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                                                ADVANCE SHEET HEADNOTE
                                                          February 18, 2020

                                   2020 CO 14

No. 17SC430, People v. Berry—Criminal Law—Abuse of Public Office—
Embezzlement of Public Property—Official Misconduct.

      The supreme court considers two issues in this case. First, for the crime of

embezzlement of public property, under section 18-8-407, C.R.S. (2019), does

“public property” include property that is in the government’s possession but not

owned by the government? And second, for the crime of official misconduct,

under section 18-8-404, C.R.S. (2019), what is an act “relating to [an official’s]

office?”

      Regarding the first question, the supreme court holds that the statute

prohibiting embezzlement of public property criminalizes only the embezzlement

of property that is owned by the government. Concerning the second question,

the supreme court concludes that the prohibition on official misconduct should be

broadly construed to include circumstances in which an official uses the

opportunities presented by his or her office to engage in improper conduct.
The supreme court therefore affirms the decision of the court of appeals.
                 The Supreme Court of the State of Colorado
                 2 East 14th Avenue • Denver, Colorado 80203

                                   2020 CO 14

                      Supreme Court Case No. 17SC430
                    Certiorari to the Colorado Court of Appeals
                     Court of Appeals Case No. 15CA1394

                         Petitioner/Cross-Respondent:

                      The People of the State of Colorado,

                                        v.

                         Respondent/Cross-Petitioner:

                             William Steven Berry.

                              Judgment Affirmed
                                    en banc
                               February 18, 2020


Attorneys for Petitioner/Cross-Respondent:
Philip J. Weiser, Attorney General
Jacob R. Lofgren, Assistant Attorney General
      Denver, Colorado

Attorneys for Respondent/Cross-Petitioner:
Elkus & Sisson, P.C.
Reid J. Elkus
Lucas Lorenz
Kathryn Sheely
       Greenwood Village, Colorado
JUSTICE HART delivered the Opinion of the Court.
JUSTICE SAMOUR concurs in part and dissents in part, and CHIEF JUSTICE
COATS joins in the concurrence in part and dissent in part.
                                   2
¶1      In 2014, William Steven Berry, who was at the time a deputy of the Lake

County Sheriff’s Office, obtained several firearms from the office evidence locker,

gave one away, attempted to sell another, and kept two for himself. For this

conduct, Berry was convicted of embezzlement of public property in violation of

section 18-8-407, C.R.S. (2019), and first-degree official misconduct in violation of

section 18-8-404, C.R.S. (2019). This case requires us to answer a question of first

impression about each of these statutory provisions. First, does “public property”

include property that is in the government’s possession but not owned by the

government? And second, what is an act “relating to [an official’s] office” for

purposes of the crime of official misconduct?1

¶2      We hold that the statute prohibiting embezzlement of public property

criminalizes only the embezzlement of property that is owned by the government.




1   We granted certiorari to review the following issues:
        1. Whether a sheriff’s deputy, who removed several weapons from
           an evidence locker where they were under the possession and
           control of the sheriff’s department, and then converted them to his
           own personal use, can be charged and convicted of embezzlement
           of public property under section 18-8-407(1), C.R.S. (2017).
        2. Whether the court of appeals erred in finding that the cross-
           petitioner’s purchase of firearms held in the evidence locker at the
           police station where he was a sheriff deputy was “an act relating
           to his office” as that phrase is used in section 18-8-404, C.R.S.
           (2017).

                                           3
Further, we conclude that the prohibition on official misconduct should be broadly

construed to include circumstances, like those in this case, in which an official uses

the opportunities presented by his or her office to engage in improper conduct.

We therefore affirm the decision of the court of appeals on both questions.

                        I. Facts and Procedural History

¶3    In August 2013, Berry was one of several Lake County Sheriff’s Office

deputies who responded to a report of domestic violence involving P.E. and J.V.

After J.V. was arrested, P.E. informed the officers that J.V. kept several firearms in

the home and that she did not feel comfortable having them there. At P.E.’s

request, the officers confiscated four firearms—one of which was a rare Colt

handgun worth several thousand dollars—and stored them in the sheriff’s office

evidence locker.

¶4    After the charges against J.V. were resolved, the district attorney authorized

the sheriff to either release or destroy the firearms.        Because J.V. was an

undocumented immigrant who had since been deported, there was no possibility

of releasing the firearms back to him. While P.E. remained in Lake County, she

too was an undocumented immigrant, and the sheriff had a policy against

releasing weapons to undocumented immigrants.             Consequently, the sheriff

planned to destroy the firearms.




