People v. Stell

2013 COA 149, 320 P.3d 382, 2013 WL 5952424, 2013 Colo. App. LEXIS 1741
CourtColorado Court of Appeals
DecidedNovember 7, 2013
DocketCourt of Appeals No. 13CA0492
StatusPublished
Cited by4 cases

This text of 2013 COA 149 (People v. Stell) 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. Stell, 2013 COA 149, 320 P.3d 382, 2013 WL 5952424, 2013 Colo. App. LEXIS 1741 (Colo. Ct. App. 2013).

Opinion

Opinion by

JUDGE GABRIEL

§1 In this appeal pursuant to C.A.R. 4(b)(8), the People contend that the district court erred in dismissing counts one, two, and four and part of count three of the indictment. We conclude that the district court erred in dismissing these counts (or portions thereof) because we disagree with its determination that the provisions of the Uniform Power of Attorney Act (UPAA) are not pertinent in this case, which involves the scope of the authority granted to defendant, Geoffrey Hunt Stell, under the general power of attorney at issue (the POA). We further conclude, as a separate and independent basis for our holding concerning count four of the indictment, that the court erred in dismissing that count because that count separately charged theft by deception, and such a crime could be committed regardless of any authorization that Stell was given under the POA. Accordingly, we reverse the order of dismissal and remand this case for further proceedings.

I. Background

12 On May 21, 2009, the victim executed the POA in Virginia. The POA named Stell, who is the victim's son and a resident of Colorado, as his agent.

T3 As pertinent here, the POA gave Stell broad general powers over the victim's property. Moreover, the POA authorized Stell "[to] perform any other acts of any nature, that ought to be done or in the opinion of my [i.e., the victim's] Agents ought to be done, in any circumstances as fully and effectively as I could do if acting personally."

T4 According to the indictment, between May 29, 2009 and June 5, 2010, Stell "had liquidated all of [the victim's] bank accounts, CDs, 401k, sold the timber on 11 acres of land owned by [the victim], and completed the sale of this same 11 acres." The indict ment alleged that Stell received a total of $453,928.81 from the liquidation of these accounts and assets and that he ultimately diverted the proceeds to his personal use.

5 The indictment further alleged that in late July or early August 2010, Stell proposed that the victim place his assets in a [384]*384trust to protect the assets from creditors. The vietim thus signed such a trust, naming Stell as the trustee, and Stell ultimately transferred a piece of the victim's real property to that trust. Unbeknownst to the vie-tim, however, he was not a beneficiary of this trust, and the indictment alleged that by transferring the above-described real property to the trust, Stell permanently deprived the victim of the use and benefit of that property.

T6 On October 2, 2010, the victim terminated the POA, and thereafter, he asked the Denver District Attorney's Office to investigate Stell's actions as agent under the POA. As a result of this investigation, Stell was charged by indictment with eight counts of theft and one count of conspiracy to commit theft,. As pertinent here, counts one through three of the indictment alleged that Stell unlawfully obtained the victim's money, without authorization or by threat or deception, in transactions conducted between May 29, 2009 and November 29, 2009 (count one), between November 30, 2009 and May 80, 2010 (count two), and between June 1, 2010 and November 18, 2010 (count three). Count four alleged that on or about August 31, 2010, Stell unlawfully obtained or exercised control over the real property that was transferred to the above-described trust and that he had done so without authorization or by threat or deception.

T7 Stell filed a motion to dismiss counts one through four of the indictment, asserting that because the POA permitted him to do anything that the victim could do with his property, Stell had the legal authority to spend, transfer, and liquidate the assets in question.

8 The People responded that section 15-14-714, C.R.S.2013, of the UPAA provided that notwithstanding the provisions in a power of attorney, an agent had certain fiduciary duties. The People further argued that this statute defined Stell's duties and that notwithstanding the language of the POA, he breached those duties. Finally, the People argued that such a breach gave rise to a jury question as to whether Stell had committed theft.

T9 The district court disagreed with the People's position, stating that although the facts may well have established a breach of fiduciary duty, that was not the question. Rather, the question was whether Stell had the authority to complete the transactions at issue without having criminal liability. In this regard, the court opined:

I think there's a big difference between having the power to deal with property and exercising that power in a, in a fiduciary way. Largely violating fiduciary duty is a civil matter.... I think there, there can be circumstances where a breach of fiduciary duty could be criminal, it could be tied up with fraud, it could be tied up as, as arguably the trust agreement is, with fraud [in] the inducement and all sorts of things. But in this case, the People have conceded that the power of attorney was valid. That means that for all of the periods involved in counts 1, 2 and 4 and for all but the last month in count 3, this Defendant had the authority, he was given the authority by the victim in this case to, to basically do anything with this property that the victim could have done with it. And I think ... that cannot be theft.

10 The court thus granted the motion to dismiss as to the entirety of counts one, two, and four and as to the conduct alleged in count three that preceded the termination of the POA.

1 11 The People now appeal.

II. Standard of Review

112 Because the district court dismissed the theft charges as a matter of law, we review its decision de novo. See People v. Hall, 999 P.2d 207, 221 (Colo.2000) (noting that we review conclusions of law de novo).

III. "Without Authorization" (Counts One Through Four)

T 13 The People first contend 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. We agree.

114 A person commits theft when he or she "knowingly obtains, retains, or [385]*385exercises control over anything of value of another without authorization or by threat or deception ... and ... [intends to deprive the other person permanently of the use or benefit of the thing of value." § 18-4-401(1)(a), C.R.9.2018. A person acts "without authorization" when the owner of the property has not given him or her permission to obtain or exercise control over that property. See People v. Gracey, 940 P.2d 1050, 1052 (Colo.App.1996). Moreover, a theft can oceur even though initial control of the property was authorized, when, for example, the intent to deprive permanently arises at a time when such control is no longer authorized. See People v. Treat, 193 Colo. 570, 577, 568 P.2d 473, 477 (1977).

115 As noted above, the district court's disagreement with the People's posttion regarding Stell's motion to dismiss centered on the court's view that section 15-14-714 of the UPAA and any fiduciary duties that it created were inapplicable in this criminal case.

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Cite This Page — Counsel Stack

Bluebook (online)
2013 COA 149, 320 P.3d 382, 2013 WL 5952424, 2013 Colo. App. LEXIS 1741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-stell-coloctapp-2013.