[Copyrighted Material Omitted]
City and County of Denver District Court No. 10CR2196. Honorable Edward D. Bronfin, Judge. Honorable Kenneth M. Laff, Judge.
John W. Suthers, Attorney General, Patricia R. Van Horn, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Andrea R. Gammell, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Berger and Má rquez[*], JJ., concur.
[¶1] Defendant, Jacob Roy Wilson, appeals the judgments of conviction entered on jury verdicts finding him guilty of two counts of sexual assault (by means of sufficient consequence to cause submission against the victim's will). We affirm the judgments of conviction but remand for correction of the mittimus.
[¶2] Defendant's convictions arose out of an incident involving an intoxicated woman (A.M.) he met in downtown Denver on St. Patrick's Day. According to A.M., she encountered defendant and his friend after she had lost her phone and could not find her friend. She asked defendant and his friend for help and remembered stopping with the two men to speak with a group of women. Her next memory, however, was of the men pulling her pants down to her knees on a parking garage ramp. She said each man straddled and vaginally penetrated her while she was in a squatting position with her back against the wall; she also said that one of the men also orally penetrated her. She explained that the assault had lasted about ten minutes and ended when the men took cash from her wallet and ran away.
[¶3] A.M. had suffered injuries to her vaginal area that were consistent with either nonconsensual or consensual intercourse; defendant's DNA was found on A.M.'s face and neck; and defendant's friend could not be excluded as a source for the mixture of DNA found in A.M.'s underwear.
[¶4] At trial, defendant did not testify, nor did he present any evidence or witnesses on his behalf. He argued, though, that A.M. had significant gaps in her memory; that the physical evidence supported the conclusion that, while intoxicated, she had consensual sex with him and his friend; that, upon realizing she was involved in an activity which, under normal circumstances, she would not involve herself in (i.e., sex with strangers), A.M. filled in the gaps of her memory to come up with an explanation for (and details about) her involvement in that activity; and that that explanation was that the sex must not have been consensual on her part.
[¶5] To support his argument, defendant pointed to inconsistencies in her story over time as well as to evidence which, he said, contradicted her story, including (1) parking garage surveillance videos showing, at one point, A.M. supposedly pulling defendant's friend into the elevator, and, overall, defendant and his friend being with A.M. in the parking garage for forty-four minutes, much longer than A.M.'s ten-minute recollection of the assault;  and (2) evidence that, when she emerged from the parking garage, she " looked like she'd been rolled [o]n the ground" and was wearing socks with dirty bottoms. (This latter circumstance, defendant argued, suggested that A.M. had consensually removed her shoes and pants before laying on the ground to have sex rather than, as she related at trial, having been sexually assaulted with her back against a wall.)
[¶6] Although it acquitted defendant of robbery, the jury convicted him of the two counts of sexual assault, and the trial court sentenced him to a term of sixteen years to life imprisonment in the custody of the Department of Corrections.
II. Challenges for Cause
[¶7] Defendant contends that the trial court erred in denying one of his challenges for cause and granting two of the prosecution's challenges for cause. We disagree.
[¶8] Section 16-10-103(1)(j), C.R.S. 2013, and Crim. P. 24(b)(1)(X) require disqualification of a juror if his or her state of mind manifests a bias for or against either side, unless the court is satisfied that the juror will render an impartial verdict based solely upon the evidence and instructions of the court. See Morrison v. People, 19 P.3d 668, 672 (Colo. 2000); People v. Shreck, 107 P.3d 1048, 1057 (Colo.App. 2004).
[¶9] A prospective juror who makes a statement evincing bias may nonetheless serve as a juror so long as he or she agrees to set aside any preconceived notions and make a decision based on the evidence and the court's instructions. People v. Phillips, 219 P.3d 798, 801 (Colo.App. 2009). But if the juror's statements do not demonstrate the sort of enmity or bias that warrants dismissal under the law, the court may deny the challenge for cause without further inquiry. People v. Merrow, 181 P.3d 319, 321 (Colo.App. 2007).
[¶10] We give great deference to the trial court's determination of a challenge for cause, because such decisions turn on an assessment of the potential juror's credibility, demeanor, and sincerity in explaining his or her state of mind. Because the trial court is in a better position to evaluate these factors than a reviewing court, we will overturn a trial court's decision concerning a challenge for cause only upon an affirmative showing by the defendant that the court abused its discretion. Shreck, 107 P.3d at 1057.
[¶11] A trial court abuses its discretion in this context only if there is no evidence in the record to support its decision. People v. Richardson, 58 P.3d 1039, 1042 (Colo.App. 2002); see also Carrillo v. People, 974 P.2d 478, 486 (Colo. 1999) (holding that an appellate court must examine the entire voir dire of the prospective juror).
