People v. Lopez

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
August 23, 2018

2018COA119

No. 14CA1955 People v. Lopez — Crimes — Theft; Criminal Law
— Sentencing — Crimes Against At-Risk Persons

In this criminal case, a division of the court of appeals

interprets section 18-6.5-103, C.R.S. 2017, which enhances the

penalties for theft when any element or portion of the offense is

committed in the presence of an at-risk person. The division

concludes that “portion of the offense” as used in section 18-6.5-

103(5) means conduct taken in furtherance of the crime that occurs

in temporal proximity to an element of the offense and is physically

close to the victim. Applying this definition, the division rejects

defendant’s contention that the prosecution failed to present

sufficient evidence that he committed a portion of the offense in the

presence of the victim and affirms the judgment of conviction.
COLORADO COURT OF APPEALS 2018COA119

Court of Appeals No. 14CA1955
Jefferson County District Court No. 13CR2662
Honorable Christopher J. Munch, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Victor Leobardo Trejo Lopez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE NIETO*
Taubman and Harris, JJ., concur

Announced August 23, 2018

Cynthia H. Coffman, Attorney General, Carmen Moraleda, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Rachel K. Mercer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 Defendant, Victor Leobardo Trejo Lopez, appeals the trial

court’s judgment entered on a jury verdict finding him guilty of theft

from an at-risk adult. We affirm.

I. Background

¶2 Defendant and the victim had been neighbors in a mobile

home park. In August 2013, defendant visited the victim in his

small fifth wheel travel trailer. It was estimated to be eight feet wide

and thirty feet long. He asked the victim if he could borrow some

money; the victim said no. Defendant asked if he could use the

bathroom, which was adjacent to the living room where the victim

was sitting and watching television. The victim’s gun was hanging

on the wall in the bathroom. Defendant put the gun in his

backpack and came out to the living room. He told the victim he

needed to go, and he left the trailer. At the time of the visit, the

victim was seventy years old.

¶3 The victim later learned the gun was missing and reported it to

the police. The victim said defendant was the only other person

who had been inside his house recently. The day after the victim

made the police report, he asked defendant where his gun was.

Defendant apologized and said he did not mean to steal the gun,

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but that he did not know where the gun was. Defendant later

admitted to the police that he had stolen the gun from the victim.

¶4 Defendant was charged with theft and a statutory enhancer

for either committing the theft with knowledge the victim was over

seventy years old and therefore an at-risk elder, under section 18-

6.5-103(5.5), C.R.S. 2015, or committing the theft within the

victim’s presence, under section 18-6.5-103(5), C.R.S. 2017.1 At

trial, defendant admitted he took the victim’s gun and committed

theft, but he argued that neither statutory enhancer should apply.

The jury convicted defendant of theft from an at-risk adult under

section 18-6.5-103(5), finding that he committed an element or

portion of the offense in the presence of the victim. The trial court

sentenced him to one year of probation.

II. Juror Challenge

¶5 Defendant contends the trial court erred when it denied his

challenge for cause to prospective juror H.S. Because H.S.

1 While the complaint alleges two separate counts of theft, the trial
court clarified with the prosecution and defense that only one count
of theft would be submitted to the jury, with two possible
enhancers.

2
ultimately sat on the jury, defendant argues that reversal is

required. We disagree.

A. Standard of Review

¶6 We review the trial court’s denial of a juror challenge for cause

for an abuse of discretion. See, e.g., People v. Bondsteel, 2015 COA

165, ¶ 77 (cert. granted Oct. 31, 2016). We review the entire voir

dire of the prospective juror to determine whether the trial court

abused its discretion. People v. Friend, 2014 COA 123M, ¶ 21

(citing Carrillo v. People, 974 P.2d 478, 486 (Colo. 1999)) (cert.

granted on other grounds Feb. 8, 2016). We defer to the trial court’s

credibility assessments, “recognizing that court’s unique perspective

in evaluating the demeanor and body language of live witnesses.”

People v. Conyac, 2014 COA 8M, ¶ 13. If the trial court permitted a

biased or incompetent juror to sit on the jury and participate in

determining the defendant’s guilt, the defendant’s right to an

impartial jury has been violated and reversal is required. People v.

Maestas, 2014 COA 139M, ¶ 20; People v. Marciano, 2014 COA

92M-2, ¶ 10.

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B. Law

¶7 The United States and Colorado Constitutions guarantee

criminal defendants the right to a trial by an impartial jury. U.S.

