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People v. Nardine

Court of Appeals of Colorado, Third Division

June 2, 2016

The People of the State of Colorado, Plaintiff-Appellee,
Bernardine Nardine, Defendant-Appellant.

         Las Animas County District Court No. 10CR242 Honorable Leslie J. Gerbracht, Judge

          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 Defendant-Appellant



         ¶ 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 misconduct.

         I. Background

         ¶ 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 yard work.

         ¶ 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 to me."

         ¶ 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 the afternoon.

         ¶ 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 delivery route.

         ¶ 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 supervised probation.

         II. 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 instructional error.

          A. Standard of Review

         ¶ 17 Statutory interpretation is a question of law that we review de novo. Hunsaker v. People, 2015 CO 46, ¶ 11.

         B. Discussion

         ¶ 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." § 18-3-404(1)(a).

         ¶ 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 § 18-6.5-101).

         ¶ 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 ...

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