                                          4
¶5    Before the firearms could be destroyed, however, Berry saw P.E. exiting a

store and followed her in his patrol car as she drove away. When she stopped at

a gas station, Berry approached her and inquired about purchasing the firearms

from her for $500. During this encounter, he was on duty and in full uniform.

When P.E. expressed concern about whether such a transaction would be legal,

Berry responded by telling her “[o]f course. I am a representative of the law. If I

come to you with this offer, it is because I can do it, because it is legal.” P.E. then

agreed to sell the firearms, including the rare Colt, to Berry for $500. Berry

subsequently went to P.E.’s house, paid her $500, and had her sign a bill of sale for

the firearms.

¶6    What happened next was disputed at trial. Berry claimed that P.E. went to

the sheriff’s office and had the firearms released to her. In support of this claim,

Berry produced a release form to collect the firearms from the evidence locker that

was purportedly signed by P.E. P.E. testified, however, that Berry had told her he

would be able to “grab” the firearms from the locker. Further, she testified that

she had neither seen nor signed the release form, that she never went to the

evidence locker to retrieve the firearms, and that she never saw them again after

they were removed from her home. One way or another, Berry ended up in

possession of the four firearms.




                                          5
¶7    Berry gave one of the firearms to the deputy in charge of the evidence locker

when the firearms were removed as a show of gratitude for his help with obtaining

the weapons. Berry attempted to sell the Colt handgun to a buyer in California,

but the firearms dealer he used ran into trouble shipping the handgun, so the sale

was not completed.

¶8    When the buyer did not receive the Colt, he called the Lake County Sheriff’s

Office looking for Berry. The sheriff’s office conducted an internal investigation

and concluded that Berry had, with the help of another deputy, improperly

removed the firearms from the evidence locker and kept them for himself, seeking

to profit from the sale of the valuable Colt handgun.

¶9    Berry was charged with, among other offenses, embezzlement of public

property and first-degree official misconduct. A jury found Berry guilty of both

crimes, and he was sentenced to probation. On appeal, a division of the court of

appeals vacated Berry’s conviction for embezzlement of public property and

affirmed his conviction for first-degree official misconduct.

¶10   The People petitioned for certiorari on the embezzlement issue, and Berry

cross-petitioned on the official misconduct count. We granted both petitions.

                                   II. Analysis

¶11   After setting forth the standard of review, we consider whether Berry’s

removal of the firearms from the evidence locker in the Lake County Sheriff’s


                                         6
Office and conversion of those weapons for his own personal use constituted

embezzlement of public property. We conclude that because the firearms were

not public property, Berry’s actions did not violate the statutory prohibition

against embezzlement of public property.         We then examine whether Berry

committed official misconduct when he approached P.E. in his patrol car while he

was on duty and in uniform to purchase the firearms from her. We conclude that

Berry’s conduct did amount to official misconduct.

                             A. Standard of Review

¶12   Both questions we address in this case are matters of statutory interpretation

that we review de novo. McCoy v. People, 2019 CO 44, ¶ 37, 442 P.3d 379, 389. Our

goal in construing a statute is to determine and give effect to the intent of the

General Assembly. People v. Diaz, 2015 CO 28, ¶ 12, 347 P.3d 621, 624. “In so

doing, we interpret words and phrases used in statutes according to their

generally accepted meaning.        In addition, we examine particular statutory

language in the context of the statute as a whole.” People v. Graves, 2016 CO 15,

¶ 27, 368 P.3d 317, 326 (citation omitted).      If we conclude that the statutory

language is unambiguous, we end our inquiry there. McCoy, ¶ 38, 442 P.3d at 389.

Only if the statutory language, considered in context, is susceptible of more than

one reasonable interpretation will we turn to other rules of statutory construction.

See People v. Jones, 2015 CO 20, ¶ 10, 346 P.3d 44, 48.


                                           7
             B. “Public Property” Is Property Owned by the State or a
                              Political Subdivision
¶13    Colorado has criminalized the embezzlement of public property since it

became a state. See G.L. 1877, § 658. As the court of appeals noted, the current

version of the embezzlement statute, section 18-8-407, is a direct descendant of the

first such law. People v. Berry, 2017 COA 65, ¶ 19, __ P.3d __. Section 18-8-407(1)

provides:

       Every public servant who lawfully or unlawfully comes into
       possession of any public moneys or public property of whatever
       description, being the property of the state or of any political
       subdivision of the state, and who knowingly converts any of such
       public moneys or property to his own use or to any use other than the
       public use authorized by law is guilty of embezzlement of public
       property. Every person convicted under the provisions of this section
       shall be forever thereafter ineligible and disqualified from being a
       member of the general assembly of this state or from holding any
       office of trust or profit in this state.

