2013 COA 149
Colo. Ct. App.2013Background
- In May 2009 the victim executed a broad general power of attorney (POA) in Virginia appointing his son, Geoffrey Hunt Stell, as agent. The POA included sweeping authority to deal with the principal's property and to act "as fully and effectively as I could do if acting personally."
- Between May 2009 and mid-2010, Stell liquidated the victim’s bank accounts, retirement accounts, sold timber and an 11-acre parcel, and received about $453,928.81, which the indictment alleges he diverted to personal use.
- In mid-2010 Stell caused the victim to execute a trust (with Stell as trustee) and transferred a parcel to that trust; the victim was not a beneficiary and allegedly was deprived of the property’s use.
- The victim revoked the POA in October 2010 and reported Stell; Stell was indicted on multiple theft counts, including counts 1–4 alleging unlawful obtaining of money/property "without authorization or by threat or deception."
- Stell moved to dismiss counts 1–4 arguing the POA authorized his actions; the People argued the Uniform Power of Attorney Act (UPAA) imposed fiduciary duties that could show acts were "without authorization." The district court dismissed counts 1, 2, 4 and pre-termination portions of count 3, finding the POA authorized the conduct.
- The People appealed; the court of appeals reversed and remanded, holding the question of authorization is factual (guided by UPAA and common law) and count 4 also could stand independently as theft by deception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the POA precludes proof that Stell acted "without authorization" for counts 1–4 | The People: UPAA imposes fiduciary duties and limits agent authority; breach can make acts unauthorized => jury question | Stell: POA granted broad authority to do anything the principal could do; therefore acts were authorized and cannot be theft | Reversed dismissal: applicability of UPAA and POA construction create factual issues for jury on authorization (counts 1–4 and parts of 3) |
| Whether count 4 may allege theft "by deception" regardless of POA authority | The People: Even if transfer was authorized, deception in inducing the trust could constitute theft by deception | Stell: Authorization under POA negates theft defense for post-POA acts | Reversed dismissal as independent ground: evidence could support theft by deception on count 4 regardless of POA authorization |
Key Cases Cited
- People v. Hall, 999 P.2d 207 (Colo. 2000) (standard of review for legal dismissals)
- People v. Gracey, 940 P.2d 1050 (Colo.App. 1996) (authorization is a factual question where POA is at issue)
- People v. Treat, 568 P.2d 473 (Colo. 1977) (theft may occur when intent to permanently deprive arises after authorization ends)
- In re Trust of Franzen, 955 P.2d 1018 (Colo. 1998) (POA confers express authority; construction follows jurisdictional choice and intent)
- Jones v. Brandt, 645 S.E.2d 312 (Va. 2007) (powers of attorney are strictly construed; broad language is interpreted narrowly)
- Oden v. Salch, 379 S.E.2d 346 (Va. 1989) (agent must exercise utmost good faith and loyalty under POA)
- People v. Madison, 176 P.3d 793 (Colo.App. 2007) (statutory POA can create duties relevant to criminal liability)
- People v. Prendergast, 87 P.3d 175 (Colo.App. 2003) (initial authorization does not preclude theft charge if deception induced control)