Colo. R. Crim. P. 29
Colo. R. Crim. P. 29
Annotation I. General Consideration. Judge has more leeway in granting in trial to court. In a trial to the court, the judge sits also as the trier of fact, and, thus, he has considerably more leeway in granting a motion for judgment of acquittal than if the case were tried before a jury. People v. Kirkland, 174 Colo. 362, 483 P.2d 1349 (1971). Rule as basis for jurisdiction. Edwards v. People, 176 Colo. 478, 491 P.2d 566 (1971); People v. Ware, 187 Colo. 28, 528 P.2d 224 (1974); People v. Gould, 193 Colo. 176, 563 P.2d 945 (1977). Applied in People v. Berry, 191 Colo. 125, 550 P.2d 332 (1976); People v. Maestas, 196 Colo. 245, 586 P.2d 4 (1978); People v. Paulsen, 198 Colo. 458, 601 P.2d 634 (1979); People in Interest of G.L., 631 P.2d 1118 (Colo. 1981); People v. Hoffman, 655 P.2d 393 (Colo. 1982). II. Motion for Judgment of Acquittal. Prosecution's burden to withstand motion. To withstand a motion for a judgment of acquittal, the prosecution has the burden of establishing a prima facie case of guilt and must introduce sufficient evidence to establish guilt beyond a reasonable doubt. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973); People v. Ramos, 708 P.2d 1347 (Colo. 1985); People v. Hollenbeck, 944 P.2d 537 (Colo. App. 1996). The prosecution is given the benefit of every reasonable inference which might fairly be drawn from the evidence as long as there is a logical and convincing connection between the facts established and the conclusion inferred. People v. Hollenbeck, 944 P.2d 537 (Colo. App. 1996). The proper standard to be applied to a defendant's motion for acquittal is whether the relevant admissible evidence, both direct and circumstantial, when viewed in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt. People v. Gonzales, 666 P.2d 123 (Colo. 1983); People v. Newton, 940 P.2d 1065 (Colo. App. 1996), aff'd on other grounds, 966 P.2d 563 (Colo. 1998); People v. Madison, 176 P.3d 793 (Colo. App. 2007). Prima facie case against defendant required. The primary question for determining the merits of a motion under this rule is: Did the prosecution establish a prima facie case against the defendant? People v. Gomez, 189 Colo. 91, 537 P.2d 297 (1975). When the state introduces evidence on its case in chief from which the jury may properly infer the essential elements of the crime, the state has then made out a "prima facie" case impregnable against a motion for acquittal. People v. Chavez, 182 Colo. 216, 511 P.2d 883 (1973); People v. Rivera, 37 Colo. App. 4, 542 P.2d 90 (1975). Or questions for jury's determination. A court properly denies a defendant's motion for acquittal at the conclusion of all of the evidence where the question of credibility of the witnesses and the ultimate guilt of defendant remain, for such matters are for the jury's determination. Roybal v. People, 177 Colo. 144, 493 P.2d 9 (1972). Where record contains ample evidence to sustain a conviction, the trial court is correct in denying the defendant's motion for judgment of acquittal. People v. Small, Jr., 177 Colo. 118, 493 P.2d 15 (1972); People v. Adams, 678 P.2d 572 (Colo. App. 1984). Standard is same for trial to court or to jury. The standard for determining the merits of a motion for a judgment of acquittal is the same whether the trial is to the court or to a jury. People v. Gomez, 189 Colo. 91, 537 P.2d 297 (1975). When refusal of motion at end of state's case may be reviewed. When an accused moves for acquittal at the close of the state's case, he is not entitled to have an adverse ruling on the motion reviewed unless he stands on the motion. Silcott v. People, 176 Colo. 442, 492 P.2d 70 (1971); People v. Olinger, 180 Colo. 58, 502 P.2d 79 (1972); People v. Becker, 181 Colo. 384, 509 P.2d 799 (1973). If defendant introduces evidence following denial of a motion for acquittal made at the close of the state's case, the correctness of the ruling is determined from the state of the evidence at the end of the trial. Silcott v. People, 176 Colo. 442, 492 P.2d 70 (1971); People v. Becker, 181 Colo. 384, 509 P.2d 799 (1973). But review not on state's evidence alone. Where, upon trial court's denial of a defendant's motion for acquittal at close of the state's case, the defendant proceeds to offer evidence warranting submission of case to jury, defendant cannot assert error on the state's evidence alone. People v. Olinger, 180 Colo. 58, 502 P.2d 79 (1972). Effect of denial of motion. When a trial