People v. Williams, 81SA212

• Citation: 651 P.2d 899
• Decision Date: 27 September 1982
• Docket Number: No. 81SA212,81SA212
• Parties: PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jay Hagan WILLIAMS, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 899

651 P.2d 899

PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jay Hagan WILLIAMS, Defendant-Appellant.

No. 81SA212.

Supreme Court of Colorado En Banc.

Sept. 27, 1982.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Susan P. Mele, Asst. Atty. Gen., Denver, for plaintiff-appellant.

Myers, Woodford & Hoppin, P. C., Charles T. Hoppin, Denver, for defendant-appellant.

QUINN, Justice.

The defendant, Jay Hagan Williams, appeals his convictions on two counts of felony theft by receiving while engaged in the business of buying, selling, or otherwise disposing of stolen goods for a profit. Section 18-4-410, C.R.S.1973 (1978 Repl. Vol. 8). He claims that the Double Jeopardy Clauses of the United States and Colorado Constitutions barred his prosecution and conviction on these two counts because at a prior prosecution for the same statutory offense evidence of the transactions underlying his present convictions was admitted in order to prove that, when the principal charge of theft by receiving occurred, the defendant was engaged in the business of buying, selling or otherwise disposing of stolen goods for a profit. We agree with the defendant's claim and reverse his convictions. ¹

I.

In the course of an undercover investigation of fencing activities, law enforcement officials, posing as thieves who were attempting to dispose of stolen goods, sold several items of property to the defendant on three separate occasions: five General Electric television sets on March 29, 1978; twenty Summet tires on April 5, 1978; and a Skill Brand Roto Hammer, four carbide drill bits, and a Home-Lite portable generator on May 11, 1978. ² The defendant was charged in three separate informations with the crime of theft by receiving on the respective dates of the purchases--March 29, April 5, and May 11, 1978. Each information alleged that the primary act of theft by receiving involved property with a value of $200 or more but less than $1,000, and that each act occurred while the defendant was "engaged in the business of buying, selling or otherwise disposing of stolen goods for a profit." The defendant moved to consolidate the three cases for trial but the district court denied the motion.

The defendant was first tried on the May 11th incident involving the Roto Hammer, drill bits and portable generator. During the trial, evidence of the defendant's purchases of the television sets on March 29 and the tires on April 5 was admitted to establish that the defendant on May 11 was engaged in the business of buying, selling or otherwise disposing of stolen goods for a profit. The jury returned a verdict of guilty which read:

"We, the jury, find the Defendant, Jay Hagen [sic] Williams, guilty of count 1, theft by receiving while engaging in the business of buying, selling, or otherwise disposing of stolen goods for profit."

The defendant was sentenced to a term of five to eight years on this conviction. ³

After the first prosecution the defendant moved to dismiss the two pending charges which arose out of the March 29th and April 5th purchases on the ground that the prosecution for these offenses would violate the double jeopardy prohibition. The court denied the motion, concluding that the two pending charges involved "ultimate issues of fact that ... are separate and apart from the issues" resolved by the former conviction. The court also, pursuant to the defendant's motion, consolidated for trial the two pending counts. The defendant and the prosecution agreed to a trial to the court upon stipulated facts, with the defendant expressly reserving his right to appeal his double jeopardy claim. The stipulation provided that the court could determine the defendant's guilt or innocence on the basis of the evidence admitted in the former prosecution.

The court found the defendant guilty of theft by receiving in connection with the transactions on March 29 and April 5, 1978, and also found that when the offenses were committed the defendant was engaged in the business of buying, selling or otherwise disposing of stolen goods for a profit. ⁴ The defendant was sentenced to concurrent terms of five to eight years on each count, to be served concurrently with the earlier sentence imposed for the May 11th transaction. This appeal followed.

II.

