People in Interest of L.E.R-N.

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
February 13, 2025

2025COA16

No. 23CA0059, People in Interest of L.E.R-N. — Children’s Code
— Delinquency — Investigations and Law Enforcement —
Custodial Interrogations — Statements or Admissions —
Presence of Parent, Guardian, or Legal or Physical Custodian

A division of the court of appeals holds that section 19-2.5-

203(1), C.R.S. 2024, which requires a parent to be present during

the custodial interrogation of a juvenile, does not include a parental

attentiveness requirement. The division therefore rejects the

juvenile’s argument that his mother’s physical presence at the

interrogation did not satisfy the statute because she was on the

phone and not fully attentive to the interrogation. Because there is

no dispute that the juvenile’s mother was physically present during

the interrogation, the juvenile’s statements were admissible.
COLORADO COURT OF APPEALS 2025COA16

Court of Appeals No. 23CA0059
Adams County District Court No. 22JD124
Honorable Katherine R. Delgado, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of L.E.R-N.,

Juvenile-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE SCHOCK
Freyre and Sullivan, JJ., concur

Announced February 13, 2025

Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney
General, Denver, Colorado, for Petitioner-Appellee

Amy D. Trenary, Alternate Defense Counsel, Broomfield, Colorado, for
Juvenile-Appellant
¶1 Section 19-2.5-203(1), C.R.S. 2024, bars the admission into

evidence of any statement made by a juvenile as a result of

custodial interrogation unless the juvenile’s parent was present at

the interrogation.1 In this case, the juvenile, L.E.R-N., contends

that his mother’s physical presence during his interrogation did not

satisfy this statute because she took a phone call as the questioning

began and thus was not fully attentive to the interrogation.

¶2 We reject this argument and conclude that section 19-2.5-

203(1) does not include a parental attentiveness requirement.

Because there is no dispute that L.E.R-N.’s mother was physically

present during the interrogation, L.E.R-N.’s statements were

properly admitted. We also conclude that the evidence was

sufficient to support L.E.R-N.’s adjudications of delinquency for

possession of a handgun by a juvenile and possession of a large-

capacity magazine. We therefore affirm the judgment.

1 The statute allows for the presence of “a parent, guardian, or legal

or physical custodian of the juvenile.” § 19-2.5-203(1), C.R.S. 2024.
For ease of reference, and because this case involves a parent, we
refer to this requirement as “parental presence” and to the required
parent, guardian, or custodian as the “parent.”

1
I. Background

¶3 After following a stolen car into the parking lot of an

apartment complex, police officers saw L.E.R-N. load a television

into the back seat of the car. Upon seeing the officers, L.E.R-N.

attempted to flee into the apartment complex. Another man, Edgar

Perez, was sitting in the front passenger seat of the car at the time.

¶4 The officers spoke with Perez, who told them that L.E.R-N. had

driven the car to the apartment complex. They searched the car

and found a handgun with a large-capacity magazine on the front

passenger side floorboard. Perez told officers that L.E.R-N. had

handed him the gun when they got to the apartment complex.

¶5 Meanwhile, other officers found L.E.R-N. and brought him

back to the scene. L.E.R-N.’s mother also arrived and spoke with

an officer about what had occurred. As L.E.R-N. was handcuffed in

the backseat of a police car, the officer asked his mother if she

wanted them to question him, explaining that any statements he

made could be used against him in court. After L.E.R-N. said he

wanted to talk to the officers, his mother agreed. The officer read

L.E.R-N. and his mother an advisement of their rights, and both

2
signed a form acknowledging those rights. L.E.R-N.’s mother gave

the officers permission to interview L.E.R-N. in her presence.

¶6 While the officer was reading the juvenile advisement form,

L.E.R-N.’s mother attempted to make several phone calls to get

advice about what L.E.R-N. should do. Just as the officer began

questioning L.E.R-N., she received a call from L.E.R-N.’s caseworker

and took the call, still standing next to L.E.R-N. and the officer.

