People v. Poot-Baca.
2023 COA 112. No. 20CA1153. Identity Theft—Criminal Possession of a Financial Device—Prosecution of Multiple Counts for Same Act—Lesser Included Offenses.
November 30, 2023
Poot-Baca was arrested in connection with crimes against Sheppard, an 81-year-old woman who was waiting at a bus stop when a man pushed her to the ground, took her purse and bag, and ran away. Sheppard’s Discover credit card was in her purse, and the next day, three unauthorized charges were made online with the card. Sheppard was deposed pretrial, and Poot-Baca attended the deposition. The prosecutor did not ask Sheppard to identify her assailant during the deposition, but immediately afterward, Sheppard spontaneously told the prosecution’s investigator that she recognized Poot-Baca as her assailant. Defense counsel moved to suppress this identification and any subsequent in-court identification. The court denied the motion. Poot-Baca was convicted of robbery of an at-risk person, identity theft, and criminal possession of a financial device.
On appeal, Poot-Baca contended that the district court erred by (1) denying his request to waive his presence at Sheppard’s deposition, (2) admitting Sheppard’s pretrial identification of him following the deposition because it was unreliable under the circumstances, and (3) admitting her subsequent in-court identification. However, any error was harmless, given other identification evidence admitted at trial and not challenged on appeal, including DNA evidence that identified Poot-Baca as the robber and evidence showing that Poot-Baca possessed Sheppard’s credit card and attempted to use it the next day.
Poot-Baca also argued that criminal possession of a financial device is a lesser included offense of identity theft under CRS § 18-1-408(5)(a), so the district court erred by not merging his conviction for criminal possession of a financial device with his conviction for identity theft. Under CRS § 18-5-903(1), criminal possession of a financial device requires proof that the defendant knew, or reasonably should have known, that the financial device was “lost, stolen, or delivered under mistake as to the identity or address of the account holder.” Conversely, under CRS § 18-5-902(2), the offense of identity theft premised on use of a financial device does not include this element. Therefore, proving the elements of identity theft does not necessarily establish the elements of criminal possession of a financial device. Accordingly, criminal possession of a financial device is not a lesser included offense of identity theft under subsection 408(5)(a).
Poot-Baca alternatively argued that the lesser offense was included in the greater under CRS § 18-1-408(5)(c), which provides that an offense is included in another if it is different from the charged offense “only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” He maintained that subsection 408(5)(c) applies because the only distinction between criminal possession of a financial device and identity theft is that there is a less serious injury or risk of injury to the same credit card holder in criminal possession of a financial device. However, the two offenses punish different conduct, and the statutes protect different things: criminal possession of a financial device protects only financial devices, while identity theft also protects personal identifying information and financial identifying information. Accordingly, criminal possession of a financial device is not a lesser included offense of identity theft under CRS § 18-1-408(5)(c).
Poot-Baca further contended that the district court erred by ordering him to pay restitution to Discover for losses resulting from transactions that he was not convicted of executing. He argued that Discover’s losses were not proximately caused by his conduct because the identity theft and criminal possession of a financial device convictions were based only on evidence that he used the credit card to attempt a purchase that was declined. Here, the jury found that Poot-Baca robbed Sheppard by forcibly taking her purse, which contained her credit card. This evidence allowed the district court to reasonably find that his taking of the credit card produced the unauthorized use of the card. This consequence was foreseeable even though the robbery offense did not require proof that Poot-Baca used the taken property to another’s financial detriment. Therefore, sufficient evidence supported the court’s finding that Poot-Baca was the proximate cause of Discover’s losses, and the restitution award was proper.
The judgment and order were affirmed.