v. Lawrence

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
May 30, 2019

2019COA84

No. 16CA1145, People v. Lawrence — Crimes — Theft;
Sentencing — Amendatory Statutes — Retroactive Application

A division of the court of appeals addresses the retroactivity of

an amendment to the theft statute in light of the supreme court’s

decision in People v. Stellabotte, 2018 CO 66. The division

concludes that, pursuant to Stellabotte, a defendant is entitled to

have his or her theft conviction reclassified under the amended

statute. But when the value of the items the defendant stole is

disputed, further proceedings are required to determine the stolen

items’ value if the prosecutor wants to pursue a conviction for theft

commensurate with the maximum value that the evidence could

support. On remand, however, the prosecutor may elect to request

that a conviction enter for theft of items valued at the lowest

amount that the jury’s verdict supports.
 The division also concludes that the evidence was sufficient to

sustain the defendant’s convictions for securities fraud; that the

trial court made no error with respect to instructing the jury on the

mental state required to convict the defendant of securities fraud;

that the trial court made no error by admitting expert testimony

that embraces an ultimate issue of fact; and that the trial court

made no error by excluding certain pieces of evidence the defendant

contends were exculpatory. Accordingly, the division reverses the

theft conviction and affirms the two convictions for securities fraud.
COLORADO COURT OF APPEALS 2019COA84

Court of Appeals No. 16CA1145
Jefferson County District Court No. 15CR463
Honorable Todd L. Vriesman, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Shaun David Keller Lawrence,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE WELLING
Fox and Freyre, JJ., concur

Announced May 30, 2019

Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A jury found defendant, Shaun David Keller Lawrence, guilty

of theft for stealing items valued at $1000 or more but less than

$20,000. When he committed the crime, that theft was a class 4

felony. § 18-4-401(2)(c), C.R.S. 2012. But before trial the theft

statute was amended. See Ch. 373, sec. 1, 2013 Colo. Sess. Laws

2195-97. Under the amended statute, that same range could be a

class 1 misdemeanor up to a class 5 felony, depending on the value

of the items stolen. § 18-4-401(2)(e)-(g), C.R.S. 2018.

¶2 While this appeal was pending, the supreme court decided

that a defendant whose conviction was not final is entitled to have

his or her conviction reclassified based on the value of the item

stolen under the amended theft statute. People v. Stellabotte, 2018

CO 66. But Stellabotte left unanswered the question we must

answer here: When the evidence related to the value is disputed,

how do we reclassify the crime under the amended statute?

¶3 We conclude that when the value of the items stolen is

disputed, further proceedings are necessary to determine the

classification of the theft, but that the prosecution may elect to

request that a theft conviction enter for the lowest amount

1
 supported by the jury’s verdict. Accordingly, we remand the case

for further proceedings.

¶4 The remand, however, only involves Lawrence’s theft

conviction. He also appeals convictions he received for two counts

of securities fraud. We affirm those convictions.

I. Background

¶5 Lawrence was at a casino when he met D.B., who worked

there as a cashier. During their conversation, Lawrence told D.B.

that he ran his own security and surveillance company. D.B. asked

Lawrence if he was hiring. Lawrence responded that she couldn’t

work for him until she was properly trained, but that he was

seeking investors so that he could expand his business.

¶6 The two began negotiating and, a few weeks later, agreed that

D.B. could purchase twenty percent of the company for $6000.

D.B. later purchased an additional ten percent of the company for

another $3000. Both times, D.B. followed Lawrence’s instructions

and deposited money directly into his personal bank account.

¶7 Lawrence rented an office, registered the company with the

Secretary of State, and began creating a website. During this time,

D.B. repeatedly asked Lawrence to begin the training so that she

2
 could become an employee with the company. Lawrence let D.B. do

one service of process job, and routinely scheduled trainings for

D.B., only to cancel them at the last minute. Occasionally, D.B.

would visit the office, but within a few months, Lawrence stopped

responding to D.B.’s calls altogether. At one point, D.B. visited the

office and found it empty except for one computer.

¶8 D.B. filed a complaint with the Colorado Division of Securities

(Division). The Division’s investigation into Lawrence’s bank

account showed that his account had a negative balance the day

D.B. made her initial investment and that he spent all $9000 on

personal expenses, gambling, and entertainment within one month

of D.B.’s deposits.

