Colorado § 18-6.5-103 - Crimes against at-risk persons - classifications.

§ 18-6.5-103. Crimes against at-risk persons - classifications.

(1) Crimes against at-risk persons are as prescribed in this section.

(2) Any person whose conduct amounts to criminal negligence, as defined in section 18-1-501 (3), commits:

(a) A class 4 felony if such negligence results in the death of an at-risk person;

(b) A class 5 felony if such negligence results in serious bodily injury to an at-risk person; and

(c) A class 6 felony if such negligence results in bodily injury to an at-risk person.

(3) (a) Any person who commits a crime of assault in the first degree, as such crime is described in section 18-3-202, and the victim is an at-risk person, commits a class 4 felony if the circumstances described in section 18-3-202 (2)(a) are present and a class 2 felony if such circumstances are not present.

(b) Any person who commits a crime of assault in the second degree, as such crime is described in section 18-3-203, and the victim is an at-risk person, commits a class 5 felony if the circumstances described in section 18-3-203 (2)(a) are present and a class 3 felony if such circumstances are not present.

(c) Any person who commits a crime of assault in the third degree, as such crime is described in section 18-3-204, and the victim is an at-risk person, commits a class 6 felony.

(4) Any person who commits robbery, as such crime is described in section 18-4-301 (1), and the victim is an at-risk person, commits a class 3 felony. If the offender is convicted of robbery of an at-risk person, the court shall sentence the defendant to the department of corrections for at least the presumptive sentence under section 18-1.3-401 (1).

(5) Any person who commits theft, and commits any element or portion of the offense in the presence of the victim, as such crime is described in section 18-4-401 (1), and the victim is an at-risk person, or who commits theft against an at-risk person while acting in a position of trust, whether or not in the presence of the victim, or who commits theft against an at-risk person knowing the victim is an at-risk person, whether in the presence of the victim or not, commits a class 5 felony if the value of the thing involved is less than five hundred dollars or a class 3 felony if the value of the thing involved is five hundred dollars or more. Theft from the person of an at-risk person by means other than the use of force, threat, or intimidation is a class 4 felony without regard to the value of the thing taken.

(5.5) (Deleted by amendment, L. 2016.)

(6) (a) Any person who knowingly commits caretaker neglect against an at-risk person or knowingly acts in a manner likely to be injurious to the physical or mental welfare of an at-risk person commits a class 1 misdemeanor.

(b) A person who unlawfully abandons an at-risk person commits a class 1 misdemeanor.

(7) (a) Any person who commits a crime of sexual assault, as such crime is described in section 18-3-402, sexual assault in the first degree, as such crime was described in section 18-3-402, as it existed prior to July 1, 2000, and the victim is an at-risk person, commits a class 2 felony.

(b) Any person who commits a crime of sexual assault in the second degree, as such crime was described in section 18-3-403, as it existed prior to July 1, 2000, and the victim is an at-risk person, commits a class 3 felony.

(c) Any person who commits unlawful sexual contact, as such crime is described in section 18-3-404, or sexual assault in the third degree, as such crime was described in section 18-3-404, as it existed prior to July 1, 2000, and the victim is an at-risk person, commits a class 6 felony; except that the person commits a class 3 felony if the person compels the victim to submit by use of such force, intimidation, or threat as specified in section 18-3-402 (4)(a), (4)(b), or (4)(c), or if the actor engages in the conduct described in section 18-3-404 (1)(g) or (1.5).

(d) Any person who commits sexual assault on a child, as such crime is described in section 18-3-405, and the victim is an at-risk juvenile, commits a class 3 felony; except that, if the circumstances described in section 18-3-405 (2)(a), (2)(b), (2)(c), or (2)(d) are present, the person commits a class 2 felony.

(e) Any person who commits sexual assault on a child by one in a position of trust, as such crime is described in section 18-3-405.3, and the victim is an at-risk juvenile, commits a class 2 felony if the victim is less than fifteen years of age or a class 3 felony if the victim is fifteen years of age or older but less than eighteen years of age.

