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 July 24, 2025
2025COA68
No. 23CA1865, People v. Brennan — Crimes — Unauthorized Use of a Financial Transaction Device — Identity Theft; Criminal Law — State Jurisdiction
A division of the court of appeals considers the novel issue of
whether a Colorado court can exercise jurisdiction over a defendant
for unauthorized use of a financial transaction device and identity
theft based on the defendant’s solicitation, from a state other than
Colorado, of out-of-state services using a Colorado resident’s credit
card without the resident’s authorization. The division holds that,
because the conduct elements of the charged offenses exclusively
occurred out of state, a Colorado court lacks jurisdiction over the
defendant’s prosecution. It accordingly vacates the defendant’s
judgment of conviction. COLORADO COURT OF APPEALS 2025COA68
Court of Appeals No. 23CA1865 Douglas County District Court No. 22CR1004 Honorable Christopher J. Munch, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Erin Brennan,
Defendant-Appellant.
JUDGMENT VACATED
Division VII Opinion by JUDGE LIPINSKY Pawar and Lum, JJ., concur
Announced July 24, 2025
Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
The Noble Law Firm, LLC, Antony Noble, Lakewood, Colorado, for Defendant- Appellant ¶1 Americans reported more than 440,000 cases of credit card
fraud in 2022. Fed. Trade Comm’n, Consumer Sentinel Network
Data Book 2024, at 15 (2025), https://perma.cc/4APJ-JXNA.
Christopher Caltabiano was one of them.
¶2 Caltabiano, a Colorado resident, did not fall victim to an
anonymous scammer launching scores of phishing emails from a
computer in a distant land. Rather, the unauthorized user of
Caltabiano’s Mastercard (the card) was his ex-wife, defendant, Erin
Brennan, a New York resident. And Brennan did not use the card
to fund a spending spree; she used it to pay a portion of two of their
children’s expenses at a summer day camp, Camp Ramaquois, in
Pomona, New York.
¶3 Brennan was charged with and convicted of two crimes in
Colorado — unauthorized use of a financial transaction device
(unauthorized use) in violation of section 18-5-702(1)(b), (3)(g),
C.R.S. 2024, and identity theft in violation of section 18-5-902(1)(a),
C.R.S. 2024 — for using the card without Caltabiano’s permission.
¶4 On appeal, Brennan argues that the Colorado district court
lacked jurisdiction over her because
1 • she allegedly instructed Camp Ramaquois to use the card
for a portion of the children’s expenses during a call from
one New York location to another;
• she therefore only used Caltabiano’s “financial device” in
New York;
• she formed the requisite intent for the two offenses while
in New York; and
• the impact of her use of the card on Caltabiano was not
an element of either unauthorized use or identity theft.
¶5 This is the first decision to consider whether a Colorado court
can exercise jurisdiction over a defendant for unauthorized use and
identity theft based on the defendant’s solicitation, from a state
other than Colorado, of out-of-state services using a Colorado
resident’s credit card without the resident’s authorization.
¶6 We agree with Brennan and vacate her judgment of conviction.
I. Background
¶7 The underlying facts are largely undisputed.
¶8 During their marriage, Brennan and Caltabiano lived in New
York with their three children. Brennan and Caltabiano were
divorced in New York in 2019. Following the divorce, Brennan and
2 the children remained in New York, while Caltabiano relocated to
Colorado.
¶9 Brennan and Caltabiano’s divorce settlement specified, among
other terms, that Caltabiano would be responsible for paying sixty-
five percent of all mutually agreed-upon extracurricular expenses
for the children, including summer camp expenses.
¶ 10 Two of the children attended Camp Ramaquois in 2021.
Caltabiano paid a portion of the children’s camp expenses that year.
He uploaded the card information to Camp Ramaquois’s “system,”
but he never instructed Camp Ramaquois “to take [the] card off a
file or to remove it.”
