DocketNumber： 01CA1125
Judges： Webb, Rothenberg, Taubman
Filed Date： 2/13/2003
Status： Precedential
Modified Date： 10/19/2024
Opinion by
Defendant, David Carlson, appeals the judgment of conviction for theft by deception on the grounds of a defective indictment, insufficient evidence, prosecutorial misconduct, an erroneous evidentiary ruling, and cumulative error. We affirm.
Defendant sold a car to the victim, who testified that defendant misled him concerning its mileage and prior ownership. Based
I. Indictment
Defendant first argues the indictment was defective because it did not adequately inform him of the charge. He also argues his defense was prejudiced because he relied on the theory in the indictment, but the People obtained a conviction using another theory. We reject both arguments.
A. Sufficiency
An indictment or information must satisfy the dual purposes of advising a defendant of the charge so the defendant can adequately prepare a defense and protecting the defendant against further prosecution for the same offense. People v. Pratt, 759 P.2d 676 (Colo.1988)(indictment); People v. Zu-paneic, 192 Colo. 281, 557 P2d 1195 (1976)(information).
A substantive defect in an indictment or information renders a conviction void. People v. Williams, 984 P.2d 56 (Colo. 1999). However, an indictment or information is substantively sufficient if it tracks the language of the pertinent statute. People v. Williams, supra; People v. Richardson, 58 P.3d 1089 (Colo.App.2002).
Here, in charging defendant with one count of theft by deception under § 18-4-401, C.R.S.2002, the indictment tracked the language of the statute: "[Defendant] unlawfully, feloniously and knowingly obtained and exercised control over a thing of value of another ... without authorization and by threat and deception, and with the intent to permanently deprive the owner." The indictment also provided the details required by § 18-4-401(6), C.R.8.2002,
Accordingly, we conclude the indictment was not defective.
B. Variance
Defendant next argues a fatal variance arose because the People's theory in the indictment and during pretrial proceedings was that he deprived the victim of the difference in value between a car with 75,002 miles and the same car with 138,000 miles, but at trial the People focused instead on the vie-tim's $1,100 down payment as the "thing of value."
Two types of variance may arise between the offense in the charging instrument and the offense of which a defendant is convicted. A "simple variance" occurs when the charged elements are unchanged, but the evidence at trial proves facts materially different from those alleged. A "constructive amendment" occurs when the evidence at trial changes an element of the charged offense and alters the substance of the charging instrument. People v. Rodrigues, 914 P.2d 280 (Colo.1996).
A simple variance is immaterial unless it prejudices the defendant's substantive rights. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1814 (1985). We will generally sustain a conviction when the proof corresponds to the elements of an offense set out in the charging instrument. People v. Rodrigues, supra.
Here, the indictment described the "thing of value" as "four hundred dollars or more but less than fifteen thousand dollars in U.S. currency." In detailing the offense, the indictment referred to the victim's $100 deposit and $1,000 down payment, as well as to the difference between the value of the car with 75,000 miles ($5,000-$6,500) and the value of the same car with 125,000 miles ($8,500). Thus, although at trial the People addressed only the victim's $1,100 payment, we conclude the elements did not change from indictment to trial, and a constructive amendment did not occur.
Moreover, defendant could not have been surprised by evidence concerning the down payment, which was set forth in the indictment, and he provides no record support for his contention that during pretrial proceed
Defendant's alleged - misrepresentations and the victim's alleged reliance primarily involved mileage and ownership, as similarly described in the indictment and developed at trial. The victim's payment to defendant of $1,100 for the car was not disputed. Hence, defendant had notice of the charge against him and sufficient opportunity adequately to prepare a defense.
Accordingly, we reject defendant's contention that a variance requires reversal.
II. Sufficiency of the Evidence
Defendant next argues his conviction is not supported by the evidence, which he contends established only potential civil liability based on a debtor-creditor relationship. We disagree.
When considering a challenge to the sufficiency of the evidence, we determine whether the evidence, when viewed as a whole and in the light most favorable to the prosecution, is sufficient to support the conclusion by a reasonable, prudent person that the defendant is guilty, beyond a reasonable doubt, of the offense charged. People v. Christian, 682 P.2d 1081 (Colo.1981). The jury should decide questions of witness credibility and the appropriate weight to be given conflicting evidence. Taylor v. People, 728 P.2d 181 (Colo.1986). Where reasonable minds could differ, the evidence is sufficient to sustain a conviction. People v. Fuller, TOL P.2d 702 (Colo.1990).
