People v. Lopez ( 2018 )

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,
1
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:
8
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,
10
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.
14
¶ 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.
15
¶ 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
17
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
19
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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