¶ 11 In December 2021, Brennan emailed Caltabiano about the
estimated cost of the children’s summer camps in 2022. Caltabiano
responded that he was not prepared to authorize any summer
camps for the coming year because he was still paying off the 2021
camp expenses and was not comfortable “putting on credit card
debt.” Brennan said she wanted to enroll the children before spots
filled up, and Caltabiano responded, “I am not agreeing to send
them to these camps as they are too costly and alternatives can be
found that are more affordable.”
3 ¶ 12 In January 2022, Brennan sent Caltabiano an updated budget
proposal for the children’s camp expenses. Caltabiano said he
would pay fifty percent of the expenses and suggested sending the
children to a less expensive day camp in Colorado. Brennan
responded that the children wanted to attend camp in New York
with their friends.
¶ 13 In April, Brennan informed Caltabiano that she had registered
two of the children in Camp Ramaquois, noted that he “had put
[the] card down for [Camp] Ramaquois” the prior year, and said she
could “put a portion on [the card] and give them [hers].” Caltabiano
responded that he had “always contested the reasonableness of
these charges,” he had “no money,” and Brennan could “get
compensated when/if [Caltabiano received] a bonus in December.”
¶ 14 The next month, Caltabiano discovered a $10,453.46 charge
for Camp Ramaquois on his credit card statement. He testified at
trial that he did not authorize Brennan to charge this sum to the
card. Caltabiano told Camp Ramaquois that he had not authorized
the charge and requested a refund. When Camp Ramaquois would
not reverse the charge, Caltabiano unsuccessfully sought a credit
for the disputed charge from the credit card company. He later
4 reported to Colorado law enforcement authorities that Brennan had
used the card without authorization. She was charged with
unauthorized use and identity theft.
¶ 15 Brennan’s counsel filed a pretrial motion to dismiss for lack of
jurisdiction pursuant to section 18-1-201, C.R.S. 2024. The court
summarily denied the motion, without explanation. Brennan
unsuccessfully raised the issue again at trial. The court concluded
that it had jurisdiction because there was a “sufficient nexus”
between Brennan’s conduct and the elements of unauthorized use
and identity theft. The court placed significant weight on Brennan’s
knowledge that Caltabiano resided in Colorado at the time of the
unauthorized charge.
¶ 16 Brennan testified at trial that, although she authorized Camp
Ramaquois to charge thirty-five percent of the children’s expenses
to her own credit card, she did not instruct the camp to charge the
balance to the card. Brennan said that she did not discuss
payment of the remaining balance with Camp Ramaquois, saying,
“[t]hey didn’t ask me anything” about covering the balance.
¶ 17 After the jury convicted Brennan of unauthorized use and
identity theft, the court sentenced her to one year in the custody of
5 the Department of Corrections, suspended on the conditions that
she pay a $5,000 fine, take a victim empathy class, and make full
restitution.
¶ 18 Brennan raises a single issue in this appeal — whether her
judgment of conviction should be reversed because the court lacked
jurisdiction over the case under section 18-1-201. We now turn to
the law governing this appeal.
II. Law
A. Standard of Review
¶ 19 “Jurisdiction is a question of law that we review de novo.”
People v. Nevelik, 2021 COA 30, ¶ 10, 491 P.3d 492, 493.
B. The Jurisdictional Statute
¶ 20 Section 18-1-201 sets forth the limits on Colorado courts’
subject matter jurisdiction in criminal cases. The statute makes
clear that the courts in this state cannot exercise jurisdiction over
every criminal case involving a Colorado-based victim. The statute
provides:
(1) A person is subject to prosecution in this state for an offense which he commits, by his own conduct or that of another for which he is legally accountable, if:
6 (a) The conduct constitutes an offense and is committed either wholly or partly within the state . . . .
§ 18-1-201 (emphasis added). An offense is committed “partly
within this state” if (1) “conduct occurs in this state which is an
element of an offense,” or (2) “the result of conduct in this state is
such an element.” § 18-1-201(2).
¶ 21 “The definition of an offense may include conduct,
circumstances, or result elements.” People v. Baca, 852 P.2d 1302,
1305 (Colo. App. 1992); see Model Penal Code § 1.13(9) (Am. L. Inst.
