People v. Halaseh

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
August 9, 2018

2018COA111

No. 14CA0478, People v. Halaseh — Crimes — Theft —
Aggregated Theft; Criminal Law — Appeals — Reviewing Court
Must Maximize Effect of Jury’s Verdict

This case concerns a multi-year theft committed by defendant.

It raises two questions.

First, may defendant be convicted for a single count of

aggregated theft under section 18-4-401(4) for thefts that occurred

between January 2008 and January 2011? We conclude no

because of the changing charging requirements for aggregated theft

enacted between 2008 and 2011.

Second, where the prosecutor incorrectly charged defendant

with one class 3 felony theft count for aggregated theft, may we

remand the case to the trial court to enter judgment of conviction

for four class 4 felony theft counts? We conclude yes because of the
implicit jury findings within defendant’s conviction, and because we

must maximize the effect of a jury’s verdict to yield as many

convictions as possible.
COLORADO COURT OF APPEALS 2018COA111

Court of Appeals No. 14CA0478
El Paso County District Court No. 12CR4638
Honorable Theresa M. Cisneros, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

John M. Halaseh,

Defendant-Appellant.

JUDGMENT VACATED AND CASE
REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE HAWTHORNE
Navarro and Casebolt*, JJ., concur

Prior Opinion Announced July 27, 2017, WITHDRAWN
Petitions for Rehearing GRANTED

OPINION PREVIOUSLY ANNOUNCED AS “NOT PUBLISHED PURSUANT TO
C.A.R. 35(e)” ON July 27, 2017, IS NOW DESIGNATED FOR PUBLICATION

Announced August 9, 2018

Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellant

Megan A. Ring, Colorado State Public Defender, Jud Lohnes, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 Defendant, John M. Halaseh, appeals his conviction for class 3

felony theft. We vacate the judgment and remand the case for entry

of four convictions for class 4 felony theft and for correction of the

mittimus and to resentence defendant accordingly.

I. Facts and Procedural History

¶2 Defendant assisted his father in setting up a joint bank

account for depositing his father’s Supplemental Security Income

(SSI) checks from the Social Security Administration (SSA). One

month later, defendant’s father left the United States to live in

Jordan. He never returned. Though the SSI application and notice

of award informed defendant’s father that he must report to the

SSA if he left the United States for more than thirty days, he never

did so.

¶3 From January 2008 to January 2011, the SSA deposited

checks monthly into the joint account, and defendant withdrew the

funds to pay for household expenses. When the SSA realized that

defendant’s father had been outside the country for years, it sent

two agents to defendant’s home. Defendant confessed to the agents

that he knew the funds were “government money” and that it was

wrong for him to take them. Later, defendant received a letter from

1
 the SSA informing him that $24,494 had been overpaid to his

father.

¶4 Defendant was charged with a single count of theft of $20,000

or more from the SSA. At trial, the prosecution introduced an

exhibit detailing thirty-seven instances of theft committed by

defendant totaling $24,494. A jury found defendant guilty as

charged.

II. Sufficiency of the Evidence

¶5 Defendant contends that the prosecution failed to present

sufficient evidence to prove beyond a reasonable doubt that he

committed theft.1 We disagree.

A. Standard of Review and Applicable Law

¶6 We review de novo whether evidence is sufficient to support a

conviction. People v. Randell, 2012 COA 108, ¶ 29. To determine

whether the prosecution presented sufficient evidence, we apply a

substantial evidence test that considers “whether the relevant

1 Defendant also contends that the prosecution failed to present
sufficient evidence to prove beyond a reasonable doubt that he stole
more than $20,000 within the prescribed units of prosecution
permitted under the theft statutes in effect on the dates included
within the single theft count. We address that specific contention
later in Part IV.

2
 evidence, both direct and circumstantial, when viewed as a whole

and in the light most favorable to the prosecution, is substantial

and sufficient to support a conclusion by a reasonable mind that

the defendant is guilty of the charge beyond a reasonable doubt.”

Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010) (citation omitted).

We “must give the prosecution the benefit of every reasonable

inference which may be fairly drawn from the evidence.” Id. at

1292.

