     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 6, 2020

                                2020COA19

No. 16CA0107, People v. Thomas — Crimes — Resisting Arrest
— Assault in the Third Degree — Criminally Negligent Bodily
Injury to an At-Risk Adult; Criminal Law — Lesser Included
Offenses

     A division of the court of appeals considers whether (1) a

defendant resisted arrest when he went limp while being moved to a

patrol car; (2) the condition of the area surrounding an arrest can

properly be considered to prove that a defendant’s resistance

created a substantial risk of causing bodily injury to the arresting

officer; (3) causing negligent injury to an at-risk adult is included in

third degree assault causing injury to another person; and (4)

section 18-1.3-801(2)(b), C.R.S. 2019, eliminates level 4 drug

felonies as triggering and predicate felonies under section

18-1.3-801(2)(a).
     The division concludes that, by going limp while being moved

to the patrol car, the defendant resisted arrest because he was

resisting police efforts to maintain physical control over him and to

proceed with arrest procedures of booking and bonding. People v.

Tottenhoff, 691 P.2d 340, 344-45 (Colo. 1984).

     A defendant resists arrest when, among other things, he or

she uses means other than the direct use or threat of physical force

or violence that “create[] a substantial risk of causing bodily injury

to the peace officer or another.” § 18-8-103(1)(b), C.R.S. 2019. The

division concludes that this includes increasing the risk that a

peace officer or another will be injured by surrounding conditions.

     The division also concludes that proof that the victim was a

person does not always prove that the victim was at least seventy

years old. Hence, negligent bodily injury to an at-risk adult is not a

lesser included offense of third degree assault causing injury to

another.

     The division further concludes that section 18-1.3-801(2)(b)

eliminates level 4 drug felonies as triggering felonies for habitual

criminal sentencing, but does not prohibit courts from considering
level 4 drug felony convictions as predicate felony convictions.

Therefore, the division affirms the convictions and sentence.
COLORADO COURT OF APPEALS                                          2020COA19


Court of Appeals No. 16CA0107
Mesa County District Court No. 15CR304
Honorable Charles R. Greenacre, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Weston Jefferson Thomas,

Defendant-Appellant.


                      JUDGMENT AND SENTENCE AFFIRMED

                                   Division I
                        Opinion by JUDGE CARPARELLI*
                        Taubman and Grove, JJ., concur

                          Announced February 6, 2020


Philip J. Weiser, Attorney General, Carmen Moraleda, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, 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. 2019.
¶1    Defendant, Weston Jefferson Thomas, appeals the judgment of

 conviction and sentence entered on jury verdicts finding him guilty

 of third degree assault (a class 6 felony), resisting arrest (a class 2

 misdemeanor), and negligent bodily injury to an at-risk adult (a

 class 6 felony). He also appeals his adjudication and sentencing as

 a habitual criminal. We affirm.

                            I.    Background

¶2    Thomas lived in a trailer on the victim’s property. According

 to the victim, she went to Thomas’s trailer after receiving

 complaints that Thomas was being loud and disruptive. When she

 did so, Thomas grabbed her by the neck with two hands and

 slammed her into a nearby parked car. During the altercation,

 Thomas yelled at the victim that she “didn’t belong in this world.”

¶3    S.F., who lived in a nearby trailer, testified that he came out of

 his trailer when he heard a ruckus. He said he saw Thomas with

 two hands around the victim’s neck, holding her up against a

 parked car, and yelling that she did not “need to be in this world.”

 S.F. further testified that he separated Thomas from the victim and

 restrained him on the ground until the police arrived. When the

 police arrived, they arrested Thomas. As they attempted to


                                     1
 handcuff him, Thomas resisted their efforts by flailing his arms. As

 they attempted to put him in the patrol car, he resisted their efforts

 by going limp.

¶4    At trial, the evidence centered on Thomas’s and the victim’s

 conflicting testimony. The jury found Thomas guilty of third degree

 assault, negligent bodily injury to an at-risk adult, and resisting

 arrest.

      II.   Sufficient Evidence Supports Thomas’s Conviction for
                        Misdemeanor Resisting Arrest

¶5    Count 2 of the amended complaint and information alleged

 that Thomas resisted arrest by using means that “created a

 substantial risk of causing bodily injury to the peace officer or

 another; in violation of section 18-8-103[(1)(b)], C.R.S. [2019].”

 Thomas contends his conviction should be reversed because

      (1)   his conduct after he was handcuffed cannot properly be

            considered to prove the offense of resisting arrest;

      (2)   the physical condition of the area in which he was

            handcuffed and carried to the patrol car cannot properly

            be considered to prove that he created a substantial risk

            of causing bodily injury to the arresting officer; and



                                    2
      (3)   there is insufficient evidence that his conduct created a

            substantial risk of causing bodily injury to the arresting

            officer.

 We reject each of these arguments in turn and conclude that the

 evidence was sufficient to convict Thomas of resisting arrest.

