The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY August 9, 2018
2018COA111
No. 14CA0478, People v. Halaseh — Crimes — Theft — Aggregated Theft; Criminal Law — Appeals — Reviewing Court Must Maximize Effect of Jury’s Verdict
This case concerns a multi-year theft committed by defendant.
It raises two questions.
First, may defendant be convicted for a single count of
aggregated theft under section 18-4-401(4) for thefts that occurred
between January 2008 and January 2011? We conclude no
because of the changing charging requirements for aggregated theft
enacted between 2008 and 2011.
Second, where the prosecutor incorrectly charged defendant
with one class 3 felony theft count for aggregated theft, may we
remand the case to the trial court to enter judgment of conviction
for four class 4 felony theft counts? We conclude yes because of the implicit jury findings within defendant’s conviction, and because we
must maximize the effect of a jury’s verdict to yield as many
convictions as possible. COLORADO COURT OF APPEALS 2018COA111
Court of Appeals No. 14CA0478 El Paso County District Court No. 12CR4638 Honorable Theresa M. Cisneros, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
John M. Halaseh,
Defendant-Appellant.
JUDGMENT VACATED AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE HAWTHORNE Navarro and Casebolt*, JJ., concur
Prior Opinion Announced July 27, 2017, WITHDRAWN Petitions for Rehearing GRANTED
OPINION PREVIOUSLY ANNOUNCED AS “NOT PUBLISHED PURSUANT TO C.A.R. 35(e)” ON July 27, 2017, IS NOW DESIGNATED FOR PUBLICATION
Announced August 9, 2018
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellant
Megan A. Ring, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2017. ¶1 Defendant, John M. Halaseh, appeals his conviction for class 3
felony theft. We vacate the judgment and remand the case for entry
of four convictions for class 4 felony theft and for correction of the
mittimus and to resentence defendant accordingly.
I. Facts and Procedural History
¶2 Defendant assisted his father in setting up a joint bank
account for depositing his father’s Supplemental Security Income
(SSI) checks from the Social Security Administration (SSA). One
month later, defendant’s father left the United States to live in
Jordan. He never returned. Though the SSI application and notice
of award informed defendant’s father that he must report to the
SSA if he left the United States for more than thirty days, he never
did so.
¶3 From January 2008 to January 2011, the SSA deposited
checks monthly into the joint account, and defendant withdrew the
funds to pay for household expenses. When the SSA realized that
defendant’s father had been outside the country for years, it sent
two agents to defendant’s home. Defendant confessed to the agents
that he knew the funds were “government money” and that it was
wrong for him to take them. Later, defendant received a letter from
1 the SSA informing him that $24,494 had been overpaid to his
father.
¶4 Defendant was charged with a single count of theft of $20,000
or more from the SSA. At trial, the prosecution introduced an
exhibit detailing thirty-seven instances of theft committed by
defendant totaling $24,494. A jury found defendant guilty as
charged.
II. Sufficiency of the Evidence
¶5 Defendant contends that the prosecution failed to present
sufficient evidence to prove beyond a reasonable doubt that he
committed theft.1 We disagree.
A. Standard of Review and Applicable Law
¶6 We review de novo whether evidence is sufficient to support a
conviction. People v. Randell, 2012 COA 108, ¶ 29. To determine
whether the prosecution presented sufficient evidence, we apply a
substantial evidence test that considers “whether the relevant
1 Defendant also contends that the prosecution failed to present sufficient evidence to prove beyond a reasonable doubt that he stole more than $20,000 within the prescribed units of prosecution permitted under the theft statutes in effect on the dates included within the single theft count. We address that specific contention later in Part IV.
2 evidence, both direct and circumstantial, when viewed as a whole
and in the light most favorable to the prosecution, is substantial
and sufficient to support a conclusion by a reasonable mind that
the defendant is guilty of the charge beyond a reasonable doubt.”
Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010) (citation omitted).
We “must give the prosecution the benefit of every reasonable
inference which may be fairly drawn from the evidence.” Id. at
1292.
