El Paso County District Court No. 11CR416. Honorable Barney Iuppa, Judge.
John W. Suthers, Attorney General, Jason Fisher, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Dayna Vise, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by JUDGE TERRY. Taubman and Richman, JJ., concur.
[¶1] Defendant, Donald Wayne Bertrand, appeals the judgment of conviction entered on a jury verdict finding him guilty of two counts of sexual assault. Defendant was convicted of sexual assault under section 18-3-402(1)(b), C.R.S. 2014, after the jury was given an incorrect instruction dealing with whether the alleged victim was able to appraise the nature of her conduct because she was asleep or partially asleep. Because this error was not harmless, we reverse and remand for a new trial.
[¶2] Defendant is the cousin of the alleged victim, K.B. K.B. suffers from lifelong developmental disabilities, and lives with her parents because she is unable to care for herself. Defendant lived with K.B. and her family for a few weeks while they were living with friends in a temporary residence. K.B. takes several medications due to her disabilities and other medical problems. She takes these medications just prior to going to sleep each night because they make her groggy and sleepy.
[¶3] Defendant shared a bedroom with K.B. in two different dwellings. On several occasions while defendant lived with K.B. and her family, defendant got into bed with K.B. and had sexual intercourse with her.
[¶4] K.B. later told her mother that defendant had had sex with her, but that she did not want to have sex with him. When the family confronted defendant, he admitted that he had had sexual intercourse with K.B. on multiple occasions. The family made a report to the police, and the mother made a recorded pretext telephone call to defendant, during which he again admitted to having sexual intercourse with K.B.
[¶5] After a jury trial, defendant was convicted of two counts of sexual assault.
II. Sufficiency of the Evidence
[¶6] Defendant contends that there was insufficient evidence to show that K.B. was incapable of appraising the nature of her conduct as required by section 18-3-402(1)(b). We address this issue first, because if, indeed, insufficient evidence had been presented, we would need to vacate the convictions and defendant could not be retried on these charges. We conclude that sufficient evidence was presented to support the convictions.
A. Legal Standards
[¶7] We review the record de novo to determine whether the evidence presented at trial
was sufficient to sustain a defendant's conviction. Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005). In reviewing the sufficiency of the evidence, we consider whether both direct and circumstantial evidence, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable juror that a defendant is guilty of the charge beyond a reasonable doubt. Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010); People v. Davis, 2012 COA 56, ¶ 12, 296 P.3d 219.
[¶8] It is not our role to determine whet weight we would have given to the evidence. People v. Jaramillo, 183 P.3d 665, 670 (Colo. App. 2008). Instead, the fact finder in this case, the jury determines the credibility of witnesses, weighs the evidence, and resolves conflicts, inconsistencies, and disputes in the evidence. People v. Poe, 2012 COA 166, ¶ 14, 316 P.3d 13; People v. Duran, 272 P.3d 1084, 1090 (Colo. App. 2011).
[¶9] In reviewing the sufficiency of the evidence, we recognize that the law makes no distinction between direct and circumstantial evidence. People v. Taylor, 159 P.3d 730, 734 (Colo. App. 2006). Moreover,
(1) an actor's state of mind is normally not subject to direct proof and must be inferred from his or her actions and the circumstances surrounding the occurrence; (2) if there is evidence upon which one may reasonably infer an element of the crime, the evidence is sufficient to sustain that element; and (3) where ...