People v. Sharp

• Decision Date: 17 June 2004
• Docket Number: No. 02CA1262.,02CA1262.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Martha A. SHARP, Defendant-Appellant.
• Court: Colorado Court of Appeals

104 P.3d 252

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Martha A. SHARP, Defendant-Appellant.

No. 02CA1262.

Colorado Court of Appeals, Division III.

June 17, 2004.

Certiorari Denied December 20, 2004.

Ken Salazar, Attorney General, Melody Mirbaba, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Elisabeth Hunt White, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant. Opinion by Judge GRAHAM.

Defendant, Martha A. Sharp, appeals the judgment of conviction entered upon a jury verdict finding her guilty of theft and unauthorized use of a financial transaction device. We affirm.

In January 2001, defendant rented a hotel room by tendering $100 cash and a cancelled credit card. In February, when defendant's hotel bill reached $1,000, a hotel employee attempted to charge her credit card. Apparently, the hotel employee was not informed by the credit card company that the card had been cancelled. On March 9, 2001, a hotel employee attempted to charge defendant's credit card, but the card was rejected. The hotel employee asked defendant about the card and defendant told her to call an authorization telephone number, which was the number for a resort. The employee asked defendant to leave the premises, and defendant complied.

Several months later, defendant received hotel membership reward certificates from the parent chain of hotels. Defendant returned to the hotel and remained there until July, at which time she owed $1,179.38. A few days later, an employee alerted the hotel manager that defendant's account had reached the hotel's credit limit. Defendant attempted to use the hotel reward checks and credits to pay for her stay, but the hotel could not accept them because the credit could be used only at full service hotels. The manager asked defendant to leave and summoned police.

Defendant was charged with one count of theft and one count of unauthorized use of a financial transaction device arising out of events that occurred from June 28 to July 8, 2001. Defendant also was charged with one count of theft and another count of unauthorized use of a financial transaction device with respect to her hotel stay from January 25 to March 9, 2001.

In February 2002, defendant was convicted of the charges relating to January to March 2001 and was acquitted of charges relating to the June and July 2001 stay. Defendant was sentenced concurrently to seven years community corrections for theft and three years community corrections for unauthorized use of a financial transaction device.

I.

Defendant argues that by enacting the specific offense of defrauding an innkeeper, under § 12-44-102, C.R.S.2003, the General Assembly abrogated the prosecutor's general discretion to charge her with theft under § 18-4-401(1), C.R.S.2003. We are not persuaded.

Section 12-44-102 states:

Any person who, with intent to defraud, procures food or accommodations from any public establishment, without making payment therefor in accordance with his or her agreement with such public establishment, is guilty of a misdemeanor if the total amount due under such agreement is five hundred dollars or less and, upon conviction thereof, shall be punished by a fine of not more than five hundred dollars, or by imprisonment in the county jail for not more than ninety days, or by both such fine and imprisonment; and, if the amount due under such agreement is more than five hundred dollars, such person commits a class 6 felony and shall be punished as provided in section 18-1.3-401, C.R.S.

Under § 18-4-401(1)(b), C.R.S.2003, "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 ... [k]nowingly uses, conceals, or abandons the thing of value in such manner as to deprive the other person permanently of its use or benefit...." Theft is a class 4 felony "if the value of the thing involved is five hundred dollars or more but less than fifteen thousand dollars." Section 18-4-401(2)(c), C.R.S.2003.

"[E]nactment by the General Assembly of a specific criminal statute does not preclude prosecution under a general criminal statute unless a legislative intent is shown to limit prosecution to the special statute." People v. Bagby, 734 P.2d 1059, 1061 (Colo.1987). "[A] single transaction may give rise to the violation of more than one criminal statute." People v. Westrum, 624 P.2d 1302, 1303 (Colo.1981). Additionally, when a defendant's conduct could be punished under a general statute and a more specific statute, it is the prosecutor's function to determine under which statute to prosecute the alleged crime. See People v. Westrum, supra.

