Colorado Motor Vehicle Dealer Board v. Freeman

JUDGE DUNN

dissenting.

¶ 24 The majority opinion is well-reasoned and articulate, and but for People v. McKinney, 99 P.3d 1038 (Colo.2004), I would join it. McKinney, however, concluded that theft from an at-risk adult is not a separate offense; rather, it is an enhanced form of general theft. Id. at 1043. This conclusion was based on the fact that the at-risk adult statute, section 18-6.5-103(5), C.R.S.2014, simply refers back to the general theft statute and includes no additional elements. Id. Applying the same logic, a division of this court concluded that robbery of an at-risk adult is an enhanced form of robbery, not an independent crime. People v. Lovato, 179 P.3d 208, 212 (Colo.App.2007).

¶25 Similarly, the at-risk adult statute does not create a separate substantive crime of third degree assault of an at-risk adult. Rather, it provides that a person who commits third degree assault “as such crime is described in section 18-3-204” commits a class 6 felony if the victim is an at-risk adult. § 18-6.5-103(3)(c), Thus, third degree assault of an at-risk adult is an enhanced form of third degree assault, not an independent crime. Compare McKinney, 99 P.3d at 1043, with Lovato, 179 P.3d at 208 (criminal negligence provision of at-risk adult statute was not just an enhancer where that provision did not refer to another statute but “combine[d] several elements to create a separate substantive offense”).

¶ 26 Because Freeman assaulted an at-risk adult, he was convicted of enhanced third degree assault. § 18-3-204, C.R.S.2014; § 186.5-103(3)(c). That said, for purposes of determining whether Freeman’s conviction mandatorily disqualified him from obtaining a motor vehicle salesperson’s license, the question is whether his felony conviction was “in violation of article 3 ... of title 18.” § 12-6-118(7)(a)(I), C.R.S.2014 (applicant is man-datorily disqualified from obtaining a license if convicted of a “felony in violation of article 3, 4, or 5 of title 18” within the previous ten years).

¶ 27 Because subsection 103(3)(c) of the at-risk adult statute does not create an independent substantive offense, Freeman could not be convicted of a felony “in violation” of article 6.5 of title 18. See McKinney, 99 P.3d at 1043. Rather, he violated the general third degree assault statute set forth in article 3 of title 18. While section 18-6.5-103(3)(c) enhanced Freeman’s offense to a felony, there, still had to be an underlying crime that Freeman committed. The underlying crime here is contained in article 3 of title 18. That the source of the enhancement is outside of article 3 does not alter my opinion. In my view, a statutory enhancer has the same effect regardless of where it resides in the criminal code.

¶ 28 In sum, because Freeman could not be convicted of assault on an at-risk adult without being convicted of third degree assault, as set forth in article 3 of title 18, he was, in my view, convicted of a felony in violation of article 3 of title 18. Consequently, I would affirm the Board’s finál order denying Freeman’s application for a motor vehicle salesperson’s license.

¶ 29 Accordingly, I respectfully dissent.