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. 

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. 
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 

¶ 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, 
2 

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. 
3 

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. 
4 

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 
5 

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: 
6 

[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: 
7 

[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. 
8 

¶ 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: 
9 

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 cutoffs. 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 
10 

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, 
11 

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). 
12 

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. 
13 

¶ 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.” 
14 

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. 
15 

¶ 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. 
16 

¶ 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 
17 

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 
18 

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 
19 

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 
20 

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.