Animas County District Court No. 10CR242 Honorable Leslie J.
Cynthia H. Coffman, Attorney General, John T. Lee, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Meghan M.
Morris, Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Bernardine Nardine, appeals the judgment of
conviction entered on a jury verdict finding him guilty of
unlawful sexual contact on an at-risk juvenile.
2 In this appeal, we must resolve whether section
18-6.5-103(7)(c), C.R.S. 2015, the applicable at-risk
statute, requires proof that the actor "knew" that
the victim was an at-risk individual. If so, we must
determine whether Nardine's conviction should be vacated
because the evidence was insufficient as to this mens rea
element or reversed based on an inaccurate jury instruction.
3 Nardine also challenges the propriety of his conviction,
alleging numerous instances of prosecutorial misconduct
during closing argument. We must decide whether, in the
aggregate, such misconduct warrants a new trial. He also
asserts other evidentiary and instructional errors.
4 For the reasons discussed below, we conclude that the
applicable at-risk statute does not require proof that the
actor "knew" that the victim was an at-risk
individual. But we agree that a new trial is warranted due to
the nature and pervasiveness of the prosecutor's
5 On the afternoon of the alleged incident, R.A., then
seventeen years old, was helping her stepfather do yardwork
at a friend's rental property. Meanwhile, Nardine was
visiting Gerald Garcia, who lived in the house next door.
Nardine came into the yard where R.A. and her stepfather were
working, offered them water, and remained there for a while.
R.A. and her stepfather returned home after they finished the
6 Later that evening, R.A. told her parents that Nardine had
hugged her, touched her breasts, and put his hands down the
back of her pants to touch her buttocks. R.A.'s mother
and stepfather called the police. The following day, in a
written statement R.A. also alleged that Nardine had
threatened her with a knife when the two of them went inside
Garcia's house to get some more water.
7 Based on R.A.'s allegations, Nardine was charged with
one count of unlawful sexual contact on an at-risk juvenile
and one count of menacing. See §§
18-3-404, 18-6.5-103(7)(c), C.R.S. 2015. The at-risk charge
was based on R.A.'s status as a person with a disability
- a mental illness.
8 The case proceeded to a jury trial, and the prosecution
acknowledged that it was placing R.A.'s mental health at
issue to support the at-risk charge.
9 R.A. testified about the above-described incident and about
how she has severe depression and psychosis. She also
testified that she had been hospitalized in the past due to
mental illness. She admitted that she has heard voices and
experienced visual hallucinations, and that she has had
flashbacks to sexual abuse she suffered during her childhood.
She said that on the day Nardine touched her, she was hearing
voices and was having flashbacks to the childhood abuse. But
she also explained that what happened with Nardine was not a
hallucination or a flashback, stating that "[i]t really
happened." She further testified that "at first I
didn't know what was going on and then [G]od revealed it
10 R.A.'s therapist was called as a prosecution witness.
She was qualified as an expert and testified that R.A. was
"a person with a mental illness" as defined by
statute. She explained that R.A. suffered from mood disorder,
psychotic disorder, post-traumatic stress disorder, and had
been previously diagnosed with schizoaffective disorder. She
testified about the symptoms R.A. experiences, particularly
auditory and visual hallucinations and emotional instability.
11 R.A.'s stepfather and Garcia also testified.
R.A.'s stepfather agreed that Nardine had offered them
water. At about this same time, he saw Nardine hug R.A. He
then told R.A. not to be around or to hug Nardine, and she
was never out of her stepfather's sight again the rest of
12 Garcia testified that during that afternoon, R.A. and
Nardine twice came into his house to get water. Both times he
was with R.A. and Nardine, so they were never alone. He also
saw Nardine and R.A. talking in the yard and on the front
porch, but he never saw Nardine hug, touch, or threaten R.A.
13 The prosecution introduced evidence of two prior incidents
involving Nardine. A woman, A.A. (no relation to R.A.),
testified that approximately one year before the incident
with R.A., when she was eighteen years old, Nardine had
lifted her shirt and bitten her breast while she was cleaning
his house. Garcia's neighbor, Betty Avalos, testified
that nearly thirty years ago, when she was about fourteen
years old, Nardine had often grabbed her hands or put his arm
around her when she delivered newspapers to him on her
14 The defense theory of the case was that the alleged sexual
contact against R.A. did not occur and, instead, R.A. had a
flashback or hallucinated the events with Nardine.
15 The jury ultimately convicted Nardine of unlawful sexual
contact, but it acquitted him of menacing. The court
sentenced him to five years of sex offender intensive
Statutory Interpretation: Unlawful Sexual Contact Against
At-Risk Juveniles, § 18-6.5-103(7)(c)
16 Nardine contends that section 18-6.5-103(7)(c) has an
implied mens rea element that requires the prosecution to
prove that a defendant knew of the victim's at-risk
status. Because of this, he argues the evidence was
insufficient to convict him of felony unlawful sexual
contact. He likewise argues that the trial court erroneously
instructed the jury because it submitted a special
interrogatory that did not include a mens rea for the at-risk
element. We disagree with his interpretation of the statute
and therefore reject his claims of insufficient evidence and
Standard of Review
17 Statutory interpretation is a question of law that we
review de novo. Hunsaker v. People, 2015 CO 46,
18 The prosecution charged Nardine with unlawful sexual
contact, which, as pertinent here, is defined as follows:
"[a]ny actor who knowingly subjects a victim to any
sexual contact commits unlawful sexual contact if . . . [t]he
actor knows that the victim does not consent." §
19 Generally, this offense is a class 1 extraordinary risk
misdemeanor. § 18-3-404(2)(a). But the complaint also
alleged that "the victim was an at-risk juvenile."