The officer asked L.E.R-N. how he got the car, and L.E.R-N. said he

bought it for sixty dollars from another kid. The officer then asked

when he bought it, and L.E.R-N. responded, “Like two days ago.”

¶7 At that point, L.E.R-N.’s mother interrupted and told L.E.R-N.

to “remain silent actually.” The officer stopped the interview and

waited for L.E.R-N.’s mother to finish her phone call. When she

finished the call, she told L.E.R-N., “We’re not talking to him.” The

officer ended the interview and did not ask any more questions.

¶8 L.E.R-N. was charged in a petition in delinquency with second

degree aggravated motor vehicle theft, possession of a handgun by a

juvenile, and possession of a large-capacity magazine.

¶9 Before trial, he moved to suppress the statements he made in

response to the officer’s questions, asserting that his mother was

3
not “present” during the interrogation, as required by section 19-

2.5-203(1), because she was on the phone. The prosecution argued

that L.E.R-N.’s mother was present because she was “physically

there,” even if she “chose to tune out” the interview.

¶ 10 The juvenile court agreed with the prosecution and denied the

motion to suppress, reasoning as follows:

[I]t is clear that the juvenile advisement of his
rights was completed both orally and in writing
by the juvenile and by his parent. The mother
was present and why she chose to take a
phone call as the interrogation had just begun,
I don’t know, that was probably not the
smartest thing to do. But she was present
during the questioning. Did not stop the
questioning until after she completed the
phone call.

¶ 11 After a trial, the juvenile court adjudicated L.E.R-N. delinquent

on all three counts.

II. Parental Presence During Custodial Interrogation

¶ 12 L.E.R-N. contends that the juvenile court erred by denying his

motion to suppress because his mother was not “present” when the

officer asked him the two questions about how he got the car. He

does not dispute that his mother was physically present at the time

of those questions. But he contends that she was not fully

4
“present” because she was distracted by the phone call and,

therefore, unable to attend to the questions being asked. We are

not persuaded. Under the facts of this case, we agree with the

juvenile court that the parental presence requirement was satisfied.

A. Standard of Review

¶ 13 We review the juvenile court’s suppression ruling as a mixed

question of fact and law. Leyba v. People, 2021 CO 54, ¶ 11. We

defer to the juvenile court’s factual findings if those findings have

record support, and we review the legal effect of the facts de novo.

Id. When, as in this case, the statements were video-recorded and

there are no disputed facts outside the recording, we are in a

similar position to the juvenile court to determine whether the

statements should be suppressed. Id. In such a scenario, we may

independently review the video recording to determine whether the

statements were properly admitted in light of controlling law. Id.

¶ 14 We review issues of statutory interpretation de novo. McCoy v.

People, 2019 CO 44, ¶ 37. In interpreting a statute, we aim to

“ascertain and give effect to the legislature’s intent.” Id. We begin

with the “language of the statute, giving its words and phrases their

plain and ordinary meanings.” Id. But we do not read words or

5
phrases in isolation. Lewis v. Taylor, 2016 CO 48, ¶ 20. Instead,

we read them in context based on rules of grammar and common

usage. McCoy, ¶ 37. We also “endeavor to effectuate the purpose of

the legislative scheme” by “read[ing] that scheme as a whole, giving

consistent, harmonious, and sensible effect to all of its parts” and

“avoid[ing] constructions that would render any words or phrases

superfluous or lead to illogical or absurd results.” Id. at ¶ 38.

B. Parental Presence Requirement

¶ 15 Section 19-2.5-203(1) requires a parent to be present during

the custodial interrogation of a juvenile. It provides as follows:

A statement or admission of a juvenile made as
a result of the custodial interrogation of the
juvenile by a law enforcement official
concerning delinquent acts alleged to have
been committed by the juvenile are not
admissible in evidence against the juvenile
unless a parent . . . of the juvenile was present
at such interrogation . . . .

