County District Court No. 10CR1604 Honorable John N.
AFFIRMED, SENTENCES VACATED, AND CASE REMANDED WITH
Cynthia H. Coffman, Attorney General, Ethan E. Zweig,
Assistant Attorney General, Denver, Colorado, for
J. DeFranco, Alternate Defense Counsel, Brighton, Colorado,
Casebolt [*] ,
J., concurs. Dunn, J., concurs in part and dissents in part.
1 Defendant, James Edward Patton, appeals the judgment of
conviction entered on a jury verdict finding him guilty of
one count of the unauthorized use of a financial instrument.
He also appeals his sentence on the theft conviction and the
imposition of consecutive sentences for the theft and
unauthorized use convictions. We affirm the conviction and
vacate and remand the theft count for resentencing. We also
vacate the imposition of consecutive sentences.
2 On December 21 and 22, 2009, Patton purchased over $8000
worth of consumer electronics from Ultimate Electronics using
a Wells Fargo debit card that was issued to him. The card was
declined during the transaction, and Patton used a false
override authorization code to force the sale. Ultimate
Electronics then received a "charge-back" from
Wells Fargo, meaning it was not paid for the purchase.
3 At trial, a Wells Fargo representative testified that the
card had been cancelled on December 9, 2009, when Patton
called the bank and reported that he had never received the
card nor made any purchases on it. The representative also
testified that the bank employee would have informed Patton
that the card was cancelled, although there was no record
that Patton had been so advised. The representative also
testified that the bank would not have given an override code
for the card.
4 Patton raises four contentions on appeal: (1) the trial
court erred in denying his motion for judgment of acquittal
because the prosecution was unable to prove the notice
element of unauthorized use of a financial instrument; (2)
the trial court erred by imposing consecutive sentences
because the theft and unauthorized use of financial
instrument counts were proved by identical evidence; (3) the
court abused its discretion by refusing to afford Patton the
benefits of amendatory sentencing legislation for the theft;
and (4) the court improperly entered the theft conviction for
a class 4 felony without a finding of actual value by the
5 We disagree with Patton's first contention and affirm
the conviction for unauthorized use. We agree with
Patton's second contention and vacate the imposition of
consecutive sentences. We also agree with Patton's third
contention that he should benefit from the amendatory
legislation to reduce the severity of the theft offense, and
remand for resentencing. We disagree with his final
Denial of Judgment of Acquittal
6 Patton contends that the trial court abused its discretion
and erred by denying his motion for judgment of acquittal
after the prosecution failed to prove that he received notice
in person or in writing that the debit card had expired or
had been revoked or cancelled as required by the notice
element of the unauthorized use of a financial instrument
statute. We disagree.
Standard of Review
7 We evaluate the denial of a motion for judgment of
acquittal by conducting a de novo review of the record to
determine whether the evidence before the jury was sufficient
to sustain the conviction. Montes-Rodriguez v.
People, 241 P.3d 924, 927 (Colo. 2010). When the basis
for denial was the trial court's interpretation and
application of a statute, review is similarly de novo.
Bostelman v. People, 162 P.3d 686, 690 (Colo. 2007).
8 Under section 18-5-702(1), C.R.S. 2016, a person commits
unauthorized use of a financial instrument if he or she has
notice that a device has expired, has been revoked, or has
been cancelled. Under the statute, notice "includes
either notice given in person or notice given in writing to
the account holder." § 18-5-702(2). The purpose of
the statute is to prevent fraud in financial transactions.
People v. Trujillo, 2015 COA 22, ¶ 30, 369 P.3d
9 When a court interprets a statute, its goal is to give
effect to the intent of the legislature. Montez v.
People, 2012 CO 6, ¶ 7, 269 P.3d 1228, 1230. Words
and phrases must be interpreted according to their plain
meanings. People v. Pipkin, 762 P.2d 736, 737
(Colo.App. 1988). The court reads statutory words and phrases
in context and construes them according to the rules of
grammar and common usage. Doubleday v. People, 2016
CO 3, ¶ 19, 364 P.3d 193, 196. It must avoid
"constructions that would render any words or phrases
superfluous or lead to illogical or absurd results."
10 In interpreting an ambiguous statute, we may consider the
legislative declaration or purpose. § 2-4-203(1)(f),
C.R.S. 2016. Further, if the language of a statute is
unclear, the court may rely on several indicators, including
the objective that the legislature sought to obtain by its
enactment, the circumstances under which it was adopted, and
the consequences of a particular construction. See People
v. Baer, 973 P.2d 1225, 1228 (Colo. 1999).
11 At trial, Patton moved for a judgment of acquittal on the
unauthorized use count, asserting that the prosecution failed
to present evidence to satisfy the notice element of the
statute, because the statute requires that notice be given in
person or in writing. The court denied the motion. During
deliberations, the jury sent out a question for the court
asking whether a phone communication satisfied the definition
of "in-person" notice. The court advised the jury
that the statutory definition of "notice" required
notice to be given in person or in writing. It then advised
the parties that a deeper reading of the statute had caused
it to believe that it had erred in its denial of Patton's
motion, because the statutory definition of
"notice" appeared to be exclusive. The court then
advised Patton's attorney that it would anticipate a
motion for judgment notwithstanding the verdict if the jury
convicted on that count. Upon conviction by the jury, Patton
moved for a judgment notwithstanding the verdict, and the
court denied his motion.
12 Whether notice under section 18-5-702(2) is limited to
notice given in person or in writing is a question of first
13 We conclude that the statute does not require notice only
in person or in writing, because the word
"includes" is a word that is meant to extend rather
than limit. Pipkin, 762 P.2d at 737; see also
Lyman v. Town of Bow Mar, 188 Colo. 216, 222, 533 P.2d
1129, 1133 (1975) ("[T]he word 'include' is
ordinarily used as a word of extension or
14 Patton argues that the term "includes" makes the
definition exclusive and exhaustive; however, the statute
would have used the term "means" to limit
acceptable forms of notice to those in person and in writing.
"To hold otherwise here would transmogrify the word
'include' into the word 'mean.'"
Lyman, 188 Colo. at 222, 533 P.2d at 1133; see
also People v. James, 40 P.3d 36, 47 (Colo.App. 2001)
("Thus, [a federal statute] defines 'enterprise'
by stating what it 'includes, ' a word that normally
operates to extend rather than limit. . . . [The Colorado
statute], on the other hand, defines 'enterprise' by
stating what it 'means, ' which . . . is a word of
limitation."); Arnold v. Colo. Dep't of
Corr., 978 P.2d 149, 151 (Colo.App. 1999) ("[T]he
word 'include' is ordinarily used as a word of
extension or enlargement and is not definitionally equivalent
to the word 'mean.'"); Childers v.
State, 936 So.2d 585, 597 (Fla. Dist. Ct. App. 2006)
("[I]nclude indicates that what is to follow is only
part of a greater whole. . . . By the use of the non-limiting
term "includes, " however, the list used to define
'person' is illustrative rather than
exhaustive."). Like the cases enumerated above, the
statute here identifies a general class of notice, and then
extends it to more particular subclasses. It is illustrative,
rather than exhaustive. See also Brian A. Garner,
Garner's Dictionary of Legal Usage (3d ed. 2011)
("[I]ncluding is sometimes misused for namely. But it
should not be used to introduce an exhaustive list, for it
implies that the list is only partial. . ...