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18-4-401. Theft.

Statute text

(1) A person commits theft when he or she knowingly obtains, retains, or exercises control over anything of value of another without authorization or by threat or deception; or receives, loans money by pawn or pledge on, or disposes of anything of value or belonging to another that he or she knows or believes to have been stolen, and:

(a) Intends to deprive the other person permanently of the use or benefit of the thing of value;

(b) Knowingly uses, conceals, or abandons the thing of value in such manner as to deprive the other person permanently of its use or benefit;

(c) Uses, conceals, or abandons the thing of value intending that such use, concealment, or abandonment will deprive the other person permanently of its use or benefit;

(d) Demands any consideration to which he or she is not legally entitled as a condition of restoring the thing of value to the other person; or

(e) Knowingly retains the thing of value more than seventy-two hours after the agreed-upon time of return in any lease or hire agreement.

(1.5) For the purposes of this section, a thing of value is that of "another" if anyone other than the defendant has a possessory or proprietary interest therein.

(2) Theft is:

(a) (Deleted by amendment, L. 2007, p. 1690, 3, effective July 1, 2007.)

(b) A class 1 petty offense if the value of the thing involved is less than fifty dollars;

(b.5) Repealed.

(c) A class 3 misdemeanor if the value of the thing involved is fifty dollars or more but less than three hundred dollars;

(d) A class 2 misdemeanor if the value of the thing involved is three hundred dollars or more but less than seven hundred fifty dollars;

(e) A class 1 misdemeanor if the value of the thing involved is seven hundred fifty dollars or more but less than two thousand dollars;

(f) A class 6 felony if the value of the thing involved is two thousand dollars or more but less than five thousand dollars;

(g) A class 5 felony if the value of the thing involved is five thousand dollars or more but less than twenty thousand dollars;

(h) A class 4 felony if the value of the thing involved is twenty thousand dollars or more but less than one hundred thousand dollars;

(i) A class 3 felony if the value of the thing involved is one hundred thousand dollars or more but less than one million dollars; and

(j) A class 2 felony if the value of the thing involved is one million dollars or more.

(3) and (3.1) Repealed.

(4) (a) When a person commits theft twice or more within a period of six months, two or more of the thefts may be aggregated and charged in a single count, in which event the thefts so aggregated and charged shall constitute a single offense, the penalty for which shall be based on the aggregate value of the things involved, pursuant to subsection (2) of this section.

(b) When a person commits theft twice or more against the same person pursuant to one scheme or course of conduct, the thefts may be aggregated and charged in a single count, in which event they shall constitute a single offense, the penalty for which shall be based on the aggregate value of the things involved, pursuant to subsection (2) of this section.

(5) Theft from the person of another by means other than the use of force, threat, or intimidation is a class 5 felony without regard to the value of the thing taken.

(6) In every indictment or information charging a violation of this section, it shall be sufficient to allege that, on or about a day certain, the defendant committed the crime of theft by unlawfully taking a thing or things of value of a person or persons named in the indictment or information. The prosecuting attorney shall at the request of the defendant provide a bill of particulars.

(7) Repealed.

(8) A municipality shall have concurrent power to prohibit theft, by ordinance, where the value of the thing involved is less than one thousand dollars.

(9) (a) If a person is convicted of or pleads guilty or nolo contendere to theft by deception and the underlying factual basis of the case involves the mortgage lending process, a minimum fine of the amount of pecuniary harm resulting from the theft shall be mandatory, in addition to any other penalty the court may impose.

(b) A court shall not accept a plea of guilty or nolo contendere to another offense from a person charged with a violation of this section that involves the mortgage lending process unless the plea agreement contains an order of restitution in accordance with part 6 of article 1.3 of this title that compensates the victim for any costs to the victim caused by the offense.

(c) The district attorneys and the attorney general have concurrent jurisdiction to investigate and prosecute a violation of this section that involves making false statements or filing or facilitating the use of a document known to contain a false statement or material omission relied upon by another person in the mortgage lending process.

(d) Documents involved in the mortgage lending process include, but are not limited to, uniform residential loan applications or other loan applications; appraisal reports; HUD-1 settlement statements; supporting personal documentation for loan applications such as W-2 forms, verifications of income and employment, bank statements, tax returns, and payroll stubs; and any required disclosures.

(e) For the purposes of this subsection (9):

(I) "Mortgage lending process" means the process through which a person seeks or obtains a residential mortgage loan, including, without limitation, solicitation, application, or origination; negotiation of terms; third-party provider services; underwriting; signing and closing; funding of the loan; and perfecting and releasing the mortgage.

(II) "Residential mortgage loan" means a loan or agreement to extend credit, made to a person and secured by a mortgage or lien on residential real property, including, but not limited to, the refinancing or renewal of a loan secured by residential real property.

(III) "Residential real property" means real property used as a residence and containing no more than four families housed separately.

History

Source: L. 71: R&RE, p. 428, 1. C.R.S. 1963: 40-4-401. L. 75: IP(1), (2), and (3) amended and (3.1) added, pp. 618, 619, 9, 10, effective July 1. L. 77: (4) amended, p. 972, 1, effective May 27; (2) R&RE, (3) and (3.1) repealed, and (4) amended, pp. 973, 976, 1, 2, 9, effective July 1. L. 81: (7) added, p. 987, 1, effective July 1. L. 83: (8) added, p. 665, 7, effective July 1. L. 84: (7)(a) and (7)(b) amended, p. 541, 1, effective April 12; (2)(b), (2)(c), (4), (7)(a), and (8) amended, p. 536, 5, 6, effective July 1, 1985. L. 85: (7)(a) amended, p. 1360, 13, effective June 28. L. 87: (2)(b), (2)(c), and (4) amended, p. 352, 3, effective March 16; (1.5) added and (7)(a) amended, pp. 615, 606, 5, 13, effective July 1. L. 92: (2), (4), and (7)(a) amended, p. 433, 1, effective April 10; (8) amended, p. 439, 1, effective June 1. L. 93: (7) repealed, p. 1742, 42, effective July 1. L. 97: (2)(b) and (2)(c) amended, p. 1548, 23, effective July 1. L. 98: (4) and (8) amended, p. 1437, 10, effective July 1; (4) amended, p. 793, 1, effective July 1. L. 2006: (9) added, p. 1327, 2, effective July 1. L. 2007: (2), (4), and (8) amended, p. 1690, 3, effective July 1. L. 2009: (4) amended, (HB 09-1334), ch. 244, p. 1099, 2, effective May 11. L. 2013: (1), (2)(b), (2)(c), (2)(d), and (4) amended, (2)(b.5) repealed, and (2)(e), (2)(f), (2)(g), (2)(h), (2)(i), and (2)(j) added, (HB 13-1160), ch. 373, p. 2195, 1, effective June 5.

Annotations

Cross references: (1) For theft of sound recordings, see 18-4-601 to 18-4-605; for charges for bad checks received as a restitution payment ordered as a condition of a plea agreement, see 16-7-304; for charges for bad checks received as a restitution payment ordered as a condition of a deferred prosecution, see 16-7-404.

(2) For the legislative declaration contained in the 2006 act enacting subsection (9), see section 1 of chapter 290, Session Laws of Colorado 2006. For the legislative declaration contained in the 2007 act amending subsections (2), (4), and (8), see section 1 of chapter 384, Session Laws of Colorado 2007. For the legislative declaration contained in the 2009 act amending subsection (4), see section 1 of chapter 244, Session Laws of Colorado 2009.

Annotations

 

RECENT ANNOTATIONS

Annotations

In the context of theft of construction project trust funds, the "knowingly using" element of mental culpability in subsection (1)(b) does not require a conscious objective to deprive another person of the use or benefit of the construction trust funds, but instead requires the offender to be aware that his manner of using the trust funds is practically certain to result in depriving another person of the use or benefit of the funds. People v. Anderson, 773 P.2d 542 (Colo. 1989); In re Helmke, 398 B.R. 38 (Bankr. D. Colo. 2008); Franklin Drilling v. Lawrence Constr. Co., 2018 COA 59, __ P.3d __.

Due to change in charging requirements for aggregated theft enacted between 2008 and 2011, defendant could not be convicted for a single count of aggregated theft for thefts that occurred between January 2008 and January 2011. People v. Halaseh, 2018 COA 111, __ P.3d __ [published August 9, 2018].

Where prosecutor incorrectly charged defendant with one class 3 felony count for aggregated theft and defendant was convicted, case remanded to trial court to correct the mittimus to reflect four class 4 felony theft convictions. Defendant's constitutional due process right to receive adequate notice of the four class 4 felony thefts was satisfied by the charge for the original class 3 felony. Implicit in defendant's conviction for the class 3 felony theft are four class 4 felony theft convictions since the jury found defendant guilty of theft of $20,000 or more. People v. Halaseh, 2018 COA 111, __ P.3d __ [published August 9, 2018].

 

ANNOTATION

Annotations

 

Analysis

 

I. General Consideration.
II. Elements of Offense.
A. In General.
B. Threat or Deception.
III. Indictment or Information.
IV. Evidence.
A. In General.
B. Proof of Value.
C. Possession of Stolen Property.
D. Sufficiency.
V. Jury and Instructions.
VI. Verdict and Sentence.

I. GENERAL CONSIDERATION.

Law reviews. For note, "Larceny, Embezzlement and False Pretenses in Colorado -- A Need for Consolidation", see 23 Rocky Mt. L. Rev. 446 (1951). For article, "The Meaning of 'Theft' in Automobile Insurance", see 29 Dicta 119 (1952). For article, "Commitment of Misdemeanants to the Colorado State Reformatory", see 29 Dicta 294 (1952). For note, "False Pretenses, Confidence Game, and Short Check in Colorado", see 25 Rocky Mt. L. Rev. 325 (1953). For article, "Highlights of the 1955 Legislative Session - Criminal Law and Procedure", see 28 Rocky Mt. L. Rev. 69 (1955). For article, "Criminal Law", see 32 Dicta 409 (1955). For article, "One Year Review of Criminal Law and Procedure", see 36 Dicta 34 (1959). For article, "One Year Review of Criminal Law and Procedure", see 39 Dicta 81 (1962). For article, "One Year Review of Constitutional Law", see 40 Den. L. Ctr. J. 134 (1963). For article, "Mens Rea and the Colorado Criminal Code", see 52 U. Colo. L. Rev. 167 (1981). For article, "Lending to a Debtor-in-Possession", see 11 Colo. Law. 2382 (1982).

Annotator's note. (1) Since 18-4-401 is similar to former 40-5-2, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

(2) Annotations appearing below from cases decided prior to 1978 were decided under the version of this section in effect prior to the 1975 amendment to this section.

Common-law offenses. Embezzlement is common-law larceny extended by statute to cover cases where the stolen property comes originally into the possession of the defendant without a trespass. The word implies a fraudulent or unlawful intent. Phenneger v. People, 85 Colo. 442, 276 P. 983 (1929); Lewis v. People, 109 Colo. 89, 123 P.2d 398 (1942).

Larceny by bailee was not a common-law offense. Helser v. People, 100 Colo. 371, 68 P.2d 543 (1937).

Embezzlement was not recognized at common law and the corollary offense, larceny, embraced only those thefts which were accompanied by trespass in the original acquisition and possession. It was first recognized in England when parliament enacted the statute so as to embrace nontrespass thefts. It was enacted in Colorado with the same object. Gill v. People, 139 Colo. 401, 339 P.2d 1000 (1959).

Former theft statute held not unconstitutionally vague. Peters v. People, 151 Colo. 35, 376 P.2d 170 (1962); People v. Lewis, 180 Colo. 423, 506 P.2d 125 (1973).

This section is constitutional. People v. Edmonds, 195 Colo. 358, 578 P.2d 655 (1978).

This section is not unconstitutional despite the fact that it does not require a specific allegation of intent in an information or indictment for its violation. Edwards v. People, 176 Colo. 478, 491 P.2d 566 (1971).

This section clearly delineates four acts which, if done with the intent specified, constitute the crime of theft, so that any person of common intelligence can readily comprehend the meaning and application of the unambiguous words used by the general assembly in drafting this section. Howe v. People, 178 Colo. 248, 496 P.2d 1040 (1972).

Statute gives a fair description of the proscribed conduct, and persons of common intelligence can readily appreciate the statute's meaning and application. People v. Hucal, 182 Colo. 334, 513 P.2d 454 (1973).

