v. Berry

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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 section 18-8-407, C.R.S. (2019), does
“public property” include property that is in the government’s possession but not
owned by the government? And second, for the crime of official misconduct,
under section 18-8-404, C.R.S. (2019), what is an act “relating to [an official’s]
office?”
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.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 14
Supreme Court Case No. 17SC430
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 15CA1394
Petitioner/Cross-Respondent:
The People of the State of Colorado,
v.
Respondent/Cross-Petitioner:
William Steven Berry.
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
Greenwood Village, Colorado
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.
2
¶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
section 18-8-407, C.R.S. (2019), and first-degree official misconduct in violation of
section 18-8-404, C.R.S. (2019). This case requires us to answer a question of first
impression about each of these statutory provisions. First, does “public property”
include property that is in the government’s possession but not owned by the
government? And second, what is an act “relating to [an official’s] office” for
purposes of the crime of official misconduct?1
¶2 We hold that the statute prohibiting embezzlement of public property
criminalizes only the embezzlement of property that is owned by the government.
1 We granted certiorari to review the following issues:
1. 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).
2. 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).
3
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.
4
¶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.
5
¶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.
II. Analysis
¶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
6
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.
7
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, section 18-8-407, is a direct descendant of the
first such law. People v. Berry, 2017 COA 65, ¶ 19, __ P.3d __. Section 18-8-407(1)
provides:
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 section 18-8-407, is property owned by a state or a political subdivision of
the state.
¶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;
8
[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 section
18-8-407). Thus, the phrase “public property” alone appears unambiguous.
¶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 of the property owner is largely inconsequential, for
embezzlement of “public property,” the identity of the property owner—the
public—is an essential part of the offense.2
2 Notably, the General Assembly has eliminated the crime of “embezzlement” as
an “offense against property.” See § 18-4-403, C.R.S. (2019) (“If any law of this state
refers to or mentions larceny, stealing, embezzlement (except embezzlement of
public moneys) . . . that law shall be interpreted as if the word ‘theft’ were
substituted therefor; and in the enactment of sections 18-4-401 to 18-4-403 it is the
intent of the general assembly to define one crime of theft and to incorporate
9
¶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.” § 18-8-407(1). The phrase “property of the state” clearly means that
the property at issue belongs to the state. See Wright v. People, 91 P.2d 499, 502–03
(Colo. 1939) (interpreting a related statute that barred the use of “public funds” for
private purposes and finding that certain funds were not subject to the statute
because the money “never was a part of the public funds of the county; it belonged
to [private individuals]”); see also Starr v. People, 157 P.2d 135, 137–38 (Colo. 1945)
(applying the same statute barring the use of “public funds” for private purposes
and concluding that the funds at issue were covered because they did belong to
the public).
¶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
therein such crimes, thereby removing distinctions and technicalities which
previously existed in the pleading and proof of such crimes.”).
10
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
3We are not faced in this dispute with the question of whether a public servant
who converts to his or her own use property leased or rented by the state or a
political subdivision could be guilty of violating section 18-8-407. The Lake
County Sheriff’s Office had no ownership or other right of exclusive use and
possession, such as a leasehold interest, in the firearms at issue here. The firearms
were owned by a private party and were simply in the custody of the sheriff’s
office.
11
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 section 18-8-407 refers to property owned by the state or a political
subdivision.
¶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 Lake County Sheriff’s
Office never owned the firearms as property in the context of section 18-8-407, and
neither did any other public entity. Even though Berry undoubtedly converted
the firearms for his own personal use, the firearms were never “public property.”
Accordingly, Berry did not commit embezzlement in violation of section 18-8-407.
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
12
constituting an unauthorized exercise of his official function.” § 18-8-404(1)(a).
Here, Berry approached P.E. in his patrol car and in full uniform, assured her that
the sale of the firearms to him would be legal, and then acquired the firearms from
the evidence locker with the help of another officer. Berry could only have
engaged in this kind of conduct by virtue of his public office. As such, his conduct
was well within the scope of official misconduct prohibited by section 18-8-404.
¶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 N.J. Stat.
Ann. § 2C:30-2(a) (West 2019) (prohibiting official misconduct, which occurs when
a public official “commits an act relating to his office but constituting an
unauthorized exercise of his official functions”). Construing that provision, the
New Jersey Supreme Court has explained that “when law-enforcement officers
commit an act of malfeasance because of the office they hold or because of the
opportunity afforded by that office, their conduct sufficiently relates to their office
to support a conviction.” State v. Bullock, 642 A.2d 397, 401 (N.J. 1994).
13
¶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.” § 18-8-404(1)(a).
14
¶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 to his office”
within the scope of the prohibition on official misconduct.
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.
15
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
1
possessory interest in property may be a victim of theft, robbery, burglary, arson,
trespass, tampering, and criminal mischief vis-à-vis that property. See
§ 18-4-101(3), C.R.S. (2019) (except where the context requires otherwise,
“[p]roperty is that of ‘another’” for purposes of all of the crimes against property
if “anyone other than the defendant has a possessory or proprietary interest
therein”); § 18-4-401(1.5), C.R.S. (2019) (for purposes of the crime of theft, “a thing
of value is that of ‘another’ if anyone other than the defendant has a possessory or
proprietary interest therein”). Thus, under the statutes governing property
crimes, including theft, property or a thing of value is “of another” if someone
other than the defendant has a possessory or proprietary interest in that property.
¶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, section 18-8-407(1), C.R.S. (2019), only
a proprietary interest counts. According to the majority, “property of the state,”
as that phrase is used in the embezzlement statute, excludes property in which the
state lacks a proprietary interest, even if the state lawfully possesses the property.