¶7 As pertinent here, a defendant commits theft when “he or she
knowingly obtains, retains, or exercises control over anything of
value of another without authorization or by threat or deception”
and “[i]ntends to deprive the other person permanently of the use or
benefit of the thing of value.” § 18-4-401(1)(a), C.R.S. 2017.
B. Analysis
¶8 Initially, we reject the People’s contention that defendant
waived any challenge to whether the funds belonged to the SSA.
Even if defendant may have conceded this point in his closing
argument, “the prosecution has the burden of establishing a prima
facie case of guilt through introduction of sufficient evidence.”
Clark, 232 P.3d at 1291; see also Randell, ¶ 30 (reasoning that a
3 defendant may raise a sufficiency challenge “without moving for a
judgment of acquittal in the trial court”).
¶9 The evidence, when viewed in the light most favorable to the
prosecution, was sufficient for a reasonable person to conclude that
defendant committed theft. This evidence included the following:
Within the first month of living with defendant,
defendant’s father went with defendant’s wife to the SSA
to apply for SSI.
The SSI application outlined defendant’s father’s
obligations, including reporting to the SSA if “[y]ou leave
the United States for 30 days or more.”
Defendant helped his father establish a joint bank
account where his father deposited his first several SSI
checks.
A few weeks before taking his father to Jordan, defendant
helped his father set up a direct deposit into the joint
bank account.
Defendant admitted to investigators that he used the SSI
checks to pay for various expenses. Bank records
showed the funds were deposited into the checking
4 account monthly, and that defendant used the funds for
credit card payments, cash withdrawals, and mortgage
payments.
Defendant told investigators he knew the funds were
“government money” and that he knew it “wasn’t right” to
use the funds for his expenses.
Defendant wrote and signed a statement which stated: “I
knew we should have stopped [my father’s] SSI benefits
but I needed the money to help pay for the house and
take care of my family . . . I knew I shouldn’t have taken
this money once he left the U.S. and I am willing to work
on paying it back once my house sells.”
Defendant received a letter from the SSA informing him
that $24,494 of SSI funds had been overpaid because his
father had been outside the United States.
¶ 10 Defendant argues, however, that the prosecution failed to
present sufficient evidence that (1) the SSA, and not defendant’s
father, had any possessory or proprietary interest in the $24,494
such that it was the victim of theft; and (2) he knowingly took the
5 money without authorization, or by threat or deception. We
disagree.
¶ 11 First, a reasonable juror could infer that defendant’s father
was not an intermediary victim as defendant suggests, but part of
defendant’s deception to obtain government funds. Thus the
checks and direct deposits from the SSA were sufficient evidence to
show that the SSA had a possessory interest in the $24,494. And
second, a juror could infer from defendant’s actions, statements,
and expenses that he knowingly deceived the SSA when he led the
agency to believe that his father, and not he, would receive the
benefit of the deposited funds. Accordingly, we conclude that the
prosecution presented sufficient evidence for a reasonable juror to
find beyond a reasonable doubt that defendant committed theft
from the SSA.
III. Jury Instruction
¶ 12 Defendant concedes failure to preserve, but contends that the
trial court plainly erred when it failed to instruct the jury (1) on the
definition of the word “another” in the theft statute and (2) on its
requirement to find that the “aggregate value” exceeded $20,000
within one of the prescribed units of prosecution. The People
6 respond that defendant waived instructional error, if any. But even
if defendant did not waive this argument, we conclude that the trial
court did not plainly err.
A. Standard of Review
¶ 13 We review unpreserved instructional errors for plain error.
People v. Miller, 113 P.3d 743, 750 (Colo. 2005). Plain error occurs
where the error is both “obvious and substantial” and “so
undermined the fundamental fairness of the trial itself so as to cast
serious doubt on the reliability of the judgment of conviction.” Id.
(citations omitted).
1. Definition of “Another”
¶ 14 At trial, the court instructed the jury on the elements of theft.
Its instruction included the following elements: “[t]hat
defendant . . . knowingly obtained or exercised control over
anything of value which was the property of another person.”
