Jefferson County District Court No. 15CR463 Honorable Todd L.
J. Weiser, Attorney General, Brittany L. Limes, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
A. Ring, Colorado State Public Defender, Jessica A. Pitts,
Deputy State Public Defender, Denver, Colorado, for
1 A jury found defendant, Shaun David Keller Lawrence, guilty
of theft for stealing items valued at $1000 or more but less
than $20, 000. When he committed the crime, that theft was a
class 4 felony. § 18-4-401(2)(c), C.R.S. 2012. But
before trial the theft statute was amended. See Ch.
373, sec. 1, 2013 Colo. Sess. Laws 2195-97. Under the amended
statute, that same range could be a class 1 misdemeanor up to
a class 5 felony, depending on the value of the items stolen.
§ 18-4-401(2)(e)-(g), C.R.S. 2018.
2 While this appeal was pending, the supreme court decided
that a defendant whose conviction was not final is entitled
to have his or her conviction reclassified based on the value
of the item stolen under the amended theft statute.
People v. Stellabotte, 2018 CO 66. But
Stellabotte left unanswered the question we must
answer here: When the evidence related to the value is
disputed, how do we reclassify the crime under the amended
3 We conclude that when the value of the items stolen is
disputed, further proceedings are necessary to determine the
classification of the theft, but that the prosecution may
elect to request that a theft conviction enter for the lowest
amount supported by the jury's verdict. Accordingly, we
remand the case for further proceedings.
4 The remand, however, only involves Lawrence's theft
conviction. He also appeals convictions he received for two
counts of securities fraud. We affirm those convictions.
5 Lawrence was at a casino when he met D.B., who worked there
as a cashier. During their conversation, Lawrence told D.B.
that he ran his own security and surveillance company. D.B.
asked Lawrence if he was hiring. Lawrence responded that she
couldn't work for him until she was properly trained, but
that he was seeking investors so that he could expand his
6 The two began negotiating and, a few weeks later, agreed
that D.B. could purchase twenty percent of the company for
$6000. D.B. later purchased an additional ten percent of the
company for another $3000. Both times, D.B. followed
Lawrence's instructions and deposited money directly into
his personal bank account.
7 Lawrence rented an office, registered the company with the
Secretary of State, and began creating a website. During this
time, D.B. repeatedly asked Lawrence to begin the training so
that she could become an employee with the company. Lawrence
let D.B. do one service of process job, and routinely
scheduled trainings for D.B., only to cancel them at the last
minute. Occasionally, D.B. would visit the office, but within
a few months, Lawrence stopped responding to D.B.'s calls
altogether. At one point, D.B. visited the office and found
it empty except for one computer.
8 D.B. filed a complaint with the Colorado Division of
Securities (Division). The Division's investigation into
Lawrence's bank account showed that his account had a
negative balance the day D.B. made her initial investment and
that he spent all $9000 on personal expenses, gambling, and
entertainment within one month of D.B.'s deposits.
9 The Division referred the case to the prosecutor's
office, and Lawrence was subsequently charged with two counts
of securities fraud and one count of theft. A jury convicted
him of all three charges.
10 Lawrence raises five arguments on appeal. First, he argues
that the evidence supporting his convictions is insufficient.
Second, he contends that the trial court failed to instruct
the jury on the mental state required to convict him of
securities fraud. Third, he argues that the trial court erred
by admitting the expert testimony of Colorado's
Securities and Exchange Commissioner. Fourth, he argues that
the trial court erred by excluding evidence that he contends
was exculpatory. Finally, he argues that he is entitled to
the maximum ameliorative benefit under an amendment to the
theft statute. We address each contention in turn.
