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ADVANCE SHEET HEADNOTE
May 11, 2020
2020 CO 35
No. 18SC656, Halaseh v. People—Entry of Conviction on Remand—Lesser
Included Offenses.
Halaseh petitioned for review of the court of appeals’ remand order in his
underlying appeal, which directed the district court to enter four convictions for
class 4 felony theft in place of the single conviction of class 3 felony theft reflected
in the charge and jury verdict. The intermediate appellate court reversed the
conviction for class 3 felony theft on the grounds that when the statutory
authorization for aggregating separate acts of theft was properly applied, there
was insufficient evidence to support a single conviction for theft of $20,000 or
more. It also found, however, that there was sufficient evidence to support four
separate convictions for aggregated thefts with values qualifying as class 4
felonies, and that substituting these four class 4 felony convictions for the vacated
class 3 felony conviction was necessary to fulfill what it understood to be its
obligation to maximize the effect of the jury’s verdict.
The supreme court disapproves the remand order because no theft offense
requiring the aggregation of two or more separate instances of theft, whether that
aggregation were to be based on commission within a period of six months or on
commission as a single course of conduct, was a lesser included offense of the class
3 felony of which Halaseh was actually charged and convicted, no such offense
was implicitly found by the jury, and therefore none could be entered in lieu of the
reversed conviction without depriving the defendant of his right to a jury trial.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 35
Supreme Court Case No. 18SC656
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 14CA478
Petitioner:
John M. Halaseh,
v.
Respondent:
The People of the State of Colorado.
Judgment Reversed
en banc
May 11, 2020
Attorneys for Petitioner:
Megan A. Ring, Public Defender
Jud Lohnes, Deputy Public Defender
Denver, Colorado
Attorneys for Respondent:
Philip J. Weiser, Attorney General
Kevin E. McReynolds, Assistant Attorney General
Denver, Colorado
CHIEF JUSTICE COATS delivered the Opinion of the Court.
¶1 Halaseh petitioned for review of the court of appeals’ remand order in his
underlying appeal, which directed the district court to enter four convictions for
class 4 felony theft in place of the single conviction of class 3 felony theft reflected
in the charge and jury verdict. The intermediate appellate court reversed the
conviction for class 3 felony theft on the grounds that when the statutory
authorization for aggregating separate acts of theft was properly applied, there
was insufficient evidence to support a single conviction for theft of $20,000 or
more. It also found, however, that there was sufficient evidence to support four
separate convictions for aggregated thefts with values qualifying as class 4
felonies, and that substituting these four class 4 felony convictions for the vacated
class 3 felony conviction was necessary to fulfill what it understood to be its
obligation to maximize the effect of the jury’s verdict.
¶2 Because no theft offense requiring the aggregation of two or more separate
instances of theft, whether that aggregation were to be based on commission
within a period of six months or on commission as a single course of conduct, was
a lesser included offense of the class 3 felony of which Halaseh was actually
charged and convicted, no such offense was implicitly found by the jury, and
therefore none could be entered in lieu of the reversed conviction without
depriving the defendant of his right to a jury trial. The remand order of the court
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of appeals is therefore disapproved, and the case is remanded with directions to
simply reverse the conviction for class 3 felony theft.
I.
¶3 John M. Halaseh was charged with one count of theft of $20,000 or more
from the Social Security Administration, committed over a three-year period
extending from January 2008 to January 2011. He was convicted of that charge,
which at the time was a class 3 felony, and was sentenced to probation with a
condition requiring payment of restitution.
¶4 At trial the prosecution presented evidence to the effect that the defendant
took Social Security payments under circumstances amounting to theft,
periodically, on thirty-seven different occasions, with a total value of $24,494. As
the result of a May 2009 amendment to the theft statute affecting the aggregation
of individual acts of theft for purposes of determining the amount or value of the
theft offense charged, and therefore the classification of that offense, the
intermediate appellate court found there to have been insufficient evidence to
support a single conviction for theft of over $20,000. It therefore reversed the
defendant’s conviction. Reasoning that it had an obligation to maximize the jury’s
verdict by ordering the substitution of as many convictions as were both implicit
in the reversed conviction and supported by sufficient evidence, and further
reasoning that by applying the applicable aggregation provisions of the statute,
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the jury could have legally aggregated the individual instances of theft into four
class 4 felonies—three based on acts of theft over separate six-month periods and
one based on acts of theft that were part of the same course of conduct—the
appellate court vacated the defendant’s class 3 felony conviction and remanded
with directions to enter those four class 4 felony convictions in its place.