Control in theft statute does not have vague and ambiguous meaning so as to be unconstitutional. People v. Hucal, 182 Colo. 334, 513 P.2d 454 (1973).

Intent is not inconsistent with different methods of deprivation. Where what varies in different crimes is the method used to achieve the deprivation, there is no inconsistency between the words used to describe the methods of deprivation with the intent to permanently deprive a person of a thing of value and the words "unlawfully taking". Howe v. People, 178 Colo. 248, 496 P.2d 1040 (1972).

In enacting 18-4-410, general assembly intended to reach distinct group of wrongdoers. The class includes those persons who receive, retain, or dispose of property received from another person with the knowledge or reasonable belief that the property has been stolen. People v. Jackson, 627 P.2d 741 (Colo. 1981).

Section 26-2-305 (1)(a) creates a more specific, separate criminal offense than theft under this section and the general assembly intended that section to supplant this one. People v. Rojas, 2018 COA 20, __ P.3d __.

2013 amendment lowering the classification of thefts of certain values of items from class 4 to class 5 felonies applies retroactively to cases pending in a trial court at the time the general assembly enacted the amendment. People v. Stellabotte, 2016 COA 106, __ P.3d __; People v. Patton, 2016 COA 187, __ P.3d __.

The purpose of this section is to remove distinctions and technicalities which previously existed in the pleading and proof of acquisition crimes. Hucal v. People, 176 Colo. 529, 493 P.2d 23 (1971).

In enacting the theft statute, the general assembly intended to define one crime of theft which would incorporate all crimes involving the taking or obtaining of personal property without physical force and to eliminate distinctions and technicalities which previously existed in the pleading and proof of such crimes. Maes v. People, 178 Colo. 46, 494 P.2d 1290 (1972); People v. Terranova, 38 Colo. App. 476, 563 P.2d 363 (1976); People v. Hopkins, 40 Colo. App. 568, 584 P.2d 84 (1978).

It is consolidation of former separate crimes. Prior to 1967 the various felonies of larceny, embezzlement and the like were separately defined throughout the criminal statutes. The 1967 general assembly consolidated these formerly separately defined crimes under one broad, enumerated crime designated as theft. White v. People, 172 Colo. 271, 472 P.2d 674 (1970).

It was the purpose of our general assembly to cover every conceivable unlawful conversion by an agent or servant. Gill v. People, 139 Colo. 401, 339 P.2d 1000 (1959).

The intent of this section is to bring together in one statute most of the crimes formerly known by several different names, for each of these former crimes has as a material element the unlawful depriving of a person of his property. Howe v. People, 178 Colo. 248, 496 P.2d 1040 (1972).

Theft is not a lesser included offense of robbery. People v. Moore, 184 Colo. 110, 518 P.2d 944 (1974).

The enactment of 12-44-102 does not preclude prosecution for theft pursuant to this section because 12-44-102 does not present a comprehensive regulatory scheme intended to limit prosecution under the general theft statute. People v. Sharp, 104 P.3d 252 (Colo. App. 2004) (decided prior to 2017 amendments relocating article 44 of title 12 to article 25 of title 6).

This section includes as the objects of theft those means or muniments by which the right and title to property, real and personal, might be ascertained. Beasley v. People, 168 Colo. 286, 450 P.2d 658 (1969).

Promissory note, being subject to ownership, is personal property even in the hands of the maker, and so is within the purview of this section. Knepper v. People, 63 Colo. 396, 167 P. 779 (1917).

This section includes choses in action, chattels, effects, or any other valuable thing. Miller v. People, 72 Colo. 375, 211 P. 380 (1922).

Dogs are by statute the subject of larceny. Thiele v. City & County of Denver, 135 Colo. 442, 312 P.2d 786 (1957).

A "thing of value", as used in the former short check felony statute, is a phrase of sufficient generic import to encompass clearly within its meaning an executed lien waiver. Beasley v. People, 168 Colo. 286, 450 P.2d 658 (1969).

Mechanics' and materialmen's liens are security for the costs of materials and labor furnished. As security, the lien is clearly a "thing of value" to a materialman and by giving it up in exchange for a worthless check, there is a loss of a thing of value. Beasley v. People, 168 Colo. 286, 450 P.2d 658 (1969).

Stolen checks are a "thing of value" within the meaning of the statutes. People v. Marques, 184 Colo. 262, 520 P.2d 113 (1974).

"Thing of value" is defined to include "real property". People v. Parga, 188 Colo. 413, 535 P.2d 1127 (1975).

Real property may be the subject of theft. People v. Parga, 188 Colo. 413, 535 P.2d 1127 (1975).

Although funds from a "Ponzi scheme" were obtained by theft, the subsequent transfer of these funds by the debtor represented the transfer of an "interest of the debtor in property" for purposes of a chapter 7 bankruptcy action. In Re M & L Business Mach. Co., Inc., 160 B.R. 851 (Bankr. D. Colo. 1994), aff'd, 167 B.R. 219 (Bankr. D. Colo. 1994).

Where the information charged defendant with theft of money, rather than theft of a check, negotiation of the check was the necessary "last act" to begin the running of the statute of limitations under 16-5-401. The date the check was issued was immaterial for purposes of determining the statute of limitations. People v. Chavez, 952 P.2d 828 (Colo. App. 1997).

Colorado courts have jurisdiction over the offense of theft which originated in the state of New Mexico. People v. Martinez, 37 Colo. App. 71, 543 P.2d 1290 (1975).

Where defendant exercised control over stolen goods in this state. Where there was evidence presented that defendant exercised control over stolen chain saws in Colorado without authorization, the offense of theft was "committed partly within this state" as contemplated by 18-1-201 (2), and, therefore, in accordance with 18-1-201 (1)(a), defendant "is subject to prosecution in this state" for that offense. People v. Martinez, 37 Colo. App. 71, 543 P.2d 1290 (1975).

Court retains jurisdiction of defendant extradited under former section. Although defendant was arrested out of state on a warrant charging larceny and returned to Colorado, and the crime of larceny was subsequently redesignated as theft, defendant's contention that the warrant charged a nonexistent crime and therefore the trial court had no jurisdiction, was without merit. Habbord v. People, 175 Colo. 417, 488 P.2d 554 (1971).

Scope of municipal jurisdiction over theft offenses. Larceny, the subject of statute and of statewide concern, is distinguished from a local and municipal matter in which municipalities may exercise jurisdiction, and a municipal ordinance purporting to cover such field is invalid. Gazotti v. City & County of Denver, 143 Colo. 311, 352 P.2d 963 (1960).

Municipal courts are particularly adaptable to the handling of the crime of shoplifting of articles of relatively small value and this type of theft should be combated not only by state authorities in state courts but by police departments in municipal courts. Quintana v. Edgewater Mun. Court, 179 Colo. 90, 498 P.2d 931 (1972).

When a municipal shoplifting ordinance does not limit shoplifting to goods not exceeding $100 in value, and thereby goes beyond a municipal or local matter, and contains no severable operative provisions, and when plaintiff allegedly takes articles valued over $100, the ordinance cannot be constitutionally applied to petty theft. Quintana v. Edgewater Mun. Court, 179 Colo. 90, 498 P.2d 931 (1972).

This section is the counterpart to the Longmont municipal code theft ordinance which is comprised of identical elements except for the value of the property. Bradford v. Longmont Mun. Court, 830 P.2d 1135 (Colo. App. 1992).

Corporation, rather than stockholder, is victim of theft of value of stock. It is well settled that a shareholder in a corporation, once having obtained his stock, is only entitled to the profits in the corporation, not the divisible assets of the corporation. From this proposition it necessarily follows that a stockholder's loss of the value of his stock, however attributable to defendant, is not a theft of value from the stockholder. If there be a crime committed under these facts, it was a theft from the corporation, not from the shareholder. The money which defendant allegedly stole was the property of the corporation. People v. Westfall, 185 Colo. 110, 522 P.2d 100 (1974).

Theft and theft by receiving are two separate and distinct crimes. The penalty for each is the same, but conviction of one would not support a conviction of the other. People v. Griffie, 44 Colo. App. 46, 610 P.2d 1079 (1980).

Participant in theft cannot be convicted of both crimes. A person who has actively participated in a theft cannot be convicted of both theft and theft by receiving of the stolen property. People v. Jackson, 627 P.2d 741 (Colo. 1981).

A partner cannot be charged with theft of partnership property under this section because partnership property is not a thing of value of another. People v. Clayton, 728 P.2d 723 (Colo. 1986) (decided prior to 1987 enactment of subsection (1.5)).

Conduct constituting receiving stolen property is the same conduct punishable by this section where defendant stole property in Colorado and took it to another jurisdiction, and prosecution under this section is therefore barred as double jeopardy where defendant was previously tried for receiving the stolen property in the other jurisdiction. People v. Morgan, 785 P.2d 1294 (Colo. 1990).

Section 18-4-402 distinguished. Section 18-4-402 clearly applies to an unlawful temporary deprivation of rental property as distinguished from a permanent deprivation of property generally as required by this section. People v. Trigg, 184 Colo. 78, 518 P.2d 841 (1974).

Distinguished from 26-4-114. There are reasonable distinctions which can be drawn between this section and the penal provisions of the medical assistance act, 26-4-114, as the latter deals only with property unlawfully received in a special way from a specific source, as distinguished from the deprivation of property generally. People v. Donahue, 41 Colo. App. 70, 578 P.2d 671 (1978).

Criminal mischief distinguished. The gravamen of criminal mischief is the knowing causation of damage to another's property with resulting economic loss to the owner or possessor of the property. The crime of theft, in contrast, is a crime of misappropriation or wrongful taking with no added element of damage or destruction to the property taken. People v. Dunoyair, 660 P.2d 890 (Colo. 1983).

Because the conduct prohibited by this section is distinct from the conduct prohibited by 8-81-101 (1)(a), prosecution under one such statute as opposed to the other does not violate a defendant's constitutional rights. People v. Chesnick, 709 P.2d 66 (Colo. App. 1985).

Aider/abettor tried as principal. Where appellant knew items were stolen and on this basis agreed to cash checks as an integral part of an overall scheme to acquire and sell stolen goods, he could be properly tried and convicted as an aider and abettor to theft-receiving and thus, as a principal. People v. Silvola, 190 Colo. 363, 547 P.2d 1283, cert. denied, 429 U.S. 886, 97 S. Ct. 238, 50 L. Ed. 2d 167 (1976).

The stealing of several articles of property at the same time and place, as one continuous act or transaction, may be prosecuted as a single offense, although the several articles belong to several different owners. People v. District Court, 192 Colo. 355, 559 P.2d 1106 (1977).

Ongoing, continuous scheme of embezzlement pursuant to a single criminal impulse with the same victim throughout does not have to be severed into separate counts or dismissed. People v. Stratton, 677 P.2d 373 (Colo. App. 1983).

The general assembly did not proscribe the same conduct in 42-5-104 and this section. Section 42-5-104 requires that the thing stolen be a part of, or contained in, an automobile, and there is no such requirement under this section. People v. Czajkowski, 193 Colo. 352, 568 P.2d 23 (1977).

Theft statute held not to violate guaranty of equal protection. People v. Cowden, 735 P.2d 199 (Colo. 1987).

Prosecutor's election to prosecute under general intent theft statute did not violate due process even though defendant was precluded from using affirmative defense of impaired mental condition. People v. Quick, 713 P.2d 1282 (Colo. 1986).

Theft statute which imposes penalties according to the value of the thing taken and which contains alternative culpable mental state elements of "knowingly" and "with intent" represents a legitimate legislative decision regarding the nature of the crime and does not raise an equal protection issue of punishing the same conduct with two different sanctions. People v. Quick, 713 P.2d 1282 (Colo. 1986).

Elements of two crimes of theft and motor vehicle theft are clearly different, and therefore it does not violate equal protection to prosecute under the latter rather than the former. People v. Wastrum, 624 P.2d 1302 (Colo. 1981).

Debt arising out of stipulation to entry of judgment for civil theft under this section and deceit based on fraud is nondischargeable under 11 U.S.C. 523(a)(4) of the federal bankruptcy code. Under 11 U.S.C. 523(a)(4), a debtor is not discharged from any debt for embezzlement or larceny. The statutory intent in 18-4-403 indicates that the word "theft" includes embezzlement and larceny, among other crimes. In re Hauck, 466 B.R. 151 (Bankr. D. Colo. 2012), aff'd, 489 B.R. 208 (D. Colo. 2013).