             A.    Standard of Review and Applicable Law

¶6    We review a challenge to the sufficiency of the evidence de

 novo. People v. Perez, 2016 CO 12, ¶ 8. To determine whether the

 evidence presented at trial was sufficient to support a guilty verdict,

 we evaluate whether the evidence, when viewed as a whole and in

 the light most favorable to the prosecution, was substantial and

 sufficient to support a conclusion by a reasonable mind that the

 defendant is guilty of the charge beyond a reasonable doubt. Id. at

 ¶ 24. In doing so, we give the prosecution “the benefit of every

 reasonable inference that may be fairly drawn from the evidence.”

 People v. Davis, 2012 COA 56, ¶ 12.

¶7    A person is guilty of resisting arrest when “he knowingly

 prevents or attempts to prevent a peace officer, acting under color of

 his official authority, from effecting an arrest” by, among other




                                    3
 things, using “means which create[] a substantial risk of causing

 bodily injury to the peace officer or another.” § 18-8-103(1)(b).

                            B.   The Evidence

¶8      One of the responding officers testified that he told Thomas he

 was under arrest and instructed him to put his hands behind his

 back. According to the officer, as he attempted to put the handcuffs

 on, Thomas struggled and kept pulling his arms away. As that

 officer tried to grab one of Thomas’s arms, a second officer tried to

 grab the other arm.

¶9      The responding officer also testified that the area in which he

 handcuffed Thomas was run down and had debris lying all over the

 ground. He explained that it was a place where the police were

 required to step over the debris. The officer testified that as he tried

 to walk Thomas to the patrol car, Thomas went limp and the other

 officer had to help carry Thomas approximately twenty feet to the

 car. He testified that he watched his steps so he would not fall,

 trying to walk Thomas back to the patrol car, stepping over debris,

 and preventing Thomas from pulling away from him and fighting

 him.




                                     4
¶ 10    On cross-examination, Thomas admitted that he did not want

  to be arrested and resisted “a little.” He also described the area in

  which he was handcuffed and taken to the car as having “broken

  glass, and TVs and microwaves, things like that” on the ground. He

  admitted that if the officer had fallen on the ground, he could have

  been injured. Thomas further agreed that “going limp when

  somebody is trying to arrest you could easily cause them to fall

  down[.]” He testified that because he “was shook up from being

  jumped, and wanting to be with [his] dog,” he “wasn’t really

  thinking about” the risks that his actions posed to the responding

  officers.

          C.    Conduct After Handcuffing Properly Considered

¶ 11    Thomas contends that the arrest was completed when he was

  handcuffed and that his conduct after that, including his resistance

  to being transported to the patrol car, cannot properly be

  considered to prove the offense of resisting arrest. We are not

  persuaded.

¶ 12    To “effect an arrest, the peace officer must apply a level of

  physical control over the person resisting the arrest so as to




                                     5
  reasonably ensure that the person does not leave.” People v.

  Armstrong, 720 P.2d 165, 169 (Colo. 1986) (emphases added).

¶ 13   The police told Thomas he was under arrest, and, by placing

  handcuffs on him, the police exercised a level of physical control

  over him. At that point, a reasonable person in Thomas’s situation

  “would necessarily believe that he was being placed under arrest,”

  was not free to leave, and instead was required to submit to booking

  and bonding procedures at the jail. People v. Tottenhoff, 691 P.2d

  340, 344-45 (Colo. 1984).

¶ 14   So long as the police were present, they had a level of physical

  control over Thomas that reasonably ensured that he did not leave.

  When the police completed their duties at the scene and were

  leaving the area, they sought to maintain physical control over

  Thomas by putting him in the patrol car and transporting him to

  the police station for booking and bonding procedures. However,

  Thomas went limp, and in doing so, he resisted the arrest and

  created a substantial risk that the officers would be injured.

¶ 15   We conclude that it was proper for the jury to consider the

  evidence of Thomas’s conduct after he was handcuffed with regard

  to the charge of resisting arrest. We also conclude that, when


                                    6
  viewed as a whole and in the light most favorable to the

  prosecution, Perez, ¶ 8, there was substantial and sufficient

  evidence to support a conclusion by a reasonable mind that by

  going limp when the police took him to the patrol car, Thomas

  knowingly attempted to prevent them from proceeding with the

  arrest by, among other things, using means that created a

  substantial risk of causing bodily injury to the officers. See

  § 18-8-103(1)(b).

¶ 16   We are not persuaded that a contrary conclusion is required

  by People v. Thornton, 929 P.2d 729, 733 (Colo. 1996), and Wieder

  v. People, 722 P.2d 396 (Colo. 1986), on which Thomas relies.

¶ 17   In Wieder, the defendant was found in a car that had struck a

  power pole. As the police pulled him out of the car, the defendant

  struggled and the police arrested him for drunk driving and

  handcuffed him. They then led him to a patrol car and, as they

  tried to put him in, he head-butted one officer and kneed the other

  in the groin. 722 P.2d at 397.

¶ 18   Wieder was “convicted of second degree assault in violation of

  section 18-3-203(1)(f), 8 C.R.S. (1978 and 1985 Supp.), which

  makes unlawful an assault against a peace officer while ‘lawfully


                                    7
  confined or in custody.’” Id. The court rejected Wieder’s contention

  that second degree assault while confined or in custody “is limited

  to conduct arising in a detention or correctional facility context and

  does not apply to a field arrest situation.” Id. Citing Armstrong,

  720 P.2d 165, the Wieder court said that “the definition of ‘custody’

  necessarily differs from that of arrest for purposes of section 18-3-

  203(1)(f) . . . , when the person subject to an arrest resists that

  arrest.” 722 P.2d at 398.