¶ 15 Defendant argues that the trial court should have included an
additional instruction to define the word “another.” Specifically, he
cites section 18-4-401(1.5), which provides that “[a] thing of value is
that of ‘another’ if anyone other than the defendant has a
7 possessory or proprietary interest therein.” He then argues that
this alleged error harmed him because (1) the prosecution never
proved that the SSA had a possessory or proprietary interest in the
funds, and (2) his defense against the charges was on the ground
that he did not know the money was the property of the SSA.
¶ 16 But, for three reasons, we discern no plain error.
¶ 17 First, defendant fails to cite any authority requiring an
instruction defining “another” in a theft case. See Scott v. People,
2017 CO 16, ¶ 17 (“[A]n error is generally not obvious when nothing
in Colorado statutory or prior case law would have alerted the trial
court to the error.”).
¶ 18 Second, the SSA’s possessory or proprietary interest in the
funds was not, despite defendant’s arguments, a disputed issue in
this case. The disputed issue was whether defendant knew the SSA
had an interest in the funds, not whether it actually had an interest
in them. Even defendant’s counsel admitted to the jury that the
funds were the property of the SSA:
[A]nd so you have to be proven beyond a reasonable doubt that [defendant] knew that the money he had belonged to the Social Security Administration. He believed it belongs to [his father]. He believed that he
8 could use it because [his father] told him he could. He did not know that that was the property of the Social Security Administration.
¶ 19 Finally, testimony and a written confession signed by
defendant showed that defendant knew the funds were government
money. An SSA special agent testified that defendant told him that
“he knew [the funds were] government money.” And defendant’s
written confession stated that he was “willing to work on paying [the
funds] back” to the SSA.
¶ 20 For these reasons, we discern no error, much less plain error,
in the trial court’s not instructing the jury on the definition of the
word “another” in the theft statute. See People v. Dunlap, 124 P.3d
780, 794 (Colo. App. 2004) (“Failure to instruct the jury . . . does
not constitute plain error where the subject of the error in the
instruction is not contested at trial or where evidence of the
defendant’s guilt is overwhelming.”).
2. Aggregate Value
¶ 21 For reasons explained infra Part IV, we agree that the trial
court plainly erred when it instructed the jury that it could find
defendant guilty of stealing $20,000 or more. But we disagree that
the error harmed defendant.
9 ¶ 22 Had the court given the proper instruction — that is, had it
correctly instructed the jury as to both the prescribed units of
prosecution and the proper values required to be found within
those units — the jury’s findings of guilt would have remained the
same. We know this because the jury found that defendant stole
more than $20,000, and the uncontested evidence showed when
the individual amounts were taken. See State v. Gidden, 455
N.W.2d 744 (Minn. 1990) (concluding that, even though the trial
court did not instruct the jury that defendant’s aggregated thefts
exceeding $2500 had to occur within a six-month period, there
existed no reasonable likelihood that the giving of the instruction
would have significant effect on the verdict where any six-month
period of defendant’s thefts exceeded $2500). Thus the error did
not harm defendant.
¶ 23 Defendant sees things differently. He assumes that, had the
court been alerted to its improper instruction, it would have done
one of two things. Either it would have
“instructed the jury that it must find, beyond a
reasonable doubt, that the aggregate value of the thefts
10 during any six-month period was greater than $20,000”;
or
after May 11, 2009 and committed ‘against the same
person pursuant to one scheme or course of conduct’ was
greater than $20,000.”
Working on this assumption, defendant argues that the jury would
not have found him guilty. Thus the error, according to him,
harmed him.
¶ 24 That is true — if you accept defendant’s assumption. And that
is the problem with his argument. Defendant’s assumption
requires us to conclude that, had the court been alerted to its
mistake, it would have simply gone on to make another mistake by
instructing the jury incorrectly in one of the two incorrect ways
mentioned above. This is nothing but conjecture. We must assume
that the trial court, if alerted, would have acted properly. See
Loomis v. Seely, 677 P.2d 400, 401 (Colo. App. 1983). And
defendant provides no evidence to persuade us otherwise. So we
reject his argument.
