The People of the State of Colorado, Petitioner-Appellee, In the Interest of B.D., Juvenile-Appellant.
Jefferson County District Court No. 16JD355 Honorable Ann
Gail Meinster, Judge Honorable Andrew Todd Fitzgerald,
J. Weiser, Attorney General, Gabriel P. Olivares, Assistant
Attorney General, Denver, Colorado, for Petitioner-Appellee
Jorfald, Alternate Defense Counsel, Lakewood, Colorado, for
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 evidence
to adjudicate B.D. as a complicitor to theft from an at-risk
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.
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
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 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
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. 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.
12 A petition for district court review of an order entered
by a magistrate is a prerequisite to an appeal of such order.
§ 19-1-108(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 ...