People v. Brennan

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
July 24, 2025

2025COA68

No. 23CA1865, People v. Brennan — Crimes — Unauthorized
Use of a Financial Transaction Device — Identity Theft;
Criminal Law — State Jurisdiction

A division of the court of appeals considers the novel issue of

whether a Colorado court can exercise jurisdiction over a defendant

for unauthorized use of a financial transaction device and identity

theft based on the defendant’s solicitation, from a state other than

Colorado, of out-of-state services using a Colorado resident’s credit

card without the resident’s authorization. The division holds that,

because the conduct elements of the charged offenses exclusively

occurred out of state, a Colorado court lacks jurisdiction over the

defendant’s prosecution. It accordingly vacates the defendant’s

judgment of conviction.
COLORADO COURT OF APPEALS 2025COA68

Court of Appeals No. 23CA1865
Douglas County District Court No. 22CR1004
Honorable Christopher J. Munch, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Erin Brennan,

Defendant-Appellant.

JUDGMENT VACATED

Division VII
Opinion by JUDGE LIPINSKY
Pawar and Lum, JJ., concur

Announced July 24, 2025

Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney
General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

The Noble Law Firm, LLC, Antony Noble, Lakewood, Colorado, for Defendant-
Appellant
¶1 Americans reported more than 440,000 cases of credit card

fraud in 2022. Fed. Trade Comm’n, Consumer Sentinel Network

Data Book 2024, at 15 (2025), https://perma.cc/4APJ-JXNA.

Christopher Caltabiano was one of them.

¶2 Caltabiano, a Colorado resident, did not fall victim to an

anonymous scammer launching scores of phishing emails from a

computer in a distant land. Rather, the unauthorized user of

Caltabiano’s Mastercard (the card) was his ex-wife, defendant, Erin

Brennan, a New York resident. And Brennan did not use the card

to fund a spending spree; she used it to pay a portion of two of their

children’s expenses at a summer day camp, Camp Ramaquois, in

Pomona, New York.

¶3 Brennan was charged with and convicted of two crimes in

Colorado — unauthorized use of a financial transaction device

(unauthorized use) in violation of section 18-5-702(1)(b), (3)(g),

C.R.S. 2024, and identity theft in violation of section 18-5-902(1)(a),

C.R.S. 2024 — for using the card without Caltabiano’s permission.

¶4 On appeal, Brennan argues that the Colorado district court

lacked jurisdiction over her because

1
• she allegedly instructed Camp Ramaquois to use the card

for a portion of the children’s expenses during a call from

one New York location to another;

• she therefore only used Caltabiano’s “financial device” in

New York;

• she formed the requisite intent for the two offenses while

in New York; and

• the impact of her use of the card on Caltabiano was not

an element of either unauthorized use or identity theft.

¶5 This is the first decision to consider whether a Colorado court

can exercise jurisdiction over a defendant for unauthorized use and

identity theft based on the defendant’s solicitation, from a state

other than Colorado, of out-of-state services using a Colorado

resident’s credit card without the resident’s authorization.

¶6 We agree with Brennan and vacate her judgment of conviction.

I. Background

¶7 The underlying facts are largely undisputed.

¶8 During their marriage, Brennan and Caltabiano lived in New

York with their three children. Brennan and Caltabiano were

divorced in New York in 2019. Following the divorce, Brennan and

2
the children remained in New York, while Caltabiano relocated to

Colorado.

¶9 Brennan and Caltabiano’s divorce settlement specified, among

other terms, that Caltabiano would be responsible for paying sixty-

five percent of all mutually agreed-upon extracurricular expenses

for the children, including summer camp expenses.

¶ 10 Two of the children attended Camp Ramaquois in 2021.

Caltabiano paid a portion of the children’s camp expenses that year.

He uploaded the card information to Camp Ramaquois’s “system,”

but he never instructed Camp Ramaquois “to take [the] card off a

file or to remove it.”

