Colorado Cases May 23, 2024: People v. Thacker

Case Description

1

NOT PUBLISHED PURSUANT TO C.A.R. 35(e).

Eagle County District Court No. 19CR78 Honorable Reed W. Owens, Judge

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

OPINION

BROWN, JUDGE

2

¶ 1 A jury found defendant, Andrew Carlton Thacker, guilty of one count of securities fraud and one count of theft by deception after he convinced the victim to give him $259,000 to invest in the "Tier One trading platform" and then used the victim's money to buy an Audi, to pay a personal tax lien and other personal expenses, and to fund his business partner in Mexico. Thacker's defense was that he borrowed money from the victim as a personal loan and that he believed in good faith he could repay the victim with funds he expected to obtain through a bank guarantee that, unbeknownst to him, was fraudulent.

¶ 2 On appeal, Thacker contends that the district court erred by (1) denying his motion to allow virtual testimony; (2) instructing the jury on securities fraud in a way that created a variance from the prosecution's bill of particulars; and (3) denying his motion to suppress evidence obtained pursuant to a search warrant. We affirm the judgment of conviction.

I. Virtual Testimony

¶ 3 We first consider whether the district court erred by denying Thacker's motion to allow three of his witnesses - Michael Klink, Miguel Angel Garcia, and Tim Langenfeld - to give virtual

3

testimony at trial. Thacker contends that the court abused its discretion because these witnesses had critical testimony to provide and "lived outside the continental United States and could not travel to Colorado during the COVID-19 pandemic." We conclude the court did not abuse its discretion.

A. Generally Applicable Law and Standard of Review

¶ 4 "In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by law." Crim. P. 26; see People v. Casias , 2012 COA 117, ¶ 19 (Crim. P. 26 "protects not only a defendant's confrontation rights but also the fundamental fairness of the trial itself."). In addition, CRE 611(a) requires a trial court to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence" to, among other things, "make the interrogation and presentation effective for the ascertainment of the truth."

¶ 5 We review a trial court's denial of a request for virtual testimony for an abuse of discretion. See Casias , ¶ 17. "A court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair, or when it misapplies the law." People v. Grant , 2021 COA 53, ¶ 12 (citations omitted).

4

B. Thacker's Unsuccessful Motions for Virtual Testimony

¶ 6 Approximately two months before Thacker's trial was originally set to begin, Thacker filed a motion to allow several witnesses - including, but not limited to, Klink, Garcia, and Langenfeld - to give virtual testimony via a videoconferencing platform. As relevant, the motion explained:

• Klink "resides in Hawaii" and "advised" Thacker that "because of age and other factors, he is not travelling to the United States, and that option is also not available to him because of other personal matters." Klink is "the sole caretaker for his mother, who is 87 years old and legally blind. Likewise, . . . Klink is self-employed . . ., and he is unable to appear personally."

• Garcia "lives in Spain" and "[t]ravel to the United States is complicated by various travel restrictions and COVID matters at the present time."

• Langenfeld "resides in [Germany]" and is "unable to attend [Thacker's] trial in person because of travel restrictions, possible quarantine issues, prior business commitments

5

during the time this trial is set, and personal COVID concerns."

The motion attached letters from Garcia and Langenfeld explaining that they intended to testify, based on their business dealings with Thacker, that Thacker believed the bank guarantee was legitimate.

¶ 7 The prosecution filed an objection to Thacker's motion, arguing, among other things, that "video testimony [was] not authorized" under Crim. P. 26. The prosecution also argued:

[T]he COVID pandemic does not affect these witnesses to such a degree that their physical presence in court should be replaced by virtual testimony. [Thacker] is not asserting that these witnesses are in high-risk categories should they contract COVID-19. Instead, the Motion states that witnesses do not want to travel or that traveling would be an inconvenience. [Thacker] has not made any efforts to subpoena these individuals, nor has he demonstrated a specific "need" for virtual testimony rather than merely a preference. Therefore, virtual testimony is not appropriate for these witnesses under these circumstances.

