Opinion
No. 28438
Decided May 21, 1979. Rehearing denied June 11, 1979.
Defendant was convicted by a jury of second-degree burglary and criminal mischief over $100 and appealed.
Affirmed
1. CRIMINAL EVIDENCE — Guilt — Determination — Credibility — Weight — Jury. When a determination of defendant's guilt rests upon the credibility of witnesses or the weight to be accorded evidence, the issue of guilt is for the jury to determine.
2. BURGLARY — Criminal Mischief — Guilt — Sufficiency of Evidence. In prosecution for second-degree burglary and criminal mischief over $100, record reflects substantial evidence to support the jury verdict of guilty; accordingly, trial court properly denied defendant's motion for judgment of acquittal.
3. WITNESSES — Statute — Constitutional. There is no constitutional infirmity in section 13-90-101, C.R.S. 1973, as to who may be witnesses.
4. Impeachment — Prior Felony Convictions. A prosecutor may utilize a defendant's prior felony convictions for impeachment purposes if the defendant elects to testify in his own behalf.
Appeal from the District Court of Pueblo County Honorable Thomas F. Phelps, Judge.
J.D. MacFarlane, Attorney General, David W. Robbins, Deputy, Edward G. Donovan, Solicitor General, David Schwartz, Assistant, Maureen Phelan, Assistant, for plaintiff-appellee.
J. Gregory Walta, State Public Defender, Craig L. Truman, Chief Deputy, Margaret L. O'Leary, Deputy, for defendant-appellant.
Jimmy Lee Griffith was convicted by a jury of second-degree burglary, section 18-4-203, C.R.S. 1973 (1978 Repl. Vol. 8), and criminal mischief over $100, section 18-4-501, C.R.S. 1973 (1978 Repl. Vol. 8). On appeal, he asserts that the evidence was insufficient to sustain conviction of either charge and that the credibility of two minor witnesses was such that the court should have granted his motion for a judgment of acquittal. Griffith relies upon People v. Urso, 129 Colo. 292, 269 P.2d 709 (1954), which, in our view, has no application to the facts of this case.
[1] When a determination of the defendant's guilt rests upon the credibility of witnesses or the weight to be accorded evidence, the issue of guilt is for the jury to determine. Roybal v. People, 177 Colo. 144, 493 P.2d 9 (1972).
[2] There was substantial evidence to support the jury verdict, and the trial court properly denied defendant's motion for a judgment of acquittal. Bennett v. People, 155 Colo. 101, 392 P.2d 657 (1964).
[3,4] The defendant also asserts that People v. Henry, 195 Colo. 309, 578 P.2d 1041 (1978), should be overruled. We decline to do so. We find no constitutional infirmity in section 13-90-101, C.R.S. 1973, which we upheld in People v. Henry. A prosecutor may utilize a defendant's prior felony convictions for impeachment purposes if the defendant elects to testify in his own behalf. People v. Henry, supra; People v. Velarde, 196 Colo. 254, 586 P.2d 6 (1978).
The remaining issues are without merit.
Accordingly, we affirm.
MR. JUSTICE CARRIGAN concurs in part and dissents in part.