v. Flynn , 2020 COA 54 ( 2020 )

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
March 26, 2020
2020COA54
No. 19CA0318, People v. Flynn — Crimes — Harboring a Minor
As a matter of first impression, a division of the court of
appeals interprets section 18-6-601(1)(a)(I), C.R.S. 2019, harboring
a minor, and holds that the plain language requires the minor’s
release to the officer requesting such release. Because insufficient
evidence established this element, the harboring a minor conviction
is vacated. The judgment is affirmed in all other respects.
COLORADO COURT OF APPEALS 2020COA54
Court of Appeals No. 19CA0318
Weld County District Court No. 17CR430
Honorable Thomas J. Quammen, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kristin Marie Flynn,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND VACATED IN PART
Division VI
Opinion by JUDGE FREYRE
Richman and Grove, JJ., concur
Announced March 26, 2020
Philip J. Weiser, Attorney General, Joseph G. Michaels, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
The Walsh Law Firm, LLP, Jeffrey M. Walsh, Steamboat Springs, Colorado, for
Defendant-Appellant
¶1 Defendant, Kristin Marie Flynn, appeals the judgment of
conviction entered on jury verdicts finding her guilty of the
misdemeanor offenses of harboring a minor (harboring) and
obstructing a peace officer. She challenges only the sufficiency of
the evidence to support her conviction for harboring a minor, which
requires us to interpret, as matter of first impression, section 18-6-
601(1)(a)(I), C.R.S. 2019. Because the plain language of the statute
makes it a crime for a person to fail to release a minor after being
requested to do so by the officer, and because nothing in the trial
record establishes this element, we vacate Ms. Flynn’s harboring
conviction. We affirm the judgment in all other respects.
I. Factual Background
¶2 The following facts are not disputed.
¶3 Ms. Flynn’s teenage son and his teenage girlfriend, T.B. (both
minors), ran away from home (in Greeley, Colorado) to avoid the
consequences of having an unauthorized party at T.B.’s parents’
home while her parents were away. They left in T.B.’s mother’s van
and took the three family dogs with them. The minors were
reported as runaways. At the time, T.B. had an outstanding arrest
warrant for unrelated conduct.
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¶4 T.B.’s mother suspected the teens were in Craig, Colorado.
She went to Craig and retrieved the van and the dogs, but she did
not attempt to locate the teens.
¶5 Concerned about the teens’ welfare, Ms. Flynn then drove to
Craig, located the teens, and convinced them to return to Greeley
with her. During a stop at a McDonald’s in Denver, Ms. Flynn
secretly called a Weld County Sheriff’s deputy to devise a plan for
taking the teens into custody upon their return to Greeley. She
expressed concerns about their continued cooperation with her.
The deputy told Ms. Flynn to call the Denver police to arrest the
teens if they refused to return to Greeley.
¶6 An hour later, Ms. Flynn notified the deputy that she still had
not left for Greeley and had not called the Denver police. The
deputy again instructed Ms. Flynn to return to Greeley with the
teens or call the Denver police.
¶7 Thereafter, Ms. Flynn did not answer the deputy’s phone calls.
The deputy left a voicemail saying that, if she did not have the teens
in Greeley by 11 p.m., he would issue a warrant for her arrest. Ms.
Flynn returned to Greeley with the teens the following evening and
was subsequently arrested.
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¶8 The prosecution charged Ms. Flynn with two counts of felony
second degree kidnapping, two counts of misdemeanor harboring a
minor, one count of felony possession of a controlled substance,
and one count of misdemeanor obstruction of a peace officer. The
prosecution dismissed the kidnapping charges before trial, and the
jury acquitted Ms. Flynn of the possession charge and the
harboring charge related to her son. The jury convicted her of
harboring T.B. and of obstructing a peace officer.
II. Sufficiency of the Evidence
A. Standard of Review and Law
¶9 We review questions of law involving statutory interpretation
de novo. People v. Gallegos, 2013 CO 45, ¶ 7. When interpreting a
statute, our primary purpose is to ascertain and give effect to the
General Assembly’s intent. Cowen v. People, 2018 CO 96, ¶ 12. “To
do so, we look first to the language of the statute, giving its words
and phrases their plain and ordinary meanings.” McCoy v. People,
2019 CO 44, ¶ 37. “We read statutory words and phrases in
context, and we construe them according to the rules of grammar
and common usage.” Id.3
¶ 10 Our interpretation of a statute “must also endeavor to
effectuate the purpose of the legislative scheme.” Id. at ¶ 38.