¶9 The Division referred the case to the prosecutor’s office, and

Lawrence was subsequently charged with two counts of securities

fraud and one count of theft. A jury convicted him of all three

charges.

II. Analysis

¶ 10 Lawrence raises five arguments on appeal. First, he argues

that the evidence supporting his convictions is insufficient. Second,

he contends that the trial court failed to instruct the jury on the

3
 mental state required to convict him of securities fraud. Third, he

argues that the trial court erred by admitting the expert testimony

of Colorado’s Securities and Exchange Commissioner. Fourth, he

argues that the trial court erred by excluding evidence that he

contends was exculpatory. Finally, he argues that he is entitled to

the maximum ameliorative benefit under an amendment to the theft

statute. We address each contention in turn.

A. Sufficiency of the Evidence

¶ 11 Lawrence first contends that there was insufficient evidence to

support his convictions. We review de novo whether the evidence at

trial was sufficient in quantity and quality to sustain a conviction.

Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010). In doing so, we

must determine “whether the relevant evidence, both direct and

circumstantial, when viewed as a whole and in the light most

favorable to the prosecution, is substantial and sufficient to support

a conclusion by a reasonable mind that the defendant is guilty of

the charge beyond a reasonable doubt.” Id. (quoting People v.

Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)). We also

must give the People the benefit of every reasonable inference that

may be drawn from the evidence. Id. at 1292.

4
¶ 12 Lawrence first contends that there is insufficient evidence to

support the convictions for securities fraud because the transaction

did not involve a security. Second, he argues that there is

insufficient evidence to support the theft conviction because there is

no evidence that he intended to permanently deprive D.B. of her

property. We reject both contentions.

1. Evidence of a Security

¶ 13 To convict Lawrence for securities fraud, the prosecution

needed to prove that he made a false or misleading statement “in

connection with the offer, sale, or purchase of any security.” § 11-

51-501(1), C.R.S. 2018.

¶ 14 An “investment contract” is a security. See § 11-51-201(17),

C.R.S. 2018. But a contract is an “investment contract” only if it is

(1) a contract whereby a person invests his or her money (2) in a

common enterprise and (3) is led “to expect profits solely from the

efforts of the promoter or a third party.” Sec. & Exch. Comm’n v.

W. J. Howey Co., 328 U.S. 293, 298-99 (1946); Rome v. HEI Res.,

Inc., 2014 COA 160, ¶ 21 (applying Howey analysis to definition of

“investment contract” under the Colorado Securities Act). Lawrence

contends that the evidence at trial failed to establish that D.B.

5
 expected to profit “solely” from Lawrence’s efforts because she did

some work for the company. The term “solely” in this context,

however, is not to be construed literally. Rome, ¶ 21. Instead, the

question is whether “the investor was ‘led to expect profits derived

from the entrepreneurial or managerial efforts of others.’” Id.

(quoting Toothman v. Freeborn & Peters, 80 P.3d 804, 811 (Colo.

App. 2002)).

¶ 15 The evidence at trial, when viewed in the light most favorable

to the prosecution, showed that D.B. was working as a cashier at a

casino when Lawrence came into the casino to gamble. The two

began talking, and Lawrence said that he was thinking of starting a

surveillance business. At the time, D.B. was expecting to receive a

few thousand dollars from a legal settlement and was looking to

invest that money. During their initial discussions, Lawrence told

D.B. that working for him would be possible but that she would

have to complete hundreds of hours of unpaid training before he

would hire her to work for the company.

¶ 16 Despite knowing that it would be a long time before she was

able to work for the company, D.B. purchased thirty percent of the

company for $9000. D.B. believed that her money would be used

6
 as a down payment for the purchase of ankle monitors, which

would allow the company to start providing ankle monitoring

services. Lawrence told D.B. that he had experience in ankle

monitoring, and there is no indication from the record that D.B.

had any similar experience.

¶ 17 This evidence was sufficient for the jury to have concluded

that D.B. expected to profit solely from Lawrence’s efforts.

Throughout the transaction, D.B. believed that her investment and

her potential employment were separate. Lawrence told her that

she would have to provide hundreds of hours of free labor if she

wanted to become an employee in addition to her investment, but

she invested anyway. And while she visited the office a few times,

D.B. said that Lawrence made all of the decisions related to the

company and he did not consider her opinions. The record, when

viewed in the light most favorable to the prosecution, shows that

D.B. expected to profit solely from Lawrence’s efforts.