1985). Conduct elements describe “the nature of the forbidden
conduct” and include both the underlying action or omission and
its accompanying state of mind. Baca, 852 P.2d at 1305;
§ 18-1-501(2), C.R.S. 2024. “[A]ttendant circumstance[]” elements
— which do not confer jurisdiction on a court, see § 18-1-201 —
include “the circumstances surrounding [a prohibited act’s]
commission . . . as distinguished from any element requiring that
such act have a particular effect, or cause a particular result.”
People v. Childress, 2015 CO 65M, ¶¶ 21, 29, 363 P.3d 155, 161,
164. Result elements indicate that causation is part of a crime’s
actus reus. See Dep’t of Nat. Res. v. 5 Star Feedlot, Inc., 2021 CO
7 27, ¶ 69, 486 P.3d 250, 265 (Hood, J., dissenting) (citing 1 Paul H.
Robinson, Criminal Law Defenses § 88 (2020)) (“Causation is a part
of a crime’s actus reus whenever the General Assembly prohibits a
specific result.”).
¶ 22 Section 18-1-201(3) provides that “[w]hether an offender is in
or outside of the state is immaterial to the commission of an offense
based on an omission to perform a duty imposed by the law of this
state.” (Emphasis added.)
¶ 23 Although no previous Colorado case has applied section
18-1-201 to prosecutions for unauthorized use or identity theft,
divisions of this court have considered whether a court in this state
could exercise jurisdiction over prosecutions for other offenses
involving out-of-state conduct. We review those cases next.
C. The Cases Applying Section 18-1-201
¶ 24 Fifty years ago, a division of this court decided that a Colorado
court could exercise jurisdiction over a theft case involving the sale
of stolen power saws in Colorado. See People v. Martinez, 543 P.2d
1290, 1291 (Colo. App. 1975). In Martinez, a Colorado resident and
his friend purchased the saws in Colorado from Martinez and his
codefendant, who displayed them in the trunk of the codefendant’s
8 vehicle. Id. The saws had been stolen from a store in New Mexico.
Id. at 1291-92.
¶ 25 On appeal, Martinez argued that the Colorado court lacked
jurisdiction over his case because he was charged with “theft by
taking,” and the “taking” had occurred in New Mexico. Id. at 1292.
The division disagreed:
The elements of theft as charged here are knowingly obtaining or exercising control over a thing of value of another without authorization and with the intent to deprive another permanently of the use or benefit of his property. There was evidence presented that [Martinez] exercised control over these chain saws in Colorado without authorization. Thus, the offense of theft was “committed partly within this state” as contemplated by [section] 18-1-201(2) . . . .
Id. Accordingly, a person who exercises control over stolen goods in
Colorado can be prosecuted for theft in this state.
¶ 26 In contrast, another division of this court held that no element
of theft occurred in Colorado when, pursuant to an oral agreement,
the defendant took possession of a Colorado resident’s goods, sold
them in another state, and failed to pay the sales proceeds to the
Coloradan. See People v. Tinkle, 714 P.2d 919, 920 (Colo. App.
1985). In Tinkle, the trial court concluded it could exercise
9 jurisdiction over the case because the defendant’s actions in
Colorado — taking possession of the goods after agreeing to sell
them for the victim in another state — whether “criminal or not,
were part and parcel of the theft.” Id. The division squarely
rejected the trial court’s “part and parcel” rationale because the
place where a defendant came into possession of the thing of value
is “not an element of the crime of theft.” Id.
¶ 27 Almost thirty years later, in People v. Chase, the division held
that a Colorado court could exercise jurisdiction over the
prosecution of a defendant charged with stalking for sending
threatening emails to current and former personnel at his housing
complex in Grand County. 2013 COA 27, ¶¶ 2, 5-7, 411 P.3d 740,
744-45. In the emails, the defendant threatened to retaliate against
the victims, who were all Colorado residents, in this state if they did
not take an action in Colorado — remove an eviction notice from the
defendant’s door. Id. at ¶¶ 4-7, 411 P.3d at 745. But the defendant
sent the emails from Boston, and the recipients received them while
on vacation in Baltimore. Id. at ¶ 24, 411 P.3d at 747. Based on
these facts, the defendant argued that the Colorado court lacked
jurisdiction over the case. Id.