Const. amends. VI, XIV; Colo. Const. art. II, § 16. Thus, the trial

court must sustain a challenge for cause if, as relevant here, there

exists

a state of mind in the juror evincing enmity or
bias toward the defendant or the state;
however, no person summoned as a juror shall
be disqualified by reason of a previously
formed or expressed opinion with reference to
the guilt or innocence of the accused, if the
court is satisfied, from the examination of the
juror or from other evidence, that he will
render an impartial verdict according to the
law and the evidence submitted to the jury at
the trial.

§ 16-10-103(1)(j), C.R.S. 2017.

¶8 It is normal for a prospective juror to arrive for jury duty

without knowing the relevant law and with some preconceived

expectations. People v. Clemens, 2017 CO 89, ¶ 17. If, after the

trial judge explains the correct legal principles during voir dire, and

the prospective juror is willing to apply the law as instructed by the

court, the prospective juror is rehabilitated and may serve. Id. A

court may consider the prospective juror’s assurances that he or

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she can fairly and impartially serve on the case. People v. Gilbert,

12 P.3d 331, 334 (Colo. App. 2000). Even a prospective juror’s

silence in response to questions posed to the venire can be

sufficient evidence of rehabilitation after the prospective juror has

indicated a preconceived notion. Clemens, ¶ 12.

C. Analysis

¶9 Before voir dire, the trial court informed the jury that the

parties had stipulated that defendant committed the basic elements

of theft, but that defendant disputed the enhancers. The court

instructed the jury about general principles of applicable law,

including the presumption of innocence and the burden of proof.

The court asked the jury, “Does anybody disagree with the basic

concept that in a criminal case there has to be proof beyond a

reasonable doubt?” No juror expressed any disagreement.

¶ 10 The trial court next addressed each individual juror and

asked, “Do you think you can give us the assurance that you will be

fair to both sides?” H.S. replied, “I will be fair to both sides.”

¶ 11 During defense counsel’s questioning of H.S., she expressed

confusion about the presumption of innocence since defendant had

admitted the theft. The following exchange took place:

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[H.S.]: I’m confused because he isn’t innocent
because he did steal the gun. I know that he’s
guilty of a crime, and that is dealing with
guns, which I don’t agree with. And then
stealing, which is a bad crime as well.

So that is a little contradictory.

[Defense Counsel]: I think you’re totally right.
It’s a hard distinction to sort of admit to one
piece because he said, Yeah, I’m guilty of this
one issue, this theft issue. But, no, I’m not
guilty of these other – the Judge calls them
aggravators or enhancers.

I think that’s a difficult thing to separate out.
Do you think that’s something you’re going to
be able to do that you can presume him
innocent of sentence enhancers, knowing that
he is guilty of something?

[H.S.]: Um, well, I don’t know because I didn’t
know that ever happened. Like, I wouldn’t see
someone who did a crime as an innocent
person because I didn’t know that you can
separate out enhancers before.

¶ 12 The juror’s answers to additional questions from defense

counsel continued to show confusion. When defense counsel asked

directly if she could afford defendant the presumption of innocence,

H.S. did not say that she could not or would not do so, but said,

“It’s hard.” Her difficulty appears to have arisen from defendant’s

admission to committing theft and not from any hostility to the

concept of the presumption of innocence:

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[Defense Counsel]: So you -- I don’t want to
make – I don’t want to be confusing. So we
already know he’s guilty of the theft.

And you’re saying, Well, no, I can’t presume
him innocent of the enhancers as well?

[H.S.]: At this moment in time, no, but as I
learn more about it, I could.

¶ 13 Defense counsel also questioned H.S. at length about her

opinions concerning guns:

[Defense Counsel]: The other thing you said is
the gun thing, and that doesn’t sit well with
you.

[H.S.]: No. I’ve grown up in a really anti-gun
family. So I just think that they’re not good.

....

[Defense Counsel]: So in the back of your mind
you already think that he’s kind of in a bad
spot with you?

[H.S.]: Uh-huh.

[Defense Counsel]: So it sounds like it’s going
to be difficult to afford him the presumption of
innocence because of this weird breakdown,
but also that he is starting off in a bad position
with you as well?

[H.S.]: Uh-huh.

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¶ 14 Defense counsel challenged H.S. for cause because she

seemed confused about the presumption of innocence and

expressed anti-gun views.

¶ 15 The trial court properly rehabilitated H.S. on both issues.