¶5 The defendant petitioned this court for a writ of certiorari, challenging the
intermediate appellate court’s remand order on a number of grounds related to
the deprivation of his rights to notice and a jury trial.
II.
¶6 As a matter of constitutional limitation, a criminal verdict may not be
directed for the State nor a criminal conviction entered for an offense not
authorized by the jury’s verdict, no matter how overwhelming the evidence. See
Sanchez v. People, 2014 CO 29, ¶ 13, 325 P.3d 553, 558 (directly relying on Sullivan v.
Louisiana, 508 U.S. 275, 277 (1993)); see also Medina v. People, 163 P.3d 1136, 1140
(Colo. 2007) (finding that the district court erred “when it entered its own
conviction and sentence . . . instead of determining the punishment warranted by
the jury’s guilty verdict”). However, under certain circumstances, in both federal
and Colorado law, a judgment of conviction may enter for an offense necessarily
implied in a jury verdict that has been successfully challenged on appeal. See
Rutledge v. United States, 517 U.S. 292, 306 (1996) (“Consistent with the views
4
expressed by the District of Columbia Circuit, federal appellate courts appear to
have uniformly concluded that they may direct the entry of judgment for a lesser
included offense when a conviction for a greater offense is reversed on grounds
that affect only the greater offense. This Court has noted the use of such a practice
with approval.” (citing 8A J. Moore, Federal Practice ¶ 31.03[5] & n.54 (2d ed. 1995);
and Morris v. Mathews, 475 U.S. 237, 246–47 (1986); other citations omitted)); see also
United States v. Mitcheltree, 940 F.2d 1329, 1352 n.17 (10th Cir. 1991); Allison v.
United States, 409 F.2d 445, 450–51 (D.C. Cir. 1969); People v. Sepulveda, 65 P.3d 1002,
1007–08 (Colo. 2003); Crespin v. People, 721 P.2d 688, 692 (Colo. 1986); People v.
Patterson, 532 P.2d 342, 345 (Colo. 1975).
¶7 Procedurally, the federal courts have found authority for the entry of such
implied convictions in 28 U.S.C. § 2106 (2018), which provides that an appellate
court “may affirm, modify, vacate, set aside, or reverse any judgment.” See
Mitcheltree, 940 F.2d at 1352 n.17; Allison, 409 F.2d at 450–51. Similarly, we have
long found authority for this practice in Colorado Appellate Rule 35, which
provides that an appellate court “may, in whole or in part, dismiss an appeal;
affirm, vacate, modify, reverse, or set aside a lower court judgment; and remand
any portion of the case to the lower court for further proceedings.” See Patterson,
532 P.2d at 345.
5
¶8 However, consistent with constitutional limitations, a lesser offense can be
considered necessarily implied in a jury verdict finding a criminal defendant
guilty of a greater offense only to the extent that it can be determined from the
jury’s verdict alone that each of its elements has already been charged and found
by the jury beyond a reasonable doubt. See Sanchez, ¶ 13, 325 P.3d at 558 (“Taken
together, the Fifth Amendment Due Process Clause and the Sixth Amendment
guarantee of a trial by jury permit conviction only upon a jury verdict finding the
defendant guilty of having committed every element of the crime with which he
has been charged.”). Because we have now made clear that an offense is a lesser
included offense of another in this jurisdiction only “if the elements of the lesser
offense are a subset of the elements of the greater offense, such that the lesser
offense contains only elements that are also included in the elements of the greater
offense,” see Reyna-Abarca v. People, 2017 CO 15, ¶ 64, 390 P.3d 816, 826, a lesser
included offense in this jurisdiction is always implied in the conviction of its
greater offense. Whether all of the findings required for the guilty verdict returned
by a jury are better characterized as “elements,” or instead may be better
characterized for certain purposes as “sentencing factors,” a lesser offense, the
required findings for which include no more than has been alleged in the charging
document and already found beyond a reasonable doubt by the jury, is necessarily
implied in the jury verdict. Cf. People v. Garcia, 940 P.2d 357, 363–64 (Colo. 1997),
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as modified on denial of reh’g (Aug. 4, 1997) (finding the prosecution entitled to an
instruction on a lesser offense as if it were a lesser included offense where the
offense as charged alleges a sentence enhancement factor giving the defendant
notice that it must be proved as if it were an element). A lesser offense as to which
the prosecution would not have been entitled to an instruction in the absence of
its express inclusion in the charging document clearly could not be considered
implied in a jury verdict.