11 ¶ 25 Therefore, because a proper jury instruction would not have
changed the jury’s findings, we discern no harm to defendant and
thus no plain error by the trial court.
IV. Aggregated Theft
¶ 26 Defendant contends that the prosecution failed to prove that
he took $20,000 or more within any prescribed unit of prosecution
permitted under the theft statutes in effect on the offense dates.
The People concede, and we conclude, that the trial court erred by
entering judgment for a class 3 felony theft on the jury’s verdict.
¶ 27 Because this case requires us to interpret section 18-4-
401(4)(a)-(b), it presents legal questions that we review de novo. See
People v. Kailey, 2014 CO 50, ¶ 12.
B. Aggregating Thefts Under Section 18-4-401(4)
¶ 28 We begin by reviewing Roberts v. People because it informs our
analysis of section 18-4-401(4). 203 P.3d 513 (Colo. 2009),
superseded by statute as recognized in People v. Simon, 266 P.3d
1099, 1108 (Colo. 2011). In Roberts, the supreme court considered
section 18-4-401(4) as it existed before it was amended in 2009;
this pre-amendment statute also applies to defendant’s pre-June
12 2009 offenses. See generally id. The defendant in Roberts was
charged with one count of theft of $15,000 or more, although the
evidence showed that he had committed multiple thefts from the
same victim (7-Eleven) at three different stores over twenty-seven
months. Id. at 515-16. Roberts held that pre-amendment section
18-4-401(4)(a) treated “as a single theft all thefts committed by the
same person in a six-month period.” Id. at 517-18. Roberts also
held that, under the then-current version of section 18-4-401(4)(a),
“all thefts committed by the same person within a six-month period
. . . [must] be joined and prosecuted as a single felony.” Id. at 516.
¶ 29 In determining the felony classification of that single theft
offense, a jury could aggregate the value of all things taken by the
defendant during that six-month period. See id. (Multiple thefts
committed by the same person within a six-month period
“constitute a single crime of theft, the classification of which is
determined by the aggregate value of all of the things involved.”).
The corollary of this principle is that a theft occurring outside the
relevant six-month period constituted a separate theft offense, even
if it involved the same victim. See id. at 515-17 (concluding that
the defendant’s thefts from the same victim did not constitute a
13 “continuing crime” over twenty-seven months because the former
theft statute created instead a “single offense of theft” limited “to all
discrete acts of theft committed by the same person within any
six-month period”).
¶ 30 Roberts rejected the theory that the defendant’s multiple
takings from the same victim over twenty-seven months constituted
a single theft offense, id. at 515-16, 518, and thus the Roberts court
concluded that the trial court should have instructed the jury to
determine the value of the things taken within a period of six
months. Id. at 518 (“[T]he jury was never instructed to determine
whether the value of the things involved was $15,000 or more as
the result of the defendant’s having committed theft two or more
times within a period of six months.”).
¶ 31 After the Roberts decision, the legislature amended section
18-4-401(4) by (1) changing the six-month unit of prosecution from
being a mandatory charge to a discretionary one, see Ch. 244, sec.
2, § 18-4-401(4), 2009 Colo. Sess. Laws 1099 (providing that “two
or more . . . thefts may be aggregated and charged in a single
count”) (emphasis added); and (2) adding an additional subsection
allowing two or more crimes of theft committed “against the same
14 person pursuant to one scheme or course of conduct” to be
“aggregated and charged in a single count, in which event they shall
constitute a single offense,” Ch. 244, sec. 2, § 18-4-401(4), 2009
Colo. Sess. Laws 1100. These subsections now provide the
exclusive methods for aggregating and charging thefts in a single
count.