¶ 11 In December 2021, Brennan emailed Caltabiano about the

estimated cost of the children’s summer camps in 2022. Caltabiano

responded that he was not prepared to authorize any summer

camps for the coming year because he was still paying off the 2021

camp expenses and was not comfortable “putting on credit card

debt.” Brennan said she wanted to enroll the children before spots

filled up, and Caltabiano responded, “I am not agreeing to send

them to these camps as they are too costly and alternatives can be

found that are more affordable.”

3
¶ 12 In January 2022, Brennan sent Caltabiano an updated budget

proposal for the children’s camp expenses. Caltabiano said he

would pay fifty percent of the expenses and suggested sending the

children to a less expensive day camp in Colorado. Brennan

responded that the children wanted to attend camp in New York

with their friends.

¶ 13 In April, Brennan informed Caltabiano that she had registered

two of the children in Camp Ramaquois, noted that he “had put

[the] card down for [Camp] Ramaquois” the prior year, and said she

could “put a portion on [the card] and give them [hers].” Caltabiano

responded that he had “always contested the reasonableness of

these charges,” he had “no money,” and Brennan could “get

compensated when/if [Caltabiano received] a bonus in December.”

¶ 14 The next month, Caltabiano discovered a $10,453.46 charge

for Camp Ramaquois on his credit card statement. He testified at

trial that he did not authorize Brennan to charge this sum to the

card. Caltabiano told Camp Ramaquois that he had not authorized

the charge and requested a refund. When Camp Ramaquois would

not reverse the charge, Caltabiano unsuccessfully sought a credit

for the disputed charge from the credit card company. He later

4
reported to Colorado law enforcement authorities that Brennan had

used the card without authorization. She was charged with

unauthorized use and identity theft.

¶ 15 Brennan’s counsel filed a pretrial motion to dismiss for lack of

jurisdiction pursuant to section 18-1-201, C.R.S. 2024. The court

summarily denied the motion, without explanation. Brennan

unsuccessfully raised the issue again at trial. The court concluded

that it had jurisdiction because there was a “sufficient nexus”

between Brennan’s conduct and the elements of unauthorized use

and identity theft. The court placed significant weight on Brennan’s

knowledge that Caltabiano resided in Colorado at the time of the

unauthorized charge.

¶ 16 Brennan testified at trial that, although she authorized Camp

Ramaquois to charge thirty-five percent of the children’s expenses

to her own credit card, she did not instruct the camp to charge the

balance to the card. Brennan said that she did not discuss

payment of the remaining balance with Camp Ramaquois, saying,

“[t]hey didn’t ask me anything” about covering the balance.

¶ 17 After the jury convicted Brennan of unauthorized use and

identity theft, the court sentenced her to one year in the custody of

5
the Department of Corrections, suspended on the conditions that

she pay a $5,000 fine, take a victim empathy class, and make full

restitution.

¶ 18 Brennan raises a single issue in this appeal — whether her

judgment of conviction should be reversed because the court lacked

jurisdiction over the case under section 18-1-201. We now turn to

the law governing this appeal.

II. Law

A. Standard of Review

¶ 19 “Jurisdiction is a question of law that we review de novo.”

People v. Nevelik, 2021 COA 30, ¶ 10, 491 P.3d 492, 493.

B. The Jurisdictional Statute

¶ 20 Section 18-1-201 sets forth the limits on Colorado courts’

subject matter jurisdiction in criminal cases. The statute makes

clear that the courts in this state cannot exercise jurisdiction over

every criminal case involving a Colorado-based victim. The statute

provides:

(1) A person is subject to prosecution in this
state for an offense which he commits, by his
own conduct or that of another for which he is
legally accountable, if:

6
(a) The conduct constitutes an offense and is
committed either wholly or partly within the
state . . . .

§ 18-1-201 (emphasis added). An offense is committed “partly

within this state” if (1) “conduct occurs in this state which is an

element of an offense,” or (2) “the result of conduct in this state is

such an element.” § 18-1-201(2).

¶ 21 “The definition of an offense may include conduct,

circumstances, or result elements.” People v. Baca, 852 P.2d 1302,

1305 (Colo. App. 1992); see Model Penal Code § 1.13(9) (Am. L. Inst.

