v. Berry

Citation: 2020 CO 14Docket: 17SC430, People

Court: Supreme Court of Colorado; February 17, 2020; Colorado; State Supreme Court

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Opinions from the Colorado Supreme Court are publicly accessible via the Judicial Branch and Colorado Bar Association websites. In the case of *People v. Berry*, decided on February 18, 2020 (2020 CO 14, No. 17SC430), the court addressed two significant legal questions regarding embezzlement of public property and official misconduct. 

Firstly, the court ruled that the statute on embezzlement of public property (section 18-8-407, C.R.S. 2019) applies only to property owned by the government, clarifying that property in the government's possession but not owned by it does not fall under this statute. Secondly, regarding official misconduct (section 18-8-404, C.R.S. 2019), the court determined that the term "relating to [an official’s] office" should be interpreted broadly, allowing for charges when an official misuses the privileges of their position for improper purposes.

The court affirmed the lower appellate court's decision, confirming William Steven Berry’s conviction for embezzling firearms from the Lake County Sheriff’s Office evidence locker and committing first-degree official misconduct. The ruling was delivered by Justice Hart, with Justice Samour concurring in part and dissenting in part, and Chief Justice Coats joining in that concurrence and dissent. The case highlights the delineation between property ownership and possession in the context of embezzlement, as well as the expansive interpretation of misconduct related to an official's duties.

In August 2013, Lake County Sheriff’s Office deputies, including Berry, responded to a domestic violence incident involving J.V. After J.V.'s arrest, P.E. expressed her discomfort with J.V. keeping several firearms in their shared home. At her request, officers confiscated four firearms, including a valuable Colt handgun, and stored them in the sheriff’s evidence locker. Following the resolution of J.V.'s charges, the sheriff was authorized to either release or destroy the firearms, but could not return them to J.V. due to his undocumented status, nor to P.E. for the same reason under the sheriff's policy.

Berry later approached P.E. while on duty and in uniform, offering to buy the firearms for $500. P.E. agreed, despite her concerns about the legality of the transaction, after Berry assured her it was legal because of his position. Berry then paid P.E. and obtained a bill of sale. The circumstances regarding the retrieval of the firearms from the evidence locker became contentious. Berry claimed P.E. signed a release form to collect the firearms, which he produced, while P.E. asserted she had never signed such a form and did not go to the locker.

Berry retained possession of the firearms, giving one to a deputy as thanks for assistance. He attempted to sell the Colt in California but faced shipping issues, prompting the buyer to contact the sheriff’s office, leading to an internal investigation. The investigation revealed that Berry had improperly removed the firearms for personal gain. He was charged with embezzlement of public property and first-degree official misconduct. A jury found him guilty of both, but the appellate court vacated the embezzlement conviction, affirming the misconduct charge. The court analyzed whether Berry's actions constituted embezzlement, concluding that the firearms were not public property, and determined that his conduct in soliciting the purchase while in uniform amounted to official misconduct.

The standard of review for the case involves de novo examination of statutory interpretation. The court seeks to ascertain and fulfill the intent of the General Assembly, interpreting statutory language based on its ordinary meaning and in the context of the statute as a whole. If the language is clear and unambiguous, no further inquiry is necessary; ambiguity prompts consideration of additional statutory construction rules.

The statute in question, section 18-8-407, pertains to the embezzlement of public property, which has been criminalized in Colorado since statehood. This section defines embezzlement as the conversion of public moneys or property owned by the state or political subdivisions for unauthorized personal use. The statute does not define "public property," but it implies that it refers to property owned by the state or its political subdivisions, as supported by common definitions and legal interpretations.

The phrase "public property" is deemed unambiguous and is reinforced by its context within criminal statutes. Notably, the embezzlement statute is situated among laws concerning governmental operations, highlighting the public's ownership as vital to the offense. Moreover, the General Assembly has revised the classification of embezzlement, differentiating it from other property crimes, indicating a legislative intent to unify theft-related offenses under a broader definition.

The phrase "public property" is defined in statute 18-8-407(1) as property owned by the state or any political subdivision of the state, distinguishing it from property merely in the state's possession. Legal precedents, such as Wright v. People and Starr v. People, clarify that the term "public funds" does not apply to funds that are privately owned. The statute prohibits the conversion of public property to uses outside those authorized by law, emphasizing that there must be a legal public use for the property in question. In the case discussed, firearms taken from the evidence locker by Deputy Berry lacked any authorized public use and were never owned by the sheriff's office or any public entity. Although the prosecution argued that "public property" could include property possessed by the state, the court concluded that the term is specific to property ownership, not mere possession. Consequently, since the firearms were not classified as public property under section 18-8-407, Berry's actions did not constitute embezzlement as defined by the statute.