court denies a defendant's motion for acquittal, it in effect rules that the evidence presented by the state is entirely consistent with the defendant's guilt and that, upon any reasonable hypothesis, this evidence is not also consistent with the defendant's innocence. Nunn v. People, 177 Colo. 87, 493 P.2d 6 (1972); People v. Hankin, 179 Colo. 70, 498 P.2d 1116 (1972). Role of trial judge in passing upon motion. In passing upon a motion for judgment of acquittal, the trial judge is required to give full consideration to the right of the jury to determine the credibility of witnesses and the weight to be afforded evidence, as well as the right to draw all justifiable inferences of fact from the evidence. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973). When a trial judge is confronted with a motion for a judgment of acquittal at either the close of the prosecution's case, or the close of all of the evidence, he must determine whether the evidence before the jury is sufficient in both quantity and quality to submit the issue of the defendant's guilt or innocence to the jury. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973); People v. Franklin, 645 P.2d 1 (Colo. 1982). The issue before the trial judge in passing upon a motion for judgment of acquittal is whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient 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 (1973); People v. Waggoner, 196 Colo. 578, 595 P.2d 217 (1979); People v. Botham, 629 P.2d 589 (Colo. 1981); People v. Gomez, 632 P.2d 586 (Colo. 1981); People v. Andrews, 632 P.2d 1012 (Colo. 1981); People v. Franklin, 645 P.2d 1 (Colo. 1982); People v. Brassfield, 652 P.2d 588 (Colo. 1982); People v. Renstrom, 657 P.2d 461 (Colo. App. 1982); People v. Bartowsheski, 661 P.2d 235 (Colo. 1983); People v. Graham, 678 P.2d 1043 (Colo. App. 1983), cert. denied, 467 U.S. 1216, 104 S. Ct. 2660, 81 L. Ed. 2d 366 (1984); People v. Paiva, 765 P.2d 581 (Colo. 1988); People v. Williams, 827 P.2d 612 (Colo. App. 1992); People v. Ramirez, 30 P.3d 807 (Colo. App. 2001). When ruling on a motion for judgment of acquittal, the trial court must consider both the prosecution and the defense evidence. In performing this function, the court is bound by five well-established principles of law. First, the court must give the prosecution the benefit of every reasonable inference, which might be fairly drawn from the evidence. Second, the determination of the credibility of witnesses is solely within the province of the jury. Third, the trial court may not serve as a thirteenth juror and determine what specific weight should be accorded to various pieces of evidence or by resolving conflicts in the evidence. Fourth, a modicum of relevant evidence will not rationally support a conviction beyond a reasonable doubt. Finally, verdicts in criminal cases may not be based on guessing, speculation, or conjecture. People v. Sprouse, 983 P.2d 771 (Colo. 1999); People v. Beatty, 80 P.3d 847 (Colo. App. 2003). Judge not to invade province of jury. In passing upon a motion for judgment of acquittal, the trial judge should not attempt to serve as a thirteenth juror or invade the province of the jury, but should prevent a case from being submitted to the jury when the prosecution has failed to meet its burden of proof. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973); People v. Ramirez, 30 P.3d 807 (Colo. App. 2001). The determination of the credibility of witnesses is a matter solely within the province of the jury. Only when the testimony of a witness is so palpably incredible and so totally unbelievable as to be rejected as a matter of law can a court properly take this function from a jury. People v. Franklin, 645 P.2d 1 (Colo. 1982); People v. Ramirez, 30 P.3d 807 (Colo. App. 2001). Testimony is "incredible as a matter of law" if it is in conflict with nature or fully established or conceded facts. People v. Ramirez, 30 P.3d 807 (Colo. App. 2001). Testimony that is merely biased, inconsistent, or conflicting is not incredible as a matter of law. People v. Ramirez, 30 P.3d 807 (Colo. App. 2001). Evidence must be viewed favorably to state. In ruling on a motion for judgment of acquittal, the court must view the evidence in the light most favorable to the people. People v. Chavez, 182 Colo. 216, 511 P.2d 883 (1973). The trial court must give the prosecution the benefit of every reasonable inference which might be fairly drawn from the evidence. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983). Where prosecution's evidence is insufficient to support conviction in that it does not prove all the elements of the offense charged, the court should enter a judgment of acquittal. People v. Rutt, 179 Colo. 180, 500 P.2d 362 (1972). Juvenile court erred when it denied motion for acquittal where there was a constructive amendment variance between the charge and the evidence presented at trial. People ex rel. H.W., III, 226 P.3d 1134 (Colo. App. 2009). Or fails to establish guilt beyond a reasonable doubt. Where the testimony is not sufficiently clear and convincing, standing alone, to establish guilt beyond a reasonable doubt, the trial court should grant a defendant's motion for acquittal at the end of all the evidence. Davis v. People, 176 Colo. 378, 490 P.2d 948 (1971). When viewing the evidence upon a motion for acquittal, the trial judge must determine whether a reasonable mind would conclude that the defendant's guilt as to each material element of the offense was proven beyond a reasonable doubt. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973); People v. Ramos, 708 P.2d 1347 (Colo. 1985). Test for denial of motion where guilt proven by circumstantial evidence. Where the guilt of the defendant is proven by circumstantial evidence, the test for denial of a motion for judgment of acquittal is whether there is evidence in the record from which a jury can find beyond a reasonable doubt that the circumstances are such as to exclude every reasonable hypothesis of innocence. People v. Naranjo, 181 Colo. 273, 509 P.2d 1235 (1973). Substantial evidence test affords same status to circumstantial evidence as to direct evidence, and an exclusively circumstantial case need not exclude every reasonable hypothesis other than guilt to withstand a motion for a judgment of acquittal. People v. Andrews, 632 P.2d 1012 (Colo. 1981). In passing upon a motion for judgment of acquittal, the same test for measuring the sufficiency of evidence should apply, whether the evidence is direct or circumstantial. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973). A motion for judgment of acquittal does not preserve a challenge to the foundation for expert testimony that was admitted without objection. Insofar as defendant relied solely on the purported lack of an adequate foundation for the expert opinion, defendant waived the insufficiency of evidence argument. People v. Wheeler, 170 P.3d 817 (Colo. App. 2007). Ruling against the state is a "final judgment". Although the granting of motions to quash, demurrers, pleas in bar, pleas in abatement, motions in arrest of judgment, and the declaration of a statute unconstitutional have been abolished by Crim. P. 12(a) and Crim. P. 29(a), the legal effect of the present nomenclature for these procedures is the same, that is, a ruling adverse to the state effectively terminates its prosecution of the defendant and results in a "final judgment". People v. Cochran, 176 Colo. 364, 490 P.2d 684 (1971). A trial court's ruling granting a defendant's motion for judgment of acquittal at the close of the prosecution's evidence is not a final order unless and until the court terminates the trial by dismissing the jury. Before that time, the trial court retains authority to reconsider its ruling. Thus, the court could submit the case to the jury on a lesser included offense. People v. Scott, 10 P.3d 686 (Colo. App. 2000). Defendants in Colorado are on notice that a midtrial order granting a motion for judgment of acquittal is not final and is subject to change until the jury is dismissed. People v. Madison, 176 P.3d 793 (Colo. App. 2007). District attorney may appeal. Since the issue of sufficiency of the evidence as postured where the trial court has granted a defendant's motion for judgment of acquittal, involves a question of law, the district attorney is given authority to appeal. People v. Kirkland, 174 Colo. 362, 483 P.2d 1349 (1971). Though such an appeal is in most instances nonproductive. An appeal after the trial judge has granted a motion for judgment of acquittal upon the completion of the state's evidence on the ground that the evidence is insufficient is, in most instances, a completely nonproductive exercise. People v. Kirkland, 174 Colo. 362, 483 P.2d 1349 (1971). Trial court's decision not set aside where adequately supported. Upon appeal of the denial of motion for judgment of acquittal, where the trial court is the trier of fact, its decision will not be set aside