Attorney's theft requires disbarment. An attorney's misuse of his professional status to accomplish the felonious theft of his clients' funds requires disbarment. People v. Buckles, 673 P.2d 1008 (Colo. 1984).

Applied in In re Pratte, 19 Colo. 138, 34 P. 680 (1893); Murray v. People, 49 Colo. 109, 111 P. 711 (1910); Wheeler v. People, 49 Colo. 402, 113 P. 312 (1911); James v. Phoenix Assurance Co., 75 Colo. 209, 225 P. 213 (1924); Critchfield v. People, 91 Colo. 127, 13 P.2d 270 (1932); Sanders v. People, 109 Colo. 243, 125 P.2d 154 (1942); Conyers v. People, 113 Colo. 230, 155 P.2d 988 (1945); Casados v. People, 119 Colo. 444, 204 P.2d 557 (1949); Thurman v. People, 120 Colo. 77, 208 P.2d 927 (1949); People v. Austin, 162 Colo. 10, 424 P.2d 113 (1967); People v. Mangum, 189 Colo. 246, 539 P.2d 120 (1975); People v. Pittam, 194 Colo. 104, 572 P.2d 135 (1977); People v. Warren, 196 Colo. 75, 582 P.2d 663 (1978); People v. Girard, 196 Colo. 68, 582 P.2d 666 (1978); People in Interest of R.A.D., 196 Colo. 430, 586 P.2d 46 (1978); People v. Bielecki, 41 Colo. App. 256, 588 P.2d 377 (1978); People v. Hallman, 41 Colo. App. 427, 591 P.2d 101 (1978); Eftekhar-Zadeh v. Lusero, 42 Colo. App. 56, 592 P.2d 1347 (1978); People v. Jacquez, 196 Colo. 569, 588 P.2d 871 (1979); People v. Armijo, 197 Colo. 91, 589 P.2d 935 (1979); People v. Hillyard, 197 Colo. 183, 589 P.2d 939 (1979); People v. Burns, 197 Colo. 284, 593 P.2d 351 (1979); Hughes v. District Court, 197 Colo. 396, 593 P.2d 702 (1979); People v. Washburn, 197 Colo. 419, 593 P.2d 962 (1979); People v. Williams, 197 Colo. 559, 596 P.2d 745 (1979); People v. Ortega, 198 Colo. 179, 597 P.2d 1034 (1979); People ex rel. Leidner v. District Court, 198 Colo. 204, 597 P.2d 1040 (1979); People v. Miller, 199 Colo. 32, 604 P.2d 36 (1979); People v. Brand, 43 Colo. App. 347, 608 P.2d 817 (1979); People ex rel. Losavio v. Gentry, 199 Colo. 153, 606 P.2d 57 (1980); P.V. v. District Court, 199 Colo. 357, 609 P.2d 110 (1980); People v. McMichael, 199 Colo. 433, 609 P.2d 633 (1980); Godbold v. Wilson, 518 F. Supp. 1265 (D. Colo. 1981); People v. Martinez, 628 P.2d 608 (Colo. 1981); People v. Savage, 630 P.2d 1070 (Colo. 1981); People v. Tucker, 631 P.2d 162 (Colo. 1981); People v. Henry, 631 P.2d 1122 (Colo. 1981); People v. Boykin, 631 P.2d 1149 (Colo. App. 1981); People v. Elkhatib, 632 P.2d 275 (Colo. 1981); People v. Walters, 632 P.2d 566 (Colo. 1981); People v. Stinson, 632 P.2d 631 (Colo. App. 1981); People ex rel. Gallagher v. District Court, 632 P.2d 1009 (Colo. 1981); People v. Andrews, 632 P.2d 1012 (Colo. 1981); People in Interest of M.R.J., 633 P.2d 474 (Colo. 1981); People v. R.V., 635 P.2d 892 (Colo. 1981); People v. Smith, 638 P.2d 1 (Colo. 1981); People v. Franklin, 640 P.2d 226 (Colo. 1982); People v. Boyd, 642 P.2d 1 (Colo. 1982); People v. Petrie, 642 P.2d 519 (Colo. 1982); People ex rel. VanMeveren v. District Court, 643 P.2d 37 (Colo. 1982); People v. Hearty, 644 P.2d 302 (Colo. 1982); People v. Turner, 644 P.2d 951 (Colo. 1982); People v. Leonard, 644 P.2d 85 (Colo. App. 1982); People v. Conwell, 649 P.2d 1099 (Colo. 1982); People v. Cushon, 650 P.2d 527 (Colo. 1982); People v. Jiminez, 651 P.2d 395 (Colo. 1982); J.T. v. O'Rourke ex rel. Tenth Judicial Dist., 651 P.2d 407 (Colo. 1982); People v. Williams, 651 P.2d 899 (Colo. 1982); People in Interest of B.R.M., 653 P.2d 77 (Colo. App. 1982); People v. Williams, 654 P.2d 319 (Colo. App. 1982); Hunter v. People, 655 P.2d 374 (Colo. 1982); People v. Fisher, 657 P.2d 922 (Colo. 1983); People v. District Court, 664 P.2d 247 (Colo. 1983); People v. Montoya, 667 P.2d 1377 (Colo. 1983); Landis v. Farish, 674 P.2d 957 (Colo. 1984); People v. Stratton, 677 P.2d 373 (Colo. App. 1983); People v. Lancaster, 683 P.2d 1202 (Colo. 1984); People v. Jeffers, 690 P.2d 194 (Colo. 1984); People v. Eastepp, 884 P.2d 305 (Colo. 1994); People v. Collie, 995 P.2d 765 (Colo. App. 1999); Van Rees v. Unleaded Software, Inc., 2016 CO 51, 373 P.3d 603.

II. ELEMENTS OF OFFENSE.

A. In General.

For elements of former crime of larceny by bailee, see McGuire v. People, 83 Colo. 154, 262 P. 1015 (1928); Poe v. People, 163 Colo. 20, 428 P.2d 77 (1967).

For essential elements of former crime of embezzlement, see Phenneger v. People, 85 Colo. 442, 276 P. 983 (1929); Blackett v. People, 98 Colo. 7, 52 P.2d 389 (1935); Sparr v. People, 122 Colo. 35, 219 P.2d 317 (1950); Gill v. People, 139 Colo. 401, 339 P.2d 1000 (1959).

The corpus delicti in theft consists of two elements: (1) That the property is lost by the owner; and (2) that it is lost by a felonious taking. Lee v. People, 138 Colo. 321, 332 P.2d 992 (1958).

Theft occurs when any person obtains control of the property of another and knowingly intends to permanently deprive that person of the use or benefit of a thing of value. Sandoval v. People, 176 Colo. 414, 490 P.2d 1298 (1971).

In order to show a prima facie case of theft, the prosecution must establish the elements of the corpus delicti of theft: That the property was lost by the owner and that it was lost by a felonious taking. People v. Contreras, 195 Colo. 80, 575 P.2d 433 (1978).

In 1975 this section was amended to eliminate the receiving element and a new theft by receiving statute was enacted in 18-4-410. Darr v. People, 193 Colo. 445, 568 P.2d 32 (1977).

For a specific intent to deprive as element prior to 1975 amendment, see People v. Treat, 193 Colo. 570, 568 P.2d 473 (1977).

Intent is a material element of theft. People in Interest of J. S. C. v. J. S. C., 30 Colo. App. 381, 493 P.2d 671 (1972).

The intent to steal is an essential element of proof of the crime of larceny. Montoya v. People, 169 Colo. 428, 457 P.2d 397 (1969).

An essential element of the crime of theft is the formation of an intent to permanently deprive the owner of his property. Sandoval v. People, 176 Colo. 414, 490 P.2d 1298 (1971); People v. Piskula, 197 Colo. 148, 595 P.2d 219 (1979).

The intent to deprive another permanently of the use or benefit of his property and knowingly obtaining or exerting control over anything of value are both essential elements of the crime of theft and both elements must be proven to exist beyond a reasonable doubt. People v. Archuleta, 180 Colo. 156, 503 P.2d 346 (1972).

To support a conviction of felony theft, the evidence must show beyond a reasonable doubt that the defendant knowingly or intentionally used the property in such a manner as to deprive the victim permanently of its use. People v. Gracey, 940 P.2d 1050 (Colo. App. 1996).

Burglarious intent need not be shown. In making out the case of larceny the prosecutor need not show any burglarious intent or entry, it only being necessary to prove the usual elements of theft as defined by the statute. Ex parte Hill, 101 Colo. 243, 72 P.2d 471 (1937); White v. People, 172 Colo. 271, 472 P.2d 674 (1970).

Defendant charged with felony theft as a result of violating 38-22-127 of the general mechanic's lien statute can be held criminally liable as set forth in this section, but only where prosecutor proves each of the elements of the crime of theft, including requisite intent. People v. Mendro, 731 P.2d 704 (Colo. 1987).

Defendant did not exercise control over the property "without authorization" where another person who was a rightful possessor of the property authorized the defendant to take the property. People v. McCormick, 784 P.2d 808 (Colo. App. 1989).

In the context of theft of construction project trust funds, the "knowingly using" element of mental culpability in subsection (1)(b) does not require a conscious objective to deprive another person of the use or benefit of the construction trust funds, but instead requires the offender to be aware that his manner of using the trust funds is practically certain to result in depriving another person of the use or benefit of the funds. People v. Anderson, 773 P.2d 542 (Colo. 1989); In re Helmke, 398 B.R. 38 (Bankr. D. Colo. 2008).

Theft requires proof that the accused knowingly obtained possession of or exercised control over the property either without authorization or by threat or deception. People v. Griffie, 44 Colo. App. 46, 610 P.2d 1079 (1980).

The culpable mental state "knowingly" in subsection (1) applies to the element of "without authorization". People v. Stellabotte, 2016 COA 106, __ P.3d __.

In the context of theft of real property, actual physical control is not required. The element "to obtain or exercise control" for theft of real property does not require actual physical control of the real property. To obtain or exercise control can mean to retain an interest in the real property without authorization and with intent to permanently deprive another person of the use or benefit of such real property. People v. Jensen, 172 P.3d 946 (Colo. App. 2007).

Control need not be unauthorized from the outset. People v. Treat, 193 Colo. 570, 568 P.2d 473 (1977).

Subsection (1) makes it clear that theft can occur even though initial control of the property has been authorized; the intent to deprive, or knowing use inconsistent with the owner's benefit, may arise at a later time when control is no longer authorized. People v. Treat, 193 Colo. 570, 568 P.2d 473 (1977).

"Without authorization" defined. Exercising control over property "without authorization", pursuant to subsection (1), means that the owner of the property, or a person in possession of the property with the owner's consent, has not given the actor permission to exercise control over the property. People v. Edmonds, 195 Colo. 358, 578 P.2d 655 (1978); People v. Gracey, 940 P.2d 1050 (Colo. App. 1996).

Unauthorized taking is not necessary element of offense: Exercising control without authorization, combined with the requisite intent, is sufficient. People v. Am. Health Care, Inc., 42 Colo. App. 209, 591 P.2d 1343 (1979).

Where initial control of property is authorized, the intent to deprive may arise at a later time when control is no longer authorized. People v. Am. Health Care, Inc., 42 Colo. App. 209, 591 P.2d 1343 (1979); People v. Carr, 841 P.2d 361 (Colo. App. 1992).

It is not necessary that a person maintain absolute control over the thing of value to commit theft; it is sufficient that the intended use of such thing be inconsistent with the owner's use or benefit. Becker & Tenenbaum v. Eagle Restaurant, 946 P.2d 600 (Colo. App. 1997).

When the defendant is a substantial distance from the item stolen the defendant's actions do not constitute theft from the person of another. People v. Smith, 121 P.3d 243 (Colo. App. 2005).

It is sufficient that the intended use of the money be inconsistent with the owner's use or benefit. In other words, it is only required that the defendant knowingly exercise unauthorized control over the property, with requisite intent; it is not necessary that he maintain absolute control for his own personal use. People v. Treat, 193 Colo. 570, 568 P.2d 473 (1977).

Property must have belonged to another. An essential element of the crime of embezzlement is that the property alleged to have been converted belongs to another. Kelley v. People, 157 Colo. 417, 402 P.2d 934 (1965).

Money may be taken from living or dead body. It makes no difference in determining guilt whether the money in a theft was taken from a living person or a dead body. People v. Walker, 44 Colo. App. 249, 615 P.2d 57 (1980).

