August 18, 2017

Colorado Court of Appeals: Defendant’s Statement She Was Sorry Sufficient Evidence to Prove Guilt

The Colorado Court of Appeals issued its opinion in People v. Ramos on Thursday, July 27, 2017.

Theft—Evidence—C.R.S. § 18-4-401(4)(a) —Jury Interrogatories—Lesser Included Offense.

Defendant was treasurer of the Bennett Elementary School Parent, Teacher, and Student Association (PTSA). The PTSA held the Believe Fundraiser, and defendant failed to deposit all of the proceeds from the fundraiser into the PTSA’s bank account. The verdict form required the jury to find whether defendant was guilty of theft (two or more within six months) for cash taken from three different fundraisers and instructed the jury to answer three interrogatories. The jury found defendant guilty, but it answered yes to only the Believe Fundraiser interrogatory.

On appeal, defendant contended that the evidence was insufficient to convict her of theft from the Believe Fundraiser. Based on evidence that defendant told the PTSA secretary that she had deposited $19,760.65 into the PTSA account when only $16,473.21 was actually deposited, and defendant’s statement later to the secretary that she was sorry and wanted to make it right, a reasonable person could conclude that defendant knowingly retained funds from the Believe Fundraiser and intended to permanently deprive the PTSA of the value of the funds.

Defendant also contended that the trial court erred in rejecting her proposed instruction paragraph for the verdict form. C.R.S. § 18-4-401(4)(a) required the prosecution to prove all of the thefts aggregated into a single count. Because the jury only answered yes to one of the interrogatories, its verdict conflicts with the statute. Therefore, the jury improperly convicted defendant of aggregated theft without finding that she committed all three of the thefts aggregated in one count. But a single act of theft is a lesser included offense of aggregated theft under C.R.S. § 18-4-401(4)(a), and the prosecution proved the elements of the lesser included offense.

Defendant further contended that the trial court erred in admitting the PTSA secretary’s testimony. However, the PTSA secretary properly gave lay opinion testimony under CRE 701.

The judgment of conviction for theft under C.R.S. § 18-4-401(4)(a) was vacated and the case was remanded to the trial court with directions to enter a conviction for a single count of theft under C.R.S. § 18-4-401(1) and (2)(f).

Summary provided courtesy of The Colorado Lawyer.

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