     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
                                                                April 18, 2019

                                2019COA57

No. 17CA1924, People in the Interest of B.D. — Juvenile Court
— Delinquency; Crimes — Theft; Criminal Law — Sentencing —
Crimes Against At-Risk Persons

     In this delinquency proceeding, a juvenile appeals from a

magistrate’s order adjudicating him delinquent and from the district

court’s order denying his petition for review and adopting the

magistrate’s order and judgment. On appeal, the juvenile contends

the magistrate erred in denying his motion to suppress and in

adjudicating him as a complicitor to an enhanced crime of theft

from an at-risk adult. A division of the court of appeals affirms the

magistrate’s suppression ruling but concludes that, applying People

v. Childress, 2015 CO 65M, there was insufficient evidence to

adjudicate the juvenile as a complicitor to theft from at-risk adult,

§ 18-6.5-103(5), C.R.S. 2018. In doing so, the division extends the
“dual mental state” requirement discussed in Childress from strict

liability offenses to also reach the strict liability sentence enhancer

of theft committed in the presence of an at-risk adult.
COLORADO COURT OF APPEALS                                        2019COA57


Court of Appeals No. 17CA1924
Jefferson County District Court No. 16JD355
Honorable Ann Gail Meinster, Judge
Honorable Andrew Todd Fitzgerald, Magistrate


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of B.D.,

Juvenile-Appellant.


            JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                AND CASE REMANDED WITH DIRECTIONS

                                    Division III
                           Opinion by JUDGE WELLING
                           Webb and Harris, JJ., concur

                            Announced April 18, 2019


Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney
General, Denver, Colorado, for Petitioner-Appellee

Tara Jorfald, Alternate Defense Counsel, Lakewood, Colorado, for Juvenile-
Appellant
¶1    In this delinquency proceeding, the juvenile, B.D., appeals

 from the magistrate’s order adjudicating him delinquent based on

 findings that he committed acts that, if committed by an adult,

 would constitute three felonies and one misdemeanor, and from the

 district court’s order denying his petition for review and adopting

 the magistrate’s order and judgment.

¶2    B.D., along with two other juveniles, broke into two homes and

 stole several items. At one of the homes, one of B.D.’s accomplices

 crossed paths with the seventy-seven-year-old homeowner. B.D.

 was adjudicated delinquent for two counts of felony burglary — one

 count for each home — and two counts of theft. One of the theft

 counts was a misdemeanor but the other was enhanced to a class 5

 felony because it was committed in the presence of an at-risk

 person. With respect to the adjudication for theft against an at-risk

 person, B.D. was adjudicated only as a complicitor.

¶3    On appeal, B.D. contends that the magistrate erred in denying

 his motion to suppress and in adjudicating him as a complicitor on

 the enhanced theft charge. We are not persuaded that the

 magistrate erred in his suppression ruling, but we do conclude that,

 applying People v. Childress, 2015 CO 65M, there was insufficient


                                   1
 evidence to adjudicate B.D. as a complicitor to theft from an at-risk

 person.

¶4    In Childress, ¶ 29, our supreme court held that a complicitor

 can be held criminally responsible for a strict liability crime

 committed by another if there is evidence that the complicitor (1)

 intended that the principal would commit the strict liability crime

 and (2) was aware of those circumstances attending the act or

 conduct he or she sought to further that were necessary for

 commission of the offense in question. In this case, we are called

 on to apply that holding to a statute that enhances the penalty for a

 theft that is committed “in the presence of” an at-risk person. § 18-

 6.5-103(5), C.R.S. 2018.

¶5    We conclude that the Childress analysis applies to a strict

 liability sentence enhancer. Because we also conclude that there

 was no evidence that B.D. was aware that the principal would

 commit the burglary “in the presence of” an at-risk person, we

 reverse the adjudication for felony theft and remand the case for

 resentencing. We affirm the judgment in all other respects.




