2018 COA 119
Colo. Ct. App.2018Background
- Defendant Victor Lopez visited a 70‑year‑old neighbor (victim) in the victim’s small travel trailer, asked to use the bathroom, took the victim’s gun from the bathroom wall, returned to the living room, spoke with the victim, and left with the gun. Defendant later admitted the theft to police.
- Defendant was charged with theft and faced two alternative enhancers under § 18‑6.5‑103: (1) knowing the victim was an at‑risk elder (age ≥70) and (2) committing an element or portion of the offense in the victim’s presence.
- At trial defendant conceded the basic theft but contested applicability of the enhancers; the jury found he committed a portion of the offense in the victim’s presence and convicted under § 18‑6.5‑103(5). The court sentenced him to one year probation.
- Defendant moved for a judgment of acquittal arguing insufficient evidence that any element or portion of the theft occurred in the victim’s presence; the trial court denied the motion.
- Defendant also challenged a prospective juror (H.S.) for cause based on confusion about the presumption of innocence and anti‑gun views, and tendered a jury instruction defining “presence” that would import force/threats language from robbery cases; the court denied the challenge and declined to give the proposed definition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of challenge for cause to juror H.S. violated right to impartial jury | H.S. could be rehabilitated and would follow the court’s instructions; silence after panel questioning indicated she could be impartial | H.S. was confused about the presumption of innocence and biased by anti‑gun views, so she could not be impartial | Denial affirmed: trial court’s rehabilitative voir dire (and panel silence) sufficiently established H.S. could be fair; no abuse of discretion |
| Whether evidence was sufficient to show an element or "portion of the offense" occurred in victim’s presence under § 18‑6.5‑103(5) | Prosecution: “portion of the offense” includes conduct in furtherance of the theft that occurs near in time and physically close to the victim; defendant spoke with victim in same room after taking gun | Lopez: theft was completed in the bathroom out of victim’s presence, so no element or portion occurred in victim’s presence | Affirmed: court adopts definition—conduct in furtherance of the crime that is temporally proximate to an element and physically close to the victim; defendant returned to same room and spoke with victim immediately after taking the gun, satisfying the enhancer |
| Whether trial court erred by refusing defendant’s proposed instruction defining “presence” (which required force/threats) | Defense urged adopting a robbery‑style definition (property within reach/inspection/control absent force) | That definition would add an element (force/threat) not in § 18‑6.5‑103; “presence” is a common term and jury need not be specially defined | Affirmed: court properly rejected defense instruction as inconsistent with the statute and declined to give a definition because “presence” is a common term jurors can apply |
Key Cases Cited
- People v. Hill, 934 P.2d 821 (defining elements of a crime as constituent parts the prosecution must prove)
- Johnson v. People, 468 P.2d 745 (using the phrase “portion of the crimes” to describe non‑element conduct that was part of perpetration)
- People v. Bartowsheski, 661 P.2d 235 (court‑crafted definition of presence in robbery context)
- Oram v. People, 255 P.3d 1032 (standard for de novo review of sufficiency of the evidence)