*1 No. of the State of Colorado v. George R. 1283) P.2d Rehearing April
Decided March 1976. denied 1976. *2 Moore, General, Bush, John P. Attorney John E. James S. Deputy, Russell, Assistant, for plaintiff-appellee.
Pferdesteller, Worth, Pferdesteller, Vondy, Horton & Fred J. Worth, L. Anthony for defendant-appellant.
En Banc. MR. JUSTICE HODGES delivered the of the Court. opinion R. George jury Silvola was found of one count of guilty by conspir- theft, five of theft-reсeiving, commit counts and one count of theft. acy The trial court ordered that the sentences on the theft counts be imposed concurrently. served
On appeal, defendant advances over ten contentions of error. have merit one (conspiracy), None convictions on count count six (theft), (theft-receiving), and count we therefore seven affirm the trial judgments court’s on these counts. reverse convictions counts two, three, five of insufficiency four and of evidence to sustain them, and remand the trial court for of a entry dismissаl to these counts. indictment,
By charged defendant Silvola was with participation for a *3 year of over one in period prior February ring to a theft involving trial, aircraft and aircraft radios. At the prosecution implicated defendant through Silvola mainly testimony of W. Richard Dаvis and other ac- Silvola, complices following (now who related the facts. an attorney, sus- Davis, was hired pended), November to Richard W. represent who being held jail was on an Arapahoe County extradition warrant from California where he charged had been with aircraft After Da- theft. explained organized vis to defendant Silvola how he accomplices his thefts, aircraft perpetrate persuaded Silvola him to remain in Colorado and to continue theft got jail. his after he out of operation After Davis was released in June he began and Silvola to obtain more planning stolen and planes parts through in order to sell them ads in jour- various trade nals. In addition to helping headquarters Davis secure a for his operation Springs, agreed Colorado Silvola to act as banker for the operation be- Davis a stable flow organization. Using cause needed cash to run his vari- aliases, ous would equipment, Davis sell the stolen aircraft by prior and ar- rangement, bring the checks to Silvola. would Silvola then cash the checks on the credit of his trust account or deposit them at a Colorado Springs bank. Davis was thereby afforded a safe for conduit this and money ready supply of cash. I.
Sufficiency of the Evidence Count charged one of the with conspiring indictment Silvola with Da- vis and others to commit theft-receiving theft and of aircraft and airсraft radios.1 Silvola agreement maintains that the direct evidence of an by the was Davis’ presented testimony effect that Sil- C.R.S. 1973. 40-7-35. Now through trust the stolen aircraft checks equipment to run offered vola was insuffi- evidence evade federal taxes. He that such account аnd, in any commit a Colorado crime agreement cient establish criminal, Davis, event, and perjurer admitted was insufficient as a of law. totally unreliable matter was of the Davis unreliability that the alleged testimony disagree Rather, jury of it involves a determination a matter of law.
involves Moreover, specific testimony testimony. weight actually shows uses his other contention which defendant Davis the only agreed upon. federal evasion was not criminal purpose that tax testified that: Davis — ’we,’ organization having was on problems problems my “We had chеcks, and I had discussed rid excess number getting keep the heat off of me process I could these checks George, how at time by George perhaps Silvola suggested the IRS. ... It from to run the sto- trust bank accounts had I use his account other added.) through. (Emphasis checks . . . equipment len that a ma- by Davis showed testimony especially testimony other This Silvola’s cashing through checks trust jor purpose equipment for operations. for the of the theft ready expenses was to cash provide account to evade taxes Providing laundering money appears a means for secondary been only purpose. have agreement supported also the conspir-
Circumstantial evidence of an billed charge. any legal Davis was not for serv- acy example, For ices, during Davis he and were in constant contact period Many aircraft checks re-organizing planes his men to steal radios. *4 through trust account. Silvola Davis rent a helped were Silvola’s processed radios, and the stolen from which Davis advertised sold aircraft and house being thefts were present meetings planned he was at various at which and his of thieves. by gang discussed Davis evidence, to light viewed a most favorable the
Such when a finding agreement, a of an and thus amply supports conspir prosecution, theft-receiving. theft and The between Silvola Davis to commit acy, the gо record admitted of Davis do not to ad prior perjury criminal it, weight to be missibility testimony of Davis’ but rather left for determination. properly jury’s which was the two, hand, theft-receiving, counts respect On the to other three, five, subject failed establish prosecution four and air stolen, receiving of the crime of sto radios an essential element craft were the bare of Da of theft was conclusion len The indication property.2 failed establish basis that the was stolen. evidence property vis theft-receiving defining has This statute the crime of Supp., 40-5-2. Perm. C.R.S. (1975 Supp.). been since amended. See underlying it circumstances Nor did disclose for this conclusion. were stolen. how, when, these aircraft radios where from whom such as Such conclusory by statement a witness is insufficient completely when standing alone to prove theft or theft-rеceiving. however,
With six respect (theft-receiving), to count the owner of a stolen radio gave description testified and and serial number of his radio, aircraft and where and when it was stolen. Another wit ness bearing testified an buying aircraft radio that same serial number through from Davis means of a check which was Silvola’s processed trust account. Davis then confirmed that this radio stolen and later purchased from jury’s him. Such evidence is sufficient to ver evidence, dict of of guilty (theft-receiving). count six From the may it clearly inferred that defendant Silvola aided and abetted Davis in obtain ing “control over any thing stolen of value” knowing it to be stolen.3 (theft
With regard aircraft), to count seven of an presented of the owner airplane who testified its theft. The prosecu tion also offered showing evidence how Davis and his accоmplices stole airplane and how it was get used as collateral for a bond to Davis out of jail. When the plane bonding was wrecked company, the prosecu Silvola, tion stolen, then proved knowing the to have plane been helped repurchase the which then plane brought back to Colorado for repairs.4 Such evidence was sufficient sustain the guilty verdict on count seven it showed that Silvola aided and abetted Davis ob taining exerting unauthorized control over property.5 another’s
II.