Taking property under control and possession of victim violates section. The taking of a purse from the cart which the victim was pushing, and which was under her control and in her present possession, constituted taking "from the person of another" in violation of subsection (5). People v. Evans, 44 Colo. App. 288, 612 P.2d 1153 (1980).

Restaurant had sufficient proprietary interest in the cash and checks taken (even though not in its possession when taken) to prove that the defendant stole a thing of value from another. A person need not have obtained actual physical custody or delivery of the thing of value in order to have a proprietary interest in it if he has parted with consideration entitling him to receive the thing of value. People v. Ferguson, 701 P.2d 72 (Colo. App. 1984).

The element of theft requiring ownership by "another" does not require proof of the titled ownership by "another". People v. Schlicht, 709 P.2d 94 (Colo. App. 1985).

Ownership may be laid either in the real owner or in the person in possession at the time of the theft. Romero v. People, 134 Colo. 342, 304 P.2d 639 (1956); Griffin v. People, 157 Colo. 72, 400 P.2d 928 (1965).

The actual condition of the legal title is immaterial to the thief and so far as he is concerned, one may be taken as the owner who was in peaceable possession of it, and whose possession was unlawfully disturbed by the taking. Kelley v. People, 166 Colo. 322, 443 P.2d 734 (1968).

There can be no theft without wrongful appropriation of another's property. Hucal v. People, 176 Colo. 529, 493 P.2d 23 (1971).

Critical elements are the defendant's intent to deprive and the location at which his control over the property was no longer authorized. People v. Carr, 841 P.2d 361 (Colo. App. 1992).

The elements of the crime of theft need not be proven by direct, substantive evidence, but can be inferred from the defendant's conduct and the reasonable inferences which may be drawn from the circumstances of the case. People v. Gracey, 940 P.2d 1050 (Colo. App. 1996).

Where evidence showed that defendant holding a power of attorney made 32 separate withdrawals from the victim's account, did not issue promissory notes to the victim contemporaneously with each withdrawal, did not attempt to repay the victim in regular installments or to pay interest on the "loans", and concealed the "loans" from the victim's sons, it was for the jury to determine whether the defendant withdrew the money from the victim's account without her authorization and with the intent to permanently deprive her of the use of the money. People v. Gracey, 940 P.2d 1050 (Colo. App. 1996).

The place where the defendant comes into possession of thing of value not element of offense. People v. Tinkle, 714 P.2d 919 (Colo. App. 1985).

Police decoy operation is not consent to being deprived of possession. A police decoy operation set up so that a person otherwise inclined would have the opportunity to take money, is not consent by the police officer to being permanently deprived of possession of the money. People v. Gresham, 647 P.2d 243 (Colo. App. 1981).

It is the intent at the time of taking to permanently deprive that is the essential element of theft. People v. Burke, 37 Colo. App. 289, 549 P.2d 419 (1976).

The deprivation need not be permanent; once the wrongful appropriation occurs, this section requires coexistent intent to permanently deprive of use and benefit. Hucal v. People, 176 Colo. 529, 493 P.2d 23 (1971).

Although a conspiracy to commit theft may continue beyond the commission of the immediate crime, permanent deprivation is not an element of theft. People v. Burke, 37 Colo. App. 289, 549 P.2d 419 (1976).

The return of the property is not a defense. People v. Burke, 37 Colo. App. 289, 549 P.2d 419 (1976).

The fact that a thief may recant and elect to return to the owner the fruits of his larcenous conduct does not purge him of guilt or serve as a defense to prosecution. Kelley v. People, 166 Colo. 322, 443 P.2d 734 (1968).

The fact that the defendant eventually returned the proceeds of a check that had been diverted without authorization is not a defense to a theft charge. People v. Pedrie, 727 P.2d 859 (Colo. 1986).

The contention that the crime of larceny was not completed because the TV set, though moved out of the house, was left standing at the owner's back property line has no merit. The defendants did have complete control of the TV set, even if only for a few minutes, and did have it in their possession on and off the premises of the owner without his consent. Scott v. People, 166 Colo. 432, 444 P.2d 388 (1968).

If a permanent deprivation of property were necessary before a conviction could be sustained, every time stolen property was recovered and returned to its true owner the thief would have to be acquitted; such a rule would be inane. Hucal v. People, 176 Colo. 529, 493 P.2d 23 (1971).

Return of allegedly stolen property does not necessarily negate the existence of a wrongful intent. People v. Am. Health Care, Inc., 42 Colo. App. 209, 591 P.2d 1343 (1979).

Attempt to return property does not negate theft element of intent. People v. Collie, 682 P.2d 1208 (Colo. App. 1983).

There is no taking where property is delivered to defendant for his use and convenience by the person in charge. Lee v. People, 138 Colo. 321, 332 P.2d 992 (1958).

Agent may form intent to appropriate. Where money has been voluntarily delivered to accused as agent, the fact that he formed the intent to appropriate it at or before the time he received it does not prevent a prosecution for embezzlement or larceny. Lewis v. People, 109 Colo. 89, 123 P.2d 398 (1942).

Larceny by bailee can occur at any time after items are stolen. Peters v. People, 151 Colo. 35, 376 P.2d 170 (1962).

The failure of a debtor to pay his creditor does not constitute embezzlement. Kelley v. People, 157 Colo. 417, 402 P.2d 934 (1965).

To sustain a conviction of the crime of embezzlement, it must appear that the accused received the money or property of another as a fiduciary. Merely refusing to pay money lent cannot be converted into embezzlement. Simpson v. People, 47 Colo. 612, 108 P. 169 (1910).

Failure to report moneys owed pursuant to debtor-creditor relationship is not felony theft. Failure of lessee who sold beverages in park pursuant to lease with county to report money owed to the county based on percentage of gross income as rent does not constitute felony theft. People v. Rotello, 754 P.2d 765 (Colo. 1988).

Larceny is considered a continuing crime and every asportation considered a new taking; thus larceny could be prosecuted not only at the place where the goods were stolen, but also wherever the goods were subsequently brought. People v. Martinez, 37 Colo. App. 71, 543 P.2d 1290 (1975).

A conspiracy to commit theft does not continue, per se, until the proceeds are returned. People v. Burke, 37 Colo. App. 289, 549 P.2d 419 (1976).

Statute does not create a separate and continuing crime of theft by deception. Doctrine of continuing crimes can apply only when legislature has unmistakably communicated intent to create such an offense and nothing in statute suggests the intent to create a separate and distinct crime of theft by deception that continues until deception ends. Roberts v. People, 203 P.3d 513 (Colo. 2009) (decided prior to 2009 amendment).

Statute requires all thefts committed by the same person within six-month period be joined and prosecuted as a single felony, the classification of which is determined by the aggregate value of all things involved. Roberts v. People, 203 P.3d 513 (Colo. 2009) (decided prior to 2009 amendment).

A defendant may not rely on the defense of legal impossibility in a prosecution for attempted theft. People v. Darr, 37 Colo. App. 143, 551 P.2d 735 (1975), aff'd, 193 Colo. 445, 568 P.2d 32 (1977).

Defendant may raise the defense of general mistake of fact by alleging that he never believed the goods were stolen. People v. Darr, 37 Colo. App. 143, 551 P.2d 735 (1975), aff'd, 193 Colo. 445, 568 P.2d 32 (1977).

The fact that the items were not in fact stolen does not provide a defense to attempted theft where the defendant believed they were stolen. People v. Darr, 37 Colo. App. 143, 551 P.2d 735 (1975), aff'd, 193 Colo. 445, 568 P.2d 32 (1977).

Lack of consent of both equitable and legal owners of property need not be proven to support a conviction for theft. People v. Diaz, 182 Colo. 369, 513 P.2d 444 (1973).

Whether or not stolen checks were subsequently recovered and returned to owner is irrelevant to the criminal liability for taking the instruments in the first instance. People v. Marques, 184 Colo. 262, 520 P.2d 113 (1974).

Crime of joyriding is not a lesser included offense of crime of theft, nor is attempted joyriding a lesser included offense of attempted theft. Sandoval v. People, 176 Colo. 414, 490 P.2d 1298 (1971).

Theft is not a lesser included offense of robbery. People v. Moore, 184 Colo. 110, 518 P.2d 944 (1974).

Theft and theft by receiving are separate crimes. Where convictions for theft and theft by receiving arise out of the same transaction, the defendant could not properly be found guilty of both. People v. Taylor, 647 P.2d 682 (Colo. 1982).

First degree criminal trespass is distinct from misdemeanor theft. People v. Martinez, 640 P.2d 255 (Colo. App. 1981).

Where defendant had contracted with a church to promote an arts festival to raise money for the church and she had an interest in the festival funds similar to that of the church and was the party designated to receive the funds, she could not be guilty of theft under the statute. People v. McCain, 191 Colo. 229, 552 P.2d 20 (1976).

Where there is ample evidence in the record that the defendant was the "moving force" behind a corporate operation, it is not cause for dismissal of any theft charges that the defendant may not have participated directly in every act constituting the thefts. People v. Treat, 193 Colo. 570, 568 P.2d 473 (1977).

Subsection (5) does not apply where a defendant, through the use of a series of short-change transactions, deceptively obtained money from a store clerk. The enhanced punishment provided by this subsection is for situations where the theft raises a danger of confrontation and involves an invasion of the victim's person and privacy. People v. Warner, 790 P.2d 866 (Colo. App. 1989).

Theft from the person of another involves circumstances, such as pickpocketing, where something of value is taken from one who is unconscious or unaware of the theft. The invasion of the victim's person presents an element of danger absent in other theft offenses, which justifies the greater penalty accorded those who violate subsection (5). People v. Warner, 801 P.2d 1187 (Colo. 1990).

Theft from the person of another is intended to cover those thefts involving an invasion of the victim's person of which the victim is unaware, but which are not accomplished through the use of force, threats, or intimidation. People v. Warner, 801 P.2d 1187 (Colo. 1990), aff'd, 801 P.2d 1187 (Colo. 1990).

B. Threat or Deception.

Law reviews. For note, "False Pretenses, Confidence Game, and Short Check in Colorado", see 25 Rocky Mt. L. Rev. 325 (1953).

This section annexed former false pretenses and confidence games provisions. Norman v. People, 178 Colo. 190, 496 P.2d 1029 (1972).

For essential elements of former crime of false pretenses, see People v. Orris, 52 Colo. 244, 121 P. 163 (1911); Stumpff v. People, 51 Colo. 202, 117 P. 134 (1911); Stoltz v. People, 59 Colo. 342, 148 P. 865 (1915); Tracy v. People, 65 Colo. 226, 176 P. 280 (1918); Clarke v. People, 64 Colo. 164, 171 P. 69 (1918); People v. Martin, 78 Colo. 200, 240 P. 695 (1925); Updike v. People, 92 Colo. 125, 18 P.2d 472 (1933); Chilton v. People, 95 Colo. 268, 35 P.2d 870 (1934); Montez v. People, 110 Colo. 208, 132 P.2d 970 (1942); Johnson v. People, 110 Colo. 283, 133 P.2d 789 (1943); Rogers v. People, 161 Colo. 317, 422 P.2d 377 (1966); Woodman v. People, 168 Colo. 80, 450 P.2d 330 (1969); Small v. People, 173 Colo. 304, 479 P.2d 386 (1970).

For essential elements of former crime of confidence game, see Lace v. People, 43 Colo. 199, 95 P. 302 (1908); Wheeler v. People, 49 Colo. 402, 113 P. 312 (1911); Powers v. People, 53 Colo. 43, 123 P. 642 (1912); Elliott v. People, 56 Colo. 236, 138 P. 39 (1914); Davis v. People, 96 Colo. 212, 40 P.2d 968 (1935); Bomareto v. People, 111 Colo. 99, 137 P.2d 402 (1943); Olde v. People, 112 Colo. 15, 145 P.2d 100 (1944); People v. Lindsay, 119 Colo. 248, 202 P.2d 951 (1949); Kelly v. People, 121 Colo. 243, 215 P.2d 336 (1950); McBride v. People, 126 Colo. 277, 248 P.2d 725 (1952); Roll v. People, 132 Colo. 1, 284 P.2d 665 (1955); Bevins v. People, 138 Colo. 123, 330 P.2d 709 (1958); Fischer v. People, 138 Colo. 559, 335 P.2d 871 (1959); Gonzales v. People, 149 Colo. 548, 369 P.2d 786 (1962); Woodard v. People, 154 Colo. 162, 389 P.2d 411 (1964); Dodge v. People, 168 Colo. 531, 452 P.2d 759 (1969); Small v. People, 173 Colo. 304, 479 P.2d 386 (1970); Digiallonardo v. People, 175 Colo. 560, 488 P.2d 1109 (1971).