¶ 32 The prosecution charged defendant with one count of theft of
$20,000 or more, but no check or deposit received from the SSA
exceeded $674.002. So, the jury necessarily would have had to
aggregate multiple payments to find that defendant took $20,000 or
more. Even if the jury had been properly instructed as to how to
aggregate the thefts under section 18-4-401(4)(a) or (b), it could not
have legally found defendant guilty of theft of $20,000 or more
because of the statute’s different requirements in its pre- and post-
2009 versions. The most the jury could have legally aggregated
under the pre-2009 “mandatory-within six months” version (now
2 At trial, the prosecution admitted an exhibit titled “A Detailed Explanation Of Your OverPayment.” It showed that from January 2008 to December 2008, the SSA overpaid $637 each month; and from January 2009 to January 2011, the SSA overpaid $674 each month.
15 section 18-4-401(4)(a)) would have been (1) $3822 from January
2008 to June 2008; (2) $3822 from July 2008 to December 2008;
and (3) $3370 from January 2009 to May 2009. And the most the
jury could have legally aggregated under the post-2009
“discretionary-same victim” version (now section 18-4-401(4)(b))
would have been $13,480 from June 2009 to January 2011. Thus,
the trial court erred when it entered judgment for a class 3 felony
on the jury’s verdict finding defendant had taken $20,000 or more.
C. Remedy
¶ 33 We agree with the People that the proper remedy is to vacate
the judgment of conviction for one class 3 felony theft count and
remand the case to the trial court to enter judgment of conviction
for four class 4 felony theft counts. The prosecution charged
defendant with one count of theft of $20,000 or more (a class 3
felony theft), and the jury found him guilty of theft of $20,000 or
more. Implicit in defendant’s conviction for the class 3 felony theft
are four class 4 felony theft convictions:
1. Within the six-month period of January 1, 2008, to June
30, 2008, defendant stole $3822. This supports one
class 4 felony theft conviction under the pre-2009
16 amended statute. See § 18-4-401(1)(a), (2)(d), (4), C.R.S.
2008.
2. Within the six-month period of July 1, 2008, to
December 31, 2008, defendant stole $3822. This
supports one class 4 felony theft conviction under the
pre-2009 amended statute. See id.
3. Within the five-month period of January 1, 2009, to May
10, 2009, defendant stole $3370. This supports one
amended statute. See id.
4. Between May 11, 2009, and January 31, 2011, defendant
stole $13,480. This supports one class 4 felony theft
conviction under the post-2009 amended statute. See
§ 18-4-401(1)(a), (2)(c), (4)(b), C.R.S. 2009.
¶ 34 See Mata-Medina v. People, 71 P.3d 973, 981 (Colo. 2003) (“We
recently confirmed that appellate courts can acknowledge implicit
jury findings.”); People v. Sepulveda, 65 P.3d 1002, 1005-06 (Colo.
2003) (concluding that because the jury “found that [the defendant]
acted intentionally, or with the conscious objective of causing
death, [it] implicitly found that [the defendant] acted knowingly”);
17 People v. Bowers, 187 Colo. 233, 238, 530 P.2d 1282, 1285 (1974)
(“The jury, by finding appellant guilty of the greater offenses,
necessarily found he was guilty of the lesser offenses. Under these
circumstances, as a matter of law the appellant was guilty of the
lesser offenses.”).3
¶ 35 Defendant argues that — by reforming the judgment from one
conviction to four — we are depriving him of his constitutional due
process right to be notified of the charges made against him. U.S.
Const. amend. VI; Colo. Const. art. II, § 16. But we are not
persuaded.
¶ 36 It is “ancient doctrine of both the common law and of our
Constitution that a defendant cannot be held to answer a charge
not contained in the indictment brought against him.” Schmuck v.
3 Although the jurors were instructed to determine whether defendant had stolen $20,000 or more — and not the full $24,494 — we discern that the jury verdict reflected a unanimous agreement as to all the charged thefts because (1) the “evidence at trial included nothing that would lead a juror to conclude that the acts of” theft “occurred on some occasions . . . but not on others”; (2) the defense was “general” and did not provide “an individualized defense aimed at discrete alleged instances”; and (3) the “evidence presented no rational basis for some jurors to predicate guilt on one act while other jurors based it on another.” Thomas v. People, 803 P.2d 144, 154-55 (Colo. 1990).
