People v. Mendro

731 P.2d 704, 1987 Colo. LEXIS 458
CourtSupreme Court of Colorado
DecidedJanuary 20, 1987
Docket85SA177
StatusPublished
Cited by11 cases

This text of 731 P.2d 704 (People v. Mendro) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Mendro, 731 P.2d 704, 1987 Colo. LEXIS 458 (Colo. 1987).

Opinions

VOLLACK, Justice.

The People appeal the trial court’s acquittal of the defendant on felony theft, pursuant to section 18-4-401, 8B C.R.S. (1986). The trial court, sitting as the trier of fact, found the People sustained their burden of proof beyond a reasonable doubt to all the elements of theft. However, the court ruled that a prosecution under the theft statute for violation of the mechanic’s lien statute, section 38-22-127, 16A C.R.S. (1982), required proof of an additional element of mens rea. The trial court ruled that the prosecution must prove that the defendant knew the requirements of the mechanic’s lien statute and that his acts constituted the wrongful use of his customers’ money. We disapprove the judgment.

I.

The defendant was the owner of a remodeling business located in Colorado Springs, now defunct. Evidence at trial showed that the defendant took money from various clients as an advance payment for work to be performed, but used a considerable portion of the money advanced to pay his ongoing operating expenses and bank loans. The defendant was charged with felony theft as a result of violating section 38-22-127 of the general mechanic’s lien statute, 16A C.R.S. (1982). Section 38-22-127 states in pertinent part:

(1) All funds disbursed to any contractor or subcontractor under any building, construction, or remodeling contract or on any construction project shall be held in trust for the payment of the subcontractors, material suppliers, or laborers who have furnished materials, services, or labor, who have a lien, or may have a lien, against the property, or who claim, or may claim, against a principal and surety under the provisions of this article and for which such disbursement was made.
(2) This section shall not be construed so as to require any such contractor or subcontractor to hold in trust any funds which have been disbursed to him for any subcontractor, material supplier, or laborer who claims a lien against the property or claims against a principal and surety who has furnished a bond under the provisions of this article if [706]*706such contractor or subcontractor has a good faith belief that such lien or claim is not valid or if such contractor or subcontractor, in good faith, claims a setoff, to the extent of such setoff.
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(5) Any person who violates the provisions of subsections (1) and (2) of this section commits theft, as defined in section 18-4-401, C.R.S. 1973.

The trial court, sitting as the finder of fact, concluded that the prosecution had proved each of the elements of theft as set out in the theft statute, section 18-4-401, and that the defendant had failed to comply with the requirements of the mechanic’s lien statute. However, the court ruled that the prosecution was required to prove “something more” than the elements of theft and the defendant’s failure to comply with the requirements of the mechanic’s lien statute. The trial court found that the defendant did not use his customers’ money for his own personal use, but used it to pay his ongoing operating expenses and bank loans at the recommendation of his bank’s lawyer, his accountant, and his friend and financial confidant. The court also found that the defendant was not aware of the. mechanic’s lien statutory requirement that a certain amount of each customer’s money must be held in trust to pay materialmen and laborers.

The trial court ruled that in order to criminally prosecute the defendant for violation of the mechanic’s lien statute, a civil statute, the prosecution must prove that the defendant knew that his acts constituted wrongful use of customers’ money. The court relied on People v. Piskula, 197 Colo. 148, 595 P.2d 219 (1979), and People v. Washburn, 197 Colo. 419, 593 P.2d 962 (1979), to conclude that the prosecution had failed to establish beyond a reasonable doubt the existence of a culpable mental state on the part of the defendant. The prosecution contends that it is sufficient that the defendant “knowingly” used the money in a manner inconsistent with the owners’ use or benefit, under section 18-4-401(l)(b), and that the trial court found that element to have been met. The prosecution also contends that the trial court erred in requiring the defendant to know and ignore the requirements of section 38-22-127 in order to prove that there was guilty knowledge.

II.

A prosecution for a violation of section 38-22-127 must be prosecuted under section 18-4-401. People v. Piskula, 197 Colo. 148, 595 P.2d 219 (1979). See § 38-22-127(5), 16A C.R.S. (1982). In order to convict, the prosecution must prove each of the elements of the crime of theft as set out in section 18-4-401, including the requisite intent. People v. Brand, 43 Colo.App. 347, 608 P.2d 817 (1979). All of the subsections of 18-4-401, except (d), contain an express culpable mental state element.1 The trial court interpreted People v. Pisku-la to require that the prosecution prove an additional element of mens rea in a prosecution for the violation of section 38-22-127. In People v. Piskula, we stated, “When the means used to perpetrate this theft are those of deception, the requisite mental state is necessarily the intent to defraud.” 197 Colo, at 151, 595 P.2d at 221. The trial court interpreted this language to require the prosecution to prove that the defendant had the specific intent to defraud his customers when he violated [707]*707section 38-22-127. In this interpretation, the trial court erred.

In People v. Piskula, we held that a prosecution for the violation of section 38-22-127 did not conflict with the constitutional prohibition of imprisonment for civil debt. We also stated that “the critical factor in determining whether or not a criminal prosecution falls within the fraud exception to this constitutional prohibition is the existence of the intent to defraud as an element of the offense.” Id. at 150, 595 P.2d at 221. We have since rejected this suggestion that all theft by deception prosecutions require proof of intent to defraud, and have held instead that “the General Assembly has established alternative mental state requirements for the offense of theft by deception.” People v. Quick, 713 P.2d 1282, 1289 (Colo.1986). Section 38-22-127(5) mandates that a person who violates its provisions commits theft under section 18-4-401. Section 18-4-401 requires proof of a culpable mental state as well as proof of prohibited conduct for conviction of any of the offenses enumerated therein. People v. Quick, 713 P.2d at 1287; see also Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Here, the trial court found that the prosecution had proved beyond a reasonable doubt all the elements of theft pursuant to section 18-4-401. For the reasons set forth in Part III, the trial court improperly entered the judgment of acquittal.

III.

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People v. Mendro
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Bluebook (online)
731 P.2d 704, 1987 Colo. LEXIS 458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mendro-colo-1987.