¶7 As pertinent here, a defendant commits theft when “he or she

knowingly obtains, retains, or exercises control over anything of

value of another without authorization or by threat or deception”

and “[i]ntends to deprive the other person permanently of the use or

benefit of the thing of value.” § 18-4-401(1)(a), C.R.S. 2017.

B. Analysis

¶8 Initially, we reject the People’s contention that defendant

waived any challenge to whether the funds belonged to the SSA.

Even if defendant may have conceded this point in his closing

argument, “the prosecution has the burden of establishing a prima

facie case of guilt through introduction of sufficient evidence.”

Clark, 232 P.3d at 1291; see also Randell, ¶ 30 (reasoning that a

3
 defendant may raise a sufficiency challenge “without moving for a

judgment of acquittal in the trial court”).

¶9 The evidence, when viewed in the light most favorable to the

prosecution, was sufficient for a reasonable person to conclude that

defendant committed theft. This evidence included the following:

 Within the first month of living with defendant,

defendant’s father went with defendant’s wife to the SSA

to apply for SSI.

 The SSI application outlined defendant’s father’s

obligations, including reporting to the SSA if “[y]ou leave

the United States for 30 days or more.”

 Defendant helped his father establish a joint bank

account where his father deposited his first several SSI

checks.

 A few weeks before taking his father to Jordan, defendant

helped his father set up a direct deposit into the joint

bank account.

 Defendant admitted to investigators that he used the SSI

checks to pay for various expenses. Bank records

showed the funds were deposited into the checking

4
 account monthly, and that defendant used the funds for

credit card payments, cash withdrawals, and mortgage

payments.

 Defendant told investigators he knew the funds were

“government money” and that he knew it “wasn’t right” to

use the funds for his expenses.

 Defendant wrote and signed a statement which stated: “I

knew we should have stopped [my father’s] SSI benefits

but I needed the money to help pay for the house and

take care of my family . . . I knew I shouldn’t have taken

this money once he left the U.S. and I am willing to work

on paying it back once my house sells.”

 Defendant received a letter from the SSA informing him

that $24,494 of SSI funds had been overpaid because his

father had been outside the United States.

¶ 10 Defendant argues, however, that the prosecution failed to

present sufficient evidence that (1) the SSA, and not defendant’s

father, had any possessory or proprietary interest in the $24,494

such that it was the victim of theft; and (2) he knowingly took the

5
 money without authorization, or by threat or deception. We

disagree.

¶ 11 First, a reasonable juror could infer that defendant’s father

was not an intermediary victim as defendant suggests, but part of

defendant’s deception to obtain government funds. Thus the

checks and direct deposits from the SSA were sufficient evidence to

show that the SSA had a possessory interest in the $24,494. And

second, a juror could infer from defendant’s actions, statements,

and expenses that he knowingly deceived the SSA when he led the

agency to believe that his father, and not he, would receive the

benefit of the deposited funds. Accordingly, we conclude that the

prosecution presented sufficient evidence for a reasonable juror to

find beyond a reasonable doubt that defendant committed theft

from the SSA.

III. Jury Instruction

¶ 12 Defendant concedes failure to preserve, but contends that the

trial court plainly erred when it failed to instruct the jury (1) on the

definition of the word “another” in the theft statute and (2) on its

requirement to find that the “aggregate value” exceeded $20,000

within one of the prescribed units of prosecution. The People

6
 respond that defendant waived instructional error, if any. But even

if defendant did not waive this argument, we conclude that the trial

court did not plainly err.

A. Standard of Review

¶ 13 We review unpreserved instructional errors for plain error.

People v. Miller, 113 P.3d 743, 750 (Colo. 2005). Plain error occurs

where the error is both “obvious and substantial” and “so

undermined the fundamental fairness of the trial itself so as to cast

serious doubt on the reliability of the judgment of conviction.” Id.

(citations omitted).

B. Analysis

1. Definition of “Another”

¶ 14 At trial, the court instructed the jury on the elements of theft.

Its instruction included the following elements: “[t]hat

defendant . . . knowingly obtained or exercised control over

anything of value which was the property of another person.”