¶ 19   Here, Thomas did not assault the officers as they took him to

  the patrol car, he was not charged with or convicted of assault

  under section 18-3-203(1)(f), and the definition of “custody” for

  purposes of section 18-3-203(1)(f) is not in issue.

¶ 20   Thornton is similarly distinguishable. There, the defendant

  was charged with felony escape under section 18-8-208(3), C.R.S.

  2019. See 929 P.2d at 730. The defendant argued that he was

  never “in custody or confinement” as required by the escape

  statute. Relying on Armstrong, the Colorado Supreme Court

  concluded that Thornton was “in custody” for purposes of the

  escape statute because the police had established physical control

  of him. Id. at 734-35. The supreme court explained that “[p]hysical


                                     8
  control can be established by physical restraint or by the suspect’s

  submission to control.” Id. at 734. And in Tottenhoff, the court

  said that once physical control has been established, a suspect is

  required to submit to booking and bonding procedures. 691 P.2d at

  344-45.

¶ 21    The issue here is not whether Thomas was in custody for

  purposes of section 18-8-208(3) or tried to escape, but, rather,

  whether his resistance to being transported to the patrol car and

  the police station for booking constituted resisting arrest. We

  conclude that such conduct can constitute resisting arrest and that

  it was proper for the court to submit the evidence to the jury for its

  determination.

   D.    Physical Condition of Surrounding Area Properly Considered

¶ 22    We also reject Thomas’s contention that the physical condition

  of the area in which he was handcuffed and carried to the patrol car

  cannot properly be considered to prove that he created a

  substantial risk of causing bodily injury to the officer. This

  argument is contrary to logic and the plain meaning of the statute.




                                     9
¶ 23   As pertinent here, a person commits resisting arrest when he

  knowingly attempts to prevent a peace officer, acting under color of

  his official authority, from effecting an arrest of him or another, by:

             (a) Using or threatening to use physical force
             or violence against the peace officer or another;
             or

             (b) Using any other means which creates a
             substantial risk of causing bodily injury to the
             peace officer or another.

  § 18-8-103(1).

¶ 24   We review the application of statutes de novo. Churchill v.

  Univ. of Colo., 2012 CO 54, ¶ 68. When the statutory language is

  clear, we apply its plain and ordinary meaning in a manner that

  gives effect to the General Assembly’s intent, and we construe each

  provision in the context of the statute “as a whole to give

  ‘consistent, harmonious and sensible effect to all [parts of the

  statute].’” Bd. of Cty. Comm’rs v. Costilla Cty. Conservancy Dist., 88

  P.3d 1188, 1192-93 (Colo. 2004) (quoting People v. Luther, 58 P.3d

  1013, 1015 (Colo. 2002)); accord Lobato v. Indus. Claim Appeals

  Office, 105 P.3d 220, 223 (Colo. 2005). And, in so doing, we must

  not apply the statute in a manner that renders any part of it

  meaningless or absurd or in a manner that leads to an illogical or


                                    10
  absurd result. State v. Nieto, 993 P.2d 493, 501 (Colo. 2000); Kyle

  W. Larson Enters., Inc. v. Allstate Ins. Co., 2012 COA 160M, ¶ 9.

¶ 25   Subsections (1)(a) and (1)(b) of section 18-8-103 provide

  distinct ways in which a person can commit resisting arrest.

  Subsection (1)(a) is plainly limited to the use or threat of physical

  force or violence against an arresting officer. Implicit in this

  description is that the accused knowingly attempted to prevent

  arrest by causing or threatening to cause bodily injury either by

  physical contact or an instrument of force or violence. In contrast,

  subsection (1)(b) explicitly pertains to means other than the use or

  threat of physical force and requires only that the other means

  create a substantial risk of bodily injury.

¶ 26   Considering the two subsections together, we perceive nothing

  in the plain language of the statute dictating that “other means”

  cannot include conduct that puts an officer at risk of injury by

  falling or contacting nearby objects or conditions. Accordingly, we

  conclude that the jury could properly consider evidence of the

  physical surroundings in which Thomas was handcuffed and

  transported to the patrol car.




                                     11
           E.    Evidence Sufficient to Prove Resisting Arrest

¶ 27   Viewing the evidence in the light most favorable to the

  prosecution, as we must, we conclude that it is sufficient “to

  support a conclusion by a reasonable mind,” Perez, ¶ 24 (quoting

  People v. Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)),

  that Thomas resisted arrest by means other than the use or

  threatened use of physical force and that those means created a

  substantial risk of causing bodily injury to the arresting officer.

                   III.   Counts 1 and 3 Do Not Merge

¶ 28   Thomas next contends that his conviction for criminally

  negligent bodily injury to an at-risk adult (Count 3) should merge

  into his conviction for third degree assault (Count 1) because the

  former is a lesser included offense of the latter. We are not

  persuaded.

