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People ex rel. G.B.

Court of Appeals of Colorado, Third Division

May 31, 2018

The People of the State of Colorado, Petitioner-Appellee, In the Interest of G.B., Juvenile-Appellant.

          Weld County District Court No. 14JD159 Honorable Thomas J. Quammen, Judge

          Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Ryann S. Hardman, Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellant


          WEBB JUDGE

          ¶ 1 In this juvenile delinquency proceeding, a jury convicted G.B., age sixteen, of offenses that would, if committed by an adult, constitute felony sexual assault against the victim, age fifteen. The trial court adjudicated G.B. delinquent and sentenced him to the custody of the Division of Youth Corrections.

         ¶ 2 On appeal, he challenges the sufficiency of the evidence that he knew the victim was "incapable of appraising the nature of [her] conduct." He also contends, among other things, that the trial court violated his right to a public trial by excluding, over objection, all spectators during his cross-examination of the sexual assault nurse examiner (SANE), and by excluding all spectators under age eighteen from a significant portion of the trial. The Attorney General concedes that G.B. preserved the sufficiency and the under-eighteen courtroom closure issues.

         ¶ 3 We conclude that the evidence was sufficient. Resolving a novel question in Colorado, we further conclude that because the trial court committed structural error by excluding all spectators under age eighteen from a significant portion of the trial, the judgment must be reversed. The case is remanded for a new trial. Because we cannot predict whether, or if so how, G.B.'s other issues may arise on retrial, we decline to address them. I. The Prosecution Presented Sufficient Evidence for a Reasonable Jury to Conclude that G.B. Knew the Victim Was "Incapable of Appraising the Nature of [Her] Conduct"

         ¶ 4 We begin with this contention because if G.B. is entitled to reversal of his adjudication "due to insufficient evidence, the guarantees against double jeopardy in the United States and Colorado Constitutions may preclude retrial." People v. Marciano, 2014 COA 92M-2, ¶ 42.

         A. Background

         ¶ 5 According to the prosecution's evidence, the victim decided to sneak out of her parents' Greeley home. At a friend's house, she contacted G.B., who was a fellow student at her high school, using Facebook. G.B., two other students at the high school, the older brother of one of them, and the victim drove to a party in Evans. They all drank beer and smoked marijuana.

         ¶ 6 The victim testified that when they left the party, she was having trouble walking. G.B. and one of the boys helped her to a car. They drove to meet Ignacio Guzman, an adult, and returned to the party in his four-door truck. She and G.B. stayed in the truck, continuing to drink and smoke marijuana. According to the victim, G.B. forced her to have vaginal intercourse in the truck. The jury acquitted G.B. of this charge.

         ¶ 7 G.B., the victim, the other three boys, and Guzman left the party together. They continued to drink and smoke marijuana. Eventually, they went to Guzman's house in Johnstown. Testimony concerning what happened after that was conflicting.

         ¶ 8 The victim testified that on arriving at Guzman's house, she had trouble walking. She went into the bathroom, then rejoined the others in the living room. The group continued drinking and smoking marijuana. She was dizzy and having trouble standing up.

         ¶ 9 According to the victim, two of the boys were "helping move myself" to the bathroom. Although she was "conscious, " she felt that she could not do anything for herself. All the boys and Guzman joined her in the bathroom. She testified that Guzman forced her to perform oral sex on each of the boys. Then while someone held her hands and ankles, each of the boys and Guzman had vaginal intercourse with her. She told them to stop.

         ¶ 10 The victim testified further that the boys and Guzman left the bathroom and then returned one by one, each of them again having vaginal intercourse with her. When G.B. was in the bathroom with her, she told him "no" and that she was in pain. Eventually, she cleaned up her blood from the bathroom floor, returned to the living room, and fell asleep.

         ¶ 11 One of the boys testified that Guzman told the victim to go to the bathroom, but she walked there by herself. She was "high and drunk."

         ¶ 12 Guzman testified that when the group arrived at his house, the victim was flirting, dancing, rubbing on the boys, and appeared to be affected by drugs. He said that in the bathroom, she acted like she wanted to have sex, no one forced her to give G.B. oral sex, and she rejected his attempt to have anal sex. Then she suggested that she have sex with them one at a time.

         B. Law

         ¶ 13 An appellate court reviews the record de novo to determine if it includes sufficient evidence to support the convictions. People v. Douglas, 2015 COA 155, ¶ 8. In doing so, "we determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is both 'substantial and sufficient' to support the defendant's guilt beyond a reasonable doubt." Id. (quoting Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005)).

         ¶ 14 G.B. was charged under section 18-3-402(1)(b), C.R.S. 2017, which provides that a person commits sexual assault if he "knowingly inflicts sexual intrusion or sexual penetration on a victim" and "knows that the victim is incapable of appraising the nature of the victim's conduct." The statute does not define "incapable of appraising the nature of the victim's conduct." But the supreme court has said that it "addresses the situation in which a victim is cognitively unable to appreciate her conduct; in other words, it involves a victim who simply cannot understand what she is doing." Platt v. People, 201 P.3d 545, 548 (Colo. 2009).

         C. Analysis

         ¶ 15 G.B. argues that unlike many other cases involving section 18-3-402(1)(b), here the victim "was not mentally retarded, did not have an extremely simplistic understanding of sexual intercourse, was not asleep, and was not passed out or blacked out." G.B. continues that "[a]lthough [the victim] may have been intoxicated to some degree, " she testified that she "knew what was going on."

          ¶ 16 This argument, however, ignores other evidence supporting the adjudication. For example, the victim testified, "I felt as if I couldn't do anything for myself." She explained, "I could feel myself moving . . . but it was hard for me to lift, like, my arm or to be able to walk on my own." She also testified that she did not remember certain things about that night until she started having nightmares and flashbacks months later. And several witnesses testified about the victim's alcohol and drug use during the evening.

         ¶ 17 Our role is not to sit as a thirteenth juror and reweigh the evidence heard by the jury. People v. Bertrand, 2014 COA 142, ΒΆ 15 ("It was within the sole province of the jury to determine the weight of the evidence and to resolve any conflicts and inconsistencies in witness testimony."). Instead, viewing the evidence in a light most favorable to the prosecution, we conclude that it is sufficient to support a ...

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