1985). Conduct elements describe “the nature of the forbidden

conduct” and include both the underlying action or omission and

its accompanying state of mind. Baca, 852 P.2d at 1305;

§ 18-1-501(2), C.R.S. 2024. “[A]ttendant circumstance[]” elements

— which do not confer jurisdiction on a court, see § 18-1-201 —

include “the circumstances surrounding [a prohibited act’s]

commission . . . as distinguished from any element requiring that

such act have a particular effect, or cause a particular result.”

People v. Childress, 2015 CO 65M, ¶¶ 21, 29, 363 P.3d 155, 161,

164. Result elements indicate that causation is part of a crime’s

actus reus. See Dep’t of Nat. Res. v. 5 Star Feedlot, Inc., 2021 CO

7
27, ¶ 69, 486 P.3d 250, 265 (Hood, J., dissenting) (citing 1 Paul H.

Robinson, Criminal Law Defenses § 88 (2020)) (“Causation is a part

of a crime’s actus reus whenever the General Assembly prohibits a

specific result.”).

¶ 22 Section 18-1-201(3) provides that “[w]hether an offender is in

or outside of the state is immaterial to the commission of an offense

based on an omission to perform a duty imposed by the law of this

state.” (Emphasis added.)

¶ 23 Although no previous Colorado case has applied section

18-1-201 to prosecutions for unauthorized use or identity theft,

divisions of this court have considered whether a court in this state

could exercise jurisdiction over prosecutions for other offenses

involving out-of-state conduct. We review those cases next.

C. The Cases Applying Section 18-1-201

¶ 24 Fifty years ago, a division of this court decided that a Colorado

court could exercise jurisdiction over a theft case involving the sale

of stolen power saws in Colorado. See People v. Martinez, 543 P.2d

1290, 1291 (Colo. App. 1975). In Martinez, a Colorado resident and

his friend purchased the saws in Colorado from Martinez and his

codefendant, who displayed them in the trunk of the codefendant’s

8
vehicle. Id. The saws had been stolen from a store in New Mexico.

Id. at 1291-92.

¶ 25 On appeal, Martinez argued that the Colorado court lacked

jurisdiction over his case because he was charged with “theft by

taking,” and the “taking” had occurred in New Mexico. Id. at 1292.

The division disagreed:

The elements of theft as charged here are
knowingly obtaining or exercising control over
a thing of value of another without
authorization and with the intent to deprive
another permanently of the use or benefit of
his property. There was evidence presented
that [Martinez] exercised control over these
chain saws in Colorado without authorization.
Thus, the offense of theft was “committed
partly within this state” as contemplated by
[section] 18-1-201(2) . . . .

Id. Accordingly, a person who exercises control over stolen goods in

Colorado can be prosecuted for theft in this state.

¶ 26 In contrast, another division of this court held that no element

of theft occurred in Colorado when, pursuant to an oral agreement,

the defendant took possession of a Colorado resident’s goods, sold

them in another state, and failed to pay the sales proceeds to the

Coloradan. See People v. Tinkle, 714 P.2d 919, 920 (Colo. App.

1985). In Tinkle, the trial court concluded it could exercise

9
jurisdiction over the case because the defendant’s actions in

Colorado — taking possession of the goods after agreeing to sell

them for the victim in another state — whether “criminal or not,

were part and parcel of the theft.” Id. The division squarely

rejected the trial court’s “part and parcel” rationale because the

place where a defendant came into possession of the thing of value

is “not an element of the crime of theft.” Id.

¶ 27 Almost thirty years later, in People v. Chase, the division held

that a Colorado court could exercise jurisdiction over the

prosecution of a defendant charged with stalking for sending

threatening emails to current and former personnel at his housing

complex in Grand County. 2013 COA 27, ¶¶ 2, 5-7, 411 P.3d 740,

744-45. In the emails, the defendant threatened to retaliate against

the victims, who were all Colorado residents, in this state if they did

not take an action in Colorado — remove an eviction notice from the

defendant’s door. Id. at ¶¶ 4-7, 411 P.3d at 745. But the defendant

sent the emails from Boston, and the recipients received them while

on vacation in Baltimore. Id. at ¶ 24, 411 P.3d at 747. Based on

these facts, the defendant argued that the Colorado court lacked

jurisdiction over the case. Id.