¶9 We have never, however, suggested that an appellate court must enter
judgment of conviction of a lesser offense that is necessarily implied in a jury
verdict reversed on appeal, much less that the appellate court must “maximize”
the jury’s verdict by entering judgment of conviction for as many such lesser
offenses as possible. Instead we have held only that it would be “authorized,” or
“proper,” or “appropriate,” to enter judgment on a lesser included offense under
some circumstances, and we have at times expressly found it appropriate not to
enter such a judgment but rather to offer the prosecution the option to retry the
defendant for the greater offense or rest on such a lesser offense conviction, should
it so choose. See, e.g., Sepulveda, 65 P.3d at 1007–08; Crespin, 721 P.2d at 692–93.
Nor have we ever attempted to define or circumscribe the scope of an appellate
court’s discretion in this regard.
7
¶10 The intermediate appellate court’s attempt to fulfill what it understood to
be its duty to maximize the jury verdict was therefore misplaced. In a related
context, we have in the past merely addressed the merger of multiple convictions
that cannot separately stand by reason of either constitutional or statutory
prohibitions; and in those cases, we have merely instructed trial courts to select
the combination of offenses that can simultaneously stand that produce the most
convictions and the longest sentences, in order to maximize the effect of the jury’s
verdict. See People v. Wood, 2019 CO 7, ¶¶ 28–29, 433 P.3d 585, 593 (“[I]n
determining which conviction or convictions should be vacated to honor the double
jeopardy clause, a trial court ‘should be directed to enter as many convictions and
impose as many sentences as are legally possible to fully effectuate the jury’s
verdict.’” (emphasis added) (quoting People v. Glover, 893 P.2d 1311, 1315 (Colo.
1995)).
¶11 In People v. Bartowsheski, 661 P.2d 235, 237, 247 (Colo. 1983), for example,
where the defendant was convicted of deliberation murder, felony murder, and
the underlying felony of robbery, after finding that a defendant may be convicted
of only one count of murder for killing the same victim and that felony murder
and its underlying felony merge, we concluded that the defendant should stand
convicted of first degree murder after deliberation and robbery because doing so
would “give as much effect to the jury’s resolution of the issues submitted to it as
8
can be done without running afoul of the defendant’s constitutional and statutory
rights.” See also Wood, ¶¶ 28–29, 433 P.3d at 593; Glover, 893 P.2d at 1315. Our
guidance in this regard has, however, clearly been limited to instructing lower
courts on the merger of multiple convictions from the same proceeding that cannot
simultaneously stand for the reason that they are effectively convictions for the
same offense. E.g., Wood, ¶¶ 28–29, 433 P.3d at 593.
III.
¶12 The defendant asserts that in its remand order the court of appeals erred in
ordering that the trial court enter multiple judgments of conviction against him for
a number of related reasons, not least among them being that he was never
charged with, and therefore was not on notice that he could be convicted of, more
than one count of theft. We need not address the broader question whether an
appellate court could, under some conceivable set of circumstances, or even under
these particular circumstances, enter multiple judgments of conviction in place of
a single overturned jury verdict, for the reason that none of the judgments entered
by the court of appeals in this case was implied in the jury’s verdict.
¶13 As we recounted in Roberts v. People, 203 P.3d 513, 516 (Colo. 2009),
“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.” Whichever way the crime is committed, it constitutes the offense of
9
“theft.” Unless a theft is committed from the person of another (by means other
than those constituting robbery), its categorization as either petty offense theft, a
particular class of misdemeanor, or a particular class of felony is made contingent
upon the value of the thing involved. § 18-4-401(2), C.R.S. (2019). In addition,
with regard to the crime of theft as it existed at the time of Roberts, we held that
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, constituted a
single crime of theft, the classification of which was determined by the aggregate
value of all of the things involved. 203 P.3d at 516.
¶14 Immediately following our holding in Roberts, the legislature amended the
theft statute, effective May 11, 2009, by, in pertinent part, removing the language
upon which we relied to find that multiple acts of theft committed by the same
person within a six-month period constituted a single crime, and instead
articulating two sets of circumstances in which a prosecutor would be permitted,
but not required, to aggregate thefts for purposes of defining a single crime. Ch.
