County District Court No. 12CR3669 Honorable Thomas L.
Cynthia H. Coffman, Attorney General, Patricia R. Van Horn,
Senior Assistant Attorney General, Matthew S. Holman, First
Assistant Attorney General, Denver, Colorado, for
C. Hartfield, Alternate Defense Counsel, Denver, Colorado,
1 Defendant, John Arthur Stellabotte, appeals the judgment of
conviction entered after a jury verdict finding him guilty of
one count of aggravated motor vehicle theft, two counts of
felony theft, and one count of misdemeanor theft. He also
appeals his sentence, as enhanced by three habitual criminal
counts. We affirm the conviction, vacate the sentences for
felony theft, affirm the other sentences, and remand for
resentencing on the felony theft convictions.
2 Stellabotte, owner of J&J Towing, was charged with six
counts of first degree aggravated motor vehicle theft, under
section 18-4-409(2) and (3)(a), C.R.S. 2015; four counts of
theft, under section 18-4-401(1), C.R.S. 2015; and five
habitual criminal counts pursuant to section 18-1.3-801,
C.R.S. 2015. The counts related to J&J towing five
vehicles. A jury convicted Stellabotte of one count of
aggravated motor vehicle theft, a class 4 felony; two counts
of theft, class 4 felonies; and one count of theft, a class 2
misdemeanor relating to two tows - the B.W. and P.H. tows.
3 In June 2012, B.W. parked her car at an apartment complex.
The following morning, her car was missing. A sign in the
parking lot stated that cars without parking permits would be
towed by J&J Towing. B.W., whose car did not have a
parking permit sticker, called J&J to recover her car,
but the company stated that it did not have it. B.W. reported
her car stolen.
4 Five days later, J&J towed the car to a police station.
Stellabotte said that J&J had notified the police of the
initial tow on June 8, as required by state towing
regulations. The officer, however, could not find such a
5 J&J initially requested that B.W. pay $215 to release
her car but eventually returned it to her without her making
any payment. However, several days later, Stellabotte told
B.W. that he would put a lien on her car and tow it again if
she did not pay him the money. The next day, he towed
B.W.'s car, which was parked on a public street across
from her house. Stellabotte refused to release the car to
B.W. until she paid him $498.50, which she did. She noticed
damage to her car, and Stellabotte said if she did not sign a
release form he would charge her another $200, so she signed
6 Teresa Hill, the apartment complex property manager,
testified that rules in place for the property required
license plate stickers indicating that any parked car
belonged to a resident. As manager, she entered into a contract
with J&J, through an employee named James
Ward. The complex permitted J&J to tow cars
without the proper stickers without first contacting
management at the apartment complex.
7 B.W. reported J&J to the Colorado Public Utilities
8 In July 2012, K.S. parked a truck, registered to her
father, P.H., in the parking lot of a shopping mall, where
she worked at a yogurt shop. She arranged for P.H. to pick up
the truck the following day, but when he arrived to pick up
the truck, it was missing.
9 K.S.'s mother, R.H., and P.H. contacted
Griffis-Blessing, the company they believed to be the
property manager for the mall. Griffis-Blessing could not
provide them with any information about whether the truck had
been towed, but the family later received an unsigned letter
from J&J, which advised them that J&J had towed the
truck. At the time the truck was towed, its registration had
expired. P.H. paid $583 to retrieve the truck.
10 R.H. requested a refund from J&J after
Griffis-Blessing advised her that it had not authorized the
tow. However, Ward advised her that she could only claim her
refund if she signed a letter of final settlement, stating
that the refund settled all outstanding amounts and that R.H.
would "not slander or speak of this matter to any partys
[sic] outside of this matter, " including the PUC. When
she refused to sign the acknowledgment, Ward called
Stellabotte, who reiterated that if R.H. refused to sign the
agreement, he would not give her a refund.
11 Kelly Clay, a property manager who worked for
Griffis-Blessing, testified that she was unaware of any
towing contract with J&J for the portion of the shopping
mall that she managed and that she had not authorized the tow
of P.H.'s truck. She stated that a different property
management company managed the property where the yogurt shop
Investigation & Trial
Following B.W.'s complaint, Anthony Cummings, an
investigator with the PUC, spoke with Ward, who provided
towing invoices for both B.W. tows. Cummings determined that
the documents did not comply with PUC regulations.
