Roberts v. People

• Decision Date: 02 March 2009
• Docket Number: No. 07SC430.,07SC430.
• Citation: 203 P.3d 513
• Parties: George Cecil ROBERTS, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

203 P.3d 513

George Cecil ROBERTS, Petitioner v. The PEOPLE of the State of Colorado, Respondent.

No. 07SC430.

Supreme Court of Colorado, En Banc.

March 2, 2009.

Rehearing Denied March 30, 2009.

Lauretta A. Martin Neff, Bayfield, Colorado, Attorney for Petitioner.

John W. Suthers, Attorney General, Christine C. Brady, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.

Justice COATS delivered the Opinion of the Court.

Roberts sought review of the court of appeals' judgment affirming both his conviction of theft and his aggravated sentence. See People v. Roberts, 179 P.3d 129 (Colo.App. 2007). A jury found him guilty of a single count of theft, in which he was charged with unlawfully taking more than $15,000, over a 27-month period, from Southland Corporation (7-Eleven); and it returned a special finding that the theft involved a total of $27,169.14 and occurred on the day all of the losses were ultimately discovered. The court of appeals upheld both his conviction of class-three-felony theft and his mandatorily aggravated sentence, reasoning that the evidence supported the commission of a single offense of "theft by deception," which continued, and included everything taken by Roberts, until the deception ended, by which time he was already on probation for another offense.

Because the consolidated theft statute in this jurisdiction does not create a separate and continuing crime of theft by deception, the court of appeals erred with regard to both the time the theft was committed and the value of the property involved in a single offense. Its judgment affirming the defendant's conviction is, however, affirmed because there was sufficient evidence to support the conviction of class-three-felony theft and any error committed by the trial court in instructing the jury was harmless.

I.

George C. Roberts was charged with one count of theft of $15,000 or more, a class three felony, as defined at section 18-4-401 of the revised statutes.¹ He was convicted in a jury trial and sentenced to eight years in prison. In imposing sentence, the district court made clear that it considered itself bound to impose at least the minimum sentence statutorily mandated for any felon already on probation at the time he committed his current offense.²

It was undisputed that the defendant managed three 7-Eleven convenience stores at various times and that his duties included the daily deposit of the sales proceeds from those stores. According to the testimony of a 7-Eleven loss prevention manager and the defendant's supervisor at his last store, the two of them scheduled a meeting with the defendant on March 21, 2001 to discuss irregularities that had come to their attention. Apparently believing they were aware that his stores were missing large cash deposits, the defendant volunteered losing $11,000 in June 1999 from the store he was managing at that time and covering up not only that loss but other shortfalls he discovered at his current store as well. The defendant's supervisor audited the accounts and determined that $27,169.14 received by the defendant's last store, during his four-month tenure as manager there, could not be accounted for.

Although the defendant did not testify at trial, his earlier statements were admitted as evidence. In a written statement, he indicated that one evening in June 1999, as he was leaving the first store to make his deposit, he returned to answer a phone call and left the money on top of his car. By the time he got back, the deposit of approximately $11,000 was gone. The defendant explained that he tried to prevent his superiors from discovering the missing money by rolling back the deposits each day to cover the previous day, hoping all the while to eventually be able to repay the missing amounts.

Also according to the defendant's written statement, in December 2000, when he was asked to temporarily manage a second store and to become the permanent manager of a third store, he covered the losses from the first store with proceeds from the second, using the same accounting subterfuge to hide the shortfall this created. He further indicated that he similarly covered the shortfall from the second store, which he managed for less than a month, with proceeds from the third store; but within days of assuming the management of that third store, he also discovered that it was short an additional $15,000 to $16,000. Not knowing who took the money from either store and assuming that as a felony probationer he would be unable to secure a loan to repay the money and would be fired upon discovery of the losses, the defendant chose not to report any of the losses but to continue rolling back deposits each day to cover the previous day's receipts.

Although the charging document alleged a single count of theft of $15,000 or more, committed over a 27-month period, the defense did not challenge the charge as duplicitous or seek to have it narrowed by a bill of particulars. Instead, at trial the defense moved to force the prosecution to elect a specific six-month period upon which to rely and to have the jury instructed to disregard any evidence of acts committed outside that period. Apparently considering multiple takings from the same owner to be the same theft, rather than an aggregation of two or more thefts as contemplated by the theft statute, the trial court denied the motion. It did, however, instruct the jury, should they find the defendant guilty, to separately indicate when the theft or thefts occurred and the amount of money involved.

The defense rested without presenting any evidence and offered no instruction containing its theory of the case. In closing argument, defense counsel argued primarily that the evidence was insufficient to prove that the defendant, as distinguished from others at the store who had similar opportunity, committed the theft. The jury found the defendant guilty and also returned a special finding "that theft(s) in the amount(s) of $27,169.14, occurred on 3-21-2001." The court entered a judgment of conviction for one count of class-three-felony theft and sentenced the defendant to eight years incarceration, making clear that it considered itself bound to sentence him to at least that amount because he was on probation for another felony conviction by March 2001, when the losses were discovered and when the jury determined the theft occurred.

On direct appeal, the defendant challenged the sufficiency of the evidence to support his conviction for a theft of at least $15,000 and his mandatorily aggravated sentence, as well as the denial of his motion for election. The court of appeals affirmed both the defendant's conviction and sentence, reasoning that the evidence supported conviction of a single offense of theft by deception, the commission of which continued as long as the theft was being concealed and included all unauthorized takings by the defendant from 7-Eleven over that entire period.

II.

Colorado is among the substantial majority of states that have consolidated the crimes of larceny, embezzlement, and theft under false pretenses in a single crime of theft. See People v. Warner, 801 P.2d 1187, 1189 (Colo.1990); Colorado Legislative Council, Report to the Gen. Assembly of 1965, Research Publication No. 98, at 33 comment (1964); see generally Wayne R. LaFave, Substantive Criminal Law, § 19.8 at 140-48 (2nd ed.2003). According to this statute, a person commits the crime of theft when he knowingly obtains or exercises control over anything of value of another without authorization or by threat or deception, and in addition he either intends to permanently deprive the other person of its use or benefit; demands a consideration to which he is not legally entitled to return it; or uses, conceals, or abandons it with the intent to, or at least the knowledge that his conduct will, permanently deprive the other person of its use or benefit. See § 18-4-401(1), C.R.S. (2008). Whichever way the crime is committed, it constitutes the offense of "theft."

Unless a theft is committed from the person of another (by means other than those constituting robbery), see § 18-4-401(5), its categorization as either misdemeanor theft or a particular class of felony is made contingent upon the "value of the thing involved." § 18-4-401(2). In addition, multiple thefts (other than theft from a person or thefts for which the defendant has already been placed in jeopardy), committed by the same person within a six-month period, of things with an aggregate value in the felony range, constitute a single crime of theft, the classification of which is determined by the aggregate value of all of the things involved. § 18-4-401(4) ("When a person commits theft twice or more within a period of six months . . . it is a class . . . felony." (emphasis added)).

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." See, e.g., People v. Abiodun, 111 P.3d 462, 465 n. 2 (Colo.2005). In describing its unit of prosecution for theft in terms of the crime of theft itself, however, the legislature has injected an element of circularity into the provision, leaving some question as to whether a single offense of theft is limited to all discrete acts of theft committed by the same person within any six-month period; or whether any individual crime of theft, depending upon the manner and circumstances of its commission, may yet be capable of continuing beyond that period.

By analogizing a theft that is accomplished by obtaining or exercising control through the...