Id.2 The purpose of this requirement is to provide an “additional

and necessary assurance that the juvenile’s Fifth Amendment right

2 Section 19-2.5-203(1) also requires that the juvenile’s parent be

advised of certain of the juvenile’s rights, including the right to
remain silent and the right to counsel. That requirement is not at
issue in this case, and we express no opinion as to what qualifies as
an adequate advisement for purposes of the statute.

6
against self-incrimination . . . will be fully afforded to him.” People

in Interest of A.L.-C., 2016 CO 71, ¶ 12 (citation omitted).3

¶ 16 But the statute “merely requires that a parent be present.” Id.

at ¶ 11. It does not require the parent to share the juvenile’s

interests or “h[o]ld the juvenile’s interests ‘uppermost in mind.’” Id.

at ¶ 13. Nor does it require effective assistance from the parent. Id.

at ¶ 14. So long as the parent “accompanie[s]” the juvenile during

the interrogation, the statutory requirement is satisfied. Id. at ¶ 11.

C. Meaning of Presence

¶ 17 The admissibility of L.E.R-N.’s statements turns on the

meaning of the word “present.” The People contend that it means

only that the parent physically accompany the juvenile — in other

words, that the parent is physically present during the

interrogation. L.E.R-N. argues that it requires a degree of

attentiveness — or mental presence — that was lacking in this case.

3 Section 19-2.5-203(1) was previously codified at section 19-2-

511(1), C.R.S. 2016, and People in Interest of A.L.-C., 2016 CO 71,
applied that predecessor statute. But the relevant language has not
changed. See Ch. 136, sec. 2, § 19-2.5-203, 2021 Colo. Sess. Laws
567-69; Nicholas v. People, 973 P.2d 1213, 1218 & n.8 (Colo. 1999)
(citing prior versions of statute dating back to 1967), superseded by
statute, Ch. 332, sec. 10, § 19-2-511(2), 1999 Colo. Sess. Laws
1374-75, as recognized in People v. J.D., 989 P.2d 762 (Colo. 1999).

7
Although we need not in this case define the outer boundaries of

what qualifies as physical presence, we fundamentally agree with

the People’s interpretation under the facts of this case.

¶ 18 To start, the plain and ordinary meaning of the word “present”

generally connotes a physical component. As L.E.R-N. recognizes,

one prevailing definition of the word is “being in one place and not

elsewhere” or “being in view or at hand.” Webster’s Third New

International Dictionary 1793 (2002); see also Miller v. Amos, 2024

CO 11, ¶ 23 (“In determining the usual and ordinary meaning, we

may look to a dictionary for assistance.”). “Presence” is similarly

defined as “[t]he quality, state, or condition of being in a particular

time and place, particularly with reference to some act that was

done then and there.” Black’s Law Dictionary 1432 (12th ed. 2024).

Thus, as a division of this court has held in another context, “the

plain, commonsense meaning of ‘presence’ requires physical

location in the same place as the referring person or thing.” Barnes

v. Dep’t of Revenue, 23 P.3d 1235, 1236 (Colo. App. 2000).

¶ 19 That interpretation comports with the supreme court’s

interpretation of the statute in A.L.-C. Although A.L.-C. did not

directly address the definition of “present,” it concluded that the

8
parental presence requirement was satisfied because the juvenile’s

mother “accompanied him throughout the interview process” —

even if the mother was incapable of protecting the juvenile’s rights

due to a conflict of interest. A.L.-C., ¶¶ 1, 11. In doing so, the court

expressly rejected an “effective-assistance-of-parent” standard that

would take into account whether the parent was able to provide the

assistance the statute was designed to ensure, noting that the

legislature had chosen to require only that a parent be present to

“stand ‘on the side’ of the juvenile.” Id. at ¶ 14 (citation omitted).