A. - Misrepresentation and Reliance
We first reject defendant's contention that the evidence was insufficient to prove beyond a reasonable doubt that he made misrepresentations to the victim on which the victim relied.
Section 18-4-401(1), C.R.98.2002, provides in pertinent part: "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. ..."
Theft by deception requires proof that a defendant's misrepresentations to the victim caused the victim to part with something of value in reliance on the misrepresentations. People v. Norman, 708 P.2d 1261 (Colo.1985). A misrepresentation is a false representation of a past or present fact or a promise made with the intent not to perform. People v. Lewis, TIO P.2d 1110 (Colo.App. 1985).
The victim testified that defendant told him the car belonged to defendant's father and the odometer reading of 75,002 miles was accurate. He further testified that he purchased the car because of these representations.
Defendant does not challenge the evidence showing the car had considerably more than 75,000 miles when purchased by the victim and had multiple prior owners that did not include his father.
Nonetheless, defendant argues the evidence of reliance was insufficient because, before purchase, the victim had seen documents showing the odometer reading was not accurate and identifying several prior owners, none of whom shared defendant's last name. However, the victim denied that he understood the odometer information on the prepurchase documents to be as defendant contends.
Accordingly, we conclude the evidence of defendant's misrepresentations and the victim's reliance, albeit disputed, was sufficient to sustain the jury's verdict.
B. Intent
We also reject defendant's contention that the evidence was insufficient to prove he intended permanently to deprive the victim of something of value.
The finder of fact may infer the intent necessary for theft by deception from a defendant's conduct and the surrounding cireumstances. People v. Stewart, 789 P.2d 854 (Colo.1987). A defendant possesses the requisite intent when he or she obtains a victim's money or other property in a manner inconsistent with the victim's use and
Defendant argues the People did not prove he intended to deprive the victim of his $1,100 down payment because in exchange defendant gave the victim possession of and title to the car. However, we have concluded the evidence of defendant's misrepresentations to the victim and of the victim's reliance was sufficient. From this evidence, a jury could infer defendant made these misrepresentations intending that the victim would purchase a car that did not meet his needs.
Nevertheless, defendant asserts that because it was undisputed he applied the down payment and the promissory note towards the purchase price, and the People did not show the down payment and note exceeded the actual value of the car, his use of the down payment was not "inconsistent with the owner's use and benefit," as required in People v. Erickson, 695 P.2d 804, 805 (Colo.App. 1984). We are not persuaded.
Defendant's reliance on Erickson is misplaced. The division in Erickson reversed a contractor's conviction because the trial court excluded evidence that the contractor paid to subcontractors all money he obtained from the owner. The opinion does not indicate that the subcontractors' work differed from what the contractor had promised to the owner or that the contractor obtained the owner's money by deception.
Defendant's reliance on People v. McClure, 186 Colo. 274, 526 P.2d 18283 (1974), is similarly misplaced. That opinion also does not address whether the defendant obtained the victims' money by deception. It only holds that the conviction could not stand based merely on evidence that the victims' money was not applied for their benefit because cireumstances beyond the defendant's control had prevented his application of the money as promised.
The parties have cited no Colorado theft case, and we have found none, addressing sufficiency of the evidence where, as here, proof of intent permanently to deprive rests solely on testimony that, but for a defendant's misrepresentations, the victim would not have entered into the transaction.
Although "but for" theft by deception cases appear infrequently, convictions in other states have been upheld in similar cireum-stances. See, e.g., State v. Barker, 128 Ohio App.3d 233, 714 N.E.2d 447 (1998)(viectim received and kept puppy whose breed and health had been misrepresented).
Here, defendant's argument that application of the down payment was consistent with the victim's use or benefit is unpersuasive because the victim testified that, had he known the actual mileage on the car, he would not have bought it. Although the victim authorized defendant to apply the down payment to the purchase price, that authority concerned the car as represented. The jury could conclude that when defendant applied the down payment to the purchase price of a car that was not as represented, the victim's authorization ended. See People v. Treat, supra.
We are also unpersuaded by defendant's emphasis on the People's failure to prove that the car was worth less than the down payment plus the promissory note. Were such evidence necessary in what we have termed a "but for" theft by deception scheme, the case would turn solely on an objective analysis of exchange of value, without regard to subjective impact on the victim.
We discern no basis in the statutory language for this approach. The statute first addresses "anything of value." Value is an objective determination. See, eg., People v. Rosa, 928 P.2d 1865 (Colo.App.1996)(People must prove reasonable market value of stolen items).
