People v. Platt

• Citation: 170 P.3d 802
• Decision Date: 17 May 2007
• Docket Number: No. 04CA1889.,04CA1889.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Bruce PLATT, Defendant-Appellant.
• Court: Court of Appeals of Colorado

170 P.3d 802

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Bruce PLATT, Defendant-Appellant.

No. 04CA1889.

Colorado Court of Appeals, Div. II.

May 17, 2007.

Certiorari Granted November 26, 2007.

John W. Suthers, Attorney General, Jennifer M. Smith, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Shann Jeffery, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge STERNBERG.^*

Defendant, Bruce Platt, appeals the judgment of conviction entered upon a jury verdict finding him guilty of sexual assault. We affirm.

I.

Defendant first argues that the evidence is insufficient to support the jury's verdict. We disagree.

Defendant was charged with violating § 18-3-402(1)(b), C.R.S.2006, which provides: "Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if . . . [t]he actor knows that the victim is incapable of appraising the nature of the victim's conduct. . . ."

In assessing the sufficiency of the evidence supporting a guilty verdict, a reviewing court must determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt. In applying this standard, we must give the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence. Kogan v. People, 756 P.2d 945 (Colo.1988).

Here, the victim testified that she was sleeping on her couch when she was awakened by the sensation of her clitoris being rubbed and a finger being inserted into her vagina. The victim testified that, as this occurred, she "was becoming conscious of being caressed and . . . was starting to come around." She assumed her boyfriend was the person doing the fondling, explaining that "we do that sometimes to wake each other up." However, when the victim "went to draw him close," she opened her eyes and was shocked to see defendant (who was living in the house as a guest). The victim screamed and kicked defendant.

By the time a police officer responded to the scene, defendant had departed. When the officer called defendant, defendant said that he "did it, and expressed concern that he was going to prison." Following his arrest, defendant told the officer that the victim had been asleep on the couch and was "only wearing a pair of panties." Defendant said he became "concerned" that this "sight . . . did not arouse him," and that he had "questions about his sexual orientation." Defendant told the officer that "he wanted to see if he could be aroused by further stimulation," and that he touched the victim with both hands for approximately two minutes.

Defendant told the officer that he and the victim had not previously had "sexual contact." When the officer asked defendant whether he and the victim had ever been involved in a romantic relationship, defendant replied: "Hell, no."

In a written statement, defendant elaborated on his sexual identity crisis and admitted, "I touched [the victim] with my hand and penetrated [sic] her with my finger."

In a recorded interview, defendant reaffirmed his previous statements, adding that he first touched the victim "over her underwear on her vagina." Defendant admitted the victim had remained asleep until he "digitally penetrated her," and that she had become "very" upset immediately after she awoke and realized what was occurring.

On appeal, defendant does not challenge the strength of this evidence. Instead, he argues that § 18-3-402(1)(b) requires proof the victim "suffered from a mental disease or defect such that her mind was unsound, weak, or feeble." We disagree.

Our task in construing a statute is to ascertain and give effect to the intent of the General Assembly. To determine that intent, we look first to the plain and ordinary meaning of the statutory language. See People v. Dist. Court, 713 P.2d 918 (Colo.1986).

When the language is clear and unambiguous, the statute must be construed as written, without resort to interpretive rules of statutory construction. People v. Zapotocky, 869 P.2d 1234 (Colo.1994).

Nothing in the plain language of § 18-3-402(1)(b) suggests the section is limited to cases involving victims who suffer from a mental infirmity. Nor do the three cases cited by defendant support such a construction.

Wilkinson v. People, 86 Colo. 406, 282 P. 257 (1929), on which defendant relies, is inapposite because in that case the defendant was specifically charged with raping a person "incapable through unsound mind of giving legal consent."

People v. Gross, 670 P.2d 799 (Colo.1983), was decided on much narrower grounds than defendant suggests. In Gross, the supreme court rejected a claim that the provision now set forth in § 18-3-402(1)(b)—which at that time was codified as § 18-3-403(1)(c)—was void for vagueness, observing:

If a victim is incapable of understanding how her sexual conduct will be regarded within the framework of the societal environment of which she is a part, or is not capable of understanding the physiological implications of sexual conduct, then she is incapable of "appraising the nature of [her] conduct" under the language of the statute.

