Peo v. Green

Opinion

24CA0108 Peo v Green 07-02-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0108 Douglas County District Court No. 22CR1094 Honorable Jane A. Tidball, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael L. Green,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II Opinion by JUDGE HARRIS Tow and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 2, 2026

Philip J. Weiser, Attorney General, Cata A. Cuneo, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kevin M. Whitfield, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Michael L. Green, was convicted of felony theft

based on a jury’s finding that he and a co-defendant stole

merchandise valued at more than $2,000 from a retail store. See

§ 18-4-401(1)(a), (2)(f), C.R.S. 2025.

¶2 On appeal, he contends that the evidence was insufficient to

support his felony conviction and that the trial court erred by

rejecting his tendered jury instructions on valuation, in responding

to the jury’s questions during deliberations, and by denying his

motion for a bill of particulars. A division of this court addressed

and rejected most of these arguments in the co-defendant’s prior

appeal. See People v. Bolden, 2026 COA 17. Because we adopt the

Bolden division’s analysis and also reject Green’s separate

contentions, we affirm.

I. Sufficiency of the Evidence

¶3 Green does not dispute that he committed theft — i.e., that he

took “thing[s] of value” from the retail store without authorization

and with the intent to permanently deprive the retailer “of the use

or benefit of the thing[s] of value.” § 18-4-401(1)(a). But he says

that the prosecution failed to meet its burden to prove beyond a

reasonable doubt that the stolen merchandise had a value of at

1 least $2,000, the amount that elevates theft from a misdemeanor to

a felony. See § 18-4-401(2)(e)-(f) (theft is a class 1 misdemeanor if

the value of the stolen items is $1,000 or more but less than $2,000

and a class 6 felony if the value of the items is $2,000 or more but

less than $5,000); see also People v. Vidauri, 2021 CO 25, ¶ 14

(prosecution must prove value of stolen items beyond a reasonable

doubt).

¶4 To prove value, the prosecution must present competent

evidence of the reasonable market value of the item at the time of

the theft. People v. Jaeb, 2018 COA 179, ¶ 40. “Market value is

what a willing buyer will pay in cash to the true owner for the stolen

items.” Id.

¶5 Green argues that the evidence was insufficient because, at

the time of the theft, some of the stolen items were on a temporary

sale, so the value of the items was only $1,856.19. But this

argument relies on the premise that “the fair market value of stolen

retail merchandise is its discounted sale price, not its full retail

price,” which the Bolden division considered and rejected in the co-

defendant’s appeal. Bolden, ¶ 5.

2 ¶6 In doing so, the division concluded that “price does not

definitively establish value in retail theft cases.” Id. at ¶ 6. Instead,

as the division explained, the price of an item (whether regular

retail price or discounted sale price) is prima facie evidence of value,

but it is not dispositive because it can be rebutted by the opposing

party’s evidence. Id. at ¶ 7. And the division noted that where

parties present competing evidence of value, the weight to be given

to either side’s evidence is a question for the jury. Id. at ¶ 16.

¶7 We agree with the Bolden division’s analysis and adopt it to

resolve Green’s argument.

¶8 At trial, the prosecution presented evidence that the regular

retail price of the items was $2,094.98, while Green and his co-

defendant presented evidence that the discounted sale price was

$1,856.19. Thus, “[o]n this record, ‘a jury could reasonably find

th[e] [regular retail] prices indicative of value or reasonably reject

them as indicative of value.’” Id. at ¶ 17 (quoting State v. Dillard,

490 P.3d 176, 179 (Or. Ct. App. 2021)). “And ‘[w]here reasonable

minds could differ, the evidence is sufficient to sustain a

conviction.’” Id. (quoting People v. Carlson, 72 P.3d 411, 416 (Colo.

App. 2003)).

3 II. Jury Instructions

¶9 Green tendered two instructions concerning valuation of the

stolen merchandise. The first provided that

[t]he value of items which are stolen is their reasonable market value at the time of the taking. The reasonable market value is the amount a willing buyer would pay to the true owner for the stolen item(s) at the time of the commission of the alleged offense.

