No. 82CA0338Colorado Court of Appeals.
Decided November 17, 1983. Rehearing Denied December 29, 1983. Certiorari Denied June 14, 1984.
Appeal from the District Court of the City and County of Denver Honorable Lynne M. Hufnagel, Judge
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Duane Woodard, Attorney General, Charles B. Howe, Deputy Attorney General, Joel W. Cantrick, Special Assistant Attorney General, John Milton Hutchins, Assistant Attorney General, for plaintiff-appellee.
David F. Vela, Colorado State Public Defender, Lyndy Ohneck, Deputy State Public Defender, for defendant-appellant.
Division I
Opinion by JUDGE METZGER
[1] Defendant appeals his jury conviction of theft of over $10,000, pursuant to § 18-4-401, C.R.S. 1973 (1978 Repl. Vol. 8). We affirm. [2] Defendant was an independent construction and landscaping contractor. During the fall of 1978, through both newspaper ads as well as his promotional and sales representative, who later testified against him at trial, defendant solicited customers for landscaping and remodeling work. In October 1978 defendant entered into written contracts with five different Denver area homeowners for such work. He received initial payments from them totalling over $12,000, in the form of checks. All five projects were to be begun and completed in a matter of weeks However, virtually no work was done on any of them, and in all cases the defendant failed to refund any of his customers’ money upon request. [3] It was later discovered that during October and November 1978, all these monies had been deposited into, and then withdrawn from, a new local checking account which, by December 12, 1978, had been closed for insufficient funds. During that winter and the following spring, five homeowners unsuccessfully attempted to obtain either performance on the contract or refunds. [4] They then contacted the District Attorney’s Consumer Fraud Office, which instituted the theft prosecution. Upon the jury conviction, the trial court, citing defendant’s two prior theft convictions, as well as a lengthy arrest record for theft and short checks, imposed the maximum sentence, eight years, and ordered that restitution be paid to the five victims. I.
[5] Defendant initially maintains that the prosecution was based not only on the general theft statute, § 18-4-401, C.R.S. 1973 (1978 Repl. Vol. 8), which was charged in the information, but also on the subcontractor’s lien statute, § 38-22-127, C.R.S. 1973 (1982 Repl. Vol. 16A), which was not a part of the information. From this position flow three related contentions of error.
A.
[6] First defendant contends that there was, in effect, one criminal charge based on two statutes. He maintains that the prosecution had to prove the elements of both statutes for there to be any criminal liability. Defendant continues that, since the evidence adduced at trial related logically to the theft statute only, there was an overall insufficiency of evidence for the offense charged. We disagree.
Annot., 78 A.L.R.3d 563. [8] The lien statute is a strictly civil provision which cannot in itself serve as the basis for a criminal action. The state may choose to treat the actions of the contractor as a criminal matter, but any such prosecution must be charged and proved under the theft statute. People v. Brand, supra; § 38-22-127(5), C.R.S. 1973. It is precisely this requirement, necessitating proof of all the elements of theft for conviction, which prevents the lien statute from violating the constitutional prohibition
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against imprisonment for debt. People v. Piskula, 197 Colo. 148, 595 P.2d 219 (1979).
[9] This prosecution was based solely on the theft statute. It was therefore unnecessary for the prosecution to prove any of the elements of the lien statute. The information referred to the offense of theft only, and cited the theft statute, to the exclusion of any other pertinent statutory provision. All the prosecution’s evidence and argument at trial went directly to its theory of the case, that the defendant fully intended to retain all the customers’ monies over their protests, and to avoid performance on the contracts. The prosecution’s case-in-chief had no reference to any laborers or materialmen. Thus, defendant’s lengthy argument, that the People did not prove the type of conduct prohibited by the lien statute, fails to address the gravamen of the offense which was charged and upon which defendant was convicted. There was sufficient evidence for the jury to find defendant guilty of theft, and, thus, defendant’s argument as to this issue must fail.B.
