People v. Lutz , 803 P.2d 184 ( 1990 )

Justice ERICKSON

delivered the Opinion of the Court.

The defendant, Paul Lutz, was convicted by a jury of second-degree kidnapping and aggravated robbery, and acquitted of a crime of violence.¹ The trial court sentenced the defendant to sixteen years imprisonment for the kidnapping and a concurrent term of eight years for the aggravated robbery. The court of appeals, in an unpublished opinion, reversed the defendant’s conviction for aggravated robbery and remanded to the district court with directions to enter a judgment of conviction for simple robbery. We granted certiorari and now reverse, and remand with directions.

I

On February 23, 1986, the defendant responded to an advertisement the victim had placed in a local newspaper to sell his ear. After test-driving the car, Lutz asked if he could show the car to his wife. The victim agreed, but insisted that he accompany Lutz. While en route, Lutz told the victim he was taking the car, and stated, “Don’t do anything foolish.... I have a gun on you. I have killed already two people in Salt Lake City, one policeman, and one another [sic] individual. If you don’t do anything wrong, I won’t hurt you.” The victim testified he could not see a gun, “but the defendant pointed” with his hand inside the pocket of his coat. Lutz drove to a desolate area where he tied the victim to a tree and drove off in his car.

II

At trial, the jury was instructed that the aggravated robbery statute, section 18-4-302(2), 8B C.R.S. (1986), allowed the jury to find Lutz guilty of aggravated robbery if it determined he made verbal or other representations he was armed with a deadly weapon. The court further instructed the jury that such representations would not suffice to establish that the defendant possessed a deadly weapon for the purpose of the crime of violence charge.²

Lutz appealed his conviction to the court of appeals arguing that a conviction of aggravated robbery was inconsistent with an acquittal of a crime of violence since both judgments were based on the same evidence. The court of appeals relied on its earlier decision of People v. Castenada, 765 P.2d 641 (Colo.App.1988), and held that the “jury’s apparent conclusion that the defendant did not actually use or possess a deadly weapon negates the validity of the conviction of aggravated robbery.”

A conviction of aggravated robbery and an acquittal of a crime of violence based on the same evidence are not per se inconsistent. The aggravated robbery statute requires the defendant to “knowingly put the person robbed ... in a reasonable fear of death or bodily injury by the use of force, threat, or intimidation with a deadly weapon,” and that “any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence ... that he was so armed.” Section 18-4-302(l)(b) & (2). The crime of violence statute requires the defendant to actually use, or possess and threaten to use, a deadly weapon during the commission of the crime. Section 16 — 11—309(2){a)(I), 8B C.R.S. (1986).

Because the two crimes require different elements of proof, the jury could reasonably find, from the same evidence, that the elements of aggravated robbery were present, while the elements of crime of violence were absent. See People v. Powell, 716 P.2d 1096 (Colo.1986). Therefore, the jury verdicts convicting Lutz of aggravated robbery and acquitting him of a crime of violence were not inconsistent.

We reverse and return the case to the court of appeals with directions to reinstate the judgment of conviction for aggravated robbery and the sentence imposed by the trial court.

QUINN, J., dissents and KIRSHBAUM, J., joins in the dissent.

1 . Section 18-3-302, 8B C.R.S. (1986); section 18-4-302, 8B C.R.S. (1986); section 16-11-309, 8A, C.R.S. (1986).

2 . In response to a question from the jury, the trial court stated:

In order for the Defendant to be guilty of Aggravated Robbery and in order for that to be a crime of violence, there must actually be a weapon involved. However, the Instruction on verbal representations being prima facie evidence of the existence of a weapon could, if the Jury so wished, allow the Jury to con-elude that there was a weapon simply because it was represented that there was a weapon, so far as the Aggravated Robbery charge. That same principle of law does not, however, apply to the crime of violence allegation. With regard to the latter allegation, the Jury must conclude from other evidence that a weapon was actually possessed.