People v. Randell

• Decision Date: 02 August 2012
• Docket Number: No. 09CA2396.,09CA2396.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Hysear Don RANDELL, Defendant–Appellant.
• Court: Colorado Court of Appeals

297 P.3d 989

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Hysear Don RANDELL, Defendant–Appellant.

No. 09CA2396.

Colorado Court of Appeals, Div. II.

July 5, 2012.

Rehearing Denied Aug. 2, 2012.

John W. Suthers, Attorney General, John D. Seidel, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Walta LLC, Mark G. Walta, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge CASEBOLT.

¶ 1 Defendant, Hysear Don Randell, appeals the judgment of conviction entered on jury verdicts finding him guilty of multiple felonies in connection with a scheme to obtain fraudulent tax refunds and credits from the Colorado Department of Revenue (CDOR). He asserts that his convictions for twenty-six counts of theft by receiving must merge into four convictions under double jeopardy principles; that there was insufficient evidence to support his convictions for forgery, conspiracy to commit forgery, conspiracy to commit computer crime, and violation of the Colorado Organized Crime Control Act (COCCA); and that the prosecution made improper statements during closing argument.

¶ 2 We conclude that the aggregation provision of former section 18–4–410 (ch. 215, sec.11, § 18–4–410(7), 1999 Colo. Sess. Laws 797), in effect at the time of defendant's offenses, requires the theft by receiving counts to merge into five convictions. Therefore, we merge the twenty-six theft by receiving convictions into five and remand for resentencing and correction of the mittimus. We reject defendant's other contentions and affirm the judgment in all other respects.

I. Background

¶ 3 Defendant, his girlfriend, and his wife diverted more than $11 million in fraudulent income tax refunds and credits from the CDOR to bank accounts and business entities controlled by defendant. The girlfriend, a supervisor in the CDOR Income Tax Section, devised several methods of generating fraudulent refunds and credits or transferring legitimate but unclaimed amounts from other taxpayers to defendant and his businesses.

¶ 4 As pertinent here, each method involved the girlfriend exploiting her access to the CDOR computer system to issue facially valid, but unauthorized, direct deposits or paper warrants in amounts ranging from several hundred to several hundred thousand dollars. Defendant endorsed and deposited some of the warrants into personal bank accounts and channeled the rest through more than a dozen entities created with the help of the girlfriend. Although several of the entities conducted legitimate businesses (a clothing store and an entertainment production company), they served primarily to distribute the proceeds of the fraud without arousing the suspicions of banking institutions.

¶ 5 A grand jury returned an indictment charging defendant with a pattern of racketeering activity in violation of COCCA, two counts each of computer crime and conspiracy to commit computer crime, seventeen counts of forgery, conspiracy to commit forgery, twenty-six counts of theft by receiving, conspiracy to commit theft by receiving, theft, attempted theft, conspiracy to commit theft, and conspiracy to commit embezzlement of public property, all occurring between August 1, 2005 and July 25, 2007. The indictment named the girlfriend and the wife as co-conspirators. The girlfriend, who had agreed to plead guilty to violating COCCA, testified against defendant at trial.

¶ 6 Following trial, a jury found defendant guilty on all charges except the substantive computer crime counts. This appeal followed.

II. Theft by Receiving

¶ 7 Defendant asserts that he cannot be convicted of twenty-six counts of theft by receiving under ch. 215, sec. 11, § 18–4–410(7), 1999 Colo. Sess. Laws 797, because that statute required all thefts within a six-month period to be prosecuted as a single felony. He contends that more than four convictions for acts spanning approximately twenty months would result in multiple punishments for the same crime, violating double jeopardy principles. We agree that the relevant version of the statute requires multiple thefts by receiving to be aggregated into six-month units of prosecution; however, we conclude that defendant may stand convicted of five counts, not four.

A. Standard of Review

¶ 8 The parties disagree concerning the appropriate standard of review, although both agree that defendant did not object in the trial court to the manner in which the theft by receiving counts were charged or sentenced. Defendant asserts that our review is de novo, but the People assert we should review only for plain error. We need not resolve this disagreement, however, because the result would be the same under either standard.

B. Law

¶ 9 “Multiplicity is the charging of the same offense in several counts, culminating in multiple punishments.” People v. Vigil, 251 P.3d 442, 449 (Colo.App.2010) (quoting Quintano v. People, 105 P.3d 585, 589 (Colo.2005)). Multiplicitous convictions cannot stand because they violate the constitutional prohibition against double jeopardy. Id. (citing Woellhaf v. People, 105 P.3d 209, 214 (Colo.2005)).

