Opinion
Sept. 30, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 134
John D. MacFarlane, Atty. Gen., Edward G. Donovan, Sol. Gen., David E. Bath, Deputy Dist. Atty., Brooke Wunnicke, Chief App. Deputy Dist. Atty., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Dorian E. Welch, Deputy State Public Defender, Denver, for defendant-appellant.
STERNBERG, Judge.
Defendant was charged with first degree assault in violation of s 18--3--202(1)(a), C.R.S.1973, and he defended on the theory of self-defense under s 18--1--704, C.R.S.1973. Convicted by a jury, he appeals contending that the trial court erred in denying his motion for judgment of acquittal in two respects: First, that the evidence was insufficient to negate defendant's justification of self-defense, and second, that a necessary element of the crime of assault, 'serious bodily injury,' was not proved. We affirm.
As disclosed by the evidence at the trial, one Myres had purchased a janitorial business from the defendant. For two months thereafter disputes over money took place, culminating in physical violence at defendant's office the day before the incident in question. Defendant notified police, resulting in Myres being arrested and jailed overnight. After his release, on the following morning, Myres again went to defendant's office where a second fight ensued. Defendant testified that Myres pulled a knife, and that he fired a warning shot from a pistol at Myres. Myres denied that he had a knife.
About seven hours later the altercation resumed with an encounter between the two at East 32nd Avenue and Colorado Boulevard in Denver. Myres was driving a van and defendant a car. They offered contradictory testimony at trial as to who was pursuing whom. Defendant attempted to explain the position of his car in front of and blocking Myres' van by alleging that a collision had taken place. Myres denied this and asserted that defendant had cut in front of him, forcing a sudden stop. There was no damage to either vehicle nor was there other evidence of a collision. The parties' testimony was also in conflict about who was the aggressor in the events that followed.
The People presented two eyewitnesses to the incident, both of whom testified that defendant's car was in front of and blocking Myres' van at the time the vehicles were stopped. Although defendant testified that Myres had both a gun and a tire iron, Myres' denial of this fact was corroborated by the eyewitnesses who testified that although they had a clear view of Myres' hands, at no time did they see him holding a weapon. Finally, both of these witnesses stated that defendant had a pistol which he shot several times, that Myres attempted to flee and that they saw defendant chasing after Myres across Colorado Boulevard.
Myres was shot five times by defendant during this incident. Several of the wounds were superficial and left no impairment. The treating physician testified, however, that he amputated Myres' left little finger as a result of one wound, and that the wound in Myres' right wrist was serious enough that it might entail residual problems. Defendant's first contention of error is that these facts constitute insufficient evidence as a matter of law to negate, beyond a reasonable doubt, his justification of self-defense. We disagree.
Defendant correctly states that under s 18--1--407(1), (2), C.R.S.1973, once the issue involved in an affirmative defense is raised, the guilt of the defendant must be established beyond a reasonable doubt as to that issue as well as all other elements of the offense. He then contends that the evidence presented by the People in this case was conflicting, contradictory, and unworthy of belief.
The question to be resolved in deciding whether a judgment of acquittal is mandated where defendant relies on a theory of self-defense is whether there is some competent evidence favoring the prosecution. People v. Urso, 129 Colo. 292, 269 P.2d 709. The cause must go to the jury unless the testimony of the prosecutor's witnesses is 'so palpably incredible and so totally unbelievable as to be absolutely impeached as a matter of law.' People v. Martinez, Colo., 531 P.2d 964. Although the record indicates some conflicting evidence, there was no blatant inconsistency with regard to the primary issues. Thus, we conclude there was 'no sufficient reason here for the trial judge to depart from the normal procedure of permitting the jury to determine the credibility of the witness(es) . . ..' People v. Eaton, Colo., 531 P.2d 970.
Secondly, defendant urges that the trial court erred in denying his motion for judgment of acquittal because it was not proved beyond a reasonable doubt that the victim received serious bodily injury. In order to sustain a conviction of first degree assault, one requisite element that must be established by the evidence is that the defendant caused serious injury to any person. Section 18--3--202(1)(a), C.R.S.1973. 'Serious bodily injury' is defined by s 18--1--901(3)(p), C.R.S.1973, as 'bodily injury which involves a substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body.'
The evidence here is undisputed that defendant fired a .38 calibre colt revolver at the victim, and inflicted five gunshot wounds. There was medical testimony that the victim was hospitalized as a result of his wounds for two weeks, that he may encounter further problems with the wound in his right wrist, and that one of the victim's fingers was amputated. We conclude that this evidence was sufficient to meet the statutory test. Thus, the question of whether there was serious bodily injury actually inflicted on the victim was one properly within the purview of the jury. See State v. McKeehan, 91 Idaho 808, 430 P.2d 886.
Judgment affirmed.
SILVERSTEIN, C.J., and VanCISE, J., concur.