¶ 18 True, D.B. tried to work for the company. But the only work

she ever performed was a single service of process. She was not

paid for this work, and the record isn’t even clear whether Lawrence

counted this toward her training requirement. Even if paid for the

7
 one task, that an investor exerts some effort does not automatically

preclude a finding that a transaction is an investment contract.

Williamson v. Tucker, 645 F.2d 404, 418 (5th Cir. 1981); Sec. &

Exch. Comm’n v. Glenn W. Turner Enters., Inc., 474 F.2d 476, 482

(9th Cir. 1973) (“[T]he scheme is no less an investment contract

merely because [the investor] contributes some effort as well as

money to get into it.”).

¶ 19 Accordingly, the evidence was sufficient to support the

conviction for securities fraud.

2. Evidence of an Intent to Permanently Deprive

¶ 20 To obtain a conviction on the theft charge, the prosecution

needed to prove that Lawrence knowingly obtained control over

something of value of another, without authorization, and that he

“[i]ntend[ed] to deprive the other person permanently of the use or

benefit of the thing of value.” § 18-4-401(1)(a), C.R.S. 2018.

Lawrence now argues that there is no evidence that he intended to

permanently deprive D.B. of her money because he worked toward

building the business that would have resulted in a return on her

investment.

8
¶ 21 When reviewing the record for sufficiency of the evidence, we

must consider direct and circumstantial evidence. Clark, 232 P.3d

at 1291. Evidence of a defendant’s intent is usually only proved by

relying on circumstantial evidence, and “the finder of fact may

properly infer the intent to commit theft from the defendant’s

conduct and the circumstances of the offense.” People v. Mandez,

997 P.2d 1254, 1264 (Colo. App. 1999). Evidence that the

defendant knowingly used an owner’s property in a manner

“inconsistent” with the owner’s “permanent use and benefit” is

sufficient to establish an intent to effect a permanent deprivation.

People v. Pedrie, 727 P.2d 859, 862 (Colo. 1986).

¶ 22 Here, the evidence showed that after Lawrence and D.B.

agreed on her investment, he told her to deposit the money in his

personal bank account. Over the next month, Lawrence used that

money to go to casinos, for entertainment, and for other personal

expenses. Lawrence never gave D.B. an accounting or update on

the status of her investment despite the fact that their contract

required him to send reports to her periodically. D.B. expected that

her investment would be used as a down payment for the ankle

monitors and other business expenses, not to fund Lawrence’s

9
 personal expenses. From this evidence, the jury could infer that

Lawrence intended to permanently deprive D.B. of her money.

¶ 23 Lawrence contends that there was contrary evidence showing

that he used the money for the company’s expenses. Specifically,

he argues that the evidence shows that he used some of D.B.’s

money to rent an office, create a website, and register the business

with the Secretary of State. Lawrence is correct that this evidence

could support a conclusion that he did not intend to permanently

deprive D.B. of her money, but the evidence is not insufficient

simply because it conflicts. People v. Carlson, 72 P.3d 411, 416

(Colo. App. 2003) (“Where reasonable minds could differ, the

evidence is sufficient to sustain a conviction.”). Instead, we must

view the evidence in the light most favorable to the prosecution, and

here there was sufficient evidence from which the jury could infer

Lawrence’s intent to permanently deprive D.B. of her money.

¶ 24 Accordingly, the trial court committed no error by denying

Lawrence’s motion for judgment of acquittal as there was sufficient

evidence to support the convictions.

10
 B. Jury Instruction on Mental State

¶ 25 Next, Lawrence argues that the trial court erred by not

instructing the jury that it must find that he knew D.B.’s

investment was a security.

¶ 26 The parties disagree on whether this argument is preserved.

Lawrence contends that he didn’t have to preserve the issue

because a defendant may raise a sufficiency of the evidence

argument premised on an issue of statutory interpretation for the

first time on appeal. People v. McCoy, 2015 COA 76M, ¶ 8 (cert.

granted Oct. 3, 2016). The People, on the other hand, argue that

the issue is not preserved because Lawrence made a different, albeit

related, argument at trial. See People v. Lacallo, 2014 COA 78, ¶ 8

(when a defendant fails to preserve sufficiency of the evidence

argument, court of appeals reviews only for plain error). We need

not resolve this dispute, however, because we conclude that the

trial court did not commit an error.

