People v. Carlson, 01CA1125.

• Citation: 72 P.3d 411
• Decision Date: 13 February 2003
• Docket Number: No. 01CA1125.,01CA1125.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David CARLSON, Defendant-Appellant.
• Court: Court of Appeals of Colorado

72 P.3d 411

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David CARLSON, Defendant-Appellant.

No. 01CA1125.

Colorado Court of Appeals, Div. V.

February 13, 2003.

Certiorari Denied June 23, 2003.

Ken Salazar, Attorney General, Julia A. Thomas, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Lisa A. Vanderhoof, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge WEBB.

Defendant, David Carlson, appeals the judgment of conviction for theft by deception on the grounds of a defective indictment, insufficient evidence, prosecutorial misconduct, an erroneous evidentiary ruling, and cumulative error. We affirm.

Defendant sold a car to the victim, who testified that defendant misled him concerning its mileage and prior ownership. Based on the misrepresentations, the victim gave defendant a $1,100 down payment and signed a promissory note, in exchange for delivery of the car. The People did not establish the difference between the value of the car as represented and the purchase price, relying instead on the victim's testimony that he would not have bought the car had he known its true condition.

I. Indictment

Defendant first argues the indictment was defective because it did not adequately inform him of the charge. He also argues his defense was prejudiced because he relied on the theory in the indictment, but the People obtained a conviction using another theory. We reject both arguments.

A. Sufficiency

An indictment or information must satisfy the dual purposes of advising a defendant of the charge so the defendant can adequately prepare a defense and protecting the defendant against further prosecution for the same offense. People v. Pratt, 759 P.2d 676 (Colo.1988)(indictment); People v. Zupancic, 192 Colo. 231, 557 P.2d 1195 (1976)(information).

A substantive defect in an indictment or information renders a conviction void. People v. Williams, 984 P.2d 56 (Colo.1999). However, an indictment or information is substantively sufficient if it tracks the language of the pertinent statute. People v. Williams, supra; People v. Richardson, 58 P.3d 1039 (Colo.App.2002).

Here, in charging defendant with one count of theft by deception under § 18-4-401, C.R.S.2002, the indictment tracked the language of the statute: "[Defendant] unlawfully, feloniously and knowingly obtained and exercised control over a thing of value of another ... without authorization and by threat and deception, and with the intent to permanently deprive the owner." The indictment also provided the details required by § 18-4-401(6), C.R.S.2002.

Accordingly, we conclude the indictment was not defective.

B. Variance

Defendant next argues a fatal variance arose because the People's theory in the indictment and during pretrial proceedings was that he deprived the victim of the difference in value between a car with 75,002 miles and the same car with 133,000 miles, but at trial the People focused instead on the victim's $1,100 down payment as the "thing of value."

Two types of variance may arise between the offense in the charging instrument and the offense of which a defendant is convicted. A "simple variance" occurs when the charged elements are unchanged, but the evidence at trial proves facts materially different from those alleged. A "constructive amendment" occurs when the evidence at trial changes an element of the charged offense and alters the substance of the charging instrument. People v. Rodriguez, 914 P.2d 230 (Colo.1996).

A simple variance is immaterial unless it prejudices the defendant's substantive rights. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). We will generally sustain a conviction when the proof corresponds to the elements of an offense set out in the charging instrument. People v. Rodriguez, supra.

Here, the indictment described the "thing of value" as "four hundred dollars or more but less than fifteen thousand dollars in U.S. currency." In detailing the offense, the indictment referred to the victim's $100 deposit and $1,000 down payment, as well as to the difference between the value of the car with 75,000 miles ($5,000-$6,500) and the value of the same car with 125,000 miles ($3,500). Thus, although at trial the People addressed only the victim's $1,100 payment, we conclude the elements did not change from indictment to trial, and a constructive amendment did not occur.

Moreover, defendant could not have been surprised by evidence concerning the down payment, which was set forth in the indictment, and he provides no record support for his contention that during pretrial proceedings, the People misled him concerning the thing of value at issue.

Defendant's alleged misrepresentations and the victim's alleged reliance primarily involved mileage and ownership, as similarly described in the indictment and developed at trial. The victim's payment to defendant of $1,100 for the car was not disputed. Hence, defendant had notice of the charge against him and sufficient opportunity adequately to prepare a defense.