In People v. Tow, 992 P.2d 665 (Colo.App.1999), a division of this court established a test to determine whether the General Assembly intended to preclude prosecution under a general statute by enacting a specific statute. This test analyzes (1) whether the specific statute invokes the full extent of the state's police powers; (2) whether the specific statute is part of an act creating a comprehensive and thorough regulatory scheme to control all aspects of a substantive area; and (3) whether the specific statute carefully defines different types of offenses in detail. See People v. Stansberry, 83 P.3d 1188 (Colo.App.2003) (Tow factors applied in concluding that the defendant's equal protection rights were not violated where he was charged with forgery instead of displaying an altered motor vehicle registration number plate).

People v. Bagby, supra, upon which defendant relies, is distinguishable from the facts here. In Bagby, the defendant was charged with offering a false instrument for recording after he falsely completed a liquor license application. The same conduct was proscribed by the Colorado Liquor Code, violation of which was a misdemeanor. The supreme court held that the defendant could be prosecuted only for violating the Liquor Code, because the broad language and detail of the Liquor Code indicated legislative consideration of the licensing process, including appropriate sanctions. The Liquor Code defined types of offenses with references to specific provisions of the Colorado Criminal Code, indicating, within the Liquor Code, intent to delineate types of punishment available for violating its provisions.

Here, although defrauding an innkeeper is included under the rubric "Hotels and Food Service Establishments," the article is not a comprehensive regulatory scheme like the Liquor Code. The Liquor Code, by contrast, invokes the full extent of the state's police powers. Punishment for violation of the innkeeper statute is not delineated as in the Liquor Code.

Thus, we conclude that by enacting § 12-44-102, the General Assembly did not intend to preclude prosecution for theft. See, e.g., People v. James, 178 Colo. 401, 497 P.2d 1256 (1972)(statute regarding misuse of credit cards did not preclude prosecution from bringing forgery charges where the defendant engaged in conduct that could have been prosecuted under both statutes); Hucal v. People, 176 Colo. 529, 493 P.2d 23 (1971)(statute relating to embezzlement of public monies did not preclude prosecution of offense under general theft statute).

II.

We likewise reject defendant's contention that her right to equal protection was violated because defrauding an innkeeper and theft punish identical conduct, but defrauding an innkeeper carries a lesser penalty.

Under the Colorado Constitution, equal protection is violated if different statutes proscribe the same criminal conduct with disparate criminal sanctions. People v. Marcy, 628 P.2d 69 (Colo.1981); see also People v. Westrum, supra, 624 P.2d at 1303 ("[I]t is only where the same criminal conduct is proscribed in both statutes that equal protection problems arise. If reasonable distinctions can be drawn between the statutes, equal protection is not offended.").

As we noted in Part I, the crimes of theft and defrauding an innkeeper comprise different elements, and the punishment prescribed is different for each crime. Defrauding an innkeeper requires intent to defraud, whereas theft requires intent permanently to deprive a person of a thing of value.

Thus, reasonable distinctions can be drawn between the two crimes, and defendant's equal protection rights have not been violated.

III.

Defendant next contends that the prosecution did not, as required by § 18-4-402, present evidence that defendant "used ... the thing of value in such a manner as to permanently deprive the other person of its use or benefit." We disagree.

We review challenges to the sufficiency of the evidence to determine whether the evidence, when viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crime charged beyond a reasonable doubt. Kogan v. People, 756 P.2d 945 (Colo.1988); see also People v. McAfee, 104 P.3d 226, 2004 WL 583721 (Colo.App. No. 00CA2379, Mar. 25, 2004). The evidence must be both substantial and sufficient to support the determination of guilt beyond a reasonable doubt. An appellate court may not substitute its judgment for that of the jury and reweigh the evidence or the credibility of witnesses. Kogan v. People, supra.

"The intent to deprive another permanently of the use or benefit of his property is an essential element of [theft]." People v. Archuleta, 180 Colo. 156, 159, 503 P.2d 346, 347 (1972); see also People v. Burke, 37 Colo.App. 289, 549 P.2d 419 (1976)(intent at the time of taking permanently to deprive is the essential element of theft).

Intent to deprive another permanently of the use or benefit of a thing of value may be inferred from the defendant's conduct and the circumstances of the case. Such an intent is sufficiently established if the prosecution proves a knowing use by

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