                          A.   Standard of Review

¶ 29   We review de novo whether an offense is a lesser included

  offense of another. See People v. Torres, 224 P.3d 268, 275 (Colo.

  App. 2009). Because Thomas did not assert merger in the trial

  court, we review his contention for plain error.




                                    12
                      B.    Lesser Included Offenses

¶ 30   Under section 18-1-408(5)(a), C.R.S. 2019, an offense is

  included in another when it “is established by proof of the same or

  less than all the facts required to establish the commission of the

  offense charged[.]” Our supreme court has consistently evaluated

  whether one offense is a lesser included offense of another within

  the meaning of section 18-1-408(5)(a) by applying a “statutory

  elements” or “strict elements” test. Reyna-Abarca v. People, 2017

  CO 15, ¶ 53. In Reyna-Abarca, the court held that “an offense is a

  lesser included offense of another offense if the elements of the

  lesser offense are a subset of the elements of the greater offense,

  such that the lesser offense contains only elements that are also

  included in the elements of the greater offense.” Id. at ¶ 64. The

  court commented that this test “aligns directly with and gives force

  to the language of section 18-1-408(5)(a), which requires that a

  lesser included offense be established by proof of the same or less

  than all of the facts required to establish the greater offense.” Id. at

  ¶ 62. “Thus, a subset can always be established by the same or

  fewer than all of the facts of the set of which it is a part.” Id.




                                      13
                       C.    Thomas’s Convictions

¶ 31   On Count 3, Thomas was convicted of criminally negligent

  bodily injury to an at-risk adult. 1 Thomas was also convicted, on

  Count 1, of third degree assault, which required proof that he

  “knowingly or recklessly cause[d] bodily injury to another

  person . . . .” § 18-3-204(1)(a), C.R.S. 2019.

¶ 32   Thomas argues that Count 3 is a lesser included offense of

  Count 1 because each of the essential elements of negligent bodily

  injury to an at-risk adult is a subset of the essential elements of

  knowingly or recklessly causing bodily injury to another person.

  Based on the Reyna-Abarca court’s explanation and application of

  the subset test, we conclude otherwise.

¶ 33   Proof that the victim was a person does not always prove that

  the victim was at least seventy years old. Stated in the terms of

  section 18-1-408(5)(a) and the Reyna-Abarca test, proof of injury to

  an at-risk adult is not established by proof of the same or fewer

  facts than are required to prove injury to another person. Thus,




  1 “‘At-risk adult’ means any person who is seventy years of age or
  older . . . .” § 18-6.5-102(2), (4.5), C.R.S. 2019.


                                    14
  Reyna-Abarca and section 18-1-408(5)(a) both indicate that Count 3

  is not included in Count 1.

¶ 34   In contrast, Thomas’s argument is that Count 3 is a lesser

  included offense of Count 1 “because an ‘at-risk adult’ is always

  ‘another person.’” This argument may have superficial appeal, but

  it inverts the Reyna-Abarca test. Evidence that the victim was a

  person does not prove that the victim was at least seventy years old.

  Hence, injury to an at-risk adult is not always established by the

  same or fewer than all the facts necessary to prove injury to another

  person.

¶ 35   Accordingly, we conclude criminally negligent injury to an at-

  risk adult is not included in the offense of knowing or reckless

  injury to a person. The trial court did not err, let alone plainly err,

  by not merging Thomas’s convictions for third degree assault and

  negligent bodily injury to an at-risk adult.

            IV.   Thomas’s Prosecutorial Misconduct Claim Fails

¶ 36   Thomas next contends that allowing the prosecutor’s

  comments during rebuttal closing argument constituted plain error

  because the comments assumed he was guilty of the charged

  crimes, and, thus, undermined his presumption of innocence. We


                                     15
  agree that the comments were improper but conclude that reversal

  is not required because they did not rise to the level of plain error.

                           A.    Relevant Facts

¶ 37   At trial, four witnesses testified to the events that transpired in

  early March 2015.

¶ 38   The responding patrol officer interviewed the victim, S.F., and

  Thomas. The officer testified that he noticed red marks around the

  victim’s neck when he arrived on the scene. His photographs of her

  injuries were admitted at trial. He also testified that Thomas had

  cuts on his forehead.

¶ 39   Thomas, however, disputed the other witnesses’ testimony.

  According to Thomas, after spending time with his son and taking a

  nap, he woke up, noticed pry marks on his trailer door, and was

  worried that something inside his trailer might be missing. He

  pounded on his trailer’s cabinet doors and yelled before he

  suddenly heard a knock at his door. Holding his dog in his arms,

  he opened the door and saw S.F. and another unknown male. S.F.

  immediately jumped on him, causing Thomas to drop his dog. S.F.

  also scratched his face. The altercation moved to the yard outside

  of Thomas’s trailer, where the victim was standing next to a parked


                                    16
  car. Thomas admitted that it is possible the victim was bumped

  during the altercation, but he did not remember this.

