dissenting.
I respectfully dissent.
The defendant appeals a judgment of conviction based on findings of fact and conclusions of law entered after a trial to the court finding her guilty of accessory to crime. I would reverse the judgment of the trial court.
Section 18-8-105(1), C.R.S. (1986 Repl. Vol. 8B) provides:
“A person is an accessory to crime if, with intent to hinder, delay, or prevent the discovery, detection, apprehension, prosecution, conviction, or punishment of another for the commission of a crime, [s]he renders assistance to such person.”
The specific elements which must be proven in order to convict a person of this offense are set forth in Barreras v. People, 686 P.2d 686 (Colo.1981).
Under § 18-8-105(2), C.R.S. (1986 Repl. Yol. 8B), “render assistance,” as pertinent here, means to:
“Harbor or conceal the other; or
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By force, intimidation, or deception, obstruct anyone in the performance of any act which might aid in the discovery, detection, apprehension ... or punishment of such person ...”
As the majority recognizes, for one to be guilty of being an accessory to crime, a wrongful intent must be joined with an affirmative act in furtherance of that intent. See Self v. People, 167 Colo. 292, 448 P.2d 619 (1968). See also United States v. Bissonette, 586 F.2d 73 (8th Cir.1978); United States v. Foy, 416 F.2d 940 (7th Cir.1969); Stephens v. State, 734 P.2d 555 (Wyo.1987). Here, however, the record does not evince sufficient evidence to support a finding of such an affirmative act.
In order to prove that defendant “harbored” or “concealed” Trujillo, the People must show more than simply some form of assistance. Because these words “are active verbs, which have the fugitive as their object,” United States v. Shapiro, 113 F.2d 891, 130 A.L.R. 147 (2d Cir.1940), they necessarily define affirmative acts which “impose ... real barrier[s] to the discovery of [the fugitive].” United States v. Foy, supra.
The majority sets out a litany of eviden-tiary features in support of the criminal conviction. None constitute an affirmative act by defendant.
The existence of a relationship between defendant and Trujillo might be probative of an intent to help him, but it is not probative of any act by defendant during the events at issue here.
The “inference” that Trujillo was in the apartment when the police searched a month earlier is pure speculation — probative of nothing.
The fact that Trujillo was seen entering the apartment is proof of the obvious and is irrelevant to defendant’s guilt. In this regard, no evidence was presented that defendant invited Trujillo to enter or that she opened the door or otherwise consented to his entry. Trujillo had previously frequented and lived in this apartment, and presumably was aware of the space under the kitchen sink, and of its availability as a hiding place.
The smallness of the apartment might be probative of defendant’s knowledge of Trujillo’s presence, but her knowledge is not an affirmative act. See United States v. Foy, supra. Moreover, the small size of the apartment did not prevent Trujillo from being undetected during the initial thorough search by the two officers.
Thus, the facts support, at most, a conclusion that Trujillo was in the same apartment with defendant, and that defendant, *1215perhaps, knew of his presence but chose not to reveal him to the police. This type of inactivity does not constitute harboring or concealing. See United States v. Foy, supra; State v. Clifford, 263 Or. 436, 502 P.2d 1371 (1972). In my view, the evidence presented, while sufficient to cast strong suspicion on defendant as harboring or concealing Trujillo, will not support a finding of guilt beyond a reasonable doubt.