People in the Interest of B.D

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

22
 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.

23