10
¶ 28 As relevant here, the stalking statute that the division

analyzed in Chase required the prosecution to prove that the

defendant knowingly made a credible threat to another person. Id.

at ¶ 20, 411 P.3d at 747 (citing § 18-9-111(4)(b)(II), C.R.S. 2008).

The version of the stalking statute in effect at the time defined a

“credible threat” as a threat that would “cause a reasonable person

to be in fear for the person’s safety.” Id. at ¶ 21, 411 P.3d at 747

(quoting § 18-9-111(4)(c)(II), C.R.S. 2008).

¶ 29 The division reasoned that the critical analysis was “not where

the e-mails were written or read, but rather whether the result of

Chase’s conduct, namely, causing a reasonable person to be in fear

for his or her safety, occurred, at least in part, in Colorado.” Id. at

¶ 24, 411 P.3d at 747. It concluded that the result of the

defendant’s conduct partly occurred in Colorado primarily because

the threatening emails would have caused reasonable people in the

victims’ position to be in fear for their safety in Colorado. Id. at

¶ 26, 411 P.3d at 748; see also People v. Jacobs, 91 P.3d 438, 440,

442 (Colo. App. 2003) (holding that the defendant could be

prosecuted in Colorado for soliciting for child prostitution when, in

response to a California detective’s website offering “very young . . .

11
escorts,” the defendant sent emails proposing to engage in sexual

acts with a twelve-year-old girl in Colorado).

¶ 30 In contrast, in Nevelik, the defendant, a Texas resident, had no

contact with the Colorado victims. Nevelik, ¶ 1, 491 P.3d at 492.

The victims in that case lost more than $20,000 through a wire

fraud scheme, and the defendant was a “money mule” hired to move

the victim’s funds from the defendant’s bank account to the

instigators’ accounts. Id. at ¶¶ 1-2, 5-7, 491 P.3d at 492-93. The

defendant’s conviction for money laundering rested on, as relevant

here, his role in conducting a financial transaction that involved

money he knew was, or believed to be, the proceeds of a criminal

offense, with the intent to promote the commission of a criminal

offense. Id. at ¶ 12, 491 P.3d at 493-94 (citing § 18-5-309(1)(a)(I),

C.R.S. 2024).

¶ 31 The division held that Colorado lacked jurisdiction over the

defendant’s prosecution because “the essential elements of money

laundering occurred outside of Colorado” and because the

defendant “never traveled to, emailed, telephoned, or had any other

contact with anyone in Colorado, nor did he commit any of the acts

12
in furtherance of a money laundering offense in Colorado.” Id. at

¶¶ 14, 16, 491 P.3d at 494.

¶ 32 These authorities instruct that, when conducting a

jurisdictional analysis, we must closely examine the material

elements of the charged offenses and disregard facts not subsumed

within those elements. Accordingly, we consider whether Brennan

engaged in conduct in Colorado that constituted an element of

either unauthorized use or identity theft; whether the result of her

conduct was an element of either offense (and if so, whether the

result occurred in this state); and whether Brennan’s conviction

was based on her failure to perform a duty required under Colorado

law. We therefore turn to the elements of the unauthorized use and

identity theft statutes.

D. The Unauthorized Use and Identity Theft Statutes

1. Unauthorized Use of a Financial Transaction Device

¶ 33 (1) A person commits unauthorized use of a
financial transaction device if [s]he uses
such device for the purpose of obtaining
cash, credit, property, or services or for
making financial payment, with intent to
defraud, and with notice that . . .

....

13
(b) For any reason h[er] use of the financial
transaction device is unauthorized either by the
issuer thereof or by the account holder.