244, sec. 2, § 18-4-401, 2009 Colo. Sess. Laws 1099, 1099–1100. The first permits
aggregation “when a person commits theft twice or more within a period of six
months,” and the second permits aggregation “when a person commits theft twice
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or more against the same person pursuant to one scheme or course of conduct.”
Id.; § 18-4-401(4)(a), (b).
¶15 Because the thefts charged in a single count in this case spanned the effective
dates of both the old and new statutes, the appellate court concluded that there
was insufficient evidence to enter judgment for a single theft of over $20,000 under
either statute, and it therefore vacated the jury’s guilty verdict as to class 3 felony
theft. Finding, however, that the evidence was sufficient to convict of four
separate aggregated thefts, all amounting to class 4 felonies, it ordered that the
trial court, on remand, enter judgment of conviction on each of those thefts. Only
the validity of the appellate court’s remand order is before us on certiorari.
¶16 Under both the pre- and post-Roberts theft statutes, separate crimes of theft
could be aggregated to constitute a single theft of greater value only as prescribed
by statute. See § 18-4-401(4); 2009 Colo. Sess. Laws at 1099–1100. Whether before
or after the amendment, and whether based on commission within a six-month
period or commission against the same person pursuant to one scheme or course
of conduct, conviction of an aggregated theft clearly required the finding of an
additional element not required for conviction of a single act of theft. The jury was
not instructed with regard to any such additional element, and the prosecution
would not have been entitled to such an instruction had it requested one. See
Garcia, 940 P.2d at 363–64. Therefore, none of the lesser theft offenses substituted
11
by the court of appeals was a lesser included offense of the charged theft, see Reyna-
Abarca, ¶ 64, 390 P.3d at 826, or its equivalent, see Garcia, 940 P.2d at 363–64, nor
did the appellate court suggest anything of the kind.
¶17 Rather, the court of appeals held that the three, six-month, time-limited
thefts, and the one theft committed as a single course of conduct against the same
person, were implicit in the jury’s “findings” based on pre-trial discovery, the
complaint, and the evidence presented at trial. The court of appeals effectively
reasoned that the defendant was adequately protected, notwithstanding the
failure of the prosecution to charge thefts limited to six-month aggregations or
those committed as a single course of conduct against the same person, because
the complaint alleged theft over the entire period from January 1, 2008 to January
31, 2011; the defendant was on notice from pre-trial discovery that the Social
Security Administration was alleging thirty-seven consecutive instances of
overpayment; and the evidence at trial included nothing that would lead a juror
to conclude that the alleged acts of theft occurred on some occasions but not on
others.
¶18 While overwhelming evidence of an omitted element may well demonstrate
harmless constitutional error with regard to a jury verdict, imputing guilt for an
uncharged crime or directing a verdict of guilt for a charged one would simply
violate the defendant’s constitutional right to a jury trial. See Sullivan, 508 U.S. at
12
277; Sanchez, ¶ 13, 325 P.3d at 558. We have never held, and it is clearly not the
case, that conviction of a lesser non-included offense may be entered in lieu of an
overturned jury conviction, as long as overwhelming evidence of the non-included
elements was presented at trial. Unlike a lesser included offense, the elements of
which are a subset of and are therefore necessarily included in the charged offense,
a defendant has not necessarily been put on notice by the charge that he must also
defend against the lesser non-included offense, and the jury’s verdict of guilt as to
the charged offense does not necessarily reflect its conviction of the lesser non-
included offense.
¶19 In the absence of assurance as to both of these conditions, a criminal
defendant is deprived of his constitutional right to a jury trial of the charges
brought against him. The court of appeals therefore erred in expanding the class
of lesser offense that may be entered in lieu of a successfully challenged conviction
for a greater offense.
IV.
¶20 Because no theft offense requiring the aggregation of two or more separate
instances of theft, whether that aggregation were to be based on commission
within a period of six months or on commission as a single course of conduct, was
a lesser included offense of the class 3 felony of which Halaseh was actually
charged and convicted, no such offense was implicitly found by the jury, and
13
therefore none could be entered in lieu of the reversed conviction, without
depriving the defendant of his right to a jury trial. The remand order of the court
of appeals is therefore disapproved, and the case is remanded with directions to
simply reverse the conviction for class 3 felony theft.
14