of door, flipped then shut the robbery robber because “there was shut, announced, “This is dead-bolt lock showing any right no he had control” scanner, police if and I have so the cash from a fast-food restaurant. over you cops, call I’ll I be back after leave.” essence, opinion equates control “not gun He also that he had and was said most, ownership, legal at the with a with afraid use it.” He ordered the ticket control, practical right to rather than a at the taker face down on the floor to lie Engrafting require- of these least. either door, the assistant instructed onto the is the ments definition control safe, turn and left over the equivalent adding an functional element to *8 money. with the policy-based the statute. Such decisions are Assembly. left to the best General that he elected ticket taker testified try stop not to fear that he robber for I Because that the issue of control believe would killed. Another witness testified analyzed totality fact-based should be in a had to feet so that the ticket taker move his manner, disagree I with the circumstances of this that the robber could the door holding. money. small and leave with the room Instead, I to the would adhere rule Bartowsheski, 661 P.2d at 244 view, conclusively my facts dem these (Colo.1983): sufficiently onstrate reach, inspection, taker’s property hold that is taken from the within the ticket observation, as set out in v. Bar ‘presence of another’ when is so within towsheski, reach, support jury’s inspection supra, deter the victim’s observa- aggravat he or be able retain mination that defendant committed tion that she would force, for ed of him. property control over the but Alternatively, applying overly even Benton, standard set out in
strict inferences,
supra, the facts and when viewed verdict, light most favorable see Bennett, (1973), compel the conclusion taker of an was the victim
By employment, virtue of his required patrons
taker was to ensure that designated
confined themselves to areas of recognized theater. The robber property of control over theater when
he asked ticket taker take him to the location accessible to And, public. general the defendant’s ac-
tions the office demonstrate intent to property control of
wrest from its
custodians, both the and the ticket
taker.
Thus, I would affirm defendant’s conviction charge. respects,
of that In all other I con- majority opinion.
cur with the SANCHEZ,
Ralph Jr., J.
Plaintiff-Appellant, FARM
STATE MUTUAL AUTOMOBILE COMPANY,
INSURANCE
Defendant-Appellee.
No. 92CA1647. Melat, Pressman, Higbie, &Ezell Glenn S. Appeals, Pressman, Colorado Court of Springs, plaintiff-ap- Colorado Div. II. pellant. Anderson, P.C., Campbell Laugesen, Jan. 1994. Rouse, Springs, Walter S. for de- Colorado
Rehearing Denied Feb. 1994. *9 fendant-appellee. Aug. Certiorari Denied 1994.
Opinion by Judge NEY. claim, plaintiff, In this uninsured motorist Jr., Sanchez, appeals summary Ralph J. defendant, judgment in favor of entered Automobile State Farm Mutual Insurance Company. We affirm.