May 21, 2018

Colorado Court of Appeals: Defendant Must be Prosecuted Under Specific Statute for Theft of Food Stamps

The Colorado Court of Appeals issued its opinion in People v. Rojas on Thursday, February 22, 2018.

Criminal Law—Theft—Colorado Public Assistance Act—Food Stamps—Fraudulent Acts.

Rojas received food stamps. When requesting an extension of food stamp benefits, Rojas reported that she had no employment income, although she had been hired as a restaurant manager. While continuing to work as a restaurant manager, Rojas received $5,632 worth of food stamps to which she was not entitled. Rojas was found guilty of two counts under the general theft statute, CRS 18-4-401, and one count under CRS 26-2-305(1)(a), which criminalizes failing to report a change in financial circumstances that affects that participant’s eligibility for food stamps.

On appeal, Rojas challenged the trial court’s denial of her motion to dismiss the general theft counts. She argued that the trial court erred in finding that she could be prosecuted for theft of food stamps under the general theft statute. The prosecution is barred from prosecuting under a general criminal statute when the legislature evinces a clear intent to limit prosecution to a more specific statute. CRS 26-2-305(1)(a) creates a more specific criminal offense, theft of food stamps by a fraudulent act, than the general theft statute, and the General Assembly intended it to supplant the general theft statute.

The convictions under the general theft statute were vacated.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Sentence of Indeterminate Term of Probation Permitted by Statute

The Colorado Court of Appeals issued its opinion in People v. Trujillo on Thursday, February 8, 2018.

Criminal Law—Foreclosure—Theft—Criminal Mischief—Sentencing—Jury Instructions—Evidence—Motive—Prosecutorial Misconduct—Probation—Indeterminate Sentence—Costs.  

Trujillo took out a construction loan from the victim, a bank, for home construction. After construction was completed on the house, Trujillo stopped making his monthly loan payments, and the bank subsequently initiated foreclosure proceedings. Before the foreclosure sale, Trujillo removed or destroyed property in the house, which resulted in a decrease in the home’s value from $320,000 to $150,000. A jury found him guilty of theft and criminal mischief.

On appeal, Trujillo contended that he should have benefited from an amendment to the theft statute reclassifying theft between $20,000 and $100,000 as a class 4 felony. Before the amendment, theft over $20,000 constituted a class 3 felony. Trujillo was charged with theft before the statute was amended but was not convicted or sentenced until after the General Assembly lowered the classification for theft between $20,000 and $100,000. Thus, Trujillo was entitled to the benefit of the amendment.

Trujillo also asserted that the trial court erred in rejecting various jury instructions regarding his theory of the case. Throughout trial, the defense’s theory of the case was that Trujillo lacked the requisite intent to commit the charged offenses because he believed that the property he removed from the house belonged to him. Here, the trial court instructed the jury on Trujillo’s theory of the case in an instruction that clearly stated that Trujillo believed the property he took from the house was “his sole property.” The trial court did not abuse its discretion in drafting a theory of defense instruction that encompassed the defense’s tendered instructions.

Trujillo next asserted that the trial court erred in allowing the People to introduce evidence that another property of his had been foreclosed. However, the evidence was directly relevant to Trujillo’s intent and motive. Therefore, the trial court did not err in admitting it.

Trujillo further argued that the prosecutor improperly commented on the district attorney’s screening process for bringing charges and Trujillo’s decision to not testify, and improperly denigrated defense counsel and the defense’s theory of the case. Although the prosecutor improperly denigrated defense counsel and the defense’s theory of the case, viewing the record as a whole there was not a reasonable probability that the remarks contributed to Trujillo’s convictions. There was no basis for reversal.

Trujillo also contended that the trial court exceeded its statutory authority in sentencing him to indeterminate probation. The statute, however, does not prohibit such sentencing, and based on the substantial amount of restitution Trujillo owed, the trial court did not abuse its discretion in sentencing him to an indefinite probation sentence.

Lastly, the court of appeals agreed with Trujillo’s assertion that the trial court erred in awarding the full costs of prosecution requested by the People without making a finding on whether any portion of the costs was attributable to the acquitted charge.

The judgment of conviction was affirmed. The sentence was affirmed in part and vacated in part, and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Jury Properly Instructed on Elements of Theft

The Colorado Court of Appeals issued its opinion in People v. Stellabotte on Thursday, July 14, 2016.