¶ 27 Lawrence was charged under section 11-51-501(1)(b). That

statute does not contain a mens rea element, but section 11-51-

603(1), C.R.S. 2018, states that anyone who “willfully violates the

provisions of section 11-51-501 commits a class 3 felony.” The

11
 term “willfully” as used in this statute is synonymous with

“knowingly.” People v. Blair, 195 Colo. 462, 467, 579 P.2d 1133,

1138 (1978).

¶ 28 Lawrence now contends that the prosecutor needed to prove

that he knew he was offering to sell D.B. a security because the

willfulness mens rea applies to each element of the crime. See § 18-

1-503(4), C.R.S. 2018 (“When a statute . . . [specifies a] culpable

mental state, that mental state is deemed to apply to every element

of the offense unless an intent to limit its application clearly

appears.”). Multiple divisions of this court, however, have

concluded that “[p]roof of knowledge that an investment is a

security is not required for a conviction of ‘willful’ securities fraud.”

People v. Destro, 215 P.3d 1147, 1151 (Colo. App. 2008); see also

People v. Pahl, 169 P.3d 169, 185 (Colo. App. 2006) (rejecting

argument that a defendant must know he or she is selling a

security to support a conviction for securities fraud); People v.

Rivera, 56 P.3d 1155, 1163 (Colo. App. 2002) (same). This is

because “the mental state of ‘willfully’ only requires the actor to be

‘aware that his conduct is of such nature or that such circumstance

exists.’” Pahl, 169 P.3d at 185 (quoting section 18-1-501(6), C.R.S.

12
 2018). And requiring proof beyond that fact rises to the level of a

conscious objective is appropriate only for specific intent crimes.

Id.

¶ 29 Because Lawrence points to no justification for doing so, we

decline to depart from these precedents. Accordingly, we conclude

that the trial court did not err by failing to instruct the jury that it

needed to find that Lawrence knew he was offering D.B. a security.

C. Expert Testimony

¶ 30 At trial, Colorado’s Securities and Exchange Commissioner,

Gerald Rome, was qualified as an expert in securities law.

Commissioner Rome testified about what qualifies as a security and

why the contract at issue in this case was a security. He also

testified that the sale of a security is fraudulent when the seller

misstates or omits material facts and then discussed what facts

might be material. Lawrence now contends that this testimony

usurped the jury’s role as the fact finder because Rome was allowed

to provide expert opinions related to the ultimate factual issues in

the case. We disagree.

¶ 31 An expert may offer an opinion that embraces an ultimate

issue of fact. CRE 704. But that testimony must not usurp the

13
 jury’s factfinding role. See People v. Rector, 248 P.3d 1196, 1203

(Colo. 2011).

¶ 32 In Pahl, a division of this court addressed expert testimony

similar to Rome’s. 169 P.3d at 182. There, the expert opined that

the transaction involved a security and that the defendant’s

omissions of fact were material. Id. The division concluded this

testimony did not usurp the jury’s role because the jurors were

properly instructed on the definition of a security and that they

could disregard the expert’s testimony. Id. The same thing

occurred here. Rome testified that an investment contract qualifies

as a security and that the transaction at issue here qualified as an

investment contract under Howey. But the jurors were instructed

that they did not have to accept the testimony of any expert and

that jury instructions were the source of law they had to apply to

the case. The instructions provided the statutory definition of a

“security,” and from this definition the jurors were free to draw their

own conclusions.

¶ 33 As to materiality, the trial court ruled that Rome could not

testify about whether there were material misrepresentations in this

case, and that he could testify about materiality only generally.

14
 Rome then testified about the differences in what facts might be

material to a person investing in a large company versus a person

investing in a smaller company, and that a person investing in a

smaller company would likely find facts related to the proprietor’s

finances and business acumen to be material. A trial court does

not abuse its discretion by allowing an expert to provide general

testimony about when facts might be considered material. See

People v. Prendergast, 87 P.3d 175, 183 (Colo. App. 2003) (affirming

trial court’s decision to allow an expert witness to testify about legal

standard for materiality in a securities fraud case).

¶ 34 Moreover, Rome did not usurp the jury’s role because defense

counsel thoroughly explored both the definition of a security and

materiality on cross-examination and Rome gave no opinion as to

whether Lawrence committed any of the crimes charged. See

Rector, 248 P.3d at 1203 (factors relevant to determining whether

an expert’s testimony was proper under CRE 704 include whether

the statements were “clarified on cross-examination” and whether

the expert “opined that the defendant committed the crime”).