No definition of “public property” is provided in the statute. However, both the

phrase itself and the statutory context suggest a definition: Public property, as

used in section 18-8-407, is property owned by a state or a political subdivision of

the state.

¶14    We must attribute to words their plain and ordinary meaning. Graves, ¶ 27,

368 P.3d at 326. “Public property” is commonly defined to mean “something

owned by the city, town, or state.” Public Property, Merriam-Webster Dictionary,

https://www.merriam-webster.com/dictionary/public%20property;


                                         8
[https://perma.cc/5PAZ-P39W]; see also 63 Am. Jur. 2d Property § 11 (2019)

(“Public property is that owned by the public as such in some governmental

capacity.”); Public Property, Black’s Law Dictionary (11th ed. 2019) (“State- or

community-owned property not restricted to any one individual’s use or

possession.”); cf. People v. Gallegos, 260 P.3d 15, 22 (Colo. App. 2010) (applying the

Black’s Law Dictionary definition to interpret “public property” as used in section

18-8-407). Thus, the phrase “public property” alone appears unambiguous.

¶15   The context of the phrase “public property” within the criminal statutes

further supports this plain meaning in at least three ways. First, the prohibition

against embezzlement of public property is contained within the article of our

criminal code focused on offenses related to governmental operations, not the

article focused on offenses against property. Thus, unlike other “offenses against

property,” where the identity of the property owner is largely inconsequential, for

embezzlement of “public property,” the identity of the property owner—the

public—is an essential part of the offense.2




2 Notably, the General Assembly has eliminated the crime of “embezzlement” as
an “offense against property.” See § 18-4-403, C.R.S. (2019) (“If any law of this state
refers to or mentions larceny, stealing, embezzlement (except embezzlement of
public moneys) . . . that law shall be interpreted as if the word ‘theft’ were
substituted therefor; and in the enactment of sections 18-4-401 to 18-4-403 it is the
intent of the general assembly to define one crime of theft and to incorporate

                                          9
¶16   Second, immediately following the phrase “public property” is the

explanatory phrase “being the property of the state or of any political subdivision

of the state.” § 18-8-407(1). The phrase “property of the state” clearly means that

the property at issue belongs to the state. See Wright v. People, 91 P.2d 499, 502–03

(Colo. 1939) (interpreting a related statute that barred the use of “public funds” for

private purposes and finding that certain funds were not subject to the statute

because the money “never was a part of the public funds of the county; it belonged

to [private individuals]”); see also Starr v. People, 157 P.2d 135, 137–38 (Colo. 1945)

(applying the same statute barring the use of “public funds” for private purposes

and concluding that the funds at issue were covered because they did belong to

the public).

¶17   Third, the conduct prohibited by the statute is the conversion of public

property “to any use other than the public use authorized by law.” That the

property at issue in the statute has a “public use authorized by law” further

supports the conclusion that the statute’s intended focus is on property owned by

the state and not property merely within the state’s possession. In this dispute, for




therein such crimes, thereby removing distinctions and technicalities which
previously existed in the pleading and proof of such crimes.”).


                                          10
example, the firearms taken from the evidence locker had no “public use

authorized by law.” They were in the possession of the sheriff’s office, but they

were not owned by, nor could they be used by, the sheriff’s office.3

¶18   The People, however, urge us to conclude that “public property” includes

not only property owned by the state or a political subdivision, but also property

possessed by the state or a political subdivision. In support of this interpretation,

the People note that the word “property” on its own is defined in some dictionaries

to include “something owned or possessed.” See, e.g., Property, Merriam-Webster

Dictionary,            https://www.merriam-webster.com/dictionary/property;

[https://perma.cc/859M-JBHR] (defining property as “something owned or

possessed,” or “the exclusive right to possess, enjoy, and dispose of a thing”);

Property, Black’s Law Dictionary (11th ed. 2019) (defining property as “the right to

possess and use, the right to exclude, and the right to transfer”). We do not think

that this fact renders the term “public property” ambiguous. First, the more




3We are not faced in this dispute with the question of whether a public servant
who converts to his or her own use property leased or rented by the state or a
political subdivision could be guilty of violating section 18-8-407. The Lake
County Sheriff’s Office had no ownership or other right of exclusive use and
possession, such as a leasehold interest, in the firearms at issue here. The firearms
were owned by a private party and were simply in the custody of the sheriff’s
office.

                                         11
common meaning of the word “property” is something owned, and we have no

reason to apply a less common meaning in this context. This is particularly the

case when the term “public property” has its own definition that is separate from

and more specific than the general concept of “property.” Second, the placement

of the prohibition against embezzlement of public property, which is listed under

a different article of our criminal code than other crimes against property, supports

the conclusion that the legislature intended to separately and more specifically

define “public property.” We thus conclude that “public property” within the

context of section 18-8-407 refers to property owned by the state or a political

subdivision.