¶ 8 Two days after the prosecution's objection, Thacker filed a motion to continue the trial, representing that due to scheduling changes resulting from the COVID-19 pandemic, defense counsel now had a conflict with another trial. Thacker also stated that a

6

"continuance may accommodate the [d]efense's ability to provide live testimony from witnesses for his defense rather than virtual appearances."

¶ 9 At a hearing in February 2021, defense counsel described the scheduling issues in detail and stated, "Interstate witnesses are virtually impossible to guarantee that they will appear no matter what happens when you subpoena them." In response, the prosecution again noted that the defense had not even attempted to subpoena Klink, Garcia, or Langenfeld.

¶ 10 The district court granted Thacker's motion to continue based on the scheduling issues but noted that if the motion had been based only on the purportedly unavailable witnesses, it would have been denied because Thacker had failed to exercise sufficient diligence to secure the witnesses' presence. The court then denied Thacker's motion for virtual testimony, explaining that "it's fair that the witnesses need to be present in the courtroom. It's fair for the Defense. It's fair for the Prosecution." The court also found that the "continuance will probably aid in the [d]efense's ability to get witnesses here." The district court reset the trial for June 2021.

7

¶ 11 A little over a month before trial, Thacker filed a motion to reconsider the district court's order denying his motion for virtual testimony as to Klink. This motion stated that Klink was "simply crucial to [Thacker's] defense and unable to appear personally" and that "[e]xceptional circumstances exist to justify the videoconferencing testimony." The motion was accompanied by an affidavit in which Klink attested that he was sixty-two years old, not vaccinated, "solely responsible for [his] mother's care and safety," and "would have to quarantine for [ten] days" if he left Hawaii. Klink explained that he was "the sole employee of [his] own business," was "physically . . . required to deliver medical supplies to many clients," and could not "delegate this business to a third party." And he explained that he was "personally aware of the factors and discussions" relating to Thacker's reliance on funding from the representatives of Tier One involved with the fraudulent bank guarantee.

8

¶ 12 At a hearing held ten days later, defense counsel argued that the witnesses were unavailable and that Thacker had waived the Confrontation Clause "as it relates to the witnesses [the defense is] calling." The prosecution reiterated its prior arguments and added that the proposed testimony of the three referenced witnesses was irrelevant and inadmissible commentary on Thacker's state of mind. The court denied the motion to reconsider, explaining that it did not "think there's any legal basis" for it. The court said, "It would be improper for this Court to call . . . these witnesses unavailable. I think it's more inconvenient at this point."

¶ 13 Thacker then filed a verified supplement to the motion for reconsideration that narrowed his request, asking the court to allow only Klink and Garcia to testify virtually. The supplemental motion provided more detail about Klink's proposed testimony, including that the representatives of Tier One used Klink to convince Thacker that the bank deal was legitimate. Thacker also reported that he

9

"sought to persuade [Garcia] to come to Colorado," but Garcia was "simply not willing to travel from Spain." Thacker also submitted an email from Garcia to defense counsel, in which Garcia explained that "for personal and professional reasons, [he could not] set aside at least [three] days to testify . . . in Colorado." Garcia said the COVID-19 pandemic was "far from solved" and found it "risky" to travel.

¶ 14 In a written order denying the supplemental motion, the district court explained as follows: "The Court does not find that any witness is precluded from or unable to travel to be present and in person to testify. While inconvenient and certainly cumbersome, all witnesses are capable of appearing in person and that is the court's order for all witnesses in this case."

C. The District Court Did Not Abuse Its Discretion by Denying the Motion for Virtual Testimony

¶ 15 For three reasons, we conclude that the district court did not abuse its discretion by denying Thacker's motion to allow Klink, Garcia, and Langenfeld to testify virtually at trial. See Casias , ¶ 16.

¶ 16 First, regardless of whether we would make the same finding, the record supports the court's finding that Thacker's three

10

witnesses were available and able to testify in court despite the inconvenience and undesirability of traveling during the COVID-19 pandemic. See id. The three witnesses indicated that they were concerned about or unwilling to travel to Colorado because of personal commitments, business commitments, or health concerns. The record does not reflect that these witnesses were not able to be subpoenaed or under subpoena or similar process but failed to appear. And we note that the court ordered that all witnesses must testify in person. The court did not treat Thacker's witnesses differently than any other witness.

