People v. Brennan.
2025 COA 68. No. 23CA1865. Unauthorized Use of a Financial Transaction Device—Identity Theft—Where Elements of Offense Occurred—State Jurisdiction.
July 24, 2025
Caltabiano is a Colorado resident. His ex-wife, Brennan, is a New York resident. Brennan used Caltabiano’s Mastercard (the card) to pay $10,453.46 for part of their children’s summer day camp expenses at a New York camp. Brennan is not an authorized card user, and she was charged in Colorado with unauthorized use of a financial transaction device (unauthorized use) and identity theft for using the card without Caltabiano’s permission. Brennan’s counsel moved pretrial, and again at trial, to dismiss the charges for lack of jurisdiction under CRS § 18-1-201. The district court denied both motions, concluding that there was a sufficient nexus between Brennan’s conduct and the statutory elements of the charged offenses. Brennan was convicted as charged.
On appeal, Brennan argued that her judgment of conviction should be reversed because the court lacked jurisdiction over her case under § 18-1-201. In accordance with relevant Colorado case law that has considered whether a Colorado court could exercise jurisdiction over prosecutions for other offenses involving out-of-state conduct, the court of appeals considered whether Brennan engaged in conduct in Colorado that was an element of either offense; whether the result of her conduct was an element of either offense and, if so, whether the result occurred in Colorado; and whether Brennan’s conviction was based on her failure to perform a duty required under Colorado law. Here, no conduct elements occurred in Colorado because Brennan did not improperly obtain the card information in Colorado. Further, Brennan never possessed the card information because Caltabiano had previously provided it to the camp without restriction, and Brennan simply instructed the camp to use the card information on file to charge Caltabiano for his share of the camp expenses. And the fact that Brennan knew the victim’s identity and his state of residence is insignificant because such knowledge was not an element of either offense. Moreover, the court could not exercise jurisdiction over Brennan’s case on grounds that she failed to perform a legal duty because neither the unauthorized use nor the identity theft statute imposes an affirmative duty on the defendant to obtain the victim’s consent before using the victim’s financial device. Because no conduct related to any element of the offenses that Brennan was convicted of occurred in Colorado, the district court lacked subject matter jurisdiction over Brennan’s prosecution.
The judgment of conviction was vacated.