The Double Jeopardy Clauses of the United States and Colorado Constitutions protect an accused from being placed in jeopardy twice for the same offense. U.S.Const. Amend. V; Colo.Const. Art. II, Sec. 18. Although this constitutional guarantee is simply stated, the decisional law in the area has been characterized as "a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator." Albernaz v. United States, 450 U.S. 333, 343, 101 S.Ct. 1137, 1144-45, 67 L.Ed.2d 275, 284 (1981). The multiple purposes of this constitutional guarantee were summarized in Brown v. Ohio, 432 U.S. 161, 165-66, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 194 (1977):

"The Double Jeopardy Clause 'protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.' North Carolina v. Pierce, 395 U.S. 711, 717, 23 L.Ed.2d 656, 89 S.Ct. 2072 [2076] (1969) .... Where successive prosecutions are at stake, the guarantee serves 'a constitutional policy of finality for the defendant's benefit.' United States v. Jorn, 400 U.S. 470, 479, 27 L.Ed.2d 543, 91 S.Ct. 547 (1971) (plurality opinion). That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal ... and from attempts to secure additional punishment after a prior conviction and sentence ...."

The established test for determining whether two offenses are sufficiently distinguishable to allow successive prosecutions for separate statutory offenses is whether "each [statutory] provision requires proof of an additional fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932); People v. Hancock, 186 Colo. 30, 525 P.2d 435 (1974); People v. Bugarin, 181 Colo. 62, 507 P.2d 875 (1973). If the two offenses are not sufficiently distinguishable to satisfy this test, the Double Jeopardy Clause will bar not only successive prosecutions but also the imposition of consecutive sentences at a single trial. Brown v. Ohio, 432 U.S. at 166, 97 S.Ct. at 2226, 53 L.Ed.2d at 194.

In this case, however, both prosecutions involved the same statutory offense, namely, section 18-4-410, C.R.S.1973 (1978 Repl. Vol. 8), which provided as follows:

"(1) Except as provided in subsection (6) of this section, a person commits theft by receiving when he receives, retains, loans money by pawn or pledge on, or disposes of anything of value of another, knowing or believing that said thing of value has been stolen, and when he intends to deprive the lawful owner permanently of the use or benefit of the thing of value.

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"(4) Where the value of the thing involved is two hundred dollars or more but less than ten thousand dollars, theft by receiving is a class 4 felony.

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"(6) When the value of the thing involved is two hundred dollars or more and the person committing theft by receiving is engaged in the business of buying, selling, or otherwise disposing of stolen goods for a profit, theft by receiving is a class 3 felony." ⁵

The determination of whether a successive prosecution for the same statutory offense is barred by double jeopardy principles involves, first, an examination of the scope of prosecution authorized by the statutory prescription, and, next, an examination of the factual components of each prosecution and the evidence in support thereof. See, e.g., Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978).

While it is left to the legislature to establish and define offenses, once it has "defined a statutory offense by its prescription of the 'allowable unit of prosecution,' ... that prescription determines the scope of protection offered by a prior conviction or acquittal. Whether a particular course of conduct involves one or more distinct 'offenses' under the statute depends on this [legislative] choice." Id. at 69-70, 98 S.Ct. at 2181, 2182, 57 L.Ed.2d at 57. If a subsequent prosecution for the same statutory offense requires proof of the same facts upon which a conviction under the first prosecution was based, then the second prosecution would be barred under the "same offense" prohibition of the Double Jeopardy Clause. See, e.g., Sanabria v. United States, supra (where defendant charged with federal offense of being connected with an illegal gambling business, and trial court erroneously granted a judgment of acquittal because of insufficient evidence of the defendant's connection with a "horse betting" operation, government prohibited from prosecuting defendant for connection with an illegal gambling business involving "numbers betting" operation, the Court stating that "[t]he Government having charged only a single gambling business, the discrete violations of state law which that business may have committed are not severable in order to avoid the Double Jeopardy Clause's bar on retrials for the 'same offense' "); Brown v. Ohio, supra (where defendant previously convicted of joyriding, his subsequent prosecution and conviction for car theft reversed because both charges were based on different parts of a nine-day interval and "[t]he Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units"); In Re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889) (defendant's conviction for cohabiting with two wives over two and one-half year period barred his subsequent...