Prior
Opinion Announced July 27, 2017, WITHDRAWN Petitions for
Rehearing GRANTED
El
Paso County District Court No. 12CR4638 Honorable Theresa M.
Cisneros, Judge
OPINION
PREVIOUSLY ANNOUNCED AS "NOT PUBLISHED PURSUANT TO
C.A.R. 35(e)" ON July 27, 2017, IS NOW DESIGNATED FOR
PUBLICATION
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
OPINION
HAWTHORNE, JUDGE
¶
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 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 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
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 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 ...