(2) For purposes of paragraphs (a) and (b) of
subsection (1) of this section, “notice” includes
either notice given in person or notice given in
writing to the account holder.

§ 18-5-702 (emphases added).

2. Identity Theft

¶ 34 (1) A person commits identity theft if he or
she:

(a) Knowingly uses the personal identifying
information, financial identifying
information, or financial device of another
without permission or lawful authority with
the intent to obtain cash, credit, property,
services, or any other thing of value or to
make a financial payment . . . .

§ 18-5-902.

III. Analysis

A. Colorado Lacks Jurisdiction Over This Case Because
All the Conduct Elements Occurred in New York and
the Statutes Governing the Offenses
Do Not Include Result Elements

¶ 35 We conclude that the court lacked subject matter jurisdiction

over Brennan’s prosecution because none of her conduct forming a

material element of either offense occurred in Colorado, and the

14
unauthorized use and identity theft statutes do not include a result

element. See § 18-1-201(2).

¶ 36 The following tables show the elements of unauthorized use

and identity theft, the classification of each element, and where in

this case the conduct occurred:

Elements of Section Type of Element Location
18-5-702(1)(b): (Conduct, Circumstance,
Unauthorized Use or Result)

1. Use of a financial Conduct New York
transaction device

2. for the purpose of Conduct New York
obtaining cash,
credit, property, or
services or for
making financial
payment

3. with intent to Conduct New York
defraud

4. and with notice that Circumstance N/A
her use of the
financial transaction
device is
unauthorized by the
account holder

(Because attendant circumstance elements — unlike conduct or

result elements — do not confer jurisdiction, see § 18-1-201, we

15
need not determine the geographic location of the attendant

circumstance elements of the charged offenses.)

¶ 37 Brennan notes that the “for the purpose” element of the

unauthorized use statute could be viewed as a result element to the

extent section 18-5-702 requires that the “defendant in fact

obtain[ed] possession or use of cash, credit, property, or services

through the unauthorized use of a financial transaction device.”

People v. Novitskiy, 81 P.3d 1070, 1073 (Colo. App. 2003),

abrogated on other grounds by Reyna-Abarca v. People, 2017 CO 15,

¶¶ 34-36, 390 P.3d 816, 821-22. But Brennan reads too much into

the element’s language, particularly as the Novitskiy division did

not consider the classification of the unauthorized use statute’s

elements. But even if “for the purpose” could be deemed a result

element, our analysis would not change because Brennan engaged

in conduct in New York for the purpose of obtaining Camp

Ramaquois’s services in New York.

16
Elements of Section Type of Element Location
18-5-902(1)(a): Identity (Conduct, Circumstance,
Theft or Result)

1. Knowingly Conduct New York

2. uses the financial Conduct New York
device of another

3. without permission Circumstance N/A
or lawful authority

4. with the intent to Conduct New York
obtain cash, credit,
property, services, or
any other thing of
value or to make a
financial payment

¶ 38 We recognize that the pattern jury instructions for

unauthorized use and identity theft break down the elements of the

offenses even further — for example, separating “with intent to

defraud” into two elements (“with intent” and “to defraud”). COLJI-

Crim. 5-7:01 (2024); see COLJI-Crim. 5-9:01 (2024). However, we

decline to take such a granular approach to the plain language of

the unauthorized use and identity theft statutes. See People v.

Hernandez, 2025 CO 13, ¶ 9, 566 P.3d 995, 997 (We give statutes

their “plain and ordinary meaning.” (quoting People v. Steen, 2014

CO 9, ¶ 9, 318 P.3d 487, 490)); see also Krueger v. Ary, 205 P.3d

17
1150, 1154 (Colo. 2009) (“[T]he pattern instructions are not law, not

authoritative, and not binding on this court.”).

¶ 39 In any event, no conduct elements occurred in Colorado

because Brennan did not improperly obtain the card information in

Colorado. Nor did she ever even possess that information.

Caltabiano had previously provided it to Camp Ramaquois without

restriction. Brennan merely instructed Camp Ramaquois to use the

card information on file to charge Caltabiano for his share of the

two children’s camp expenses.