[10] Because we find that the lien statute was not a basis for prosecution, defendant’s constitutional argument, that he was prosecuted under the lien statute for civil debt, must also fail. See People v. Piskula, supra.
C.
[11] Defendant asserts that the trial court erred in giving a jury instruction quoting in large part from the lien statute. He contends that this instruction was not relevant to any material issue and was unsupported by any evidence. We disagree.
II.
[18] Defendant also contends the trial court erred in admitting the complete records of the bank account into which defendant deposited the checks given him by the five victims. Defendant argues that part of these records were unrelated to the five transactions in issue, that they suggested unrelated criminal activity, that they were
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unduly prejudicial to him, and that, therefore, they were inadmissible under Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959); People v. Honey, 198 Colo. 64, 596 P.2d 751 (1979); and CRE 404(b). He does not assert any error in the procedure surrounding the admission of the evidence nor does he contest the language of the limiting instruction given by the court.
[19] Defendant had offered to stipulate to all bank account records during the period in which the five transactions took place, October and November, but objected to admission of any records from December. The trial court admitted the complete record of the account, however, including several checks defendant had written during December which had been returned for insufficient funds. It is the admission of the December records, especially the returned checks, which defendant contests as unduly prejudicial. [20] Evidence of similar acts or other offenses is inadmissible to show the propensity of an accused to commit the offense with which he or she is charged. Such evidence is admissible, however, where it is offered for a valid purpose, such as to show motive, intent, plan, design, scheme, or a continuing transaction, where it is relevant to a material issue in the case, and where its probative value outweighs its prejudicial effect People v. Honey, supra; Stull v. People, supra; CRE 404(b). [21] The additional increment of December’s records completed the brief 3-month history of defendant’s bank account and, therefore, aided the jury’s understanding of the way in which defendant treated the victims’ payments. Any prejudicial effect of the insufficient funds checks was outweighed by the probative value of having the complete record of defendant’s account. The December records, introduced for the valid purpose of illuminating defendant’s real intentions, were admissible under the broad exception defined by People v. Honey and Stull v. People, supra. III.
[22] Defendant also contends that the trial court erred in instructing the jury that an attempt to repay does not negate the commission of a theft. Defendant maintains that there was no evidence of any attempt to repay and that such instruction, being unsupported by evidence, was inadmissible under Rumley v. People, 149 Colo. 132, 368 P.2d 197 (1962). We disagree that evidence on this issue was lacking.
IV.
[25] Defendant contends there was plain error in the trial court’s instruction on the elements of theft. Defendant maintains that the instruction incorrectly made the culpable mental state of “knowingly” inapplicable to the element of “without authorization.” The instruction read as follows:
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[31] (2) Without authorization, and [32] (3) Knowingly uses the thing of value in such a manner as to deprive the other person permanently of its use or benefit. [33] (4) The value of the thing involved is Ten Thousand Dollars ($10,000) or more.” [34] The basic requirement for instructions is that, read and considered in their entirety, they must clearly instruct the jury. People v. Manier, 184 Colo. 44, 518 P.2d 811 (1974). An instruction on the elements of an offense containing no reference to a culpable mental state may be cured by the inclusion of a separate joint operation instruction. People v. Mattas, 645 P.2d 254 (Colo. 1982). See also People v. Cisneros, 665 P.2d 145(Colo.App. 1983). [35] Here, an instruction on joint operation, which thoroughly described the meaning and operation of the mens rea requirement, was given. Therefore, while the better practice might have been to include the mens rea requirement for all elements, a special instruction on “knowingly” as applied to “without authorization” was not required. People v. Gresham, 647 P.2d 243 (Colo.App. 1982).
V.
[36] Finally, defendant contends error in the consolidation into one count of the losses suffered by all five victims, thereby making it possible for the offense of theft over $10,000 to be charged. We disagree.