15
¶ 35 Accordingly, we conclude that the trial court did not abuse its

discretion by failing to preclude Rome from testifying on an issue of

ultimate fact.

D. Exculpatory Evidence

¶ 36 Lawrence next argues that the trial court erred by excluding

evidence that he contends was exculpatory. The first piece of

evidence was testimony that two law enforcement agencies told D.B.

that her dispute with Lawrence was a civil, and not criminal,

matter. The remaining pieces of evidence were documents that

corroborated Lawrence’s argument that he did some work for the

company.

¶ 37 Lawrence preserved his evidentiary arguments for review. We

review the trial court’s evidentiary ruling for an abuse of discretion.

Davis v. People, 2013 CO 57, ¶ 13.1 A trial court abuses its

1 Lawrence contends that we should apply the constitutional
harmless error standard because the preclusion of this evidence
deprived him of his right to present a complete defense.
Constitutional harmless error is a standard of reversal and not a
standard of review. See Hagos v. People, 2012 CO 63, ¶ 11 (Trial
errors of a constitutional dimension “require reversal unless the
reviewing court is ‘able to declare a belief that [the error] was
harmless beyond a reasonable doubt.’” (quoting Chapman v.
California, 386 U.S. 18, 24 (1967))). Because we conclude that the

16
 discretion if its ruling is manifestly arbitrary, unreasonable, or

unfair, or is based on a misapprehension of the law. People v.

Gonzales, 2019 COA 30, ¶ 7.

1. Testimony about Law Enforcement Agencies’ Response to
D.B.’s Complaint

¶ 38 Lawrence proffered evidence that both the Littleton Police

Department and the Colorado Attorney General’s Office told D.B.

that her dispute with Lawrence was not a criminal matter and that

those agencies had declined to prosecute Lawrence. The

prosecution made a pretrial motion in limine to preclude Lawrence

from asking D.B. about these conversations, and the trial court

granted the motion.

¶ 39 Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.” CRE 401. But even relevant evidence may be

excluded if its probative value is substantially outweighed by the

“danger of unfair prejudice, confusion of the issues, or misleading

trial court did not err, we need not address whether the alleged
error requires reversal.

17
 the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” CRE 403.

¶ 40 That a law enforcement agency, at one time, thought this was

a civil dispute is of no consequence to determining whether

Lawrence committed a crime. Many considerations go into the

People deciding whether to pursue criminal charges in any given

case. People v. Weiss, 133 P.3d 1180, 1189 (Colo. 2006); see also

Sandoval v. Farish, 675 P.2d 300, 303 (Colo. 1984) (discussing

standards for reviewing a prosecutor’s charging decision). The

Littleton police and the Colorado Attorney General could’ve based

their conclusions on any number of factors, none of which are

discussed in the record. The trial court acted well within its

discretion in finding that it would be misleading to tell the jury that

two law enforcement agencies initially decided that Lawrence’s

conduct was civil and not criminal.

¶ 41 Nevertheless, Lawrence contends that this evidence is

admissible as res gestae. Evidence is admissible as res gestae when

it explains the setting in which the crimes occurred so as to provide

context to the criminal episode. People v. Galang, 2016 COA 68,

¶ 15. The record shows that Lawrence had already committed his

18
 crimes by the time D.B. contacted law enforcement agencies, so the

agencies’ conclusions would have provided no context for the crime.

¶ 42 Lawrence also argues that Rome’s testimony opened the door

to this evidence. Rome testified, on cross-examination, that he

personally referred this case to the prosecutor’s office after receiving

D.B.’s complaint. A juror then asked whether there were “triggers

that elevate a case from a civil to criminal matter, [and if so], what

are they?”2 Rome responded that there are many factors that go

into the decision to refer a case to a prosecutor’s office but that,

ultimately, he makes the decision. This testimony did not open the

door to the evidence that two other agencies had declined to

prosecute because Rome’s decision was wholly separate from

decisions of those two agencies.

¶ 43 The statute authorizes the securities commissioner to refer

evidence to the attorney general or district attorney, who have the

discretion to prosecute the case. See § 11-51-603(3). But his

2 Defense counsel objected to asking the juror’s question, arguing
that the question would elicit a response from Rome that wasn’t
previously disclosed. The trial court overruled the objection. The
propriety of that ruling was not raised on appeal, and we offer no
opinion as to whether it was an appropriate question.