Elements of theft by deception. Where the defendant obtained cash owned by the bank with full knowledge that under no circumstances was he entitled to it, and where the knowledge that the initial check used to open an account was false, shows knowledge that the two subsequent checks drawn on that account were equally false, the necessary elements of the charge of theft by deception are established. Lewis v. People, 174 Colo. 334, 483 P.2d 949 (1971).

Statute does not create a separate and continuing crime of theft by deception. Doctrine of continuing crimes can apply only when legislature has unmistakably communicated intent to create such an offense and nothing in statute suggests the intent to create a separate and distinct crime of theft by deception that continues until deception ends. Roberts v. People, 203 P.3d 513 (Colo. 2009) (decided prior to 2009 amendment).

Statute requires all thefts committed by the same person within six-month period be joined and prosecuted as a single felony, the classification of which is determined by the aggregate value of all things involved. Roberts v. People, 203 P.3d 513 (Colo. 2009) (decided prior to 2009 amendment).

Intent to defraud necessary for deception. When deception is used to perpetrate a theft, the requisite mental state is necessarily an intent to defraud. People v. Piskula, 197 Colo. 148, 595 P.2d 219 (1979); People v. Freda, 817 P.2d 588 (Colo. App. 1991).

Theft by deception statute does not require proof of culpable mental state of specific intent. People v. Quick, 713 P.2d 1282 (Colo. 1986).

Intent to defraud deemed part of 38-22-137. Because an intent to defraud, necessary to this section, must be proven in order to convict a defendant under 38-22-137, a prosecution for violation of 38-22-137 does not conflict with the constitutional prohibition of imprisonment for civil debt in 12 of art. II, Colo. Const. People v. Piskula, 197 Colo. 148, 595 P.2d 219 (1979).

Reliance of victim necessary for theft by deception. The offense of theft by deception requires proof that misrepresentations made to the victim caused the victim to part with something of value in reliance upon those misrepresentations. People v. Norman, 703 P.2d 1261 (Colo. 1985); People v. Carlson, 72 P.3d 411 (Colo. App. 2003).

There is no requirement in the theft statute that the accused personally make the threat toward the victim of the crime. People v. Truesdale, 190 Colo. 286, 546 P.2d 494 (1976).

Rather, it is sufficient if defendant obtained property as consequence. It is sufficient under this section if a threat was made and the accused knowingly obtained anything of value from the victim of the threat, with specific intent to deprive the victim permanently of the use or benefit of the property. People v. Truesdale, 190 Colo. 286, 546 P.2d 494 (1976).

Thus, a threat by a confederate would suffice to establish this element of the offense. People v. Truesdale, 190 Colo. 286, 546 P.2d 494 (1976).

A threat is defined as a declaration of purpose or intention to work injury to the person, property, or rights of another by the commission of an unlawful act. Schott v. People, 174 Colo. 15, 482 P.2d 101 (1971).

Theft by deception established. Prosecution established that the defendants obtained control of money belonging to the department store by deceptive practice with the intent to deprive the store of the money. People v. Todd, 189 Colo. 117, 538 P.2d 433 (1975).

Deception made upon a victim's agent in an effort to commit theft from a victim's estate satisfies the requirements of subsection (1). People v. Devine, 74 P.3d 440 (Colo. App. 2003).

Where evidence showed debtor obtained control over creditor's products by misrepresentation and debtor had no intention of reimbursing creditor for products supplied, such evidence is sufficient to support charge of theft by deception. People v. Stewart, 739 P.2d 854 (Colo. 1987).

Issuance of check on known closed account deemed deception. The mere issuance of a check on an account the defendant knew had been closed is a means of deception proscribed by this section. People v. Attebury, 196 Colo. 509, 587 P.2d 281 (1978).

Theft by threat is not lesser included offense of robbery. Schott v. People, 174 Colo. 15, 482 P.2d 101 (1971); Maes v. People, 178 Colo. 46, 494 P.2d 1290 (1972).

There is no indication that the general assembly enacted the theft by receiving statute in 18-4-410 to preclude prosecution under the theft statute. Therefore, prosecutor can determine statute under which to prosecute the alleged crime. People v. Smith, 938 P.2d 111 (Colo. 1997).

III. INDICTMENT OR INFORMATION.

The general assembly authorized the use of the term "theft" in an information and that "theft" is to be substituted for "larceny" wherever it appears in a law of this state. White v. People, 172 Colo. 271, 472 P.2d 674 (1970).

Offense of theft when charged as provided in statute sufficiently advises jury of nature of offense for which defendant is on trial. People v. Ingersoll, 181 Colo. 1, 506 P.2d 364 (1973).

There is no requirement, either constitutional or statutory, that every element of theft be alleged in the information. People v. Ingersoll, 181 Colo. 1, 506 P.2d 364 (1973).

There is no requirement, either constitutional or statutory, that every element of the offense be alleged in the information, and a charging document is sufficient if it advises a defendant of the charges he is facing so that he can adequately defend himself. People v. MacFarland, 189 Colo. 363, 540 P.2d 1073 (1975).

The phrase "on or about a date certain" in subsection (6) is but a minimum requirement, and language in the information approximating the notice it intends to provide a defendant is sufficient. People v. Wolfe, 662 P.2d 502 (Colo. App. 1983); People v. Stratton, 677 P.2d 373 (Colo. App. 1983).

Information charging felony theft, complying with the requirements of subsection (1)(b), was sufficient where an identically worded subsection of a prior theft statute withstood constitutional attack. People v. MacFarland, 189 Colo. 363, 540 P.2d 1073 (1975).

When bill of particulars required. Where the crime of theft is charged in the words of the statute, an order for a bill of particulars is mandatory upon the defendant's request. People v. District Court, 198 Colo. 501, 603 P.2d 127 (1979); People v. Stratton, 677 P.2d 373 (Colo. App. 1983).

Purpose of bill of particulars. The requirement in subsection (6) that, upon request, a bill of particulars must be supplied to a defendant constitutes a safeguard to insure that the information by which a defendant is charged will be sufficiently definite in its terms. People v. Wolfe, 662 P.2d 502 (Colo. App. 1983).

Specific intent need not be alleged in charging document although proof of specific intent is essential element of felony theft. People v. Ingersoll, 181 Colo. 1, 506 P.2d 364 (1973).

An indictment charging officers of insurance company with unlawful conspiracy to convert to their own use moneys of the company, held to sufficiently charge larceny by bailee, although there was no express allegation that the property involved was converted to their use "with an intent to steal the same". Helser v. People, 100 Colo. 371, 68 P.2d 543 (1937).

Property must be described with reasonable certainty. In an information under this section, where the thing embezzled is a writing, it must be described with reasonable certainty, or a sufficient reason must appear for the omission of particularity. "One bank check of the value of", etc., "the property of", etc., held fatally insufficient. Moody v. People, 65 Colo. 339, 176 P. 476 (1918); People v. Allen, 167 Colo. 158, 446 P.2d 223 (1968).

Check. The contention that a criminal charge of the conversion of money was not sustained by proof of conversion of a bank check, is overruled, since the negotiation of a check is equivalent to the receipt of money upon it. McGuire v. People, 83 Colo. 154, 262 P. 1015 (1928).

The information charged the defendant with embezzlement of money, whereas the proof showed embezzlement of a check. Where the check was merely the means by which the money alleged to have been embezzled was procured, there was no variance. People v. Allen, 167 Colo. 158, 446 P.2d 223 (1968).

Where the information charged defendant with theft of money, rather than theft of a check, negotiation of the check was the necessary "last act" to begin the running of the statute of limitations under 16-5-401. The date the check was issued was immaterial for purposes of determining the statute of limitations. People v. Chavez, 952 P.2d 828 (Colo. App. 1997).

Description of money. Under this section an indictment for conspiracy to defraud a bank by unlawfully converting to defendants' own use a specified sum in money, the property of the bank, of the value of the same sum, contains a sufficient description of the property. Imboden v. People, 40 Colo. 142, 90 P. 608 (1907).

In a prosecution for embezzlement where sums of money were alleged to have been converted at different times, it was proper to charge the conversions in a lump sum. Price v. People, 78 Colo. 223, 240 P. 688 (1925).

Where conduct violates two provisions, prosecutor determines under which provision crime prosecuted. Where the alleged conduct of a defendant violates both the general theft statute and the more specific motor vehicle theft statute, it is the function of the prosecuting attorney and not the trial court to determine under which statute the alleged crime shall be prosecuted. People v. Westrum, 624 P.2d 1302 (Colo. 1981).

Joinder of two subjects in one count is not duplicitous. It is the common case of an indictment for larceny where various goods and chattels, the subject of a single larceny, are joined in one count, and where proof of the larceny of any one of them sustains the indictment. Such a count is not bad for duplicity. Kollenberger v. People, 9 Colo. 233, 11 P. 101 (1886).

Where the information alleges, in a charge of robbery, that money was taken, "money" will be construed to mean money of the United States, and the court will take judicial notice of its value. Rowan v. People, 93 Colo. 473, 26 P.2d 1066 (1933).

Allegation of ownership sufficient. Allegation of qualified ownership in a criminal information is sufficient to support the charge of embezzlement so far as the element of ownership is concerned. Price v. People, 78 Colo. 223, 240 P. 688 (1925).

The purposes of the allegation of ownership in an indictment include showing that the property alleged to have been stolen is not the property of the accused and advising the accused whose property is alleged to have been stolen so that he can be prepared to meet and refute the charges at trial. People v. Singer, 663 P.2d 626 (Colo. App. 1983).

Variance in ownership not fatal. It is not a fatal variance to allege property to be that of bailee, and prove, inter alia, real ownership in bailor. Romero v. People, 134 Colo. 342, 304 P.2d 639 (1956).

While the true name of the alleged owner of the stolen property should be correctly set forth in the information, the ownership may be laid in one by the name by which he is usually known although it is not his proper name. Pownall v. People, 135 Colo. 325, 311 P.2d 714 (1957).

One purpose of allegations of ownership in larceny cases is to show that the property alleged to have been stolen is not the property of the accused or that the accused may know whose property he is alleged to have stolen so that he may be prepared to meet or refute the charge at the trial. Defendant was not deceived by the allegations in the information and proof that actual title to the car was registered in a name by which the complaining witness was also known was not prejudicial to the defendant where his defense was that he had the consent of the identical person whom he knew under two names. Pownall v. People, 135 Colo. 325, 311 P.2d 714 (1957).

Failure to prove corporate status of victim of theft was an immaterial variance. Straub v. People, 145 Colo. 275, 358 P.2d 615 (1961).

Variance between information alleging that defendant stole from named corporation and exhibits introduced to prove theft and showing names of other corporations or organizations was not fatal where various business names were used by enterprise and defendant, as general manager, could not have been misled or deceived. Martinez v. People, 177 Colo. 272, 493 P.2d 1350 (1972).

Statutory language in subsection (4) permits consolidating theft losses suffered by separate victims into one count of theft over $10,000. People v. Collie, 682 P.2d 1208 (Colo. App. 1983).

Subsection (4)(a) requires the prosecution to prove all the thefts aggregated and charged in a single count. People v. Ramos, 2017 COA 100, __ P.3d __.

IV. EVIDENCE.

A. In General.

The corpus delicti must be established, since it is clearly not permissible that anyone be adjudged guilty until it is shown that a larceny has been committed; and unless the state has shown, prima facie, that a larceny has been committed, a defendant is not put on proof. Lee v. People, 138 Colo. 321, 332 P.2d 992 (1958).

Intent inferred. Intent to permanently deprive another of use or benefit of a thing of value does not have to be proven by direct, substantive evidence but can be inferred from the defendant's conduct and the reasonable inferences which may be drawn from the circumstances of the case. People v. Becker, 187 Colo. 344, 531 P.2d 386 (1975); People v. Am. Health Care, Inc., 42 Colo. App. 209, 591 P.2d 1343 (1979); People v. Piskula, 197 Colo. 148, 595 P.2d 219 (1979).

Intent to permanently deprive may be inferred from the defendant's conduct and the circumstances of the case. People v. Johnson, 618 P.2d 262 (Colo. 1980).

