     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
                                                                 May 30, 2019

                                2019COA84

No. 16CA1145, People v. Lawrence — Crimes — Theft;
Sentencing — Amendatory Statutes — Retroactive Application

     A division of the court of appeals addresses the retroactivity of

an amendment to the theft statute in light of the supreme court’s

decision in People v. Stellabotte, 2018 CO 66. The division

concludes that, pursuant to Stellabotte, a defendant is entitled to

have his or her theft conviction reclassified under the amended

statute. But when the value of the items the defendant stole is

disputed, further proceedings are required to determine the stolen

items’ value if the prosecutor wants to pursue a conviction for theft

commensurate with the maximum value that the evidence could

support. On remand, however, the prosecutor may elect to request

that a conviction enter for theft of items valued at the lowest

amount that the jury’s verdict supports.
     The division also concludes that the evidence was sufficient to

sustain the defendant’s convictions for securities fraud; that the

trial court made no error with respect to instructing the jury on the

mental state required to convict the defendant of securities fraud;

that the trial court made no error by admitting expert testimony

that embraces an ultimate issue of fact; and that the trial court

made no error by excluding certain pieces of evidence the defendant

contends were exculpatory. Accordingly, the division reverses the

theft conviction and affirms the two convictions for securities fraud.
COLORADO COURT OF APPEALS                                        2019COA84


Court of Appeals No. 16CA1145
Jefferson County District Court No. 15CR463
Honorable Todd L. Vriesman, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Shaun David Keller Lawrence,

Defendant-Appellant.


             JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                 AND CASE REMANDED WITH DIRECTIONS

                                  Division VI
                         Opinion by JUDGE WELLING
                          Fox and Freyre, JJ., concur

                           Announced May 30, 2019


Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶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 statute?

¶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




                                    1
 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.

                            I.   Background

¶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 business.

¶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


                                   2
  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.

                              II.   Analysis

¶ 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


                                     3
  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.

                    A.    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. at 1292.


                                     4
¶ 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.

                       1.   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.


                                     5
  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 (Colo.

  App. 2002)).

¶ 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


                                    6
  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 experience.

¶ 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 Lawrence’s efforts.

¶ 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


                                    7
  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) (“[T]he scheme is no less an investment contract

  merely because [the investor] contributes some effort as well as

  money to get into it.”).

¶ 19   Accordingly, the evidence was sufficient to support the

  conviction for securities fraud.

           2.    Evidence of an Intent to Permanently Deprive

¶ 20   To obtain a conviction on the theft charge, the prosecution

  needed to prove that Lawrence knowingly obtained control over

  something of value of another, without authorization, and that he

  “[i]ntend[ed] to deprive the other person permanently of the use or

  benefit of the thing of value.” § 18-4-401(1)(a), C.R.S. 2018.

  Lawrence now argues that there is no evidence that he intended to

  permanently deprive D.B. of her money because he worked toward

  building the business that would have resulted in a return on her

  investment.




                                     8
¶ 21   When reviewing the record for sufficiency of the evidence, we

  must consider direct and circumstantial evidence. Clark, 232 P.3d

  at 1291. Evidence of a defendant’s intent is usually only proved by

  relying on circumstantial evidence, and “the finder of fact may

  properly infer the intent to commit theft from the defendant’s

  conduct and the circumstances of the offense.” People v. Mandez,

  997 P.2d 1254, 1264 (Colo. App. 1999). Evidence that the

  defendant knowingly used an owner’s property in a manner

  “inconsistent” with the owner’s “permanent use and benefit” is

  sufficient to establish an intent to effect a permanent deprivation.

  People v. Pedrie, 727 P.2d 859, 862 (Colo. 1986).

¶ 22   Here, the evidence showed that after Lawrence and D.B.

  agreed on her investment, he told her to deposit the money in his

  personal bank account. Over the next month, Lawrence used that

  money to go to casinos, for entertainment, and for other personal

  expenses. Lawrence never gave D.B. an accounting or update on

  the status of her investment despite the fact that their contract

  required him to send reports to her periodically. D.B. expected that

  her investment would be used as a down payment for the ankle

  monitors and other business expenses, not to fund Lawrence’s


                                    9
  personal expenses. From this evidence, the jury could infer that

  Lawrence intended to permanently deprive D.B. of her money.