19
 referral does nothing to establish whether a crime was committed

and is no different than anyone else’s report of a suspected crime to

a district attorney’s office. Rome’s testimony that he referred the

case to the prosecutor was unrelated to the prior decisions of the

other two law enforcement agencies and therefore did not open the

door to evidence that those agencies declined to pursue charges.

¶ 44 Finally, Lawrence argues that this evidence could’ve been used

to impeach Rome or D.B. Even for impeachment, this evidence was

irrelevant as it related to Rome because he did not conclude that

Lawrence had committed a crime; he simply made the decision to

refer the case to the prosecutor’s office.

¶ 45 Lawrence also tried to elicit evidence that D.B. threw away a

letter from the attorney general that allegedly stated the dispute

was not criminal. That D.B. may have thrown away such a letter

has no bearing on her credibility or whether Lawrence committed

any of the acts that he was accused of committing. As a result, the

trial court didn’t abuse its discretion in finding that any evidence

related to the letter was irrelevant.

2. Documentary Evidence

20
¶ 46 Lawrence proffered three documents that would allegedly

demonstrate that he did some work for the company. The trial

court concluded that all three pieces of evidence were hearsay. 3

Hearsay is an out of court statement used to prove the truth of the

matter asserted. CRE 801(c).

¶ 47 First, during the cross-examination of the prosecutor’s

investigator, defense counsel offered documents from a website that

purportedly showed that Lawrence registered the company with the

Secretary of State. Using these documents to prove that Lawrence

registered the company with the Secretary of State, to prove that he

did some work for the company, was hearsay, and the trial court

did not abuse its discretion by excluding the documents. Lawrence

3 The prosecutor objected to the admission of these documents
arguing that they were hearsay and that the witness couldn’t lay
the proper foundation. In response, defense counsel argued that
these documents could be admitted under the business records
exception. The trial court sustained the objection but did not state
the basis for that ruling. The record does not show that defense
counsel asked the questions necessary to establish the foundation
for admitting evidence pursuant to the business records exception.
See CRE 803(6). Moreover, even if defense counsel had asked,
there is no indication that the investigator had the personal
knowledge necessary to provide an adequate foundation for the
admission of the exhibits as business records. Accordingly, we
address only whether the trial court erroneously excluded these
documents as hearsay.

21
 also made no attempt to introduce these documents through the

business records exception, CRE 803(6), and the copies offered at

trial were not self-authenticating, see CRE 902(11).

¶ 48 Next, Lawrence proffered a receipt for domain names that he

allegedly bought for the company during the testimony of his own

investigator. Like the Secretary of State documents, this receipt

was offered to prove the truth of the matter that it asserted — that

Lawrence expended funds in the course of doing some work for the

company. Like the Secretary of State documents, Lawrence did not

attempt to invoke the business records (or any other) exception to

the hearsay rule. The trial court did not abuse its discretion by

excluding the receipt.

¶ 49 Finally, Lawrence tried to introduce an email that he received

in response to an inquiry he allegedly made to purchase ankle

monitors. This document was also offered while Lawrence’s

investigator was testifying. The email was sent by a sales manager

at a technology company who said that he was responding to a form

that Lawrence had allegedly filled out on a website where he said he

was “looking for ankle monitors and software.” Lawrence wanted to

use this email to prove that he did, in fact, try to procure ankle

22
 monitors; therefore, it was hearsay. And, again, Lawrence did not

argue to the trial court that any exception applied.

¶ 50 In sum, the trial court did not abuse its discretion by

excluding testimony that the two law enforcement agencies declined

to pursue charges, the Secretary of State documents, the receipt for

the domain names, or the email Lawrence received in response to

his request for information about ankle monitors.

E. Retroactive Change in Theft Statute

¶ 51 Lawrence’s final argument concerns the retroactivity of an

amendment to the theft statute. When Lawrence committed his

crimes, it was a class 4 felony to steal something valued between

$1000 and $20,000. § 18-4-401(2)(c), C.R.S. 2012. By the time of

trial, however, the General Assembly had comprehensively amended

the theft statute, reclassifying the theft offense based on the value

of the item the defendant stole and the associated penalty. See Ch.

373, sec. 1, 2013 Colo. Sess. Laws 2195-97. After the amendment,

stealing something valued at $1000 was a class 1 misdemeanor.