                                    2
                           I.   Background

¶6    One afternoon, a police officer, Gregory Strandberg, received a

 report of a home burglary in his patrol area, and he responded to

 the scene. When he got there, the homeowner was in his driveway.

 The homeowner reported to the officer that he had returned home

 to find a young man in his house, and he saw that young man run

 out of his house and to the north. Officer Strandberg drove in that

 direction; within a few blocks, he saw three young men walking

 toward him. Officer Strandberg initially drove past the three young

 men but then turned his car around to talk with them. 1

¶7    Officer Strandberg parked his car, got out, and asked the

 young men, in a conversational manner, whether they had seen

 anything unusual in the neighborhood. During this conversation,

 four other officers arrived on scene. Each officer arrived in his own

 car, wearing a standard police uniform. The officers were armed,

 but at no time did any of the officers remove their guns or tasers




 1 Police later learned that two houses in the area had been
 burglarized on the same day. At trial, there was evidence
 introduced that the same young men were involved with both
 burglaries.

                                   3
 from their holsters. The officers separated the three juveniles so

 that they could talk to each of them without interference from the

 others. Officer Strandberg talked with K.K. while another officer,

 Sergeant Lewis Tomasetti, questioned B.D.

¶8    Sergeant Tomasetti testified that when he arrived on scene he

 moved B.D. about ten feet from the other two juveniles. Then, in a

 conversational and calm tone, he asked B.D. for identifying

 information and whether he had anything illegal in his possession.

 B.D. responded that he had alcohol in his backpack. Sergeant

 Tomasetti asked B.D. two times if he could search his backpack.

 After B.D. said yes both times, Sergeant Tomasetti searched B.D.’s

 backpack and found a bottle of vodka and an iPad. Sergeant

 Tomasetti would later learn that both of these items had been

 stolen from one of the homes. The only other conversation the two

 had was when Sergeant Tomasetti asked B.D. whether his father

 was available that afternoon.

¶9    The homeowner arrived on scene a few minutes after Officer

 Strandberg’s initial encounter and identified K.K. as the person who

 had been in his home. Police then arrested all three juveniles.




                                   4
  Only eight minutes had elapsed from when the victim reported the

  burglary.

¶ 10   Before trial, B.D. moved to suppress, arguing that (1) he was

  subjected to custodial interrogation and, therefore, should have

  been advised of his rights pursuant to Miranda v. Arizona, 384 U.S.

  436 (1966); (2) he should have had a parent present for his

  interrogation pursuant to section 19-2-511, C.R.S. 2018; and (3)

  his consent to search the backpack was involuntary. The

  magistrate denied B.D.’s motion. The magistrate later conducted a

  bench trial and adjudicated B.D. delinquent on all four charges.

  The magistrate also concluded that because the victim of one of the

  thefts was over seventy years old, B.D. had committed theft from an

  at-risk person.

¶ 11   Following sentencing, B.D. timely filed a petition for review in

  district court. In a written order, the district court denied B.D.’s

  petition for review and adopted the magistrate’s orders and

  judgment.

                              II.   Analysis

¶ 12   A petition for district court review of an order entered by a

  magistrate is a prerequisite to an appeal of such order. § 19-1-


                                     5
  108(5.5), C.R.S. 2018. A district court reviewing a magistrate’s

  decision under C.R.M. 7(a) may not alter the magistrate’s factual

  findings unless clearly erroneous. C.R.M. 7(a)(9). Appeals to this

  court from juvenile adjudications and sentences are conducted

  pursuant to the rules of appellate procedure. See §§ 19-1-109(1),

  19-2-903(1), C.R.S. 2018. Our review of the district court’s decision

  is effectively a second layer of appellate review, and, like the district

  court, we must accept the magistrate’s factual findings unless

  clearly erroneous. In re Parental Responsibilities Concerning G.E.R.,

  264 P.3d 637, 638-39 (Colo. App. 2011). We may, however, set

  aside a district court’s order based on errors of law, which we

  review de novo. People in Interest of S.G.L., 214 P.3d 580, 583

  (Colo. App. 2009).