10 ¶ 28 As relevant here, the stalking statute that the division
analyzed in Chase required the prosecution to prove that the
defendant knowingly made a credible threat to another person. Id.
at ¶ 20, 411 P.3d at 747 (citing § 18-9-111(4)(b)(II), C.R.S. 2008).
The version of the stalking statute in effect at the time defined a
“credible threat” as a threat that would “cause a reasonable person
to be in fear for the person’s safety.” Id. at ¶ 21, 411 P.3d at 747
(quoting § 18-9-111(4)(c)(II), C.R.S. 2008).
¶ 29 The division reasoned that the critical analysis was “not where
the e-mails were written or read, but rather whether the result of
Chase’s conduct, namely, causing a reasonable person to be in fear
for his or her safety, occurred, at least in part, in Colorado.” Id. at
¶ 24, 411 P.3d at 747. It concluded that the result of the
defendant’s conduct partly occurred in Colorado primarily because
the threatening emails would have caused reasonable people in the
victims’ position to be in fear for their safety in Colorado. Id. at
¶ 26, 411 P.3d at 748; see also People v. Jacobs, 91 P.3d 438, 440,
442 (Colo. App. 2003) (holding that the defendant could be
prosecuted in Colorado for soliciting for child prostitution when, in
response to a California detective’s website offering “very young . . .
11 escorts,” the defendant sent emails proposing to engage in sexual
acts with a twelve-year-old girl in Colorado).
¶ 30 In contrast, in Nevelik, the defendant, a Texas resident, had no
contact with the Colorado victims. Nevelik, ¶ 1, 491 P.3d at 492.
The victims in that case lost more than $20,000 through a wire
fraud scheme, and the defendant was a “money mule” hired to move
the victim’s funds from the defendant’s bank account to the
instigators’ accounts. Id. at ¶¶ 1-2, 5-7, 491 P.3d at 492-93. The
defendant’s conviction for money laundering rested on, as relevant
here, his role in conducting a financial transaction that involved
money he knew was, or believed to be, the proceeds of a criminal
offense, with the intent to promote the commission of a criminal
offense. Id. at ¶ 12, 491 P.3d at 493-94 (citing § 18-5-309(1)(a)(I),
C.R.S. 2024).
¶ 31 The division held that Colorado lacked jurisdiction over the
defendant’s prosecution because “the essential elements of money
laundering occurred outside of Colorado” and because the
defendant “never traveled to, emailed, telephoned, or had any other
contact with anyone in Colorado, nor did he commit any of the acts
12 in furtherance of a money laundering offense in Colorado.” Id. at
¶¶ 14, 16, 491 P.3d at 494.
¶ 32 These authorities instruct that, when conducting a
jurisdictional analysis, we must closely examine the material
elements of the charged offenses and disregard facts not subsumed
within those elements. Accordingly, we consider whether Brennan
engaged in conduct in Colorado that constituted an element of
either unauthorized use or identity theft; whether the result of her
conduct was an element of either offense (and if so, whether the
result occurred in this state); and whether Brennan’s conviction
was based on her failure to perform a duty required under Colorado
law. We therefore turn to the elements of the unauthorized use and
identity theft statutes.
D. The Unauthorized Use and Identity Theft Statutes
1. Unauthorized Use of a Financial Transaction Device
¶ 33 (1) A person commits unauthorized use of a financial transaction device if [s]he uses such device for the purpose of obtaining cash, credit, property, or services or for making financial payment, with intent to defraud, and with notice that . . .
....
13 (b) For any reason h[er] use of the financial transaction device is unauthorized either by the issuer thereof or by the account holder.
