dissenting:
Section 38-22-127, 16A C.R.S. (1982), requires that a contractor on any construction project hold in trust for the payment of subcontractors, suppliers and laborers funds disbursed to the contractor in payment for work performed on the project. The statute further provides that any person who violates the requirement that such funds be held in trust commits theft under section 18-4-401, 8B C.R.S. (1986). The majority holds that a contractor can be convicted of theft under this statutory *708scheme notwithstanding a complete absence of knowledge of the requirement that payment for construction work be held in trust. I would not impute to the legislature the intent to impose criminal liability in absence of any wrongful intent by a contractor, and therefore I respectfully dissent.
The majority holds that a contractor can be found guilty of theft for using funds disbursed to him under a construction contract while being completely unaware of his statutorily-imposed responsibility to hold the funds in trust. In doing so, the majority has allowed the imposition of criminal liability on one who lacks a culpable mental state. “Generally, in order to subject a person to criminal liability for a felony or serious misdemeanor, there must be a concurrence of an unlawful act (actus reus) and a culpable mental state {mens rea).” Hendershott v. People, 653 P.2d 385, 390 (Colo.1982). See United States v. Bailey, 444 U.S. 394, 402, 100 S.Ct. 624, 630, 62 L.Ed.2d 575 (1980); Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); People v. Marcy, 628 P.2d 69 (Colo.1981).
The theft statute, it is true, requires a culpable mental state. A person is guilty of theft only if he “knowingly obtains or exercises control over anything of value of another without authorization” and “intends to deprive the other person permanently of the use or benefit of the thing of value.” § 18-4-401(1), 8B C.R.S. (1986). The majority holds that the requisite culpable mental state can be predicated on the legal fiction that the contractor in this case was aware of the requirements of section 38-22-127, or that it is irrelevant whether he knew of those requirements because ignorance of the law is not a defense. I cannot believe, however, that the legislature intended to impose criminal liability of degrees of seriousness ranging up to a class 3 felony on the basis of legally imputed but factually nonexistent knowledge that funds received in payment for construction work were deemed in law to be held in trust. See Hendershott v. People, 653 P.2d 385, 390 (Colo.1982) (legislature rarely will attempt to impose criminal sanctions on the blameless); § 2-4-201(l)(c), IB C.R.S. (1980) (in enacting a statute, it is presumed that a just and reasonable result is intended).
It is unnecessary to determine whether the legislature could impose such liability. Rather, in absence of a clearcut expression of an intention to do so — an intention I cannot discern from the statutes at issue — I would not construe the statutes to impose criminal liability in circumstances where, as here, the contractor had no actual knowledge of his obligation to hold the funds in trust.
I would affirm the judgment of the trial court.
QUINN, C.J., joins in this dissent.