[¶12] Here, all three of the challenged jurors expressed a possible bias:
o Juror R, who had worked for eight years as " a counselor for survivors of domestic violence and sexual assault" and had several friends who were sexual assault survivors, expressed some concern about her ability to be fair;
o Juror W indicated that he " possibly" had a bias against the prosecution; he had had " bad experiences with the justice system" because he had been arrested himself and had seen a friend plead guilty to a sexual assault he did not commit just to minimize jail time; that he had seen " a lot of unfairness and bias in the system" in his friend's case; and, that he had " some biases around" his knowledge of " how t[he] process works,
up until the time [the case] comes to the courtroom" ; and,
o Juror S believed she had been unjustly convicted of assaulting another woman and that her case had been " pushed right along" by the prosecutor, who she felt was " just trying to move people through" court proceedings; and that, because the report of the police officer handling her case was " one-sided" and " very biased," she would " probably be a little biased" in evaluating the testimony of a Denver police officer (She would, she said, " definitely" have " a tougher time" with an officer's testimony than with that of " a guy that ran a florist shop." ).
[¶13] The trial court denied defendant's challenge for cause to Juror R but granted the prosecution's challenges for cause to Jurors W and S.
A. Juror R
[¶14] The court found that, although Juror R was " expressing real concern about her ability to be fair," she was
not a juror who had -- at least exhibits emotional responses on this subject. There was nothing about the experience of anyone she knew that came to the fore here.
This is a woman who had professional experience in the area, and is aware of that, and is aware of the effect it could have, and well aware of the obligations as a juror. I think she has a solid intellectual understanding of what her role is. I don't think there is any indication she is emotionally unable to perform that role.
[¶15] In this regard, the record reflects:
o When asked by the prosecutor how she felt about the presumption of innocence, she stated it " is the bedrock of the judicial system, everyone -- until the jury says you are guilty, [you] are innocent" ;
o She understood that the prosecution had the burden of proof and " the defense doesn't have to do anything" ;
o She " believe[d] it [was her] duty to be as objective as possible. [She did] a lot of things in [her] history that might bring it into question, but [she] would do [her] best to perform as a responsible citizen" ;
o She recognized that her " role here [as a juror] isn't to be a counselor to the victim, [her] role here is completely different" ;
o She stated that, although she could not guarantee it, she was going to try to be fair; and
o She resisted what she perceived as defense counsel's attempt to get her to say she could not be fair, saying, ultimately,
Honestly, yeah, there are probably cases better for me to be on, but I also think that given some of my training, it is also good for me to be here, because I bring some professional expertise.
[¶16] The record thus reflects that, although her previous work with sexual assault victims was a source of potential bias, Juror R repeatedly stated that she would try to decide the case fairly. Because she indicated that she thought she could fulfill her duties as a fair and impartial juror, we discern no error in the court's ruling. See Phillips, 219 P.3d at 802 (" The mere fact that a juror's answers to questions are equivocating or contradictory is not enough, by itself, to overturn the denial of a challenge for cause. It is in exactly these types of situations that the trial court has the greatest amount of discretion." ) (citation omitted); see also People v. Doubleday, 2012 COA 141M, ¶ ¶ 47, 51, 54-57 (Denial of challenge for cause to prospective juror who, in response to whether she could follow the law, be fair and impartial, and rely on the evidence presented at trial to reach her verdict, responded either " I don't know. I would hope so," or " I think I can do that" ; and, in response to whether she would be able to keep an open mind, said, " I don't know. I hope so," upheld) ( cert. granted on other grounds Oct. 7, 2013); Richardson, 58 P.3d at 1044 (Denial of defendant's challenge for cause in a murder case to a juror who indicated that she " would like to think" and " would hope that [she] could" set aside her personal traumatic experience with a family friend's murder, although she could make " no guarantees" upheld; at no time did she state that she could not or would not act impartially or that she had a bias against either side).
[¶17] In so concluding, we necessarily reject defendant's reliance on People v. Roldan, 353 P.3d 387, ___,
(Colo.App. No. 08CA2487, Jan. 20, 2011), reversed on other grounds, 322 P.3d 922, 2014 CO 22, where, when asked if she could put aside her bias in favor of police officers, the prospective juror responded, " I think I probably can." The record in that case " suggest[ed] that [the juror] doubted her capacity for fairness," because she would " most likely" accept a police officer's statements as more truthful than another person's as a result of her husband, brother, and cousin all being police officers. Id. In this case, the source of Juror R's potential bias was not of as intimately a personal nature as it was for the potential juror in Roldan ; nor were Juror R's responses about being fair as doubtful as those of the potential juror in Roldan.
[¶18] We are also not persuaded by defendant's argument that " [t]he arbitrariness of the court's ruling with respect to Juror R readily appears when viewed in connection with the court's rulings on Jurors W and S." An appearance of inconsistency among challenges for cause is not an accurate indication of whether a court abused its discretion. See State v. Baca, 1990- NMCA 123, 111 N.M. 270, 804 P.2d 1089, 1094 (N.M. Ct.App. 1990) (noting that it is difficult to demonstrate inconsistency among rulings on challenges for cause because each challenge ...