¶ 17 Second, there was nothing arbitrary, unreasonable, or unfair about favoring in-court testimony over virtual testimony. See Crim. P. 26; Casias , ¶ 18; see also Grant , ¶ 12. Indeed, courts have recognized the disadvantages of video testimony, which hampers jurors' ability to observe demeanor. See Casias , ¶ 20; see also J.D. v. Price , 619 F.Supp.3d 523, 528 (W.D. Pa. 2022) (noting the inadequacies of virtual testimony and explaining that, "[w]hile video testimony may be an acceptable substitute in extraordinary circumstances, it is not the equivalent of, or comparable to, inperson testimony"); United States v. Lawrence , 248 F.3d 300, 304 (4th Cir. 2001)

11

(noting that "virtual reality is rarely a substitute for actual presence"). These disadvantages are more pronounced in a fraud case such as this one where witness credibility is key.

¶ 18 Third, although Thacker contends that trial courts have "inherent" authority to order virtual testimony, Crim. P. 26 provides that a trial court may only order virtual testimony when such testimony is "provided [for] by law." See Grant , ¶ 12. Thacker cites no authority, and we have found none, for the proposition that he was entitled to have his three witnesses testify virtually under the circumstances presented. See Casias , ¶ 21. Instead, so long as the court's ruling fell within the range of reasonable options, it was not an abuse of discretion. See People in Interest of S.L. , 2017 COA 160, ¶ 51; see also People v. Jefferson , 2017 CO 35, ¶ 52 (appellate court cannot find an error "merely because it would have reached a different conclusion") (citation omitted). Thus, we conclude that the district court did not err by denying Thacker's motion to allow virtual testimony.

¶ 19 We are not persuaded otherwise by Thacker's reliance on Maryland v. Craig , 497 U.S. 836, 850 (1990), which he argues created a "test" to "determin[e] whether a trial court errs in refusing

12

virtual testimony from defense witnesses over the prosecution's objection." In Craig , the Supreme Court addressed whether a Maryland statute - which authorized "a child witness in a child abuse case" to testify "against a defendant at trial, outside the defendant's physical presence, by one-way closed circuit television" - violated the Confrontation Clause of the Sixth Amendment. Id. at 840. The Supreme Court concluded that a "defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Id. at 850. In other words, the "test" Craig articulated applies when reviewing whether a statute or procedure authorizing a witness to testify outside the defendant's physical presence violates the Confrontation Clause. We do not find Craig helpful here, where no statute requires virtual testimony, and the Confrontation Clause is not at issue.

¶ 20 Finally, we reject Thacker's contention that the district court's denial of his motion for virtual testimony violated his constitutional right to present a complete defense. True, the court disallowed

13

virtual testimony, but it did not preclude any of Thacker's witnesses from testifying. And although Thacker always retained his right to remain silent, see Deleon v. People , 2019 CO 85, ¶ 17, he testified at trial and could address the topics Klink, Garcia, and Langenfeld planned to address. He was not denied his only means to present that evidence. See Casias , ¶ 16; see also People v. Owens , 2024 CO 10, ¶ 141 ("Criminal defendants are denied their constitutional right to call witnesses and present a complete defense only when they were denied virtually their 'only means of effectively testing significant prosecution evidence.'" (quoting Krutsinger v. People , 219 P.3d 1054, 1062 (Colo. 2009))).

II. Variance

¶ 21 We next consider whether the district court's jury instructions on securities fraud created a variance from the charging instrument. Thacker contends that the prosecution's "'Trial Brief' acted as a bill of particulars on the securities fraud charge" through which the prosecution specified that it "sought to prove the existence of an 'investment contract.'" He argues that the court's instructions created a constructive amendment or a simple variance by allowing the jury to find him guilty based on the existence of any

14

security, not just an investment contract. Because we conclude that the prosecution's trial brief was not a bill of particulars, we reject this contention.

