     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.




                                    3
                                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


                                     4
  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:


                                      5
            [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:

                                     6
            [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.




                                    7
¶ 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


                                    9
  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).




                                     11
                                   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.


                                        12
¶ 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.”




                                     13
  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


                                    18
  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.




                                      20
