in the Interest of B.D

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ADVANCE SHEET HEADNOTE
December 14, 2020

2020 CO 87

No. 19SC396, People in the Interest of B.D.—Complicity—Sentence Enhancer—
Statutory Interpretation—Due Process.

In this opinion, the supreme court reviews the judgment of a division of the

court of appeals, which reversed the defendant’s adjudication and sentence for

theft from an at-risk person as a complicitor. The supreme court holds that the

requirement that a complicitor hold a dual mental state does not extend to

sentence enhancers based on the nature of the offense. The dual mental state

standard requires that the complicitor intended for the principal to complete the

elements of the criminal offense and to have been aware of all the circumstances

attending those elements. Based on the plain language of the at-risk victim

provision here, the supreme court concludes that it is a sentence enhancer. Thus,

liability for theft from an at-risk victim as a complicitor, does not require that the

complicitor was aware of the at-risk victim’s presence to trigger the sentence

enhancing provision.

The judgment of the court of appeals is reversed.
 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203

2020 CO 87

Supreme Court Case No. 19SC396
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 17CA1924
Petitioner:

The People of the State of Colorado,

In the Interest of

Respondent:

B.D.
Judgment Reversed
en banc
December 14, 2020
Attorneys for Petitioner:
Philip J. Weiser, Attorney General
Gabriel P. Olivares, Assistant Attorney General
Denver, Colorado

Attorneys for Respondent:
The Noble Law Firm, LLC
Tara Jorfald
Lakewood, Colorado

JUSTICE HOOD delivered the Opinion of the Court.
¶1 Several boys broke into two homes, one of which was owned by a man old

enough to be considered an “at-risk” victim. When that man returned home, he

happened upon one of the boys holding the meager spoils of an ill-conceived,

juvenile burglary. The others, including B.D., remained outside, oblivious to the

elderly man’s arrival. All the boys quickly fled, leaving in their wake an

undoubtedly startled victim and, perhaps less predictably, a legal conundrum

about complicitor liability.

¶2 In this opinion, we address the scope of complicitor liability for a fact that

aggravates the punishment for theft; namely, an at-risk victim’s presence. Based

on the plain language of the controlling statutes, we conclude that a complicitor

need not be aware that an at-risk victim is present because it is a strict liability

sentence enhancer and not an element of the offense. Accordingly, we reverse the

judgment of the court of appeals and remand the case for the district court to

reinstate the adjudication and sentence.

I. Facts and Procedural History

¶3 B.D. and two of his friends broke into two homes, stealing several items. At

the second home, only one of the boys, K.K., was still inside when the seventy-

seven-year-old owner returned. The boys fled, and the homeowner called the

police. Officers soon found the three boys walking nearby. The homeowner

identified K.K., and the boys were arrested.

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¶4 B.D. was charged with one count of theft and two counts of second degree

burglary. He was also charged with one count of theft in the presence of an at-risk

person because the victim was over seventy years old. See § 18-6.5-102(2), C.R.S.

(2020) (“‘At-risk adult’ means any person who is seventy years of age or

older . . . .”). After a bench trial, the juvenile magistrate adjudicated B.D.

delinquent on all counts.

¶5 On appeal, the division, relying on People v. Childress, 2015 CO 65M, ¶ 29,

363 P.3d 155, 164, concluded that to be liable for theft in the presence of an at-risk

victim, the prosecution had to prove that B.D. “had an awareness of [the at-risk

victim’s presence], even if such an awareness is not necessary to hold the principal

accountable.” People in Int. of B.D., 2019 COA 57, ¶ 39, __ P.3d __. And because

no such evidence was presented, the evidence was insufficient to sustain B.D.’s

adjudication. Id. at ¶ 40.

