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ADVANCE SHEET HEADNOTE

May 11, 2020

2020 CO 35

No. 18SC656, Halaseh v. People—Entry of Conviction on Remand—Lesser 

Included Offenses.

Halaseh petitioned for review of the court of appeals’ remand order in his 

underlying appeal, which directed the district court to enter four convictions for 

class 4 felony theft in place of the single conviction of class 3 felony theft reflected 

in the charge and jury verdict. The intermediate appellate court reversed the 

conviction for class 3 felony theft on the grounds that when the statutory 

authorization for aggregating separate acts of theft was properly applied, there 

was insufficient evidence to support a single conviction for theft of $20,000 or 

more. It also found, however, that there was sufficient evidence to support four 

separate convictions for aggregated thefts with values qualifying as class 4 

felonies, and that substituting these four class 4 felony convictions for the vacated 

class 3 felony conviction was necessary to fulfill what it understood to be its 

obligation to maximize the effect of the jury’s verdict.
The supreme court disapproves the remand order because no theft offense 

requiring the aggregation of two or more separate instances of theft, whether that 

aggregation were to be based on commission within a period of six months or on 

commission as a single course of conduct, was a lesser included offense of the class 

3 felony of which Halaseh was actually charged and convicted, no such offense 

was implicitly found by the jury, and therefore none could be entered in lieu of the 

reversed conviction without depriving the defendant of his right to a jury trial. 
The Supreme Court of the State of Colorado

2 East 14th Avenue • Denver, Colorado 80203

2020 CO 35

Supreme Court Case No. 18SC656

Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 14CA478

Petitioner:

John M. Halaseh,

v.

Respondent:

The People of the State of Colorado.

Judgment Reversed

en banc

May 11, 2020

Attorneys for Petitioner:

Megan A. Ring, Public Defender

Jud Lohnes, Deputy Public Defender

Denver, Colorado

Attorneys for Respondent:

Philip J. Weiser, Attorney General

Kevin E. McReynolds, Assistant Attorney General

Denver, Colorado

CHIEF JUSTICE COATS delivered the Opinion of the Court.
2

¶1 Halaseh petitioned for review of the court of appeals’ remand order in his 

underlying appeal, which directed the district court to enter four convictions for 

class 4 felony theft in place of the single conviction of class 3 felony theft reflected 

in the charge and jury verdict. The intermediate appellate court reversed the 

conviction for class 3 felony theft on the grounds that when the statutory 

authorization for aggregating separate acts of theft was properly applied, there 

was insufficient evidence to support a single conviction for theft of $20,000 or 

more. It also found, however, that there was sufficient evidence to support four 

separate convictions for aggregated thefts with values qualifying as class 4 

felonies, and that substituting these four class 4 felony convictions for the vacated 

class 3 felony conviction was necessary to fulfill what it understood to be its 

obligation to maximize the effect of the jury’s verdict.

¶2 Because no theft offense requiring the aggregation of two or more separate 

instances of theft, whether that aggregation were to be based on commission 

within a period of six months or on commission as a single course of conduct, was 

a lesser included offense of the class 3 felony of which Halaseh was actually 

charged and convicted, no such offense was implicitly found by the jury, and 

therefore none could be entered in lieu of the reversed conviction without 

depriving the defendant of his right to a jury trial. The remand order of the court 
3

of appeals is therefore disapproved, and the case is remanded with directions to 

simply reverse the conviction for class 3 felony theft.

I.

¶3 John M. Halaseh was charged with one count of theft of $20,000 or more 

from the Social Security Administration, committed over a three-year period 

extending from January 2008 to January 2011. He was convicted of that charge, 

which at the time was a class 3 felony, and was sentenced to probation with a 

condition requiring payment of restitution. 

¶4 At trial the prosecution presented evidence to the effect that the defendant 

took Social Security payments under circumstances amounting to theft, 

periodically, on thirty-seven different occasions, with a total value of $24,494. As 

the result of a May 2009 amendment to the theft statute affecting the aggregation 

of individual acts of theft for purposes of determining the amount or value of the 

theft offense charged, and therefore the classification of that offense, the 

intermediate appellate court found there to have been insufficient evidence to 

support a single conviction for theft of over $20,000. It therefore reversed the 

defendant’s conviction. Reasoning that it had an obligation to maximize the jury’s 

verdict by ordering the substitution of as many convictions as were both implicit 

in the reversed conviction and supported by sufficient evidence, and further 

reasoning that by applying the applicable aggregation provisions of the statute, 
4

the jury could have legally aggregated the individual instances of theft into four 

class 4 felonies—three based on acts of theft over separate six-month periods and 

one based on acts of theft that were part of the same course of conduct—the 

appellate court vacated the defendant’s class 3 felony conviction and remanded 

with directions to enter those four class 4 felony convictions in its place.

