The People of the State of Colorado v. William Steven Berry
No. 17SC430
The Supreme Court of the State of Colorado
February 18, 2020
2020 CO 14
Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 15CA1394
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ADVANCE SHEET HEADNOTE
February 18, 2020
2020 CO 14
No. 17SC430, People v. Berry — Criminal Law — Abuse of Public Office — Embezzlement of Public Property — Official Misconduct.
The supreme court considers two issues in this case. First, for the crime of embezzlement of public property, under
Regarding the first question, the supreme court holds that the statute prohibiting embezzlement of public property criminalizes only the embezzlement of property that is owned by the government. Concerning the second question, the supreme court concludes that the prohibition on official misconduct should be broadly construed to include circumstances in which an official uses the opportunities presented by his or her office to engage in improper conduct.
The supreme court therefore affirms the decision of the court of appeals.
Judgment Affirmed
en banc
February 18, 2020
Attorneys for Petitioner/Cross-Respondent:
Philip J. Weiser, Attorney General
Jacob R. Lofgren, Assistant Attorney General
Denver, Colorado
Attorneys for Respondent/Cross-Petitioner:
Elkus & Sisson, P.C.
Reid J. Elkus
Lucas Lorenz
Kathryn Sheely
JUSTICE HART delivered the Opinion of the Court.
JUSTICE SAMOUR concurs in part and dissents in part, and CHIEF JUSTICE COATS joins in the concurrence in part and dissent in part.
¶1 In 2014, William Steven Berry, who was at the time a deputy of the Lake County Sheriff‘s Office, obtained several firearms from the office evidence locker, gave one away, attempted to sell another, and kept two for himself. For this conduct, Berry was convicted of embezzlement of public property in violation of
Further, we conclude that the prohibition on official misconduct should be broadly construed to include circumstances, like those in this case, in which an official uses the opportunities presented by his or her office to engage in improper conduct. We therefore affirm the decision of the court of appeals on both questions.
I. Facts and Procedural History
¶3 In August 2013, Berry was one of several Lake County Sheriff‘s Office deputies who responded to a report of domestic violence involving P.E. and J.V. After J.V. was arrested, P.E. informed the officers that J.V. kept several firearms in the home and that she did not feel comfortable having them there. At P.E.‘s request, the officers confiscated four firearms — one of which was a rare Colt handgun worth several thousand dollars — and stored them in the sheriff‘s office evidence locker.
¶4 After the charges against J.V. were resolved, the district attorney authorized the sheriff to either release or destroy the firearms. Because J.V. was an undocumented immigrant who had since been deported, there was no possibility of releasing the firearms back to him. While P.E. remained in Lake County, she too was an undocumented immigrant, and the sheriff had a policy against releasing weapons to undocumented immigrants. Consequently, the sheriff planned to destroy the firearms.
¶5 Before the firearms could be destroyed, however, Berry saw P.E. exiting a store and followed her in his patrol car as she drove away. When she stopped at a gas station, Berry approached her and inquired about purchasing the firearms from her for $500. During this encounter, he was on duty and in full uniform. When P.E. expressed concern about whether such a transaction would be legal, Berry responded by telling her “[o]f course. I am a representative of the law. If I come to you with this offer, it is because I can do it, because it is legal.” P.E. then agreed to sell the firearms, including the rare Colt, to Berry for $500. Berry subsequently went to P.E.‘s house, paid her $500, and had her sign a bill of sale for the firearms.
¶6 What happened next was disputed at trial. Berry claimed that P.E. went to the sheriff‘s office and had the firearms released to her. In support of this claim, Berry produced a release form to collect the firearms from the evidence locker that was purportedly signed by P.E. P.E. testified, however, that Berry had told her he would be able to “grab” the firearms from the locker. Further, she testified that she had neither seen nor signed the release form, that she never went to the evidence locker to retrieve the firearms, and that she never saw them again after they were removed from her home. One way or another, Berry ended up in possession of the four firearms.
¶7 Berry gave one of the firearms to the deputy in charge of the evidence locker when the firearms were removed as a show of gratitude for his help with obtaining the weapons. Berry attempted to sell the Colt handgun to a buyer in California, but the firearms dealer he used ran into trouble shipping the handgun, so the sale was not completed.