(2) For purposes of paragraphs (a) and (b) of subsection (1) of this section, “notice” includes either notice given in person or notice given in writing to the account holder.
§ 18-5-702 (emphases added).
2. Identity Theft
¶ 34 (1) A person commits identity theft if he or she:
(a) Knowingly uses the personal identifying information, financial identifying information, or financial device of another without permission or lawful authority with the intent to obtain cash, credit, property, services, or any other thing of value or to make a financial payment . . . .
§ 18-5-902.
III. Analysis
A. Colorado Lacks Jurisdiction Over This Case Because All the Conduct Elements Occurred in New York and the Statutes Governing the Offenses Do Not Include Result Elements
¶ 35 We conclude that the court lacked subject matter jurisdiction
over Brennan’s prosecution because none of her conduct forming a
material element of either offense occurred in Colorado, and the
14 unauthorized use and identity theft statutes do not include a result
element. See § 18-1-201(2).
¶ 36 The following tables show the elements of unauthorized use
and identity theft, the classification of each element, and where in
this case the conduct occurred:
Elements of Section Type of Element Location 18-5-702(1)(b): (Conduct, Circumstance, Unauthorized Use or Result)
1. Use of a financial Conduct New York transaction device
2. for the purpose of Conduct New York obtaining cash, credit, property, or services or for making financial payment
3. with intent to Conduct New York defraud
4. and with notice that Circumstance N/A her use of the financial transaction device is unauthorized by the account holder
(Because attendant circumstance elements — unlike conduct or
result elements — do not confer jurisdiction, see § 18-1-201, we
15 need not determine the geographic location of the attendant
circumstance elements of the charged offenses.)
¶ 37 Brennan notes that the “for the purpose” element of the
unauthorized use statute could be viewed as a result element to the
extent section 18-5-702 requires that the “defendant in fact
obtain[ed] possession or use of cash, credit, property, or services
through the unauthorized use of a financial transaction device.”
People v. Novitskiy, 81 P.3d 1070, 1073 (Colo. App. 2003),
abrogated on other grounds by Reyna-Abarca v. People, 2017 CO 15,
¶¶ 34-36, 390 P.3d 816, 821-22. But Brennan reads too much into
the element’s language, particularly as the Novitskiy division did
not consider the classification of the unauthorized use statute’s
elements. But even if “for the purpose” could be deemed a result
element, our analysis would not change because Brennan engaged
in conduct in New York for the purpose of obtaining Camp
Ramaquois’s services in New York.
16 Elements of Section Type of Element Location 18-5-902(1)(a): Identity (Conduct, Circumstance, Theft or Result)
1. Knowingly Conduct New York
2. uses the financial Conduct New York device of another
3. without permission Circumstance N/A or lawful authority
4. with the intent to Conduct New York obtain cash, credit, property, services, or any other thing of value or to make a financial payment
¶ 38 We recognize that the pattern jury instructions for
unauthorized use and identity theft break down the elements of the
offenses even further — for example, separating “with intent to
defraud” into two elements (“with intent” and “to defraud”). COLJI-
Crim. 5-7:01 (2024); see COLJI-Crim. 5-9:01 (2024). However, we
decline to take such a granular approach to the plain language of
the unauthorized use and identity theft statutes. See People v.
Hernandez, 2025 CO 13, ¶ 9, 566 P.3d 995, 997 (We give statutes
their “plain and ordinary meaning.” (quoting People v. Steen, 2014
CO 9, ¶ 9, 318 P.3d 487, 490)); see also Krueger v. Ary, 205 P.3d
17 1150, 1154 (Colo. 2009) (“[T]he pattern instructions are not law, not
authoritative, and not binding on this court.”).
¶ 39 In any event, no conduct elements occurred in Colorado
because Brennan did not improperly obtain the card information in
Colorado. Nor did she ever even possess that information.
Caltabiano had previously provided it to Camp Ramaquois without
restriction. Brennan merely instructed Camp Ramaquois to use the
card information on file to charge Caltabiano for his share of the
two children’s camp expenses.