A. Generally Applicable Law and Standard of Review

¶ 22 The prosecution cannot constitutionally require a defendant to answer a charge not contained in the charging instrument. People v. Rodriguez , 914 P.2d 230, 257 (Colo. 1996). There are two types of variances between a charge contained in the charging instrument and the charge of which a defendant is convicted: (1) a constructive amendment and (2) a simple variance. Id. A "constructive amendment . . . changes an essential element of the charged offense and thereby alters the substance of the charging instrument." Id. But a "simple variance" occurs "'when the charging terms are unchanged, but the evidence at trial proves facts materially different from those alleged' in the charging instrument." Id. (quoting United States v. Williamson , 53 F.3d 1500, 1512 (10th Cir. 1995)). We review de novo whether a variance occurred. See id. at 256-57; People v. Rail , 2016 COA 24, ¶ 48, aff'd on other grounds , 2019 CO 99.

15

¶ 23 A bill of particulars "is intended to define the charged offense more specifically" and to enable the defendant "to properly prepare his defense in cases where the indictment, although sufficient to advise the defendant of the charges raised against him, is nonetheless so indefinite in its statement of a particular charge that it does not afford the defendant a fair opportunity to procure witnesses and prepare for trial." Erickson v. People , 951 P.2d 919, 921 (Colo. 1998) (quoting People v. Dist. Ct. , 198 Colo. 501, 504, 603 P.2d 127, 129 (1979)). To this end, a defendant may file a "motion for a bill of particulars . . . only within [fourteen] days after arraignment or at such other time before or after arraignment as may be prescribed by rule or order," and a trial "court may direct the filing of a bill of particulars." Crim. P. 7(g).

B. Indictment, Trial Brief, and Jury Instructions

¶ 24 Thacker was charged by indictment on March 28, 2019. Count one charged Thacker with securities fraud as follows:

About and between March 1, 2015 and August 3, 2015, in and triable in the State of Colorado, [Thacker], in connection with the offer, sale, or purchase of any security to [the victim], directly or indirectly, unlawfully, feloniously, and willfully made an untrue statement of a material fact or omitted to state

16

a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading contrary to the form of the statutes in such case made and provided, . . . §§ 11-51-501(1)(b) and 11-51-603(1)[, C.R.S. 2023,] (Securities Fraud - Class 3 Felony), against the peace and dignity of the People of the State of Colorado.

(Emphasis added.)

¶ 25 In October 2019, Thacker filed a motion for a bill of particulars as to the securities fraud count. At a motions hearing in January 2020, the district court denied the motion.

¶ 26 Three days before trial, the prosecution filed a trial brief that "summariz[ed] relevant areas of law that may arise during the course of the trial." As is relevant, the brief stated that the prosecution

anticipate[d] that [Thacker would] argue that his transaction with [the victim] was not an investment, and was instead a personal loan that contained no restrictions on how the funds could be used. If the transaction was a security, the duty to disclose material information and not to omit material information is triggered, whereas a personal loan has no statutory requirements of same. Thus the issue of whether the transaction was

17

an investment contract or a personal loan will be central to the determination of this case.

¶ 27 The brief quoted the statutory definition of a "security," noted that the definition was "flexibl[e]" and had a "broad scope," and described case law on a multi-factor test for determining whether an interest in an enterprise is an investment contract. But the brief also explained that under Joseph v. Viatica Management, LLC , 55 P.3d 264, 266 (Colo.App. 2002), "[w]hether a particular transaction involves a security depends not on the name or the form of the instrument, but on the substantive economic realities underlying the transaction."

¶ 28 At the close of trial, the district court instructed the jury the on the elements of securities fraud:

The elements of the crime of Securities Fraud . . . as charged in count ONE [are]:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. in connection with the offer, sale or purchase of any security,

4. directly or indirectly,

5. (a) willfully made an untrue statement of material fact,

18

or

(b) willfully omitted to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.

¶ 29 The court further instructed the jury that "security" means "a note, stock, investment contract, evidence of indebtedness, or, in general, any interest or instrument commonly known as a 'security.'" And it instructed that "investment contract" means "an investment of money in a common enterprise with an expectation of profit from the essential managerial efforts of the promoter or a third party."