of
Sufficiency
the Indictment
Because of the insufficiency of the evidence to support counts
two, three, four,
five,
we
not
do
address the question whether the in
dictment on those
charge
counts was sufficient to
regard
offense. With
however,
(theft-receiving),
count six
defendant
that the indict
ment was
allege
defective because it failed
element of the offense
the specific
required
for conviction. The indictment charged:
December, 1969,
“That on or about the 4th
of
day
in the County
El
Pa-
so, Colorado, R.
SILVOLA
GEORGE
committed the crime of theft by
unlawfully and feloniously obtaining
aircraft parts,
сontrol over
aircraft
radios, and
equipment belonging
BAUTHAUER,
aircraft
to BERNARD
things
value with a total and
combined value more than One
Dollars,.
Hundred
. and knowing
.
the same to have been stolen. . .
vi-
[i]n
*5
3
1963, 40-5-2(1
Supp.,
)(b)(iv).
See 1967 Perm.
C.R.S.
4
plane
repaired
improper
Defendant claims that venue
was taken to be
was
because
in
County
alleged
County during
participation.
Jefferson
never
El
was
Paso
the time of
However,
objection
appeal. People
he has waived the
it
raised
time
because was
for
first
v.
Jones,
Colo. 96,
(1974).
18(a) (1963).
olation of
ceiving). . . .”
1,
(1973), this court
In
charged,
be
al-
necessarily
a crime must
element of
every
held that not
the crime and the
elements of
be
as to-the
must
instructed
jury
In
we held
particular,
at trial.
all elements
prove
must
the defendant
because
alleged
charge
in a theft
need not be
specific
without
advised of the nature of the offense
sufficiently
was
jury
and the
(1971). We
“[h]e accordingly.” punished as principal deemed and considered IV. Challenge of a Juror trial court improp- that the urges ground reversal on Defendant juror upon after the stated juror tо a for cause challenge denied his erly to the defendant’s opinion examination that he had formed voir dire cause, challenge for the trial this court denying or innocence. Prior to guilt juror this would be itself that juror and satisfied carefully questioned aside put and to on the еvidence submitted to determine case able by the defendant’s thereafter excused juror opinion. pre-existing challenge. of a preemptory exercise whether the trial court foregoing reach the issue of
We do not the de challenge for cause bеcause denying the abused its discretion alleged error. prejudiced failed to show that fendant has (1961), P.2d 605 People, Skeels v. 145 Colo. Defendant cites use he had to were rights prejudiced that his for the proposition Skeels, However, court announced challenge. his last preemptory (1) Did the defendant follows: determining prejudice two-fold test for and, de (2) the defendant Was challenges? all of his preemptory exercise he was jurors because challenge other right prospective prived suspect the earlier to excuse сhallenges preemptory to exhaust his forced factor that the second allege failed to or show The defendant has juror? *6 369 basis for reject We this contention as a re- existed this case. therefore error. versible
V. Testimony Employees of Defendant’s when the triаl court also that reversible error occurred testify several his law office without his consent. employees allowed 1963, relies on 154-1-76 to language He the literal his to have tes- attorney privilege employees contention that an has not his consent, (Davis) without his tify attorney’s even client has 1963, waived 154-1-7(3) the attorney-client privilege. C.R.S. states: client, attorney “An shall not be examined without the consent of his as to him, client communication made his advice thereon in the course of professional employment; attorney’s nor shall secrеtary, stenographer or clerk be examined his without the consent of employer fact, concerning any knowledge of which he has acquired such ca- pacity.” concerning read last clause employees referring as where lawyer testify
cases himself is unable to the attorney- client privilege. Consequently, statute can be reasonably inter preted extending the if the privilege attorney’s employees attorney is also so Once privileged. attorney longer can no claim the privilege, longer prevent likewise can no from employees testifying. To inter this statute lead pret otherwise would to anamolous results. Defendant can no suggest public policy, self-interest, other than the avancement of his supports his interpretation. where a
Alteratively,
statute would
operate unjustly,
ab
surd сonsequences would result from a
interpretation
literal
of terms and
words used
would be
contrary
its obvious and
purposes,
manifest
the intention
prevail
of the framers will
over
interpretation.
such literal
276,
Driver,
v.
(1975).
189 Colo.
539 P.2d
legislative
behind
provision
protect
was to
the client and
the attorney.
not
Mauro v.
Tracy,
(1963);
Colo.
The defendant’s other contentions wholly are without merit and re- quire no discussion.
* * * Judgment one, two, affirmеd as to counts six and seven. As counts three, four, five, reversed, is judgment and this cause is remanded Now C.R.S. 1973. charges.
with directions to dismiss these DAY participate. MR. JUSTICE does not and con- part, GROVES concurs in dissents part, MR. JUSTICE in part. curs in the result *7 dissenting in concurring part
MR. GROVES in part, JUSTICE concurring in the result part. under count six for the
I dissent tо the affirmance of the conviction sufficiently I think the evidence links the defendant reason that do not article stolen. I concur in the result in the affirmance of the conviction under count seven. majority
I opinion. concur in the remainder No. 26450 the State C. Zaring of Colorado v. Ronald 232) P.2d Decided March 1976.