¶ 40   During rebuttal closing argument, the prosecutor implored the

  jury to evaluate each witness’s credibility in this “he said, she said”

  case. He stated:

             The Court tells you to look at a person’s
             motive. . . . You get to consider their
             demeanor. You get to consider the manner in
             which they testified. And you also get to
             consider how this case might affect them. And
             Mr. Thomas is facing potential criminal
             sanctions.

             Mr. Thomas has every reason in the world to
             get on that stand and tell you that it didn’t
             happen. He has every reason in the world to
             deny a crime that he wants to avoid a
             conviction on.

¶ 41   Thomas now contends that these comments undermined his

  presumption of innocence because they assumed he was guilty.

  Rather than attacking Thomas’s credibility based on record

  evidence, Thomas argues that the prosecutor made an

  “impermissible, generalized” attack based on his status as a

  criminal defendant.




                                    17
              B.   Standard of Review and Applicable Law

¶ 42   The determination of whether a prosecutor’s statements in

  closing argument constitute misconduct is within the trial court’s

  discretion. See Domingo-Gomez v. People, 125 P.3d 1043, 1049

  (Colo. 2005); People v. Strock, 252 P.3d 1148, 1152 (Colo. App.

  2010). A trial court’s prosecutorial misconduct ruling “will not be

  disturbed by an appellate court in the absence of a gross abuse of

  discretion resulting in prejudice and a denial of justice.” People v.

  Moody, 676 P.2d 691, 697 (Colo. 1984); see also Carrillo v. People,

  974 P.2d 478, 485 (Colo. 1999) (equating “gross abuse of discretion”

  with “abuse of discretion”).

¶ 43   When deciding a claim of prosecutorial misconduct, we engage

  in a two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo.

  2010). First, we determine whether the prosecutor’s challenged

  conduct was improper based on the totality of the circumstances,

  and, second, we determine whether any improper conduct warrants

  reversal under the proper standard of review. Id.; see also Domingo-

  Gomez, 125 P.3d at 1048.

¶ 44   “Factors to consider when determining the propriety of

  statements include the language used, the context in which the


                                    18
  statements were made, and the strength of the evidence supporting

  the conviction.” Domingo-Gomez, 125 P.3d at 1050; see also Harris

  v. People, 888 P.2d 259, 266 (Colo. 1995) (“[T]he context in which

  challenged prosecutorial remarks are made is significant, including

  the nature of the alleged offenses and the asserted defenses, the

  issues to be determined, the evidence in the case, and the point in

  the proceedings at which the remarks were made.”).

¶ 45   “Where, as here, a defendant does not object at trial to the

  now-challenged conduct, we will only reverse a conviction if the

  conduct was improper and rises to the level of plain error.” People

  v. Nardine, 2016 COA 85, ¶ 37. “To constitute plain error,

  prosecutorial misconduct must be flagrant or glaringly or

  tremendously improper, and it must so undermine the fundamental

  fairness of the trial as to cast serious doubt on the reliability of the

  judgment of conviction.” People v. Manyik, 2016 COA 42, ¶ 35

  (citation omitted); see also Strock, 252 P.3d at 1153 (Whether

  prosecutorial misconduct requires reversal depends on “the severity

  and frequency of the misconduct, any curative measures taken by

  the trial court to alleviate the misconduct, and the likelihood that




                                     19
  the misconduct constituted a material factor leading to the

  defendant’s conviction.”).

                               C.   Application

¶ 46   Because Thomas’s attorney did not object to the prosecutor’s

  comments, we review this contention for plain error. In doing so,

  we must first determine whether the trial court erred when it did

  not intervene and instruct the jury to disregard the prosecutor’s

  argument.

¶ 47   A prosecutor is permitted to comment on the evidence

  admitted at trial and the reasonable inferences that can be drawn

  from it. See People v. Samson, 2012 COA 167, ¶ 31. Among other

  things, “[t]he partiality of a witness is subject to exploration at trial,

  and is ‘always relevant as discrediting the witness and affecting the

  weight of his testimony.’” Davis v. Alaska, 415 U.S. 308, 316 (1974)

  (quoting 3A J. Wigmore, Evidence § 940 at 775 (Chadbourn rev.

  1970)). Here, because Thomas testified, the jury could properly

  consider his credibility and his interest in the outcome of the case

  and the prosecutor could properly argue that it should do so. We

  reject Thomas’s contention that the prosecutor’s argument




                                      20
  impermissibly undermined the presumption of innocence and

  presumed he was guilty.

¶ 48   Accordingly, we conclude that the trial court did not err when

  it did not intervene and instruct the jury to disregard the

  prosecutor’s argument. Further, we conclude the prosecutor’s

  argument did not undermine the fundamental fairness of the trial.

                  V. Thomas Was Properly Sentenced
                  Under the Habitual Criminal Statute

¶ 49   Thomas was convicted of third degree assault and negligent

  bodily injury to an at-risk adult, each of which is a class 6 felony,

  and three sentence enhancing habitual criminal counts.