Acknowledging H.S.’s views on the laws about guns and protecting

people from guns, the court asked her if she believed she could be

fair and objective in deciding the facts even though a gun was

involved in this case. H.S. answered that “it’s my duty to get over

that fact. So it will just take me a little bit of time, but I mean, I

would do that because I have to.” The court asked if she was

comfortable that she could, and she replied, “I’m not comfortable,

but I know I can.” The trial court then conducted rehabilitative

questioning about H.S.’s feelings about guns and how they would

affect her ability to serve as a juror. H.S. affirmatively assured the

judge that she could be fair and impartial, despite her personal

opinions about guns. Thus, the trial court did not abuse its

discretion in denying defendant’s challenge for cause to H.S. on this

ground.

¶ 16 While the court did not question H.S. individually about her

comments on the presumption of innocence, it asked the venire:

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Is there anybody else, other than these two
people [referring to two other prospective
jurors who could not set aside their bias] . . .
who feels that they couldn’t be fair to both
sides and decide this case just on the facts?

I know some of you don’t like the arbitrary cut-
offs. Some of you have other issues with the
law. But we have to take the law as it is and
find the facts honestly and openly.

Is there anybody else that really feels that they
don’t think they could do that? Anybody else?
I don’t mean to try to be - - I really want to
know if anybody feels that way.

(Emphasis added.) H.S. remained silent.

¶ 17 In her responses to questioning, H.S. expressed some concern

with the difficulty of applying the presumption of innocence in this

case, where defendant had already admitted he committed the

crime of theft. While she said it would be hard to apply the

presumption to the enhancers, and that she did not know if she

could apply the presumption properly, she also expressed that as

she learned more about the law, she could apply it. Her comments

reveal confusion rather than evince a bias or inability to follow and

apply the law; they reflect her careful consideration of the seemingly

contradictory application of the presumption of innocence where

the defendant has, in part, admitted to the charged offense. Her

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silence, in response to the court’s final questioning of the panel

asking any juror who did not feel he or she could be fair and apply

the law to the facts of the case to affirmatively respond, sufficiently

rehabilitated her on this ground. This juror was articulate in

explaining her views; when she did not respond to the court’s final

questions, it was reasonable for the court to conclude that she

would follow the law, including the presumption of innocence on

which the court had previously instructed. See Clemens, ¶ 12.

This conclusion is supported by H.S.’s recognition of her duty to be

fair and objective when discussing her views on guns.

¶ 18 Accordingly, the trial court did not abuse its discretion when it

denied defendant’s challenge for cause to H.S.

III. Sufficiency of the Evidence

¶ 19 Defendant contends the prosecution failed to present sufficient

evidence to prove beyond a reasonable doubt that he committed any

element or portion of the theft in the presence of the victim. We

disagree.

A. Standard of Review

¶ 20 We review the sufficiency of the evidence de novo. Oram v.

People, 255 P.3d 1032, 1038 (Colo. 2011) (citing Dempsey v. People,

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117 P.3d 800, 807 (Colo. 2005)). “In so doing, we must view the

evidence in the light most favorable to the prosecution and consider

whether it is sufficient to support the defendant’s guilt beyond a

reasonable doubt.” Id.

¶ 21 We review questions of law involving statutory interpretation

de novo. People v. Griego, 2018 CO 5, ¶ 25. “[W]e interpret the

plain language of the statute to give full effect to the intent of the

General Assembly. When the statutory language is clear, we apply

the plain and ordinary meaning of the provision.” Id. (citation

omitted). “We may discern the plain meaning of statutory language

by referring to its common dictionary meaning.” Abu-Nantambu-El

v. State, 2018 COA 30, ¶ 9. “In doing so, we give consistent,

harmonious, and sensible effect to each part of the statute, and we

interpret every word, rendering no words or phrases superfluous

and construing undefined words and phrases according to their

common usage.” Griego, ¶ 25. We must avoid statutory

“interpretations that render statutory provisions superfluous.”

Welby Gardens v. Adams Cty. Bd. of Equalization, 71 P.3d 992, 995

(Colo. 2003).

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B. Law

¶ 22 Any person who commits theft as described in section 18-4-

401(1), C.R.S. 2017, and commits any element or portion of the

offense in the presence of the victim, when the victim is an at-risk

person, commits a class 5 felony if the value of the thing involved is

less than five hundred dollars. § 18-6.5-103(5). The definition of

“at-risk person” includes “at-risk adult,” § 18-6.5-102(4.5), and any

person who is seventy years of age or older is an “at-risk adult.” §

18-6.5-102(2), C.R.S. 2017.