¶ 23   Lawrence contends that there was contrary evidence showing

  that he used the money for the company’s expenses. Specifically,

  he argues that the evidence shows that he used some of D.B.’s

  money to rent an office, create a website, and register the business

  with the Secretary of State. Lawrence is correct that this evidence

  could support a conclusion that he did not intend to permanently

  deprive D.B. of her money, but the evidence is not insufficient

  simply because it conflicts. People v. Carlson, 72 P.3d 411, 416

  (Colo. App. 2003) (“Where reasonable minds could differ, the

  evidence is sufficient to sustain a conviction.”). Instead, we must

  view the evidence in the light most favorable to the prosecution, and

  here there was sufficient evidence from which the jury could infer

  Lawrence’s intent to permanently deprive D.B. of her money.

¶ 24   Accordingly, the trial court committed no error by denying

  Lawrence’s motion for judgment of acquittal as there was sufficient

  evidence to support the convictions.




                                   10
                 B.   Jury Instruction on Mental State

¶ 25   Next, Lawrence argues that the trial court erred by not

  instructing the jury that it must find that he knew D.B.’s

  investment was a security.

¶ 26   The parties disagree on whether this argument is preserved.

  Lawrence contends that he didn’t have to preserve the issue

  because a defendant may raise a sufficiency of the evidence

  argument premised on an issue of statutory interpretation for the

  first time on appeal. People v. McCoy, 2015 COA 76M, ¶ 8 (cert.

  granted Oct. 3, 2016). The People, on the other hand, argue that

  the issue is not preserved because Lawrence made a different, albeit

  related, argument at trial. See People v. Lacallo, 2014 COA 78, ¶ 8

  (when a defendant fails to preserve sufficiency of the evidence

  argument, court of appeals reviews only for plain error). We need

  not resolve this dispute, however, because we conclude that the

  trial court did not commit an error.

¶ 27   Lawrence was charged under section 11-51-501(1)(b). That

  statute does not contain a mens rea element, but section 11-51-

  603(1), C.R.S. 2018, states that anyone who “willfully violates the

  provisions of section 11-51-501 commits a class 3 felony.” The


                                   11
  term “willfully” as used in this statute is synonymous with

  “knowingly.” People v. Blair, 195 Colo. 462, 467, 579 P.2d 1133,

  1138 (1978).

¶ 28   Lawrence now contends that the prosecutor needed to prove

  that he knew he was offering to sell D.B. a security because the

  willfulness mens rea applies to each element of the crime. See § 18-

  1-503(4), C.R.S. 2018 (“When a statute . . . [specifies a] culpable

  mental state, that mental state is deemed to apply to every element

  of the offense unless an intent to limit its application clearly

  appears.”). Multiple divisions of this court, however, have

  concluded that “[p]roof of knowledge that an investment is a

  security is not required for a conviction of ‘willful’ securities fraud.”

  People v. Destro, 215 P.3d 1147, 1151 (Colo. App. 2008); see also

  People v. Pahl, 169 P.3d 169, 185 (Colo. App. 2006) (rejecting

  argument that a defendant must know he or she is selling a

  security to support a conviction for securities fraud); People v.

  Rivera, 56 P.3d 1155, 1163 (Colo. App. 2002) (same). This is

  because “the mental state of ‘willfully’ only requires the actor to be

  ‘aware that his conduct is of such nature or that such circumstance

  exists.’” Pahl, 169 P.3d at 185 (quoting section 18-1-501(6), C.R.S.


                                     12
  2018). And requiring proof beyond that fact rises to the level of a

  conscious objective is appropriate only for specific intent crimes.

  Id.

¶ 29    Because Lawrence points to no justification for doing so, we

  decline to depart from these precedents. Accordingly, we conclude

  that the trial court did not err by failing to instruct the jury that it

  needed to find that Lawrence knew he was offering D.B. a security.

                          C.    Expert Testimony

¶ 30    At trial, Colorado’s Securities and Exchange Commissioner,

  Gerald Rome, was qualified as an expert in securities law.