¶ 20 This physical conception of presence is also consistent with

the context and structure of the statute as a whole. The statute

requires a parent to be present at the interrogation — a preposition

that itself connotes a particular time and place. See § 19-2.5-

203(1). And another subsection alternatively allows the juvenile to

be “accompanied by a responsible adult who was a custodian of the

juvenile or assuming the role of a parent at the time.” § 19-2.5-

203(3). Harking back to the language used in A.L.-C., this

subsection effectively equates a responsible adult accompanying the

juvenile to a parent being present — further suggesting that the

legislature intended to require only physical presence. See People v.

9
Dist. Ct., 713 P.2d 918, 921 (Colo. 1986) (“If separate clauses within

a statute may be reconciled by one construction but would conflict

under a different interpretation, the construction which results in

harmony rather than inconsistency should be adopted.”).

¶ 21 L.E.R-N. relies on several alternative definitions of the word

“present” to argue that the term is ambiguous. And it is true that

“present” can also mean “attentive” or “having one’s mind or

thoughts directed toward a matter at hand.”4 Webster’s Third New

International Dictionary 1793 (2002). But “[t]he fact that an

undefined word in a statute has more than one dictionary definition

does not necessarily render either the word or the statute

ambiguous.” Ybarra v. Greenberg & Sada, P.C., 2016 COA 116,

¶ 16, aff’d, 2018 CO 81. In light of A.L.-C. and the statute as a

whole, the word “present” is not “reasonably susceptible” in this

context of the interpretation L.E.R-N. proposes. McCoy, ¶ 38. Such

4 Webster’s Third New International Dictionary characterizes this

definition as obsolete. L.E.R-N. cites a similar definition from
another dictionary, but we have been unable to locate that
definition in that dictionary, and it does not appear in the
attachment to L.E.R-N.’s opening brief, as he asserts. Nevertheless,
we recognize that this is one possible meaning of “present.”

10
an interpretation would be tantamount to the “effective-assistance-

of-parent” standard that A.L.-C. rejected. A.L.-C., ¶ 14.

¶ 22 Indeed, not only does such an interpretation find no support

in the statute or the case law, but it would be unworkable. See

People v. Griffin, 397 P.3d 1086, 1090 (Colo. App. 2011) (rejecting a

statutory interpretation that “yields unworkable results”). It is one

thing for an interrogating officer to ensure that a parent is

physically present. It is quite another to ensure that a parent is

paying sufficient attention. And what degree of attention would be

sufficient? What about a parent who scrolls through their phone or

sends a text message during the interrogation? What about one

who is daydreaming or thinking about other things? How would a

court — much less an officer in the moment — make that

determination? The statute gives us no way to draw these lines.

¶ 23 This case illustrates that dilemma. L.E.R-N.’s mother was

fully engaged with the officer and L.E.R-N. for all but seconds of

their several-minute interaction, asking questions and seeking

clarifications on the advisement. She consented to the interview

and remained within feet of the officer, where she could hear him

speaking to L.E.R-N. And even while on the phone, she remained

11
sufficiently engaged to stop the questioning after just two questions.

Thus, L.E.R-N.’s mother was attentive to some degree, and her

presence ultimately, if belatedly, served the statute’s purpose.

L.E.R-N. offers no standard — much less one grounded in the

statute — for assessing whether his mother was attentive enough.

¶ 24 L.E.R-N. also asserts that the statutory purpose of protecting

the juvenile would be better served by a requirement that the

parent be attentive to the interrogation. And that may be true. But

it is not the line the legislature drew. See A.L.-C., ¶ 14. Instead,

the legislature determined that a juvenile’s rights are sufficiently

protected by having a parent “present during the advisement and

interrogation.” Id.; see also Grant v. People, 48 P.3d 543, 549 (Colo.

2002) (“The crux of the statute . . . is that the juvenile have access

to an adult who will help safeguard the child’s constitutional

12
rights . . . .”) (emphasis added). We may not add a parental

attentiveness requirement through a “judicial gloss.” A.L.-C., ¶ 14.5

D. L.E.R-N.’s Mother Was Present

¶ 25 L.E.R-N. does not dispute that his mother was physically

present when the officer asked L.E.R-N. the two questions at issue.