C. The Trial Brief Was Not a Bill of Particulars

¶ 30 Thacker does not contend that the district court's jury instructions constituted a variance from the indictment; rather, he contends that the jury instructions altered the substance of the charge as reflected in the prosecution's trial brief, which he characterizes as bill of particulars. For purposes of resolving Thacker's appeal, we assume without deciding that the rules governing variance between pleading and proof apply to a bill of particulars. See People v. Vigil , 2015 COA 88M, ¶ 31 (assuming

19

without deciding that variance jurisprudence applies to a bill of particulars as it does to a charging instrument), aff'd , 2019 CO 105; 5 Wayne R. LaFave et al., Criminal Procedure § 19.4(a), Westlaw (4th ed. database updated Dec. 2023) ("The rules governing variance between proof and pleading apply to the bill of particulars just as they do to an indictment or information."). Nonetheless, we conclude that the jury instructions did not create either a constructive amendment or a simple variance because the prosecution's trial brief was not a bill of particulars. See Rodriguez , 914 P.2d at 256-57.

¶ 31 The trial brief does not, in any way, purport to be a bill of particulars or an election by the prosecution that it would prove Thacker offered only one specific type of security. See Erickson , 951 P.2d at 921. Indeed, the district court denied Thacker's motion for a bill of particulars and never ordered the prosecution to file one. See Crim. P. 7(g). And although the trial brief stated that the prosecution anticipated "the issue of whether the transaction was an investment contract or a personal loan [would] be central" at trial, that statement was an anticipatory response to an argument the prosecution expected Thacker to make, not a commitment to

20

prove an element of the offense in a singular way. See Erickson , 951 P.2d at 921 ("A bill of particulars forecasts 'the facts that the prosecution intends to prove and limits the proof at trial to those areas described in the bill of particulars.'" (quoting Dist. Ct. , 198 Colo. at 504, 603 P.2d at 129)).

¶ 32 Because Thacker's contention that there was a variance rests on the faulty premise that the prosecution's trial brief was a bill of particulars, we necessarily conclude that no constructive amendment or simple variance occurred in this case. See Rodriguez , 914 P.2d at 256-57.

III. Motion to Suppress

¶ 33 Finally, we consider whether the district court erred by denying Thacker's motion to suppress evidence obtained pursuant to a search warrant that he contends failed the particularity requirement. We conclude that any error does not require reversal.

A. Generally Applicable Law and Standard of Review

¶ 34 The Fourth Amendment protects individuals against unreasonable searches and seizures. U.S. Const. amend. IV; Colo. Const. art. II, § 7. A search conducted pursuant to a warrant is typically reasonable. People v. Coke , 2020 CO 28, ¶ 34. But "so-

21

called 'general warrants,' which permit 'a general, exploratory rummaging in a person's belongings,' are prohibited." Id. (quoting Andresen v. Maryland , 427 U.S. 463, 480 (1976)). To that end, the Fourth Amendment requires a "particular description" of the thing to be seized. Andresen , 427 U.S. at 480 (quoting Coolidge v. New Hampshire , 403 U.S. 443, 467 (1971)). And the Colorado Constitution requires the search warrant to describe the place to be searched or the person to be seized "as near as may be." Colo. Const. art. II, § 7.

¶ 35 Evidence obtained pursuant to a warrant that fails the particularity requirement should be suppressed. See People v. Roccaforte , 919 P.2d 799, 802 (Colo. 1996) ("The principal means of effectuating the requirement is to suppress all evidence seized pursuant to an overbroad, general warrant."). But we will not reverse a conviction based on the erroneous denial of a motion to suppress if we are able to declare a belief that the error was harmless beyond a reasonable doubt. See People v. Davis , 2018 COA 113, ¶ 29; see also Hagos v. People , 2012 CO 63, ¶ 11 (Appellate courts "review trial errors of constitutional dimension that were preserved by objection for constitutional harmless

22

error."). That is, we will not reverse when there is no reasonable possibility that the error might have contributed to the conviction. Hagos , ¶ 11.

