Clark v. The People Of The State Of Colo., 09SC358.

• Decision Date: 28 June 2010
• Docket Number: No. 09SC358.,09SC358.
• Citation: 232 P.3d 1287
• Parties: Rosten Lee CLARK, Petitionerv.The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

232 P.3d 1287

Rosten Lee CLARK, Petitionerv.The PEOPLE of the State of Colorado, Respondent.

No. 09SC358.

Supreme Court of Colorado,

En Banc.

June 7, 2010.

Rehearing Denied June 28, 2010.

Douglas K. Wilson, Colorado State Public Defender, Cory D. Riddle, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, Jennifer A. Berman, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.

Justice HOBBS delivered the Opinion of the Court.

We granted certiorari in People v. Clark, 214 P.3d 531 (Colo.App.2009), to determine whether sufficient evidence exists to sustain defendant's sexual assault conviction.¹ Defendant Rosten Lee Clark argues that the prosecution failed to prove beyond a reasonable doubt his identity as the perpetrator of the sexual assault. He contended before the jury, in the court of appeals, and now before us that the prosecution's proof, which included DNA evidence of his semen on the alleged victim's clothing, failed to exclude the possibility that the semen was deposited at a time other than that of the crime. This is a test for sufficiency of the evidence that we employed in the fingerprint identification cases of People v. Ray, 626 P.2d 167 (Colo.1981), and Silva v. People, 170 Colo. 152, 459 P.2d 285 (1969).

Though it upheld Clark's conviction, the court of appeals employed the Ray and Silva test for sufficiency of the evidence, modifying it for application to DNA cases. We determine that the proper analysis for sufficiency of the evidence in this case is the one we employed in People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973), and therefore disapprove of the court of appeals' rationale. In accordance with our Bennett test, we hold that the direct and circumstantial evidence in this case, when viewed in the light most favorable to the prosecution, is substantial and sufficient to support the jury's finding beyond a reasonable doubt that Clark sexually assaulted the victim, G.O. Accordingly, we uphold the judgment of the court of appeals affirming Clark's conviction, but on different grounds.

I.

At approximately 6:30 a.m. on January 10, 2004, an intruder entered the home of G.O. and sexually assaulted her in her bedroom. At the time of the attack, G.O. lived with her mother and her four-year-old son. G.O.'s mother was not home at the time of the assault, but G.O.'s son witnessed the incident. Due to a developmental disability that prevents him from speaking, G.O.'s son is unable to convey what he observed.

G.O. saw her attacker for less than five seconds before being forced to the ground on her stomach. G.O. initially described her assailant as approximately one foot taller than she is (she stands five feet four inches tall), with a slim to medium build, and wearing a Carhartt-type jacket with a hood obscuring his face. G.O. was unable to provide a better description of her attacker because it was dark outside and because he covered her head with a green fleece jacket during the assault. G.O. believed the perpetrator attempted to disguise his voice by speaking gruffly. After the sexual assault, G.O.'s attacker instructed her to count to one thousand before calling police or leaving her bedroom.

G.O.'s medical examination after the assault revealed no physical trace evidence, but investigating officers collected over twenty items of clothing from her bedroom that were sent to the Colorado Bureau of Investigation (“CBI”) for analysis. Two of those items tested positive for the presence of semen-a black headband and the green fleece jacket used to cover G.O.'s head during the assault. CBI analysts constructed a DNA profile from the semen samples, checked it through the Combined DNA Index System, and matched it to Clark's profile, within a reasonable degree of scientific certainty. The prosecution subsequently charged Clark with one count of sexual assault, in violation of section 18-3-402(1)(a), C.R.S. (2005); one count of first degree burglary, in violation of section 18-4-202, C.R.S. (2005); and one count of second degree burglary, in violation of section 18-4-203, C.R.S. (2005).

At trial, the prosecution offered physical evidence linking Clark to the location of the assault: namely, the semen found in G.O.'s bedroom on the green fleece jacket and the black headband. G.O. testified that she had purchased the green fleece jacket from a thrift store only two days prior to the assault. The thrift store owner attested that he likely washed the green fleece jacket before offering it for sale to the public.² G.O. testified that the black headband was not hers.³

The CBI analyst who tested the semen samples testified that the semen found on the green fleece jacket and the black headband matched Clark's DNA to a reasonable degree of scientific certainty. The analyst indicated that a reasonable degree of scientific certainty meant that the chances of the DNA belonging to another person were greater than one in one thousand times the United States population, or one thousand times three hundred million.