¶ 40 It is of no consequence that, as the People point out,

Caltabiano’s physical credit card was located in Colorado because,

again, Brennan never had possession of it. The financial

transaction device that Brennan allegedly used without

authorization was an “account number representing a financial

account,” § 18-5-701(3), C.R.S. 2024, because she instructed the

New York camp to use the credit card information in its file.

¶ 41 The prosecution presented no evidence that Brennan formed

the mental state elements of the unauthorized use and identity theft

statutes in Colorado. Thus, her unlawful use of a financial device

18
involved calling the camp and telling it to use a credit card it

already had on file — conduct that solely occurred in New York.

¶ 42 We are not persuaded by the People’s argument that

Brennan’s knowledge that Caltabiano resided in Colorado and her

email correspondence to him conferred jurisdiction in Colorado. We

disagree with the People’s contention that, under Chase, Brennan’s

knowledge of the victim’s state of residence was sufficient to

establish jurisdiction in this state.

¶ 43 We acknowledge that, in Chase, the division quoted with

approval the United States Supreme Court’s statement in

Strassheim v. Daily, 221 U.S. 280, 285 (1911), that “[a]cts done

outside a jurisdiction, but intended to produce and producing

detrimental effects within it, justify a state in punishing the cause

of the harm as if he had been present at the effect, if the state

should succeed in getting him within its power.” Chase, ¶ 29, 411

P.3d at 748. But the facts in Chase and Strassheim, as well as the

Colorado jurisdictional statute, caution against an overly broad

reading of this language.

¶ 44 As noted above, in Chase, there were numerous connections

between the elements of the stalking charge of which the defendant

19
was convicted and Colorado. (Although the defendant was also

convicted of three misdemeanor harassment counts, he did not

challenge those convictions on jurisdictional grounds. Id. at ¶¶ 1,

11, 411 P.3d at 744, 746.) The defendant sent threatening emails

to victims he knew resided in Colorado, even though they received

the emails while in another state; he knew where the victims lived

in Colorado and that they would be returning to this state; he

demanded that the victims take specific actions in Colorado; he

needed to be in Colorado to determine whether the victims complied

with his demands; and he threatened to retaliate against the

victims in Colorado. Chase, ¶¶ 2-7, 26, 411 P.3d at 744-75.

¶ 45 Significantly, the stalking statute that the division discussed

in Chase included a result element with a strong tie to Colorado.

See id. at ¶ 22, 411 P.3d at 747 (“[T]he elemental conduct of making

a credible threat” for purposes of the stalking statute “is defined by

its result of causing a reasonable person to be in fear as

described.”). The Chase division concluded there was sufficient

evidence to establish that the defendant’s emailed threats “would

have caused a reasonable person in the position of [the victims] to

20
be in fear for their own safety and the safety of other persons in

Colorado.” Id. at ¶ 26, 411 P.3d at 748 (emphasis added).

¶ 46 Unlike the stalking offense analyzed in Chase, the offenses of

which Brennan was convicted did not include result elements,

much less result elements that occurred, in whole or in part, in

Colorado. Brennan’s transmission of emails to Caltabiano in

Colorado was not an element of either charged offense: The

prosecution was not required to establish that Brennan

communicated with Caltabiano to prove that she committed

unauthorized use or identity theft. Brennan could have been

convicted without evidence of the emails. In sum, we need not

consider whether any result of Brennan’s conduct occurred in

Colorado because neither the unauthorized use nor the identity

theft statute includes a result element. See § 18-1-201(2).

¶ 47 Similarly, the facts in Strassheim do not support the

conclusion that a state may exercise jurisdiction over a criminal

defendant solely because the defendant knew that the victim

resided in the forum state, even if the underlying criminal statute

does not include a result element linked to the forum. In

Strassheim, the United States Supreme Court held that a Michigan

21
court could exercise jurisdiction over the defendant’s criminal case

because he committed an “overt act” while physically present in

Michigan. 221 U.S. at 285. Thus, allowing a state to prosecute a

criminal case solely because the defendant knew the victim resided

in that state would unreasonably expand the sweep of jurisdictional

statutes such as section 18-1-201.

