People v. Bertrand
2014 COA 142
Colo. Ct. App.2014Background
- Defendant Donald Wayne Bertrand, cousin of the alleged victim K.B., was convicted by a jury of two counts of sexual assault under Colo. Rev. Stat. § 18-3-402(1)(b) and sentenced (trial court conviction later appealed).
- K.B. is a developmentally disabled adult who lives with her parents, takes multiple nighttime medications (including a sleeping pill), and is described by her mother as functionally like a teenager and "100 percent disabled."
- Defendant lived with K.B. and her family intermittently and shared a bedroom with K.B.; K.B. reported multiple instances when defendant got into bed with her and had sexual intercourse while she was "half asleep" or pretended to be asleep.
- Defendant admitted to K.B.’s mother (and on a recorded pretext call) that he had sex with K.B. multiple times and acknowledged taking advantage of her and knowing of her developmental delay.
- At trial, the prosecution argued K.B. was incapable of appraising the nature of her conduct (because of sleep, medication, and/or cognitive disability); defendant argued she was capable and also sought a consent instruction. The jury was given an instruction stating that a person "is incapable of appraising the nature of her conduct when she is asleep or partially asleep during an assault."
- The appellate court held (1) evidence was sufficient to support the convictions, but (2) the elemental jury instruction was erroneous because it directed a verdict for the prosecution by stating sleep/partial sleep made incapacity conclusive, and thus reversed and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence that K.B. was incapable of appraising her conduct under § 18-3-402(1)(b) | The People argued evidence (K.B.’s disabilities, medications causing deep sleep, her testimony she was half-asleep, and defendant’s admissions) permits a jury to find incapacity beyond a reasonable doubt | Bertrand argued evidence showed K.B. was capable of understanding the sexual acts, so convictions must be vacated | Affirmed: De novo review finds evidence (combined cognitive disability, medication-induced sleep, testimony, admissions) sufficient to support convictions |
| Correctness of elemental jury instruction re: sleep/partial sleep | The People relied on the instruction that sleep/partial sleep could establish incapacity; trial court gave an instruction saying a person "is incapable" when asleep or partially asleep | Bertrand argued the instruction misstated the law by making incapacity automatic when asleep/partially asleep, effectively directing a verdict for the People | Reversed: Instruction misstated Platt v. People; it relieved jury of its fact-finding role and likely contributed to conviction; remand for new trial required |
| Need for a unanimity instruction on the basis for incapacity (developmental disability vs. sleep/medication) | The People contended jurors only needed to agree that K.B. was incapable, not the precise theory | Bertrand argued jurors must unanimously agree on the reason K.B. could not appraise her conduct | Rejected: Court held jurors must unanimously find the element (incapacity) but need not agree on the particular theory or evidence establishing it |
| Right to a jury instruction on consent | The People relied on Platt to argue consent instruction was not permitted when incapacity under § 18-3-402(1)(b) is at issue | Bertrand sought an instruction on consent as a defense | Rejected: Court held consent instruction was properly denied; proof of subsection (b) necessarily establishes absence of consent per Platt |
Key Cases Cited
- Platt v. People, 201 P.3d 545 (Colo. 2009) (sleeping victim may be incapable of appraising nature of conduct; prosecution must prove incapacity)
- People v. Garcia, 28 P.3d 340 (Colo. 2001) (harmless-error analysis; reversal required if reasonable possibility error contributed to conviction)
- Clark v. People, 232 P.3d 1287 (Colo. 2010) (standards for sufficiency review and juror factfinding)
- Dempsey v. People, 117 P.3d 800 (Colo. 2005) (de novo sufficiency-of-the-evidence review)
- People v. Vigil, 251 P.3d 442 (Colo. App. 2010) (jury need not unanimously agree on which theory of proof established an element)