¶ 15 Defendant argues that the trial court should have included an

additional instruction to define the word “another.” Specifically, he

cites section 18-4-401(1.5), which provides that “[a] thing of value is

that of ‘another’ if anyone other than the defendant has a

7
 possessory or proprietary interest therein.” He then argues that

this alleged error harmed him because (1) the prosecution never

proved that the SSA had a possessory or proprietary interest in the

funds, and (2) his defense against the charges was on the ground

that he did not know the money was the property of the SSA.

¶ 16 But, for three reasons, we discern no plain error.

¶ 17 First, defendant fails to cite any authority requiring an

instruction defining “another” in a theft case. See Scott v. People,

2017 CO 16, ¶ 17 (“[A]n error is generally not obvious when nothing

in Colorado statutory or prior case law would have alerted the trial

court to the error.”).

¶ 18 Second, the SSA’s possessory or proprietary interest in the

funds was not, despite defendant’s arguments, a disputed issue in

this case. The disputed issue was whether defendant knew the SSA

had an interest in the funds, not whether it actually had an interest

in them. Even defendant’s counsel admitted to the jury that the

funds were the property of the SSA:

[A]nd so you have to be proven beyond a
reasonable doubt that [defendant] knew that
the money he had belonged to the Social
Security Administration. He believed it
belongs to [his father]. He believed that he

8
 could use it because [his father] told him he
could. He did not know that that was the
property of the Social Security Administration.

¶ 19 Finally, testimony and a written confession signed by

defendant showed that defendant knew the funds were government

money. An SSA special agent testified that defendant told him that

“he knew [the funds were] government money.” And defendant’s

written confession stated that he was “willing to work on paying [the

funds] back” to the SSA.

¶ 20 For these reasons, we discern no error, much less plain error,

in the trial court’s not instructing the jury on the definition of the

word “another” in the theft statute. See People v. Dunlap, 124 P.3d

780, 794 (Colo. App. 2004) (“Failure to instruct the jury . . . does

not constitute plain error where the subject of the error in the

instruction is not contested at trial or where evidence of the

defendant’s guilt is overwhelming.”).

2. Aggregate Value

¶ 21 For reasons explained infra Part IV, we agree that the trial

court plainly erred when it instructed the jury that it could find

defendant guilty of stealing $20,000 or more. But we disagree that

the error harmed defendant.

9
¶ 22 Had the court given the proper instruction — that is, had it

correctly instructed the jury as to both the prescribed units of

prosecution and the proper values required to be found within

those units — the jury’s findings of guilt would have remained the

same. We know this because the jury found that defendant stole

more than $20,000, and the uncontested evidence showed when

the individual amounts were taken. See State v. Gidden, 455

N.W.2d 744 (Minn. 1990) (concluding that, even though the trial

court did not instruct the jury that defendant’s aggregated thefts

exceeding $2500 had to occur within a six-month period, there

existed no reasonable likelihood that the giving of the instruction

would have significant effect on the verdict where any six-month

period of defendant’s thefts exceeded $2500). Thus the error did

not harm defendant.

¶ 23 Defendant sees things differently. He assumes that, had the

court been alerted to its improper instruction, it would have done

one of two things. Either it would have

 “instructed the jury that it must find, beyond a

reasonable doubt, that the aggregate value of the thefts

10
 during any six-month period was greater than $20,000”;

or

 “instructed the jury that it must find, beyond a

reasonable doubt, that the aggregate value of the thefts

after May 11, 2009 and committed ‘against the same

person pursuant to one scheme or course of conduct’ was

greater than $20,000.”

Working on this assumption, defendant argues that the jury would

not have found him guilty. Thus the error, according to him,

harmed him.

¶ 24 That is true — if you accept defendant’s assumption. And that

is the problem with his argument. Defendant’s assumption

requires us to conclude that, had the court been alerted to its

mistake, it would have simply gone on to make another mistake by

instructing the jury incorrectly in one of the two incorrect ways

mentioned above. This is nothing but conjecture. We must assume

that the trial court, if alerted, would have acted properly. See

Loomis v. Seely, 677 P.2d 400, 401 (Colo. App. 1983). And

defendant provides no evidence to persuade us otherwise. So we

reject his argument.