She was within a couple feet of the officer, in effectively the same

position she had been in during the reading of the advisement. The

officer could hear her, and she could hear the officer speaking to

L.E.R-N., even as she was on the phone. And she agreed that she

was “within the physical presence” of both the officer and L.E.R-N.

¶ 26 Moreover, although we have rejected an extra-statutory

attentiveness requirement, we reiterate that L.E.R-N.’s mother was

generally engaged in the interaction between the officer and her

son. At most, thirty seconds passed between her taking the phone

5 L.E.R-N. relies on cases that predate A.L.-C., for the proposition

that a parent’s physical presence does not suffice if the parent is
not in a position to provide effective guidance and advice to the
juvenile. See People v. White, 64 P.3d 864, 873 (Colo. App. 2002);
People in Interest of L.B., 513 P.2d 1069, 1070 (Colo. App. 1973).
To the extent those cases could apply on these facts, where
L.E.R-N.’s mother did provide guidance and advice, they are
inconsistent with A.L.-C. See A.L.-C., ¶¶ 15-20 (distinguishing
cases addressing whether the accompanying adult shared the
juvenile’s interests and rejecting such a requirement for a parent).

13
call and her instruction to L.E.R-N. to “remain silent actually,” thus

demonstrating both her awareness that questioning was in progress

and her ability to participate even as she was on the phone. In

other words, this was not a situation in which the parent was

physically present but otherwise unaware of what was happening.6

¶ 27 Thus, we conclude that L.E.R-N.’s mother was present at the

custodial interrogation, even if her attention was briefly divided.

The juvenile court correctly denied the motion to suppress.

III. Sufficiency of the Evidence

¶ 28 L.E.R-N. also contends that the evidence was insufficient to

support his adjudications for possession of a handgun and a large-

capacity magazine. He asserts that (1) Perez’s statements to police

that L.E.R-N. handed him the gun were the only evidence at trial

that L.E.R-N. possessed the handgun and magazine; and (2) those

statements, introduced as prior inconsistent statements, were

6 L.E.R-N. warns that if we construe the parental presence

requirement to mean physical presence, the statute would be
satisfied even when the parent is asleep or unconscious. We
disagree. Those are not the facts of our case, and we express no
opinion on how the statute would apply in that extreme scenario.

14
admissible only for impeachment. We disagree on both points and

conclude the evidence was sufficient to support the adjudications.

A. Additional Background

¶ 29 As noted above, the handgun and magazine were found on the

front passenger side floorboard of the car, at the feet of L.E.R-N.’s

adult codefendant, Perez. When the officers asked Perez about the

gun, he said that L.E.R-N. had handed it to him when they got to

the apartment complex and told him to “watch his 10.”

¶ 30 Perez testified at trial. The prosecutor asked him if he

remembered telling the police that L.E.R-N. had “handed [him] the

gun when he parked and told [him] to watch the 10.” Perez said he

did not remember saying that. The prosecutor then asked Perez

whether he recalled telling a different officer that L.E.R-N. handed

him the gun. Perez again said he did not recall and elaborated:

No. Honestly, all these questions are, like,
just — this is something that I would say to
somebody — it sounds like something I was
saying. But, no. Honestly what happened was
when they pulled up, the gun was, like, in the
middle. And so when they had their guns
drawn, I didn’t want them to see — that to be
the first thing they seen; so I threw it on the
floor. So, like, whatever, all these questions
are leading to, that’s really, you know, what I
have to say about the whole gun situation.

15
¶ 31 Perez further testified that the gun was not his, it was already

in the car when he got in, no one else had been in the car with him

and L.E.R-N., and he had “grabbed the gun out of the center

console and placed it by [his] feet” when the officers approached.