Intent to commit felony theft may be inferred from the defendant's conduct in the circumstances of the case. Miller v. District Court, 641 P.2d 966 (Colo. 1982).

Intent to commit embezzlement of public property, official misconduct, and theft may be inferred from the defendants' conduct and the circumstances of the case. People v. Luttrell, 636 P.2d 712 (Colo. 1981).

Crime may be established by circumstantial evidence. The crime denounced by this section may be established by circumstantial evidence alone. Montez v. People, 110 Colo. 208, 132 P.2d 970 (1942).

Circumstantial evidence, when tied together, can support and provide a foundation for instructions on each of the crimes of first degree murder, first degree burglary, and theft arising out of the same transaction. People v. Salas, 189 Colo. 111, 538 P.2d 437 (1975).

The name of the owner of property stolen is material only to the extent it serves a descriptive purpose, or to show that it is not the property of the accused, and that the accused may know whose property he is alleged to have stolen so that he may be prepared to meet or refute the charge at the trial. Where the identity of the alleged owner is sufficiently established and the defendant is not deceived or misled to his prejudice, no error results. Straub v. People, 145 Colo. 275, 358 P.2d 615 (1961).

Possession without legal ownership is sufficient proof. In a larceny case, it is sufficient to show that the named victim had possession, control, and custody of the chattel which was the alleged object of the larceny, without determining the legal ownership. Kelley v. People, 166 Colo. 322, 443 P.2d 734 (1968).

Proof of a defacto corporate existence is sufficient where corporate ownership is an element of the crime. Straub v. People, 145 Colo. 275, 358 P.2d 615 (1961).

Possession, control, and custody of the named victim is sufficient in a larceny case, without determining the de jure corporate entity. Kelley v. People, 166 Colo. 322, 443 P.2d 734 (1968).

Intent need not be proven by direct, substantive evidence, but may be inferred from the defendant's conduct and the reasonable inferences which may be drawn from the circumstances of the case. People v. Carr, 841 P.2d 361 (Colo. App. 1992).

Proof that misrepresentations cause victim to part with something of value. The very nature of the crime of theft by deception requires proof that misrepresentations cause the victim to part with something of value and that the victim relied upon the swindler's misrepresentation. People v. Terranova, 38 Colo. App. 476, 563 P.2d 363 (1976); People v. Warner, 801 P.2d 1187 (Colo. 1990).

Where there was no proof that the misrepresentation caused the undercover agent to purchase stock from the defendant, prosecution for the completed substantive crime of theft by deception was not possible. People v. Terranova, 38 Colo. App. 476, 563 P.2d 363 (1976).

Admissibility of evidence to show intent. Any evidence going to the intent of a defendant charged with embezzlement is proper. Hopkins v. People, 89 Colo. 296, 1 P.2d 937 (1931).

In an action against officers of an insurance company for conspiracy to convert moneys of the company to their own use, evidence of the insolvency of the officers and subsidiary corporations controlled by said officers, held admissible, as having a definite bearing upon their intent, purpose, and design. Helser v. People, 100 Colo. 371, 68 P.2d 543 (1937).

That defendant intended to convert bailor's property to his own use by pledging it as security for a loan and using the proceeds of the loan for the payment of another obligation could be inferred from his executing a chattel mortgage representing himself as the owner of the car and from his furnishing the title and power of attorney to the bank. Poe v. People, 163 Colo. 20, 428 P.2d 77 (1967).

Where intent is an element of the crime, it is defendant's acts and conduct, not the victim's stated reaction, which is relevant. Johnson v. People, 172 Colo. 72, 470 P.2d 37 (1970).

Where intent is a material element of the offense charged, theft, a defendant has the right to testify specifically as to his intention in the commission of the acts which it is claimed constitute the offense. People in Interest of J. S. C. v. J. S. C., 30 Colo. App. 381, 493 P.2d 671 (1972).

Evidence of other similar crimes in which a defendant has participated is competent and admissible for the purpose of showing plan or design of defendant in his alleged unlawful activities. Clark v. People, 105 Colo. 335, 97 P.2d 440 (1939); Peiffer v. People, 106 Colo. 533, 107 P.2d 799 (1940).

Evidence of similar offenses offered for the stated purpose of showing intent, motive, design, and system, followed by proper instructions of limitation, is admissible. Montez v. People, 110 Colo. 208, 132 P.2d 970 (1942).

Evidence of transaction similar to that charged in information held admissible. Moore v. People, 125 Colo. 306, 243 P.2d 425 (1952).

Where the evidence in a prosecution for embezzlement discloses that the victim and mode of operation were identical in each of several transactions, and the defendant seemingly acted pursuant to the same criminal impulse, felonious purpose and intent, such evidence is not subject to challenge for duplicity. Gill v. People, 139 Colo. 401, 339 P.2d 1000 (1959).

Where defendant denies knowledge that property was stolen or that he had an intent to withhold it from its true owner, it is proper for the prosecution to present evidence that loot from other burglaries found in defendant's possession to prove scienter, or guilty knowledge with respect to the crime of larceny by bailee. Peters v. People, 151 Colo. 35, 376 P.2d 170 (1962).

Evidence of thefts committed subsequent to the theft for which defendant was being tried was admissible for the purpose of showing plan, scheme, design, intent, or guilty knowledge where the proper procedures were followed. People v. Lamirato, 180 Colo. 250, 504 P.2d 661 (1972).

Testimony of thief against one charged with receiving stolen goods is not subject to infirmities attached to accomplice testimony. Burns v. People, 148 Colo. 245, 365 P.2d 698 (1961).

Scope of discovery. Where the prosecution informs the defendant of the specific section of the theft statute upon which it is relying, of the things of value allegedly taken, of the witnesses who would be called, and of the overt acts it intends to prove in connection with a conspiracy count, the trial court may deny further requests regarding areas more properly the subject of discovery proceedings. People v. Lewis, 671 P.2d 985 (Colo. App. 1983).

B. Proof of Value.

Where the larceny is from the person of another the crime shall be a felony, and no proof of value is required. People v. McIntosh, 149 Colo. 555, 369 P.2d 987 (1962).

Evidence of value necessary to fix grade of offense. The necessity of the proof of the real value exists where it is provided that the punishment shall be greater or different when the thing stolen is of or above a certain value, for in such cases the value of the property taken must be established by the evidence in order to ascertain the grade of the offense, and a conviction of the higher grade of offense must be based on sufficient evidence that the property taken was of or above the value fixed by statute for such purpose. In such cases, without proof of the value of stolen property there can be no conviction. Henson v. People, 166 Colo. 428, 444 P.2d 275 (1968).

When a conviction for a higher grade offense turns on the value of the property taken, it is incumbent on the prosecution to prove the value of stolen property. People v. Marques, 184 Colo. 262, 520 P.2d 113 (1974).

Test of value is reasonable market value of the stolen article at the time of the commission of the alleged offense. People v. Austin, 185 Colo. 229, 523 P.2d 989 (1974).

The value of a stolen item is measured by its fair market value. People v. Elkhatib, 198 Colo. 287, 599 P.2d 897 (1979).

The measure of value to be attached to items that are stolen is their reasonable market value at the time of the taking. People v. Evans, 44 Colo. App. 288, 612 P.2d 1153 (1980); People v. Rosa, 928 P.2d 1365 (Colo. App. 1996).

For purposes of the theft statute, "value" is generally proven by evidence of market value at the time and place of the theft. Beaudoin v. People, 627 P.2d 739 (Colo. 1981).

Market value defined. Value in a theft case is market value, where market value is what a willing buyer will pay in cash to the true owner for the stolen item. People v. Marques, 184 Colo. 262, 520 P.2d 113 (1974).

It is the obligation of the people to prove the reasonable market value of the goods at the time involved. Noble v. People, 173 Colo. 333, 478 P.2d 662 (1970).

To make a prima facie case for violations under these sections it was incumbent upon the people to present competent evidence of the reasonable market value of the goods in question at the time of the commission of the alleged offense. People v. Paris, 182 Colo. 148, 511 P.2d 893 (1973).

There must be some basis other than pure speculation for a determination of the real value where the value of the money or goods stolen determines the grade of the offense. Henson v. People, 166 Colo. 428, 444 P.2d 275 (1968); People v. In Interest of A.G., 43 Colo. App. 514, 605 P.2d 487 (1979); People v. Leonard, 43 Colo. App. 471, 608 P.2d 832 (1979).

Where no evidence is presented as to any value amount for items, there is insufficient evidence of the value of those items. People v. Jamison, 220 P.3d 992 (Colo. App. 2009).

Value at time of commission of crime. While an owner of goods is always competent to testify as to the value of his property in prosecution for theft and receiving stolen goods, it must relate to its value at the time of the commission of the crime, and where the owner testifies only as to the purchase price of the goods, such testimony is competent evidence of fair market value only where the goods are so new, and thus, have depreciated in value so insubstantially, as to allow a reasonable inference that the purchase price is comparable to current fair market value. People v. Paris, 182 Colo. 148, 511 P.2d 893 (1973); People v. In Interest of A.G., 43 Colo. App. 514, 605 P.2d 487 (1979).

It is not error to aggregate the value of the goods. People v. Zallar, 191 Colo. 492, 553 P.2d 756 (1976); People v. Payne, 2014 COA 81, 361 P.3d 1040.

Taking where value not expressible as market price also proscribed. This section proscribes the unlawful taking, obtaining, or exercising of control over anything of value, not just those things whose value may be expressed in terms of a market price. People v. Miller, 37 Colo. App. 294, 549 P.2d 1092 (1976), aff'd, 193 Colo. 415, 566 P.2d 1059 (1977).

Prima facie value of check is its face value. People v. Marques, 184 Colo. 262, 520 P.2d 113 (1974); People v. Myers, 43 Colo. App. 256, 609 P.2d 1104 (1979).

For purposes of valuing stolen checks, restrictive indorsements are irrelevant. People v. Marques, 184 Colo. 262, 520 P.2d 113 (1974).

Value of credit card. The peculiar value of a credit card is not normally a price which the holder may command for the transfer of his card. It is instead the worth of the privilege to purchase goods or services on credit. People v. Miller, 37 Colo. App. 294, 549 P.2d 1092 (1976), aff'd, 193 Colo. 415, 566 P.2d 1059 (1977).

One objective measure of the value of a credit card is its price on the "street", i.e., in the course of unlawful or illegal trade with a view to its criminal abuse. People v. Miller, 37 Colo. App. 294, 549 P.2d 1092 (1976), aff'd, 193 Colo. 415, 566 P.2d 1059 (1977).

"Street" value is a reflection of the purchasing power of a particular credit card. Accordingly, the authorized line of credit on the card or its "floor limit", i.e., the value of a purchase that could be completed without the necessity of obtaining express authorization from the credit card company, is also an objective measure of a card's value. People v. Miller, 37 Colo. App. 294, 549 P.2d 1092 (1976), aff'd, 193 Colo. 415, 566 P.2d 1059 (1977).

Rewards offered by the issuer of credit cards for the return of lost or stolen cards may also constitute an objective measure of the value of the card. People v. Miller, 37 Colo. App. 294, 549 P.2d 1092 (1976), aff'd, 193 Colo. 415, 566 P.2d 1059 (1977).

Where a stolen item, such as a credit card, has no market value in lawful channels, other objective evidence of value may be admitted including evidence of the "illegitimate" market value. Miller v. People, 193 Colo. 415, 566 P.2d 1059 (1977).

Evidence of the dollar amount which may be purchased by using the credit card without card company approval provides an objective means of evaluating the illegitimate market value of credit cards. Miller v. People, 193 Colo. 415, 566 P.2d 1059 (1977).

Jury is not required to place a precise value upon property involved. People v. Austin, 185 Colo. 229, 523 P.2d 989 (1974).

Without competent evidence of fair market value in prosecution for theft and receiving stolen goods, the jury would have to base its determination of the value of the goods in question at the time of commission of the crime on pure speculation, and thus the judge properly removed the case from the jury's consideration. People v. Paris, 182 Colo. 148, 511 P.2d 893 (1973).

An owner is always competent to testify as to the value of his property. An owner not in the business of selling such items but putting them to use does not have them appraised. The evidence of value is competent regardless of the lack of current used market value. Rodriguez v. People, 168 Colo. 190, 450 P.2d 645 (1969).

Testimony of victim of theft as to value of items taken was competent and could properly be admitted for purposes of valuation. People v. Evans, 44 Colo. App. 288, 612 P.2d 1153 (1980).