¶19   Here, the firearms were in the possession of the Lake County Sheriff’s

Office. With the help of another deputy, Berry removed the firearms from the

evidence locker and converted them for his own use. The Lake County Sheriff’s

Office never owned the firearms as property in the context of section 18-8-407, and

neither did any other public entity. Even though Berry undoubtedly converted

the firearms for his own personal use, the firearms were never “public property.”

Accordingly, Berry did not commit embezzlement in violation of section 18-8-407.

       C. Berry’s Purchase of Firearms Held in the Sheriff’s Office
       Evidence Locker Constituted an Act Relating to His Office
¶20   The second issue we are asked to resolve in this case is whether Berry’s

conduct in purchasing the firearms was “an act relating to his office but
                                         12
constituting an unauthorized exercise of his official function.” § 18-8-404(1)(a).

Here, Berry approached P.E. in his patrol car and in full uniform, assured her that

the sale of the firearms to him would be legal, and then acquired the firearms from

the evidence locker with the help of another officer. Berry could only have

engaged in this kind of conduct by virtue of his public office. As such, his conduct

was well within the scope of official misconduct prohibited by section 18-8-404.

¶21   The question of what types of conduct are proscribed by Colorado’s official

misconduct statute has not been addressed by our court previously. Indeed, it was

a question of first impression for the court of appeals here as well. Courts from

states with very similar statutes, however, have construed the prohibition on

official misconduct broadly.     The New Jersey official misconduct statute, for

example, uses language identical to the analogous Colorado law. See N.J. Stat.

Ann. § 2C:30-2(a) (West 2019) (prohibiting official misconduct, which occurs when

a public official “commits an act relating to his office but constituting an

unauthorized exercise of his official functions”). Construing that provision, the

New Jersey Supreme Court has explained that “when law-enforcement officers

commit an act of malfeasance because of the office they hold or because of the

opportunity afforded by that office, their conduct sufficiently relates to their office

to support a conviction.” State v. Bullock, 642 A.2d 397, 401 (N.J. 1994).




                                          13
¶22   In Bullock, a suspended New Jersey state trooper improperly retained his

police identification card. Id. at 398. He then used that card to detain an alleged

drug dealer and to identify himself as a state trooper to another officer. Id. In

considering this conduct, the court explained that “we look[] to the scope of a

defendant’s apparent authority to determine whether an act sufficiently related to

the defendant’s office to constitute official misconduct.” Id. at 400. The court

rejected the idea that official misconduct had to include misconduct that occurred

within the limits of an official’s “actual duties.” Id. at 401. Instead, the court

recognized that when an officer “purport[s] to act not as a private citizen but as a

[public official],” his or her conduct may fall within the scope of prohibited official

misconduct. Id.; see also People v. Barnes, 984 N.Y.S.2d 693, 696–97 (N.Y. App. Div.

2014) (interpreting similar language in a New York statute and explaining that “[a]

police officer’s actions fall within his or her official functions ‘even if the right to

perform [them] did not exist in the particular case,’ such as when the officer was

off-duty” (quoting People v. Chapman, 192 N.E.2d 160, 161 (N.Y. 1963))). Similarly,

in Colorado when a public official commits an act of malfeasance that is made

possible because of his office or the opportunities afforded to him by that office,

he is engaged in misconduct “relating to his office but constituting an

unauthorized exercise of his official function.” § 18-8-404(1)(a).




                                          14
¶23   Here, Berry approached P.E. in his patrol car while wearing his police

uniform and inquired about purchasing the firearms that were stored at the

sheriff’s office. The only reason he had access to the firearms was because they

were in the evidence locker, slated for destruction. Furthermore, Berry assured

P.E. that his purchase was legal based on his status as a sheriff’s deputy. P.E.

testified at trial that his proposal to pay her for the firearms “sounded kind of

weird, but he was wearing the police uniform, he was driving a patrol car.” It was

certainly reasonable for the jury to conclude, based on the evidence presented, that

Berry obtained these firearms from P.E. because of the opportunity afforded by his

office as a sheriff’s deputy and therefore through an act “relating to his office”

within the scope of the prohibition on official misconduct.

                                 III. Conclusion
¶24   We hold that the statute prohibiting embezzlement of public property

criminalizes only the embezzlement of property that is owned by the government.

Further, we conclude that the prohibition on official misconduct should be broadly

construed to include circumstances, like those here, in which an official uses the

opportunities presented by his or her office to engage in improper conduct. We

therefore affirm the decision of the court of appeals.