¶ 32 After Perez’s testimony, the two officers testified about Perez’s

prior statements — namely, that Perez had told them L.E.R-N.

handed him the gun and told him to “watch his 10,” or “basically be

on the lookout.” The second officer’s testimony was admitted over

L.E.R-N.’s counsel’s objection as a prior inconsistent statement.

¶ 33 In addition to this testimony, the prosecution introduced as

exhibits two of L.E.R-N.’s social media posts depicting L.E.R-N.

pointing a handgun with a large-capacity magazine at the camera.

¶ 34 In adjudicating L.E.R-N. guilty of possessing the handgun and

magazine, the juvenile court relied on the social media posts,

Perez’s testimony, and Perez’s prior statements to the officers:

The Court has considered the various exhibits
admitted by the People in which the juvenile
has posted several photographs of himself
brandishing a weapon, including a weapon
that looks like the weapon that was found on
the passenger floorboard. It is uncertain and
the People did not offer any evidence that it is,
in fact, the gun. But it is obviously very
similar by appearance.

16
When Mr. Perez was contacted by law
enforcement, he was asked about the weapon.
And although he didn’t recall making those
statements today, his statements to law
enforcement were that the juvenile had handed
him the gun. He did testify today that the gun
was in the center console, and he moved it
over to the floorboard as he was concerned,
you know, that’s what law enforcement would
see when they approached the vehicle.

Based on the exhibits and based on the
testimony, I find that the statements he gave
to law enforcement on [the date of the offense]
were credible and that it is a weapon, a gun
that the juvenile was in possession of. It was
in a car that he was driving.

And, again, I find the statements made to the
officers by Mr. Perez on the date of the incident
credible.

B. Standard of Review

¶ 35 When a juvenile challenges the sufficiency of the evidence to

support an adjudication,

[w]e review the record de novo to determine
whether the relevant evidence, both direct and
circumstantial, when viewed as a whole and in
the light most favorable to the prosecution, is
substantial and sufficient both in quantity and
quality to support a conclusion by a
reasonable mind that the [juvenile] is guilty of
the charge beyond a reasonable doubt.

People in Interest of B.D., 2020 CO 87, ¶ 8.

17
¶ 36 We do not assess the credibility of witnesses or resolve

conflicts or inconsistencies in the evidence. People in Interest of

K.D.W., 2020 COA 110, ¶ 38. Nor may we set aside an adjudication

“merely because we might have drawn a different conclusion had we

been the trier of fact.” Id. Instead, we ask only whether “any

rational trier of fact could accept the evidence . . . as sufficient to

support a finding of guilt beyond a reasonable doubt.” Id.

¶ 37 L.E.R-N. argues that the evidence was insufficient to establish

that he knowingly possessed the handgun and large-capacity

magazine. See §§ 18-12-108.5, 18-12-302(1)(a), C.R.S. 2024.

Possession means “actual or physical control.” People v. Allgier,

2018 COA 122, ¶ 65 (citation omitted). This means that the

juvenile must either physically possess the firearm or exercise

immediate control over it. See id. at ¶ 63; People v. Van Meter, 2018

COA 13, ¶ 43 (holding that a jury instruction “framing ‘possession’

in terms of ‘physical possession or control’ . . . mirrors the generally

accepted meaning of the term ‘possession’”); People v. Warren, 55

P.3d 809, 816 (Colo. App. 2002) (approving a jury instruction

defining possession as encompassing “the elements of immediate

access to, and control and dominion over, an object”). The juvenile

18
must also be “aware of his physical possession or control [of the

firearm] for a sufficient period to have been able to terminate it.”

§ 18-1-501(9), C.R.S. 2024; see also § 18-1-502, C.R.S. 2024.

¶ 38 But possession does not require exclusive control. Allgier,

¶ 66. Nor does it require ownership. Id. at ¶¶ 67-68. Thus, a

defendant may be found guilty of possessing a gun, even if the

defendant does not have exclusive control over it. Id. at ¶ 66.

