People v. Treat
| Decision Date | 06 September 1977 |
| Docket Number | No. 27180,27180 |
| Citation | 193 Colo. 570,568 P.2d 473 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Lennox Byron TREAT, Defendant-Appellee. |
| Court | Colorado Supreme Court |
Nolan L. Brown, Dist. Atty., T. W. Norman, Deputy Dist. Atty., Golden, for plaintiff-appellant.
Rogers, Dickerson & Kottke, Richard W. Dickerson, Boulder, for defendant-appellee.
The defendant Treat was the general manager and moving force behind Treat Recreational Vehicle Center (the Center), a now defunct corporation which sold and leased recreational vehicles. Although Treat's salary was $1,800 per month, during a ten-month period he received over $36,000 from the Center $18,000 more than his salary. He left the state, but was eventually apprehended in Kansas City and charged with five counts of felony theft (section 18-4-401, C.R.S.1973) and one count of failure to deliver title (section 42-6-109, C.R.S.1973). After a lengthy preliminary hearing, the trial court dismissed all counts against Treat. The District Attorney appeals. We affirm in part and reverse in part.
We emphasize at the outset that the issue here is whether dismissal of the charges after a preliminary hearing was proper. The preliminary hearing is a screening device, designed to determine whether probable cause exists to support charges that an accused person committed a particular crime or crimes. Maestas v. District Court, Colo., 541 P.2d 889 (1975); Crim.P. 7(h). The evidence presented must be viewed in a light most favorable to the prosecution; evidence sufficient to support a conviction is not necessary at this stage of the proceedings. See Hunter v. District Court, Colo., 543 P.2d 1265 (1975); People v. District Court, 186 Colo. 136, 526 P.2d 289 (1974).
Therefore, our present task is to determine, as to each crime charged, whether the evidence adduced at the preliminary hearing was sufficient to support a finding of probable cause. The probable cause standard requires evidence sufficient to induce a person of ordinary prudence and caution conscientiously to entertain a reasonable belief that the defendant may have committed the crimes charged. Coleman v. Burnett, 155 U.S.App.D.C. 302, 477 F.2d 1187, 1202 (1973); cf. Glass v. People, 177 Colo. 267, 493 P.2d 1347 (1972) (). Because the six counts against Treat arose from four separate transactions, we shall consider each transaction separately.
Two counts of felony theft and the count of failure to deliver title arose out of the sale of a trailer owned by Delbert Withers. Treat had suggested to Withers that the Center offer the trailer for sale on a consignment basis. Both parties agreed that $4,500 would be a fair price and that Withers would receive that full amount, the Center to receive any excess of the price for which it could sell the trailer over $4,500. McGinley, an employee of the Center, drafted a contract to that effect which was signed by Withers and McGinley.
Kayton, a prospective buyer, offered $5,100 for the trailer. McGinley, acting under Treat's instructions, told Withers that he had a buyer willing to pay only $4,450 and that the Center would require $150 more for its services in making the sale. (This scheme was known as the "grind.") Withers then agreed to reduce his share to $4,300.
Kayton paid for and took possession of the trailer, but Withers was not paid by the Center, and therefore retained the certificate of title. When Withers threatened a civil action for the amount due, Treat signed a bank draft to him, but it was dishonored. When Withers called to demand his money, Treat directed McGinley to stall Withers and reassure him that payment was forthcoming.
Based on this evidence Treat was charged with one count of unlawfully taking Withers' trailer, a second count of unlawfully taking Kayton's money, and a third count of failing to deliver the trailer's title to Kayton. The dismissal of Count Three is apparently not contested; we shall discuss the first two counts in order.
Colorado's theft statute, section 18-4-401, C.R.S.1973, provides in pertinent part:
"(1) 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; or
(b) Knowingly uses, conceals, or abandons the thing of value in such manner as to deprive the other person permanently of its use or benefit; or
(c) Uses, conceals, or abandons the thing of value intending that such use, concealment, or abandonment will deprive the other person permanently of its use and benefit . . . ." (Emphasis added).
Thus, for our purposes here, the requisite elements are knowing control, either without authorization or by threat or deception, and one of the three types of intent. We emphasize this point because the record indicates that the trial court may have overlooked or ignored paragraph (1)(b), which provides that a sufficient intent is established if the prosecution proves a knowing use inconsistent with the owner's permanent use and benefit. A specific intent to deprive is only one of three alternative intents established by the statute, and is not essential in every case.
The trial court dismissed Count One because it found that Treat's control over Withers' trailer was authorized, that no threats or deception were shown, and, therefore, that there was not probable cause to believe that Treat had committed a theft. We disagree.
Treat's initial control over the trailer clearly was authorized. However, the record contains ample evidence from which a jury could reasonably infer that his exercise of that control continued to be authorized only because he deceived Withers into believing that a legitimate sale was being consummated and that Withers would receive his money. Whether or not control was retained only by deception is, of course, a fact question, but such a fact finding could be supported by the evidence presented at the preliminary hearing. That control need not be unauthorized from the outset is made clear by the language of section 18-4-401. See also Poe v. People, 163 Colo. 20, 428 P.2d 77 (1967); McGuire v. People, 83 Colo. 154, 262 P. 1015 (1928).
There also remains the fact question whether Treat intended to deprive Withers of his trailer permanently, or knowingly used the trailer in such manner as to deprive Withers of it, but we cannot say that the evidence presented at the preliminary hearing could not support a fact-finder's reasonable belief that Treat had the requisite intent. Such an intent could be inferred, for example, from Treat's use of the "stall" to put Withers off until Treat could leave the state, or from his payment with a worthless bank draft. See Compton v. People, 89 Colo. 407, 3 P.2d 418 (1931). At the preliminary hearing stage, all that is required is evidence sufficient to justify a reasonable jury or judge trying the facts in finding each element of the crime charged.
It is not cause for dismissal of any of the theft charges that Treat may not have participated directly in every act constituting the thefts. There is ample evidence in the record including Treat's own statement that Treat was the "moving force" behind the actions of the Center and its employees. Specifically, regarding Count One, testimony indicated that the "grind" scheme was Treat's idea. And when Withers sought payment it was Treat who expressly ordered that he be "stalled." Given his intimate involvement with all facets of the Center's operations, Treat may be guilty as a principal under section 18-1-602, C.R.S.1973 (complicity), or section 18-1-607, C.R.S.1973 (), or both. See also Hartson v. People, 125 Colo. 1, 240 P.2d 907 (1951).
Nor is it essential, as the defendant contends, that Treat have transferred the money into an account solely under his own control, rather than the corporate account. Under the theft statute and prior Colorado cases, it is sufficient that the intended use of the money be inconsistent with the owner's use or benefit. In other words, it is only required that the defendant knowingly exercise unauthorized control over the property, with one of the requisite intents; it is not necessary that he maintain absolute control for his own personal use. Hartson v. People, supra.
Given the substantial evidence that Treat in fact controlled the Center's entire operation, plus the additional circumstantial evidence that he received money from the Center vastly in excess of his salary, there is a sufficient basis to require that he be held for trial on Count One.
The trial court dismissed Count Two because it found...
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