¶ 13   B.D. raises two issues on appeal. First, he contends that the

  magistrate made various errors in his suppression ruling. Second,

  he argues there was insufficient evidence to support the

  magistrate’s finding that he was a complicitor to theft from an at-

  risk person. We reject his first contention, but we agree with his

  second.




                                      6
                         A.   Search and Seizure

¶ 14   B.D. argues that police improperly obtained evidence in three

  ways. First, he argues that the police obtained incriminating

  statements during a custodial interrogation in violation of Miranda. 2

  Second, he contends that he was coerced into allowing police to

  search his backpack (i.e., that his consent to search his backpack

  was not voluntary). And third, he asserts that his fingerprints were

  improperly obtained.

                         1.   No Miranda Violation

¶ 15   B.D. argues that he made incriminating statements while

  subject to custodial interrogation. But, based on the record, the

  only incriminating statement that B.D. made to Sergeant Tomasetti

  was that he had alcohol in his backpack. And B.D. was not in

  custody when he made this statement.

¶ 16   We review a magistrate’s ruling at a suppression hearing as a

  mixed question of law and fact. People v. Stock, 2017 CO 80, ¶ 13.




  2 B.D.’s statutory argument that he was entitled to have a parent
  present at the interrogation is no different than his constitutional
  argument because the statute only applies if the juvenile is under
  “custodial interrogation.” § 19-2-511, C.R.S. 2018.

                                    7
  In doing so, we defer to the magistrate’s findings of historical fact,

  but we assess the legal effect of those facts de novo. Id.

¶ 17   It is undisputed that the police did not give B.D. a Miranda

  advisement before questioning him. But such an advisement is

  only required when a suspect is in custody and subject to

  interrogation. Miranda, 384 U.S. at 438; Effland v. People, 240 P.3d

  868, 873 (Colo. 2010). In this case, the parties dispute only

  whether B.D. was in custody.

¶ 18   A person is in custody for Miranda purposes if “a reasonable

  person in the suspect’s position would have believed that his

  freedom of action had been curtailed to a degree associated with a

  formal arrest.” People v. Sampson, 2017 CO 100, ¶ 18. This is an

  objective inquiry that involves evaluating the totality of the

  circumstances surrounding the suspect’s interaction with police.

  Id. When making this determination, a court should consider a

  number of factors, including the following:

             (1) the time, place, and purpose of the
             encounter; (2) the persons present during the
             interrogation; (3) the words spoken by the
             officer to the defendant; (4) the officer’s tone of
             voice and general demeanor; (5) the length and
             mood of the interrogation; (6) whether any
             limitation of movement or other form of


                                      8
             restraint was placed on the defendant during
             the interrogation; (7) the officer’s response to
             any questions asked by the defendant; (8)
             whether directions were given to the defendant
             during the interrogation; and (9) the
             defendant’s verbal or nonverbal response to
             such directions.

  Id. (quoting People v. Matheny, 46 P.3d 453, 465-66 (Colo. 2002)).

  These factors apply equally in juvenile cases, but courts must also

  consider the juvenile’s age. People v. N.A.S., 2014 CO 65, ¶ 9 (citing

  J.D.B. v. North Carolina, 564 U.S. 261, 277 (2011)).

¶ 19   When B.D. made the statement to Sergeant Tomasetti that he

  had alcohol in his backpack, he was on the street, in a public place,

  with his friends, being asked questions by a police officer in a calm

  and conversational tone. Sergeant Tomasetti testified that the

  entire encounter was “low-key” and he was surprised at how

  “nonchalant” B.D. was acting. In addition, the encounter up to that

  point had only lasted a few minutes. When Sergeant Tomasetti

  questioned B.D., they walked only far enough to be out of earshot of

  the other officers and juveniles.

