Opinion
No. 76-750
Decided April 27, 1978. Rehearing denied June 1, 1978. Certiorari denied September 11, 1978.
From conviction of theft by deception, defendant appealed.
Affirmed
1. CRIMINAL LAW — Theft — By Deception — Document — Appearance of Check — Words in Small Type — Read As Promissory Note — Elements of Crime — Proved. Where in purchasing automobile defendant gave seller a document which on cursory examination was a check, but which by use of certain words appearing thereon in small type and at widely dispersed locations, the document could be read as being a promissory note not due until 1983, the trial court properly concluded from the design of the document and the surrounding circumstances that the elements of the crime of theft by deception had been proved.
Appeal from the District Court of Jefferson County, Honorable Roscoe Pile, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, David Schwartz, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Carol L. Gerstl, Deputy State Public Defender, for defendant-appellant.
The defendant, Leonard Otis Hopkins, III, appeals his conviction of theft by deception in violation of § 18-4-401, C.R.S. 1973. We disagree with his contention that there was insufficient evidence to sustain the conviction and therefore affirm.
During a non-jury trial, evidence of the following facts was adduced: Hopkins responded to a newspaper advertisement of one Michaels offering for sale a 1974 Porsche automobile for $6,000. After a test drive and some negotiations, Hopkins agreed to purchase the car for the advertised price and the two made arrangements to meet at a bank the next day. When Hopkins appeared at the bank, he handed Michaels an envelope containing a document which Michaels thought was a check for $6,000. This document was received in evidence at the trial and designated Exhibit A. It is reproduced here as Figure 1.
Figure 1 (emphasis added to "on," 1/3/83," and "will")
Hopkins produced a bill of sale mentioning consideration of $6,000. Michaels signed that document and the motor vehicle title, and both were notarized. Michaels signed the back of Exhibit A and deposited it in his savings account. Eventually, when the document could not be cleared through banking channels, an officer of Michaels' bank wrote to Republic Fidelity and Assurance Company. In return the bank received a letter signed by Hopkins referring to the document as a note and pointing out that it should be read as follows:
"On 1/3/83 Republic Fidelity and Assurance, Denver, Colorado, will pay to the order of Gary E. Michaels, $6,000."
To show plan, scheme, and design, evidence was presented at the trial that Hopkins had used an identical form of document to pay registration fees and taxes due on the automobile to be Jefferson County Clerk's office, and had used similar instruments in other transactions. Three packages of promissory notes similar to Exhibit A were found in Hopkins' home as well as a check protector machine and two books on the subject of fraud.
Hopkins' explanation that he intended to issue a note payable in 1983 did not convince the trial court, which found him guilty of theft; nor are we so persuaded.
On appeal, Hopkins argues that because the necessary elements of the previously existing crimes of false pretenses and confidence game were not proved, his conviction under the theft statute cannot stand. Such analogy to the prior crimes serves no purpose. In defining one crime of theft, the General Assembly intended to "eliminate distinctions and technicalities" which previously existed. Maes v. People, 178 Colo. 46, 494 P.2d 1290 (1972); People v. Terranova, 38 Colo. App. 476, 563 P.2d 363 (1977).
Here, the trial court found, among other things, that Exhibit A had no value, that it was intended to and had deceived Michaels, that Hopkins intended permanently to deprive Michaels of the use of the automobile, and that these conclusions were reinforced by the evidence of other transactions.
[1] Taking the evidence in a light most favorable to the prosecution, People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973), the trial court's conclusion that the elements of theft by deception have been proved must be upheld. The very design of the document and the circumstances surrounding the sale amply support the finding that Hopkins misrepresented the document as being presently collectable.
Moreover, because intent may be inferred from the particular facts and circumstances of the case, People v. Becker, 187 Colo. 344, 531 P.2d 386 (1975), the trial court could properly conclude that Hopkins had developed a scheme by which he intended to gain permanent possession of the automobile by depriving Michaels of it without making the agreed upon payment.
Hopkins' misplaced enterprise and ingenuity in using documents like Exhibit A invite rather than avoid the sanctions of the criminal law. Civil remedies available under the Uniform Commercial Code to victims of acts of the type involved here are not, as Hopkins suggests, exclusive. The crime of theft by deception as defined in the statute was committed and Hopkins was properly convicted.
The judgment is affirmed.
JUDGE COYTE and JUDGE RULAND concur.