2022 COA 107
Colo. Ct. App.2022Background
- Defendant Jesus Rodriguez-Morelos ran uncertified certified-nursing-assistant (CNA) classes aimed at Spanish-speaking immigrants and charged students fees for the courses.
- He volunteered for a nonprofit, United for Migrants, and without authorization represented the classes as affiliated with that nonprofit, used a nonexistent “Director of Education” title, and distributed a tax-exempt document bearing the nonprofit’s name.
- Students paid for classes (typically upfront); classes were overcrowded and did not lead to CNA employment or state certification. Defendant sometimes refused to provide receipts.
- A jury convicted defendant of one count of identity theft, three counts of felony theft (aggregated counts), and one count of criminal impersonation; the trial court ordered restitution to victims.
- On appeal the Court of Appeals vacated the identity-theft conviction (two theories), affirmed the other convictions and the restitution order, and remanded to correct the mittimus.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether using a nonprofit’s name/tax-exempt document constituted use of “personal identifying information” under Colo. Rev. Stat. § 18-5-901(13) | "Of another" in the identity-theft statute covers business entities; thus the nonprofit’s name/documents qualify as personal identifying information when used without permission | "Specific individual" in the definition limits personal identifying information to a single identified human being, not an organization | Court held “personal identifying information” refers to an identified natural person; use of the nonprofit’s name/documents did not satisfy that definition, so conviction on that theory vacated |
| Whether the tax-exempt document constituted “financial identifying information” used with intent to obtain cash or other value under § 18-5-902(1)(a) | The document is financial identifying information and deception/retention doctrines show timing irrelevant; defendant used it to obtain payments | Although the document is financial identifying information, record lacked evidence the document induced payment or was used with intent to obtain value (students paid upfront; victims didn’t testify they enrolled to obtain the document) | Court held evidence insufficient to prove defendant used the nonprofit’s financial identifying information with intent to obtain cash/other value; conviction on that theory vacated |
| Whether trial court erred by denying motion to strike testimony of two victims who invoked Fifth Amendment on immigration questions | Plaintiff: testimony was admissible; invocation did not require striking because the withheld answers were collateral | Defendant: victims’ invocation prejudiced his right to confront and impeach, warranting striking their testimony | Court found the withheld immigration-related questions collateral to the elements and credibility issues were addressable by other evidence; denial of motion to strike was not an abuse of discretion |
| Whether mid-trial amendment to aggregated theft counts/variance amounted to prejudicial constructive amendment | Plaintiff: amendment merely narrowed counts to victims who testified or fit time frame; no new offense charged | Defendant: amendment removed alleged thefts and prejudiced defense (timing prevented judgment-of-acquittal motion); akin to Ramos error | Court held amendment was one of form (no new offense, adequate notice), did not prejudice substantial rights, and jury convicted on the victims/instructions actually submitted |
| Whether restitution hearing violated defendant’s right to be present and whether restitution covered uncharged/dismissed conduct | Plaintiff: defendant knowingly waived presence; restitution properly based on victim testimony and victim-impact information | Defendant: he was absent and did not knowingly waive; restitution included uncharged or dismissed thefts | Court held defendant knowingly, intelligently, and voluntarily waived presence; restitution was tied to convicted theft victims and supported by records and victim statements, so order upheld |
Key Cases Cited
- Robinson v. Colo. State Lottery Div., 179 P.3d 998 (Colo. 2008) (legislative use of different terms signals different meanings; avoid rendering statutory words superfluous)
- Clark v. People, 232 P.3d 1287 (Colo. 2010) (standard for reviewing sufficiency of the evidence)
- People v. Bennett, 515 P.2d 466 (Colo. 1973) (sufficiency review principles)
- People v. Ray, 109 P.3d 996 (Colo. App. 2004) (test for striking testimony based on Fifth Amendment invocation—focus on whether answers are closely related to the crime)
- People v. Coca, 564 P.2d 431 (Colo. App. 1977) (same; collateral vs. probative impeachment matters)
- Doumbouya v. Cnty. Ct., 224 P.3d 425 (Colo. App. 2009) (cross-examination about immigration consequences may be material in some contexts)
- People v. Manzanares, 942 P.2d 1235 (Colo. App. 1996) (amendment may limit jury to proof within the information and bill of particulars)
- People v. Moody, 674 P.2d 366 (Colo. 1984) (timing of amendments and prejudice analysis)
- People v. Garcia, 940 P.2d 357 (Colo. 1997) (uncharged lesser included offenses may be submitted if they are lesser included offenses)
- Mozee v. People, 723 P.2d 117 (Colo. 1986) (waiver requires knowing awareness of the right and informed choice)