See § 18-6.5-103(7)(c). Section
18-6.5-103(7)(c) states that "[a]ny person who commits
unlawful sexual contact, as such crime is described in
section 18-3-404 . . ., and the victim is . . . an at-risk
juvenile, commits a class 6 felony."
20 In interpreting whether this at-risk juvenile
penalty-enhancing provision contains a mens rea element as to
a victim's at-risk juvenile status, our goal is to
effectuate the General Assembly's intent. See People
v. McCoy, 2015 COA 76M, ¶ 38. To determine that
intent, we begin with the language of the statute itself, and
we give words and phrases "their 'plain and ordinary
meaning.'" People v. Back, 2013 COA 114,
¶ 17 (quoting People v. Dist. Court, 713 P.2d
918, 921 (Colo. 1986)).
21 The terms of section 18-6.5-103(7)(c) are clear and
unambiguous. The statute's plain language references the
underlying crime, "unlawful sexual contact." It
then prescribes a more severe penalty if "the victim is
. . . an at-risk juvenile." § 18-6.5-103(7)(c). The
additional proof of the victim's "at-risk"
status - which elevates the penalty - does not contain an
express mens rea requirement. See People v. Davis,
935 P.2d 79, 86 (Colo.App. 1996) (the plain language of
section 18-6.5-103(4), robbery from an at-risk adult, does
not require that a defendant knew the victim's age).
22 But our analysis does not stop here. As Nardine points
out, if a statute does not contain a culpable mental state,
one may nevertheless be required for the commission of that
offense or for some or all of its material elements, but only
"if the proscribed conduct necessarily involves such a
culpable mental state." § 18-1-503(2), C.R.S. 2015.
23 Nardine asserts that, here, the proscribed conduct
necessarily involves a "knowingly" mens rea as to
the victim's at-risk juvenile status because the
legislature's purpose in enacting the at-risk statute is
to deter a would-be criminal from knowingly taking advantage
of a vulnerable person. Based on our review of the at-risk
statutory scheme, we are not persuaded.
24 All of Article 6.5 of the Colorado Criminal Code is
dedicated to crimes committed against at-risk victims.
People v. McKinney, 99 P.3d 1038, 1041 (Colo. 2004).
"In the legislative declaration to Article 6.5, the
General Assembly expressed its intent to impose more severe
penalties for specified crimes when the victim is
'at-risk.'" Id. The legislative
declaration, however, does not mention deterrence of would-be
criminals or focus on the offender's awareness of a
victim's status. Rather, it focuses on the at-risk
victim's inability to protect himself or herself as
effectively - or to recover as swiftly - from crime, compared
to a victim who is not at risk.
25 The General Assembly recognized that at-risk victims are
"more vulnerable to and disproportionately damaged by
crime" and are "far more susceptible than the
general population to the adverse long-term effects of crimes
committed against them." § 18-6.5-101; see
McKinney, 99 P.3d at 1043. The General Assembly
explained that at-risk victims are less likely to fully
recover from crimes committed against them, and a significant
number of at-risk victims are "not as physically or
emotionally equipped to protect themselves or aid in their
own security as non-at-risk adults and non-at-risk juveniles
in society." McKinney, 99 P.3d at 1043 (quoting
26 Accordingly, we do not discern from the legislative
purpose that the at-risk juvenile enhancer necessarily
involves a "knowingly" mens rea as to the
victim's at-risk juvenile status.
27 Nardine nonetheless points to other statutes where the
legislature has expressed its intent to require a culpable
mental state as to a victim's status. In particular, he
references statutes in which the legislature has required
proof that a defendant "knows or reasonably should
know" the status of the victim, see §
18-3-202(1)(e), (e.5), C.R.S. 2015, or has the "intent
to intimidate or harass another person because of that
person's" status, § 18-9-121(2), C.R.S. 2015.
28 He argues that these statutes illustrate that "a mens
rea is required" in order to elevate the penalty for the
underlying offense. We are not persuaded for two reasons.
First, none of these cited statutes are penalty enhancers.
They define substantive offenses. Second, these statutes
illustrate that the legislature knows how to require a mens
rea as to the status of a victim when it intends to do so.
The legislature could have done so by express language in the
at-risk juvenile statute. But it did not. See People v.
Drennan, 860 P.2d 589, 591 (Colo.App. 1993).
29 Nardine next argues that, as a policy matter, transforming
unlawful sexual contact from a misdemeanor to a felony should
be based on the moral blameworthiness of the offender, and
that the statute will achieve that goal only if the actor is
aware of the juvenile's at-risk status (here, awareness
that R.A. was mentally ill). However, it is the
legislature's prerogative, not ours, to define crimes and
punishments to advance its policy goals. See People v.
Enlow, 135 Colo. 249, 266, 310 P.2d 539, 548 (1957)
(observing that the responsibility of the courts is "to
analyze and resolve the law as it is"; policy is to be
determined by the lawmaking body); see also Burrage v.
United States, 571 ...