¶ 10 In Roberts v. People, 203 P.3d 513 (Colo.2009), the supreme court construed a previous version of section 18–4–401 defining the crime of theft in Colorado. The statute then provided:

When a person commits theft twice or more within a period of six months without having been placed in jeopardy for the prior offense or offenses, and the aggregate value of the things involved is five hundred dollars or more but less than fifteen thousand dollars, it is a class 4 felony; however, if the aggregate value of the things involved is fifteen thousand dollars or more, it is a class 3 felony.

Ch. 314, sec. 10, § 18–4–401(4), 1998 Colo. Sess. Laws 1437.

¶ 11 The defendant in Roberts stole more than $27,000 from his employer over a period of twenty-seven months. Observing that “[s]ection 18–4–401(4) treats as a single theft all thefts committed by the same person in a six-month period,” Roberts, 203 P.3d at 517–18, the court concluded:

There can be little doubt that this language not only permits, but in fact requires, all thefts committed by the same person within a six-month period (except any for which jeopardy had already attached before he committed the others), to be joined and prosecuted as a single felony. On its face, this provision speaks to the scope of the crime the legislature intended to create—what we and the United States Supreme Court have previously referred to as the “unit of prosecution.”

Id. at 516.

¶ 12 Within several months of the Roberts decision, the General Assembly responded to it with a legislative declaration that its intent “was to allow, but not require, aggregation of multiple violations of [theft] statutes, committed within a period of six months, into a single offense for the purposes of determining the grade of offense.” Ch. 244, sec. 1(a), § 18–4–401(4)(a), 2009 Colo. Sess. Laws 1099. Accordingly, the General Assembly amended the statute to provide:

When a person commits theft twice or more within a period of six months, two or more of the thefts may be aggregated and charged in a single count, in which event the thefts so aggregated and charged shall constitute a single offense....

§ 18–4–401(4)(a), C.R.S.2011 (emphasis added). Notably, at the same time the legislature also amended the theft by receiving statute to allow—but not require—all such thefts within a six-month period to be aggregated and charged as a single offense. See§ 18–4–410(7), C.R.S.2011.

¶ 13 Nevertheless, the Vigil division applied the six-month unit of prosecution set forth in Roberts to offenses arising before the 2009 amendments, concluding that two of the defendant's five theft convictions were multiplicitous and had to be merged. Vigil, 251 P.3d at 450–51. While acknowledging that “the legislature disavowed any intent to have created a mandatory unit of prosecution,” the division declined to apply that declaration retroactively because “[a] legislative statement ‘cannot control the interpretation of an earlier enacted statute.’ ” Id. at 449 (quoting O'Gilvie v. United States, 519 U.S. 79, 90, 117 S.Ct. 452, 136 L.Ed.2d 454 (1996)).

¶ 14 The supreme court applied similar reasoning in Lucero v. People, 2012 CO 7, ¶ 17, 272 P.3d 1063. The court concluded as a matter of law that “[a]s in Roberts, the statute in effect at the time of Lucero's acts provided that multiple thefts within a six[-]month period must be merged into a single theft conviction.” Id. at ¶ 17.

C. Application

1. Merits

¶ 15 Here, defendant was convicted of twenty-six counts of theft by receiving under section 18–4–410, based on acts occurring between August 29, 2005, and April 12, 2007. Although the People note that no Colorado case has extended Roberts to theft by receiving, both parties acknowledge that the relevant language of section 18–4–410 was substantively identical to section 18–4–401(4) at the time of defendant's offenses. See ch. 215, sec. 11, § 18–4–410(7), 1999 Colo. Sess. Laws 797 (“When a person commits theft by receiving twice or more within a period of six months without having been placed in jeopardy for the prior offenses and the aggregate value of the things involved is five hundred dollars or more but less than fifteen thousand dollars, it is a class 4 felony; however, if the aggregate value of the things involved is fifteen thousand dollars or more, it is a class 3 felony.”). “[A] term appearing in several places in a statutory text is generally read the same way each time it appears.” Cloer v. Sec'y of Health & Human Services, 654 F.3d 1322, 1331 (Fed.Cir.2011) (quoting Ratzlaf v. United States, 510 U.S. 135, 143, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994)); see also Crandall v. City & County of Denver, 238 P.3d 659, 662 (Colo.2010) (“Because the relevant language in both statutes is identical, we conduct one analysis.”).

¶ 16 Notwithstanding the common language in both statutes, the People contend that the...