The People of the State of Colorado, Petitioner-Appellee, In the Interest of G.B., Juvenile-Appellant.
County District Court No. 14JD159 Honorable Thomas J.
Cynthia H. Coffman, Attorney General, Jacob R. Lofgren,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Ryann S.
Hardman, Deputy State Public Defender, Denver, Colorado, for
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
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,
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
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
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.
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).
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
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, ¶ 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 ...