¶ 48 The facts in this case are akin to those in Nevelik, in which

none of the defendant’s actions occurred in Colorado. Nevelik,

¶¶ 14, 16, 491 P.3d at 494. Although, unlike the defendant in

Nevelik, Brennan knew the victim’s identity and his state of

residence, those facts are insignificant because such knowledge was

not an element of either unauthorized use or identity theft.

¶ 49 The court’s rationale for exercising jurisdiction — that there

was a “sufficient nexus” between Brennan’s conduct and the

elements of the unauthorized use and identity theft statutes —

tracked the trial court’s determination in Tinkle that the defendant’s

actions in Colorado were “part and parcel” of the charged offense.

714 P.2d at 920. But the division in Tinkle rejected that reasoning

on appeal, and the “sufficient nexus” analysis fares no better here.

22
Section 18-1-201 cabins our jurisdictional analysis to the specific

elements of the charged offenses.

¶ 50 Because no conduct related to any element of the offenses of

which Brennan was convicted occurred in Colorado, the court erred

by exercising jurisdiction over Brennan’s case. See § 18-1-201(2).

B. Brennan Did Not Fail to Perform
a Duty Required Under Colorado Law

¶ 51 The People alternatively argue that, because Brennan did not

obtain Caltabiano’s authorization to use the card, she engaged in

unauthorized use and identity theft based on her omission to

perform a duty imposed by Colorado law. See § 18-1-201(3).

¶ 52 To support this argument, the People cite People v. Haynie, a

parental kidnapping case arising from the defendant father’s breach

of his duty under the subject divorce decree to timely return the

children to their mother. 826 P.2d 371, 373 (Colo. App. 1991). But

Brennan did not fail to perform a duty imposed by Colorado law.

¶ 53 Unlike the father in Haynie, Brennan did not violate the law by

not seeking Caltabiano’s authorization to use the card before Camp

Ramaquois charged it for the children’s expenses. The elements of

unauthorized use and identity theft do not require the user of the

23
financial device to take the initial affirmative step of seeking

authorization to use the device. Rather, they prohibit the

intentional or knowing use of those devices to make an

unauthorized payment. Thus, a shopper who discovers a credit

card on the floor of a grocery store does not violate the law by failing

to hunt down its owner to ask for permission to use the card. The

shopper can violate the unauthorized use and identity theft statutes

simply by using the credit card with the knowledge that the shopper

lacks permission to do so.

¶ 54 The Florida and Massachusetts cases on which the People rely

are inapposite, either because the elements of the charged offenses

included an affirmative duty to obtain the victim’s consent or

because the state’s jurisdictional law materially differs from section

18-1-201. See State v. Roberts, 143 So. 3d 936, 937-38 (Fla. Dist.

Ct. App. 2014) (holding that a Florida court had jurisdiction over an

Indiana defendant’s prosecution for violating Florida’s identity theft

statute because one of its elements requires the use of another’s

personal information “without first obtaining that individual’s

consent,” constituting an omission of a duty imposed by Florida

law) (citation omitted); Commonwealth v. Thompson, 50 N.E.3d 845,

24
857-59 (Mass. App. Ct. 2016) (addressing a statute that, like the

Florida statute, contained a failure to obtain consent element and

applying the Massachusetts rule that a court can exercise

jurisdiction over a criminal case if the defendant’s conduct had

“detrimental effects” in the state, without considering whether such

effects must be an element of the offense).

¶ 55 Thus, the court could not exercise jurisdiction over Brennan’s

case on the grounds that she failed to perform a legal duty. Neither

the unauthorized use nor the identity theft statute imposes an

affirmative duty that the defendant obtain the victim’s consent

before using the victim’s financial device.

IV. Disposition

¶ 56 The judgment of conviction is vacated, and therefore, the

district court must dismiss the charges against Brennan.

JUDGE PAWAR and JUDGE LUM concur.

25