C. Analysis

¶ 23 Defendant moved for a judgment of acquittal, arguing that the

prosecution did not prove that he committed an element or portion

of the theft in the victim’s presence. The trial court noted that

defendant was not in the victim’s presence when he took the gun in

the bathroom because he was in a different room separated by a

wall from the living room of the travel trailer. However, the trial

court concluded that when defendant left the bathroom and walked

merely a few feet away from the victim as he left the trailer,

defendant was committing a portion of the theft in the victim’s

presence.

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¶ 24 Neither section 18-6.5-103 nor its related statutes define

“element,” “portion of the offense,” or “presence.” The meaning of

“element” is clear. It means a component part of a crime as defined

in a statute that criminalizes certain defined conduct. See, e.g.,

People v. Hill, 934 P.2d 821, 829 (Colo. 1997) (defining elements of a

crime as “those constituent parts of a crime which must be proved

by the prosecution to sustain a conviction” (quoting Black’s Law

Dictionary 520 (6th ed. 1990))).

¶ 25 “Presence” is a word with a commonly accepted meaning. In

the context of this statute, “presence” is defined in Webster’s Third

New International Dictionary 1793 (2002) as

 “the condition of being within sight or call, at hand, or in

a place being thought of”;

 “the fact of being in company, attendance, or

association”;

 “the state of being in front of or in the same place as

someone or something”;

 “the vicinity of or the area immediately near one”; and

 “the place in front of or around a person.”

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We need not reach the question of whether defendant’s conduct in

the bathroom of this very small structure constituted a crime in the

presence of the victim because the evidence was clear that a

“portion of the offense” occurred in the presence of the victim.

¶ 26 Determining the meaning of “portion of the offense,” as used in

the statute, is not easy. We can look to the legislative declaration

for help in interpreting legislative intent. People v. Nardine, 2016

COA 85, ¶¶ 24-25 (interpreting section 18-6.5-103 by reference to

the legislative declaration).

¶ 27 In the legislative declaration for title 18, article 6.5, concerning

“Wrongs to At-risk Adults,” the General Assembly recognized that

fear of mistreatment is a major concern to at-risk persons and that

at-risk persons are more vulnerable to and disproportionately

damaged by crime, abuse, exploitation, and neglect. § 18-6.5-101,

C.R.S. 2017. The General Assembly noted that at-risk persons are

more vulnerable than the general population and disproportionately

impacted by crime “because they tend to suffer great relative

deprivation, financially, physically, and psychologically.” Id. Some

are not “equipped to protect themselves or aid in their own

security.” Id.

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¶ 28 There is no indication in the legislative declaration or section

18-6.5-103 that the victim’s awareness of the theft is required.

Thus, in interpreting the term “portion of the offense” we will take a

broad view of the meaning to implement the legislature’s intention

to provide greater protection to at-risk persons.

¶ 29 In Johnson v. People, 171 Colo. 505, 506, 468 P.2d 745, 746

(1970), the only Colorado case we found using the term “portion of

the crimes,” the supreme court used the term to describe the

testimony of a witness in a burglary and larceny case. The “portion

of the crimes” the witness testified about was as follows:

 She saw the defendant approach and break a window in her

front door.

 She saw the defendant return to his automobile, which was

parked on the street.

 She saw the defendant converse with another man in the

automobile.

 She saw the defendant again approach her front door.

 She ran from her home and shortly thereafter saw the

defendant and the other man drive away with a television set

in the trunk of the automobile.

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¶ 30 None of these facts describe an element of the crimes charged,

but they do describe events that were part of the perpetration of the

crimes.

¶ 31 Turning to the facts of this case, we note that defendant

argues that the theft, as defined in section 18-4-401, was completed

when defendant took possession of the gun in the bathroom and

outside the presence of the victim. Defendant’s argument focuses

on the elements of the theft offense. But the General Assembly, by

using both the terms “element” and “portion of the offense” in

section 18-6.5-103, intended to include conduct that was not

necessarily part of the elements of the offense. See Griego, ¶ 25.

¶ 32 Considering the use of the term “portion of the crimes” in

Johnson, 171 Colo. 505, 468 P.2d 745, and the legislature’s intent

to expand the protection for at-risk persons, we conclude that

“portion of the offense” in section 18-6.5-103(5) means conduct

taken in furtherance of the crime that occurs in temporal proximity

to an element of the offense and is physically close to the victim.

