Opinion
No. 75-100
Decided December 4, 1975.
In prosecution against state director of revenue in which he was charged with misuse of official information relating to the sale of equipment to a bar that had applied for a liquor license, the trial court excluded certain evidence and granted defendant's motion for judgment of acquittal, and the People sought review of those rulings.
Rulings Approved
1. CRIMINAL LAW — Evidence — Criminal Prosecution — Misuse of Official Information — Written Contract — Allegedly Lost or Destroyed — Testimony — Secondary Evidence — Contents of Document — Properly Excluded. In prosecution against former director of revenue in which defendant was charged with misusing official information for the purpose of making pecuniary gains, evidence of a written contract between the defendant and several persons who had applied for a liquor license was properly excluded on the basis that the People did not establish by clear and convincing evidence that the original document had been lost or destroyed, and that the testimony of witnesses as to the document's contents did not meet the clear and convincing test required of secondary evidence in criminal cases.
2. Evidence — Criminal Prosecution — Similar Transactions — Other Contracts — When Admissible — Relevance to Crime — As Proof of Intent, Motive, Design — Possible Prejudice to Defendant — Properly Excluded. Where, in prosecution against state revenue official who had the duty of supervising the issuance of beer licenses and whose wife along with others was the distributor of air purification devices, the prosecution sought to introduce evidence of sales of the air purification devices by the distributor to restaurants and bars in order to establish that the defendant had executed a contract with certain prospective licensees for the purpose of gaining pecuniary benefits, such evidence was properly excluded by the trial court on the basis that it bore no relevance to the crime charged, did not otherwise show intent, motive, scheme, plan or design, and carried an unnecessary danger of unfair prejudice to the defendant.
3. Judgment of Acquittal — Proper — Insufficient Evidence — Support Finding — Proof Beyond Reasonable Doubt. In prosecution against former state official for the misuse of information for purposes of making pecuniary gains, while evidence indicated that his conduct fell short of that which the public should expect of its servants, nevertheless since the alleged pecuniary interest was acquired by the defendant prior to his alleged misconduct, since there was no evidence that the interest was acquired in contemplation of official action, and since other evidence proffered by the prosecution to prove the defendant's guilt was properly excluded by the trial court, the evidence was insufficient to support a finding of guilt beyond a reasonable doubt, and the granting of defendant's motion for judgment of acquittal was in order.
Appeal from the District Court of Mesa County, Honorable James J. Carter, Judge.
Terrance L. Farina, District Attorney, Brooke Wunnicke, Chief Appellate Deputy District Attorney, Peter R. Bornstein, Deputy District Attorney, H. Jeffrey Bayless, Deputy District Attorney, for plaintiff-appellant.
No appearance for defendant-appellee.
Division III.
Pursuant to § 16-12-102, C.R.S. 1973, the People appeal upon questions of law in reference to three rulings of the trial court. We approve these rulings.
Defendant was charged with misuse of official information while he was Executive Director of the Colorado Department of Revenue. The statute upon which the charges were founded, § 18-8-402, C.R.S. 1973, provides in pertinent part that:
"(1) Any public servant, in contemplation of official action by himself or by a governmental unit with which he is associated or in reliance on information to which he has access in his official capacity and which has not been made public, commits misuse of official information if he:
"(a) Acquires a pecuniary interest in any property, transaction, or enterprise which may be affected by such information or official action; or
. . . .
"(c) Aids, advises, or encourages another to do any of the foregoing with intent to confer on any person a special pecuniary benefit."
The evidence at the trial was as follows: In his position with the state, one of defendant's duties was to supervise issuance or denial of 3.2% beer licenses at the state level, but only in cases where such licenses were approved by the local licensing authority could there be a hearing at the state level. Defendant's wife in conjunction with wives of other employees of the Department of Revenue had formed a corporation, Clean Air Distributors, Inc. That corporation had obtained a franchise to sell an air purification device in Colorado. This equipment was particularly effective in cleaning smoke from the air in businesses such as restaurants and bars.
Defendant met with several individuals who desired to open a nightclub to be named "Funny Papers," for which a 3.2% beer license would be required. An application relating to that license was pending before the local licensing authority in the City and County of Denver. A discussion took place concerning the purchase of air purification units for that establishment. At that point in the trial, one of the People's witnesses referred to a contract that allegedly had been signed, and defendant objected on the basis that the document itself should be produced.
Thereupon, an in camera hearing took place. The People, proceeding under § 13-25-113, C.R.S. 1973, the lost document statute, presented an affidavit of one of the special prosecutors. The affiant stated therein that he had heard one Bisgard testify before the grand jury that there was a written contract, that the contract related to the purchase of approximately 16 air purification units for about $14,000, that the contract was written by the defendant, that he (Bisgard) and defendant had signed it, that the contract contained a contingency that it would be invalid unless a 3.2% beer license was obtained, that while the witness had received a copy of the contract, he was unable to locate it, and finally that the defendant and the manager of Clear Air Distributors, Inc., could not locate a copy of the document.
After receiving the affidavit, the court indicated that it would not permit testimony of the existence of or contents contained in the purported written contract, and the People, still proceeding in camera, presented the testimony of Mr. Bisgard himself. His testimony at times was quite different from that attributed to him in the prosecutor's affidavit. Quoting from the record:
"Q. I am asking you, do you definitely recall now whether you got a copy of this contract?
"A. I vaguely remember something, that I got a copy of something.
. . . .
"Q. Is it possible that you have confused in your mind a contract in this particular transaction with contracts in other transactions?
"A. It is very possible.
. . . .