JUSTICE SAMOUR concurs in part and dissents in part, and CHIEF JUSTICE
COATS joins in the concurrence in part and dissent in part.


                                         15
JUSTICE SAMOUR, concurring in part and dissenting in part.

                                 I. Introduction

¶25   The adage that “possession is nine-tenths of the law” dates back to 1616,

more than four centuries ago. Willcox v. Stroup, 467 F.3d 409, 412 (4th Cir. 2006).

But under the common law, this is more than an adage; it’s a truism. In 1822, the

Supreme Court observed that it was beyond doubt that “if a person be found in

possession . . . it is prima facie evidence of his ownership.” Ricard v. Williams,

20 U.S. 59, 105 (1822). Some decades later, in 1889, our court proclaimed that “[t]he

actual control and possession of personal property . . . is prima facie indicative of

ownership at law.” Herr v. Denver Milling & Mercantile Co., 22 P. 770, 773 (Colo.

1889). And this uncontroversial concept continues to hold sway in modern times.

See Willcox, 467 F.3d at 412 (stating that actual possession under the common law

has long been recognized as prima facie evidence of legal title in the possessor); In

re Lee Memory Gardens, Inc., 333 B.R. 76, 79 (Bankr. M.D.N.C. 2005) (noting that

there is no doubt that possession of a chattel is prima facie evidence of ownership

under the common law of North Carolina).

¶26   Consistent with the common law’s recognition that possession often suffices

to establish ownership, our General Assembly has wisely abstained from

distinguishing between proprietary and possessory interests in defining property

crimes. Instead, it has made clear that a person who has either a proprietary or
                                         1
possessory interest in property may be a victim of theft, robbery, burglary, arson,

trespass, tampering, and criminal mischief vis-à-vis that property.                See

§ 18-4-101(3), C.R.S. (2019) (except where the context requires otherwise,

“[p]roperty is that of ‘another’” for purposes of all of the crimes against property

if “anyone other than the defendant has a possessory or proprietary interest

therein”); § 18-4-401(1.5), C.R.S. (2019) (for purposes of the crime of theft, “a thing

of value is that of ‘another’ if anyone other than the defendant has a possessory or

proprietary interest therein”).    Thus, under the statutes governing property

crimes, including theft, property or a thing of value is “of another” if someone

other than the defendant has a possessory or proprietary interest in that property.

¶27   Yet, the majority today draws a line of demarcation between proprietary

and possessory interests in property and declares that under the embezzlement of

public property (“embezzlement”) statute, section 18-8-407(1), C.R.S. (2019), only

a proprietary interest counts. According to the majority, “property of the state,”

as that phrase is used in the embezzlement statute, excludes property in which the

state lacks a proprietary interest, even if the state lawfully possesses the property.

Maj. op. ¶¶ 1–2.

¶28   Though the majority treats the ownership requirement it imposes on

embezzlement today as an open-and-shut proposition, it is far from it.             For

example, how does the prosecution prove that the state owns the public property
                                          2
allegedly embezzled? Must the state have title or some other form of official

ownership paperwork? What if it’s property the state owns, but as to which no

title or ownership paperwork exists or can be obtained? What if it’s something

leased by the state? What if it’s something for which the state is currently making

payments? What if it’s something over which the state has exclusive possession

and control—could that suffice? If money is involved, what proof is necessary to

show the state owns that money? Does the state actually own any money when it

holds such money in trust for taxpayers or when it has been directed by the

legislature to spend that money in a particular fashion or for the benefit of specific

entities or individuals? The majority does not contemplate, let alone attempt to

answer, the numerous questions that naturally flow from its decision to

differentiate between proprietary and possessory interests in property. Nor does

the majority persuasively justify the stark contrast between its interpretation of the

embezzlement statute and our legislature’s treatment of theft (embezzlement’s

direct ancestor) and other property crimes.

¶29   Because I believe the majority misinterprets the embezzlement statute, and

because I am concerned about the consequences of today’s decision, I cannot in

good conscience join Part II-B of the majority’s opinion. I would conclude instead

that “property of the state,” as that phrase is used in the embezzlement statute,

refers to property over which the state has a proprietary or possessory interest
                                          3
—i.e., property over which the state has the type of “interest held by a property

owner together with all appurtenant rights,” Proprietary Interest, Black’s Law

Dictionary (11th ed. 2019), or property over which the state has “[t]he present right

to control [the] property, including the right to exclude others” from it, Possessory

Interest, Black’s Law Dictionary (11th ed. 2019). In so doing, I would avoid

distinguishing between proprietary and possessory interests in property, a

distinction which is fraught with peril.1 Accordingly, I respectfully concur in part

and dissent in part.