¶ 50   At Thomas’s sentencing hearing, the court found that the

  prosecution proved the following three prior felony convictions

  beyond a reasonable doubt:

       •     a 1995 class 4 felony conviction in case number 95CR14

             for theft;

       •     a January 2005 class 6 felony conviction in case number

             05CR210 for possession of one gram or less of a schedule

             II controlled substance on December 16, 2004, in




                                    21
            violation of section 18-18-405(1), (2.3)(a)(I), C.R.S. 2004;

            and

       •    a June 2005 class 4 felony conviction in case number

            05CR1936 for possession of more than one gram of a

            schedule II controlled substance on April 7, 2005, in

            violation of section 18-18-405(1), C.R.S. 2005.

¶ 51   Thomas contends that, under recent amendments to

  Colorado’s habitual criminal statutes, the trial court lacked

  authority to sentence him as a habitual criminal. In particular, he

  asserts that

       •    under section 18-1.3-801(2)(a)(I), C.R.S. 2019, his

            January 2005 and June 2005 drug convictions would

            have been level 4 drug felonies; and

       •    under section 18-1.3-801(2)(b), level 4 drug felonies

            cannot serve as predicate felonies.

                    A.   Sufficiency of the Evidence

¶ 52   Thomas acknowledges that he did not seek a judgment of

  acquittal or a judgment notwithstanding the verdict in the trial

  court, but now argues that the prosecution’s evidence was not

  sufficient to sustain his habitual criminal convictions. Challenges


                                    22
  to the sufficiency of the evidence may be raised for the first time on

  appeal and are not subject to plain error review. See McCoy v.

  People, 2019 CO 44, ¶ 27.

¶ 53    We review the sufficiency of evidence de novo. Strock, 252

  P.3d at 1155. We must determine whether the relevant evidence,

  when viewed most favorably to the prosecution, is substantial and

  sufficient to prove that the defendant has been previously convicted

  of the charged habitual criminal counts. Id.; see also People v.

  Carrasco, 85 P.3d 580, 582-83 (Colo. App. 2003).

¶ 54    However, Thomas admits he previously pleaded guilty to a

  class 6 felony for possession of a controlled substance and, in a

  separate case, pleaded guilty to class 4 felony possession of a

  controlled substance. In addition, the record contains ample proof

  that he also had a prior conviction for a class 4 felony theft.

  Therefore, we conclude that there was sufficient proof of Thomas’s

  three prior convictions.

       B.   Application of the Habitual Criminal Sentencing Statute

¶ 55    Although Thomas frames the challenge to his habitual

  criminal sentence in terms of the sufficiency of the evidence, a

  closer look shows that he is also asserting that the trial court erred


                                    23
  when it applied the habitual criminal sentencing statute. Thomas

  did not preserve that issue by objection in the trial court.

                          1.   Standard of Review

¶ 56   When determining the proper application of a statute, our task

  is to effectuate the legislature’s intent. McCoy, ¶ 37. We give the

  statute’s words and phrases their plain and ordinary meanings in

  accordance with common usage, apply rules of grammar, and

  discern their particular meaning in the context of the statute as a

  whole. We must ensure that our interpretation gives consistent,

  harmonious, and sensible effect to all parts of the statute and avoid

  constructions that would render any words or phrases meaningless

  or lead to illogical or absurd results. Id. at ¶¶ 37-38.

¶ 57   The application of a statute is a question of law that we review

  de novo. Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1189

  (Colo. 2010). However, because Thomas raises this issue for the

  first time on appeal, if we conclude the court applied the statute

  erroneously, we apply the plain error standard and reverse only if

  the error was obvious and “so undermined the fundamental

  fairness of the trial itself . . . as to cast serious doubt on the

  reliability of the judgment of conviction.” Hagos v. People, 2012 CO


                                      24
  63, ¶ 14 (quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005));

  see also Maestas v. People, 2019 CO 45, ¶¶ 18-32 (Samour, J.,

  concurring in the judgment only) (assertions of unpreserved

  statutory construction should be reviewed under the de novo

  standard of review and, if the trial court erred, plain error review

  should be applied to determine whether the error requires reversal);

  People v. Kadell, 2017 COA 124, ¶ 46 (J. Jones, J., concurring in

  part and dissenting in part) (de novo review can be applied when

  determining whether there was an error, and plain error review can

  be applied when determining whether an error requires reversal).

       2.     Thomas’s January and June 2005 Convictions Are Felony
                 Convictions For Purposes of Section 18-1.3-801(3)

¶ 58        Section 18-1.3-801(2)(a)(I)(A) provides that anyone convicted of

  any felony (a triggering offense) who has three previous felony

  convictions (predicate offenses) arising from separate and distinct

  criminal episodes must be sentenced to four times the maximum of

  the presumptive range.

¶ 59        Thomas does not dispute that the convictions for third degree

  assault and negligent injury to an at-risk adult in this case are

  sufficient to trigger habitual criminal sentencing, but contends that



                                        25
  he did not have three predicate felonies. He argues that his

  January and June 2005 drug convictions do not qualify as prior

  felonies because, under section 18-1.3-801(3), “[n]o drug law

  conviction shall be counted as a prior felony conviction under this

  section unless such prior offense would be a felony if committed in

  this state at the time of the commission of the new offense.” 2 We

  are not persuaded.