In contrast, the statute's deprivation requirement does not refer to "value" of the property stolen, but to "use or benefit" of that property. Use or benefit can reasonably be determined based on the particular needs of the victim. When, as here, the alleged deception would have been material to a reasonable person, measuring the impact of that deception subjectively does not prejudice the defendant, who chose to deal with the victim.
Here, whatever its value, the car was illiquid, whereas the victim's down payment was liquid. The victim was not in the business of
Furthermore, the victim testified that, once he learned of the car's actual mileage, it did not meet his objective of providing reliable transportation for his wife. Hence, the victim did not obtain the desired "benefit," despite ending up with possession of and title to the car.
The facts presented here might better fit other sections of the criminal code. See § 18-5-101, et seq., C.R.S.2002 (offenses involving fraud). However, to preclude use of § 18-4-401(1) for that reason would read "deception" out of the statute. Moreover, where criminal conduct violates more than one statute, the choice of charges generally represents a proper exercise of prosecutorial discretion. See, eg., People v. Wellington, 633 P.2d 1390 (Colo.1981).
Accordingly, we conclude the evidence was sufficient that defendant intended permanently to deprive the victim of something of value.
C. - Debtor-Creditor Relationship
Defendant's argument that the evidence showed only a civil dispute because he and the victim had a debtor-creditor relationship arising from a business transaction is unavailing for similar reasons.
The failure of a debtor to repay a creditor does not alone establish theft. However, it can constitute theft when the debtor does not perform as promised in a business transaction, and, as here, direct or circumstantial evidence shows that the debtor established the relationship never intending to perform as promised. People v. Stewart, supra; People v. Collie, 995 P.2d 765 (Colo. App.1999). That evidence may involve a pattern of deception, as in People v. Collie, supra, or conduct only in the transaction with the victim, as in People v. Stewart, supra, and in this case,
Because of the evidence defendant deceived the victim into making the down payment, signing the promissory note, and completing the transaction, defendant's reliance on cases such as People v. Rotello, 754. P.2d
765 (Colo.1988), is misplaced. There, the defendant-lessee only failed to pay his landlord increased rent owed based on gross sales. Deception by the defendant to induce the landlord to enter into the lease was not discussed. Moreover, the "thing of value" at issue was money owed to the landlord, not money obtained from the landlord. Thus, in Rotello, "obtain[ing] ... without authorization" could not be shown. Here, the down payment was taken from the victim.
Accordingly, we conclude defendant's conviction is supported by sufficient evidence.
III. Prosecutorial Misconduct
Defendant next contends prosecutorial misconduct occurred because the prosecutor cross-examined a defense witness about a nonexistent felony conviction, this cross-examination violated the rape shield statute, and the prosecutor violated the rules of discovery. We disagree.
A. Prior Felony
We find no reversible error arising from the mistaken questions about the witness's convictions.
Section 18-90-101, C.R.S.2002, allows admission of a prior felony conviction to impeach the credibility of a witness. However, when the prosecutor cross-examines a witness about a prior felony conviction, the prosecutor must ask the question in good faith. People v. Lewis, 180 Colo. 428, 506 P.2d 125 (1978). If the witness denies the conviction, then the prosecutor should establish good faith with an offer of proof. People v. Thompson, 182 Colo. 198, 511 P.2d 909 (19783).
Determining good faith is within the trial court's discretion, and we will not disturb the determination absent an abuse of discretion. People v. Renstrom, 657 P.2d 461 (Colo.
Here, on direct examination of a mechanic familiar with the car, defendant brought out that the witness had been convicted of a felony. On cross-examination, the prosecutor established that this conviction had been for sexual assault and kidnapping, and then
The prosecutor based the question on a National Crime Information Center criminal history report that listed a 1978 conviction for sexual assault and kidnapping with a sentence of fifteen to thirty years, as well as a 1984 conviction for sexual assault and kidnapping with a sentence of fifteen to twenty-four years. Thus, we conclude the trial court acted within its discretion when it determined the prosecutor's question about a separate conviction in 1984 was asked in good faith.
After both parties rested and before the jury began its deliberations, however, defendant showed that the criminal history report used the same case number and other information for both entries and thus merely repeated the 1978 conviction in 1984. He asked for a curative instruction that the mechanic had not been convicted of a second felony. The trial court declined to give the instruction, explaining that the jury had heard the question and the denial.
Defendant acknowledges the absence of any Colorado authority requiring a curative instruction under these cireumstances. A eu-rative instruction is usually given to overcome an evidentiary error. See, eg., People v. McNeely, 68 P.3d 540, 2002 WL 31600819 (Colo App. No. 00CA1187, Nov. 21, 2002). Here, the better practice would have been to give the requested instruction. However, in light of our conclusion that the trial court acted within its discretion in ruling that the prosecutor asked the question in good faith, we discern no error obligating the trial court to give a curative instruction.