"Q. It is fair to say, then, too, that you aren't really sure right now whether Mr. Heckers signed a document, isn't it?
"A. On that one, no, I am not sure."
Other witnesses who were present at the time the alleged contract was purportedly executed, testified with the same vagueness at the in camera hearing. One such witness stated that "something was put in writing," while another testified that he had not read the document, nor could he remember if anyone signed it. All of these witnesses denied receiving copies of any contract.
The court persisted in its ruling that evidence of the alleged contract would not be permitted, and the People proceeded to put on the rest of their case. The People attempted to introduce evidence of sales of air purifiers by Clean Air Distributors, Inc., to restaurants and bars that had liquor licenses at the time of the transactions, but the court refused to permit such testimony to come before the jury. At the close of the People's case the defendant moved for a judgment of acquittal, and the court granted the motion.
I.
The People contend that the court erred in excluding proffered evidence relating to the contract for the sale of air purifiers, urging that they had met the requirements of the lost document statute, § 13-25-113, C.R.S. 1973. That statute reads:
"When, in the progress of any suit in any court in this state, either party thereto relies for its maintenance or defense, in whole or in part, on any deed, bond, note, draft, bill of exchange, letter, or any other writing alleged to have been executed, signed, or written by the adverse party, and to have been lost or destroyed, the party so relying on the same as evidence in his behalf in the trial of the cause shall not be permitted to give evidence of the contents thereof by a competent witness until said party or his agent or attorney first makes an oath to the loss or destruction thereof, and to the substance of the same."
[1] The People urge that the affidavit which they presented indicated the loss of the document and the substance thereof and that therefore evidence of the contents of the contract should have been received. It is doubtful that this affidavit is sufficient to comply with the statute since it is not based upon the affiant's personal knowledge of the existence of the document and his personal knowledge that it was lost. But, be that as it may, when the affidavit is considered in light of the testimony presented at the in camera hearing, there can be no doubt of the correctness of the court's ruling that "there was no clear and convincing evidence as to the substance of the purported written document; there is no clear and convincing evidence that the document was lost or destroyed. . . ."
Since, as the People observe, this alleged lost writing was the "heart of their case," and since this is a criminal case, the necessity for such clear and convincing evidence was of paramount importance. As stated in Walker v. Drogmund, 101 Colo. 521, 74 P.2d 1235:
"`The secondary evidence adduced to prove the contents of a lost instrument must be clear and convincing. . . . The doctrine would seem to be equally well founded, in principle, that the greater the value of the instrument, the more conclusive should be the proof of its existence and contents. . . .'" (emphasis supplied)
Furthermore, it was not error for the court to hear and consider the testimony of Mr. Bisgard and others who were present when the contract purportedly was prepared, before ruling on the admissibility of secondary evidence of its existence and contents. It would have been an exercise in futility for the court to have ruled that the affidavit complied with the requirements of the lost document statute, permitted testimony thereon, and then because of the contradictory nature of that testimony, taken the case from the jury or set aside a conviction. See McDonald v. Thompson, 16 Colo. 13, 26 P. 146.
II.
The People also contend that the trial court erred in refusing to admit evidence of "similar transactions." These transactions relate to sales by Clean Air Distributors, Inc., to restaurants and bars which had liquor licenses at the time of the sales, and thus the People concede, were not themselves violative of any criminal statute.
[2] The court properly excluded the evidence as not being relevant to the crime charged nor to show intent, motive, plan, scheme, or design, Webb v. People, 97 Colo. 262, 49 P.2d 381, and also in refusing to allow it to be presented to the jury because it would carry with it the danger of unfair prejudice to the defendant. See People v. Moen, 186 Colo. 196, 526 P.2d 654.
As stated in Stull v. People, 140 Colo. 278, 344 P.2d 455:
"Bearing in mind that evidence of similar [criminal] acts has inhering in it damning innuendo likely to beget prejudice in the minds of jurors, and that such evidence tends to inject collateral issues into a criminal case which are not unlikely to confuse and lead astray the jury, it becomes exigent that courts observe the fine balance in regard to such evidence that must exist between the necessity of proof on the part of the prosecutor and the danger of unfair prejudice to the defendant. . . ."
The same rule applicable to evidence of other criminal conduct applies with regard to proof of conduct falling short of being criminal. People v. Whalen, 70 Cal. App. 2d 142, 160 P.2d 560.
III.
[3] The People's final contention is that the court erred in granting defendant's motion for judgment of acquittal at the close of the prosecution's case, since there was sufficient evidence in the record to support a conclusion of guilt. We disagree. There was testimony that defendant may have owned an interest in Clean Air Distributors, Inc., but that this pecuniary interest was acquired long before his alleged misconduct in negotiating with Funny Papers, Inc. Moreover, there was no evidence that the interest was acquired in contemplation of official action, which seems to be a requisite element of this statutory offense.
The trial court properly excluded evidence of the alleged lost contract which the People claimed to be further evidence of a pecuniary interest acquired by defendant in violation of the statute, and the People offered no other evidence which would support an inference that such abortive transaction constituted the acquisition of a pecuniary interest in contemplation of official action. Thus, there was insufficient evidence in the record to "support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt." People v. Bennett, 183 Colo. 125, 515 P.2d 466. While defendant's activities with regard to Clean Air Distributors, Inc., vis-a-vis his position with the State, fell short of the standards the public should expect from its servants, the evidence adduced in this case also fell short of proving a violation of the criminal statute under which defendant was charged.
Rulings approved.
JUDGE PIERCE and JUDGE VAN CISE concur.