                                     II. Analysis

                 A. The Embezzlement Statute Is Ambiguous

¶30   The majority falters right out of the gate.              It concludes that the

embezzlement statute is clear and unambiguous. Maj. op. ¶ 14. It is not.

¶31   Section 18-8-407(1) provides, in pertinent part, as follows:

      Every public servant who . . . comes into possession of any . . . public
      property of whatever description, being the property of the state . . . ,
      and who knowingly converts any . . . such public . . . property to his




1 By way of example, people who finance the purchase of a car nevertheless claim
they “own” the car and that the car belongs to them. The same holds true for
people who take out a mortgage on a house; they nevertheless claim that they
“own” the house and that the house belongs to them. Such individuals may not
technically have a proprietary interest in their car or their house. But, for all intents
and purposes, they own their car and their house while making payments on
them.
                                           4
      own use or to any use other than the public use authorized by law is
      guilty of embezzlement of public property.

The majority correctly notes that the legislature did not define “public property”

in this statute. Maj. op. ¶ 13. It simply referred to “public property of whatever

description.” § 18-8-407(1). But, as the majority acknowledges, we must consider

the phrase that follows in attempting to decipher the meaning of “public

property.” Maj. op. ¶ 13. After all, the legislature provided some guidance there

as to what it meant by “public property”: “public property of whatever

description, being the property of the state.” § 18-8-407(1) (emphasis added).

¶32   Where the majority and I begin to part ways is in its largely conclusory

determination that “‘property of the state’ clearly means that the property at issue

belongs to the state.” Maj. op. ¶ 16. Neither of the cases the majority cites,

Wright v. People, 91 P.2d 499, 502–03 (Colo. 1939), and Starr v. People, 157 P.2d 135,

137–38 (Colo. 1945), holds that “property of the state” in the embezzlement statute

“clearly means that the property at issue belongs to the state.” As the majority

admits elsewhere in its opinion, the question we confront today is one “of first

impression.” Maj. op. ¶ 1. It is just as easy to cite a different Colorado case and

reasonably maintain that “property of the state” clearly means property in which

the state has a proprietary or possessory interest. See Price v. People, 240 P. 688, 689

(Colo. 1925) (an embezzlement case in which this court treated money held in

                                           5
trust, as opposed to owned, by a municipality as money that “belonged to the

municipality” (emphasis added)).

¶33      Even assuming the majority draws a fair inference in defining “property of

the state” as “property . . . [that] belongs to the state,” it arbitrarily equates

“belongs” with ownership. In Wright and Starr, we did not entertain whether

property in which the state has only a possessory interest may be deemed property

of the state for purposes of the embezzlement statute. That issue simply wasn’t

before the court in those cases. In fact, neither case dealt with the embezzlement

statute. And the majority does not articulate why having a possessory interest in

property cannot suffice to support a claim that the property belongs to the state. In

other words, if the state has the present right to control the property and to exclude

others from it, why isn’t it accurate for the state to claim that the property belongs

to it?

¶34      The definition of “belong” highlights the flaw in the majority’s analysis.

Property “belong[s]” to someone if it’s “the property of [that] person.” Belong,

Merriam-Webster       Online   Dictionary,    https://www.merriam-webster.com/

dictionary/belong; [https://perma.cc/A65F-UPT6]; see also Belong, Black’s Law

Dictionary (11th ed. 2019) (defining “[b]elong” as “[t]o be the property of a person

or thing”). In ruling that the embezzlement statute applies only to property owned

by the state, the majority explains that this is so because “property of the state”
                                          6
means property that “belongs” to the state. Maj. op. ¶ 16. But given the definition

of “belong,” that does nothing more than beg the question.              The majority

essentially says that the embezzlement statute is limited to property in which the

state has a proprietary interest because “property of the state” is “property of the

state.” See id. In my view, this type of circular reasoning cannot support the

majority’s assertion that the statute clearly and unambiguously excludes property

in which the state has a possessory, but not a proprietary, interest.

¶35   Nor do I find persuasive the majority’s contention that its position is

corroborated by the fact that what the embezzlement statute prohibits is the

conversion of public property “to any use other than the public use authorized by

law.” Id. at ¶ 17. I agree that this language limits the scope of the embezzlement

statute to property that has a “public use authorized by law.” But relying on this

phrase, the majority takes an unjustified leap and announces that “the statute’s

intended focus is on property owned by the state.” Id. The majority does not

explain why this is so. Why can’t property in which the state has a possessory

interest be property with a “public use authorized by law”? Asked differently,

why does the state have to own property in order to put it to a public use

authorized by law?