B. Search Warrant, Affidavit, and Motion to Suppress

¶ 36 Two months after Thacker was indicted, the district court issued two search warrants allowing law enforcement to obtain information from four of Thacker's email accounts. According to the affidavits filed with the warrants, Thacker was being investigated for securities fraud under section 11-51-501 and theft (between $100,000 and $1 million) under section 18-4-401(1)(b) and (2)(j), C.R.S. 2023, based on a complaint the victim made to the Attorney General's Office in April 2017. The search warrants authorized law enforcement to search for the "following documents and information" from each of the four email accounts:

• "[s]ubscriber information to include, but not limited to, subscriber name[,] [a]ddress, additional email addresses, and telephone numbers"; and

• "[a]ll emails, including any deleted emails, between March 1, 2015, and March 31, 2017."

23

¶ 37 The supporting affidavit reflected that an investigator from the Attorney General's Office had interviewed the victim, who reported that he and Thacker began having conversations about an investment opportunity in a "Tier [One] fund" in the spring and summer of 2015 when the victim's mother succumbed to cancer and the victim inherited some money. The victim invested his inheritance with Thacker, and the two continued to communicate about the investment into early 2017. Investigators learned that the money the victim invested with Thacker was used "to purchase an Audi automobile and other miscellaneous expenses" and was given by Thacker to "a business partner . . . in a renewable energy business."

¶ 38 The affidavit said that during the investigation, the victim provided emails dated between September 2016 and January 2017, reflecting communications with Thacker about the investment. And after Thacker was indicted, he provided emails between him and the victim dated between December 2015 and December 2016. The affidavit indicated that investigators believed there may be additional emails exchanged between March 2015 and March 2017 that would "further clarify the relationship" between Thacker and

24

the victim and "the true character of the money" the victim gave Thacker. The affidavit explained that the warrant would also allow investigators to confirm they possessed all emails concerning the investment.

¶ 39 Thacker filed a motion to suppress the evidence obtained from the search of his four email accounts, arguing that the search warrants were general warrants that failed the particularity requirement. The motion argued that the search warrants were "overbroad in [their] scope and exploratory" because they "authorize[d] the searches for all emails and any deleted emails between March 1, 2015 and March 31, 2017 without any limitation of subject matter or particularity as to parties sending or receiving emails." At the motions hearing in January 2021, the district court denied the motion, concluding that the search warrants were not

25

general warrants because they did not authorize a search of all files on Thacker's computer but were "limited to e-mails."

C. Any Error in Failing to Suppress Evidence Obtained from the Search Warrants is Harmless Beyond a Reasonable Doubt

¶ 40 Thacker identifies three emails the prosecution introduced during his cross examination that were obtained solely because of the search warrants:

• Exhibit 250 - an August 2015 email exchange between Thacker and one of the representatives from Tier One in which Thacker asks when he will receive funds and makes a comment about being "pretty good at the two-step."

• Exhibit 251 - a June 2015 email exchange between Thacker and his wife in which she expresses concern about

26

the stress put on Thacker by the "deal," notes that she is an investor, and says Thacker had "threatened" her and "yelled at [her] as though [she was] a filthy animal begging for crumbs."

• Exhibit 259B - a September 2015 email from Thacker to a potential landlord for one of Thacker's employees verifying employment and income; Thacker admitted at trial that he did not actually pay the employee the stated salary and that the email was intended to "deceive" and "mislead" the employee's landlord.

¶ 41 Defense counsel objected to the admission of Exhibit 251 but did not object to the admission of Exhibits 250 or 259B. The prosecution used these emails to attack Thacker's credibility.

¶ 42 As an initial matter, we note that Thacker and the victim had disclosed all the emails admitted at trial - except for the three emails identified above - before law enforcement sought the search

27

warrant. Of the evidence Thacker sought to suppress, only these three emails were admitted, and granting the motion to suppress would have affected only these exhibits and the testimony about them. See Roccaforte , 919 P.2d at 802 ("The principal means of effectuating the [particularity] requirement is to suppress all evidence seized pursuant to an overbroad, general warrant.").

¶ 43 Even assuming the district court erred by denying the motion to suppress because the search warrants failed the particularity requirement, we conclude that any error was harmless beyond a reasonable doubt. See Hagos , ¶ 11.