  Commissioner Rome testified about what qualifies as a security and

  why the contract at issue in this case was a security. He also

  testified that the sale of a security is fraudulent when the seller

  misstates or omits material facts and then discussed what facts

  might be material. Lawrence now contends that this testimony

  usurped the jury’s role as the fact finder because Rome was allowed

  to provide expert opinions related to the ultimate factual issues in

  the case. We disagree.

¶ 31    An expert may offer an opinion that embraces an ultimate

  issue of fact. CRE 704. But that testimony must not usurp the


                                      13
  jury’s factfinding role. See People v. Rector, 248 P.3d 1196, 1203

  (Colo. 2011).

¶ 32   In Pahl, a division of this court addressed expert testimony

  similar to Rome’s. 169 P.3d at 182. There, the expert opined that

  the transaction involved a security and that the defendant’s

  omissions of fact were material. Id. The division concluded this

  testimony did not usurp the jury’s role because the jurors were

  properly instructed on the definition of a security and that they

  could disregard the expert’s testimony. Id. The same thing

  occurred here. Rome testified that an investment contract qualifies

  as a security and that the transaction at issue here qualified as an

  investment contract under Howey. But the jurors were instructed

  that they did not have to accept the testimony of any expert and

  that jury instructions were the source of law they had to apply to

  the case. The instructions provided the statutory definition of a

  “security,” and from this definition the jurors were free to draw their

  own conclusions.

¶ 33   As to materiality, the trial court ruled that Rome could not

  testify about whether there were material misrepresentations in this

  case, and that he could testify about materiality only generally.


                                    14
  Rome then testified about the differences in what facts might be

  material to a person investing in a large company versus a person

  investing in a smaller company, and that a person investing in a

  smaller company would likely find facts related to the proprietor’s

  finances and business acumen to be material. A trial court does

  not abuse its discretion by allowing an expert to provide general

  testimony about when facts might be considered material. See

  People v. Prendergast, 87 P.3d 175, 183 (Colo. App. 2003) (affirming

  trial court’s decision to allow an expert witness to testify about legal

  standard for materiality in a securities fraud case).

¶ 34   Moreover, Rome did not usurp the jury’s role because defense

  counsel thoroughly explored both the definition of a security and

  materiality on cross-examination and Rome gave no opinion as to

  whether Lawrence committed any of the crimes charged. See

  Rector, 248 P.3d at 1203 (factors relevant to determining whether

  an expert’s testimony was proper under CRE 704 include whether

  the statements were “clarified on cross-examination” and whether

  the expert “opined that the defendant committed the crime”).




                                     15
¶ 35   Accordingly, we conclude that the trial court did not abuse its

  discretion by failing to preclude Rome from testifying on an issue of

  ultimate fact.

                       D.    Exculpatory Evidence

¶ 36   Lawrence next argues that the trial court erred by excluding

  evidence that he contends was exculpatory. The first piece of

  evidence was testimony that two law enforcement agencies told D.B.

  that her dispute with Lawrence was a civil, and not criminal,

  matter. The remaining pieces of evidence were documents that

  corroborated Lawrence’s argument that he did some work for the

  company.

¶ 37   Lawrence preserved his evidentiary arguments for review. We

  review the trial court’s evidentiary ruling for an abuse of discretion.

  Davis v. People, 2013 CO 57, ¶ 13.1 A trial court abuses its


  1 Lawrence contends that we should apply the constitutional
  harmless error standard because the preclusion of this evidence
  deprived him of his right to present a complete defense.
  Constitutional harmless error is a standard of reversal and not a
  standard of review. See Hagos v. People, 2012 CO 63, ¶ 11 (Trial
  errors of a constitutional dimension “require reversal unless the
  reviewing court is ‘able to declare a belief that [the error] was
  harmless beyond a reasonable doubt.’” (quoting Chapman v.
  California, 386 U.S. 18, 24 (1967))). Because we conclude that the


                                    16
  discretion if its ruling is manifestly arbitrary, unreasonable, or

  unfair, or is based on a misapprehension of the law. People v.

  Gonzales, 2019 COA 30, ¶ 7.

       1.     Testimony about Law Enforcement Agencies’ Response to
                                D.B.’s Complaint

¶ 38        Lawrence proffered evidence that both the Littleton Police

  Department and the Colorado Attorney General’s Office told D.B.

  that her dispute with Lawrence was not a criminal matter and that

  those agencies had declined to prosecute Lawrence. The

  prosecution made a pretrial motion in limine to preclude Lawrence

  from asking D.B. about these conversations, and the trial court

  granted the motion.