¶36   The majority turns to the facts of this case to buoy its hypothesis, but this

case’s facts actually undercut the majority’s proposition. Though the majority says
                                          7
that the firearms Berry took from the evidence locker had no “public use

authorized by law,” id., the opposite is true. The firearms were being held by the

sheriff’s office as part of the prosecution of J.V. They were part of the evidence

collected in J.V.’s criminal case. As such, they absolutely had a “public use

authorized by law,” even though the state had a possessory, but not a proprietary,

interest in them.

¶37    The dictionary definitions of “public property” on which the majority relies

do not alter the analysis either. To begin, the majority’s focus on “public property”

misses the mark; the focus must be on “property of the state” because that is what

the legislature has told us “public property” refers to in the embezzlement statute.

Thus, rather than embark on a quest to unearth dictionary definitions of “public

property,” I would hone in on “property of the state” and inquire whether the

legislature intended that phrase to restrict the ambit of the embezzlement statute

so as to exclude property in which the state has a possessory, but not a proprietary,

interest.

¶38    In any event, as the majority concedes, Merriam-Webster Dictionary defines

“property” as “something owned or possessed.” Id. at ¶ 18 (emphasis added).

Black’s Law Dictionary likewise defines “property” as including “the right to

possess and use.” Id. (emphasis added). Perhaps recognizing that these definitions

undermine its holding, the majority dismisses them out of hand, choosing instead
                                         8
to speculate that “the more common meaning of the word ‘property’ is something

owned.” Id. The majority cites no authority in support of this pronouncement,

and I’m not aware that any exists. The very dictionary definitions of “property”

quoted by the majority belie its claim. In my view, the definition of “public

property,” considered in a vacuum, cannot rescue the majority. It makes no sense

to admit that “property” includes something possessed but to claim in the same

breath that “public property” does not. If “property” is not limited to something

owned, how can property that happens to be “public” be so limited?

¶39   Because the legislature did not define “property of the state,” and because

that phrase is subject to different reasonable interpretations—i.e., it could be

construed as property in which the state has a proprietary interest or as property

in which the state has a proprietary or possessory interest—it is ambiguous. “A

statute is ambiguous if it is susceptible to multiple reasonable interpretations.”

Carrera v. People, 2019 CO 83, ¶ 18, 449 P.3d 725, 729.

¶40   Therefore, I would discern the legislature’s intent by looking beyond the

language of the statue and considering “other tools of statutory construction.” Id.

I would invoke two such interpretive aids here: (1) “other statutes bearing on the

same or similar subjects,” see People v. Sorrendino, 37 P.3d 501, 503 (Colo. App.

2001); accord § 2-4-203(1)(d), C.R.S. (2019) (“If a statute is ambiguous, the court, in

determining the intention of the general assembly, may consider . . . laws upon the
                                          9
same or similar subjects.”); and (2) “the consequences of any given construction,”

Carrera, ¶ 18, 449 P.3d at 729; accord § 2-4-203(1)(e) (“If a statute is ambiguous, the

court, in determining the intention of the general assembly, may consider . . . [t]he

consequences of a particular construction.”).

                   B. Other Tools of Statutory Construction

                    1. Statutes Bearing on Similar Subjects

¶41   I start with the theft statute, section 18-4-401, since embezzlement descends

directly from larceny, the first theft crime at common law. See 3 Wayne R. LaFave,

Substantive Criminal Law § 19.1(a), at 57 (2d ed. 2003). In general, a person

commits the crime of theft when, under the circumstances listed in section

18-4-401(1), he “knowingly obtains, retains, or exercises control over anything of

value of another without authorization or by threat or deception.” § 18-4-401(1)

(emphasis added). Subsection (1.5), in turn, states that “a thing of value is that of

‘another’ if anyone other than the defendant has a possessory or proprietary interest

therein.” § 18-4-401(1.5) (emphases added).

¶42   Significantly, the language in the theft statute is similar to the language in

the embezzlement statute. The former uses anything of value “of another,”

whereas the latter uses property “of the state.” If a thing of value “of another”

includes property in which another has a possessory, but not a proprietary,



                                          10
interest, why doesn’t property “of the state” include property in which the state

has a possessory, but not a proprietary, interest?

¶43   I also draw guidance from section 18-4-101, which provides the definitions

that apply to all of the crimes against property unless the context requires

otherwise. This includes the crimes of theft, robbery, burglary, arson, trespass,

tampering, and criminal mischief. In subsection (3), section 18-4-101 provides that

“[p]roperty is that of ‘another’ if anyone other than the defendant has a possessory or

proprietary interest therein.” (Emphases added.)