Evidence of retail price is evidence of market value, especially where the items were being sold over the counter on a more-or-less daily basis, and there is nothing to indicate that the retail price is higher than the true market value. Maisel v. People, 166 Colo. 161, 442 P.2d 399 (1968); People v. Velarde, 790 P.2d 903 (Colo. App. 1989).

Evidence of retail price is not only admissible but is perhaps the best evidence of market value. Maisel v. People, 166 Colo. 161, 442 P.2d 399 (1968).

Evidence of fair market value and retail price was competent evidence to sustain the jury's finding on the question of value. Lee v. People, 137 Colo. 465, 326 P.2d 660 (1958).

The retail price of stolen goods is the best evidence of their value, not the wholesale price. People v. Lindsay, 636 P.2d 1318 (Colo. App. 1981); People v. Binkley, 687 P.2d 480 (Colo. App. 1984), aff'd on other grounds, 716 P.2d 1111 (Colo. 1986); People v. Rosa, 928 P.2d 1365 (Colo. App. 1996).

Purchase price, junk price, replacement cost, the use of the article, and common knowledge all may be considered in the absence of evidence of market value of a particular item. Burns v. People, 148 Colo. 245, 365 P.2d 698 (1961).

Amounts paid to obtain cooperation of one believed to be coconspirator should not be deducted in determining the value of stolen goods when the payments were returned to the owner of the goods. People v. Elkhatib, 198 Colo. 287, 599 P.2d 897 (1979).

A condemnation proceeding is not authority for establishing the value of personal property. There is just too much difference between the depreciation of land and office machines. Noble v. People, 173 Colo. 333, 478 P.2d 662 (1970).

Evidence of owner based on original cost sufficient. Testimony of witness as to the value of several stolen articles aggregating more the $800, which jury found as the value of the stolen property, was sufficient to establish value even though based on original cost of items, and owner being competent to testify to the value of his property. Burns v. People, 148 Colo. 245, 365 P.2d 698 (1961).

In a prosecution for felony theft of a used car from the dealer, counsel for both sides stipulated that the value of the car was over $100, but then the car lot owner was called and testified that he had invested $4800 in the car, but that it was worth much more on the retail market, and he also stated, over defense objection, that it cost $1800 to repair the automobile from damage caused by the defendant's driving. The evidence may have been prejudicial, but was not inadmissible because the defendant caused the damage while driving the stolen vehicle, and the testimony was all part of the circumstances surrounding the theft and defendant's efforts to escape with the car. People v. Hanson, 189 Colo. 101, 537 P.2d 739 (1975).

Evidence of felony insufficient. The only testimony on the value of the money taken was that it was "in the vicinity of one hundred dollars". Such evidence is insufficient to support a conviction of the crime of grand larceny. Henson v. People, 166 Colo. 428, 444 P.2d 275 (1968); People v. Codding, 191 Colo. 168, 551 P.2d 192 (1976).

Sufficient evidence to sustain petty theft. People v. Codding, 191 Colo. 168, 551 P.2d 192 (1976).

Evidence held sufficient to support felony conviction. People v. Vigil, 180 Colo. 104, 502 P.2d 418 (1972).

C. Possession of Stolen Property.

When possession supports inference of guilt. Where defendants were found in possession of ore under circumstances clearly indicating that they did not come by it honestly, and they offered no explanation of how they came by it, and the ore was identified as coming from the mine in which defendants were employed, the jury was justified in finding them guilty of larceny. Bergdahl v. People, 27 Colo. 302, 61 P. 228 (1900).

Possession of stolen goods after a burglary or theft is sufficient to warrant a conviction, unless the attending circumstances, or other evidence is such as to overcome the presumption raised by such possession, sufficient to create a reasonable doubt of the defendant's guilt. Rueda v. People, 141 Colo. 504, 348 P.2d 958, cert. denied, 362 U.S. 923, 80 S. Ct. 673, 4 L. Ed. 2d 744 (1960).

In a prosecution for larceny or burglary, the jury may infer that the accused committed the theft from the circumstances of his recent, unexplained, exclusive possession of the stolen articles involved. Noble v. People, 173 Colo. 333, 478 P.2d 662 (1970); Diebold v. People, 175 Colo. 96, 485 P.2d 900 (1971); People v. Austin, 185 Colo. 229, 523 P.2d 989 (1974).

Where there is no direct evidence of entry of vehicle from which articles were stolen, court could infer from unexplained possession of stolen articles by defendants shortly thereafter that they were persons who entered vehicle and stole articles. People v. Romero, 179 Colo. 159, 499 P.2d 604 (1972).

What is meant by "recent" possession of stolen goods is to be determined by the facts in each particular case and it may vary from a few days to two years. Generally, whether the period of time is "recent" is a question for the jury, and a period of six weeks has been upheld. Rueda v. People, 141 Colo. 504, 348 P.2d 958, cert. denied, 362 U.S. 923, 80 S. Ct. 673, 4 L. Ed. 2d 744 (1960).

If one agrees in advance to buy stolen property, knowing that the property is to be stolen, he thereby encourages the perpetration of the theft and, if the crime is committed, he is deemed a principal and punished accordingly. Miller v. People, 92 Colo. 481, 22 P.2d 626 (1933).

Mailing of stolen check to defendant inferred control. In prosecution for theft by deception, control over the money can be inferred from evidence that the check which was the basis of the prosecution was mailed to the defendants' home address in the usual course of business. People v. Todd, 189 Colo. 117, 538 P.2d 433 (1975).

Control need not be unauthorized from the outset. People v. Treat, 193 Colo. 570, 568 P.2d 473 (1977).

Defendant exercised absolute possession. Where defendant removed shirts from the store rack and concealed them in a sack he was carrying, he exercised complete, independent, and absolute control and possession over the goods and it was not necessary for the goods to be removed from the owner's premises to prove the element of loss to the owners. People v. Contreras, 195 Colo. 80, 575 P.2d 433 (1978).

Possession need not be sole to constitute the requisite control over stolen goods under this section; where the defendant was merely a passenger in an automobile owned by another, exercising no actual control over the stolen weapons in the automobile, he could nevertheless be found guilty of theft if a jury could reasonably conclude that he was cognizant of the stolen weapons. People v. Maes, 43 Colo. App. 365, 607 P.2d 1028 (1979).

D. Sufficiency.

Each of the essential elements of theft as set forth in this section must be proven beyond a reasonable doubt to support a conviction even where theft is sought to be proven by showing a violation of 38-22-127. People v. Erickson, 695 P.2d 804 (Colo. App. 1984).

For a conspiracy to commit theft, the prosecution is not required to prove an agreement to take goods valued at a particular amount of money. It is required to prove only that there was an agreement to commit theft. For purposes of classifying the level of the crime, the prosecution is required to plead and prove the value of the goods taken. People v. Samson, 2012 COA 167, 302 P.3d 311.

Sufficiency of proof of ownership. In an action under this section, evidence was held sufficient to prove the ownership and possession by the alleged owner of the cattle at the time of the alleged theft. Cahill v. People, 111 Colo. 173, 138 P.2d 936 (1943).

Evidence did not establish intent to steal. Bare v. People, 164 Colo. 93, 432 P.2d 630 (1967).

No intent to steal where property retained on police order. Where defendant was found guilty of larceny as bailee of stolen copper wire which he purchased as a junk dealer and held on hold order of police, it was held that the retention of the property in reliance upon the police order did not constitute an intent to steal, which is one of the essential elements of the crime under this section. Schiff v. People, 111 Colo. 333, 141 P.2d 892 (1943).

Inference of intent proper. From a defendant's action of wrongfully appropriating a check, converting it into a cashier's check, and giving it to third party, a jury could properly infer intent. Hucal v. People, 176 Colo. 529, 493 P.2d 23 (1971).

Unexplained exclusive possession of recently stolen property creates no more than in inference of participation in the offense. People v. Beamer, 668 P.2d 990 (Colo. App. 1983).

Circumstantial evidence insufficient. In a prosecution for larceny and conspiracy to commit larceny the supreme court held the guilty verdicts to be forced verdicts based upon circumstantial evidence insufficient in quantity and quality to support a verdict of guilty. Even had the jury been initially properly instructed on circumstantial evidence, every reasonable hypothesis of innocence was not eliminated by the people's evidence. Drahn v. People, 174 Colo. 157, 483 P.2d 209 (1971).

Evidence held insufficient to convict defendant of theft of car. Union Ins. Soc'y v. Robertson, 88 Colo. 590, 298 P. 1064 (1931); People v. Rogers, 177 Colo. 155, 493 P.2d 21 (1972); People v. Cheney, 180 Colo. 138, 503 P.2d 338 (1972).

In a prosecution for larceny of an automobile where the evidence discloses that a defendant is permitted to take a car by the person in charge thereof, and is furnished license plates for his convenience and protection in driving the same, no felonious taking under this section is shown. Lee v. People, 138 Colo. 321, 332 P.2d 992 (1958).

Sufficient evidence to sustain conviction of theft. Renfrow v. People, 176 Colo. 160, 489 P.2d 582 (1971); Hutton v. People, 177 Colo. 448, 494 P.2d 822 (1972); People v. Drumright, 181 Colo. 137, 507 P.2d 1097 (1973); Lamb v. People, 181 Colo. 446, 509 P.2d 1267 (1973); People v. Diaz, 182 Colo. 369, 513 P.2d 444 (1973); People v. Miller, 37 Colo. App. 294, 549 P.2d 1092 (1976), aff'd, 193 Colo. 415, 566 P.2d 1059 (1977); People v. Maes, 43 Colo. App. 365, 607 P.2d 1028 (1979); People v. Mandez, 997 P.2d 1254 (Colo. App. 1999).

Sufficiency of conversion to constitute larceny. Quinn v. People, 32 Colo. 135, 75 P. 396 (1904); Compton v. People, 89 Colo. 407, 3 P.2d 418 (1931); Moore v. People, 125 Colo. 306, 243 P.2d 425 (1952).

Evidence from which the jury might conclude that defendant had come into possession of stolen property lawfully, that he thereafter learned that such property had been stolen in a burglary, and with full knowledge thereof converted such property to his own use withholding it from its lawful owner, is sufficient to support a conviction of larceny by bailee. Peters v. People, 151 Colo. 35, 376 P.2d 170 (1962).

Negotiation of a check is equivalent to receipt of money, and failure to pay over the money collected for another is a conversion of it. Hucal v. People, 176 Colo. 529, 493 P.2d 23 (1971).

Administrator of estate guilty of embezzlement. Hopkins v. People, 89 Colo. 296, 1 P.2d 937 (1931).

Conviction for embezzlement by a warehouseman reversed when there is no evidence to show that the defendant actually took part in the crime and the prosecution failed to establish that the defendant had some knowledge that the manager had perpetrated the crime. Dressel v. People, 178 Colo. 115, 495 P.2d 544 (1972).

Evidence insufficient to support conviction of false pretenses. Rogers v. People, 161 Colo. 317, 422 P.2d 377 (1966).

Evidence sufficient to support conviction of obtaining property by false pretenses. Shemwell v. People, 62 Colo. 146, 161 P. 157 (1916); Montez v. People, 110 Colo. 208, 132 P.2d 970 (1942).

Evidence sufficient to support conviction of confidence game. Munsell v. People, 122 Colo. 420, 222 P.2d 615 (1950); McBride v. People, 126 Colo. 277, 248 P.2d 725 (1952); Krantz v. People, 150 Colo. 469, 374 P.2d 199 (1962), cert. denied, 372 U.S. 921, 83 S. Ct. 735, 9 L. Ed. 2d 725 (1963); Dodge v. People, 168 Colo. 531, 452 P.2d 759 (1969).

Evidence insufficient to sustain conviction of confidence game. Bomareto v. People, 111 Colo. 99, 137 P.2d 402 (1943); Graham v. People, 126 Colo. 351, 248 P.2d 730 (1952); White v. People, 126 Colo. 365, 249 P.2d 823 (1952); Bevins v. People, 138 Colo. 123, 330 P.2d 709 (1958); Bledsoe v. People, 138 Colo. 490, 335 P.2d 284 (1959).

Evidence insufficient to show specific intent to deprive customers of their money. People v. McClure, 186 Colo. 274, 526 P.2d 1323 (1974).

Evidence insufficient for conviction. People v. Ferrell, 197 Colo. 253, 591 P.2d 1038 (1979).