11
¶ 25 Therefore, because a proper jury instruction would not have

changed the jury’s findings, we discern no harm to defendant and

thus no plain error by the trial court.

IV. Aggregated Theft

¶ 26 Defendant contends that the prosecution failed to prove that

he took $20,000 or more within any prescribed unit of prosecution

permitted under the theft statutes in effect on the offense dates.

The People concede, and we conclude, that the trial court erred by

entering judgment for a class 3 felony theft on the jury’s verdict.

A. Standard of Review

¶ 27 Because this case requires us to interpret section 18-4-

401(4)(a)-(b), it presents legal questions that we review de novo. See

People v. Kailey, 2014 CO 50, ¶ 12.

B. Aggregating Thefts Under Section 18-4-401(4)

¶ 28 We begin by reviewing Roberts v. People because it informs our

analysis of section 18-4-401(4). 203 P.3d 513 (Colo. 2009),

superseded by statute as recognized in People v. Simon, 266 P.3d

1099, 1108 (Colo. 2011). In Roberts, the supreme court considered

section 18-4-401(4) as it existed before it was amended in 2009;

this pre-amendment statute also applies to defendant’s pre-June

12
 2009 offenses. See generally id. The defendant in Roberts was

charged with one count of theft of $15,000 or more, although the

evidence showed that he had committed multiple thefts from the

same victim (7-Eleven) at three different stores over twenty-seven

months. Id. at 515-16. Roberts held that pre-amendment section

18-4-401(4)(a) treated “as a single theft all thefts committed by the

same person in a six-month period.” Id. at 517-18. Roberts also

held that, under the then-current version of section 18-4-401(4)(a),

“all thefts committed by the same person within a six-month period

. . . [must] be joined and prosecuted as a single felony.” Id. at 516.

¶ 29 In determining the felony classification of that single theft

offense, a jury could aggregate the value of all things taken by the

defendant during that six-month period. See id. (Multiple thefts

committed by the same person within a six-month period

“constitute a single crime of theft, the classification of which is

determined by the aggregate value of all of the things involved.”).

The corollary of this principle is that a theft occurring outside the

relevant six-month period constituted a separate theft offense, even

if it involved the same victim. See id. at 515-17 (concluding that

the defendant’s thefts from the same victim did not constitute a

13
 “continuing crime” over twenty-seven months because the former

theft statute created instead a “single offense of theft” limited “to all

discrete acts of theft committed by the same person within any

six-month period”).

¶ 30 Roberts rejected the theory that the defendant’s multiple

takings from the same victim over twenty-seven months constituted

a single theft offense, id. at 515-16, 518, and thus the Roberts court

concluded that the trial court should have instructed the jury to

determine the value of the things taken within a period of six

months. Id. at 518 (“[T]he jury was never instructed to determine

whether the value of the things involved was $15,000 or more as

the result of the defendant’s having committed theft two or more

times within a period of six months.”).

¶ 31 After the Roberts decision, the legislature amended section

18-4-401(4) by (1) changing the six-month unit of prosecution from

being a mandatory charge to a discretionary one, see Ch. 244, sec.

2, § 18-4-401(4), 2009 Colo. Sess. Laws 1099 (providing that “two

or more . . . thefts may be aggregated and charged in a single

count”) (emphasis added); and (2) adding an additional subsection

allowing two or more crimes of theft committed “against the same

14
 person pursuant to one scheme or course of conduct” to be

“aggregated and charged in a single count, in which event they shall

constitute a single offense,” Ch. 244, sec. 2, § 18-4-401(4), 2009

Colo. Sess. Laws 1100. These subsections now provide the

exclusive methods for aggregating and charging thefts in a single

count.

