The Colorado Court of Appeals issued its opinion in People v. Bertrand on Thursday, October 23, 2014.
Sexual Assault—Evidence—CRS §18-3-402(1)(b)—Asleep—Jury Instruction.
Defendant is the cousin of K.B., the alleged victim. K.B. suffered from developmental disabilities, and lived with her parents because she was unable to care for herself. On several occasions while defendant lived with K.B. and her family, defendant got into bed with K.B. and had sexual intercourse with her. K.B. later told her mother that defendant had had sex with her, but that she did not want to have sex with him. The family made a report to police, and a jury ultimately convicted defendant of two counts of sexual assault.
On appeal, defendant contended that there was insufficient evidence to show that K.B. was incapable of appraising the nature of her conduct as required by CRS § 18-3-402(1)(b). K.B. suffered from cognitive difficulties, and she took medication before bedtime that made her groggy and sleepy. The jury could have reasonably inferred from this evidence that she was incapable of appraising the nature of her conduct when defendant was having sex with her. The jury could also have reasonably concluded that defendant knew that K.B. was unable to appraise the nature of her conduct. Therefore, the evidence was sufficient to sustain defendant’s conviction under CRS § 18-3-402(1)(b).
Defendant also contended that one of the jury instructions improperly directed a verdict in favor of the prosecution. The jury instruction stated that “[a] person is incapable of appraising the nature of her conduct when she is asleep or partially asleep during an assault.” The instruction should have stated that a person “may be” incapable.Because the error was not harmless, the conviction was reversed and the case was remanded for a new trial.