Therefore, we “read that scheme as a whole, giving consistent,
harmonious, and sensible effect to all of its parts, and we must
avoid constructions that would render any words or phrases
superfluous or lead to illogical or absurd results.” Id.
¶ 11 “[I]f the language in a statute is clear and unambiguous, we
give effect to its plain meaning and look no further.” Cowen, ¶ 12.
“Only if the statutory language is susceptible [of] more than one
reasonable interpretation and is therefore ambiguous may we resort
to extrinsic aids of construction to address the ambiguity and
decide which reasonable interpretation to accept based on the
legislature’s intent.” Id.
¶ 12 As relevant here, a person commits the offense of harboring a
minor if he or she knowingly provides shelter to a minor without the
consent of the parent, guardian, or custodian of the minor and “if
the person intentionally . . . [f]ails to release the minor to a law
enforcement officer after being requested to do so by the officer.”
§ 18-6-601(1)(a)(I).
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¶ 13 To satisfy due process, the prosecution is required to prove all
elements of a crime beyond a reasonable doubt. Montez v. People,
2012 CO 6, ¶ 21 (citing U.S. Const. amend. XIV, § 1; Colo. Const.
art. II, § 25). In assessing the sufficiency of the evidence to support
a conviction, we review the record de novo to determine whether the
evidence, viewed in the light most favorable to the prosecution, was
substantial and sufficient to support a conclusion by a reasonable
mind that the defendant was guilty beyond a reasonable doubt.
People v. Griego, 2018 CO 5, ¶ 24.
B. Analysis
¶ 14 Ms. Flynn contends that under the plain language of section
18-6-601(1)(a)(I) she can only be guilty of harboring a minor if she
intentionally failed to release a minor to the specific law
enforcement officer who requested the minor’s release — in this
case the Weld County Sheriff’s deputy. Absent any evidence
showing that she failed to release T.B. to the requesting officer, she
argues that insufficient evidence supports her harboring conviction.
Ms. Flynn does not challenge the sufficiency of the remaining
harboring elements.
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¶ 15 Conversely, the Attorney General argues that the same plain
language only requires the prosecution to prove that a defendant
intentionally failed to release a minor to any law enforcement officer
after being requested to do so by a particular and definite law
enforcement officer. Thus, the Attorney General reasons that
sufficient evidence supports Ms. Flynn’s harboring conviction
because she failed to release T.B. to Denver police after the Weld
County Sheriff’s deputy ordered her to contact them.
¶ 16 Giving the statute’s words and phrases their plain and
ordinary meanings and construing the language according to the
rules of grammar and common usage, see McCoy, ¶ 37, we
conclude that section 18-6-601(1)(a)(I) criminalizes a person’s
conduct when he or she intentionally fails to release a minor to the
specific officer who requested the minor’s release.
¶ 17 “It is a rule of law well established that the definite article ‘the’
particularizes the subject which it precedes. It is a word of
limitation as opposed to the indefinite or generalizing force of ‘a’ or
‘an.’” Brooks v. Zabka, 168 Colo. 265, 269, 450 P.2d 653, 655
(1969) (citing People v. Enlow, 135 Colo. 249, 262-63, 310 P.2d 539,
546 (1957)). Courts have consistently applied this proposition
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when engaging in statutory construction. See, e.g., People v.
Iannicelli, 2019 CO 80, ¶ 38; People v. Wentling, 2015 COA 172,
¶ 15; People in Interest of J.O., 2015 COA 119, ¶ 15; People v.
Arzabala, 2012 COA 99, ¶ 27; In re Marriage of Webb, 284 P.3d
107, 110 (Colo. App. 2011).
¶ 18 Applying that proposition here, we conclude that the statute’s
use of the word “the” to reference the officer requesting a minor’s
release particularizes or defines that officer as the same previously
referenced law enforcement officer to whom the minor would be
released. See Nielsen v. Preap, 586 U.S. ___, ___, 139 S. Ct. 954,
965 (2019) (“[G]rammar and usage establish that ‘the’ is ‘a function
word . . . indicat[ing] that a following noun or noun equivalent is
definite or has been previously specified by context.’” (quoting
Merriam-Webster’s Collegiate Dictionary 1294 (11th ed. 2005)))
(emphasis added); cf. People v. Close, 867 P.2d 82, 88-89 (Colo.