Sufficiency of the Evidence
11 Lawrence first contends that there was insufficient
evidence to support his convictions. We review de novo
whether the evidence at trial was sufficient in quantity and
quality to sustain a conviction. Clark v. People,
232 P.3d 1287, 1291 (Colo. 2010). In doing so, we must
determine "whether the relevant evidence, both direct
and circumstantial, when viewed as a whole and in the light
most favorable to the prosecution, is substantial and
sufficient to support a conclusion by a reasonable mind that
the defendant is guilty of the charge beyond a reasonable
doubt." Id. (quoting People v.
Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)).
We also must give the People the benefit of every reasonable
inference that may be drawn from the evidence. Id.
12 Lawrence first contends that there is insufficient
evidence to support the convictions for securities fraud
because the transaction did not involve a security. Second,
he argues that there is insufficient evidence to support the
theft conviction because there is no evidence that he
intended to permanently deprive D.B. of her property. We
reject both contentions.
Evidence of a Security
13 To convict Lawrence for securities fraud, the prosecution
needed to prove that he made a false or misleading statement
"in connection with the offer, sale, or purchase of any
security." § 11-51-501(1), C.R.S. 2018.
14 An "investment contract" is a security.
See § 11-51-201(17), C.R.S. 2018. But a
contract is an "investment contract" only if it is
(1) a contract whereby a person invests his or her money (2)
in a common enterprise and (3) is led "to expect profits
solely from the efforts of the promoter or a third
party." Sec. & Exch. Comm'n v. W. J. Howey
Co., 328 U.S. 293, 298-99 (1946); Rome v. HEI Res.,
Inc., 2014 COA 160, ¶ 21 (applying Howey
analysis to definition of "investment contract"
under the Colorado Securities Act). Lawrence contends that
the evidence at trial failed to establish that D.B. expected
to profit "solely" from Lawrence's efforts
because she did some work for the company. The term
"solely" in this context, however, is not to be
construed literally. Rome, ¶ 21. Instead, the
question is whether "the investor was 'led to expect
profits derived from the entrepreneurial or managerial
efforts of others.'" Id. (quoting
Toothman v. Freeborn & Peters, 80 P.3d 804, 811
15 The evidence at trial, when viewed in the light most
favorable to the prosecution, showed that D.B. was working as
a cashier at a casino when Lawrence came into the casino to
gamble. The two began talking, and Lawrence said that he was
thinking of starting a surveillance business. At the time,
D.B. was expecting to receive a few thousand dollars from a
legal settlement and was looking to invest that money. During
their initial discussions, Lawrence told D.B. that working
for him would be possible but that she would have to complete
hundreds of hours of unpaid training before he would hire her
to work for the company.
16 Despite knowing that it would be a long time before she
was able to work for the company, D.B. purchased thirty
percent of the company for $9000. D.B. believed that her
money would be used as a down payment for the purchase of
ankle monitors, which would allow the company to start
providing ankle monitoring services. Lawrence told D.B. that
he had experience in ankle monitoring, and there is no
indication from the record that D.B. had any similar
17 This evidence was sufficient for the jury to have
concluded that D.B. expected to profit solely from
Lawrence's efforts. Throughout the transaction, D.B.
believed that her investment and her potential employment
were separate. Lawrence told her that she would have to
provide hundreds of hours of free labor if she wanted to
become an employee in addition to her investment, but she
invested anyway. And while she visited the office a few
times, D.B. said that Lawrence made all of the decisions
related to the company and he did not consider her opinions.
The record, when viewed in the light most favorable to the
prosecution, shows that D.B. expected to profit solely from
18 True, D.B. tried to work for the company. But the only
work she ever performed was a single service of process. She
was not paid for this work, and the record isn't even
clear whether Lawrence counted this toward her training
requirement. Even if paid for the one task, that an investor
exerts some effort does not automatically preclude a finding
that a transaction is an investment contract. Williamson
v. Tucker, 645 F.2d 404, 418 (5th Cir. 1981); Sec.
& Exch. Comm'n v. Glenn W. Turner Enters., Inc.,
474 F.2d 476, 482 (9th Cir. 1973) ...