¶ 20   As the magistrate recognized, some facts support a finding

  that B.D. was in custody. For example, B.D. was separated from

  his friends during the interrogation. But B.D. remained out on the


                                      9
  street; he was not isolated or secreted away. See People v. Elmarr,

  181 P.3d 1157, 1164 (Colo. 2008) (defendant was in custody when

  he was “in a small room isolated from others”). Also, B.D. was

  sixteen at the time of the encounter, but the fact that he was a

  juvenile is not dispositive of custody. N.A.S., ¶ 9. The magistrate

  fulfilled his obligation by considering B.D.’s age and properly

  balanced that fact with the other relevant factors.

¶ 21   B.D. relies on People v. Polander, 41 P.3d 698 (Colo. 2001), to

  support his argument that he was in custody. Polander, however, is

  distinguishable. In that case, two officers approached a suspicious

  van at approximately 11 p.m. Id. at 701. The officers found three

  people in the back of the van and ordered them to get out so they

  could be searched for weapons. Id. The occupants complied, and

  during the search one of the officers found drugs on the driver and

  ordered him to sit on the curb. Id.

¶ 22   The other officer, who was searching the passengers, ordered

  them to sit on the curb next to the driver. Id. While the three were

  sitting on the curb, police asked who owned a purse that they had

  found in the van. Id. The defendant admitted it was her purse. Id.

  Because drugs were in the purse, the defendant was charged with


                                    10
  possession of narcotics, but before trial she moved to suppress the

  statements she made while she was seated on the curb. Id.

¶ 23   The trial court suppressed her statements and our supreme

  court affirmed, concluding that the defendant was in custody

  because “it was apparent to all that the police had grounds to arrest

  the occupants” and that “it [was] clear that the defendant had every

  reason to believe she would not be briefly detained and then

  released.” Id. at 705. In contrast, B.D. had no reason to believe

  that he, or his friends, would be arrested before telling the officer

  that he had alcohol in his backpack. Indeed, at that point the

  homeowner had not yet identified K.K. and, unlike the defendant in

  Polander, B.D. had not yet made any statement acknowledging the

  fact that he possessed contraband that might lead to his arrest.

¶ 24   B.D. also argues that he was in custody no later than when

  Sergeant Tomasetti took his backpack to search it. Even assuming

  that is true, the record does not indicate that B.D. made any

  incriminating statements after Sergeant Tomasetti took the

  backpack. Further, Miranda’s protections do not apply to physical

  evidence. United States v. Patane, 542 U.S. 630, 641 (2004) (stating

  that the Constitution’s Self-Incrimination Clause does not require


                                     11
  exclusion of a gun the police found as the result of a defendant’s

  pre-Miranda consent to a search of his bedroom); People v. Cowart,

  244 P.3d 1199, 1206 (Colo. 2010) (“[F]ailure to give a defendant a

  Miranda warning does not require suppression of physical fruits of

  the suspect’s unwarned but voluntary statements.”).

¶ 25   The evidence that B.D. contends was introduced based on the

  search of his backpack was the bottle of vodka and the iPad, both of

  which connected B.D. to the burglaries. Those items were admitted

  as the fruits of a consensual search. To comply with the

  Constitution, however, B.D.’s consent to search must have been

  voluntary. That is where we turn next.

                      2.   Voluntariness of Search

¶ 26   “Voluntariness requires a free and unconstrained choice and

  consent that is not the result of duress, coercion, or any other form

  of undue influence.” People v. Lehmkuhl, 117 P.3d 98, 102 (Colo.

  App. 2004). In determining whether a consent is voluntary, we

  consider the defendant’s “subjective characteristics, such as age,

  education, and knowledge, as well as the circumstances of the

  search, such as its location and duration, and the environment in




                                   12
  which a defendant gives consent.” People v. Berdahl, 2012 COA

  179, ¶ 34.

¶ 27   The record shows that B.D. voluntarily consented to the

  search of his backpack. In the few minutes that Sergeant Tomasetti

  was talking to B.D., Sergeant Tomasetti did nothing coercive or

  deceptive. He asked B.D. if he could search his backpack; B.D.

  said yes. Sergeant Tomasetti asked a second time, telling B.D. that

  he did not have to consent; B.D. again said yes. There was simply

  nothing coercive about this search.