¶6 We then granted the prosecution-sought certiorari review.1

1 We granted certiorari to review the following issue:
Whether the court of appeals erred in holding that, before a court can
impose an enhanced sentence under the at-risk person statute, there
must be evidence that the complicitor had an awareness of the fact
that an at-risk person was present during the commission of the
offense.
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 II. Analysis

¶7 After identifying the standard of review and revisiting familiar principles of

statutory interpretation, we address the question before us. We approach that

question by breaking it into two parts: (1) whether Childress’s “dual mental state”

requirement for complicity extends to sentence enhancers or is limited to the

elements of the offense, and (2) whether the at-risk victim provision here is a

sentence enhancer or an element.2

A. Standard of Review and Principles of Statutory
Interpretation

¶8 Both parties have framed the question before us as a challenge to the

sufficiency of the evidence supporting B.D.’s adjudication. We review the record

de novo to determine whether the relevant evidence, both direct and

circumstantial, when viewed as a whole and in the light most favorable to the

prosecution, is substantial and sufficient both in quantity and quality to support a

conclusion by a reasonable mind that the defendant is guilty of the charge beyond

a reasonable doubt. McCoy v. People, 2019 CO 44, ¶ 63, 442 P.3d 379, 392.

Determining the sufficiency of the evidence here requires us to review the

2 This opinion addresses sentence enhancers based on the nature of the offense
rather than sentence enhancers specific to the principal, such as criminal history.
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division’s interpretation of the relevant statutes, which we also do de novo. See

Chavez v. People, 2015 CO 62, ¶ 7, 359 P.3d 1040, 1042.

¶9 In interpreting statutes, our primary goal is to discern legislative intent.

Carrera v. People, 2019 CO 83, ¶ 17, 449 P.3d 725, 729. And because it is the

legislature’s prerogative to define crimes and prescribe the relevant punishments,

Vensor v. People, 151 P.3d 1274, 1275 (Colo. 2007), we begin with the statutes’ plain

language, giving words and phrases their plain and commonly understood

meanings, Carrera, ¶ 17, 449 P.3d at 729. If the language is clear, we apply it as

written. Id. at ¶ 18, 449 P.3d at 729.

¶10 With these concepts in mind, we first turn to Colorado’s complicity statute,

and we examine how it applies to sentence enhancers.

B. Whether the Dual Mental State Requirement for
Complicitors Applies to Sentence Enhancers

¶11 Under the complicitor liability theory, “[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. (2020).

¶12 This court has interpreted the complicity statute to require that a complicitor

hold a dual mental state; meaning, the complicitor must have both

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 (1) the intent, in the commonly understood sense of desiring or
having a purpose or design, to aid, abet, advise, or encourage the
principal in his criminal act or 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, 363 P.3d at 164. By “circumstances attending the act or conduct,”

we mean “those elements of the offense describing the prohibited act itself and

the circumstances surrounding its commission.” Id. Thus, under Childress,

complicitor liability requires awareness of all circumstances necessary for the

commission of the offense. See Butler v. People, 2019 CO 87, ¶ 12, 450 P.3d 714, 717

(“Assessing whether a defendant may be found liable as a complicitor therefore

requires a determination of the requisite elements of the principal’s offense.”).

¶13 An individual commits an offense when he completes all the statutory

elements of that offense. See Doubleday v. People, 2016 CO 3, ¶¶ 23–24, 364 P.3d

193, 197 (discussing that proving the commission of a crime “requires the

prosecution to prove beyond a reasonable doubt each of the elements of that

crime”).

¶14 Sentence enhancers attach only after the prosecution has proven that the

defendant committed the offense. People v. Eggers, 585 P.2d 284, 286 (Colo. 1978)

(concluding that sentence enhancers are “triggered only after a defendant has been

found guilty of the substantive crime” (quoting Brown v. Dist. Ct., 569 P.2d 1390,

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1391 (Colo. 1977))), superseded on other grounds by statute, Ch. 211, secs. 1 & 2,

§§ 8-1-105(9)(a) & 16-11-309(1), 1981 Colo. Sess. Laws 970–71.

¶15 Accordingly, because sentence enhancers are not elements of the offense,

Childress’s dual mental state requirement does not extend to them. See Garcia v.

