People v. Warner

• Decision Date: 10 December 1990
• Docket Number: No. 90SC13,90SC13
• Citation: 801 P.2d 1187
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Ernest L. WARNER, Respondent.
• Court: Colorado Supreme Court

Page 1187

801 P.2d 1187

The PEOPLE of the State of Colorado, Petitioner, v. Ernest L. WARNER, Respondent.

No. 90SC13.

Supreme Court of Colorado,

En Banc.

Dec. 10, 1990.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Donna Skinner Reed, Sp. Asst. Atty. Gen., Golden, for petitioner.

David F. Vela, State Public Defender, Janet Fullmer Youtz, Deputy State Public Defender, Denver, for respondent.

Justice VOLLACK delivered the Opinion of the Court.

We granted certiorari in this case to consider whether the crime of theft from the person of another, § 18-4-401(5), 8B C.R.S. (1986), includes a theft accomplished by a series of short-change transactions between the defendant and a store cashier. The court of appeals held that the evidence failed to establish a theft from the person of another. The court reversed the defendant's class 5 felony conviction under section 18-4-401(5), and remanded the case back to the trial court for entry of a class 2 misdemeanor conviction under section 18-4-401(2)(b). People v. Warner, 790 P.2d 866 (Colo.App.1989). We affirm the judgment of the court of appeals.

I.

On the afternoon of February 23, 1987, the defendant, Ernest Warner (Warner), and another man entered the J.R. Turtles Frozen Yogurt store. Warner purchased a bag of cookies from the store cashier, paying for his $1.06 purchase with a ten-dollar bill. After the cashier gave him change, Warner asked her to make change several more times for other ten- and twenty-dollar bills. Meanwhile, Warner's companion distracted the other customers in the store by engaging them in conversation.

Confused by the rapid series of money transactions, the cashier finally refused to make further change. After Warner and his companion left the store, the cashier counted the money in the cash register and discovered that it was short by $52. The cashier then reported the shortage to the police and later identified Warner from among three suspects as the person who had initiated the money transactions with her. Warner was subsequently charged with one count of theft from the person of another, a class 5 felony, in violation of section 18-4-401(5), 8B C.R.S. (1986). Following a one-day jury trial, Warner was convicted and sentenced to a three-year prison term.

Warner appealed his felony conviction for theft from the person of another, contending that his act of shortchanging the cashier amounted only to misdemeanor theft by deception as defined by subsections 18-4-401(1) and (2)(b). The court of appeals agreed, summarily concluding that the General Assembly's objective would not be furthered by convicting Warner for theft from the person of another under section 18-4-401(5).

II.

The People argue that the language of Colorado's theft statute allows a theft accomplished by deception, § 18-4-401(1), to be elevated to theft from the person of another, § 18-4-401(5), under the circumstances involved in this case. Because the deceptive means used by Warner to obtain the money involved hand-to-hand transactions with the store cashier, the People contend that Warner's crime was theft from the person of another, requiring a class 5 felony conviction, regardless of the amount taken.

Contrary to the People's argument, Warner contends that the "theft from the person" provision was not meant to cover the deceptive short-change transaction involved in this case. Rather, Warner interprets theft from the person of another to cover such crimes as pickpocketing, when the property is taken from the person without the person's knowledge and where force, threat, or intimidation are lacking.

A.

Given these conflicting, yet plausible, interpretations of the "theft from the person" provision in section 18-4-401(5), we must review the intended scope of subsection (5) as distinguished from theft by deception under section 18-4-401(1).

The relevant provisions of Colorado's current theft statute, § 18-4-401, 8B C.R.S. (1986), are as follows:

(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;

....

(5) Theft from the person of another by means other than the use of force, threat, or intimidation is a class 5 felony without regard to the value of the thing taken.

(Emphasis added). Theft of a thing valued at $50 or more but less than $300 is a class 2 misdemeanor. § 18-4-401(2)(b).