¶ 44 Thacker was charged with securities fraud under section 11-51-501(1)(b), which provides that

[i]t is unlawful for any person, in connection with the offer, sale, or purchase of any security, directly or indirectly[,] [t]o make any untrue statement of a material fact or to omit to state a material fact necessary in order to

28

make the statements made, in the light of the circumstances under which they are made, not misleading.

¶ 45 As pertinent here, a "security" is "any note; stock; . . . evidence of indebtedness; . . . investment contract; . . . or, in general, any interest or instrument commonly known as a 'security.'" § 11-51201(17), C.R.S. 2023; see Toothman v. Freeborn &Peters , 80 P.3d 804, 811 (Colo.App. 2002) (An "investment contract" is "a contract, transaction, or scheme whereby a person invests his or her money . . . in a common enterprise and . . . is led to expect profits derived from the entrepreneurial or managerial efforts of others.").

¶ 46 Thacker was also charged with theft under section 18-4-401(1)(b), which provides that

[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 . . . and . . . [k]nowingly uses, conceals, or abandons the thing of value in such manner as to deprive the other person permanently of its use or benefit.

¶ 47 Thacker admitted that he owed the victim over $259,000. His theory of the case was that the victim had loaned him the money to use personally and that he had a good faith belief he would be able

29

to repay the victim within 90 to 120 days. But the evidence overwhelmingly established that Thacker offered the victim a security in exchange for the money, not that he had obtained a personal loan from the victim.

¶ 48 The victim testified that, in the middle of 2015, his mother died from a brain tumor, and he inherited approximately $330,000. At the time, he was living in Thacker's basement and thought of Thacker as "the big brother [he] never had." Thacker approached the victim with an idea of what to do with his inheritance. Specifically, Thacker told the victim that Thacker "was invited in to start to trade on Tier One, and he . . . could get [the victim] in there." Thacker said that Tier One was "exclusive" but he "was going to bring [the victim] in and double [the victim's] money" in "a 90-day turnaround." Thacker characterized this transaction as an "investment" by the victim; Thacker "never" said anything to the victim about it being a personal loan.

¶ 49 The victim gave Thacker the first of several checks to invest in June 2015. Thacker went back to the victim several more times, telling the victim that Tier One was going to "let [him] in" for more money. The victim understood the flow of his money to be as

30

follows: the money "went through [Thacker's] company" - Avra - since "that's where the checks were written"; Thacker would then "put the money into Tier One [and] 90 days later, [the victim] was supposed to get [his] double, which was [$]511,874.41."

¶ 50 After the investment, Thacker and the victim emailed each other "a lot." The victim expected to receive the "doubling" of his investment by November 2015. When the victim had not received his money by January 2016, he began to worry. Through 2016 and into early 2017, Thacker continued to assure the victim that his money was coming and that it would arrive any day. By April 2017, not having received any money from Thacker, the victim gave up hope and filed a complaint with the Attorney General's Office "to recover [his] money."

¶ 51 For his part, Thacker testified to a complicated scheme to obtain funding for Avra that involved investing in Tier One after obtaining a bank guarantee that turned out to be fraudulent. He claimed the victim's money was a personal loan and that he intended to repay it with the proceeds from the bank guarantee. But he also said that, after he told the victim about the Tier One trading platform and the victim "bother[ed]" him about investing in

31

it, he approached the victim with an opportunity to "participate" - not "directly," but through Thacker and his company. Thacker admitted that he called the transaction an "investment" because the victim was "investing in" him to put the money "to work" to get the "promised payout." Thacker explained that the victim knew about the "returns" to be expected from Tier One but did not know about the bank guarantee or the other things Thacker was going to do with the victim's money. Thacker also testified that the victim was excited because they "were all going to make a lot of money together."

¶ 52 The prosecution admitted several emails between Thacker and the victim from 2015 to 2017 that corroborated the victim's testimony, including the following:

• On December 12, 2015, Thacker wrote the victim, "I am rolling all your profit into January so you will have no tax liability this year which should help you out on the capital gains from your mom's estate." The victim responded on January 3, 2016, "Any new news? Haven't heard from y[ou] in [a while]?" On January 4, Thacker responded, "All is still

32

on track for your payout .... I think you will be a very happy guy soon!"