¶ 33 Here it is undisputed that, immediately after taking possession

of the gun, defendant was in the same room with the victim and

spoke with him before leaving with the gun. Therefore, we conclude

16
that sufficient evidence was presented to support the jury’s

conclusion beyond a reasonable doubt that defendant committed at

least a portion of the theft within the presence of the victim.

IV. Jury Instruction

¶ 34 Defendant contends the trial court erred when it rejected his

tendered jury instruction and declined to give the jury an

instruction defining “presence.” We disagree.

A. Standard of Review

¶ 35 The trial court has a duty to correctly instruct the jury on all

matters of law for which there is sufficient evidence to support

giving instructions. Cassels v. People, 92 P.3d 951, 955 (Colo.

2004). “We review de novo the question of whether a jury

instruction accurately informed the jury of the governing law.”

People v. Carbajal, 2014 CO 60, ¶ 10. If the jury instructions

properly inform the jury of the law, the trial court has “broad

discretion to determine the form and style of jury instructions.”

Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011); see also People

v. Trujillo, 2018 COA 12, ¶ 11. Thus, we review the trial court’s

decision regarding a proposed jury instruction for an abuse of

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discretion. Trujillo, ¶ 11. We will not disturb the ruling unless it is

manifestly arbitrary, unreasonable, or unfair. Id.

B. Law and Analysis

¶ 36 Both parties tendered instructions proposing definitions for

“presence” to the trial court.

¶ 37 Defendant’s tendered instruction stated: “Property is taken

from the ‘presence’ of another when the property is ‘so within the

victim’s reach, inspection, or observation that he or she would be

able to retain control over the property but for the force, threats, or

intimidation directed by the perpetrator against the victim.’”

Defendant argued that the court should have used this definition

because it was taken from the robbery, kidnapping, and aggravated

motor vehicle theft statutes.

¶ 38 The prosecution’s instruction said: “Property is considered

taken from the presence of the victim even if the victim is in one

room while property located in another room is removed.”

¶ 39 The trial court declined to give either instruction. It ruled that

“presence” was an ordinary word, and the jurors were capable of

applying the word in its ordinary usage. It further noted that the

definition tendered by the defense was incorrect because neither the

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theft nor at-risk victim statute requires that a defendant use force,

threats, or intimidation.

¶ 40 We agree with the trial court. Defendant’s tendered

instruction included a requirement for force, threats, or

intimidation not found in section 18-6.5-103(5). Providing the jury

with defendant’s instruction that required proof of additional

elements not found in the charged crime would not have accurately

instructed it on the law of theft from an at-risk adult. While

defendant argued that the court should adopt the definition

because it was included in statutes governing other crimes against

property and persons such as robbery, aggravated motor vehicle

theft, and kidnapping, this assertion was incorrect. The statutes

for those crimes do not include such a definition; rather it appears

in a supreme court case interpreting the robbery statute. People v.

Bartowsheski, 661 P.2d 235, 244 (Colo. 1983). We also note that

interpreting one statute by referencing an unrelated statute is not a

reliable means of ascertaining legislative intent. Bertrand v. Bd. of

Cty. Comm’rs, 872 P.2d 223, 228 (Colo. 1994).

¶ 41 To the extent that defendant argues that the trial court erred

in failing to give the jury an instruction providing an alternative

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definition of presence, we also disagree. “When a term, word, or

phrase in a jury instruction is one with which reasonable persons of

common intelligence would be familiar, and its meaning is not so

technical or mysterious as to create confusion in jurors’ minds as to

its meaning, an instruction defining it is not required.” People v.

Harris, 2016 COA 159, ¶ 98. “When definitions are not provided in

a jury instruction, the jury is presumed to employ the common

meaning of the words used.” People v. Walden, 224 P.3d 369, 379

(Colo. App. 2009). The term “presence” is a common word the jury

was capable of understanding, and the jury did not indicate any

confusion about the term or ask the trial court for further

clarification. See Harris, ¶ 99.

¶ 42 Thus, the trial court did not abuse its discretion when it

rejected defendant’s tendered instruction on “presence” and

declined to issue an alternate instruction defining the term.

V. Conclusion

¶ 43 The judgment is affirmed.

JUDGE TAUBMAN and JUDGE HARRIS concur.

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