Accordingly, we reject defendant's contention that a variance requires reversal.

II. Sufficiency of the Evidence

Defendant next argues his conviction is not supported by the evidence, which he contends established only potential civil liability based on a debtor-creditor relationship. We disagree.

When considering a challenge to the sufficiency of the evidence, we determine whether the evidence, when viewed as a whole and in the light most favorable to the prosecution, is sufficient to support the conclusion by a reasonable, prudent person that the defendant is guilty, beyond a reasonable doubt, of the offense charged. People v. Christian, 632 P.2d 1031 (Colo.1981). The jury should decide questions of witness credibility and the appropriate weight to be given conflicting evidence. Taylor v. People, 723 P.2d 131 (Colo.1986). Where reasonable minds could differ, the evidence is sufficient to sustain a conviction. People v. Fuller, 791 P.2d 702 (Colo.1990).

A. Misrepresentation and Reliance

We first reject defendant's contention that the evidence was insufficient to prove beyond a reasonable doubt that he made misrepresentations to the victim on which the victim relied.

Section 18-4-401(1), C.R.S.2002, provides in pertinent part: "A person commits theft when he knowingly obtains or exercises control over anything of value of another without authorization, or by threat or deception, and: (a) Intends to deprive the other person permanently of the use or benefit of the thing of value...."

Theft by deception requires proof that a defendant's misrepresentations to the victim caused the victim to part with something of value in reliance on the misrepresentations. People v. Norman, 703 P.2d 1261 (Colo.1985). A misrepresentation is a false representation of a past or present fact or a promise made with the intent not to perform. People v. Lewis, 710 P.2d 1110 (Colo.App.1985).

The victim testified that defendant told him the car belonged to defendant's father and the odometer reading of 75,002 miles was accurate. He further testified that he purchased the car because of these representations.

Defendant does not challenge the evidence showing the car had considerably more than 75,000 miles when purchased by the victim and had multiple prior owners that did not include his father.

Nonetheless, defendant argues the evidence of reliance was insufficient because, before purchase, the victim had seen documents showing the odometer reading was not accurate and identifying several prior owners, none of whom shared defendant's last name. However, the victim denied that he understood the odometer information on the prepurchase documents to be as defendant contends.

Accordingly, we conclude the evidence of defendant's misrepresentations and the victim's reliance, albeit disputed, was sufficient to sustain the jury's verdict.

B. Intent

We also reject defendant's contention that the evidence was insufficient to prove he intended permanently to deprive the victim of something of value.

The finder of fact may infer the intent necessary for theft by deception from a defendant's conduct and the surrounding circumstances. People v. Stewart, 739 P.2d 854 (Colo.1987). A defendant possesses the requisite intent when he or she obtains a victim's money or other property in a manner inconsistent with the victim's use and benefit. People v. Treat, 193 Colo. 570, 568 P.2d 473 (1977).

Defendant argues the People did not prove he intended to deprive the victim of his $1,100 down payment because in exchange defendant gave the victim possession of and title to the car. However, we have concluded the evidence of defendant's misrepresentations to the victim and of the victim's reliance was sufficient. From this evidence, a jury could infer defendant made these misrepresentations intending that the victim would purchase a car that did not meet his needs.

Nevertheless, defendant asserts that because it was undisputed he applied the down payment and the promissory note towards the purchase price, and the People did not show the down payment and note exceeded the actual value of the car, his use of the down payment was not "inconsistent with the owner's use and benefit," as required in People v. Erickson, 695 P.2d 804, 805 (Colo.App.1984). We are not persuaded.

Defendant's reliance on Erickson is misplaced. The division in Erickson reversed a contractor's conviction because the trial court excluded evidence that the contractor paid to subcontractors all money he obtained from the owner. The opinion does not indicate that the subcontractors' work differed from what the contractor had promised to the owner or that the contractor obtained the owner's money by deception.

Defendant's reliance on People v. McClure, 186 Colo. 274, 526 P.2d 1323 (1974), is similarly misplaced. That opinion also does not address whether the defendant obtained the victims' money by...