John Arthur Stellabotte is the owner of J&J Towing. After several incidents where J&J towed cars without authorization and charged high fees for return of the vehicle, Stellabotte was charged with six counts of aggravated motor vehicle theft, four counts of theft, and five habitual criminal counts. He was convicted of one count of aggravated motor vehicle theft, two class 4 felony counts of theft, one class 2 misdemeanor count of theft. He was sentenced to 24 years on all felony theft counts and one year on the misdemeanor count, to run concurrently.

On appeal, Stellabotte raised two contentions related to jury instructions, argued that his sentence should be halved because of new legislation reducing the severity of the offenses, and argued the 24-year sentences were grossly disproportionate to the severity of the offenses. The court of appeals analyzed the jury instructions and found no error; the instructions correctly stated the law despite formatting differences. The court also disagreed with Stellabotte that the trial court erred in using the dictionary definition of “authorization.” The court of appeals found no abuse of discretion in the trial court’s definition. However, the court of appeals agreed with Stellabotte that he should receive the benefit of the legislative changes. Because the General Assembly reduced the theft offenses to class 5 felonies, Stellabotte should have been sentenced under the legislative scheme in effect at the time of sentencing.

The court vacated Stellabotte’s sentences and remanded for the court to resentence him in the correct presumptive range. The court emphasized that this decision did not affect the aggravated motor vehicle theft or misdemeanor counts, only the class 4 felony theft convictions. Finally, the court of appeals rejected Stellabotte’s argument that the sentences were disproportionate to the severity of his crimes.

Judge Dailey concurred in part and dissented in part; he would have affirmed the sentences on the theft counts since the incidents occurred when the old sentencing scheme was in effect.

Colorado Court of Appeals: Arrest in California Not Enough to Show Defendant Procured Prosecution There

The Colorado Court of Appeals issued its opinion in People v. Giem on Thursday, December 19, 2015.

Double Jeopardy Clause—Out-of-State prosecution—Aggravated Motor Vehicle Theft.

Giem approaching the victim in a parking lot in Jefferson County, pointed a gun at him, demanded his car keys, and took his car. The car was equipped with an antitheft transmitter. The next day, law enforcement officials in California found Giem driving the victim’s car. In February 2012, Giem pleaded guilty to unlawful driving or taking of a vehicle and DUI in California. He was later prosecuted in Colorado for this same incident, and his motion to dismiss the charges based on the Double Jeopardy Clause and CRS § 18-1-303 were denied.

On appeal, Giem challenged only the court’s ruling on his motion to dismiss, arguing that the Double Jeopardy Clause and CRS § 18-1-303 barred his prosecution in Colorado. CRS § 18-1-304(1)(b), however, creates an exception that allows a prosecution to proceed even if § 18-1-303 would otherwise bar it if the former prosecution “[w]as procured by the defendant without the knowledge of the appropriate prosecuting official and with the intent to avoid the sentence that otherwise might be imposed.” Here, the court’s factual findings do not support its legal conclusion that Giem procured his California prosecution. Merely being present in California with a stolen car stops short of procuring a prosecution there. Therefore, the trial court incorrectly determined that CRS § 18-1-304(1)(b) prevented Giem from taking advantage of § 18-1-303. Giem’s Colorado prosecutions for menacing, theft, and aggravated robbery, however, were not based on the same conduct that resulted in his conviction in California for unlawful driving or taking of a vehicle. Therefore, Giem’s prosecutions in Colorado for these crimes were not barred by his prior conviction in California for unlawful driving or taking of a vehicle. Conversely, Giem’s prosecution in Colorado for aggravated motor vehicle theft was based on the same conduct as the California conviction for unlawful taking of a vehicle, as both offenses were based on the taking and retention by Giem of the victim’s vehicle. Therefore, the People in Colorado were barred from prosecuting Giem for aggravated motor vehicle theft because it is not clear that the law of California and the law of Colorado for this crime were intended to prevent a substantially different harm or evil. The judgment was affirmed as to all counts except the count of aggravated motor vehicle theft, which was reversed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Entry Into Motor Vehicle Contemplated by Motor Vehicle Theft Statute

The Colorado Court of Appeals issued its opinion in People v. Wentling on Thursday, December 3, 2015.

First-Degree Criminal Trespass—Evidence—Motor Vehicle Theft—CRS § 18-1-303(1)—Equal Protection—Presentence Confinement Credit.