• On March 24, 2016, Thacker emailed the victim, "According to the spreadsheet I have now you are going to receive $511,876.41 in one payment. This will probably be either tomorrow or Tuesday." In response, the victim asked why Thacker was not communicating and wrote that Thacker "never answer[ed] any questions." On March 28, Thacker replied, "I think perhaps you have not remembered all we discussed so let me see if I can put it into perspective again." Thacker wrote that he had discussed with the victim how things would move forward: "[F]irst getting you back your investment plus the returns I told you of in my last email."

• On April 6, 2016, Thacker emailed that there had been a "delay" but that he thought "we will have all done soon." He wrote, "Once you get your money ($511+K) you can then tell me to go take a hike. I would never do anything dishonest or underhanded." And he stated, "You will get all your money and the return (at 2% interest in a bank savings

33

account it would take 48 years to turn your original investment into the 511)." When the victim responded with frustration two days later, Thacker wrote, "[I]t's all real and about to finally finish. I have a very large amount due including yours and the government is being very deliberate and [slow] about letting these thru."

• On September 8, 2016, Thacker emailed the victim that he "had a long call with the platform director who finally ha[d] given [him] enough detail to understand what [was] causing a delay with disbursement." The next week, the victim sent an email to Thacker recounting what Thacker said to him: "I've been invited to trade on the TIER ONE Platform." Among other things, the victim accused Thacker of using the money as "a bridge loan, to use my money to live off of, and be a big shot." Thacker responded, "You are so wrong."

¶ 53 Thacker and the victim continued to exchange emails, reflecting the victim's escalating level of frustration, through the balance of 2016 and early 2017.

¶ 54 Thacker's own testimony and email communications overwhelmingly establish that he offered the victim a security. The

34

victim would invest the money in Tier One through Thacker, and Thacker and Tier One would expend efforts to make a substantial profit for the victim. See § 11-51-201(17); Toothman , 80 P.3d at 811. Although Thacker testified that he told the victim the transaction was a "personal loan," it is the nature of the transaction, and not the name applied to it by either party, that is dispositive in determining whether the transaction was a security. See Joseph , 55 P.3d at 266 ("Whether a particular transaction involves a security depends not on the name or the form of the instrument, but on the substantive economic realities underlying the transaction."). Still, in the emails, Thacker and the victim invariably refer to the transaction as an "investment"; nowhere does Thacker refer to the transaction as a "personal loan." Thacker never corrected the victim when the victim referred to the money as an investment with an expected short-term return. And when the victim accused Thacker of improperly using the victim's money as a "bridge loan," Thacker simply said, "You are so wrong." Thacker did not remind the victim that the money was, in fact, a loan or that he had discretion to use it how he desired.

35

¶ 55 This evidence also overwhelmingly established that Thacker obtained money from the victim by deception - at a minimum telling the victim he was investing in Tier One through Thacker while Thacker admittedly used the money for personal expenses. Thacker also admitted to deceiving the victim about how he used the money once he received it. For example, he testified that he bought an Audi for $75,000 with the victim's money but told the victim that he did not use the victim's money to buy the Audi because the victim would have become "upset" that Thacker used the money this way. Thacker also testified that as the victim "got more upset, . . . [Thacker] did not tell the truth at times to [the victim] about the status."

¶ 56 Against this evidentiary backdrop, we conclude that there is no reasonable possibility that failing to suppress these three emails contributed to Thacker's conviction. See People v. Phillips , 2012 COA 176, ¶ 149 (holding error harmless beyond a reasonable doubt "because the other properly admissible evidence was overwhelming"). The emails did not relate to the primary disputed issues at trial. The emails were used to attack Thacker's credibility generally, but the properly admitted evidence - particularly

36

Thacker's own testimony - established that he had, on several occasions, been untruthful with the victim about the particular transaction giving rise to his convictions. See People v. Jaramillo , 183 P.3d 665, 669 (Colo.App. 2008) (concluding that error in admitting testimony was harmless when testimony was cumulative of other testimony not challenged on appeal). The impact of the three emails in question was, at most, de minimis.

IV. Disposition

¶ 57 The judgment of conviction is affirmed.

JUDGE FREYRE and JUSTICE MARTINEZ concur.