(f) Any person who commits sexual assault on a client by a psychotherapist, as such crime is described in section 18-3-405.5, and the victim is an at-risk person, commits a class 3 felony if the circumstances described in section 18-3-405.5 (1) exist or a class 6 felony if such circumstances are not present.

(7.5) (a) A person commits criminal exploitation of an at-risk person when he or she knowingly uses deception, harassment, intimidation, or undue influence to permanently or temporarily deprive an at-risk person of the use, benefit, or possession of any thing of value.

(b) Criminal exploitation of an at-risk person is a class 3 felony if the thing of value is five hundred dollars or greater. Criminal exploitation of an at-risk person is a class 5 felony if the thing of value is less than five hundred dollars.

(8) (Deleted by amendment, L. 2016.)

(9) (a) A person commits false imprisonment of an at-risk person if without proper legal authority:

(I) (A) The person knowingly confines or detains an at-risk person in a locked or barricaded room or other space; and

(B) Such confinement or detention was part of a continued pattern of cruel punishment or unreasonable isolation or confinement of the at-risk person; or

(II) The person knowingly and unreasonably confines or detains an at-risk person by tying, caging, chaining, or otherwise using similar physical restraints to restrict the at-risk person's freedom of movement; or

(III) The person knowingly and unreasonably confines or detains an at-risk person by means of force, threats, or intimidation designed to restrict the at-risk person's freedom of movement.

(b) It is an affirmative defense for any person with responsibility for the care or supervision of an at-risk person whose conduct would otherwise constitute an offense pursuant to subsection (9)(a)(II) of this section that the conduct with respect to the at-risk person is reasonable and appropriate under the circumstances and is also reasonably necessary to promote the safety and welfare of the at-risk person.

(c) (I) False imprisonment of an at-risk person pursuant to subsection (9)(a)(I) or (9)(a)(II) of this section is a class 6 felony.

(II) False imprisonment of an at-risk person pursuant to subsection (9)(a)(III) of this section is a class 1 misdemeanor.

Source: L. 91: Entire article added, p. 1779, § 2, effective July 1. L. 93: Entire section amended, p. 1733, § 24, effective July 1. L. 95: (3) amended, p. 1254, § 14, effective July 1. L. 97: (7) added, p. 1539, § 2, effective July 1. L. 98: (5) amended and (8) added, pp. 1440, 1441, §§ 19, 24, effective July 1. L. 99: (6) amended, p. 799, § 20, effective July 1. L. 2000: (7)(a), (7)(b), and (7)(c) amended, p. 706, § 32, effective July 1. L. 2002: (4) amended, p. 1516, § 201, effective October 1. L. 2003: (4) amended, p. 1428, § 10, effective April 29. L. 2007: (5) amended, p. 2006, § 2, effective July 1. L. 2013: (5.5) and (7.5) added and (6) and (8) amended, (SB 13-111), ch. 233, p. 1122, § 4, effective May 16. L. 2014: (7.5) R&RE, (SB 14-098), ch. 103, p. 387, § 2, effective April 7. L. 2016: Entire section amended, (HB 16-1394), ch. 172, p. 547, § 3, effective July 1. L. 2019: (6) amended and (9) added, (SB 19-172), ch. 365, p. 3359, § 3, effective July 1.

Cross references: For the legislative declaration contained in the 2002 act amending subsection (4), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration in the 2013 act adding subsections (5.5) and (7.5) and amending subsections (6) and (8), see section 1 of chapter 233, Session Laws of Colorado 2013. For the legislative declaration in SB 19-172, see section 1 of chapter 365, Session Laws of Colorado 2019.

ANNOTATION

Subsection (2) is a separate substantive offense, not a sentence enhancer. People v. Lovato, 179 P.3d 208 (Colo. App. 2007).

Subsection (2) is not void for vagueness; it prohibits any criminally negligent act or omission that results in bodily injury to an at-risk adult or juvenile. Although broad, the proscription is not so vague that a person of common intelligence must necessarily guess at its meaning. People v. Lovato, 179 P.3d 208 (Colo. App. 2007).

Although the court's instruction deviated from the language in subsection (2), it was not error. The deviation from the statute worked to defendant's benefit by creating a more demanding standard of culpability, so defendant may not claim error. People v. Lovato, 179 P.3d 208 (Colo. App. 2007).

