People v. Mason, 81SA48

• Citation: 643 P.2d 745
• Decision Date: 05 April 1982
• Docket Number: No. 81SA48,81SA48
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dennis Eugene MASON, Defendant-Appellant.
• Court: Supreme Court of Colorado

Page 745

643 P.2d 745

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dennis Eugene MASON, Defendant-Appellant.

No. 81SA48.

Supreme Court of Colorado, En Banc.

April 5, 1982.

Rehearing Denied April 26, 1982.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Nathan B. Coats, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Suzanne Saunders, Elizabeth A. Joyce, Deputy State Public Defenders, Denver, for defendant-appellant.

QUINN, Justice.

The defendant, Dennis Eugene Mason, appeals his conviction of fraud by check, section 18-5-205, C.R.S.1973 (1978 Repl.Vol. 8), and his adjudication and punishment as a habitual criminal, section 16-13-101(1), C.R.S.1973 (1981 Supp.). He challenges his conviction of fraud by check on the grounds that the trial court erred in admitting similar transaction evidence, that the court failed to instruct the jury on the definition of "knowing" as an element of fraud by check, and that the prosecutor made prejudicial comments during his summation to the jury. The defendant also claims that the non-bifurcated statutory scheme for the trial of habitual criminal charges, which existed at the time of the offense in question, ¹ unduly burdens the constitutional right of an accused to testify in his own defense on the substantive charge. We affirm the defendant's conviction of fraud by check. However, resting our decision on the particular facts of this case, we reverse that part of the judgment relating to habitual criminality. We conclude that the trial court acted contrary to the statutory procedures mandated for the trial of habitual criminal counts when it adjudicated and sentenced the defendant as a habitual criminal without ever having submitted the habitual criminal counts to the jury. ²

I.

Count one of the information alleged that between January 30 and February 28, 1979, the defendant, with the intent to defraud, issued two or more checks within a 30-day period to Safeway Stores, Inc., in the amount of $200 or more, knowing that he had insufficient funds with the drawee bank. Section 18-5-205(2) and (3)(c), C.R.S.1973 (1978 Repl.Vol. 8). ³ Counts 2 and 3, the habitual criminal charges, alleged that the defendant was previously convicted of voluntary manslaughter in West Virginia on April 10, 1975, and larceny of an automobile in Oklahoma on January 15, 1970. Section 16-13-103(2), C.R.S.1973 (1981 Supp.). ⁴ After entering a plea of not guilty to all counts the defendant filed a motion to prohibit the prosecution from eliciting his prior felony convictions on cross-examination in the event he elected to testify at trial in defense of the fraud by check charge. The court denied the motion and the case proceeded to trial.

The prosecution's evidence concerning the fraud by check charge related to three checks written by the defendant in January and February 1979 in the city of Colorado Springs. In January 1977 the defendant and John Puylara had formed a partnership, Mason and Associates, to perform roofing and siding work. The checks were written on the partnership account at the Bank of Fountain Valley in Security, Colorado. Puylara kept the books and records of the business until January 1979, when he turned them over to the defendant with a checking account balance of approximately $100.

On January 26, 1979, the bank sent a written notice to Mason and Associates that its account was closed due to a deficit balance of $117.56. On January 30, 1979, the defendant wrote a "payroll" check for $293.50 to one of his employees, Greg Domijan, who then cashed it at a Safeway store. ⁵ Domijan returned $193.50 to the defendant and kept $100 as payment for furniture he had sold to the defendant. On the afternoon of February 2, 1979, the defendant wrote a check for $300 to the same Safeway store where the first check had been cashed. A cashier at the store, Jane Moberly, had been living with the defendant at this time and on the morning of February 2 had issued a Safeway check cashing card to the defendant. Moberly approved the $300 check for payment and gave the defendant $300 from Safeway funds. Both the January 30 check and the February 2 check were dishonored by the drawee bank and returned to Safeway with the notation "account closed." Upon being confronted by Jane Moberly about the unpaid checks, the defendant told her that he would transfer funds from his savings account to the checking account in order to cover the check. The defendant, however, had no savings account at the Bank of Fountain Valley. On February 5, 1979, the defendant wrote another check in blank, allegedly for "labor," and gave it to Greg Domijan who again cashed it at the same Safeway Store. Domijan returned $275 to the defendant and kept $25 for himself. This last check also was dishonored by the bank and returned to Safeway. The defendant was arrested on February 28, 1979, for fraud by check. After a Miranda advisement the defendant stated that he wrote the checks but believed that his partner had made a deposit to cover the checks from money located in the glove compartment of the defendant's automobile.