¶5 The defendant petitioned this court for a writ of certiorari, challenging the 

intermediate appellate court’s remand order on a number of grounds related to 

the deprivation of his rights to notice and a jury trial. 

II.

¶6 As a matter of constitutional limitation, a criminal verdict may not be 

directed for the State nor a criminal conviction entered for an offense not 

authorized by the jury’s verdict, no matter how overwhelming the evidence. See

Sanchez v. People, 2014 CO 29, ¶ 13, 325 P.3d 553, 558 (directly relying on Sullivan v. 

Louisiana, 508 U.S. 275, 277 (1993)); see also Medina v. People, 163 P.3d 1136, 1140

(Colo. 2007) (finding that the district court erred “when it entered its own 

conviction and sentence . . . instead of determining the punishment warranted by 

the jury’s guilty verdict”). However, under certain circumstances, in both federal 

and Colorado law, a judgment of conviction may enter for an offense necessarily 

implied in a jury verdict that has been successfully challenged on appeal. See 

Rutledge v. United States, 517 U.S. 292, 306 (1996) (“Consistent with the views 
5

expressed by the District of Columbia Circuit, federal appellate courts appear to 

have uniformly concluded that they may direct the entry of judgment for a lesser 

included offense when a conviction for a greater offense is reversed on grounds 

that affect only the greater offense. This Court has noted the use of such a practice 

with approval.” (citing 8A J. Moore, Federal Practice ¶ 31.03[5] & n.54 (2d ed. 1995);

and Morris v. Mathews, 475 U.S. 237, 246–47 (1986); other citations omitted));see also

United States v. Mitcheltree, 940 F.2d 1329, 1352 n.17 (10th Cir. 1991); Allison v. 

United States, 409 F.2d 445, 450–51 (D.C. Cir. 1969); People v. Sepulveda, 65 P.3d 1002, 

1007–08 (Colo. 2003); Crespin v. People, 721 P.2d 688, 692 (Colo. 1986); People v. 

Patterson, 532 P.2d 342, 345 (Colo. 1975). 

¶7 Procedurally, the federal courts have found authority for the entry of such 

implied convictions in 28 U.S.C. § 2106 (2018), which provides that an appellate 

court “may affirm, modify, vacate, set aside, or reverse any judgment.” See 

Mitcheltree, 940 F.2d at 1352 n.17; Allison, 409 F.2d at 450–51. Similarly, we have 

long found authority for this practice in Colorado Appellate Rule 35, which 

provides that an appellate court “may, in whole or in part, dismiss an appeal; 

affirm, vacate, modify, reverse, or set aside a lower court judgment; and remand 

any portion of the case to the lower court for further proceedings.” See Patterson,

532 P.2d at 345. 
6

¶8 However, consistent with constitutional limitations, a lesser offense can be 

considered necessarily implied in a jury verdict finding a criminal defendant 

guilty of a greater offense only to the extent that it can be determined from the 

jury’s verdict alone that each of its elements has already been charged and found

by the jury beyond a reasonable doubt. See Sanchez, ¶ 13, 325 P.3d at 558 (“Taken 

together, the Fifth Amendment Due Process Clause and the Sixth Amendment 

guarantee of a trial by jury permit conviction only upon a jury verdict finding the 

defendant guilty of having committed every element of the crime with which he 

has been charged.”). Because we have now made clear that an offense is a lesser 

included offense of another in this jurisdiction only “if the elements of the lesser 

offense are a subset of the elements of the greater offense, such that the lesser 

offense contains only elements that are also included in the elements of the greater 

offense,” see Reyna-Abarca v. People, 2017 CO 15, ¶ 64, 390 P.3d 816, 826, a lesser 

included offense in this jurisdiction is always implied in the conviction of its 

greater offense. Whether all of the findings required for the guilty verdict returned 

by a jury are better characterized as “elements,” or instead may be better 

characterized for certain purposes as “sentencing factors,” a lesser offense, the 

required findings for which include no more than has been alleged in the charging 

document and already found beyond a reasonable doubt by the jury, is necessarily 

implied in the jury verdict. Cf. People v. Garcia, 940 P.2d 357, 363–64 (Colo. 1997),
7

as modified on denial of reh’g (Aug. 4, 1997) (finding the prosecution entitled to an 

instruction on a lesser offense as if it were a lesser included offense where the 

offense as charged alleges a sentence enhancement factor giving the defendant 

notice that it must be proved as if it were an element). A lesser offense as to which 

the prosecution would not have been entitled to an instruction in the absence of 

its express inclusion in the charging document clearly could not be considered 

implied in a jury verdict.