C. Perez’s Prior Inconsistent Statements

¶ 39 The thrust of L.E.R-N.’s argument is that Perez’s prior

statements to the officers were admissible for impeachment

purposes only and could not be considered as substantive evidence

of his guilt under section 16-10-201, C.R.S. 2024. We disagree.

¶ 40 Section 16-10-201 provides that a witness’s prior inconsistent

statement is admissible “for the purpose of establishing a fact to

which [the] testimony and the inconsistent statement relate,” if two

conditions are satisfied: (1) the witness, while testifying, was given

an opportunity to explain or deny the statement or the witness is

still available to give further testimony in the trial; and (2) the

previous inconsistent statement purports to relate to a matter

within the witness’s own knowledge. This statute allows prior

19
inconsistent statements to be used as substantive evidence of the

matter asserted, so long as the statutory foundation requirements

are satisfied. Montoya v. People, 740 P.2d 992, 997-98 (Colo. 1987).

¶ 41 L.E.R-N. does not contest the second element of section 16-10-

201 admissibility — that the prior inconsistent statements related

to a matter within Perez’s own knowledge. Nor does he dispute that

Perez’s trial testimony was inconsistent with those statements. And

the People do not contend that Perez remained available to give

further testimony (the second alternative to the first element). So

the substantive use of Perez’s statements to the police turns on

whether Perez “was given an opportunity to explain or deny the

statement[s].” § 16-10-201(1)(a). We conclude that he was.

¶ 42 After Perez testified that L.E.R-N. did not hand him anything

when they arrived at the apartment complex — a statement plainly

inconsistent with his statements to police — the prosecutor asked

him if he remembered speaking with the officers. Perez said he did

not. The prosecutor then asked him a series of specific questions

mirroring the precise language of the statements, again asking if

Perez recalled making those statements. Although Perez again said

he did not, these questions gave him the opportunity to explain or

20
deny the statements. See People v. Leverton, 2017 COA 34, ¶ 30

(holding that witnesses had the opportunity to explain or deny

statements when the prosecutor “confront[ed] them with the exact

language of their prior statements” and the witnesses said they did

not remember them). Section 16-10-201(1)(a) does not require that

the witness in fact deny or explain the prior statement, only that

they had the opportunity to do so. See Montoya, 740 P.2d at 998.

¶ 43 Moreover, Perez did attempt to explain the statements,

acknowledging that it “sounds like something” he would say but

“what happened was when they pulled up, the gun was . . . in the

middle . . . so [he] threw it on the floor.” And by testifying that he

did not recall making the statements and offering a different

account of what occurred, Perez effectively did deny the statements.

See Leverton, ¶ 29 (“Under the statute, a witness’s inability to

remember a statement ‘is tantamount to a denial that [the witness]

made the statement.’” (quoting People v. Baca, 633 P.2d 528, 529

21
(Colo. App. 1981))); Davis v. People, 2013 CO 57, ¶ 7 n.2 (“A

witness’s actual or feigned memory loss is tantamount to denial.”).7

¶ 44 Thus, because Perez had the “opportunity to explain or deny”

his prior inconsistent statements, those statements were admissible

“not only for the purpose of impeaching [Perez’s] testimony . . . but

also for the purpose of establishing” that L.E.R-N. handed him the

gun. § 16-10-201(1). And the juvenile court found that Perez’s

statements to the officers on the date of the incident were credible.

D. Other Evidence

¶ 45 We also reject L.E.R-N.’s argument that Perez’s prior

inconsistent statements were the only evidence that L.E.R-N.

possessed the gun and magazine.8 In addition to those statements,

the evidence at trial also included (1) the circumstantial evidence

7 L.E.R-N. urges us not to follow People v. Leverton, 2017 COA 34,

and People v. Baca, 633 P.2d 528 (Colo. App. 1981), in equating a
lack of recollection with a denial, asserting that the statement in
Davis v. People, 2013 CO 57, ¶ 7 n.2, to this effect is noncontrolling
dicta. While we reject this invitation, we note that it is beside the
point because the statute does not require that the witness deny
the statement before it can be considered for substantive purposes.
See Montoya v. People, 740 P.2d 992, 998 (Colo. 1987).
8 The magazine was attached to the gun when it was found, so our

reference to the gun includes both the gun and the magazine.