Wentling was arrested in Utah after he was found asleep in a vehicle that had been reported as stolen in Colorado. Wentling was charged with multiple offenses in Colorado, including first-degree criminal trespass with intent to commit motor vehicle theft.

On appeal, Wentling contended that there was insufficient evidence to convict him of first-degree criminal trespass with intent to commit motor vehicle theft. However, the motor vehicle theft statute does not preclude prosecution under a general criminal statute, and the People had discretion to prosecute under either. Here, there was sufficient evidence that Wentling entered the motor vehicle with the intent to commit motor vehicle theft inside the vehicle, which was sufficient to prove first-degree criminal trespass with intent to commit motor vehicle theft.

In the alternative, Wentling contended that he was improperly prosecuted in Colorado in violation of CRS § 18-1-303 because he was previously convicted in Utah for the same conduct. Wentling’s prosecution under the Colorado statute was not barred by CRS § 18-1-303(1) because the law defining each offense was intended to prevent a substantially different harm or evil.

Wentling also contended that when the People charged him with first-degree criminal trespass with intent to commit motor vehicle theft rather than attempted motor vehicle theft, it violated his right to equal protection under the law because it subjected him to more severe punishment. Attempted motor vehicle theft and criminal trespass have different elements and, thus, it is permissible for the legislature to prescribe different penalties for similar conduct. Therefore, the trial court did not violate Wentling’s right to equal protection.

Wentling further contended that the trial court erred when it denied his request for 89 additional days of presentence confinement credit (PSCC). Wentling was entitled to PSCC from October 11, 2011, when he arrived in Moffat County Jail, until February 7, 2012, when he finished his Utah sentence, because this period of time resulted from the charges brought by the State of Colorado. The case was remanded to amend the mittimus to include the correct additional PSCC days.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Adverse Possession Requires Good Faith Belief of Ownership of Property for 18 Years or More

The Colorado Court of Appeals issued its opinion in People v. Gutierrez-Vite on Thursday, November 20, 2014.

Adverse Possession—Defense—Theft—Offering a False Instrument for Recording—Jury Instructions—Testimony.

This case stems from defendant’s alleged attempt to adversely possess a home in Fraser, Colorado. At all relevant times, the home was privately owned by another party, but was unoccupied and in foreclosure. Defendant filed an Affidavit of Adverse Possession with the Grand County Clerk and Recorder’s Office even though she did not own or have permission to be in the home. A jury found defendant guilty of attempted theft and two counts of offering a false instrument for recording.

On appeal, defendant contended that the trial court erred because it denied her request to present a defense based on the adverse possession statute and an affirmative defense of mistake of law based on the adverse possession statute. Under the adverse possession statute, in actions filed on or after July 1, 2008, the party claiming the title must prove, by clear and convincing evidence, that his or her possession was actual, adverse, hostile, under a claim of right, exclusive, and uninterrupted for at least eighteen years. The statute also requires that an adverse claimant establish a good-faith belief that he or she was the property’s actual owner.

Because defendant admitted that she knew the property was owned by someone else and she only possessed the property for five months, she did not meet the requirements to claim adverse possession. Because her adverse possession claim to the property fails, the adverse possession statute could not relieve her of criminal liability. Further, defendant’s mistaken belief regarding adverse possession law does not relieve her of criminal liability. Therefore, the trial court did not err in denying her request to present a defense based on adverse possession and excluding this defense from the jury instructions.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Adverse Possession Not Affirmative Defense for Theft and Trespass

The Colorado Court of Appeals issued its opinion in People v. Bruno on Thursday, November 20, 2014.

Adverse Possession—Defense—Theft—Trespassing—Offering a False Instrument for Recording—Jury Instructions—Testimony.

This case stems from Bruno’s alleged attempt to adversely possess a home in Fraser, Colorado. At all relevant times, the home was privately owned by another party, but was unoccupied and in foreclosure. Bruno filed an Affidavit of Adverse Possession with the Grand County Clerk and Recorder’s Office, even though he did not own or have permission to be in the home. A jury found Bruno guilty of theft, trespassing, and two counts of offering a false instrument for recording.