¶ 28   Just as in the custody determination, age is a factor that

  courts must consider when determining whether a juvenile’s

  consent to search was voluntary. Id. But it is not the only factor.

  See People in Interest of S.J., 778 P.2d 1384, 1388 (Colo. 1989)

  (concluding that a juvenile, who is not in custody, can consent to a

  search so long as the consent is voluntary). The magistrate here

  considered whether the consent was voluntary given the totality of

  circumstances at issue, including B.D.’s age, and determined that

  B.D. had voluntarily consented to the search. The magistrate did

  not err in his conclusion.




                                   13
                        3.   Fingerprint Evidence

¶ 29   At trial, an expert testified that fingerprints found in one of the

  burglarized homes matched the fingerprints obtained from B.D.

  during his arrest. Now, B.D. argues that the fingerprints that police

  obtained from him during the booking process were the fruit of an

  unlawful search. See Casillas v. People, 2018 CO 78M, ¶ 19 (under

  the exclusionary rule, illegally obtained evidence may not be used).

  B.D. contends that his arrest and subsequent fingerprinting were

  improper because he was in custody when he made his

  incriminating statement and because he did not voluntarily consent

  to the search of his backpack. But, as we discussed above, there

  was nothing unlawful about either the police questioning of B.D. or

  the search of his backpack.

¶ 30   Because nothing about the interrogation, search, or arrest of

  B.D. was unlawful, police were authorized to obtain B.D.’s

  fingerprints as part of the routine identification process that

  accompanies an arrest. United States v. Olivares-Rangel, 458 F.3d

  1104, 1113 (10th Cir. 2006) (citing Smith v. United States, 324 F.2d

  879, 882 (D.C. Cir. 1963)). Accordingly, there was no error

  admitting the fingerprint evidence.


                                    14
¶ 31   B.D. makes a related argument that the fingerprint evidence

  was unreliable because other evidence, like the fact that the

  homeowner identified only K.K. as the burglar, conflicted with the

  fingerprint evidence. But B.D. is simply arguing that the magistrate

  shouldn’t have placed any weight on the fingerprint evidence. Only

  the fact finder can evaluate the weight to be given to the evidence or

  resolve conflicts in the evidence. People v. Richardson, 2018 COA

  120, ¶ 19. We cannot revisit the weight that the magistrate placed

  on evidence.

                   B.   Theft from an At-Risk Person

¶ 32   Finally, B.D. argues that the prosecution presented

  insufficient evidence to support the conclusion that he was guilty of

  theft in the presence of an at-risk person as a complicitor. We

  agree.

¶ 33   A person commits theft if he or she “knowingly obtains,

  retains, or exercises control over anything of value of another

  without authorization.” § 18-4-401(1), C.R.S. 2018. Theft of items

  valued between three hundred and seven hundred fifty dollars is a

  class 2 misdemeanor. § 18-4-401(2)(d). But the theft is a class 5




                                    15
  felony if the items stolen are worth more than five hundred dollars

  and the person

              commits any element or portion of the offense
              in the presence of the victim . . . and the victim
              is an at-risk person, or . . . commits theft
              against an at-risk person while acting in a
              position of trust, whether or not in the
              presence of the victim, or . . . commits theft
              against an at-risk person knowing the victim is
              an at-risk person, whether in the presence of
              the victim or not.

  § 18-6.5-103(5). So, this statute describes three ways in which a

  defendant can commit theft from an at-risk person: (1) an element

  or portion of the offense is committed in the presence of an at-risk

  person; (2) the defendant is in a position of trust as to the at-risk

  person; or (3) the theft is committed by a defendant who knows that

  the victim is an at-risk person. Id. Each basis is independent of

  the others. Cf. People v. Swain, 959 P.2d 426, 430 n.12 (Colo.

  1998) (“Generally, the word ‘or’ is a disjunctive particle that denotes

  an alternative . . . .”).

