A Denver judge convicted a juvenile of burglary despite insufficient evidence of that crime, the state’s Court of Appeals concluded last month.

Under Colorado law, the felony offense of burglary requires a person to commit unlawful entry. A three-judge appellate panel believed the prosecution had not proven beyond a reasonable doubt that a juvenile defendant, identified as J.S-C., used deception or other means to gain unlawful entry into the victim’s home-based business.

In doing so, the court drew a distinction between burglary and the misdemeanor crime of theft.

“Suppose, for example, that a person enters a clothing store with intent to steal a shirt,” wrote Judge Timothy J. Schutz in the panel’s June 16 opinion. “If the person thereafter steals the shirt, the person could effectively be tried for the crime of theft. But the fact that the person entered the store with the intent to commit a theft does not necessarily render the theft a burglary.”

The criminal case involved an online fashion accessory business the victim’s daughter operated out of a high-rise condominium in Denver. The victim occasionally would help her daughter by taking merchandise down to customers or allowing them to view products in the condo’s entryway.

The victim’s daughter informed her mother that two people, one of whom was a repeat customer, would come by on Oct. 10, 2019. The mother should let the buyer, allegedly known as “Froylan,” into the condo.

J.S-C. and a companion knocked on the condo door and the victim allowed them inside. The two began to look at the merchandise, at one point asking the victim if there were any sunglasses available. When the victim turned her back, the couple grabbed cash and merchandise and ran. The victim gave chase, and a bystander caught J.S-C. in the lobby. Authorities never located or identified her companion.

J.S-C. stood trial for burglary. There was little information about the interaction between the victim and J.S-C. and her companion, and no testimony about who “Froylan” was. Although the prosecution alleged J.S-C. used a ruse to gain unlawful entry to the condo, the defense claimed the evidence pointed to J.S-C. being invited.

Then-Juvenile Court Judge Donna J. Schmalberger decided J.S-C. had committed burglary, ruling the defendant had entered under false pretenses because the victim let in J.S-C. and her companion “thinking they were someone other than (who) they were.” Schmalberger sentenced J.S-C. to one year in juvenile detention.

The Court of Appeals panel reviewing J.S-C.’s case honed in on whether the evidence supported Schmalberger’s finding that J.S-C. had committed unlawful entry — the key element of burglary under dispute.

“My client was invited in to view merchandise and she went in to view merchandise,” public defender Mark Evans said. He added there was no evidence J.S-C. gained access to the condo through deception.

“If I’m expecting Bob to show up at my door and I hear a knock on the door, and I open the door and I let this person in and it happens to be Jim, that’s not Jim’s fault. Jim didn’t do anything deceptive there,” Evans said during oral arguments.

The government insisted it was fair to infer that J.S-C. pretended to be a customer to gain illicit access to the condo. Assistant Attorney General Danny Rheiner pointed out the condo was in a 30-floor high-rise, was not open to the public, and customers could only gain access by representing they were patronizing the home-based business.

Judge Craig R. Welling responded it was plausible J.S-C. had legitimately set up the appointment to see the merchandise, but knew the condo presented a “soft target” having been a prior customer. Therefore, although she would have had the intent to rob, she would not have entered unlawfully.

“Do we agree that if I go into a store intending to rob it and not pay for anything that I have not unlawfully entered?” he asked. “I have certainly entered with ill intent. But it is not an unlawful entry that can give rise to a burglary charge, is it?”

Rheiner responded that stealing from stores like Target or Walmart would not have amounted to burglary.

“You don’t need to pretend to be someone else to get into a Target or a Walmart,” he said.

“What evidence do we have that she was pretending to be somebody else?” Schutz quizzed.

Rheiner said it was a reasonable inference J.S-C. was being deceptive, even if there was no direct evidence. Judge Jerry N. Jones indicated he was skeptical of that line of thinking.

“Most shoplifters, I’m gonna guess here, enter a place of business intending to shoplift,” he said. “But it sounds like from your argument, that’s a ruse. They’re not really a customer. They’re gonna steal something. So you’re saying every shoplifting is a burglary.”

The panel ultimately sided with J.-S.C. in finding the victim allowed her to enter the condo for the purpose of patronizing her daughter’s accessory business, and, therefore, no unlawful entry occurred. Even if J.S-C. employed a ruse, Schutz wrote in the panel’s opinion, there was too little information to prove deception beyond a reasonable doubt.

The Court of Appeals concluded the prohibition against double jeopardy precluded prosecutors from retrying J.S-C., and the only question was whether to direct the juvenile court to enter a conviction for theft instead of burglary. The panel decided theft was not a lesser offense of burglary, so J.S-C.’s conviction would be overturned outright and the case dismissed.

The case is People in the Interest of J.S-C.