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that the gun and magazine were found in a vehicle L.E.R-N. was

driving; (2) Perez’s trial testimony that the gun was not his and was

already in the car when he got in; and (3) the social media posts

showing L.E.R-N. holding a gun that the juvenile court found was

“very similar by appearance” to the gun found in the car.

¶ 46 L.E.R-N. attempts to discount the presence of the gun in the

car he was driving by arguing that fact does not necessarily prove

the gun was in his actual or physical control. See Allgier, ¶ 65. But

the question in a sufficiency analysis is not whether the evidence

necessarily proves the juvenile’s guilt. The question is whether a

rational trier of fact could accept the evidence, taken as a whole and

in the light most favorable to the prosecution, as sufficient to

support a finding of guilt beyond a reasonable doubt. K.D.W., ¶ 38.

¶ 47 And the presence of the gun in the car did not stand alone.

Added to that fact was Perez’s testimony that (1) he and L.E.R-N.

were the only ones in the car; (2) no one else drove the car that day;

(3) the gun did not belong to Perez; (4) the gun was in the center

console; and (5) the gun was already in the car when Perez got in.

A reasonable fact finder could infer from these circumstances that

L.E.R-N. knowingly possessed the gun. See People v. Chase, 2013

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COA 27, ¶ 50 (“If there is evidence upon which one may reasonably

infer an element of the crime, the evidence is sufficient to sustain

that element.”); see also United States v. Moody, 2 F.4th 180, 193

(4th Cir. 2021) (holding that defendant’s status as the driver of the

vehicle in which the gun was found was “relevant to her knowledge

and ability to exercise dominion and control over” the gun).

¶ 48 L.E.R-N. also attacks the strength of the social media posts on

several fronts. He points out that there was no evidence that the

guns in the photos were the same gun found in the vehicle, and he

points to several claimed discrepancies between the guns to suggest

they were not. He highlights the lack of any evidence of when the

photos were taken or when one of them was posted. And he

disputes whether it was him holding the gun in the photos at all.

¶ 49 But all these challenges go to the weight of the social media

posts — a matter within the province of the juvenile court. See

K.D.W., ¶ 38 (noting that we may not resolve disputes or

inconsistencies in the evidence). What matters for our purposes is

that the juvenile court found that L.E.R-N. had “posted several

photographs of himself brandishing a weapon” that looked “very

similar by appearance” to the gun he was charged with possessing.

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Having viewed the photos, and giving the prosecution the benefit of

every favorable inference to be drawn from those photos, that

finding has record support, and we may not second-guess it. See

People v. Harrison, 2020 CO 57, ¶ 33; see also People v. Bondurant,

2012 COA 50, ¶ 58 (“Where reasonable minds could differ, the

evidence is sufficient to sustain a conviction.”) (citation omitted).

¶ 50 To summarize, viewed as a whole and in the light most

favorable to the prosecution, the evidence establishes the following:

(1) L.E.R-N. was the driver of the car in which the gun was found;

(2) the only other occupant of the car did not put the gun in the car;

(3) the other occupant told police that L.E.R-N. handed him the

gun; and (4) L.E.R-N. posted photos to social media of him holding

a gun that looked similar to the gun found in the car. This evidence

is “substantial and sufficient both in quantity and quality to

support a conclusion by a reasonable mind” beyond a reasonable

doubt that L.E.R-N. possessed the gun and magazine. B.D., ¶ 8.

IV. Disposition

¶ 51 The judgment is affirmed.

JUDGE FREYRE and JUDGE SULLIVAN concur.

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