§ 18-4-401(2)(e), C.R.S. 2018.

23
 ¶ 52 The chart 4 below summarizes the amendment to the values in

the theft statute by comparing the value of the item stolen with the

level of offense under the old and amended statutory schemes.

Old Statute Amended Statute
$0
Less than $50
PO
$50
Less than $500 $50 to less than $300
M2 M3
$300
Value of the item(s) stolen

$300 to less than $750
$500
M2
$500 to less than
$750
$1000
M1
$1000 $750 to less than $2000
M1

$2000 $1000 to less than
$2000 to less than $5000
$20,000
F6
$5000 F4
$5000 to less than $20,000
F5
$20,000
$20,000 to less than $100,000
F4
$100,000
$100,000 to less than
$20,000 or more
$1 million
F3
F3
$1 million
$1 million or more
F2

4 In both the pre- and post-amendment versions of the statute, the
values for each category of theft are listed in section 18-4-401(2).
See § 18-4-401(2)(b)-(j), C.R.S. 2018; § 18-4-401(2)(b)-(d), C.R.S.
2012. For the purposes of this chart, F2 is a class 2 felony, F3 is a
class 3 felony, F4 is a class 4 felony, F5 is a class 5 felony, F6 is a

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¶ 53 At trial, the court applied the old version of the theft statute,

instructing the jury that to convict Lawrence of theft, it must find

that he stole an item valued at “one thousand dollars or more but

less than twenty thousand dollars.” As a result, the jury

necessarily found that Lawrence stole at least $1000 but no more

than $20,000. The jury, however, made no other finding related to

the value of the money that Lawrence had stolen.

¶ 54 On appeal, both parties agree that, after Stellabotte,

Lawrence’s conviction for a class 4 felony cannot stand. In

Stellabotte, ¶ 3, our supreme court held that a defendant whose

conviction is not final is entitled to the ameliorative benefit of a

change in the theft statute. As a result, the supreme court

reclassified Stellabotte’s conviction as if it had occurred under the

amended theft statute, not the statute that was in place at the time

of the crime, and remanded the case for resentencing. Id. We agree

that, under Stellabotte, Lawrence cannot stand convicted of theft as

a class 4 felony.

class 6 felony, M1 is a class 1 misdemeanor, M2 is a class 2
misdemeanor, M3 is a class 3 misdemeanor, and PO is a petty
offense. The box with the thick outline is the offense that Lawrence
was convicted of at trial.

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¶ 55 But Stellabotte did not reach the issue that we must resolve

here: If not a class 4 felony, then what level of offense should

Lawrence be convicted? The defendant in Stellabotte was convicted

of theft for wrongfully towing cars and then retaining them. Id. at ¶

5. The opinion does not discuss the exact value of the cars that the

defendant stole, probably because it was not contested on appeal

that the total value was more than $5000 and less than $20,000.

Id. at ¶ 6. And because no one contested that the value fell within

that range, the exact value wouldn’t have made a difference once

the court decided that the defendant was entitled to relief under the

amended statute. 5 In other words, to resolve the case, the supreme

court needed to decide only whether the defendant was entitled to

relief under the amended statute and not how far that relief

stretched.

¶ 56 Here, the amount of Lawrence’s theft is disputed. While the

evidence is sufficient to support a finding that he stole $9000, there

5 And even if the value was disputable, on appeal to this court and
the supreme court, Stellabotte did not argue that he was entitled to
ameliorative relief beyond resentencing as a class 5 felony. See
People v. Stellabotte, 2018 CO 66, ¶ 7; People v. Stellabotte, 2016
COA 106, ¶ 40, aff’d, 2018 CO 66. So, even if Stellabotte could
have raised the issue that Lawrence raises here, he did not.

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 is conflicting evidence with respect to whether he used some of the

money for legitimate business purposes, like registering the

business, renting an office, and creating a website. Because the

amount of the theft is disputed, we cannot simply reclassify

Lawrence’s crime under the new statute like the court was able to

do in Stellabotte. Instead, we must determine what effect we should

give to the jury’s finding as to the value of the things stolen when

the legal consequences that correspond to that finding have

changed.