Berry's conduct in purchasing firearms raises the question of whether it constituted an act related to his official duties, despite being unauthorized. Berry, in full uniform and driving a patrol car, assured P.E. that acquiring the firearms from the evidence locker would be legal. His ability to engage in this conduct stemmed from his position as a public official, falling within the scope of Colorado's official misconduct statute (18-8-404). The court noted that similar statutes in other states, such as New Jersey, broadly interpret official misconduct to include actions related to an official's role, even if those actions are unauthorized. Previous cases indicate that misconduct does not need to occur within the official's actual duties but can involve actions that exploit the authority of their office. Berry's situation—approaching P.E. while in uniform and proposing a firearm purchase—demonstrates that he utilized the opportunities afforded by his position, justifying the conclusion that his actions constituted official misconduct as defined by the statute. The jury had reasonable grounds to determine that Berry's conduct directly related to his office as a sheriff’s deputy.

The statute against embezzlement of public property is interpreted to criminalize only the embezzlement of property owned by the government, while the prohibition on official misconduct is to be broadly construed to encompass situations where an official misuses their position for improper conduct. The court affirmed the court of appeals' decision. Justice Samour partially concurred and partially dissented, referencing the common law principle that possession is considered prima facie evidence of ownership. He cited historical legal precedents affirming that actual control and possession suggest ownership, noting that the General Assembly does not differentiate between proprietary and possessory interests in property crimes. However, the majority opinion creates a distinction, suggesting that only proprietary interests are valid under the embezzlement statute, raising questions about how the state’s ownership of property can be proven, especially in cases involving leased or untitleable assets and the handling of money held in trust for taxpayers.

The majority opinion fails to address numerous implications arising from its differentiation between proprietary and possessory interests in property, and does not adequately justify its interpretation of the embezzlement statute compared to the legislature's approach to theft and other property crimes. The dissent argues that the term "property of the state" in the embezzlement statute should encompass property over which the state has either a proprietary or possessory interest, as defined by rights akin to those of a property owner. The dissent expresses concern about the potential consequences of the majority's decision and disagrees with its assertion that the statute is clear and unambiguous. It highlights that the statute, specifically Section 18-8-407(1), does not define "public property," which complicates the determination of what constitutes "property of the state." The dissent contends that the majority's conclusion that such property must belong to the state is flawed and overlooks the possibility that property with only a possessory interest could also be considered state property for the purposes of the embezzlement statute. The dissent references relevant case law to support its interpretation and criticizes the majority for failing to recognize the nuances of possessory interests.

The excerpt critiques the majority's interpretation of the embezzlement statute, arguing that the state’s current right to control property and exclude others does not inherently mean that the property belongs to the state. It highlights a flaw in the majority's circular reasoning—defining "property of the state" as property that "belongs" to the state without addressing the distinction between proprietary and possessory interests. The dissenting opinion questions why property with a possessory interest cannot also serve a public use authorized by law, pointing out that the firearms in question were held by the sheriff’s office as evidence, thus having a legitimate public use. It disputes the majority's focus on the term "public property" rather than "property of the state," suggesting that legislative intent should guide the interpretation of the embezzlement statute. The dissent also challenges the majority’s dismissal of dictionary definitions of "property," which encompass both ownership and possession, arguing that such definitions undermine the majority's position. It concludes that the definitions of "public property" do not restrict the statute's applicability to only property owned by the state.

The term "property of the state" is ambiguous due to the absence of a legislative definition and the potential for multiple reasonable interpretations, such as property in which the state holds a proprietary or possessory interest. This ambiguity allows for the application of statutory construction tools to discern legislative intent. Two key tools include examining related statutes and considering the consequences of different interpretations. 

A comparison is made with the theft statute, section 18-4-401, which defines theft as knowingly obtaining or controlling property of another without authorization. Notably, the theft statute's language, which includes property of "another," is analogous to the embezzlement statute's reference to "property of the state." The argument posits that if "property of another" can encompass property with only a possessory interest, then "property of the state" should similarly include property in which the state has a possessory interest, regardless of proprietary interest. 

Further support comes from section 18-4-101, which defines property in relation to crimes against property. This section asserts that property is considered that of "another" if anyone other than the defendant has a possessory or proprietary interest. This framework implies that a defendant in an embezzlement case should not be able to argue a defense based on the state’s possessory interest alone, paralleling the defenses available in cases of second degree tampering or arson.

The majority's interpretation of statutory provisions regarding embezzlement is critiqued for distinguishing between property crimes and the treatment of property ownership. The dissent argues that the majority's view leads to illogical outcomes, specifically exempting public employees from embezzlement charges when they convert property held by the government in a possessory capacity but not a proprietary one. For example, a public employee could face embezzlement charges for using an owned city truck unlawfully but would be exempt if they used a leased vehicle in the same manner. Similarly, if a government agency staff member misappropriates child support funds, they could evade charges due to the lack of proprietary interest by the government. The dissent emphasizes that the legislature likely did not intend for such absurd consequences when referring to "property of the state" in the embezzlement statute. Ultimately, the dissent contends that the majority's interpretation misinterprets the statute and leads to unintended results, advocating for a reversal of the court of appeals' judgment. Chief Justice Coats supports this dissent.