Summary
In People v. Bowers, 42 Colo. App. 467, 600 P.2d 95 (1979), this court held that a whiskey bottle was a deadly weapon because of the manner of its use.
Summary of this case from People v. McPhersonOpinion
No. 78-791
Decided May 17, 1979. Rehearing denied June 21, 1979. Certiorari granted September 10, 1979.
Defendant appealed his conviction by a jury of the aggravated robbery of a liquor store.
Affirmed
1. CRIMINAL LAW — Aggravated Robbery — Instrument Used In Assault — Full Bottle of Whiskey — Bludgeon — Deadly Weapon Element — Present. Where the instrument used in assault on robbery victim was a full bottle of whiskey, and as so used, the bottle was a bludgeon, the deadly weapon element of the offense of aggravated robbery was present.
2. Aggravated Robbery Charge — Evidence Presented — Either — Guilty — Crime Charged — Or — Not Guilty — Refusal — Instruction — Simple Robbery — Not Error. Where prosecution's evidence relative to the use of the bludgeon and the other elements of the charge of aggravated robbery were unrefuted, that evidence, if believed by the jury, would necessarily result in conviction of aggravated robbery, and, if the jury had not believed that evidence, it would have been required to find the defendant not guilty of any crime; hence, there was no evidence which would have justified an instruction on simple robbery, and trial court's refusal to instruct on that offense was thus not error.
Appeal from the District Court of Boulder County, Honorable Rex H. Scott, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Nathan B. Coats, Assistant Attorney General, for plaintiff-appellee.
Carl F. Manthei, for defendant-appellant.
Defendant, Gary Scott Bowers, was convicted by a jury of the aggravated robbery of a liquor store. On appeal he contends that there was insufficient evidence to withstand his motion for judgment of acquittal and that the jury was not properly instructed on the law. We affirm.
Defendant contends that the evidence did not establish that the glass bottle admittedly used during the robbery was a deadly weapon as defined in § 18-1-901(3)(e), C.R.S. 1973 (1978 Repl. Vol. 8), and, in any event, that the prosecution failed to establish that the bottle was used to place persons in fear of death or bodily injury, a necessary element of aggravated robbery under § 18-4-302(1)(c), C.R.S. 1973 (1978 Repl. Vol. 8). We disagree with both contentions.
One of the victims testified that during the course of the robbery of his liquor store he was hit on the head with a bottle, and that the force of the blow was sufficient to shatter the bottle and to knock him to the floor and render him unconscious. He sustained a concussion and wounds that required several stitches. His wife testified that upon witnessing this attack she was "terrified" and remained "frightened to death" even after the assailant left.
This evidence was sufficient to meet the test enunciated in People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973), on all elements of the offense. There was ample evidence from which the jury could infer reasonable fear on the part of both victims and that this fear resulted from the use of the bottle as a weapon during the robbery. It was not necessary also to prove that the victims were threatened with the bottle. See Hernandez v. People, 156 Colo. 23, 396 P.2d 952 (1964).
[1] We find no merit to the contention that the bottle was not a "deadly weapon" as that term is defined in § 18-1-901(3)(e), C.R.S. 1973 (1978 Repl. Vol. 8). The statute lists "bludgeon" as one of the items that is, per se, a "deadly weapon." Here, the instrument used in the assault on the robbery victim was a full bottle of whiskey, and as so used, the bottle was a "bludgeon." Hence, the "deadly weapon" element of the offense was present.
[2] This conclusion is determinative of defendant's final assertion that the trial court erred in not instructing the jury on simple robbery as a lesser included offense.
An instruction on a lesser included offense should be given only when there is a rational basis, warranted by the evidence, for acquitting the defendant of the greater offense and convicting him of the lesser. Section 18-1-408(6), C.R.S. 1973 (1978 Repl. Vol. 8); People v. Lundy, 188 Colo. 194, 533 P.2d 920 (1975). Here, the prosecution's evidence relative to the use of the "bludgeon" and the other elements of the charge of aggravated robbery were unrefuted. If believed by the jury the evidence would necessarily result in a conviction of aggravated robbery, and, if the jury had not believed that evidence, it would have been required to find the defendant not guilty of any crime. Hence, there was no evidence which justified an instruction on simple robbery. See State v. Surgeon, 456 S.W.2d 293 (Mo. 1970). See also People v. Reed, 180 Colo. 16, 502 P.2d 952 (1972); Vigil v. People, 158 Colo. 268, 406 P.2d 100 (1965).
Judgment affirmed.
JUDGE COYTE and JUDGE VAN CISE concur.