¶ 60   Article XVIII, section 4, of the Colorado Constitution states:

  “The term felony, wherever it may occur in this constitution, or the

  laws of the state, shall be construed to mean any criminal offense

  punishable by death or imprisonment in the penitentiary, and none

  other.” In 2015, when Thomas committed the assault and negligent

  bodily injury crimes for which he was sentenced in this case,

  section 18-1.3-401.5(1), C.R.S. 2019 (enacted in 2013), stated: “For

  purposes of this section, ‘felony’ means any felony or drug felony

  defined in the state statutes.” In addition, in 2015, Thomas’s 2005

  2 In Part V.B.4, we address Thomas’s assertions regarding
  retrospective application of statutes. Here, we note that section 18-
  1.3-801(3) was enacted on June 7, 2002, and, thus, predated
  Thomas’s January 2005 conviction and his 2015 commission of the
  offenses for which the court sentenced him. See Ch. 318, sec. 2,
  § 18-1.3-801(3), 2002 Colo. Sess. Laws 1428.


                                    26
  drug convictions would have been level 4 drug felonies punishable

  by a maximum of one year in prison. See § 18-18-403.5(2)(a),

  C.R.S. 2019. Accordingly, we conclude that at the time of

  sentencing, Thomas’s January and June 2005 convictions were

  prior felony convictions for purposes of sections 18-1.3-801(2)(a)(I)

  and -801(3). Colo. Const. art. XVIII, § 4; § 18-1.3-401.5(1).

      3.   Thomas Has Three Previous Felony Convictions For Purposes
                         of Section 18-1.3-801(2)(a)(I)

¶ 61       Thomas argues that his “convictions for simple possession

  would not have been ‘felonies’ but rather level 4 ‘drug felonies.’”

  According to Thomas, section 18-1.3-801(2)(b)3 of “the habitual

  sentencing statute precludes counting level 4 drug felonies as


  3 Once again, in Part V.B.4, we address Thomas’s assertions
  regarding retrospective application of statutes. Here, we note that
  section 18-1.3-801(2)(a) was first enacted as section 18-1.3-801(2)
  in June 2002 and replaced section 16-13-101(2) as part of the
  relocation of Title 16 to Title 18. See Ch. 318, sec. 2, 2002 Colo.
  Sess. Laws 1426-28 (effective Oct. 1, 2002). Since then, the statute
  has changed several times, including in 2011 when it was divided
  into subsections (2)(a) and (b). Subsection (2)(b) added new
  language excluding class 6 felony drug possession convictions as
  qualifying, triggering offenses for habitual criminal sentencing. See
  Ch. 57, sec. 1, § 18-1.3-801(2)(b), 2011 Colo. Sess. Laws 151-52.
  And in 2013, that subsection was amended to exclude level 4 drug
  felonies as qualifying, triggering offenses. See Ch. 333, sec. 36,
  § 18-1.3-801(2)(b), 2013 Colo. Sess. Laws 1927-28.


                                      27
  predicate offenses when the defendant possessed a small quantity

  of drugs.” Again, we are not persuaded.

¶ 62   We have already concluded that level 4 drug felonies

  constitute felonies for purposes of section 18-1.3-801(3).

¶ 63   The meaning of subsections 801(2)(a)(I) and 801(2)(a)(I)(A) is

  plain. They state that, except as provided in paragraphs (2)(b) and

  (5) of section 18-1.3-801,

            every person convicted in this state of any
            felony, who has been three times previously
            convicted, upon charges separately brought
            and tried, and arising out of separate and
            distinct criminal episodes, either in this state
            or elsewhere, of a felony or, under the laws of
            any other state, the United States, or any
            territory subject to the jurisdiction of the
            United States, of a crime which, if committed
            within this state, would be a felony, shall be
            adjudged an habitual criminal and shall be
            punished [as stated in subsections
            801(2)(a)(I)(A) and (B)].

¶ 64   The referenced paragraph (b) [subsection 801(2)(b)] states that

  subsection 801(2)(a)(I)

            shall not apply to . . . a conviction for a level 4
            drug felony for attempt or conspiracy to
            commit unlawful possession of a controlled
            substance . . . if the amount of the . . .
            controlled substance possessed is not more
            than four grams or not more than two grams of
            methamphetamine, heroin, cathinones, or


                                    28
            ketamine or not more than four milligrams of
            flunitrazepam, even if the person has been
            previously convicted of three or more
            qualifying felony convictions.

¶ 65   Giving the words of these provisions their plain and ordinary

  meanings and reading them in context, we conclude that a level 4

  drug felony cannot be a triggering offense for habitual criminal

  sentencing under section 18-1.3-801(2)(a)(I). This section is specific

  to sentencing. It plainly tells courts that are sentencing defendants

  for level 4 drug felonies that they may not impose habitual criminal

  sentences in such cases “even if the person has been previously

  convicted of three or more [felony convictions arising out of separate

  and distinct criminal episodes].” § 18-1.3-801(2)(b). Thus,

  subsection 801(2)(b) eliminates level 4 drug felonies as triggering

  offenses for habitual criminal sentencing, but it does not change the

  nature of qualifying felony convictions as defined in subsection

  801(2)(a). Therefore, we conclude that subsection 801(2)(b) does

  not prohibit courts from considering level 4 drug felony convictions

  as predicate felony convictions.

