Platt v. People, 07SC573.

• Docket Nº: No. 07SC573.
• Citation: 201 P.3d 545
• Case Date: February 09, 2009
• Court: Supreme Court of Colorado

201 P.3d 545 Bruce PLATT, Petitioner
v.
The PEOPLE of the State of Colorado, Respondent. No. 07SC573. Supreme Court of Colorado, En Banc. February 9, 2009. Rehearing Denied February 17, 2009.^*

[201 P.3d 546]

John W. Suthers, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.

Douglas K. Wilson, Public Defender, Shann Jeffery, Deputy Public Defender, Denver, Colorado, Attorneys for Petitioner.

Justice EID delivered the Opinion of the Court.

Petitioner Bruce Platt was charged with — and convicted by a jury of — one count of sexual assault under section 18-3-402(1)(b), C.R.S. (2008) ("subsection (b)"), which criminalizes sexual assault when "[t]he actor knows that the victim is incapable of appraising the nature of [her] conduct." On appeal, Platt argued that because the victim was asleep, he could only be charged with sexual assault under section 18-3-402(1)(h), C.R.S. (2008) ("subsection (h)"), which criminalizes sexual assault when "[t]he victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented." Section 18-3-401(3), C.R.S. (2008), defines "physically helpless" as "unconscious, asleep, or otherwise unable to indicate willingness to act." (emphasis added). As a result of the charging decision, Platt continued, he was improperly deprived of an opportunity to present a consent defense and to instruct the jury on consent.

The court of appeals affirmed Platt's conviction, People v. Platt, 170 P.3d 802, 803 (Colo.App.2007), and we now affirm the court of appeals. Platt's conduct involved a sleeping victim. Depending on the evidence, such conduct reasonably falls within two statutory provisions — subsection (b), involving victims who are cognitively unable to understand the nature of their conduct, and subsection (h), involving physically helpless victims. When a defendant's conduct reasonably falls within two statutes, the prosecution has discretion to select under which statute to proceed; the question then becomes whether there is sufficient evidence to support the conviction. Here, we find that there is sufficient evidence to support Platt's conviction under subsection (b) because the victim was asleep and thus unable to understand the nature of her conduct. Under our decision in Dunton v. People, 898 P.2d 571, 573-74 (Colo.1995), the requirement that the prosecution prove under subsection (b) that the victim was incapable of appraising the nature of her conduct at the time of the alleged assault necessarily "negates the existence of the victim's consent." Id. at 573. Therefore, while a defendant may introduce evidence that the victim was in fact capable of appraising the nature of her conduct, as Platt did in this case, he is not permitted to present a defense of consent per se, nor is he entitled to a jury instruction concerning consent. Id. We therefore find that Platt was not improperly deprived of an opportunity to present a consent defense or to instruct the jury on consent.

I.

In 2002, Platt moved into a house shared by the victim and her boyfriend. One night in December 2002, the victim had fallen asleep on a couch in the house. She was awakened at 3:00 a.m. by Platt, who was

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fondling her genital area and digitally penetrating her vagina. The victim was in a state of partial sleep. She initially thought that it was her boyfriend who was fondling her. When she opened her eyes, however, she realized immediately that it was Platt. She swore at Platt loudly and kicked him off of her. Platt left the house, but was quickly apprehended by the police and confessed to sexually assaulting the victim.

Platt was charged with one count of sexual assault under section 18-3-402(1)(b), which provides that "[a]ny actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits a sexual assault if ... [t]he actor knows that the victim is incapable of appraising the nature of [her] conduct." Prior to trial, the prosecution moved to amend this charge to section 18-3-402(1)(h), which criminalizes sexual assault of a victim who is "physically helpless," defined as "unconscious, asleep, or otherwise unable to indicate willingness to act." § 18-3-401(3). The People withdrew this motion, however, and Platt remained charged pursuant to subsection (b).¹