We first consider what crimes constitute theft by deception as set forth in subsection (1), beginning with the pertinent history behind this provision. In 1967, the Colorado General Assembly enacted its first version of a consolidated theft statute which incorporated the various common-law crimes against property into a general theft provision. See Act approved May 30, 1967, ch. 312, sec. 1, 1967 Colo.Sess.Laws 573, 573-74. By merging the crimes of larceny, embezzlement, false pretenses and confidence games, the General Assembly sought to remove the distinctions and technicalities that previously existed in the pleading and proof of such crimes. The consolidated theft statute thus prevents offenders from evading punishment on the technicality of being charged with violating the wrong law. See § 18-4-403, 8B C.R.S. (1986); Maes v. People, 178 Colo. 46, 48, 494 P.2d 1290, 1291 (1972). While the technical distinctions of the various crimes were eliminated through consolidation, much of the substantive elements for the offenses were retained. Theft by deception as defined in section 18-4-401(1) essentially replaced the former crime of obtaining goods by false pretenses. ¹ See Norman v. People, 178 Colo. 190, 194, 496 P.2d 1029, 1031 (1972); C. Torcia, Wharton's Criminal Law § 448, at 515 (1980).

Interpreting Colorado's current "theft by deception" provision, the court in People v. Terranova, 38 Colo.App. 476, 563 P.2d 363 (1976), set forth the applicable standard for proving that crime:

[T]he crime of theft by deception requires proof that misrepresentations caused the victim to part with something of value and that the victim relied upon the swindler's misrepresentations.

Id. at 483, 563 P.2d at 368. See also People v. Ferrell, 197 Colo. 253, 255, 591 P.2d 1038, 1039 (1979) (evidence failed to support defendant's conviction for theft by deception where store personnel did not rely on defendant's alleged deception in giving false name and address on credit application); People v. Norman, 703 P.2d 1261, 1268 (Colo.1985) (evidence failed to support defendant's conviction for theft by deception where victim did not rely on defendant's misrepresentations in purchasing property); People v. Todd, 189 Colo. 117, 538 P.2d 433 (1975) (the prosecution established theft by deception where defendants bought a sofa with a bad check, canceled the purchase, and wrongfully obtained a refund).

We next consider the parameters for theft from the person of another under section 18-4-401(5), which is a matter this court has never before addressed. In construing a statute, our primary task is to ascertain and give effect to the intent of the legislature. E.g., Charnes v. Boom, 766 P.2d 665, 667 (Colo.1988); People v. Guenther, 740 P.2d 971, 975 (Colo.1987). To determine legislative intent, we look first to the language of the statute. E.g., Griffin v. S.W. Devanney & Co., 775 P.2d 555, 559 (Colo.1989); People v. District Court, 713 P.2d 918, 921 (Colo.1986). Where the statutory language is clear and unambiguous there is no need to resort to the interpretive rules of statutory construction. E.g., Griffin, 775 P.2d at 559. If, however, the statute is ambiguous, we may determine the intent of the General Assembly by considering the statute's legislative history, the state of the law prior to the legislative enactment, the problem addressed by the legislation, and the statutory remedy to cure the problem. See § 2-4-203, 1B C.R.S. (1980); Charnes, 766 P.2d at 667. Finally, a statute must be read and construed as a whole so as to give consistent, harmonious, and sensible effect to all its parts. E.g., Griffin, 775 P.2d at 559.

Because the differing but logical interpretations of the "theft from the person" provision create an ambiguity, we look to the legislative history of subsection (5) to ascertain the purpose for which it was enacted.

The first statute providing a greater penalty for larceny from the person than for simple larceny originated in England with the Statute of 8 Elizabeth, passed in the sixteenth century. That statute was intended to apply to the crime of pickpocketing. See Terral v. State, 84 Nev. 412, 413, 442 P.2d 465, 465 (1968). Colorado's early statutes also recognized that "stealing from the person of another" was larceny, see Colo.Gen.Laws § 654 (1877) and Colo.Gen.Stat. § 753 (1883), but it was not until 1891 that Colorado's larceny statute was revised to impose a greater penalty for the crime of larceny from the person. Specifically, the revised larceny statute stated that "stealing from the person of another shall, upon conviction, be punished by imprisonment in the penitentiary for a term of not less than one year nor more than ten years." See Colo.Rev.Stat. § 1678 (1908). In People v. McIntosh, 149 Colo. 555, 369 P.2d 987 (1962), this court determined that the above language, incorporated into § 40-5-2(6), 3 C.R.S. (1953), applied to a pickpocketing case where the defendants stole a wallet and $26 from the victim's person. Stating that larceny from the person was a felony, the court reversed the trial court's action in sentencing the defendants as though they had committed a misdemeanor. McIntosh, 149 Colo. at 557, 369 P.2d at 988-89.

The "stealing from the person" language remained in effect until 1967, when the legislature enacted its initial consolidated theft statute. See Act approved May 30, 1967, ch. 312, sec. 1, 1967...