¶8 When the buyer did not receive the Colt, he called the Lake County Sheriff‘s Office looking for Berry. The sheriff‘s office conducted an internal investigation and concluded that Berry had, with the help of another deputy, improperly removed the firearms from the evidence locker and kept them for himself, seeking to profit from the sale of the valuable Colt handgun.
¶9 Berry was charged with, among other offenses, embezzlement of public property and first-degree official misconduct. A jury found Berry guilty of both crimes, and he was sentenced to probation. On appeal, a division of the court of appeals vacated Berry‘s conviction for embezzlement of public property and affirmed his conviction for first-degree official misconduct.
¶10 The People petitioned for certiorari on the embezzlement issue, and Berry cross-petitioned on the official misconduct count. We granted both petitions.
¶11 After setting forth the standard of review, we consider whether Berry‘s removal of the firearms from the evidence locker in the Lake County Sheriff‘s Office and conversion of those weapons for his own personal use constituted embezzlement of public property. We conclude that because the firearms were not public property, Berry‘s actions did not violate the statutory prohibition against embezzlement of public property. We then examine whether Berry committed official misconduct when he approached P.E. in his patrol car while he was on duty and in uniform to purchase the firearms from her. We conclude that Berry‘s conduct did amount to official misconduct.
A. Standard of Review
¶12 Both questions we address in this case are matters of statutory interpretation that we review de novo. McCoy v. People, 2019 CO 44, ¶ 37, 442 P.3d 379, 389. Our goal in construing a statute is to determine and give effect to the intent of the General Assembly. People v. Diaz, 2015 CO 28, ¶ 12, 347 P.3d 621, 624. “In so doing, we interpret words and phrases used in statutes according to their generally accepted meaning. In addition, we examine particular statutory language in the context of the statute as a whole.” People v. Graves, 2016 CO 15, ¶ 27, 368 P.3d 317, 326 (citation omitted). If we conclude that the statutory language is unambiguous, we end our inquiry there. McCoy, ¶ 38, 442 P.3d at 389. Only if the statutory language, considered in context, is susceptible of more than one reasonable interpretation will we turn to other rules of statutory construction. See People v. Jones, 2015 CO 20, ¶ 10, 346 P.3d 44, 48.
B. “Public Property” Is Property Owned by the State or a Political Subdivision
¶13 Colorado has criminalized the embezzlement of public property since it became a state. See G.L. 1877, § 658. As the court of appeals noted, the current version of the embezzlement statute,
Every public servant who lawfully or unlawfully comes into possession of any public moneys or public property of whatever description, being the property of the state or of any political subdivision of the state, and who knowingly converts any of such public moneys or property to his own use or to any use other than the public use authorized by law is guilty of embezzlement of public property. Every person convicted under the provisions of this section shall be forever thereafter ineligible and disqualified from being a member of the general assembly of this state or from holding any office of trust or profit in this state.
No definition of “public property” is provided in the statute. However, both the phrase itself and the statutory context suggest a definition: Public property, as used in
¶14 We must attribute to words their plain and ordinary meaning. Graves, ¶ 27, 368 P.3d at 326. “Public property” is commonly defined to mean “something owned by the city, town, or state.” Public Property, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/public%20property; [https://perma.cc/5PAZ-P39W]; see also 63 Am. Jur. 2d Property § 11 (2019) (“Public property is that owned by the public as such in some governmental capacity.“); Public Property, Black‘s Law Dictionary (11th ed. 2019) (“State- or community-owned property not restricted to any one individual‘s use or possession.“); cf. People v. Gallegos, 260 P.3d 15, 22 (Colo. App. 2010) (applying the Black‘s Law Dictionary definition to interpret “public property” as used in
¶15 The context of the phrase “public property” within the criminal statutes further supports this plain meaning in at least three ways. First, the prohibition against embezzlement of public property is contained within the article of our criminal code focused on offenses related to governmental operations, not the article focused on offenses against property. Thus, unlike other “offenses against property,” where the identity
¶16 Second, immediately following the phrase “public property” is the explanatory phrase “being the property of the state or of any political subdivision of the state.”