At trial, the prosecution presented evidence that the victim was in a state of partial sleep and that Platt knew she was sleeping. The prosecution also produced a written statement by Platt in which he admitted that "I touched [the victim] with my hand and penitrated [sic] her with my finger." The prosecution further demonstrated that Platt admitted to the police in an interview that the victim had not given him "any hints that it would be okay to touch her," and he knew that the victim "would be angry ... if someone did that to her." The defense cross-examined the victim, who testified that she had initially enjoyed the touching and had allowed it to continue for several seconds before realizing that it was not her boyfriend who was touching her. She also testified that she "went to draw" Platt close to her, mistakenly thinking he was her boyfriend, but immediately realized he was not and forcefully kicked him off of her. The trial court refused Platt's request that the jury be instructed on the defense of consent. The jury convicted Platt, and he was sentenced to six years imprisonment.

Platt appealed his conviction to the court of appeals, which affirmed. Platt, 170 P.3d at 803. The court of appeals reasoned that Platt's conduct could fall within either subsection (b) or (h), and that, because the victim was partially asleep, the evidence was sufficient to support his conviction under subsection (b). In addition, the court of appeals held that the trial court properly declined Platt's request that the jury be instructed on the defense of consent. Id.

We granted certiorari to consider whether a sleeping victim can be "incapable of appraising the nature of her conduct" under subsection (b).² We find that, depending on the evidence, a sexual assault involving a sleeping victim may reasonably fall under either subsection (b) or (h). When a defendant's conduct reasonably falls within two statutes, the prosecution has discretion to select under which statute to proceed; the question then becomes whether there is sufficient evidence to support the conviction. In this case, there was sufficient evidence to support Platt's conviction under subsection (b) because the sleeping victim was incapable of understanding the nature of her conduct. Under our decision in Dunton v. People, 898 P.2d 571, 573-74 (Colo.1995), proof that a victim is incapable of understanding the nature of her conduct necessarily negates the defense of consent. Therefore, while a defendant may introduce evidence that the victim was in fact capable of appraising the nature of her conduct, as Platt did in this case, he is not permitted to present a defense of consent per se, nor is he entitled to a jury instruction concerning consent. Id. at 573. We therefore affirm the court of appeals.

II.

Subsection (b) criminalizes sexual assault when "[t]he actor knows that the victim

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is incapable of appraising the nature of [her] conduct." Subsection (h) criminalizes sexual assault when "[t]he victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented," with "physically helpless" defined as "unconscious, asleep, or otherwise unable to indicate willingness to act." § 18-3-401(3) (emphasis added). Subsection (b) 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. By contrast, subsection (h) addresses the situation of a physically helpless victim.

In this case, Platt argues that the prosecution could only proceed under subsection (h) because that subsection specifically addresses a sleeping victim. We disagree. Platt's conduct falls squarely within the language of subsection (b), because a victim who is asleep may be cognitively "incapable of appraising the nature of [her] conduct." Platt's conduct could have also fallen under subsection (h), depending on the evidence, because a victim who is asleep may be "physically helpless." Subsections (b) and (h) are not mutually exclusive. Instead, the same conduct may, depending on the evidence, violate both sections. "It is ... well established that a single act may give rise to the violation of more than one criminal statute." People v. Owens, 670 P.2d 1233, 1237-38 (Colo.1983).

The facts of this case illustrate how conduct can fall within both statutory provisions, depending on the evidence. Prior to trial, the prosecution moved to amend the charge against Platt to subsection (h), involving the sexual assault of a physically helpless victim, although the motion was withdrawn before trial. Had the prosecution continued to proceed under subsection (h), it would have been required to prove that the victim was "physically helpless," either because she was "unconscious," "asleep," or "otherwise unable to indicate willingness to act." § 18-3-401(3). Yet the victim in this case was not fully "asleep" nor was she unconscious, and she may or may not have been physically able "to indicate [her] willingness to act." In other words, had the prosecution proceeded under subsection (h), it might not have been able to prove that the victim was physically helpless. The prosecution also faced difficulties with regard to proceeding under subsection (b), in that it had to prove that the victim was in a sufficient state of sleep so as to be incapable of appraising the nature of her conduct.

When conduct reasonably falls within two statutes, the prosecution must be afforded discretion in choosing under which statute to charge the...