18 United States, 489 U.S. 705, 717 (1989). To satisfy this doctrine,
the “notice [of charges] given must be sufficient to advise the
accused of the charge, to give him a fair and adequate opportunity
to prepare his defense, and to ensure that he is not taken by
surprise because of evidence offered at the time of trial.” People v.
Garcia, 940 P.2d 357, 362 (Colo. 1997) (quoting People v. Cooke,
186 Colo. 44, 46, 525 P.2d 426, 428 (1974)). For example, a
defendant is deemed, as a matter of law, to have “adequate notice”
of an uncharged offense that meets the definition of a lesser
included offense of the original charge against him. People v.
Duran, 272 P.3d 1084, 1095 (Colo. App. 2011). So, even though the
prosecution did not charge defendant with four class 4 felony theft
counts, the question is whether his constitutional due process right
to receive “adequate notice” of the four class 4 felony thefts was
satisfied by his being charged with the one original class 3 felony
theft.
¶ 37 We conclude that it was. The record clearly shows that
defendant had actual notice of each specific instance of theft on
which the prosecution based its original charge. Before the charge
was even filed, the SSA gave defendant a detailed list of all
19 thirty-seven instances of “overpayment” with the date and amount
paid. The prosecution’s complaint covered all these instances when
it charged defendant with theft “[b]etween and including January 1,
2008 and January 31, 2011.” And in a pre-trial hearing, defendant
was ordered to release all his bank records reflecting the charged
time period so that the prosecution could show the deposits made
by the SSA. Given the complaint and pre-trial discovery, defendant
had ample notice that he would need to defend against all
thirty-seven instances of theft. So we conclude that by reforming
the judgment to impose four class 4 felony thefts, we do not violate
his right to due process. See People v. Williams, 984 P.2d 56, 65
(Colo. 1999) (concluding that, where the information charging the
defendant with first degree criminal trespass did not specify the
ulterior crime he intended to commit on trespassing, he was not
prejudiced in the preparation of his defense because “under the
surrounding circumstances, [he] was sufficiently advised of the
ulterior crimes”); see also Garcia, 940 P.2d at 363 (“[D]ue process is
a flexible concept, and its exact contours must be determined by
the facts of each case.”).
20 ¶ 38 Other cases support this logic. See United States v. Lacy, 446
F.3d 448, 452 (3d Cir. 2006) (finding defendant’s rights were
“adequately protected” where he was convicted of multiple lesser
included offenses from one charged offense); State v. Erivez, 341
P.3d 514, 518-19 (Ariz. Ct. App. 2015) (noting defendant’s due
process rights were not violated where he was charged with
aggravated assault but, after additional jury instructions, convicted
of assault and disorderly conduct); People v. Eid, 328 P.3d 69, 89-
90 (Cal. 2014) (“Because a charged offense puts a defendant on
notice of all uncharged lesser included offenses, defendants had
notice of, and the opportunity to defend against, the two uncharged
lesser included offenses of which they were convicted.”).
¶ 39 Also, “[w]e are required to retain as many convictions and
uphold as many sentences as are legally possible to effectuate fully
the jury’s verdicts.” People v. Lee, 914 P.2d 441, 448 (Colo. App.
1995). Because we must maximize the effect of a jury’s verdict to
yield as many convictions as possible, see People v. Glover, 893 P.2d
21 1311, 1315 (Colo. 1995), we remand for correction of the mittimus
and resentencing on the four class 4 felony theft convictions.4
V. Conclusion
¶ 40 The judgment of conviction for class 3 felony theft is vacated
and the case is remanded for the court to (1) correct the mittimus
by entering judgment for four class 4 felony theft convictions and
(2) resentence defendant accordingly.
JUDGE NAVARRO and JUDGE CASEBOLT concur.
4 We recognize that the principle that we must maximize the effect of a jury’s verdict to yield as many convictions as possible has been used primarily to correct multiplicitous convictions. But we see no reason why the logic behind that principle — to fully effectuate the jury’s verdict — should not also apply here.