¶ 39        Evidence is relevant if it has “any tendency to make the

  existence of any fact that is of consequence to the determination of

  the action more probable or less probable than it would be without

  the evidence.” CRE 401. But even relevant evidence may be

  excluded if its probative value is substantially outweighed by the

  “danger of unfair prejudice, confusion of the issues, or misleading




  trial court did not err, we need not address whether the alleged
  error requires reversal.

                                        17
  the jury, or by considerations of undue delay, waste of time, or

  needless presentation of cumulative evidence.” CRE 403.

¶ 40   That a law enforcement agency, at one time, thought this was

  a civil dispute is of no consequence to determining whether

  Lawrence committed a crime. Many considerations go into the

  People deciding whether to pursue criminal charges in any given

  case. People v. Weiss, 133 P.3d 1180, 1189 (Colo. 2006); see also

  Sandoval v. Farish, 675 P.2d 300, 303 (Colo. 1984) (discussing

  standards for reviewing a prosecutor’s charging decision). The

  Littleton police and the Colorado Attorney General could’ve based

  their conclusions on any number of factors, none of which are

  discussed in the record. The trial court acted well within its

  discretion in finding that it would be misleading to tell the jury that

  two law enforcement agencies initially decided that Lawrence’s

  conduct was civil and not criminal.

¶ 41   Nevertheless, Lawrence contends that this evidence is

  admissible as res gestae. Evidence is admissible as res gestae when

  it explains the setting in which the crimes occurred so as to provide

  context to the criminal episode. People v. Galang, 2016 COA 68,

  ¶ 15. The record shows that Lawrence had already committed his


                                    18
  crimes by the time D.B. contacted law enforcement agencies, so the

  agencies’ conclusions would have provided no context for the crime.

¶ 42   Lawrence also argues that Rome’s testimony opened the door

  to this evidence. Rome testified, on cross-examination, that he

  personally referred this case to the prosecutor’s office after receiving

  D.B.’s complaint. A juror then asked whether there were “triggers

  that elevate a case from a civil to criminal matter, [and if so], what

  are they?”2 Rome responded that there are many factors that go

  into the decision to refer a case to a prosecutor’s office but that,

  ultimately, he makes the decision. This testimony did not open the

  door to the evidence that two other agencies had declined to

  prosecute because Rome’s decision was wholly separate from

  decisions of those two agencies.

¶ 43   The statute authorizes the securities commissioner to refer

  evidence to the attorney general or district attorney, who have the

  discretion to prosecute the case. See § 11-51-603(3). But his



  2 Defense counsel objected to asking the juror’s question, arguing
  that the question would elicit a response from Rome that wasn’t
  previously disclosed. The trial court overruled the objection. The
  propriety of that ruling was not raised on appeal, and we offer no
  opinion as to whether it was an appropriate question.

                                     19
  referral does nothing to establish whether a crime was committed

  and is no different than anyone else’s report of a suspected crime to

  a district attorney’s office. Rome’s testimony that he referred the

  case to the prosecutor was unrelated to the prior decisions of the

  other two law enforcement agencies and therefore did not open the

  door to evidence that those agencies declined to pursue charges.

¶ 44   Finally, Lawrence argues that this evidence could’ve been used

  to impeach Rome or D.B. Even for impeachment, this evidence was

  irrelevant as it related to Rome because he did not conclude that

  Lawrence had committed a crime; he simply made the decision to

  refer the case to the prosecutor’s office.

¶ 45   Lawrence also tried to elicit evidence that D.B. threw away a

  letter from the attorney general that allegedly stated the dispute

  was not criminal. That D.B. may have thrown away such a letter

  has no bearing on her credibility or whether Lawrence committed

  any of the acts that he was accused of committing. As a result, the

  trial court didn’t abuse its discretion in finding that any evidence

  related to the letter was irrelevant.

                       2.    Documentary Evidence




                                     20
¶ 46   Lawrence proffered three documents that would allegedly

  demonstrate that he did some work for the company. The trial

  court concluded that all three pieces of evidence were hearsay. 3

  Hearsay is an out of court statement used to prove the truth of the

  matter asserted. CRE 801(c).