¶ 34    And the first of the three options — committing an element or

  portion of the offense in the presence of an at-risk person — is a

  strict liability sentence enhancer, in that the person committing the

  offense does not need to know or be aware that the victim is an at-


                                     16
  risk person. See People v. Davis, 935 P.2d 79, 86 (Colo. App. 1996)

  (analyzing section 18-6.5-103(4) — at-risk enhancement of robbery

  — and “find[ing] no indication that the General Assembly intended

  to require that a defendant act with knowledge of the age of a victim

  in order to be charged with a crime against an at-risk adult”); cf.

  People v. Nardine, 2016 COA 85, ¶ 32 (“[W]e conclude that a

  defendant need not know that the victim is ‘at-risk’ in order to be

  convicted of unlawful sexual contact on an at-risk juvenile.”); People

  v. Suazo, 867 P.2d 161, 170 (Colo. App. 1993) (“The plain language

  of the assault on the elderly statute convinces us that the offense

  was meant to be a strict liability offense.”).

¶ 35   At trial, the homeowner who was the victim of the enhanced

  theft testified that he was seventy-seven years old at the time of the

  crime. So he qualified as an at-risk person. § 18-6.5-102(2), (4.5),

  C.R.S. 2018 (anyone over seventy is an at-risk person). The

  homeowner also testified that he had come face-to-face with one of

  the intruders, K.K., as the intruder ran past him and out of the

  house. But the prosecution did not present any evidence that B.D.

  interacted with, saw, or was seen by the homeowner. Nor was there




                                     17
  any evidence presented that K.K. knew that the homeowner was an

  at-risk person or that he’d be present.

¶ 36   Still, because the evidence at trial showed that K.K. committed

  a portion of the crime in front of the at-risk person (even if K.K.

  didn’t know that he did so), B.D. was convicted of theft from an at-

  risk person as a complicitor under the portion of the statute

  applying to offenses committed “in the presence of” an at-risk

  person. § 18-6.5-103(5).

¶ 37   But, B.D. argues that, as a complicitor, he cannot be held

  strictly liable for the sentence enhancer when the record contains

  no evidence that he was aware that K.K. would commit the theft in

  the presence of an at-risk person. We agree.

¶ 38   By statute, “[a] person is legally accountable as principal for

  the behavior of another constituting a criminal offense if, with the

  intent to promote or facilitate the commission of the offense, he or

  she aids, abets, advises, or encourages the other person in planning

  or committing the offense.” § 18-1-603, C.R.S. 2018. Our supreme

  court has said that the statute applies to strict liability crimes so

  long as there is proof that the complicitor has (1) the intent to aid,

  abet, advise, or encourage the principal in his criminal act or


                                     18
  conduct; and (2) an awareness of those circumstances attending the

  act or conduct he seeks to further that are necessary for

  commission of the offense in question. Childress, ¶ 29. This is

  known as the “dual mental state requirement.” Id. We agree with

  B.D. that there is no reason why the awareness prong of the “dual

  mental state requirement” wouldn’t also apply to a sentence

  enhancer like the crimes against at-risk persons statute. Cf. People

  v. McKinney, 99 P.3d 1038, 1043 n.8 (Colo. 2004) (“It is also

  unclear, in light of Blakely v. Washington, [542] U.S. [296] . . .,

  whether the traditional sentence enhancer analysis retains

  vitality.”).

¶ 39    A complicitor must be aware of the “circumstances attending

  the act or conduct he seeks to further that are necessary for

  commission of the offense in question.” Childress, ¶ 29.

  “Circumstances attending the act or conduct” means the elements

  of the offense describing the prohibited act itself and the

  circumstances surrounding its commission. Id. That an at-risk

  person is present for an element or portion of the crime is a

  circumstance surrounding the commission of a theft that must be

  established before a court can impose an enhanced sentence under


                                     19
  the at-risk person statute. So, we conclude that there must be

  evidence that the complicitor had an awareness of that

  circumstance, even if such an awareness is not necessary to hold

  the principal accountable.

