Opinion
July 8, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
John D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., James W. Wilson, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Forrest W. Lewis, Deputy State Public Defender, Denver, for defendant-appellant.
Page 344
SMITH, Judge.
Defendant appeals from a conviction of felony menacing, a violation of s 18--3--206, C.R.S.1973. We affirm.
Defendant entered a convenience grocery store in Pueblo, Colorado, on August 5, 1973. Edward Nelms and George Jiminez were store employees on duty at the time. Mr. Nelms testified that he observed defendant shove something down into the front of his trousers and concluded that he was shoplifting. When defendant came up to the check-out counter to pay for an article, Nelms asked defendant to 'put back' the item which he had placed in his trousers. In response, defendant asked Nelms if Nelms would like to see what he had in his trousers. Defendant apparently received an affirmative response and proceeded to pull out a small caliber revolver.
Nelms and Jiminez both testified that defendant pointed the gun directly at each of them and contemporaneously declared, 'Boy, you tell your partner there I am nobody to fuck with.' Nelms testified as to his fear, and that he did not know whether defendant would shoot or not. Defendant, however, returned the gun to his pocket and left the store.
Defendant, who testified on his own behalf, contends that he merely displayed the gun to both of them in response to their request to see what was in his trousers. He testified that the gun was neither pointed at them nor held in a menacing manner.
Some considerable time prior to trial, Nelms and Jiminez, were shown photographs of the defendant and four other individuals and both made an identification of defendant from these photos. Photos produced at trial were not the same photos that the witnesses had seen previously; however, the officer who showed the photos to Nelms and Jiminez testified that the photos at trial were made from the same negatives.
I
Defendant argues that since he was not present nor represented by counsel at the time of the photo identification he is precluded from demonstrating any suggestibility which may have existed in the techniques used by the police during that showup. Thus, defendant concludes Nelms' in-court identification of him was improper. We disagree.
The trial court held an in camera hearing concerning the pre-trial photo identification and found that Nelms' identification was from an independent source, namely the actual confrontation at the grocery store. This conclusion was supported by ample evidence in the record, and such an independent identification of the defendant constitutes a proper basis for the admission of Nelms' identification testimony. People v. Marion, Colo., 514 P.2d 327.
At the in camera hearing, the court ruled that Jiminez would not be allowed to make an in-court identification of the defendant. Later, during Jiminez's testimony, the district attorney asked him a question which referred to Valdez as 'defendant.' Defendant objected and immediately moved for a mistrial, which was denied. The trial court thereupon instructed the jury to disregard that reference to the word 'defendant' in the district attorney's question. We hold that this inadvertence by the district attorney was harmless error, particularly since the defendant himself admitted that he was the person at the store and since Nelms' in-court identification established the same.
II
Defendant next alleges that the trial court erred in failing to instruct the jury that the requirement of specific intent is applicable to all elements of the offense. See Colorado Jury Instructions (Criminal) 5(110). We find that the court's instructions nos. 10 and 11 were adequate in this respect. Instruction no. 10 states, in pertinent part:
'A person commits the crime of menacing by use of a deadly weapon if:
By any threat, or physical action he intentionally places or attempts to place another person in fear of imminent serious bodily injury by the use of a deadly weapon.
The elements of menacing are therefore:
(1) With Specific Intent,
(2) Placing or attempting to place another person in fear of imminent serious bodily injury,
(3) By threat or physical action,
(4) By the use of a deadly weapon.'
The only element of the crime to which specific intent is logically applicable is the defendant's act of placing or attempting to place another person in fear of imminent bodily injury, Thus, this instruction and instruction no. 11, which is a full definition of the operation and effect of specific intent, adequately informed the jury of the law relative to this issue.
III
Defendant argues that the trial court's refusal to give defendant's tendered instructions no. 2 and no. 7 was prejudicial error. Again, we disagree.
Upon examination, we find that defendant's instruction no. 2 merely rephrases the court's instruction no. 10 with a different emphasis; thus, its refusal was not error. People v. Mackey, Colo., 521 P.2d 910; Winters v. People, 174 Colo. 91, 482 P.2d 385. We note that the court gave defendant's instruction no. 7 and merely renumbered it no. 17.
IV
Lastly, defendant asserts that the trial court should have granted his motion for acquittal since the evidence presented was insufficient to sustain the verdict of the jury. The issue before a trial court in passing upon such a motion for acquittal is whether the relevant evidence, both direct and circumstantial, when viewed as a whole, and in a light most favorable to the prosecution, is substantial and sufficient to support a conclusion by reasonable minds that the defendant is guilty of the charge beyond a reasonable doubt. People v. Bennett, Colo., 515 P.2d 466. Here, the evidence was in direct conflict. Credibility was the determinative issue, and if the testimony of Nelms and Jiminez were believed, the jury could find defendant guilty. Hence, denial of the motion for acquittal was not error.
Judgment affirmed.
ENOCH and KELLY, JJ., concur.