People v. Felgar, No. 00CA1760.

• Decision Date: 05 July 2002
• Docket Number: No. 00CA1760.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carroll FELGAR, Defendant-Appellant.
• Court: Colorado Court of Appeals

58 P.3d 1122

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carroll FELGAR, Defendant-Appellant.

No. 00CA1760.

Colorado Court of Appeals, Div. III.

July 5, 2002.

Rehearing Denied October 24, 2002.

Ken Salazar, Attorney General, Peter J. Cannici, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Ann M. Aber, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge NIETO.

Defendant, Carroll Felgar, appeals the judgment of conviction entered upon jury verdicts finding him guilty of two counts of fraud by check and one count of acting as a small-volume dealer of livestock without a license. We affirm in part and reverse in part.

Defendant was in the business of buying and selling horses. He would pay for his purchases with a check drawn on his personal account. In July 1999, he wrote two checks to a consignment firm in payment for a horse and equipment. The checks, although presented twice for payment, did not clear the bank because of insufficient funds in defendant's account. At trial, defendant admitted writing the checks, but denied that he had intended to defraud. He further testified that he did not realize that a license was required to sell livestock.

I.

Defendant contends that the trial court erred in its instructions to the jury on the fraud by check charges. He does not challenge the constitutionality of § 18-5-205(8), C.R.S.2001, but rather argues that the trial court, relying on that statute, erred in instructing the jury that it could presume that he had knowledge of insufficient funds in his account if there were insufficient funds to pay the checks within thirty days after they were issued. He asserts that this instruction created an improper mandatory presumption, and therefore his convictions for fraud by check must be vacated. We agree.

The prosecution bears the burden of establishing every essential element of an alleged offense beyond a reasonable doubt. Griego v. People, 19 P.3d 1 (Colo.2001).

A mandatory presumption shifts to the party against whom it operates either the burden of producing evidence or the burden of persuasion, and if that party fails to satisfy this burden, the trier of fact must accept the presumed fact provided it finds the predicate fact. In contrast, a permissive presumption, which is also described as a permissive inference, does not shift any burden to the opposing party, but instead allows the trier of fact to find the inferred fact from the proof of the predicate fact. In criminal cases, to avoid issues of constitutional dimension, presumptions are ordinarily construed to raise only permissive inferences. People in re R.M.D., 829 P.2d 852 (Colo.1992). A permissive inference or presumption can pass constitutional muster, but a mandatory or mandatory rebuttable presumption violates due process of law. Jolly v. People, 742 P.2d 891 (Colo. 1987).

Because of the serious constitutional implications in the use of presumptions, courts generally construe criminal statutes as raising permissive inferences only. Such construction complies with the basic principle that if a statute will bear different interpretations, only one of which is constitutional, it should be construed in accordance with the constitutional interpretation. Jolly v. People, supra.

Here, the trial court's elemental instruction to the jury concerning fraud by check included the element: "Knowing [he] had insufficient funds with [the bank]." The court also gave the following instruction:

SPECIAL RULE

The prosecutor must establish the required culpable mental state. However, for the purposes of this offense, the issuer's knowledge of insufficient funds is presumed, except in the case of a postdated check, if he has insufficient funds upon deposit with the bank to pay the check on presentation within thirty days after issue.

The special rule instruction tracks part of the language of § 18-5-205(8), which provides:

This section does not relieve the prosecution from the necessity of establishing the required culpable mental state. However, for purposes of this section, the issuer's knowledge of insufficient funds is presumed, except in the case of a postdated check or order, if: ...

(b) He has insufficient funds upon deposit with the bank or other drawee to pay the check or order, on presentation within thirty days after issue.

An instruction that tracks the language of a statute is ordinarily sufficient. People v. James, 40 P.3d 36 (Colo.App.2001). However, instructing the jury in the precise language of § 18-5-205(8)(b) fails to convey the meaning of the statute when, as explained below, it is properly construed as creating a permissive inference.

It is presumed that, in enacting legislation, the General Assembly intends statutes to conform to federal and state constitutional requirements. Section 2-4-201, C.R.S.2001. If a statute is susceptible of both constitutional and unconstitutional interpretation, we must adopt a constitutional construction if it is reasonably consistent with legislative intent. People in re R.M.D., supra.

We must construe statutes to give effect to legislative intent and interpret them as a whole so as to give effect to all parts. State v. Nieto, 993 P.2d 493 (Colo.2000).

Reading § 18-5-205(8) as a whole, it is clear that the General Assembly did not intend to create a mandatory presumption. The first sentence in the section states that it does not relieve the prosecution of its burden of proof. This sentence would be rendered meaningless if the rest of the section created a mandatory presumption that relieved the prosecution of part of its burden of proof.

Therefore, we construe § 18-5-205(8) to create a permissive inference that a defendant has knowledge of insufficient funds if he has insufficient funds in the bank to pay a check that is presented for payment within thirty days after issue.

Here, the special rule instruction was defective because it did not make clear that evidence of defendant's insufficient funds in the bank created only an allowable inference that the jury could use, but was not required to use, in determining whether the prosecutor had proved the "knowing" element of the fraud by check statute. The jury could have viewed the instruction as a mandatory presumption or a mandatory rebuttable presumption. In either case, it violates due process of law by shifting the burden of producing evidence or the burden of persuasion on an essential element of the crime. See Jolly v. People, supra

(holding that instruction that stated a permissible inference as a mandatory presumption constituted reversible error); see also CJI-Crim. 37:02 (Supp.1993)(a permissible inference of knowledge instruction based on the statute addressed in Jolly).

The special rule instruction, while not part of the elemental instruction, had the effect of removing the "knowing" element by creating a mandatory presumption that defendant knew he had insufficient funds to pay the check. Such an instruction is equivalent to misdescribing or omitting an element, Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), and, as stated above, violates due process.

An instruction that omits or misdescribes an element is...