B. Rape Shield Statute
Defendant concedes he did not object during trial that the inquiry about the mechanic's prior felonies violated the rape shield - statute, § 18-3407, C.R.S.2002. Hence, we review for plain error, and we find none.
Unless necessary to correct plain error, an appellate court will decide only issues properly presented to the trial court by contemporaneous objection. People v. Snook, 745 P.2d 647 (Colo.1987). Plain error occurs only when the error so undermined the fundamental fairness of the trial that it creates serious doubt about the reliability of the conviction. People v. Wood, 748 P.2d 422 (Colo.1987).
As relevant here, the rape shield statute excludes evidence of a witness's prior or subsequent sexual conduct, except in narrowly defined cireumstances. People v. Mel-illo, 25 P.8d 769 (Colo.2001). However, the statute applies only when either the witness is a sexual assault victim or the crime charged is a sexual offense. See People v. Miller, 981 P.2d 654 (Colo.App.1998).
Here, the mechanic was not a sexual assault victim, and the trial concerned a theft by deception, not a sexual offense. Contrary to defendant's assertion, People v. Ghoiston, 26 P.3d 1 (Colo.App.2000), did not extend the rape shield statute to protect perpetrators who are not also victims.
Accordingly, we conclude the prosecution did not violate the rape shield statute, and there was no error, much less plain error.
C. Discovery Violation
Defendant also argues the prosecution violated Crim. P. 16(M(a)(1)(V) by not providing him with a copy of the mechanic's criminal history before trial. The People agree that no report was provided, but point out that Crim. P. 16(I)(a)(1)(V) only requires that the prosecutor make available to the defendant the eriminal record of the "accused, any codefendant or any person the prosecuting attorney intends to call as a witness."
The prosecution had no responsibility under Crim. P. 16(I)(a)(1)(V) to provide defendant with the mechanic's criminal history because he was a defense witness.
Accordingly, we conclude defendant was not deprived of a fair trial by alleged prose-cutorial misconduct.
Defendant next argues the trial court erred in refusing to admit an emissions test report on the car offered by defendant under CRE 807, the residual hearsay exception. We disagree.
Trial courts have considerable discretion in deciding on the admissibility of evidence, including application of the residual hearsay exception. People v. Fuller, 788 P.2d 741 (Colo.1990); People v. Huckleberry, 768 P.2d 1235 (Colo.1989). In general, we will not disturb an evidentiary ruling on appeal absent an abuse of discretion. People v. Jensen, 55 P.3d 135 (Colo.
Hearsay is inadmissible unless an exception or exclusion applies. CRE 801, 802; People v. Fry, 74 P3d 860, 2002 WL 31477777 (Colo.App. No. 00CA1459, Nov. 7, 2002).
To admit hearsay evidence under the residual exception, the proponent must establish: the statement has cireumstantial guarantees of trustworthiness; the statement is evidence of a material fact; the statement is more probative of the material fact than any other reasonably available evidence; admitting the evidence serves the purpose of the rules of evidence and the interests of justice; and the adverse party had adequate pretrial notice. People v. Fuller, supra, 788 P.2d at 744.
Here, defendant called a Colorado Motor Vehicle Division Emissions Section employee and through him attempted to introduce the report, purportedly conducted on the car by a testing station no longer in business. The witness could only confirm the document was an emissions test report. Defendant argues this testimony, coupled with the fact the report had the same vehicle identification number (VIN) as the car, made the report admissible under CRE 807.
The trial court refused to admit the report because it found the VIN and testimony an insufficient guarantee of trustworthiness, noting that defendant did not present evi-denee of who conducted the test, whether the test was performed accurately, and whether the test was actually conducted on the car sold to the victim.
Thus, we perceive no abuse of discretion.
V. Cumulative Error
Defendant finally argues the cumulative impact of the errors entitles him to a new trial. We disagree.
We may order a new trial when individual error does not warrant a new trial, but the aggregate impact of numerous formal irregularities denied the defendant a fair trial. People v. Roy, 728 P.2d 1345 (Colo.1986). However, when we find no individual error, or when the individual errors do not show an absence of a fair trial, reversal for cumulative error is not required. People v. Dore, 997 P.2d 1214 (Colo.App.1999).
We have upheld the trial court's rulings on the issues presented for appeal, and hence we further conclude there was no cumulative error.
Judgment affirmed.