¶ 40 It is of no consequence that, as the People point out,
Caltabiano’s physical credit card was located in Colorado because,
again, Brennan never had possession of it. The financial
transaction device that Brennan allegedly used without
authorization was an “account number representing a financial
account,” § 18-5-701(3), C.R.S. 2024, because she instructed the
New York camp to use the credit card information in its file.
¶ 41 The prosecution presented no evidence that Brennan formed
the mental state elements of the unauthorized use and identity theft
statutes in Colorado. Thus, her unlawful use of a financial device
18 involved calling the camp and telling it to use a credit card it
already had on file — conduct that solely occurred in New York.
¶ 42 We are not persuaded by the People’s argument that
Brennan’s knowledge that Caltabiano resided in Colorado and her
email correspondence to him conferred jurisdiction in Colorado. We
disagree with the People’s contention that, under Chase, Brennan’s
knowledge of the victim’s state of residence was sufficient to
establish jurisdiction in this state.
¶ 43 We acknowledge that, in Chase, the division quoted with
approval the United States Supreme Court’s statement in
Strassheim v. Daily, 221 U.S. 280, 285 (1911), that “[a]cts done
outside a jurisdiction, but intended to produce and producing
detrimental effects within it, justify a state in punishing the cause
of the harm as if he had been present at the effect, if the state
should succeed in getting him within its power.” Chase, ¶ 29, 411
P.3d at 748. But the facts in Chase and Strassheim, as well as the
Colorado jurisdictional statute, caution against an overly broad
reading of this language.
¶ 44 As noted above, in Chase, there were numerous connections
between the elements of the stalking charge of which the defendant
19 was convicted and Colorado. (Although the defendant was also
convicted of three misdemeanor harassment counts, he did not
challenge those convictions on jurisdictional grounds. Id. at ¶¶ 1,
11, 411 P.3d at 744, 746.) The defendant sent threatening emails
to victims he knew resided in Colorado, even though they received
the emails while in another state; he knew where the victims lived
in Colorado and that they would be returning to this state; he
demanded that the victims take specific actions in Colorado; he
needed to be in Colorado to determine whether the victims complied
with his demands; and he threatened to retaliate against the
victims in Colorado. Chase, ¶¶ 2-7, 26, 411 P.3d at 744-75.
¶ 45 Significantly, the stalking statute that the division discussed
in Chase included a result element with a strong tie to Colorado.
See id. at ¶ 22, 411 P.3d at 747 (“[T]he elemental conduct of making
a credible threat” for purposes of the stalking statute “is defined by
its result of causing a reasonable person to be in fear as
described.”). The Chase division concluded there was sufficient
evidence to establish that the defendant’s emailed threats “would
have caused a reasonable person in the position of [the victims] to
20 be in fear for their own safety and the safety of other persons in
Colorado.” Id. at ¶ 26, 411 P.3d at 748 (emphasis added).
¶ 46 Unlike the stalking offense analyzed in Chase, the offenses of
which Brennan was convicted did not include result elements,
much less result elements that occurred, in whole or in part, in
Colorado. Brennan’s transmission of emails to Caltabiano in
Colorado was not an element of either charged offense: The
prosecution was not required to establish that Brennan
communicated with Caltabiano to prove that she committed
unauthorized use or identity theft. Brennan could have been
convicted without evidence of the emails. In sum, we need not
consider whether any result of Brennan’s conduct occurred in
Colorado because neither the unauthorized use nor the identity
theft statute includes a result element. See § 18-1-201(2).
¶ 47 Similarly, the facts in Strassheim do not support the
conclusion that a state may exercise jurisdiction over a criminal
defendant solely because the defendant knew that the victim
resided in the forum state, even if the underlying criminal statute
does not include a result element linked to the forum. In
Strassheim, the United States Supreme Court held that a Michigan
21 court could exercise jurisdiction over the defendant’s criminal case
because he committed an “overt act” while physically present in
Michigan. 221 U.S. at 285. Thus, allowing a state to prosecute a
criminal case solely because the defendant knew the victim resided
in that state would unreasonably expand the sweep of jurisdictional
statutes such as section 18-1-201.