¶17 Third, the conduct prohibited by the statute is the conversion of public property “to any use other than the public use authorized by law.” That the property at issue in the statute has a “public use authorized by law” further supports the conclusion that the statute‘s intended focus is on property owned by the state and not property merely within the state‘s possession. In this dispute, for example, the firearms taken from the evidence locker had no “public use authorized by law.” They were in the possession of the sheriff‘s office, but they were not owned by, nor could they be used by, the sheriff‘s office.3
¶18 The People, however, urge us to conclude that “public property” includes not only property owned by the state or a political subdivision, but also property possessed by the state or a political subdivision. In support of this interpretation, the People note that the word “property” on its own is defined in some dictionaries to include “something owned or possessed.” See, e.g., Property, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/property; [https://perma.cc/859M-JBHR] (defining property as “something owned or possessed,” or “the exclusive right to possess, enjoy, and dispose of a thing“); Property, Black‘s Law Dictionary (11th ed. 2019) (defining property as “the right to possess and use, the right to exclude, and the right to transfer“). We do not think that this fact renders the term “public property” ambiguous. First, the more common meaning of the word “property” is something owned, and we have no reason to apply a less common meaning in this context. This is particularly the case when the term “public property” has its own definition that is separate from and more specific than the general concept of “property.” Second, the placement of the prohibition against embezzlement of public property, which is listed under a different article of our criminal code than other crimes against property, supports the conclusion that the legislature intended to separately and more specifically define “public property.” We thus conclude that “public property” within the context of
¶19 Here, the firearms were in the possession of the Lake County Sheriff‘s Office. With the help of another deputy, Berry removed the firearms from the evidence locker and converted them for his own use. The
C. Berry‘s Purchase of Firearms Held in the Sheriff‘s Office Evidence Locker Constituted an Act Relating to His Office
¶20 The second issue we are asked to resolve in this case is whether Berry‘s conduct in purchasing the firearms was “an act relating to his office but constituting an unauthorized exercise of his official function.”
¶21 The question of what types of conduct are proscribed by Colorado‘s official misconduct statute has not been addressed by our court previously. Indeed, it was a question of first impression for the court of appeals here as well. Courts from states with very similar statutes, however, have construed the prohibition on official misconduct broadly. The New Jersey official misconduct statute, for example, uses language identical to the analogous Colorado law. See
¶22 In Bullock, a suspended New Jersey state trooper improperly retained his police identification card. Id. at 398. He then used that card to detain an alleged drug dealer and to identify himself as a state trooper to another officer. Id. In considering this conduct, the court explained that “we look[] to the scope of a defendant‘s apparent authority to determine whether an act sufficiently related to the defendant‘s office to constitute official misconduct.” Id. at 400. The court rejected the idea that official misconduct had to include misconduct that occurred within the limits of an official‘s “actual duties.” Id. at 401. Instead, the court recognized that when an officer “purport[s] to act not as a private citizen but as a [public official],” his or her conduct may fall within the scope of prohibited official misconduct. Id.; see also People v. Barnes, 984 N.Y.S.2d 693, 696–97 (N.Y. App. Div. 2014) (interpreting similar language in a New York statute and explaining that “[a] police officer‘s actions fall within his or her official functions ‘even if the right to perform [them] did not exist in the particular case,’ such as when the officer was off-duty” (quoting People v. Chapman, 192 N.E.2d 160, 161 (N.Y. 1963))). Similarly, in Colorado when a public official commits an act of malfeasance that is made possible because of his office or the opportunities afforded to him by that office, he is engaged in misconduct “relating to his office but constituting an unauthorized exercise of his official function.”
¶23 Here, Berry approached P.E. in his patrol car while wearing his police uniform and inquired about purchasing the firearms that were stored at the sheriff‘s office. The only reason he had access to the firearms was because they were in the evidence locker, slated for destruction. Furthermore, Berry assured P.E. that his purchase was legal based on his status as a sheriff‘s deputy. P.E. testified at trial that his proposal to pay her for the firearms “sounded kind of weird, but he was wearing the police uniform, he was driving a patrol car.” It was certainly reasonable for the jury to conclude, based on the evidence presented, that Berry obtained these firearms from P.E. because of the opportunity afforded by his office as a sheriff‘s deputy and therefore through an act “relating
III. Conclusion
¶24 We hold that the statute prohibiting embezzlement of public property criminalizes only the embezzlement of property that is owned by the government. Further, we conclude that the prohibition on official misconduct should be broadly construed to include circumstances, like those here, in which an official uses the opportunities presented by his or her office to engage in improper conduct. We therefore affirm the decision of the court of appeals.