¶ 40   There is no evidence that B.D. had such an awareness. B.D.

  never encountered the victim, and there is no indication from the

  record that he was aware that they were robbing an elderly person.

  For example, the record does not indicate that K.K. and B.D.

  discussed robbing an at-risk person or even discussed the potential

  that the victim might be elderly. In the absence of any evidence

  establishing that B.D. was aware that the circumstances

  surrounding the crime could result in theft in the presence of an at-

  risk person, he is liable as a complicitor for theft as a class 2

  misdemeanor and not theft from an at-risk person as a class 5

  felony. Accordingly, the case must be remanded so that the

  mittimus can be amended and B.D. can be resentenced for

  misdemeanor theft. See People v. Codding, 191 Colo. 168, 169, 551

  P.2d 192, 193 (1976) (where the evidence was insufficient to

  support a conviction of felony theft, but was sufficient to sustain a

  conviction of the lesser included offense of petty theft, defendant’s


                                     20
  conviction of felony theft was reversed and remanded for

  resentencing).

¶ 41   The People contend that the “dual mental state requirement”

  does not apply to sentence enhancers because they are not

  elements of the crime. See People v. Ramirez, 997 P.2d 1200, 1208

  (Colo. App. 1999) (holding that a strict liability sentencing enhancer

  related to the amount of drugs that a defendant possessed applied

  to a complicitor even though there was no evidence that she knew

  the amount of drugs the principal possessed), aff’d by an equally

  divided court, 43 P.3d 611 (Colo. 2001). But in Childress, decided

  sixteen years after Ramirez, the supreme court provided an

  expansive definition of the awareness prong of the “dual mental

  state requirement.” A defendant must have the awareness not only

  of the “elements of the offense describing the prohibited act itself”

  but also the “the circumstances surrounding its commission.”

  Childress, ¶ 29.

¶ 42   In Childress, a father was held responsible as a complicitor for

  the vehicular assault that his son committed while under the

  influence even though the father was only a passenger in the car.

  Id. at ¶ 4. The supreme court concluded that while the son could


                                    21
  be convicted of vehicular assault without any proof that he

  knowingly drove under the influence, there must be proof that the

  father knew that the son was driving while intoxicated. Id. at ¶ 38;

  see § 18-3-205(1)(b)(I), C.R.S. 2018. In other words, it was

  necessary to prove that the father was aware of something not

  contained within the elements of vehicular assault —that his son

  was under the influence.

¶ 43   Much like the knowledge that the son was intoxicated at issue

  in Childress, we conclude that the prosecution had to prove that

  B.D. was aware of the enhancing circumstances surrounding the

  commission of the crime — namely, that an element or portion of

  the offense would be committed in the presence of an at-risk person

  — before the court could impose an enhanced sentence. Simply

  put, we read Childress as requiring proof that B.D. was aware that

  the victim was an at-risk person or that an element or portion of the

  crime would be committed in the at-risk person’s presence. And we

  are not persuaded that the fact that the at-risk person statute is a

  sentence enhancer and not an element of the offense is a distinction

  of consequence. Cf. Lopez v. People, 113 P.3d 713, 722 (Colo.

  2005), as modified on denial of reh’g (June 27, 2005) (recognizing


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  that following Blakely, “[o]n the distinction between sentencing

  factors and elements of crimes, the [United States Supreme] Court

  impliedly rejected any remaining difference for the purposes of the

  jury trial requirement”).

¶ 44   Accordingly, we reverse B.D.’s adjudication on the enhanced

  theft charge and remand for resentencing.

                              III.   Conclusion

¶ 45   B.D.’s adjudication and sentence for theft from an at-risk

  person are reversed, and the case is remanded for resentencing on

  that count as a non-enhanced misdemeanor theft and to amend the

  mittimus accordingly. The judgment is affirmed in all other

  respects.

       JUDGE WEBB and JUDGE HARRIS concur.




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