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People v. Patton

Court of Appeals of Colorado, First Division

December 29, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
James Edward Patton, Defendant-Appellant.

         Jefferson County District Court No. 10CR1604 Honorable John N. McMullen, Judge

         JUDGMENT AFFIRMED, SENTENCES VACATED, AND CASE REMANDED WITH DIRECTIONS.

          Cynthia H. Coffman, Attorney General, Ethan E. Zweig, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Ingrid J. DeFranco, Alternate Defense Counsel, Brighton, Colorado, for Defendant-Appellant

          Casebolt [*] , J., concurs. Dunn, J., concurs in part and dissents in part.

          OPINION

          TAUBMAN JUDGE.

         ¶ 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.

         I. Background

         ¶ 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 jury.

         ¶ 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 contention.

         II. 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.

         A. 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).

         B. Applicable Law

         ¶ 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 693, 698.

         ¶ 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." Id.

         ¶ 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).

         C. Analysis

         ¶ 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 impression.

         ¶ 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 enlargement.").

         ¶ 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. . ...


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