Maj. op. ¶¶ 1–2.
¶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
2
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 money when it
holds such money in trust for taxpayers or when it has been directed by the
legislature to spend that money in a particular fashion or for the benefit of specific
entities or individuals? The majority does not contemplate, let alone attempt to
answer, the numerous questions that naturally flow from its decision to
differentiate between proprietary and possessory interests in property. Nor does
the majority persuasively justify the stark contrast between its interpretation of the
embezzlement statute and our legislature’s treatment of theft (embezzlement’s
direct ancestor) and other property crimes.
¶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
3
—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 Section 18-8-407(1) provides, in pertinent part, as follows:
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
1 By way of example, people who finance the purchase of a car nevertheless claim
they “own” the car and that the car belongs to them. The same holds true for
people who take out a mortgage on a house; they nevertheless claim that they
“own” the house and that the house belongs to them. Such individuals may not
technically have a proprietary interest in their car or their house. But, for all intents
and purposes, they own their car and their house while making payments on
them.
4
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.” § 18-8-407(1). But, as the majority acknowledges, we must consider
the phrase that follows in attempting to decipher the meaning of “public
property.” Maj. op. ¶ 13. After all, the legislature provided some guidance there
as to what it meant by “public property”: “public property of whatever
description, being the property of the state.” § 18-8-407(1) (emphasis added).
¶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
5
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 state” as “property . . . [that] belongs to the state,” it arbitrarily equates
“belongs” with ownership. In Wright and Starr, we did not entertain whether
property in which the state has only a possessory interest may be deemed property
of the state for purposes of the embezzlement statute. That issue simply wasn’t
before the court in those cases. In fact, neither case dealt with the embezzlement
statute. And the majority does not articulate why having a possessory interest in
property cannot suffice to support a claim that the property belongs to the state. In
other words, if the state has the present right to control the property and to exclude
others from it, why isn’t it accurate for the state to claim that the property belongs
to it?
¶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”
6
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
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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
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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 of “property”
quoted by the majority belie its claim. In my view, the definition of “public
property,” considered in a vacuum, cannot rescue the majority. It makes no sense
to admit that “property” includes something possessed but to claim in the same
breath that “public property” does not. If “property” is not limited to something
owned, how can property that happens to be “public” be so limited?
¶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 § 2-4-203(1)(d), C.R.S. (2019) (“If a statute is ambiguous, the court, in
determining the intention of the general assembly, may consider . . . laws upon the
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same or similar subjects.”); and (2) “the consequences of any given construction,”
Carrera, ¶ 18, 449 P.3d at 729; accord § 2-4-203(1)(e) (“If a statute is ambiguous, the
court, in determining the intention of the general assembly, may consider . . . [t]he
consequences of a particular construction.”).
B. Other Tools of Statutory Construction
1. Statutes Bearing on Similar Subjects
¶41 I start with the theft statute, section 18-4-401, since embezzlement descends
directly from larceny, the first theft crime at common law. See 3 Wayne R. LaFave,
Substantive Criminal Law § 19.1(a), at 57 (2d ed. 2003). In general, a person
commits the crime of theft when, under the circumstances listed in section
18-4-401(1), he “knowingly obtains, retains, or exercises control over anything of
value of another without authorization or by threat or deception.” § 18-4-401(1)
(emphasis added). Subsection (1.5), in turn, states that “a thing of value is that of
‘another’ if anyone other than the defendant has a possessory or proprietary interest
therein.” § 18-4-401(1.5) (emphases added).
¶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,
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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 section 18-4-101, which provides the definitions
that apply to all of the crimes against property unless the context requires
otherwise. This includes the crimes of theft, robbery, burglary, arson, trespass,
tampering, and criminal mischief. In subsection (3), section 18-4-101 provides that
“[p]roperty is that of ‘another’ if anyone other than the defendant has a possessory or
proprietary interest therein.” (Emphases added.)
¶44 Thus, for example, under section 18-4-506, C.R.S. (2019), a person commits
the crime of second degree tampering when he “tampers with property of another
with intent to cause injury, inconvenience, or annoyance to that person or to
another.” (Emphasis added.) Similarly, section 18-4-103(1), C.R.S. (2019), states
that a person commits the crime of second degree arson if he “knowingly sets fire
to, burns, causes to be burned, or by the use of any explosive damages or destroys,
or causes to be damaged or destroyed, any property of another without his consent,
other than a building or occupied structure.” (Emphasis added.)
¶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
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which another has a possessory, but not a proprietary, interest, “property of the
state” should likewise include property in which the state has a possessory, but
not a proprietary, interest. Just as someone accused of second degree tampering
or second degree arson may not defend against such a charge by claiming that the
victim had a possessory, but not a proprietary, interest in the property in question,
so too, someone accused of embezzlement should be precluded from defending
against such a charge by claiming that the state had a possessory, but not a
proprietary, interest in the property in question. 2
¶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
2Interestingly, the “[d]efacing property” statute, which also appears in the article
governing property crimes, includes a provision that refers to a cave that is either
“public property or the property of another.” § 18-4-509(1)(c)(I), C.R.S. (2019).
There is no basis to believe that “public property,” as used there, refers only to
property in which the state has a proprietary interest, but that “property of
another” refers to property in which someone other than the defendant has a
proprietary or possessory interest. See id.
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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
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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,
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interest. For these reasons, and because today’s opinion will lead to absurd results,
I write separately with respect to Part II-B. I therefore respectfully concur in part
and dissent in part; I would reverse the judgment of the court of appeals.
I am authorized to state that CHIEF JUSTICE COATS joins in this
concurrence in part and dissent in part.
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