The Colorado Court of Appeals issued its opinion in People v. Patton on Thursday, December 30, 2016.
Unauthorized Use of a Financial Instrument—Notice—Theft—Consecutive Sentence—Concurrent Sentence—–Statutory Amendment.
Patton purchased over $8,000 worth of consumer electronics from Ultimate Electronics using a Wells Fargo debit card that was issued to him. The card was declined during the transaction, and Patton used a false override authorization code to force the sale. Ultimate Electronics then received a “charge-back” from Wells Fargo, meaning it was not paid for the purchase. At trial, a Wells Fargo representative testified that the card had been cancelled before the transaction when Patton called the bank and reported that he had neither received it nor made purchases on it. The representative also testified that the bank employee would have told Patton that the card was cancelled and the bank would not have given an override code for the card. Patton was convicted of unauthorized use of a financial instrument and theft. He received a sentence of six years for theft and a consecutive sentence of three years for unauthorized use of a financial instrument.
On appeal, Patton argued that the trial court erred by denying his motion for judgment of acquittal after the prosecution failed to prove that he received notice in person or in writing that the debit card had expired or had been revoked or cancelled. The unauthorized use of a financial instrument statute does not require notice only in person or in writing. There was sufficient evidence to support a conclusion beyond a reasonable doubt that Patton received notice by telephone that his card was cancelled, revoked, or expired.
Patton also contended that the court committed plain error by imposing consecutive sentences because his crimes were based on identical evidence. When a defendant is convicted of multiple crimes based on the same act or series of acts in the same criminal episode and the evidence supporting each conviction is identical, the sentence must be concurrent. Here, the use of the cancelled debit card for the purchases without payment was part of the theft. Because the convictions were supported by identical evidence, the statute required the trial court to impose concurrent rather than consecutive sentences.
Patton further argued that his sentence should be reduced based on a change in the theft statute. At the time of his offenses in 2009, the value of the items Patton stole constituted a class 4 felony. In 2013, the statute was amended to reduce the offense to a class 5 felony. Because Patton was sentenced in 2014, he was entitled to the benefit of the amended statute.
Patton finally contended that the court improperly entered a conviction for a class 4 felony against him without a finding of actual value by the jury, and that instead he should only be convicted of a class 1 misdemeanor. There was evidence at trial that Patton had stolen items exceeding $8,000 in value, and Patton did not contest the value. Therefore, the record supports the conviction.
The judgment of conviction was affirmed, the consecutive sentences were vacated, the felony theft sentence was vacated, and the case was remanded for resentencing.
Summary provided courtesy of The Colorado Lawyer.