¶ 57 Lawrence contends that he can only stand convicted of a class

1 misdemeanor because we must accept the lowest value that the

jury’s finding supports. So, according to Lawrence, because the

jury found that he stole an item with a value of at least $1000 but

no more than $20,000, we must assume that the jury concluded

that he stole an item valued at $1000, which under the amended

statute is a class 1 misdemeanor. § 18-4-401(2)(e). The People, on

the other hand, argue that we must view the evidence in the light

most favorable to the prosecution, which in this case would support

a conviction for theft of an item valued at $9000. Under the

amended statute, theft of an item valued at $9000 is a class 5

27
 felony. § 18-4-401(2)(g). But for the reasons explained below, we

don’t completely agree with either contention.

¶ 58 Everyone agrees that D.B. transferred $9000 by depositing it

into Lawrence’s personal bank account. What is in dispute,

however, is the amount that he misappropriated. Given that the

evidence as to value is in dispute, assigning a value of $9000 to

Lawrence’s theft would violate Lawrence’s Sixth Amendment right to

a jury trial by increasing the penalty of the theft beyond what is

supported by a jury’s finding. See Blakely v. Washington, 542 U.S.

296, 303 (2004) (a criminal penalty may be based only on facts

found by a jury or admitted by the defendant). The People, relying

on People v. Patton, 2016 COA 187, contend that entering a class 5

felony conviction would not offend Lawrence’s Sixth Amendment

right to a trial by jury. In that case, a division of this court entered

a class 5 felony conviction under the amended theft statute even

though the jury had applied the old version of the statute. Patton, ¶

45. But in that case, the prosecution presented evidence

establishing that Patton had stolen an item valued at approximately

$8500, and Patton didn’t contest this value. Id. at ¶ 40. The

division relied on the fact that the evidence was undisputed and

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 uncontested to conclude that the conviction for a class 5 felony was

based on facts that the jury necessarily found. Id. In other words,

because the parties presented the jury with evidence of only one

value, the court could be assured that the jury had accepted that

value in rendering its guilty verdict. Here, the evidence is disputed,

so Patton does not control our analysis.

¶ 59 But at the same time, Lawrence does not cite, and we have not

found, any authority to support his argument that we must enter a

conviction for theft as a class 1 misdemeanor when, as is the case

here, the record contains sufficient evidence from which the jury

could have convicted the defendant of theft as a class 5 felony.

¶ 60 Instead, we conclude that Lawrence is entitled to a new trial

on the theft charge if the prosecution wishes to pursue a charge

greater than a class 1 misdemeanor. In essence, by instructing the

jury under the old statute, the trial court misinstructed the jury

with respect to the value element of theft. We conclude that when a

trial court’s theft instruction misstates the value element, reversal

is required if the evidence as to value is in dispute. Cf. People v.

Cowden, 735 P.2d 199, 202 (Colo. 1987) (trial court’s failure to

instruct jury on the value element of theft was not plain error

29
 because the value of the item that the defendant stole was not

contested). But that does not necessarily mean that Lawrence is

entitled to a new trial on the theft charge.

¶ 61 If a jury instruction misstates the elements necessary to

convict a defendant of a crime, but accurately states the elements of

a lesser crime, the prosecutor may elect to retry the defendant for

the greater crime or request that the court enter a conviction for the

lesser crime. People v. Sepulveda, 65 P.3d 1002, 1008 (Colo. 2003)

(discussing prosecutorial discretion as to acceptance of conviction

for a lesser offense); People v. Manier, 197 P.3d 254, 261 (Colo. App.

2008) (when a jury instruction uses the wrong mens rea to prove an

aggravating circumstance, the prosecution may retry the defendant

or request that a conviction enter for the non-aggravated version of

the crime). Here, the trial court’s theft instruction accurately

instructed the jury on the elements necessary to convict Lawrence

of theft as a class 1 misdemeanor, and the jury found that he

committed theft of an item with a value of at least $1000.

¶ 62 Accordingly, on remand, the prosecution may elect to have the

theft conviction be entered as a class 1 misdemeanor, or, if it

30
 wishes to pursue a felony theft conviction, Lawrence is entitled to a

new trial on that charge.

III. Conclusion

¶ 63 Lawrence’s convictions for securities fraud are affirmed. His

conviction for theft, however, is reversed, and the case is remanded

to the trial court. On remand, the prosecution may elect to retry

Lawrence for theft or request that the trial court enter a conviction

and resentence Lawrence for class 1 misdemeanor theft based on

the jury’s finding that he stole an item of at least $1000.

JUDGE FOX and JUDGE FREYRE concur.

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