Opinion
No. 76-851
Decided March 29, 1979. Rehearing denied April 26, 1979. Certiorari denied September 10, 1979.
Convicted of aggravated robbery and conspiracy to commit aggravated robbery, defendant appealed on the ground that the trial court erred in communicating with the jury when neither defendant nor his counsel was present.
Affirmed
1. CRIMINAL LAW — Jury — Clarification of Instruction — Neither Defendant nor Counsel Present — Prejudicial Affect — Must Be Established — Ground for Reversal. Communications between a judge and the jury outside the presence of the party on trial are frowned upon; however, the prejudicial effect therefrom must be established before any verdict of guilt can be reversed on that ground; accordingly, trial court's clarification of jury instruction on aggravated robbery when neither defendant nor his counsel was present was not ground for reversal inasmuch as the evidence did not establish that defendant was in any way prejudiced by his counsel's absence at the time the correction was made.
2. Robbery — Requisite Intent — Indictment — Specificity. If an accused has committed robbery with the requisite intent, he may be convicted of aggravated robbery regardless of whether it was he or a confederate who possessed the deadly weapon; consequently, the indictment need not specify as to which of these types of aggravated robbery is being charged, and a variance between the indictment and proof on this issue does not constitute reversible error.
Appeal from the District Court of the City and County of Denver, Honorable James C. Flanigan, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Karen Hoffman Seymour, Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Ilene P. Buchalter, Deputy State Public Defender, for defendant-appellant.
Defendant appeals his conviction of aggravated robbery and conspiracy to commit aggravated robbery, contending that the trial court erred in communicating with the jury when neither defendant nor his counsel was present. We affirm.
The prosecution's chief witness testified that two men came into the fast food restaurant in which she and one other employee were working. After placing an order, the older of the two men said that he wanted money, and the younger of the two, whom both victims identified as defendant, brandished a pistol. Both men fled after obtaining money from the cash register and from the wallet of one of the victims.
Despite uncontradicted testimony indicating that defendant, and not his confederate, was the one with the gun, the trial court's instructions were based on subsection (1)(c) of the aggravated robbery statute, which provides that one may be guilty of aggravated robbery if a confederate is armed with a deadly weapon. Section 18-4-302 (1)(c), C.R.S. 1973 (Repl. Vol. 8). Compare Colo. J.I. — Crim. 15:2 with Colo. J.I. — Crim. 15:3. Apparently confused by this instruction, the jury, after beginning its deliberations, sent a note to the trial judge asking whether defendant, his confederate, or both had to be armed. The trial judge attempted to contact defense counsel, but was unable to do so. He then responded to the note by writing on the back of it, "It does not make any difference."
In Wiseman v. People, 179 Colo. 101, 498 P.2d 930 (1972), the court stated that:
"Although communications between a judge and the jury outside the presence of the party on trial are frowned upon, prejudice is not to be presumed therefrom, but rather must be established before any verdict of guilt can be reversed on that ground."
Accord, People v. Lovato, 181 Colo. 99, 507 P.2d 860 (1973).
[1] Here, the trial court's clarification was a correct statement of the law. As long as a defendant commits robbery with the requisite intent, he may be convicted of aggravated robbery regardless of whether it is he or a confederate who possesses the deadly weapon. Sections 18-4-302(1)(a) and (c), C.R.S. 1973. Moreover, there was no evidence that defendant was in any way prejudiced by his counsel's absence at the time the correction was made. Under these circumstances, the trial court's communication with the jury was not reversible error.
[2] Furthermore, the variance between the indictment, which accused defendant of having an armed confederate present, and the proof, which showed defendant as the person armed, was not fatal. Subsections (1)(a) and (1)(c) of the aggravated robbery statute reflect the General Assembly's judgment that the criminal conduct in either situation is equally reprehensible and therefore legally indistinguishable. Consequently, as in the case of principals and complicitors, the indictment need not specify which of the two methods of committing the offense is being charged. See People v. Scheidt, 182 Colo. 374, 513 P.2d 446 (1973); Erwin v. People, 126 Colo. 28, 245 P.2d 1171 (1952).
Defendant's other assignment of error was not raised in his motion for new trial, and, perceiving that it is not plain or fundamental error, we will not review it here. See People v. Green, 183 Colo. 25, 514 P.2d 769 (1973).
Judgment affirmed.
JUDGE COYTE and JUDGE KELLY concur.