On appeal, Bruno contended that the district court erred in preventing him from raising the defense of adverse possession to the counts of theft and offering a false instrument. Bruno admitted that he knew the property belonged to someone else and he was attempting to begin a claim of adverse possession. Because the General Assembly did not provide and did not intend to create an adverse possession defense in the circumstances presented here, there is no defense of adverse possession to the crimes charged. Further, Bruno’s mistaken belief regarding adverse possession law does not relieve him of criminal liability. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Power of Attorney Document Did Not Authorize Agent to Liquidate Principal’s Assets

The Colorado Court of Appeals issued its opinion in People v. Stell on November 7, 2013.

Power of Attorney—Fiduciary Duty—Without Authorization—Theft by Deception.

The People appealed the dismissal of counts one, two, and four, as well as part of count three, of the indictment against defendant Geoffrey Hunt Stell. The Court of Appeals reversed the order and remanded the case with directions.

The victim executed a power of attorney (POA) naming Stell, who is the victim’s son, as his agent. The POA gave Stell broad general powers over the victim’s property. According to the indictment, Stell had liquidated all of the victim’s property for his own personal use. Stell filed a motion to dismiss counts one through four of the indictment, asserting that he had the legal authority to spend, transfer, and liquidate the assets in question pursuant to the POA. The trial court granted the motion.

On appeal, the People contended that the district court erred in concluding, as a matter of law, that the POA authorized Stell to liquidate all of the victim’s assets and to use them for his own benefit. Although the POA provided broad general powers, several provisions of the POA suggest the victim’s intent that Stell would act on the victim’s behalf, as opposed to in his own interest. Therefore, proof of the “without authorization” element of the theft charges at issue should have been given to the jury to decide.

The People further contended that regardless of whether Stell acted without authorization, the district court erred in dismissing count four of the indictment because that count separately alleged theft by deception, and the evidence supports such a charge. Even if Stell was authorized to transfer the victim’s assets to a trust, he still could have committed theft by deception if he fraudulently induced the victim to sign the trust agreement that allowed Stell to facilitate a theft. Therefore, the evidence could potentially have supported such a charge, regardless of any authorization under the POA. Accordingly, the district court erred in dismissing count four.

Summary and full case available here.

Colorado Court of Appeals: Unauthorized Use and Identity Theft Statutes Not Mutually Exclusive

The Colorado Court of Appeals issued its opinion in People v. Jauch on Thursday, August 29, 2013.

Identity Theft—Unauthorized Use of a Financial Transaction Device—Equal Protection—Motion to Suppress—Search Warrant—Plain View Doctrine.

Defendant Kathy Lynn Jauch appealed the judgment of conviction entered on jury verdicts finding her guilty of theft, two counts of identity theft, and two counts of unauthorized use of a financial transaction device. The Court of Appeals affirmed.

The victim’s backpack was stolen from the parking lot in front of his workplace. It contained, among other things, a computer and a credit card. The credit card was used at a gas station shortly after it was stolen, and a woman who police later identified as Jauch was observed wearing a turquoise shirt with ruffles and attempting to use the credit card to order food from a restaurant.

On appeal, Jauch contended that the identity theft statute imposes a harsher penalty for the same conduct proscribed by the unauthorized use of a financial transaction device statute, and therefore, her identity theft conviction violates her equal protection rights. The two statutes, however, do not prohibit identical conduct. To prove identity theft, the prosecution must show that a defendant knowingly used the identifying information or a financial device belonging to another person or entity. By contrast, the unauthorized use statute requires no similar showing. Therefore, Jauch’s equal protection rights were not violated.

Jauch also contended that the trial court erred in denying her motion to suppress a turquoise shirt found during the search of her home. Because the officers had a lawful right of access to Jauch’s home through a valid search warrant and based on her fellow officer’s reasonable belief that the shirt was connected to the criminal activity under investigation, the officers had a lawful right of access to the turquoise shirt, which was found in Jauch’s home. Accordingly, the trial court did not err in admitting the turquoise shirt under the plain view exception.

Summary and full case available here.

Colorado Court of Appeals: Restitution for Lost Wages Justified but Reversed for New Findings on Value of Damaged Ring

The Colorado Court of Appeals issued its opinion in People v. Henson on Thursday, March 28, 2013.

Restitution—Fair Market Value—Lost Wages.

Defendant Cassandra Henson appealed the district court’s order imposing restitution in the amount of $8628.31. The order was affirmed in part and reversed in part.