¶ 32 The prosecution charged defendant with one count of theft of

$20,000 or more, but no check or deposit received from the SSA

exceeded $674.002. So, the jury necessarily would have had to

aggregate multiple payments to find that defendant took $20,000 or

more. Even if the jury had been properly instructed as to how to

aggregate the thefts under section 18-4-401(4)(a) or (b), it could not

have legally found defendant guilty of theft of $20,000 or more

because of the statute’s different requirements in its pre- and post-

2009 versions. The most the jury could have legally aggregated

under the pre-2009 “mandatory-within six months” version (now

2 At trial, the prosecution admitted an exhibit titled “A Detailed
Explanation Of Your OverPayment.” It showed that from January
2008 to December 2008, the SSA overpaid $637 each month; and
from January 2009 to January 2011, the SSA overpaid $674 each
month.

15
 section 18-4-401(4)(a)) would have been (1) $3822 from January

2008 to June 2008; (2) $3822 from July 2008 to December 2008;

and (3) $3370 from January 2009 to May 2009. And the most the

jury could have legally aggregated under the post-2009

“discretionary-same victim” version (now section 18-4-401(4)(b))

would have been $13,480 from June 2009 to January 2011. Thus,

the trial court erred when it entered judgment for a class 3 felony

on the jury’s verdict finding defendant had taken $20,000 or more.

C. Remedy

¶ 33 We agree with the People that the proper remedy is to vacate

the judgment of conviction for one class 3 felony theft count and

remand the case to the trial court to enter judgment of conviction

for four class 4 felony theft counts. The prosecution charged

defendant with one count of theft of $20,000 or more (a class 3

felony theft), and the jury found him guilty of theft of $20,000 or

more. Implicit in defendant’s conviction for the class 3 felony theft

are four class 4 felony theft convictions:

1. Within the six-month period of January 1, 2008, to June

30, 2008, defendant stole $3822. This supports one

class 4 felony theft conviction under the pre-2009

16
 amended statute. See § 18-4-401(1)(a), (2)(d), (4), C.R.S.

2008.

2. Within the six-month period of July 1, 2008, to

December 31, 2008, defendant stole $3822. This

supports one class 4 felony theft conviction under the

pre-2009 amended statute. See id.

3. Within the five-month period of January 1, 2009, to May

10, 2009, defendant stole $3370. This supports one

class 4 felony theft conviction under the pre-2009

amended statute. See id.

4. Between May 11, 2009, and January 31, 2011, defendant

stole $13,480. This supports one class 4 felony theft

conviction under the post-2009 amended statute. See

§ 18-4-401(1)(a), (2)(c), (4)(b), C.R.S. 2009.

¶ 34 See Mata-Medina v. People, 71 P.3d 973, 981 (Colo. 2003) (“We

recently confirmed that appellate courts can acknowledge implicit

jury findings.”); People v. Sepulveda, 65 P.3d 1002, 1005-06 (Colo.

2003) (concluding that because the jury “found that [the defendant]

acted intentionally, or with the conscious objective of causing

death, [it] implicitly found that [the defendant] acted knowingly”);

17
 People v. Bowers, 187 Colo. 233, 238, 530 P.2d 1282, 1285 (1974)

(“The jury, by finding appellant guilty of the greater offenses,

necessarily found he was guilty of the lesser offenses. Under these

circumstances, as a matter of law the appellant was guilty of the

lesser offenses.”).3

¶ 35 Defendant argues that — by reforming the judgment from one

conviction to four — we are depriving him of his constitutional due

process right to be notified of the charges made against him. U.S.

Const. amend. VI; Colo. Const. art. II, § 16. But we are not

persuaded.

¶ 36 It is “ancient doctrine of both the common law and of our

Constitution that a defendant cannot be held to answer a charge

not contained in the indictment brought against him.” Schmuck v.

3 Although the jurors were instructed to determine whether
defendant had stolen $20,000 or more — and not the full $24,494
— we discern that the jury verdict reflected a unanimous agreement
as to all the charged thefts because (1) the “evidence at trial
included nothing that would lead a juror to conclude that the acts
of” theft “occurred on some occasions . . . but not on others”; (2) the
defense was “general” and did not provide “an individualized
defense aimed at discrete alleged instances”; and (3) the “evidence
presented no rational basis for some jurors to predicate guilt on one
act while other jurors based it on another.” Thomas v. People, 803
P.2d 144, 154-55 (Colo. 1990).