V. JURY AND INSTRUCTIONS.

Sufficient evidence to go to jury. People v. Gilkey, 181 Colo. 103, 507 P.2d 855 (1973).

Jury determines grade of crime. It is for the jury under proper instructions, and not the trial judge, to weigh and consider the evidence and determine therefrom what grade of crime, if any, was committed. People v. Chapman, 174 Colo. 545, 484 P.2d 1234 (1971).

Where evidence supports misdemeanor offense, to instruct only to felony theft error. Where there was evidence to support the defendant's request for an instruction on a lesser included class 2 misdemeanor offense of theft of goods, it was error for the trial court to instruct the jury only as to felony theft. Beaudoin v. People, 627 P.2d 739 (Colo. 1981).

Defendant is entitled to an instruction on the grade of the offense when there is evidence which tends to reduce the grade. People v. Chapman, 174 Colo. 545, 484 P.2d 1234 (1971).

Instruction on specific intent. Where the trial court adequately instructs the jury on the issue of specific intent required as an element of attempted theft, no error can be assigned. Sandoval v. People, 176 Colo. 414, 490 P.2d 1298 (1971).

Where instruction permits jury to convict of crime of theft without proof of essential element of that crime, intent to permanently deprive another of use and benefit of property, there is plain error and reversal is required. People v. Butcher, 180 Colo. 429, 506 P.2d 362 (1973).

The instruction "the laws of the State of Colorado provide that any person commits theft when he knowingly obtains or exerts unauthorized control over anything of value of another person with intent to deprive such other person permanently of the use or benefit of the thing of value" clearly spells out the intent required to commit the crime of theft. People v. Gilmer, 182 Colo. 96, 511 P.2d 494 (1973).

Erroneously instructing the jury that the defendant must have acted "intentionally" rather than "knowingly" in taking a thing of value from another person was harmless error as to the defendant because it worked to the defendant's benefit in that "intentionally" requires a more serious form of mental culpability. Blehm v. People, 817 P.2d 988 (Colo. 1991).

No plain error where jury not instructed that defendant must know he or she is deceiving the victims. Deception involves the element of intentional misrepresentation with the purpose of misleading and thus such an instruction is redundant and unnecessary. People v. Collie, 995 P.2d 765 (Colo. App. 1999).

Instruction that failed to require a finding that a defendant must know that any exercise of control is without authorization is erroneous. People v. Bornman, 953 P.2d 952 (Colo. App. 1997); Auman v. People, 109 P.3d 647 (Colo. 2005).

While the standard of proof for the crime of theft by deception requires proof that, in reliance upon misrepresentations by the defendant, the victim parted with something of value, the court is not required to separately instruct the jury on the standard if the jury otherwise is instructed in accordance with the theft statute. People v. Pollard, 3 P.3d 473 (Colo. App. 2000).

Instruction could have been interpreted to permit a conviction when the defendant mistakenly believed that she was authorized to take the money and thus was an incorrect statement of the law, but no objection was raised to the jury instruction, the error was not a structural defect, and a review of the evidence found no plain error. People v. Price, 969 P.2d 766 (Colo. App. 1998).

Where issue before jury, affirmative defense instructions must be given. Where an issue of renunciation and abandonment is before a jury, proper instructions on this affirmative defense must be given to the jury. People v. Traubert, 625 P.2d 991 (Colo. 1981).

Relationship of intent and intoxication. Where court's instruction correctly informed the jury that the "intent to permanently deprive" was an element of theft, and further instructed the jury that the defense of intoxication could be considered in determining whether defendant was incapable of forming "the intent to commit the crime charged", when the two instructions are read together it is apparent that the jury was adequately advised of the relationship between the requisite specific intent and the defense of intoxication. People v. Gilmer, 182 Colo. 96, 511 P.2d 494 (1973).

Test applicable to defendant's request for an instruction on the crime of theft is whether there existed a rational basis to acquit him of simple robbery but still convict him of theft; the test is not whether there is a total absence of evidence showing the defendant to be guilty of simple robbery. Graham v. People, 199 Colo. 439, 610 P.2d 494 (1980).

Instructions for crimes of theft and burglary which were phrased in the language of the statutes were sufficient. People v. Bowen, 182 Colo. 294, 512 P.2d 1157 (1973).

Where, at a minimum, defendant committed simple robbery, no theft instruction. Because the uncontroverted evidence before the jury established, at a minimum, that the defendant had committed simple robbery, he was not entitled to an instruction on the crime of theft. Graham v. People, 199 Colo. 439, 610 P.2d 494 (1980).

Required instructions by court. Where the defendant is charged with aggravated robbery and declines the court's offer to instruct on simple robbery, the court is obligated to instruct on the lesser nonincluded offense of theft only if there is no evidence of the defendant's guilt of the lesser included offense of simple robbery. People v. Graham, 41 Colo. App. 390, 590 P.2d 511 (1978), aff'd, 199 Colo. 439, 610 P.2d 494 (1980).

There is no reason for including irrelevant portions of theft statute in instruction, but there is no prejudice to the defendant by their inclusion. People v. Becker, 187 Colo. 344, 531 P.2d 386 (1975).

Instruction on all sections of a theft statute is not prejudicial although not all sections apply to defendant. People v. Pack, 797 P.2d 774 (Colo. App. 1990).

Instruction to jury regarding unexplained, recent possession of stolen property, which indicated to the jury that the burden of proving rightful possession was on the defendant shifted the burden to the defendant to prove his innocence and was prejudicial error. Martinez v. People, 163 Colo. 503, 431 P.2d 765 (1967).

The instruction to the jury that the possession of stolen property recently after the commission of a theft or larceny may be a criminal circumstance tending to show that the person in whose possession it was found is guilty of the crime of larceny unless he has satisfied you from the evidence that he came into possession of the property honestly is prejudicial error. Attwood v. People, 165 Colo. 345, 439 P.2d 40 (1968).

An instruction which permits the jury to infer guilt of either theft or burglary if recent, exclusive and unexplained possession of stolen property was established beyond a reasonable doubt was not defective. People v. Maes, 43 Colo. App. 365, 607 P.2d 1028 (1979).

Instruction on circumstantial evidence should include the essential limiting language that in order to convict on circumstantial evidence alone, circumstances must be such as to exclude every reasonable hypothesis of defendants' innocence. Drahn v. People, 174 Colo. 157, 483 P.2d 209 (1971).

Special instruction on "knowingly" as applied to "without authorization" is not required. People v. Gresham, 647 P.2d 243 (Colo. App. 1981).

Court did not abuse its discretion in supplementing jury instructions by providing a standard dictionary definition of the term "authorization". The court provided a proper definition that fit the facts of the case and related issues the jury needed to resolve. People v. Stellabotte, 2016 COA 106, __ P.3d __.

Failure to instruct on mens rea of theft. Definitional instruction on whether a person acts "knowingly" failed to instruct properly on mens rea of theft, the ulterior crime of burglary, and was plainly erroneous with regard to burglary in that it did not require jury to be satisfied beyond a reasonable doubt that the taking had to be practically certain in order to obtain from the defendant's conduct the determination that the defendant had the requisite culpability for commission of theft. People v. Reed, 692 P.2d 1122 (Colo. App. 1984).

Accessory instruction proper. Where there was evidence presented at trial to the effect that the defendant had stated, prior to the theft, that he would take all the television sets which could be provided, and there was evidence from which a jury could properly infer that the defendant knew that they would be stolen, the evidence was sufficient to permit submission of the theft by taking count to the jury, it being properly instructed as to an accessory becoming liable as a principal. People v. Lamirato, 180 Colo. 250, 504 P.2d 661 (1972).

Accomplice instruction improper. Where witness admitted burglarizing an establishment and delivering articles stolen to defendant who was charged with receiving stolen goods, such witness was not an accomplice and an instruction concerning the testimony of an accomplice was not appropriate. Burns v. People, 148 Colo. 245, 365 P.2d 698 (1961).

Instruction on lesser included offense held sufficient. People v. Mingo, 191 Colo. 155, 551 P.2d 196 (1976).

VI. VERDICT AND SENTENCE.

No equal protection violation where person convicted of class 4 felony theft is punished more severely than a class 4 felony sex offender. People v. Friesen, 45 P.3d 784 (Colo. App. 2001).

General verdict of guilty held sufficient. Where the indictment sets out the value of the property unlawfully obtained, a general verdict of "guilty in manner and form as charged in the indictment", is sufficient to support a conviction without a finding of the value of the property taken. Montez v. People, 110 Colo. 208, 132 P.2d 970 (1942); Archer v. People, 129 Colo. 313, 269 P.2d 700 (1954).

Trial court is without authority to amend or alter jury finding of value where the jury by its verdict fixes the value of the property taken in the amount of $325. People v. Chapman, 174 Colo. 545, 484 P.2d 1234 (1971).

Larceny from person is felony regardless of value. Where crime charged was larceny from the person, a statement by victim of the amount of money taken from him was immaterial, and it was error to impose sentence as for misdemeanor because amount taken from person was less than $50. People v. McIntosh, 149 Colo. 555, 369 P.2d 987 (1962).

Verdicts of guilt as to theft, but not as to burglary, are consistent. Where evidence linking the defendant with burglary was conflicting or was rebutted, but the evidence clearly established that the defendant was in possession of property recently taken in a burglary, there was evidence to sustain a conviction of larceny and the verdicts of not guilty of burglary but guilty of larceny were not inconsistent as being irreconcilable with the evidence of each case. Renfrow v. People, 176 Colo. 160, 489 P.2d 582 (1971).

Verdict of innocent as to theft but not as to conspiracy to commit theft consistent. Where the evidence under which the jury acquitted the defendant of the charge of theft was separate and independent from evidence before the jury on the charge of conspiracy to commit theft, which jury convicted defendant of, conspiracy conviction was not an inconsistent verdict. People v. Forbes, 185 Colo. 410, 524 P.2d 1377 (1974).

Verdicts held not inconsistent. Since the statutory elements of aggravated robbery and theft over $200 are different, jury verdicts convicting a defendant of aggravated robbery of an employee but acquitting the defendant of theft from the employer are not inconsistent and repugnant. People v. Williams, 40 Colo. App. 30, 569 P.2d 339 (1977).

A conviction for both robbery and theft from the person of another is a plainly inconsistent verdict. Pursuant to 18-4-301, robbery requires the "use of force, threats, or intimidation" while theft from the person of another, pursuant to this section, is "by means other than the use of force, threat, or intimidation". The appropriate remedy is a new trial. People v. Delgado, 2016 COA 174, 410 P.3d 697.

Sentence concurrent with life sentence proper. Where the defendant was sentenced for life imprisonment for first degree murder and lesser sentences for first degree burglary and theft which the jury found he had committed, and all sentences were imposed concurrently with the life sentence which the jury ordered, there was no error. People v. Salas, 189 Colo. 111, 538 P.2d 437 (1975).

Consecutive sentences for burglary and for larceny are improper. Maes v. People, 169 Colo. 200, 454 P.2d 792 (1969).

When the burglary and the larceny involve one transaction, typical of many burglary-larceny situations, double, consecutive sentencing for the same transaction is inherently wrong and basically unjust, and evades the legislative intent. Maynes v. People, 169 Colo. 186, 454 P.2d 797 (1969).

All separately prosecutable thefts committed within a six-month period are a unit of prosecution for double jeopardy purposes. Two convictions for theft within the same six-month period must be merged into one conviction. People v. Gardner, 250 P.3d 1262 (Colo. App. 2010).

Defendant who pled guilty to a single count of theft in return for a dismissal of other counts may not be ordered to pay restitution to the victims in the counts that were dismissed. When an offense requires proof of the identity of a particular victim, the court may not order restitution to another. People v. Armijo, 989 P.2d 224 (Colo. App. 1999).

When defendant's actions do not constitute theft from the person of another, the defendant may be convicted of theft, but the court must enter the lowest level of a theft charge if the jury does not find the value of the items stolen. People v. Smith, 121 P.3d 243 (Colo. App. 2005).

Defendant entitled to benefit of amendatory legislation. In 2013, the general assembly amended the theft statutes making theft of more than $5,000 but less than $20,000 a class 5 felony. Previously, theft of more than $1,000 and less than $20,000 was a class 4 felony. Because defendant was sentenced in 2014, defendant should have been sentenced for a class 5 felony, not a class 4 felony. People v. Stellabotte, 2016 COA 106, __ P.3d __; People v. Patton, 2016 COA 187, __ P.3d __.