¶ 47   First, during the cross-examination of the prosecutor’s

  investigator, defense counsel offered documents from a website that

  purportedly showed that Lawrence registered the company with the

  Secretary of State. Using these documents to prove that Lawrence

  registered the company with the Secretary of State, to prove that he

  did some work for the company, was hearsay, and the trial court

  did not abuse its discretion by excluding the documents. Lawrence


  3 The prosecutor objected to the admission of these documents
  arguing that they were hearsay and that the witness couldn’t lay
  the proper foundation. In response, defense counsel argued that
  these documents could be admitted under the business records
  exception. The trial court sustained the objection but did not state
  the basis for that ruling. The record does not show that defense
  counsel asked the questions necessary to establish the foundation
  for admitting evidence pursuant to the business records exception.
  See CRE 803(6). Moreover, even if defense counsel had asked,
  there is no indication that the investigator had the personal
  knowledge necessary to provide an adequate foundation for the
  admission of the exhibits as business records. Accordingly, we
  address only whether the trial court erroneously excluded these
  documents as hearsay.

                                   21
  also made no attempt to introduce these documents through the

  business records exception, CRE 803(6), and the copies offered at

  trial were not self-authenticating, see CRE 902(11).

¶ 48   Next, Lawrence proffered a receipt for domain names that he

  allegedly bought for the company during the testimony of his own

  investigator. Like the Secretary of State documents, this receipt

  was offered to prove the truth of the matter that it asserted — that

  Lawrence expended funds in the course of doing some work for the

  company. Like the Secretary of State documents, Lawrence did not

  attempt to invoke the business records (or any other) exception to

  the hearsay rule. The trial court did not abuse its discretion by

  excluding the receipt.

¶ 49   Finally, Lawrence tried to introduce an email that he received

  in response to an inquiry he allegedly made to purchase ankle

  monitors. This document was also offered while Lawrence’s

  investigator was testifying. The email was sent by a sales manager

  at a technology company who said that he was responding to a form

  that Lawrence had allegedly filled out on a website where he said he

  was “looking for ankle monitors and software.” Lawrence wanted to

  use this email to prove that he did, in fact, try to procure ankle


                                    22
  monitors; therefore, it was hearsay. And, again, Lawrence did not

  argue to the trial court that any exception applied.

¶ 50   In sum, the trial court did not abuse its discretion by

  excluding testimony that the two law enforcement agencies declined

  to pursue charges, the Secretary of State documents, the receipt for

  the domain names, or the email Lawrence received in response to

  his request for information about ankle monitors.

                E.   Retroactive Change in Theft Statute

¶ 51   Lawrence’s final argument concerns the retroactivity of an

  amendment to the theft statute. When Lawrence committed his

  crimes, it was a class 4 felony to steal something valued between

  $1000 and $20,000. § 18-4-401(2)(c), C.R.S. 2012. By the time of

  trial, however, the General Assembly had comprehensively amended

  the theft statute, reclassifying the theft offense based on the value

  of the item the defendant stole and the associated penalty. See Ch.

  373, sec. 1, 2013 Colo. Sess. Laws 2195-97. After the amendment,

  stealing something valued at $1000 was a class 1 misdemeanor.

  § 18-4-401(2)(e), C.R.S. 2018.




                                    23
    ¶ 52                        The chart 4 below summarizes the amendment to the values in

                         the theft statute by comparing the value of the item stolen with the

                         level of offense under the old and amended statutory schemes.

                                               Old Statute               Amended Statute
                                     $0
                                                                          Less than $50
                                                                                 PO
                                    $50
                                             Less than $500            $50 to less than $300
                                                   M2                            M3
                                  $300
Value of the item(s) stolen




                                                                      $300 to less than $750
                                  $500
                                                                                M2
                                            $500 to less than
                                  $750
                                                 $1000
                                                   M1
                                 $1000                                $750 to less than $2000
                                                                                 M1

                                 $2000     $1000 to less than
                                                                     $2000 to less than $5000
                                               $20,000
                                                                                F6
                                 $5000            F4
                                                                    $5000 to less than $20,000
                                                                                F5
                               $20,000
                                                                  $20,000 to less than $100,000
                                                                                F4
                              $100,000
                                                                      $100,000 to less than
                                            $20,000 or more
                                                                            $1 million
                                                  F3
                                                                                F3
                              $1 million
                                                                       $1 million or more
                                                                                F2