Robbery of an at-risk adult is a lesser included offense of aggravated robbery; therefore, the conviction for robbery of an at-risk adult must be vacated because it merges with the aggravated robbery conviction. People v. Lovato, 179 P.3d 208 (Colo. App. 2007).

Under the rule of lenity, defendant's felony convictions for bodily injury against an at-risk adult under subsection (3)(c) and third degree assault against an at-risk person under § 18-3-204 must nevertheless merge even if bodily injury against an at-risk adult is not a lesser included offense of third degree assault under § 18-1-408 (5)(a). Thomas v. People, 2021 CO 84, 500 P.3d 1095.

The general assembly's intent is that subsection (7)(b) would apply only to sexual assault crimes committed before July 1, 2000, that fit the previous definition of second degree assault. People v. Renfro, 117 P.3d 43 (Colo. App. 2004).

Subsection (5) enhances the penalties for general theft when the theft is committed against an at-risk adult; it does not create a separate offense. To prove that a defendant has committed theft from an at-risk adult, the prosecution first must prove that the defendant has committed general theft. People v. McKinney, 99 P.3d 1038 (Colo. 2004).

A complicitor can be held strictly liable for the sentence enhancer when the complicitor is unaware that an at-risk victim is present if the complicitor intended to aid in the theft and was aware of the circumstances constituting the elements of the underlying offense. People in Interest of B.D., 2020 CO 87, 477 P.3d 143; People in Interest of N.D.O., 2021 COA 100, 497 P.3d 1070.

"Portion of the offense" as used in subsection (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. The general assembly did not intend for only an element of the offense to have occurred in the presence of the victim for a defendant to be convicted of the sentence enhancer. People v. Lopez, 2018 COA 119, 488 P.3d 373.

The crime of unlawful sexual contact on an at-risk person does not include an implied element of mens rea. The prosecution does not need to prove that the defendant either knew or should have known of the victim's at-risk status. People v. Nardine, 2016 COA 85, 409 P.3d 441.

Trial court erred by relying on the jury's answer to an at-risk-person verdict question to enter a judgment of conviction for the uncharged lesser nonincluded offense of criminal negligence resulting in the death of an at-risk person under subsection (2)(a) because such use of the answer would effectively subject the defendant to a conviction for an offense that was not originally charged. People v. Martinez, 2024 COA 34, 552 P.3d 551.

Trial court did not err in refusing to give jury instruction defining "presence", as used in subsection (5), where the jurors are capable of applying the word in its ordinary usage. People v. Lopez, 2018 COA 119, 488 P.3d 373.

Trial court did not err in refusing to instruct the jury that knowledge of the age of the victim was an element of the offense of robbery of an at-risk adult. There is 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. There is no mens rea element in the statute. Hence no defense of reasonable mistake of the victim's age. People v. Davis, 935 P.2d 79 (Colo. App. 1996).

Trial court did not err in refusing to impose a lesser sentence than the presumptive sentence under § 18-1-105 (1), as the sentence was required by this section. By reference only to that section and using the mandatory word "shall", the general assembly did not allow a trial court discretion to engraft probation, part of an entirely separate statutory scheme, onto its sentencing decision. People v. Davis, 935 P.2d 79 (Colo. App. 1996).

Because one of the powers exercised by defendant under father's power of attorney, dealing with personal and family maintenance, required him to maintain father's standard of living, he had a legal duty to exercise that power with due care for father's benefit. Defendant was convicted of second degree assault and causing serious bodily injury to an at-risk adult by criminal negligence when, despite defendant's medical training, defendant failed to respond to father's worsening condition, left father bedridden for a significant length of time without proper change of clothing, toileting, or hygiene, failed to seek professional care for father, and verbally abused father, causing him to fear defendant. People v. Madison, 176 P.3d 793 (Colo. App. 2007).

Convictions for theft from an at-risk adult reversed where at-risk adults signed checks on behalf of a family trust and a common stock company rather than in their individual capacities. People v. Pahl, 169 P.3d 169 (Colo. App. 2006).