Colorado’s second-highest court concluded on Thursday that it was up to a Douglas County jury to determine the value of stolen merchandise at a defendant’s theft trial, after both sides presented different estimates of the items’ value.

Under state law, a theft offense hinges on the market value of the stolen goods. Anything below $2,000 is a misdemeanor, while anything above that threshold is a felony.

Byron A. Bolden did not dispute that he walked out of a Kohl’s store without paying for merchandise. But he maintained he was not a felon.

Jurors at Bolden’s trial heard two different values for what he stole:

• $2,095, which Kohl’s loss prevention manager reached using the normal, non-discounted price of the items
• $1,856, which the defense calculated based on Kohl’s list of sale prices for the day of the crime

Jurors convicted Bolden of a felony.

Responding to Bolden’s appeal of his conviction, the prosecution noted that Colorado law describes an item’s “retail value” as evidence of its worth.

“Because neither statute nor case law address discounted prices at retail stores in relation to theft, the trial court was within its discretion in submitting the question of value, as a factual question, to the jury,” wrote Assistant Attorney General Cata A. Cuneo. “Defendant has not identified any case law directly on point when it comes to retail merchandise that happened to be on a temporary promotional price discount when it was stolen.”

Cuneo argued that Kohl’s sale prices can fluctuate on any given day and that none of the security footage showed discount labels or sales tags on the stolen items. Further, discounts are benefits to “paying customers,” and Bolden was not a paying customer.

Under the defense’s theory, someone “who happened to steal from a store during a promotional sale could receive a misdemeanor while another offender, who stole the same item from the same store the day before or day after, would receive a felony for the same crime simply because the store did not have that item on a price discount that day, or even at that exact time on the same day,” wrote Cuneo.

Bolden countered that the question revolved around the market value of the stolen items at the time of the offense.

“Here, the evidence was uncontested at trial that the price a willing customer would pay at the cash register for the items” was $1,856, wrote attorney Jeffrey C. Parsons. “The fact that value changes over time — both up and down — is precisely the reason why Colorado law pegs the value to the time and place of the theft.”

A three-judge Court of Appeals panel agreed with the government that Bolden’s jury was entitled to accept the higher value of the stolen merchandise.

“Accordingly, we conclude that while the discounted sale price is evidence of value, it does not establish value as a matter of law,” wrote Judge Elizabeth L. Harris in the March 19 opinion. “Bolden has not pointed us to any case, and we have not found one, supporting his position that the temporarily discounted price on the day of the theft is, as a matter of law, the value of a stolen item.”

She noted that, during their deliberations, jurors asked whether they could consider the “wholesale price of items taken.”

“If anything, the question suggests that the jury understood that it had to determine the fair market value of the items and that, in determining value, it was not bound by the prosecution’s evidence of regular retail price,” Harris added.

The case is People v. Bolden.