¶9 We have never, however, suggested that an appellate court must enter 

judgment of conviction of a lesser offense that is necessarily implied in a jury 

verdict reversed on appeal, much less that the appellate court must “maximize”

the jury’s verdict by entering judgment of conviction for as many such lesser 

offenses as possible. Instead we have held only that it would be “authorized,” or 

“proper,” or “appropriate,” to enter judgment on a lesser included offense under 

some circumstances, and we have at times expressly found it appropriate not to 

enter such a judgment but rather to offer the prosecution the option to retry the 

defendant for the greater offense or rest on such a lesser offense conviction, should 

it so choose. See, e.g., Sepulveda, 65 P.3d at 1007–08; Crespin, 721 P.2d at 692–93. 

Nor have we ever attempted to define or circumscribe the scope of an appellate 

court’s discretion in this regard.
8

¶10 The intermediate appellate court’s attempt to fulfill what it understood to 

be its duty to maximize the jury verdict was therefore misplaced. In a related 

context, we have in the past merely addressed the merger of multiple convictions 

that cannot separately stand by reason of either constitutional or statutory 

prohibitions; and in those cases, we have merely instructed trial courts to select 

the combination of offenses that can simultaneously stand that produce the most 

convictions and the longest sentences, in order to maximize the effect of the jury’s 

verdict. See People v. Wood, 2019 CO 7, ¶¶ 28–29, 433 P.3d 585, 593 (“[I]n 

determining which conviction or convictions should be vacated to honor the double 

jeopardy clause, a trial court ‘should be directed to enter as many convictions and 

impose as many sentences as are legally possible to fully effectuate the jury’s 

verdict.’” (emphasis added) (quoting People v. Glover, 893 P.2d 1311, 1315 (Colo.

1995)).

¶11 In People v. Bartowsheski, 661 P.2d 235, 237, 247 (Colo. 1983), for example,

where the defendant was convicted of deliberation murder, felony murder, and 

the underlying felony of robbery, after finding that a defendant may be convicted 

of only one count of murder for killing the same victim and that felony murder 

and its underlying felony merge, we concluded that the defendant should stand 

convicted of first degree murder after deliberation and robbery because doing so 

would “give as much effect to the jury’s resolution of the issues submitted to it as 
9

can be done without running afoul of the defendant’s constitutional and statutory 

rights.” See also Wood, ¶¶ 28–29, 433 P.3d at 593; Glover, 893 P.2d at 1315. Our 

guidance in this regard has, however, clearly been limited to instructing lower 

courts on the merger of multiple convictions from the same proceeding that cannot 

simultaneously stand for the reason that they are effectively convictions for the 

same offense. E.g., Wood, ¶¶ 28–29, 433 P.3d at 593.

III.

¶12 The defendant asserts that in its remand order the court of appeals erred in 

ordering that the trial court enter multiple judgments of conviction against him for 

a number of related reasons, not least among them being that he was never

charged with, and therefore was not on notice that he could be convicted of, more 

than one count of theft. We need not address the broader question whether an 

appellate court could, under some conceivable set of circumstances, or even under 

these particular circumstances, enter multiple judgments of conviction in place of 

a single overturned jury verdict, for the reason that none of the judgments entered 

by the court of appeals in this case was implied in the jury’s verdict.

¶13 As we recounted in Roberts v. People, 203 P.3d 513, 516 (Colo. 2009), 

“Colorado is among the substantial majority of states that have consolidated the 

crimes of larceny, embezzlement, and theft under false pretenses in a single crime 

of theft.” Whichever way the crime is committed, it constitutes the offense of 
10

“theft.” Unless a theft is committed from the person of another (by means other 

than those constituting robbery), its categorization as either petty offense theft, a 

particular class of misdemeanor, or a particular class of felony is made contingent 

upon the value of the thing involved. § 18-4-401(2), C.R.S. (2019). In addition, 

with regard to the crime of theft as it existed at the time of Roberts, we held that 

multiple thefts (other than theft from a person or thefts for which the defendant 

has already been placed in jeopardy), committed by the same person within a sixmonth period, of things with an aggregate value in the felony range, constituted a 

single crime of theft, the classification of which was determined by the aggregate 

value of all of the things involved. 203 P.3d at 516.