The second, based on section 18-4-414(1), C.R.S. 2025,1 provided

that

[t]o determine the value of the items involved, you may consider evidence offered to prove value, which may include, but shall not be limited to, testimony regarding affixed labels and tags, signs, shelf tags, notices, or other reliable evidence of the sales price.

The court declined to give either instruction.

¶ 10 On appeal, Green contends that the instructions were

necessary to inform the jury of “what price legally constituted

‘value’” and “what evidence was relevant to establish . . . value.”

1 Section 18-4-414(1), C.R.S. 2025, provides that, “[w]hen theft

occurs from a store, evidence of the retail value of the thing involved shall be prima facie evidence of the value of the thing involved. Evidence offered to prove retail value may include, but shall not be limited to, affixed labels and tags, signs, shelf tags, and notices.”

4 ¶ 11 The Bolden division rejected similar arguments raised by

Green’s co-defendant, and we see no reason to depart from its

analysis.

¶ 12 First, as explained, the premise of Green’s argument is flawed.

Neither the regular retail price nor the discounted sale price

constituted the “legal” value of the stolen merchandise. Rather, the

price of an item at the time of the theft is “merely some evidence of

value.” Bolden, ¶ 35.

¶ 13 Second, neither instruction was necessary. As the Bolden

division explained, “[t]here was no real dispute about the correct

measure of value” at trial — “[b]oth sides presented evidence of . . .

fair market value . . . on the date of the theft.” Id. at ¶ 36. The

dispute centered on how to apply the correct measure — that is,

whether the regular retail price or the discounted sale price was

more indicative of fair market value. Id. Thus, “[a]n instruction

defining value as ‘reasonable market value’ would not have helped

the jury determine whether the items were worth $2,094.98 or

$1,856.19.” Id. And an instruction that labels, tags, and signs

were reliable evidence of value would not have helped Green when

(unlike the retailer) he did not introduce any evidence of the items’

5 value through labels, tags, or signs. The discounted sale prices

were introduced through two documents the retailer provided in

response to a defense subpoena.

¶ 14 Third, because the theft instruction tracked the statutory

language and “value” is not a technical term, we cannot say that the

trial court abused its discretion by declining to provide a definition,

particularly a definition taken from case law. See Garcia v. People,

2023 CO 30, ¶¶ 18-21 (trial court did not err by declining to define

“universal malice” using language from case law because the term

is not a technical term); Bolden, ¶ 37.

III. Jury Deliberation Questions

¶ 15 Green was arrested about a month after the theft. At trial, the

retailer’s loss prevention manager testified that because the stolen

items were not recovered, she used the store’s security camera

footage, which showed Green and his co-defendant placing

merchandise in their shopping carts, to identify some of the stolen

items. The manager explained that the carts were “[v]ery full of

merchandise,” but she could not see all of the items because some

were “covered by the other stuff,” so she only identified and

provided pricing information for fifteen items.

6 ¶ 16 During deliberations, the jury first asked if it could “consider

the unidentified items in the cart as circumstantial evidence.”

Green wanted the court to say “no,” but the court instead

responded, “During the trial, you received all of the evidence and

instructions that you may properly consider in deciding this case.”

Later, the jury asked if it could “consider [the] wholesale price of

items taken.” This time, Green wanted the court to say “yes,” but

the court reiterated its response to the first question.

¶ 17 Green contends that the court reversibly erred by directing the

jury back to the instructions.

¶ 18 When a jury asks a question during deliberations, an

additional instruction is “often appropriate” unless (1) “the jurors

can be adequately informed by directing their attention” to the

original instructions; (2) the question “concerns matters not in

evidence or does not pertain to the law of the case”; or (3) the

question “would call upon the judge to express an opinion upon

factual matters that the jury should determine.” People v. Frye,

2014 COA 141, ¶ 26 (citation omitted).

¶ 19 In this case, the original instructions adequately answered

both questions. See Sanchez v. People, 820 P.2d 1103, 1107 (Colo.