                         4 In both the pre- and post-amendment versions of the statute, the
                         values for each category of theft are listed in section 18-4-401(2).
                         See § 18-4-401(2)(b)-(j), C.R.S. 2018; § 18-4-401(2)(b)-(d), C.R.S.
                         2012. For the purposes of this chart, F2 is a class 2 felony, F3 is a
                         class 3 felony, F4 is a class 4 felony, F5 is a class 5 felony, F6 is a


                                                             24
¶ 53   At trial, the court applied the old version of the theft statute,

  instructing the jury that to convict Lawrence of theft, it must find

  that he stole an item valued at “one thousand dollars or more but

  less than twenty thousand dollars.” As a result, the jury

  necessarily found that Lawrence stole at least $1000 but no more

  than $20,000. The jury, however, made no other finding related to

  the value of the money that Lawrence had stolen.

¶ 54   On appeal, both parties agree that, after Stellabotte,

  Lawrence’s conviction for a class 4 felony cannot stand. In

  Stellabotte, ¶ 3, our supreme court held that a defendant whose

  conviction is not final is entitled to the ameliorative benefit of a

  change in the theft statute. As a result, the supreme court

  reclassified Stellabotte’s conviction as if it had occurred under the

  amended theft statute, not the statute that was in place at the time

  of the crime, and remanded the case for resentencing. Id. We agree

  that, under Stellabotte, Lawrence cannot stand convicted of theft as

  a class 4 felony.



  class 6 felony, M1 is a class 1 misdemeanor, M2 is a class 2
  misdemeanor, M3 is a class 3 misdemeanor, and PO is a petty
  offense. The box with the thick outline is the offense that Lawrence
  was convicted of at trial.

                                     25
¶ 55   But Stellabotte did not reach the issue that we must resolve

  here: If not a class 4 felony, then what level of offense should

  Lawrence be convicted? The defendant in Stellabotte was convicted

  of theft for wrongfully towing cars and then retaining them. Id. at ¶

  5. The opinion does not discuss the exact value of the cars that the

  defendant stole, probably because it was not contested on appeal

  that the total value was more than $5000 and less than $20,000.

  Id. at ¶ 6. And because no one contested that the value fell within

  that range, the exact value wouldn’t have made a difference once

  the court decided that the defendant was entitled to relief under the

  amended statute. 5 In other words, to resolve the case, the supreme

  court needed to decide only whether the defendant was entitled to

  relief under the amended statute and not how far that relief

  stretched.

¶ 56   Here, the amount of Lawrence’s theft is disputed. While the

  evidence is sufficient to support a finding that he stole $9000, there


  5 And even if the value was disputable, on appeal to this court and
  the supreme court, Stellabotte did not argue that he was entitled to
  ameliorative relief beyond resentencing as a class 5 felony. See
  People v. Stellabotte, 2018 CO 66, ¶ 7; People v. Stellabotte, 2016
  COA 106, ¶ 40, aff’d, 2018 CO 66. So, even if Stellabotte could
  have raised the issue that Lawrence raises here, he did not.

                                    26
  is conflicting evidence with respect to whether he used some of the

  money for legitimate business purposes, like registering the

  business, renting an office, and creating a website. Because the

  amount of the theft is disputed, we cannot simply reclassify

  Lawrence’s crime under the new statute like the court was able to

  do in Stellabotte. Instead, we must determine what effect we should

  give to the jury’s finding as to the value of the things stolen when

  the legal consequences that correspond to that finding have

  changed.

¶ 57   Lawrence contends that he can only stand convicted of a class

  1 misdemeanor because we must accept the lowest value that the

  jury’s finding supports. So, according to Lawrence, because the

  jury found that he stole an item with a value of at least $1000 but

  no more than $20,000, we must assume that the jury concluded

  that he stole an item valued at $1000, which under the amended

  statute is a class 1 misdemeanor. § 18-4-401(2)(e). The People, on

  the other hand, argue that we must view the evidence in the light

  most favorable to the prosecution, which in this case would support

  a conviction for theft of an item valued at $9000. Under the

  amended statute, theft of an item valued at $9000 is a class 5


                                    27
  felony. § 18-4-401(2)(g). But for the reasons explained below, we

  don’t completely agree with either contention.