¶14 Immediately following our holding in Roberts, the legislature amended the 

theft statute, effective May 11, 2009, by, in pertinent part, removing the language 

upon which we relied to find that multiple acts of theft committed by the same 

person within a six-month period constituted a single crime, and instead 

articulating two sets of circumstances in which a prosecutor would be permitted, 

but not required, to aggregate thefts for purposes of defining a single crime. Ch. 

244, sec. 2, § 18-4-401, 2009 Colo. Sess. Laws 1099, 1099–1100. The first permits 

aggregation “when a person commits theft twice or more within a period of six 

months,” and the second permits aggregation “when a person commits theft twice 
11

or more against the same person pursuant to one scheme or course of conduct.” 

Id.; § 18-4-401(4)(a), (b). 

¶15 Because the thefts charged in a single count in this case spanned the effective 

dates of both the old and new statutes, the appellate court concluded that there 

was insufficient evidence to enter judgment for a single theft of over $20,000 under 

either statute, and it therefore vacated the jury’s guilty verdict as to class 3 felony 

theft. Finding, however, that the evidence was sufficient to convict of four 

separate aggregated thefts, all amounting to class 4 felonies, it ordered that the 

trial court, on remand, enter judgment of conviction on each of those thefts. Only 

the validity of the appellate court’s remand order is before us on certiorari.

¶16 Under both the pre- and post-Roberts theft statutes, separate crimes of theft 

could be aggregated to constitute a single theft of greater value only as prescribed 

by statute. See § 18-4-401(4); 2009 Colo. Sess. Laws at 1099–1100. Whether before 

or after the amendment, and whether based on commission within a six-month 

period or commission against the same person pursuant to one scheme or course 

of conduct, conviction of an aggregated theft clearly required the finding of an 

additional element not required for conviction of a single act of theft. The jury was 

not instructed with regard to any such additional element, and the prosecution 

would not have been entitled to such an instruction had it requested one. See

Garcia, 940 P.2d at 363–64. Therefore, none of the lesser theft offenses substituted
12

by the court of appeals was a lesser included offense of the charged theft, see ReynaAbarca, ¶ 64, 390 P.3d at 826, or its equivalent, see Garcia, 940 P.2d at 363–64, nor 

did the appellate court suggest anything of the kind. 

¶17 Rather, the court of appeals held that the three, six-month, time-limited 

thefts, and the one theft committed as a single course of conduct against the same 

person, were implicit in the jury’s “findings” based on pre-trial discovery, the 

complaint, and the evidence presented at trial. The court of appeals effectively 

reasoned that the defendant was adequately protected, notwithstanding the 

failure of the prosecution to charge thefts limited to six-month aggregations or 

those committed as a single course of conduct against the same person, because 

the complaint alleged theft over the entire period from January 1, 2008 to January 

31, 2011; the defendant was on notice from pre-trial discovery that the Social 

Security Administration was alleging thirty-seven consecutive instances of 

overpayment; and the evidence at trial included nothing that would lead a juror 

to conclude that the alleged acts of theft occurred on some occasions but not on 

others. 

¶18 While overwhelming evidence of an omitted element may well demonstrate 

harmless constitutional error with regard to a jury verdict, imputing guilt for an 

uncharged crime or directing a verdict of guilt for a charged one would simply 

violate the defendant’s constitutional right to a jury trial. See Sullivan, 508 U.S. at
13

277; Sanchez, ¶ 13, 325 P.3d at 558. We have never held, and it is clearly not the 

case, that conviction of a lesser non-included offense may be entered in lieu of an 

overturned jury conviction, as long as overwhelming evidence of the non-included 

elements was presented at trial. Unlike a lesser included offense, the elements of 

which are a subset of and are therefore necessarily included in the charged offense, 

a defendant has not necessarily been put on notice by the charge that he must also 

defend against the lesser non-included offense, and the jury’s verdict of guilt as to 

the charged offense does not necessarily reflect its conviction of the lesser nonincluded offense. 

¶19 In the absence of assurance as to both of these conditions, a criminal 

defendant is deprived of his constitutional right to a jury trial of the charges 

brought against him. The court of appeals therefore erred in expanding the class 

of lesser offense that may be entered in lieu of a successfully challenged conviction 

for a greater offense.

IV.

¶20 Because no theft offense requiring the aggregation of two or more separate 

instances of theft, whether that aggregation were to be based on commission 

within a period of six months or on commission as a single course of conduct, was 

a lesser included offense of the class 3 felony of which Halaseh was actually 

charged and convicted, no such offense was implicitly found by the jury, and
14

therefore none could be entered in lieu of the reversed conviction, without 

depriving the defendant of his right to a jury trial. The remand order of the court 

of appeals is therefore disapproved, and the case is remanded with directions to 

simply reverse the conviction for class 3 felony theft.