7 1991) (“When the answer to a jury’s question is contained in the

initial jury instructions, a trial court does not err by directing the

jury’s attention to those instructions.”). Instruction No. 16, the

special interrogatory that linked to the elemental instruction,

informed the jury that the prosecution had the burden “to prove the

value of the thing involved beyond a reasonable doubt.” And

Instruction No. 5 explained that the jury could find Green guilty

only if it found “from the evidence” that “each and every element of

a crime has been proven beyond a reasonable doubt.” No evidence

was presented concerning the value of the unidentified items or the

wholesale value of the identified items. Thus, by referring the jury

back to the instructions and clarifying that it had received all the

evidence in the case, the court adequately advised the jury that its

verdict (including valuation) had to be based only on the evidence

presented at trial.

¶ 20 Moreover, if the court had given Green’s proposed responses

— “no,” the jury could not consider the unidentified items as

“circumstantial evidence,” and “yes,” it could consider the wholesale

price of the items — the court would have effectively “express[ed] an

opinion upon factual matters.” Frye, ¶ 26 (citation omitted). Those

8 responses would have constituted a direct comment on the evidence

presented at trial — i.e., a pronouncement by the court that the

prosecution had not presented evidence of the value of the

unidentified merchandise but that it had presented evidence of the

wholesale value of the stolen items. See People v. Mascarenas, 972

P.2d 717, 724 (Colo. App. 1998) (trial court properly referred the

jury back to original instructions where further instruction “could

have amounted to an expression of opinion by the court on a matter

that was properly determinable by the jury”).

¶ 21 Though there might have been other reasonable responses to

the jury’s questions, we cannot conclude that the court’s responses

were manifestly arbitrary, unreasonable, or unfair, particularly

when Green did not offer any alternatives beyond “no” and “yes.”

See People v. Lopez, 2024 COA 26, ¶ 37 (in reviewing the trial

court’s response to a jury question, “we ask not whether we would

have made a different decision but, rather, whether the trial court’s

decision fell within the range of reasonable options”), aff’d, 2026 CO

23.

9 IV. Bill of Particulars

¶ 22 Green contends that the court committed reversible error by

denying his motion for a bill of particulars.

¶ 23 A bill of particulars provides additional details of the charges

when the charging instrument, though legally sufficient, lacks the

specificity necessary for the defendant to prepare a defense. See

People v. Vigil, 2015 COA 88M, ¶ 29, aff’d, 2019 CO 105. In a theft

case, when the charging instrument merely tracks the statutory

language, a defendant is ordinarily entitled to a bill of particulars.

See § 18-4-401(6). However, when the defendant “can obtain

adequate information through the charging document, preliminary

hearing, and discovery process, a bill of particulars is not

necessary.” People v. Pineda, 40 P.3d 60, 66 (Colo. App. 2001).

¶ 24 Here, the affidavit for an arrest warrant specified the date and

time of the offense, listed the fifteen stolen items and their regular

retail price, and identified potential witnesses including the

retailer’s loss prevention manager. Additionally, at the preliminary

hearing, the prosecution introduced security camera footage

showing Green and his co-defendant engaged in the conduct that

formed the basis of the charges.

10 ¶ 25 Nonetheless, Green insists that a bill of particulars was

necessary to “prepare for a case where the prosecution elicited

information about unidentified items.” True, the loss prevention

manager noted at trial that Green and the co-defendant had

unidentifiable items in their shopping carts. But the purpose of a

bill of particulars is to provide additional details about the charged

conduct, and the charges were not based on the unidentifiable

items. In any event, Green does not explain how the prosecution

could have provided additional information about unidentifiable

merchandise.

¶ 26 Because a bill of particulars was not necessary, the court did

not abuse its discretion by denying Green’s motion. See People v.

Quintano, 81 P.3d 1093, 1096-97 (Colo. App. 2003), aff’d, 105 P.3d

585 (Colo. 2005).

V. Cumulative Error

¶ 27 We discern no errors and, therefore, Green is not entitled to

relief under the cumulative error doctrine. See Howard-Walker v.

People, 2019 CO 69, ¶ 25 (reversal based on cumulative error

requires the reviewing court to “identify multiple errors that

collectively prejudice[d] the [defendant’s] substantial rights”).

11 VI. Disposition

¶ 28 The judgment of conviction is affirmed.

JUDGE TOW and JUDGE BROWN concur.