Volume 37 — Colorado Court of Appeals Reports

1. <bold>CRIMINAL LAW</bold> — <italic>Judgment of Acquittal — Alternatively Based — Failure</italic><italic>to Prove — Value of Goods — Or — Mental Culpability — Goods Not Stolen —</italic><italic>Ruling of Law — Right to Appeal.</italic> — Although, in theft receiving prosecution, the trial court's judgment of acquittal was based alternatively on defendant's lack of mental culpability and on the failure of the prosecution to prove the value of the goods taken, the prosecution was entitled to appeal the ruling of law that mental culpability for attempted theft could not be proven when the goods defendant received were in fact not stolen. 2. <italic>Mental Culpability — Attempted Theft — Receiving Stolen Goods —</italic><italic>Goods Not Stolen — Not Legal Defense.</italic> Under Colorado statutes, construed in the manner most conducive to maintaining consistency among them, the fact that the property believed by the criminal defendant to be stolen was not in fact stolen, does not provide a legal defense to the crime of attempted theft (receiving), where, had the circumstances been as the defendant believed them to be, the requisite mental culpability would have existed. 3. <italic>Attempt Prosecution — Defense — Legal Impossibility — Not Available —</italic><italic>— Attempted Theft — Goods Not Stolen — Mistake of Fact Defense — Available.</italic> The defense of legal impossibility is not available in an attempt prosecution, and thus, in a prosecution for attempted theft, the fact that the property defendant purchased believing it to be stolen was in fact not stolen may not be utilized to establish such defense, but defendant may, of course, raise the defense of general mistake of fact by alleging that he never believed the goods were stolen.

1. <bold>CRIMINAL LAW</bold> — <italic>Menacing With a Deadly Weapon — Pistol Inoperable —</italic><italic>Victims Threatened — Pistol Loaded — Evidence Sufficient — Within</italic><italic>Definition — Deadly Weapon.</italic> Where in prosecution for menacing with a deadly weapon, defendants challenged their conviction on the basis that the pistol used in the incident was inoperable, but the evidence showed they had threatened the victims by pointing the pistol at them and stating that the pistol was loaded and would discharge easily, and the pistol was later found with a loaded clip and a full round of ammunition in the chamber, the People's evidence was sufficient to establish that the weapon was intended to be capable of firing and thus came within the purview of the statutory definition of a deadly weapon. 2. <italic>Trial — Right to Jury Trial — Waiver — Properly Found — Not Written —</italic><italic>— Stipulation in Open Court — No Evidence — Misunderstanding — Coercion.</italic> Although no written waiver of their right to a jury trial was signed by criminal defendants, they were properly held to have waived their right to a jury trial since the evidence established that defense counsel stipulated in open court and in the presence of defendants to have the case "tried to the court without a jury," and there was no evidence that defendants did not understand they were waiving their rights or were coerced into doing so. 3. <italic>Right to Counsel — Ineffective Assistance of Counsel — Three Days</italic><italic>Preparation — Benefit of Original Attorney's Investigation —</italic><italic>Ineffectiveness Not Established.</italic> Evidence did not establish ineffective assistance of counsel where, although trial counsel was retained only three days before trial, extensive investigation had been done by the original attorney, the new attorney was provided with all of the first attorney's information, had discussed the case at length with him, and had spent twenty hours preparing for the case.