People, 2019 CO 64, ¶¶ 30–32, 445 P.3d 1065, 1070 (concluding that where a

sentence enhancing provision contains no mens rea requirement, none is required

for the sentence enhancer to apply); Whitaker v. People, 48 P.3d 555, 559 (Colo. 2002)

(interpreting the relevant statutes as setting “forth the drug quantity separately

from the elements, with no mens rea requirement and with the apparent design of

separating the applicable punishment from the creation and definition of the

offense”).

¶16 B.D. asserts that because the statute makes a complicitor accountable only

for the principal’s “criminal offense,” a complicitor can’t be subject to sentence

enhancers because they aren’t part of the offense. However, because complicity is

a theory of liability, not an offense, once a defendant is found guilty of the

underlying offense, he “is legally accountable as principal . . . for [the] criminal

offense,” § 18-1-603, including any sentence enhancers related to the nature of the

offense. See People v. Ramirez, 997 P.2d 1200, 1207 (Colo. App. 1999)

(“[P]unishment is imposed for the underlying crime and not for complicity. . . .

Thus, an offense exists to which the [sentence enhancement] provisions may

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apply.”), aff’d by an equally divided court, 43 P.3d 611 (Colo. 2001) (mem). The

complicity statute puts B.D. on equal footing with his principal regarding the

circumstances accompanying the commission of the offense, which then allows

any relevant sentence enhancers to apply by their own force. Thus, B.D. is liable

as a complicitor if he intended to aid in the theft and was aware of the

circumstances constituting the elements of the offense, notwithstanding his

ignorance of any sentence-enhancing facts.

¶17 Next, we turn to the statutes at issue here to determine whether the at-risk

victim provision is an element that B.D. needed knowledge of under the

complicity statute or is instead a strict liability sentence enhancer.

C. Whether the At-Risk Victim Provision Is a Sentence
Enhancer or an Element

¶18 The plain language and structure of the controlling statutes make clear that

the legislature intended the at-risk victim provision to be a sentence enhancer.

¶19 Section 18-4-401(1), C.R.S. (2020), sets forth the ways an individual can

commit theft. As relevant here, an individual commits theft “when he or she

knowingly obtains, retains, or exercises control over anything of value of another

without authorization . . . and . . . [i]ntends to deprive the other person

permanently of the use or benefit of the thing of value.” § 18-4-401(1)(a).

Subsection (2) then provides for increasing penalties based on the value of the

stolen items. Thus, subsection (1) contains the essential elements that a jury must
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find to convict a defendant of theft, while subsection (2) provides the penalties a

judge may impose based on the jury’s findings.

¶20 In a separate article of the criminal code, the legislature also imposes greater

penalties when the theft happens in the presence of an at-risk victim: “Any person

who commits theft, and commits any element or portion of the offense in the

presence of the victim, . . . and the victim is an at-risk person, . . . commits” a

felony. § 18-6.5-103(5), C.R.S. (2020).

¶21 This statutory structure creates a clear distinction between the elements of

theft and the at-risk victim provision. See Garcia, ¶¶ 36–38, 445 P.3d at 1070–71;

Whitaker, 48 P.3d at 558–60. Therefore, based on the statutes’ plain language and

structure, we conclude that the at-risk victim provision is a sentence enhancer.

¶22 And although we need look no further to discern the legislature’s intent, the

express purpose of the at-risk victim statute provides additional support for our

interpretation: “The general assembly . . . finds that penalties for specified crimes

committed against at-risk persons should be more severe than the penalties for the

commission of the same crimes against other members of society.” § 18-6.5-101,

C.R.S. (2020). This is because at-risk victims “are more impacted by crime than the

general population because they tend to suffer great relative deprivation,” and

“[t]hey are far more susceptible than the general population to the adverse long-

term effects of crimes committed against them.” Id. Because the statute’s purpose

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is not necessarily aimed at deterrence but at accountability, it does not matter

whether the individual committing the offense is unaware that an at-risk victim is

present—he committed the crime and is therefore responsible for the fact that the

harm caused is greater than intended. See Vega v. People, 893 P.2d 107, 117 (Colo.