when adequately supported by the evidence, even though a portion of that evidence may be in conflict. Stewart v. People, 175 Colo. 304, 487 P.2d 371 (1971). Denial of motion for acquittal upheld. White v. People, 175 Colo. 119, 486 P.2d 4 (1971); Marn v. People, 175 Colo. 242, 486 P.2d 424 (1971); Kurtz v. People, 177 Colo. 306, 494 P.2d 971 (1972); Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972); Hervey v. People, 178 Colo. 38, 495 P.2d 204 (1972); People In Interest of B. L. M. v. B. L. M., 31 Colo. App. 106, 500 P.2d 146 (1972); People v. Olona, 180 Colo. 299, 505 P.2d 372 (1973); People v. Thomas, 181 Colo. 317, 509 P.2d 592 (1973). Denial of motion for judgment of acquittal held error. Johns v. People, 179 Colo. 8, 497 P.2d 1253 (1972); Velarde v. People, 179 Colo. 207, 500 P.2d 125 (1972). Granting of motion for judgment of acquittal disapproved. People v. Franklin, 645 P.2d 1 (Colo. 1982); People v. Gonzales, 666 P.2d 123 (Colo. 1983); People v. Madison, 176 P.3d 793 (Colo. App. 2007). Judgment of acquittal upheld. People v. Emeson, 179 Colo. 308, 500 P.2d 368 (1972); People v. Theel, 180 Colo. 348, 505 P.2d 964 (1973). III. Motion After Verdict or Discharge of Jury. Standard applicable to motions for acquittal made before a case goes to the jury also applies to motions made after verdict or discharge. The court shall order the entry of a judgment of acquittal if the evidence is insufficient to sustain a conviction of such offense. People v. Waggoner, 196 Colo. 578, 595 P.2d 217 (1979). Motion may be renewed after verdict. When a motion for judgment of acquittal is made at the close of all the evidence and denied, the motion may be renewed after verdict. People v. Chapman, 174 Colo. 545, 484 P.2d 1234 (1971). Motion satisfies requirement of motion for new trial. The filing of a motion for acquittal satisfies the purpose of a required motion for a new trial, since the only purpose of requiring a motion for new trial is to afford a fair opportunity to the trial court to correct its own errors, and, thus, where a defendant who does not want a new trial repeatedly asserts a motion for acquittal throughout the trial, the denial of the motion puts the defendant in a position to seek review of the judgment. Haas v. People, 155 Colo. 371, 394 P.2d 845 (1964). Court cannot modify jury verdict under this rule. Where there were no instructions tendered, given, or refused on any offense other than the offense charged in the information, but the trial court modified the verdict of the jury, Rule 29(c), Crim. P., delineates the power and discretion of the court under the circumstances, and, accordingly, the cause will be remanded to the trial court with directions to reinstate the verdict of the jury and to rule on defendant's combined motion for judgment of acquittal or, in the alternative, for a new trial. People v. Chapman, 174 Colo. 545, 484 P.2d 1234 (1971). If the evidence, although conflicting, supports the jury's verdict of guilty, the verdict must be upheld. People v. Emeson, 179 Colo. 308, 500 P.2d 368 (1972). Jury verdicts shall not be reversed for inconsistency if the crimes charged required different elements of proof and the jury could find from the very same evidence that the element of one crime was present while finding that the element of another crime was absent. People v. Strachan, 775 P.2d 37 (Colo. 1989). When a trial judge detects a material deficiency in the evidence after a careful examination of it and expresses a strong and abiding belief that the jury's verdict of guilty cannot stand, it becomes his responsibility to vacate the verdict. People v. Emeson, 179 Colo. 308, 500 P.2d 368 (1972). Court may not sua sponte order a judgment of acquittal after the date it has "fixed" pursuant to section (c), and any extension of time after that date is a nullity for purposes of entertaining a motion for judgment of acquittal. People v. Darland, 200 Colo. 276, 613 P.2d 1310 (1980). Even if victim was grossly inaccurate or confused about the incidents, it was not physically impossible for assaults to have occurred as she testified they did, and victim's therapist testified that inconsistencies and contradictions in her story were normal for a child of recurrent abuse. Thus, child victim's testimony was not incredible as a matter of law, and it was error for trial court to grant defendant's motion for judgment of acquittal notwithstanding the verdict on that basis. People v. Ramirez, 30 P.3d 807 (Colo. App. 2001).