¶ 66   In this case, Thomas’s triggering felony convictions were for

  third degree assault and negligent injury of an at-risk adult, not for



                                     29
  drug possession. Consequently, the trial court did not err when it

  concluded that Thomas had three previous felony convictions and

  that those convictions were predicate felony convictions.

                        4.    Wells-Yates v. People

¶ 67   As supplemental authority, Thomas cited Wells-Yates v.

  People, 2019 CO 90M. We conclude that this decision does not

  require a different result here.

¶ 68   In Wells-Yates, the supreme court addressed (1) abbreviated

  proportionality reviews of habitual criminal sentences; (2)

  determinations of the gravity or seriousness of triggering and

  predicate offenses; (3) the gravity and seriousness of narcotic

  offenses generally; and (4) the gravity and seriousness of narcotic

  offenses of possession and possession with intent to sell, distribute,

  dispense, or manufacture. Wells-Yates, ¶ 76. None of these issues

  are present in this case.

¶ 69   Thomas did not request a proportionality review in the trial

  court, nor has he done so in his briefs on appeal. Instead, in a

  citation of supplemental authority, he has referred us to paragraphs

  42, 43, and 59 of the Wells-Yates decision. In the referenced

  paragraphs, the supreme court focused on abbreviated


                                     30
  proportionality reviews, extraordinary risk crimes, and

  determinations about the gravity and seriousness of crimes, none of

  which are at issue here.

¶ 70   In a section captioned “Should Relevant Statutory

  Amendments Enacted After the Dates of the Triggering and

  Predicate Offenses Be Considered During an Abbreviated

  Proportionality Review?[,]” the court concluded that when

  determining the relative gravity and seriousness of the offense

  during an abbreviated proportionality review, “the trial court should

  consider relevant legislative amendments enacted after the date of

  the offense, even if the amendments do not apply retroactively.” Id.

  at ¶ 45. The court also concluded that section of the decision by

  stating that “legislative enactments that take effect after the date of

  the offense and have no retroactive application may nevertheless be

  relevant to evaluate the gravity or seriousness of the offense.” Id. at

  ¶ 52. Our analysis here has addressed the retroactive applications

  of section 18-1.3-801(2) and (3) and section 18-1.3-401.5(1) to

  Thomas’s 2005 drug offenses and the determination of a sentence

  for his 2015 offenses.




                                    31
¶ 71   In the referenced paragraphs, we find only one sentence that

  pertains to the statutes and issues Thomas has presented on

  appeal. When determining whether an abbreviated proportionality

  review should include consideration of statutory amendments

  enacted after triggering and predicate offenses, the court said:

            [S]ince Wells-Yates’s two predicate offenses of
            possession of 2 grams or less of
            methamphetamine, the legislature has
            reclassified that crime from a class 4 felony
            that is eligible to be both a triggering offense
            and a predicate offense for habitual criminal
            purposes to a level 4 drug felony that carries
            less severe penalties and is not so eligible.”

  Wells-Yates, ¶ 43 (emphases added).

¶ 72   The court made this statement in the context of whether

  relevant statutory amendments enacted after the dates of the

  triggering and predicate offenses should be considered during an

  abbreviated proportionality review. The statement that level 4

  felony offenses are “not so eligible” is brief, ambiguous, and

  conclusory. Importantly, the decision does not include any analysis

  of the wording of section 18-1.3-801(2)(b), and the statement is not

  necessary to the ultimate holding in the case. See Main Electric,

  Ltd. v. Printz Servs. Corp., 980 P.2d 522, 526 (Colo. 1999)



                                    32
  (conclusory statement that did not analyze contract terms was

  dictum); United States v. Jesse, 744 P.2d 491, 502-03 (Colo. 1987)

  (summary of holdings at the end of a decision controlled and

  ambiguous statement in a footnote did not); cf. People v. Morehead,

  2019 CO 48, ¶ 10 (rulings logically necessary to its holding become

  the law of the case). Accordingly, it was dictum and does not

  control our analysis.

       VI.    Colorado’s Habitual Criminal Sentencing Statutes Are
                                 Constitutional

¶ 73      Finally, Thomas argues, for the first time on appeal, that

  Colorado’s habitual criminal statutes, sections 18-1.3-801 to -803,

  C.R.S. 2019, are unconstitutional because they allow a judge,

  rather than a jury, to make necessary findings about whether a

  defendant was previously convicted. Thomas asserts that this

  procedure deprived him of his Sixth Amendment right to trial by

  jury.

¶ 74      Thomas recognizes that his argument has been rejected by

  numerous appellate decisions. See, e.g., People v. Huber, 139 P.3d

  628, 631 (Colo. 2006); People v. Davis, 2017 COA 40M, ¶¶ 35-38.

  He asserts that these cases were wrongly decided and should not be



                                      33
  followed. We disagree and see no reason to depart from these

  decisions.

                           VII. Conclusion

¶ 75   The judgment and sentence are affirmed.

       JUDGE TAUBMAN and JUDGE GROVE concur.




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