People v. Gross, supra, 670 P.2d at 801. Although we acknowledge this pronouncement could be construed as supporting the narrow construction advanced by defendant here, a contextual reading reveals the limited scope of the supreme court's holding. Because the victim in Gross was mentally retarded, the supreme court tailored its rebuttal of the defendant's constitutional claim to the facts at hand. Accordingly, we decline to interpret this refutation as an exhaustive enumeration of the reasons why a person who is subjected to a sexual intrusion or sexual penetration might be "incapable of appraising the nature of [his or her] conduct."

In People v. Renfro, 117 P.3d 43, 48 (Colo. App.2004), a division of this court upheld a conviction under § 18-3-402(1)(b) without stating why the eighty-year-old victim was unable to appraise the nature of her conduct. Although defendant represents to us that the victim in Renfro suffered from Alzheimer's disease, nothing in the opinion supports this assertion. In any event, assuming the victim in Renfro suffered from some type of mental infirmity (a reasonable inference in light of the fact that the opinion summarizes the evidence without referencing a statement by the victim), Renfro does not address the question of whether § 18-3-402(1)(b) applies to sexual assaults committed against a victim who is unable to appraise the nature of her conduct because she is asleep.

We acknowledge that a different subsection of § 18-3-402, by virtue of an accompanying definition contained in a separate section, specifically addresses sexual assaults committed against sleeping victims. See § 18-3-402(1)(h), C.R.S.2006 ("Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if . . . [t]he victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented."); § 18-3-401(3), C.R.S.2006 ("`Physically helpless' means unconscious, asleep, or otherwise unable to indicate willingness to act."). However, unlike § 18-3-402(1)(b), which focuses on the actor's awareness of the victim's cognitive incapability of appraising the nature of his or her own conduct, §§ 18-3-401(3) and 18-3-402(1)(h) are aimed at situations in which the actor is aware of the victim's physical helplessness, and of the victim's lack of consent to the sexual intrusion or penetration. Thus, we conclude the coexistence of subsections (b) and (h) of § 18-3-402(1) represents a reasoned legislative determination that, depending on the facts of a particular case, a victim who is partially asleep and incapable of appraising the nature of his or her own conduct may not necessarily be physically "unable to indicate willingness to act." Section 18-3-401(3); cf. Tippins v. Walker, 77 F.3d 682, 689 (2d Cir.1996)("consciousness and sleep form a continuum").

Moreover, the existence of § 18-3-402(1)(h) has no bearing on our plain reading of § 18-3-402(1)(b), because it is often the case that a single act is violative of more than one criminal statute (or more than one subsection within a single statute), and it is well established that it is the prosecution's prerogative to select the statute(s) or subsection(s) under which to proceed (subject to equal protection limitations not implicated in this case). See People v. Prieto, 124 P.3d 842, 845 (Colo.App.2005).

Accordingly, we conclude the evidence is sufficient to support the jury's verdict.

II.

Defendant next argues that the trial court erred by refusing to instruct the jury concerning the concept of consent, either as an affirmative defense or as part of his theory of defense. Again, we disagree.

The consent of the victim to conduct charged to constitute an offense is an affirmative defense if it negates an element of the offense. Section 18-1-505(1), C.R.S. [2006].

Whether there is credible evidence to support an affirmative defense is a question for the trial court to resolve. And, if there is credible evidence supporting the defense, the court must instruct the jury on the defense even if the supporting evidence consists of highly improbable testimony by the defendant.

However, a trial court is not required to give the jury an instruction defining an affirmative defense if proof of the elements of the charged offense necessarily requires disproof of the issue raised by the affirmative defense.

Under such circumstances, refusal of an affirmative defense instruction does not constitute error so long as the defendant is allowed to introduce evidence supporting the issue which is embodied in the affirmative defense.

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