JUSTICE SAMOUR concurs in part and dissents in part, and CHIEF JUSTICE COATS joins in the concurrence in part and dissent in part.
JUSTICE SAMOUR, concurring in part and dissenting in part.
I. Introduction
¶25 The adage that “possession is nine-tenths of the law” dates back to 1616, more than four centuries ago. Willcox v. Stroup, 467 F.3d 409, 412 (4th Cir. 2006). But under the common law, this is more than an adage; it‘s a truism. In 1822, the Supreme Court observed that it was beyond doubt that “if a person be found in possession ... it is prima facie evidence of his ownership.” Ricard v. Williams, 20 U.S. 59, 105 (1822). Some decades later, in 1889, our court proclaimed that “[t]he actual control and possession of personal property ... is prima facie indicative of ownership at law.” Herr v. Denver Milling & Mercantile Co., 22 P. 770, 773 (Colo. 1889). And this uncontroversial concept continues to hold sway in modern times. See Willcox, 467 F.3d at 412 (stating that actual possession under the common law has long been recognized as prima facie evidence of legal title in the possessor); In re Lee Memory Gardens, Inc., 333 B.R. 76, 79 (Bankr. M.D.N.C. 2005) (noting that there is no doubt that possession of a chattel is prima facie evidence of ownership under the common law of North Carolina).
¶26 Consistent with the common law‘s recognition that possession often suffices to establish ownership, our General Assembly has wisely abstained from distinguishing between proprietary and possessory interests in defining property crimes. Instead, it has made clear that a person who has either a proprietary or possessory interest in property may be a victim of theft, robbery, burglary, arson, trespass, tampering, and criminal mischief vis-à-vis that property. See
¶27 Yet, the majority today draws a line of demarcation between proprietary and possessory interests in property and declares that under the embezzlement of public property (“embezzlement“) statute,
¶28 Though the majority treats the ownership requirement it imposes on embezzlement today as an open-and-shut proposition, it is far from it. For example, how does the prosecution prove that the state owns the public property allegedly embezzled? Must the state have title or some other form of official ownership paperwork? What if it‘s property the state owns, but as to which no title or ownership paperwork exists or can be obtained? What if it‘s something leased by the state? What if it‘s something for which the state is currently making payments? What if it‘s something over which the state has exclusive possession and control — could that suffice? If money is involved, what proof is necessary to show the state owns that money? Does the state actually own any
¶29 Because I believe the majority misinterprets the embezzlement statute, and because I am concerned about the consequences of today‘s decision, I cannot in good conscience join Part II-B of the majority‘s opinion. I would conclude instead that “property of the state,” as that phrase is used in the embezzlement statute, refers to property over which the state has a proprietary or possessory interest
—i.e., property over which the state has the type of “interest held by a property owner together with all appurtenant rights,” Proprietary Interest, Black‘s Law Dictionary (11th ed. 2019), or property over which the state has “[t]he present right to control [the] property, including the right to exclude others” from it, Possessory Interest, Black‘s Law Dictionary (11th ed. 2019). In so doing, I would avoid distinguishing between proprietary and possessory interests in property, a distinction which is fraught with peril.1 Accordingly, I respectfully concur in part and dissent in part.
II. Analysis
A. The Embezzlement Statute Is Ambiguous
¶30 The majority falters right out of the gate. It concludes that the embezzlement statute is clear and unambiguous. Maj. op. ¶ 14. It is not.
¶31
Every public servant who . . . comes into possession of any . . . public property of whatever description, being the property of the state . . . , and who knowingly converts any . . . such public . . . property to his own use or to any use other than the public use authorized by law is guilty of embezzlement of public property.
The majority correctly notes that the legislature did not define “public property” in this statute. Maj. op. ¶ 13. It simply referred to “public property of whatever description.”