The prosecution offered testimony from a police investigator who interviewed Clark before charges were filed. After receiving the DNA results, the police investigator spoke with Clark about his relationship with G.O.'s mother. Clark stated that he met G.O.'s mother while working with her boyfriend. Clark did some work for G.O.'s mother in early 2003, moving items out of storage and around her house. In the taped interview Clark denied engaging in any sexual conduct with G.O.'s mother, but indicated that he could not remember if he had ever masturbated in the house.

G.O. testified that she also knew Clark because of the work he had done for her mother. G.O. stated that Clark's common-law wife had babysat G.O.'s son on multiple occasions and both Clark and his common-law wife were aware of G.O.'s son's developmental disability.

The prosecution's case also contained circumstantial evidence corroborating the identity of the perpetrator as Clark. G.O. described her attacker as (1) about a foot taller than she was, or around six feet four inches-Clark is six feet five inches tall; (2) with a slim to medium build-Clark is 225 pounds and, given his height, he could likely be described as having a slim to medium build; (3) wearing a Carhartt-type jacket-Clark admitted owning a Carhartt jacket; and (4) in his thirties-Clark was thirty-one at the time of the assault. G.O. testified that her house was hard to find, but because Clark had previously worked for G.O.'s mother, the prosecution argued that the jury could infer that Clark could easily find the house. G.O. also believed that her attacker was familiar with her son's disability because the attacker did not acknowledge the son's presence or outcries during the assault. The prosecution alleged that a reasonable inference from this evidence was that the assailant knew of G.O.'s son's inability to communicate and was unconcerned if G.O.'s son witnessed the attack.

Clark's defense was aimed at creating reasonable doubt as to the identity of G.O.'s attacker. He presented three distinct lines of evidence to support his theory of defense: evidence of a similar, unsolved offense; testimony of a police officer trained in tracking who analyzed footprints found outside G.O.'s home; and eyewitness testimony.

First, Clark presented evidence that another, unsolved sexual assault had occurred nearby under similar circumstances. Just over a month before G.O.'s attack, J.D. was sexually assaulted. J.D.'s attacker wore a ski mask which obscured much of his face. He forced J.D. onto her stomach and covered her head with a pillow, but she was able to see his arms and stomach and she observed that he did not have any tattoos or identifying marks. After the assault, J.D.'s attacker told her to count to one thousand before she called police or left her bedroom. Clark presented this evidence to demonstrate the possibility that the same person committed both assaults. During trial, Clark exposed his arms and stomach, substantiating the defense theory that he was not J.D.'s attacker because he has tattoos predating both attacks on his arms and a large, noticeable scar on his stomach from a surgery he underwent as an infant.

Second, a police officer, offered as an expert in tracking, testified regarding two sets of footprints found behind G.O.'s house which led to another house located on the same tract of land. The officer indicated that one set was likely left close in time to G.O.'s assault because the footprints had not iced over and were clear of the light snow that had fallen earlier that morning. There was a distinct heel mark in the footprints that matched boots taken from G.O.'s neighbor's house. Countering this potentially incriminating evidence, the prosecution's evidence revealed that G.O.'s neighbor did not own a Carhartt jacket, his physical appearance did not match that given by G.O., and his DNA did not match the profile created by the CBI analyst.

Third, Clark presented testimony from a newspaper carrier whose route took her by G.O.'s house. While on her route less than half an hour after the assault occurred, the newspaper carrier noticed a person walking in the foggy morning who gave her chills. The newspaper carrier testified that the individual was male and wore a dark jacket with a hood, somewhat consistent with G.O.'s description. However, the newspaper carrier described the individual as “around five foot eight or nine, [with] a smaller frame.” The newspaper carrier believed that the individual was attempting to conceal his identity and said that he looked suspicious, leading to an inference that he may have been guilty of something. This testimony suggested that the suspicious man may have been responsible for G.O.'s assault. However, the prosecution's evidence demonstrated that Clark's height, six feet five inches, and build did not match the suspicious man's physical attributes.

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