Specifically, the invoices lacked authorizing signatures, a
release date, and a specific rate statement, and they
contained an incorrect address for the business. According to
Cummings, these deficiencies rendered the towing contracts
invalid and meant that J&J was not authorized to collect
the $493 that B.W. had paid to have her car released.
13 Cummings found similar PUC violations regarding P.H.'s
tow. Ward was unable to provide a written towing contract for
the shopping mall property. Ward claimed that "S.R.,
" which stood for Sean Reilly, had authorized the tow
because his initials appeared on the towing invoice. Reilly,
the former leasing agent for the shopping mall, testified
that his responsibilities did not include authorizing tows
from the property. He denied authorizing the tow of the
14 On August 22, 2014, after a trial and jury verdict, the
court adjudicated Stellabotte a habitual criminal for
convictions on three counts ― a 2005 aggravated motor
vehicle theft, a 2003 attempted aggravated motor vehicle
theft, and felony menacing in 1996.
15 In accordance with the habitual criminal statute, the
court quadrupled the maximum sentencing ranges of the felony
convictions, resulting in twenty-four-year sentences for each
of the three felony convictions. The court sentenced
Stellabotte to one year for the misdemeanor theft conviction.
The sentences all ran concurrently.
16 Stellabotte raises four contentions on appeal: (1) the
trial court erred in instructing the jury on aggravated motor
vehicle theft; (2) the court erred in providing the jury with
a dictionary definition of the term
"authorization"; (3) the twenty-four-year sentences
imposed for Stellabotte's two felony theft convictions
should be halved because of new legislation reducing the
severity of those offenses; and (4) the twenty-four-year
sentences imposed for Stellabotte's three habitual
criminal counts are grossly disproportionate to the nature
and severity of the offenses. We agree with Stellabotte's
third contention that he should benefit from the General
Assembly's amendatory legislation to reduce the severity
of felony theft offenses. However, we disagree with his other
17 Stellabotte contends that the trial court erred in
instructing the jury on aggravated motor vehicle theft,
where, in contrast to the theft instruction, the aggravated
motor vehicle theft instruction did not convey that he had to
act knowingly without authorization. We disagree.
Standard of Review
18 We apply a two-tier standard of review to jury
instructions. First, we review de novo the jury instructions
as a whole to determine whether the instructions accurately
informed the jury of the governing law. People v.
Lucas, 232 P.3d 155, 162 (Colo.App. 2009). Second, if
the trial court correctly informed the jury of the governing
law, we review the court's formulation of the
instructions for an abuse of discretion. People v.
Pahl, 169 P.3d 169, 183 (Colo.App. 2006). A court abuses
its discretion when its ruling is manifestly arbitrary,
unreasonable, or unfair, People v. Rath, 44 P.3d
1033, 1043 (Colo. 2002), and when it misconstrues or
misapplies the law, People v. Henson, 2013 COA 36,
¶ 9, 307 P.3d 1135, 1136.
19 Under section 18-4-409(2), a person commits first degree
aggravated motor vehicle theft "if he or she knowingly
obtains or exercises control over the motor vehicle of
another without authorization or by threat or
20 The culpable mental state, "knowingly, " applies
not only to a defendant's exercise of control over the
vehicle, but also to his or her awareness of lack of
authority. People v. Bornman, 953 P.2d 952, 954
(Colo.App. 1997). When a mental state is listed as a
stand-alone element, it applies to the succeeding elements.
See People v. Chase, 2013 COA 27, ¶ 62, ____
P.3d___, ____ ("Knowingly" is set out "as a
standalone element, thereby indicating that it applied to all
of the subsequent elements of the offense."); People
v. Stephens, 837 P.2d 231, 234 (Colo.App. 1992) (stating
that "knowingly, " listed as separate element,
applied to succeeding elements, including the "without
21 The court instructed the jury that the elements of first
degree aggravated motor vehicle theft were that Stellabotte:
1. In the State of Colorado, at or about the date and place
3. obtained and exercised control over the motor ...