18-5-903. Criminal possession of a financial device.

Statute text

(1) A person commits criminal possession of a financial device if the person has in his or her possession or under his or her control any financial device that the person knows, or reasonably should know, to be lost, stolen, or delivered under mistake as to the identity or address of the account holder.

(2) (a) Except as provided in subsection (2)(c) of this section, criminal possession of one or more financial devices is a class 2 misdemeanor.

(b) (Deleted by amendment, L. 2023.)

(c) Criminal possession of three or more financial devices, of which at least two are issued to different account holders, is a class 5 felony.

History

Source: L. 2006: Entire part added, p. 1323, 8, effective July 1. L. 2021: (2)(a) amended, (SB 21-271), ch. 462, p. 3191, 254, effective March 1, 2022. L. 2023: (2) amended, (HB 23-1293), ch. 298, p. 1787, 23, effective October 1.

Annotations

Editor's note: Section 77 of chapter 298 (HB 23-1293), Session Laws of Colorado 2023, provides that the act changing subsection (2) applies to offenses committed on or after October 1, 2023.

Annotations

 

ANNOTATION

Annotations

Annotator's note. Since 18-5-903 is similar to repealed 18-5-703, a relevant case construing that provision has been included in the annotations to this section.

Because this section is worded in the disjunctive, it includes both a mental culpability offense and a strict liability offense. The court did not err in allowing the prosecution to amend the information to charge the defendant only with the strict liability alternative. People v. Stevenson, 881 P.2d 383 (Colo. App. 1994).

This section is not facially unconstitutional based on an overbreadth argument, because possession of a stolen credit transaction device is neither a fundamental right nor constitutionally protected conduct. People v. Stevenson, 881 P.2d 383 (Colo. App. 1994).

This section is not unconstitutionally void for vagueness, because it adequately sets out the circumstances under which a person commits the strict liability offense of possession of a lost or stolen credit transaction device. People v. Stevenson, 881 P.2d 383 (Colo. App. 1994).

Evidence insufficient to support conviction for criminal possession of a financial device - four or more devices with two victims. Prosecution failed to prove that one of the financial devices possessed by defendant, a gift card with another person's name but no available funds, was capable of being used to obtain anything of value. People v. Reed, 2013 COA 113, 338 P.3d 364.

Evidence was sufficient, however, to support conviction on the lesser included offense of criminal possession of a financial device - four or more devices with one victim. Guilt on the lesser offense is implicit and part of the jury's verdict when all of the elements of a lesser included offense are included in the more serious offense. People v. Reed, 2013 COA 113, 338 P.3d 364.