¶44   Thus, for example, under section 18-4-506, C.R.S. (2019), a person commits

the crime of second degree tampering when he “tampers with property of another

with intent to cause injury, inconvenience, or annoyance to that person or to

another.” (Emphasis added.) Similarly, section 18-4-103(1), C.R.S. (2019), states

that a person commits the crime of second degree arson if he “knowingly sets fire

to, burns, causes to be burned, or by the use of any explosive damages or destroys,

or causes to be damaged or destroyed, any property of another without his consent,

other than a building or occupied structure.” (Emphasis added.)

¶45   The language in these statutes is nearly identical to the language in the

embezzlement statute. The second degree tampering and second degree arson

statutes refer to “property of another,” while the embezzlement statute refers to

“property of the state.” Given that “property of another” includes property in
                                          11
which another has a possessory, but not a proprietary, interest, “property of the

state” should likewise include property in which the state has a possessory, but

not a proprietary, interest. Just as someone accused of second degree tampering

or second degree arson may not defend against such a charge by claiming that the

victim had a possessory, but not a proprietary, interest in the property in question,

so too, someone accused of embezzlement should be precluded from defending

against such a charge by claiming that the state had a possessory, but not a

proprietary, interest in the property in question. 2

¶46   The majority attempts to write off these statutory provisions by pointing out

both that embezzlement appears in a different article of the criminal code than

crimes against property and that the identity of the property owner (the public)

“is an essential” element of the former but “largely inconsequential” for purposes

of proving the latter. Maj. op. ¶¶ 15, 18. In general, I don’t have a bone to pick




2Interestingly, the “[d]efacing property” statute, which also appears in the article
governing property crimes, includes a provision that refers to a cave that is either
“public property or the property of another.” § 18-4-509(1)(c)(I), C.R.S. (2019).
There is no basis to believe that “public property,” as used there, refers only to
property in which the state has a proprietary interest, but that “property of
another” refers to property in which someone other than the defendant has a
proprietary or possessory interest. See id.
                                          12
with these observations. But they are largely irrelevant to the analysis: Neither

advances the ball for the majority or refutes any part of this dissent.

        2. Consequences of the Majority’s Statutory Interpretation

¶47   I am also troubled by the majority’s opinion because it will lead to absurd

results. After today’s holding, a public employee who knowingly converts to his

own use property in which his employer has a possessory, but not a proprietary,

interest (such as property held in a fiduciary capacity) cannot be charged with

embezzlement. But if the same public employee engages in exactly the same

conduct under precisely the same circumstances, except that the government

happens to have a proprietary interest in the property converted, he may be

charged with embezzlement.

¶48   To illustrate the point, I borrow from a few of the hypothetical examples

presented by the People. Assume, for example, that a public employee takes an

older model truck owned by the city and uses it unlawfully to drive his children

to the park every day for three years, while another public employee takes a new

car leased by the city and engages in the same conduct as the first employee.

Under the majority’s rationale, the former employee can be charged with

embezzlement, but the latter employee cannot.

¶49   Assume further that a government agency collects child support and holds

the funds until they can be disbursed to the intended recipients. If a staff member
                                         13
of the agency were to convert some of those funds to his own personal use, he

would be exempt from punishment for embezzlement because the government

did not have a proprietary interest in the money. The same outcome would result

if the funds collected and converted were designated as restitution payments for

victims of crime.

¶50   Finally, assume that a public employee takes his agency’s expensive office

equipment home and converts it to his personal use. If the office equipment was

owned by his employer, he may be guilty of embezzlement, but if, as is often the

case, the office equipment was leased, he would be exempt from punishment for

embezzlement.

¶51   It is difficult for me to accept that these are the absurd results the legislature

envisioned when it referred to “property of the state” in the embezzlement statute.

Of course, we are required to presume that the legislature did not intend such

absurd results. Carrera, ¶ 17, 449 P.3d at 729 (cautioning that “we must ‘avoid

constructions that would . . . lead to illogical or absurd results’” (quoting McCoy v.

People, 2019 CO 44, ¶ 38, 442 P.3d 379, 389)).

                                  III. Conclusion

¶52   In sum, the majority mistakenly determines that the embezzlement statute

is clear and unambiguous. It then misconstrues the phrase “property of the state”

to exclude property in which the state has a possessory, but not a proprietary,
                                          14
interest. For these reasons, and because today’s opinion will lead to absurd results,

I write separately with respect to Part II-B. I therefore respectfully concur in part

and dissent in part; I would reverse the judgment of the court of appeals.

      I am authorized to state that CHIEF JUSTICE COATS joins in this

concurrence in part and dissent in part.




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