18
 United States, 489 U.S. 705, 717 (1989). To satisfy this doctrine,

the “notice [of charges] given must be sufficient to advise the

accused of the charge, to give him a fair and adequate opportunity

to prepare his defense, and to ensure that he is not taken by

surprise because of evidence offered at the time of trial.” People v.

Garcia, 940 P.2d 357, 362 (Colo. 1997) (quoting People v. Cooke,

186 Colo. 44, 46, 525 P.2d 426, 428 (1974)). For example, a

defendant is deemed, as a matter of law, to have “adequate notice”

of an uncharged offense that meets the definition of a lesser

included offense of the original charge against him. People v.

Duran, 272 P.3d 1084, 1095 (Colo. App. 2011). So, even though the

prosecution did not charge defendant with four class 4 felony theft

counts, the question is whether his constitutional due process right

to receive “adequate notice” of the four class 4 felony thefts was

satisfied by his being charged with the one original class 3 felony

theft.

¶ 37 We conclude that it was. The record clearly shows that

defendant had actual notice of each specific instance of theft on

which the prosecution based its original charge. Before the charge

was even filed, the SSA gave defendant a detailed list of all

19
thirty-seven instances of “overpayment” with the date and amount

paid. The prosecution’s complaint covered all these instances when

it charged defendant with theft “[b]etween and including January 1,

2008 and January 31, 2011.” And in a pre-trial hearing, defendant

was ordered to release all his bank records reflecting the charged

time period so that the prosecution could show the deposits made

by the SSA. Given the complaint and pre-trial discovery, defendant

had ample notice that he would need to defend against all

thirty-seven instances of theft. So we conclude that by reforming

the judgment to impose four class 4 felony thefts, we do not violate

his right to due process. See People v. Williams, 984 P.2d 56, 65

(Colo. 1999) (concluding that, where the information charging the

defendant with first degree criminal trespass did not specify the

ulterior crime he intended to commit on trespassing, he was not

prejudiced in the preparation of his defense because “under the

surrounding circumstances, [he] was sufficiently advised of the

ulterior crimes”); see also Garcia, 940 P.2d at 363 (“[D]ue process is

a flexible concept, and its exact contours must be determined by

the facts of each case.”).

20
¶ 38 Other cases support this logic. See United States v. Lacy, 446

F.3d 448, 452 (3d Cir. 2006) (finding defendant’s rights were

“adequately protected” where he was convicted of multiple lesser

included offenses from one charged offense); State v. Erivez, 341

P.3d 514, 518-19 (Ariz. Ct. App. 2015) (noting defendant’s due

process rights were not violated where he was charged with

aggravated assault but, after additional jury instructions, convicted

of assault and disorderly conduct); People v. Eid, 328 P.3d 69, 89-

90 (Cal. 2014) (“Because a charged offense puts a defendant on

notice of all uncharged lesser included offenses, defendants had

notice of, and the opportunity to defend against, the two uncharged

lesser included offenses of which they were convicted.”).

¶ 39 Also, “[w]e are required to retain as many convictions and

uphold as many sentences as are legally possible to effectuate fully

the jury’s verdicts.” People v. Lee, 914 P.2d 441, 448 (Colo. App.

1995). Because we must maximize the effect of a jury’s verdict to

yield as many convictions as possible, see People v. Glover, 893 P.2d

21
 1311, 1315 (Colo. 1995), we remand for correction of the mittimus

and resentencing on the four class 4 felony theft convictions.4

V. Conclusion

¶ 40 The judgment of conviction for class 3 felony theft is vacated

and the case is remanded for the court to (1) correct the mittimus

by entering judgment for four class 4 felony theft convictions and

(2) resentence defendant accordingly.

JUDGE NAVARRO and JUDGE CASEBOLT concur.

4 We recognize that the principle that we must maximize the effect
of a jury’s verdict to yield as many convictions as possible has been
used primarily to correct multiplicitous convictions. But we see no
reason why the logic behind that principle — to fully effectuate the
jury’s verdict — should not also apply here.

22