People v. Jauch

411 P.3d 53
CourtColorado Court of Appeals
DecidedAugust 29, 2013
DocketCourt of Appeals No. 10CA0588
StatusPublished

This text of 411 P.3d 53 (People v. Jauch) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Jauch, 411 P.3d 53 (Colo. Ct. App. 2013).

Opinion

Opinion by JUDGE DUNN.

¶ 1 Defendant, Kathy Lynn Jauch, appeals the judgment of conviction entered on jury verdicts finding her guilty of five criminal charges. We affirm.

I. Background

¶ 2 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 attempting to use the credit card to order food from a restaurant.

¶ 3 Jauch was charged with theft, two counts of identity theft, and two counts of unauthorized use of a financial transaction device. Prior to trial, she filed a motion to dismiss the two identity theft counts, arguing they violated her right to equal protection. The district court denied the motion.

¶ 4 The jury convicted Jauch of one count of theft, two counts of identity theft, and two counts of unauthorized use of a financial transaction device. The district court merged the unauthorized use counts with the identity theft counts. Jauch was sentenced to three years of probation, with six months in jail as a condition of probation.

¶ 5 Jauch contends that the trial court erred in (1) denying her motion to dismiss the identity theft charges on equal protection grounds, and (2) admitting a turquoise shirt that police discovered when searching her house. We address, and reject, each contention.

II. Equal Protection

¶ 6 Jauch first contends 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.1 We disagree.

A. Standard of Review and Governing Law

¶ 7 We review constitutional challenges to statutes de novo. Hinojos-Mendoza v. People , 169 P.3d 662, 668 (Colo.2007). Statutes are presumed to be constitutional, and the party challenging the constitutionality of a statute has the burden of proving that it is unconstitutional beyond a reasonable doubt. Id.

¶ 8 While the Supreme Court has held that equal protection under the United States Constitution is not violated where statutes impose different penalties for the same criminal conduct, *57United States v. Batchelder, 442 U.S. 114, 124-26, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), Colorado takes a stricter view of the protections afforded by its equal protection guarantee. Stewart, 55 P.3d at 114.

¶ 9 Under the Colorado Constitution, equal protection is violated if different statutes prohibit the same criminal conduct but impose different penalties. E.g., People v. Bossert, 722 P.2d 998, 1003 (Colo.1986). In considering equal protection challenges, the supreme court has emphasized that equal protection is offended only when statutes forbid identical conduct. Stewart, 55 P.3d at 114 ; see also People v. Westrum, 624 P.2d 1302, 1303 (Colo.1981) ("[I]t is only where the same criminal conduct is proscribed in both statutes that equal protection problems arise."). To determine whether two statutes proscribe identical conduct, we examine the elements of each crime. Stewart, 55 P.3d at 115. If reasonable distinctions can be drawn between the statutes, there is no equal protection violation. Westrum, 624 P.2d at 1303.

¶ 10 Statutory classifications of crimes do not violate equal protection if the differences between the proscribed conduct are both real in fact and reasonably related to the general purposes of criminal legislation. Campbell v. People, 73 P.3d 11, 12 (Colo.2003). The General Assembly is free to establish more severe penalties for conduct that it believes has graver consequences, even if the conduct varies only by a matter of degree. Id. at 12-13. Thus, "[a] single act may violate more than one criminal statute without violating the equal protection guarantee." Id. (citing Stewart, 55 P.3d at 114 ; People v. Cagle, 751 P.2d 614, 619 (Colo.1988) ).

B. Analysis

¶ 11 At the time of Jauch's offense, the identity theft statute provided, in pertinent part, "A person commits identity theft if he or she [k]nowingly uses the personal identifying information, financial identifying information, or financial device of another without permission or lawful authority with the intent to obtain cash, credit, property, services, or any other thing of value to make a financial payment." Ch. 326, sec. 1, § 18-5-902(1)(a), 2009 Colo. Sess. Laws 1737. Identity theft is a class four felony. § 18-5-902(2), C.R.S.2012.

¶ 12 The unauthorized use of a financial transaction device statute provides, in relevant part:

(1) A person commits unauthorized use of a financial transaction device if he uses such device for the purpose of obtaining cash, credit, property, or services or for making financial payment, with intent to defraud, and with notice that either:
(a) The financial transaction device has expired, has been revoked, or has been cancelled; or
For any reason his use of the financial transaction device is unauthorized either by the issuer thereof or by the account holder.

§ 18-5-702(1)(a), (b), C.R.S.2012. Where, as here, the value of the property obtained is less than one thousand dollars, unauthorized use of a financial transaction device is a class one misdemeanor. § 18-5-702(3)(b), C.R.S.2012.

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Bluebook (online)
411 P.3d 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-jauch-coloctapp-2013.