¶32 Where the majority and I begin to part ways is in its largely conclusory determination that “‘property of the state’ clearly means that the property at issue belongs to the state.” Maj. op. ¶ 16. Neither of the cases the majority cites, Wright v. People, 91 P.2d 499, 502–03 (Colo. 1939), and Starr v. People, 157 P.2d 135, 137-38 (Colo. 1945), holds that “property of the state” in the embezzlement statute “clearly means that the property at issue belongs to the state.” As the majority admits elsewhere in its opinion, the question we confront today is one “of first impression.” Maj. op. ¶ 1. It is just as easy to cite a different Colorado case and reasonably maintain that “property of the state” clearly means property in which the state has a proprietary or possessory interest. See Price v. People, 240 P. 688, 689 (Colo. 1925) (an embezzlement case in which this court treated money held in trust, as opposed to owned, by a municipality as money that ”belonged to the municipality” (emphasis added)).
¶33 Even assuming the majority draws a fair inference in defining “property of the
¶34 The definition of “belong” highlights the flaw in the majority‘s analysis. Property “belong[s]” to someone if it‘s “the property of [that] person.” Belong, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/belong; [https://perma.cc/A65F-UPT6]; see also Belong, Black‘s Law Dictionary (11th ed. 2019) (defining “[b]elong” as “[t]o be the property of a person or thing“). In ruling that the embezzlement statute applies only to property owned by the state, the majority explains that this is so because “property of the state” means property that “belongs” to the state. Maj. op. ¶ 16. But given the definition of “belong,” that does nothing more than beg the question. The majority essentially says that the embezzlement statute is limited to property in which the state has a proprietary interest because “property of the state” is “property of the state.” See id. In my view, this type of circular reasoning cannot support the majority‘s assertion that the statute clearly and unambiguously excludes property in which the state has a possessory, but not a proprietary, interest.
¶35 Nor do I find persuasive the majority‘s contention that its position is corroborated by the fact that what the embezzlement statute prohibits is the conversion of public property “to any use other than the public use authorized by law.” Id. at ¶ 17. I agree that this language limits the scope of the embezzlement statute to property that has a “public use authorized by law.” But relying on this phrase, the majority takes an unjustified leap and announces that “the statute‘s intended focus is on property owned by the state.” Id. The majority does not explain why this is so. Why can‘t property in which the state has a possessory interest be property with a “public use authorized by law“? Asked differently, why does the state have to own property in order to put it to a public use authorized by law?
¶36 The majority turns to the facts of this case to buoy its hypothesis, but this case‘s facts actually undercut the majority‘s proposition. Though the majority says that the firearms Berry took from the evidence locker had no “public use authorized by law,” id., the opposite is true. The firearms were being held by the sheriff‘s office as part of the prosecution of J.V. They were part of the evidence collected in J.V.‘s criminal case. As such, they absolutely had a “public use authorized by law,” even though the state had a possessory, but not a proprietary, interest in them.
¶37 The dictionary definitions of “public property” on which the majority relies do not alter the analysis either. To begin, the majority‘s focus on “public property” misses the mark; the focus must be on “property of the state” because that is what the legislature has told us “public property” refers to in the embezzlement statute. Thus, rather than embark on a quest to unearth dictionary definitions of “public property,” I would hone in on “property of the state” and inquire whether the legislature intended that phrase to restrict the ambit of the embezzlement statute so as to exclude property in which the state has a possessory, but not a proprietary, interest.
¶38 In any event, as the majority concedes, Merriam-Webster Dictionary defines “property” as “something owned or possessed.” Id. at ¶ 18 (emphasis added). Black‘s Law Dictionary likewise defines “property” as including “the right to possess and use.” Id. (emphasis added). Perhaps recognizing that these definitions undermine its holding, the majority dismisses them out of hand, choosing instead to speculate that “the more common meaning of the word ‘property’ is something owned.” Id. The majority cites no authority in support of this pronouncement, and I‘m not aware that any exists. The very dictionary definitions
¶39 Because the legislature did not define “property of the state,” and because that phrase is subject to different reasonable interpretations—i.e., it could be construed as property in which the state has a proprietary interest or as property in which the state has a proprietary or possessory interest—it is ambiguous. “A statute is ambiguous if it is susceptible to multiple reasonable interpretations.” Carrera v. People, 2019 CO 83, ¶ 18, 449 P.3d 725, 729.