1995) (“The aggravating circumstances . . . bear on punishment, rather than on the

offense . . . because the underlying offense causes the same harm whether [the

defendant is aware the aggravating circumstances are present or not].”); Ramirez,

997 P.2d at 1207 (“There is no reason why a defendant, whether a principal or a

complicitor, who knowingly traffics in drugs, should not bear the risk that the

quantity involved is greater than that which he or she was aware, and that,

therefore, such conduct might be more harmful than intended.”).

¶23 The legislature’s express desire to increase punishments when at-risk

people are victimized reinforces our conclusion that it intended the at-risk victim

provision to constitute a strict liability sentence enhancer rather than an element

of the offense.

¶24 B.D. counters that the presence of an at-risk victim must be an element of

the offense of theft from an at-risk person because the U.S. Supreme Court has said

that “when the term ‘sentence enhancement’ is used to describe an increase

beyond the maximum authorized statutory sentence, it is the functional equivalent

of an element.” Apprendi v. New Jersey, 530 U.S. 466, 494 n.19 (2000); see Alleyne v.

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United States, 570 U.S. 99, 107–08 (2013); United States v. O’Brien, 560 U.S. 218, 224

(2010). But the lesson from Apprendi and its progeny is that judges may not impose

sentences beyond the statutorily prescribed range based on findings by a

preponderance of the evidence. 530 U.S. at 490 (“Other than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.”). These cases did not create a universal rule dictating when sentence

enhancers become elements. Instead, they “made clear that for purposes of the

Sixth Amendment guarantee of jury determinations, it is inconsequential whether

a required fact is organized . . . as a sentencing factor or as an element” if that fact

increases the range of potential penalties. Lewis v. People, 261 P.3d 480, 483 (Colo.

2011). So our holding that, “for the purposes of the jury trial requirement,” a

sentence enhancer sometimes functions as an element for Sixth Amendment

purposes, Lopez v. People, 113 P.3d 713, 722 (Colo. 2005), does not dictate the

interaction between Colorado’s complicity and at-risk victim statutes.3

3 In the interest of not conflating related issues, we set forth the foregoing plain
language analysis without reference to the lines of cases discussing sentence
enhancers and elements in other contexts; namely, the Sixth Amendment right to
a jury trial (Apprendi and O’Brien) and double jeopardy/merger (People v. Leske,
957 P.2d 1030 (Colo. 1998), and Armintrout v. People, 864 P.2d 576 (Colo. 1993)).

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¶25 Here, there is no Apprendi problem because a juvenile magistrate, acting as

factfinder following a bench trial, found the essential elements of theft and the

presence of the at-risk victim beyond a reasonable doubt. See § 19-1-108(1), C.R.S.

(2020) (“The juvenile court may appoint one or more magistrates to hear any case

or matter under the court’s jurisdiction, except where a jury trial has been

requested pursuant to section 19-2-107 . . . .”); Blakely v. Washington, 542 U.S. 296,

310 (2004) (“[A] defendant who stands trial may consent to judicial factfinding as

to sentence enhancements . . . .”). We are not persuaded that Apprendi requires us

to interpret the at-risk victim provision as an element, rather than a sentence

enhancer, for the purposes of Colorado’s complicity statute.

¶26 In sum, a complicitor’s dual mental state applies only to the elements of the

underlying offense and not to strict liability sentence enhancers related to the

nature of the offense. Because the at-risk victim provision in section 18-6.5-103 is

a strict liability sentence enhancer to the underlying crime of theft, B.D. need not

have been aware that the theft happened in the presence of an at-risk victim. He

is subject to the enhanced punishment accompanying that circumstance,

regardless.

Each of these contexts presents distinct concerns that should not be blurred in the
overlapping search for legislative intent.
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 III. Conclusion

¶27 We reverse the judgment of the court of appeals and remand the case for the

district court to reinstate the adjudication and sentence.

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