¶ 48 The facts in this case are akin to those in Nevelik, in which
none of the defendant’s actions occurred in Colorado. Nevelik,
¶¶ 14, 16, 491 P.3d at 494. Although, unlike the defendant in
Nevelik, Brennan knew the victim’s identity and his state of
residence, those facts are insignificant because such knowledge was
not an element of either unauthorized use or identity theft.
¶ 49 The court’s rationale for exercising jurisdiction — that there
was a “sufficient nexus” between Brennan’s conduct and the
elements of the unauthorized use and identity theft statutes —
tracked the trial court’s determination in Tinkle that the defendant’s
actions in Colorado were “part and parcel” of the charged offense.
714 P.2d at 920. But the division in Tinkle rejected that reasoning
on appeal, and the “sufficient nexus” analysis fares no better here.
22 Section 18-1-201 cabins our jurisdictional analysis to the specific
elements of the charged offenses.
¶ 50 Because no conduct related to any element of the offenses of
which Brennan was convicted occurred in Colorado, the court erred
by exercising jurisdiction over Brennan’s case. See § 18-1-201(2).
B. Brennan Did Not Fail to Perform a Duty Required Under Colorado Law
¶ 51 The People alternatively argue that, because Brennan did not
obtain Caltabiano’s authorization to use the card, she engaged in
unauthorized use and identity theft based on her omission to
perform a duty imposed by Colorado law. See § 18-1-201(3).
¶ 52 To support this argument, the People cite People v. Haynie, a
parental kidnapping case arising from the defendant father’s breach
of his duty under the subject divorce decree to timely return the
children to their mother. 826 P.2d 371, 373 (Colo. App. 1991). But
Brennan did not fail to perform a duty imposed by Colorado law.
¶ 53 Unlike the father in Haynie, Brennan did not violate the law by
not seeking Caltabiano’s authorization to use the card before Camp
Ramaquois charged it for the children’s expenses. The elements of
unauthorized use and identity theft do not require the user of the
23 financial device to take the initial affirmative step of seeking
authorization to use the device. Rather, they prohibit the
intentional or knowing use of those devices to make an
unauthorized payment. Thus, a shopper who discovers a credit
card on the floor of a grocery store does not violate the law by failing
to hunt down its owner to ask for permission to use the card. The
shopper can violate the unauthorized use and identity theft statutes
simply by using the credit card with the knowledge that the shopper
lacks permission to do so.
¶ 54 The Florida and Massachusetts cases on which the People rely
are inapposite, either because the elements of the charged offenses
included an affirmative duty to obtain the victim’s consent or
because the state’s jurisdictional law materially differs from section
18-1-201. See State v. Roberts, 143 So. 3d 936, 937-38 (Fla. Dist.
Ct. App. 2014) (holding that a Florida court had jurisdiction over an
Indiana defendant’s prosecution for violating Florida’s identity theft
statute because one of its elements requires the use of another’s
personal information “without first obtaining that individual’s
consent,” constituting an omission of a duty imposed by Florida
law) (citation omitted); Commonwealth v. Thompson, 50 N.E.3d 845,
24 857-59 (Mass. App. Ct. 2016) (addressing a statute that, like the
Florida statute, contained a failure to obtain consent element and
applying the Massachusetts rule that a court can exercise
jurisdiction over a criminal case if the defendant’s conduct had
“detrimental effects” in the state, without considering whether such
effects must be an element of the offense).
¶ 55 Thus, the court could not exercise jurisdiction over Brennan’s
case on the grounds that she failed to perform a legal duty. Neither
the unauthorized use nor the identity theft statute imposes an
affirmative duty that the defendant obtain the victim’s consent
before using the victim’s financial device.
IV. Disposition
¶ 56 The judgment of conviction is vacated, and therefore, the
district court must dismiss the charges against Brennan.
JUDGE PAWAR and JUDGE LUM concur.