¶40 Therefore, I would discern the legislature‘s intent by looking beyond the language of the statue and considering “other tools of statutory construction.” Id. I would invoke two such interpretive aids here: (1) “other statutes bearing on the same or similar subjects,” see People v. Sorrendino, 37 P.3d 501, 503 (Colo. App. 2001); accord
B. Other Tools of Statutory Construction
1. Statutes Bearing on Similar Subjects
¶41 I start with the theft statute,
¶42 Significantly, the language in the theft statute is similar to the language in the embezzlement statute. The former uses anything of value “of another,” whereas the latter uses property “of the state.” If a thing of value “of another” includes property in which another has a possessory, but not a proprietary, interest, why doesn‘t property “of the state” include property in which the state has a possessory, but not a proprietary, interest?
¶43 I also draw guidance from
¶44 Thus, for example, under
¶45 The language in these statutes is nearly identical to the language in the embezzlement statute. The second degree tampering and second degree arson statutes refer to “property of another,” while the embezzlement statute refers to “property of the state.” Given that “property of another” includes property in which another has a possessory, but not a proprietary, interest, “property of the state” should likewise include
¶46 The majority attempts to write off these statutory provisions by pointing out both that embezzlement appears in a different article of the criminal code than crimes against property and that the identity of the property owner (the public) “is an essential” element of the former but “largely inconsequential” for purposes of proving the latter. Maj. op. ¶¶ 15, 18. In general, I don‘t have a bone to pick with these observations. But they are largely irrelevant to the analysis: Neither advances the ball for the majority or refutes any part of this dissent.
2. Consequences of the Majority‘s Statutory Interpretation
¶47 I am also troubled by the majority‘s opinion because it will lead to absurd results. After today‘s holding, a public employee who knowingly converts to his own use property in which his employer has a possessory, but not a proprietary, interest (such as property held in a fiduciary capacity) cannot be charged with embezzlement. But if the same public employee engages in exactly the same conduct under precisely the same circumstances, except that the government happens to have a proprietary interest in the property converted, he may be charged with embezzlement.
¶48 To illustrate the point, I borrow from a few of the hypothetical examples presented by the People. Assume, for example, that a public employee takes an older model truck owned by the city and uses it unlawfully to drive his children to the park every day for three years, while another public employee takes a new car leased by the city and engages in the same conduct as the first employee. Under the majority‘s rationale, the former employee can be charged with embezzlement, but the latter employee cannot.
¶49 Assume further that a government agency collects child support and holds the funds until they can be disbursed to the intended recipients. If a staff member of the agency were to convert some of those funds to his own personal use, he would be exempt from punishment for embezzlement because the government did not have a proprietary interest in the money. The same outcome would result if the funds collected and converted were designated as restitution payments for victims of crime.
¶50 Finally, assume that a public employee takes his agency‘s expensive office equipment home and converts it to his personal use. If the office equipment was owned by his employer, he may be guilty of embezzlement, but if, as is often the case, the office equipment was leased, he would be exempt from punishment for embezzlement.
¶51 It is difficult for me to accept that these are the absurd results the legislature envisioned when it referred to “property of the state” in the embezzlement statute. Of course, we are required to presume that the legislature did not intend such absurd results. Carrera, ¶ 17, 449 P.3d at 729 (cautioning that “we must ‘avoid constructions that would . . . lead to illogical or absurd results‘” (quoting McCoy v. People, 2019 CO 44, ¶ 38, 442 P.3d 379, 389)).
III. Conclusion
¶52 In sum, the majority mistakenly determines that the embezzlement statute is clear and unambiguous. It then misconstrues the phrase “property of the state” to exclude property in which the state has a possessory, but not a proprietary, interest. For these reasons, and because today‘s opinion will lead
I am authorized to state that CHIEF JUSTICE COATS joins in this concurrence in part and dissent in part.
Notes
- Whether a sheriff‘s deputy, who removed several weapons from an evidence locker where they were under the possession and control of the sheriff‘s department, and then converted them to his own personal use, can be charged and convicted of embezzlement of public property under
section 18-8-407(1), C.R.S. (2017) . - Whether the court of appeals erred in finding that the cross-petitioner‘s purchase of firearms held in the evidence locker at the police station where he was a sheriff deputy was “an act relating to his office” as that phrase is used in
section 18-8-404, C.R.S. (2017) .