Opinion
July 24, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 231
J. E. Losavio, Jr., Dist. Atty., Charles J. Malouff, Deputy Dist. Atty., Pueblo, for petitioner-appellee.
Rollie R. Rogers, State Public Defender, Thomas M. Van Cleave III, Deputy State Public Defender, Denver, for minor child-appellant.
COYTE, Judge.
The appellant, a minor child, appeals from the trial court's adjudication of her as a delinquent child entered after a jury verdict finding that she committed acts which if committed by an adult would have constituted the crime of theft.
The complaining witness testified that he had been bar-hopping and met appellant on the evening of August 12, 1971. After dining at a restaurant, they went to his hotel room. The complaining witness said he placed his wallet under the mattress and left the room for a few moments. When he returned the wallet was lying empty on the floor, and, despite his protests, appellant left immediately. He reported the incident to the police. The following day the complaining witness was shown four photographs and selected the picture of appellant as the person who stole his money.
Prior to trial a hearing was held on a motion to suppress any identification of appellant by the complaining witness. The judge ruled that the photographic identification was inadmissible, but allowed an in-court identification by the complaining witness. The ruling was based largely upon the complaining witness's testimony that he could identify the thief independently of the photographs. At trial, appellant was also identified in court by a waitress as the person who dined with the complaining witness on the night the theft occurred.
Although proceedings under the Colorado Children's Code are civil in nature, a respondent child in such proceedings is entitled to the same constitutional protections as are afforded an adult defendant in a criminal case. In Re People, Colo.App., 506 P.2d 409; People, Int. G.D.K. v. G.D.K., 30 Colo.App. 54, 491 P.2d 81.
I.
Appellant argues that as a matter of law the evidence was insufficient to sustain the verdict of the jury. In essence appellant challenges the credibility and competency of the complaining witness. In Dodge v. People, 168 Colo. 531, 452 P.2d 759, 'As to the issue of whether the evidence is sufficient in fact to sustain defendant's conviction, we reiterate these established rules; the evidence, with reasonable inferences therefrom, must be viewed in the light most favorable to the jury's verdict; the jury is assumed to have adopted that evidence which supports its verdict; and, the jury having found the guilt of the accused proved beyond a reasonable doubt, this court will neither weigh the evidence nor appraise the credibility of witnesses.'
The above rule clearly delineates those areas which lie exclusively within the province of the trier of fact. Since there was evidence to support the verdict of the jury, we will not disturb its determination on review.
II.
Appellant next contends that the trial court erred by allowing the complaining witness to identify appellant in court because the identification was 'tainted' by a prior improper photographic identification. We disagree. She makes a two-pronged attack on the propriety of the photographic identification. First, she argues that the photographic identification was improper because no attorney representing appellant was present. However, it is clear that no adversary judicial criminal proceeding had been initiated at that time, and, thus, the right to counsel had not yet arisen. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411; United States v. Von Roeder, 10 Cir., 435 F.2d 1004. Secondly, appellant contends the photographic identification was 'impermissibly suggestive.' The witness was presented with four photographs and only one other besides appellant's was of a girl of Hispanic ancestry. However, the officer who conducted the photographic identification testified that he used that mixture of photographs because they were the only ones he had in the appellant's age bracket. Moreover, all the subjects were about the same height and one of the Anglo girls appeared to be of Hispanic ancestry. There was no showing that any suggestive comments were made at the time the photographic identification was made. We note that the complaining witness had been in appellant's company for a considerable period of time on the evening the theft occurred. There was no 'improper identification' made of appellant. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.
III.
The following instructions on intent were given:
'You are instructed that Chapter 40, Article 5, Section 2 of the Colorado Revised Statutes of 1963, as amended, provides as follows:
Any person commits theft when he knowingly obtains or exerts unauthorized control over anything of value of another and Intends to deprive another permanently of the use of benefit of the thing of value.
* * *
* * *
'It devolves upon the prosecution to prove the intent in this case to your satisfaction beyond a reasonable doubt, but such intent need not be proved by direct and positive evidence. Intent may be inferred from the facts and circumstances shown by all the evidence, as manifested by the circumstances surrounding the commission of the offense, and the sound mind and discretion of the accused.
'The law warrants the presumption or inference that a person intends the natural results or consequences to follow the act which he intentionally commits and which ordinarily do follow such acts.' (Emphasis added.)
This case was tried prior to the effective date of Colorado Jury Instructions (Criminal). Appellant contends that these instructions do not adequately cover the element of specific intent. We disagree. The first instruction quotes from the statute with respect to the requisite intent for the crime of theft, and instructions phrased in the language of the statute are not erroneous when they adequately inform the jury of applicable law. Blincoe v. People, Colo., 494 P.2d 1285. Further, the second instruction clearly sets forth the obligation of the state to prove that intent.
Judgment affirmed.
SILVERSTEIN, C.J. and PIERCE, J., concur.