Henson stole the victim’s purse, which contained, among other personal property, a 1.5 carat European cut diamond ring that had belonged to the victim’s grandmother. Ultimately, the victim recovered the ring, but it was returned to her with the diamond in an unfinished state and approximately .2 carats smaller than it had been when it was stolen. The court ordered Henson to pay a total of $8,628.31 in restitution, including $2,925 in lost wages and $4,425.45 for the diamond ring. Henson appealed the restitution order.

Henson argued that the district court abused its discretion in awarding restitution for the victim’s lost wages based on the days that she investigated the theft of her purse, because there was no evidence that the victim had actually lost wages on those days. The evidence sufficiently supported the district court’s finding that work was available to the victim, and the victim was unable to work for six-and-one-half days due to her investigation of and the additional activities necessitated by Henson’s theft. The Court of Appeals concluded that the district court did not abuse its discretion in awarding restitution in the amount of $2,925 for the victim’s lost wages.

Henson next contended that the district court erred in awarding restitution in the amount of $4,425.45 for the diamond ring. The district court properly sought to determine the amount of restitution to be awarded for the ring by (1) adding the replacement value of the diamond and the cost to repair the mount and mount the diamond, and (2) subtracting from that sum the value of the returned ring. Here, there is ample evidence in the record to support the district court’s findings that the cost of the replacement diamond was $4,750.45 and the cost to fix the ring mount and to mount the new diamond was $175. The evidence does not support the district court’s finding, however, that the value of the returned ring, which the victim decided to keep, was $500. Therefore, the district court’s order awarding restitution for the ring was reversed, and the case was remanded with instructions that the court reconsider the amount of such restitution.

Summary and full case available here.

Colorado Court of Appeals: In Theft by Deceiving Case, Statute of Limitations Begins to Run When Theft is Discovered

The Colorado Court of Appeals issued its opinion in People v. Cito on Thursday, December 27, 2012.

Theft by Deception—CRS § 16-5-401(4.5).

The People appealed the district court’s order dismissing various theft by deception charges against defendant Kirk Cito. The order was vacated and the case was remanded with directions.

In 2006, Cito, a veterinarian, was hired as the hospital director for an animal hospital. Each month, he sent to the hospital’s certified public accountant (CPA) a packet of documents that included a list of the expenses he had incurred and checks he had written on the hospital’s behalf, receipts for charges made to the hospital’s credit card, and other supporting documents. A monthly report was prepared for the hospital’s owner summarizing this information.

In February 2011, the owner expressed concern to the CPA about the information Cito had been providing. The CPA went back through all five years of packets and concluded Cito had not been truthful in his submitted documentation. Cito was entitled to additional compensation for any unused personal time off, but not if he actually used the personal time. The CPA determined that Cito had paid himself approximately $53,700 for unused personal time off, even though he had actually taken the time off.

On December 5, 2011, Cito was charged with ten counts of theft by deception in violation of CRS § 18-4-401(1) and (4). Four of those counts, and a portion of a fifth, alleged thefts committed more than three years before the charges were filed. Cito moved to dismiss those counts, arguing they were barred by the three-year statute of limitations in CRS § 16-5-401(4.5). In response, the prosecution argued that the limitations period does not commence until the date of discovery, and the theft was not discovered until February 2011.

The district court rejected the prosecution’s argument, finding that “discovery of the criminal act” had occurred at the time Cito received payments from the hospital because all of the information available in February 2011 also was available at the time of the payments. The prosecution appealed.

The People argued that “discovery of the criminal act” did not occur when Cito obtained the money, because this ignores that the theft was by deception and the hospital didn’t discover the deception until February 2011. The Court of Appeals agreed that the district court erred, but for slightly different reasons.

The Court held that “discovery of the criminal act” is an ambiguous phrase. In turning to the legislative history of the act, the Court found no specific guidance, though there was testimony regarding applicability to financial crimes where information may be buried or it may take time to discover. The Court also noted that in the criminal context, this accrual question appeared to be one of first impression. However, in civil cases, Colorado courts have long and consistently held that “discovery” refers to the point at which the aggrieved party knew or in the exercise of reasonable diligence should have known of her claim. The Court held that “discovery” in this instance refers to the point at which the victim or the state knew or through the exercise of reasonable diligence should have known of the theft by deception. The order was vacated and the case was remanded for the district court to reconsider Cito’s motions in light of the Court’s ruling.

Summary and full case available here.

http://www.cobar.org/opinions/opinionlist.cfm?casedate=12/27/2012&courtid=1