App. 1993) (Where a jury instruction initially referenced “a crime”
and thereafter referenced “the crime,” “[t]his grammatical switch to
the definite article ‘the’ clearly refers the jury back to the same
offense which it established had been committed in step one.”),
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disapproved of on other grounds by Bogdanov v. People, 941 P.2d
247 (Colo. 1997).
¶ 19 The Attorney General’s interpretation would require us to
improperly consider the phrase “the officer” independently from the
remaining statutory language and determine that, irrespective of
the law enforcement officer to whom a minor would be released, the
reference to “the officer” means only that a “definite” or “specific”
officer must request a minor’s release. See McCoy, ¶ 37; People v.
Thomas, 2020 COA 19M, ¶ 57 (We must discern the particular
meaning of a statute’s words and phrases “in the context of the
statute as a whole.”).
¶ 20 But, regardless of whether the legislature chose to refer to the
officer requesting a minor’s release as “any officer,” “an officer,” or
“the officer,” the statute necessarily requires a definite, identifiable
officer to make a request for a minor’s release before an individual
can be held criminally liable. Thus, the Attorney General’s reading
of “the officer” as requiring only that some definite officer request a
minor’s release would render the word “the” meaningless. See
Iannicelli, ¶ 47 (“We cannot . . . interpret statutory language in such
a way as to render any of the statute’s terms meaningless.”).
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¶ 21 Instead, reading the phrase in the context of the remaining
statutory language and applying the particularizing effect of the
word “the,” we conclude that the legislature intended for “the
officer” requesting a minor’s release to be the same as the
previously referenced law enforcement officer to whom the minor
would be released. See Brooks, 168 Colo. at 269, 450 P.2d at 655;
see also Nielsen, 586 U.S. at ___, 139 S. Ct. at 965.
¶ 22 We are not persuaded by the Attorney General’s assertion that
Ms. Flynn’s interpretation would lead to an illogical result because
a person could avoid criminal liability under the harboring statute if
he or she intentionally failed to release a minor to a physically
present law enforcement officer after being requested to do so by a
remote officer. See McCoy, ¶ 38; see also AviComm, Inc. v. Colo.
Pub. Utils. Comm’n, 955 P.2d 1023, 1031 (Colo. 1998) (“[A]lthough
we must give effect to the statute’s plain and ordinary meaning, the
intention of the legislature will prevail over a literal interpretation of
the statute that leads to an absurd result.”) (citations omitted). The
Attorney General reasons that requiring the presence of the
requesting officer would frustrate law enforcement operations and
endanger the minor.
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¶ 23 However, the Attorney General does not explain why, in a
situation where a remote officer requests the release of a minor, the
physically present officer would be precluded from also requesting
the minor’s release, or why the physically present officer would be
unable to execute his or her law enforcement duties in the absence
of the remote officer. Indeed, the scenario envisioned by the
Attorney General would arise only if the physically present officer
made no attempts to obtain a minor’s release from the individual
harboring the minor, but silently waited for that individual to
respond to the remote officer’s request for the minor’s release —
one we find highly unlikely.
¶ 24 We deem it more plausible that, even where a remote officer
requests the release of a minor, a physically present officer would
also request the minor’s release upon his or her arrival at the scene.
In this more likely scenario, the physically present officer would be,
consistent with our reading of the statute, the requesting and
receiving officer, and an individual would be guilty of harboring a
minor if he or she intentionally failed to release the minor to that
officer.
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¶ 25 Finally, we are not persuaded by the Attorney General’s
alternate argument that, because a law enforcement officer, in other
circumstances, is considered part of law enforcement as a whole,
any request for the release of a minor by an officer should
constitute a request by law enforcement generally. Nothing in the
statutory language supports such a construction. See Turbyne v.
People, 151 P.3d 563, 567 (Colo. 2007) (Where a statute’s language
is clear and the plain and ordinary meaning of the provision can be
applied, “[w]e do not add words to the statute or subtract words
from it.”); see also Cowen, ¶ 12.
III. Conclusion
¶ 26 The judgment for obstructing a police officer is affirmed and
the judgment for harboring a minor is vacated.
JUDGE RICHMAN and JUDGE GROVE concur.
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