Over the defendant's objection the court admitted similar transaction evidence from several witnesses who described five other checks written by the defendant between January 24 and February 10, 1979. These checks totalled more than $900 and were returned unpaid with the notation "account closed." In admitting this evidence the court instructed the jury that it was to be considered only for the limited purpose of showing plan, scheme, design and motive.

At the conclusion of the prosecution's case the defendant renewed his motion to prohibit the prosecution from examining him on his prior felony convictions in the event he elected to testify. The court denied the motion. The defendant testified and admitted on direct examination his two prior felony convictions. His defense consisted essentially of his alleged lack of knowledge that there were insufficient funds in the account when he wrote the checks. He also testified that in early February 1979 he gave his partner, John Puylara, $650 for deposit in the account and that he anticipated substantial income from various jobs. This testimony was refuted by various prosecution witnesses.

At the conclusion of the evidence the court instructed the jury, in pertinent part, that the elements of fraud by check are:

"(1) with specific intent to defraud,

(2) defendant issues two or more checks within a 30-day period in the State of Colorado totalling in the aggregate $200 or more,

(3) knowing that he has insufficient funds with the drawee to pay the checks."

In a separate instruction the jury was informed that:

"Specific intent is a state of mind voluntarily and willfully to do or perform an act which will effect a certain result. Such an act must not be the result of accident or other innocent reason. The Defendant's conscious object must be to cause a certain result."

Consistent with the defendant's theory of the case, which was a lack of specific intent to defraud, the court instructed the jury that if it found the defendant reasonably believed there were sufficient funds in his account at the time the checks were presented for payment, then it must find him not guilty. Although the term "knowing" was not defined in any of the instructions, the defendant neither tendered an instruction on "knowing" nor objected to any of the instructions given by the court. No instructions or verdicts were submitted to the jury on the habitual criminal counts.

During a rather lengthy summation the prosecutor discussed the various instructions submitted to the jury and, in contrasting the defendant's extrajudicial statements with his trial testimony, the prosecutor made passing references to him as a "con man." Defense counsel made no contemporaneous objection to these remarks. Upon the return of a guilty verdict to fraud by check, the court discharged the jury from further service in the case. The court then entered a finding that the defendant admitted during his trial testimony the two prior felony convictions on which the habitual criminal counts were based and adjudicated him a habitual criminal. ⁶ After denying the defendant's motion for a new trial, ⁷ the court imposed a sentence of 4 to 10 years for fraud by check and a concurrent sentence of 25 to 28 years under the habitual criminal act.

We will first consider the defendant's claims relating to his fraud by check conviction and then the validity of his adjudication and sentence as a habitual criminal.

II.

A.

The defendant raises three arguments relating to the similar transaction evidence admitted during the trial: the alleged irrelevancy of this evidence; a claim of insufficient foundation for the admission of one of the similar transaction checks; and an assertion that the trial court improperly instructed the jury on the similar transaction evidence.

With respect to the defendant's claim of irrelevancy, there is no dispute that as a general rule evidence of other criminal acts is inadmissible because of its prejudicial effect. See, e.g., People v. Honey, 198 Colo. 64, 596 P.2d 751 (1979). However, a limited and well-defined exception is recognized in those situations where a similar act tends to establish the defendant's criminal culpability for the crime charged by showing that it was part of a continuing scheme and, hence, not the result of a mistake. See, e.g., People v. Christian, Colo., 632 P.2d 1031 (1981); Van Pelt v. People, 173 Colo. 201, 476 P.2d 999 (1970). In this case three of the five similar transaction checks were written within the time frame encompassed by count one of the information and two others were written just six days before that period of time. All the checks were drawn on the same account and were issued in situations not materially different from the facts...