Rehearing Denied January 13, 2014
[Copyrighted Material Omitted]
Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 09CA1719
Attorneys for Petitioner: John W. Suthers, Attorney General, Jennifer L. Ward, Assistant Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado
Attorney for Respondent: Jonathan S. Willett, Denver, Colorado
¶ 1 A jury convicted Defendant Neil Eugene Roggow of sexual assault on a child by one in a position of trust, in violation of section 18-3-405.3, C.R.S. (2013), based on his unlawful sexual contact with an eight-year-old girl. The court of appeals reversed Roggow's conviction, concluding that the evidence was insufficient to prove that Roggow was in a position of trust with respect to the victim because he was not charged with her care or supervision when the unlawful acts occurred. People v. Roggow, No. 09CA1719, slip op. at 7-8, 2011 WL 2199694 (Colo.App. May 26, 2011) (not published pursuant to C.A.R. 35(f)).
¶ 2 We granted the People's petition for a writ of certiorari  and now reverse the court of appeals. We hold that, for purposes of section 18-3-405.3, a defendant need not be expressly charged with a particular duty or responsibility over the child at the time of the unlawful act in order to occupy a position of trust. Rather, a defendant may occupy a position of trust with respect to the victim where an existing relationship or other conduct or circumstances establish that the defendant is entrusted with special access to the child victim. Here, we conclude that the evidence was sufficient for a jury to conclude that Roggow was in a position of trust with respect to the victim at the time of the unlawful acts.
¶ 3 At trial, the evidence established that Roggow was the landlord of the house rented by the family of A.B., the eight-year-old victim. Roggow had maintained an ongoing and friendly relationship with the family for over two years. Because Roggow lived only a few blocks away, A.B.'s parents hand-delivered the monthly rent to Roggow and were often invited into Roggow's home to socialize. In addition, A.B.'s older brothers (ages thirteen and fourteen) sometimes helped Roggow with chores around his house.
¶ 4 On June 24, 2008, the day of the assault, A.B.'s father asked Roggow to come to the house to fix the upstairs bathroom shower. When Roggow arrived at the house, A.B. and her older brothers were home alone because their parents were at work and school was not in session for the summer. Roggow decided he needed a replacement part for the shower and asked the children if they would like to accompany him to the hardware store. A.B. and her oldest brother volunteered to join Roggow, and the three left in Roggow's truck.
¶ 5 At the hardware store, Roggow told the brother to get something at the end of the store aisle. When the brother walked away, Roggow pretended to reach for an item on the shelf and touched A.B.'s breast. Later, while standing in the check-out line, Roggow touched A.B.'s buttocks while telling
her to move forward with the line. Roggow then drove the children to a second hardware store. There, Roggow told the brother to go into the store to check on the price of a part. While alone with A.B. in the truck, Roggow explained to A.B. that men would soon want to engage in sexual acts with her and touch her intimate body parts. He told A.B. that, in the future, he would also like to see her intimate body parts. A.B. testified that at some point while Roggow was driving, he touched her upper thigh.
¶ 6 While the children were away with Roggow, A.B.'s father returned home. The brother who had remained at home told the father that his siblings had left with Roggow. At trial, the father testified that he was not concerned when he learned this information because Roggow had previously taken the boys away fro home and paid them to do yard work.
¶ 7 After Roggow, A.B., and the oldest brother returned to the house, Roggow gave A.B. a dollar and told her to keep their discussion secret. Roggow continued to work on the shower for approximately thirty minutes. After Roggow left, A.B. told her father what Roggow had done. The father immediately confronted Roggow. According to the father's testimony, Roggow admitted to the father that he had talked to A.B. about her intimate body parts, but explained he was only trying to educate her and that he spoke to all of " his girls" that way. A.B.'s father ...