Opinion
No. 83CA0678
Decided May 3, 1984. Rehearing Denied May 31, 1984.
Appeal from the District Court of El Paso County Honorable Donald E. Campbell, Judge
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Clement P. Engle, Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, for defendant-appellant.
Division III.
Defendant Joseph N. Leonardo, Jr., appeals his conviction of theft by receiving and conspiracy to commit theft by receiving. We affirm.
At the conclusion of the evidence, the jury was instructed on the elements of theft by receiving, and one of the elements listed was "knowing or believing" that the thing of value had been stolen. See § 18-4-410, C.R.S. (1978 Repl. Vol. 8). The term "believing" was not further defined in the instructions, although the stock instruction on "knowingly" was included in the packet of instructions the jury received.
During its deliberations, the jury sent a note to the court asking, "Is knowing or believing in Instruction Number 6 the same as having a suspicion of?" Without consulting counsel for either side or advising the defendant, the court answered in writing, "Ladies and Gentlemen: You must reach your verdict applying the words as you find them in the instructions."
Shortly thereafter, the jury reached its verdict, finding defendant guilty of both charges. After defendant's counsel was advised of these occurrences, he unsuccessfully sought a new trial.
Defendant contends that the trial court erred not only in responding to a question from the jury outside the presence of counsel and the defendant but also in the answer given.
Although the court erred in not affording counsel an opportunity to be heard and in not having the defendant present, Ray v. People, 147 Colo. 587, 364 P.2d 578 (1961); see also Kimmins v. City of Montrose, 59 Colo. 578, 151 P. 434 (1915); C.R.C.P. 47(n), no reversible error occurred because defendant was not prejudiced by the answer given. People v. Thomas, 181 Colo. 317, 509 P.2d 592 (1973); Wiseman v. People, 179 Colo. 101, 498 P.2d 930 (1972); Ray v. People, 147 Colo. 587, 364 P.2d 578 (1961); People v. Martinez, 42 Colo. App. 307, 600 P.2d 82 (1979). Cf. Reimer v. Walker, 170 Colo. 149, 459 P.2d 274 (1969).
The court replied appropriately to the jury's question. The instruction referred to in the question listed "knowing or believing that said thing of value has been stolen" as one of the elements of theft by receiving. This instruction was substantially in the words of the statute, and that was sufficient. People v. Dago, 179 Colo. 1, 497 P.2d 1261 (1972). In addition, "knowingly" was defined in the next instruction given. "Believing" needed no definition; it is a basic, commonly understood word. See People v. Holloway, 193 Colo. 450, 568 P.2d 29 (1977). And, there was no suggestion in any of the instructions that "suspicion" would suffice as an element of the offense charged.
A jury is "capable of denoting the meaning of the terms in the statute and the concept of the crime of theft by receiving." People v. Griffie, 44 Colo. App. 46, 610 P.2d 1079 (1980). Hence, further explanation here was unnecessary.
No abuse of discretion, and therefore no reversible error, occurred in responding to the question by merely referring the jury back to the instructions. Phillips v. People, 170 Colo. 520, 462 P.2d 594 (1969); Kath v. Brodie, 132 Colo. 338, 287 P.2d 957 (1955). "[T]he defendant's speculation concerning the mere possibility of prejudice is insufficient to warrant reversal." People v. Thomas, supra.
Judgment affirmed.
JUDGE STERNBERG concurs.
JUDGE METZGER dissents.