¶ 58   Everyone agrees that D.B. transferred $9000 by depositing it

  into Lawrence’s personal bank account. What is in dispute,

  however, is the amount that he misappropriated. Given that the

  evidence as to value is in dispute, assigning a value of $9000 to

  Lawrence’s theft would violate Lawrence’s Sixth Amendment right to

  a jury trial by increasing the penalty of the theft beyond what is

  supported by a jury’s finding. See Blakely v. Washington, 542 U.S.

  296, 303 (2004) (a criminal penalty may be based only on facts

  found by a jury or admitted by the defendant). The People, relying

  on People v. Patton, 2016 COA 187, contend that entering a class 5

  felony conviction would not offend Lawrence’s Sixth Amendment

  right to a trial by jury. In that case, a division of this court entered

  a class 5 felony conviction under the amended theft statute even

  though the jury had applied the old version of the statute. Patton, ¶

  45. But in that case, the prosecution presented evidence

  establishing that Patton had stolen an item valued at approximately

  $8500, and Patton didn’t contest this value. Id. at ¶ 40. The

  division relied on the fact that the evidence was undisputed and


                                     28
  uncontested to conclude that the conviction for a class 5 felony was

  based on facts that the jury necessarily found. Id. In other words,

  because the parties presented the jury with evidence of only one

  value, the court could be assured that the jury had accepted that

  value in rendering its guilty verdict. Here, the evidence is disputed,

  so Patton does not control our analysis.

¶ 59   But at the same time, Lawrence does not cite, and we have not

  found, any authority to support his argument that we must enter a

  conviction for theft as a class 1 misdemeanor when, as is the case

  here, the record contains sufficient evidence from which the jury

  could have convicted the defendant of theft as a class 5 felony.

¶ 60   Instead, we conclude that Lawrence is entitled to a new trial

  on the theft charge if the prosecution wishes to pursue a charge

  greater than a class 1 misdemeanor. In essence, by instructing the

  jury under the old statute, the trial court misinstructed the jury

  with respect to the value element of theft. We conclude that when a

  trial court’s theft instruction misstates the value element, reversal

  is required if the evidence as to value is in dispute. Cf. People v.

  Cowden, 735 P.2d 199, 202 (Colo. 1987) (trial court’s failure to

  instruct jury on the value element of theft was not plain error


                                     29
  because the value of the item that the defendant stole was not

  contested). But that does not necessarily mean that Lawrence is

  entitled to a new trial on the theft charge.

¶ 61   If a jury instruction misstates the elements necessary to

  convict a defendant of a crime, but accurately states the elements of

  a lesser crime, the prosecutor may elect to retry the defendant for

  the greater crime or request that the court enter a conviction for the

  lesser crime. People v. Sepulveda, 65 P.3d 1002, 1008 (Colo. 2003)

  (discussing prosecutorial discretion as to acceptance of conviction

  for a lesser offense); People v. Manier, 197 P.3d 254, 261 (Colo. App.

  2008) (when a jury instruction uses the wrong mens rea to prove an

  aggravating circumstance, the prosecution may retry the defendant

  or request that a conviction enter for the non-aggravated version of

  the crime). Here, the trial court’s theft instruction accurately

  instructed the jury on the elements necessary to convict Lawrence

  of theft as a class 1 misdemeanor, and the jury found that he

  committed theft of an item with a value of at least $1000.

¶ 62   Accordingly, on remand, the prosecution may elect to have the

  theft conviction be entered as a class 1 misdemeanor, or, if it




                                    30
  wishes to pursue a felony theft conviction, Lawrence is entitled to a

  new trial on that charge.

                              III.   Conclusion

¶ 63   Lawrence’s convictions for securities fraud are affirmed. His

  conviction for theft, however, is reversed, and the case is remanded

  to the trial court. On remand, the prosecution may elect to retry

  Lawrence for theft or request that the trial court enter a conviction

  and resentence Lawrence for class 1 misdemeanor theft based on

  the jury’s finding that he stole an item of at least $1000.

       JUDGE FOX and JUDGE FREYRE concur.




                                      31
