2018 COA 1
Colo. Ct. App.2018Background
- Defendant Allen Michael Sparks attended a party where two teenage girls (A.M., 14; victim, 13) were present; A.M. reported seeing the victim touch Sparks’s groin on a Skype video and reported that Sparks touched A.M.’s breast over clothing. Sparks later admitted in a police interview to touching both girls’ intimate areas.
- Sparks was charged with two counts of sexual assault on a child and two counts of contributing to the delinquency of a minor; convicted of one count of sexual assault on a child (as to the 13‑year‑old victim).
- Central factual/legal disputes: whether the phrase “subjects another . . . to any sexual contact” requires proof the defendant coerced or caused the minor to be subordinate or to act at his directive; admissibility and Confrontation Clause implications of testimony about the victim’s age; and jury viewing of the defendant’s interview video during deliberations without defense counsel present.
- Trial court admitted testimony (A.M., a detective) and defendant’s own interview statements about the victim’s age without objection; jury viewed the interview video during deliberations after a court instruction; defense counsel was not notified in advance of the viewing.
- On appeal, Sparks argued prosecutorial misconduct (misstatement of law/evidence), insufficient evidence of victim’s age, Confrontation/hearsay errors in age testimony, improper jury instruction about the interview video, and ineffective assistance of counsel due to lack of notice when the video was provided to the jury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of “subjects another . . . to any sexual contact” in § 18‑3‑405(1) | The People argued the phrase encompasses situations where an adult allows a child to touch the adult’s intimate parts; no coercion or initiation element required. | Sparks argued the phrase requires proof the defendant caused the child to be subservient or that the child acted at the defendant’s order/request (i.e., initiation/coercion by defendant). | Held: “Subjects another” is broader and includes allowing a child to touch the defendant; prosecution need not prove coercion or that defendant initiated contact. |
| Prosecutorial misconduct in closing (law/evidence misstated) | Prosecutor’s statements were fair comments on the evidence and correct statement of law. | Sparks claimed the prosecutor misstated law (ignored initiation/coercion) and evidence (overstated what A.M. saw and Sparks’s knowledge of ages). | Held: No misconduct; closing was not a misstatement of law or of the evidence. |
| Admissibility / Confrontation Clause of testimony about victim’s age (A.M., detective, defendant’s interview) | The People maintained testimony and defendant’s admissions as admissible (party admission; A.M. testified in court), and no Confrontation violation occurred. | Sparks argued hearsay, testimonial statements to police, and Confrontation Clause violations rendered age evidence inadmissible and deprived the People of proof of victim’s age. | Held: Defendant’s statements are admissible as party admissions; A.M.’s courtroom testimony was permissible; record insufficient to review potential Confrontation error for detective’s testimony but admission was not plain error and any error harmless given other evidence. |
| Jury access to defendant’s interview video during deliberations and counsel notice | People argued court properly exercised discretion in providing video with instruction; no special DeBella guardrails required for defendant’s statements. | Sparks argued jurors should have been warned not to give undue weight and counsel should have been present/notice given; absence of counsel violated right to assistance. | Held: Court did not abuse discretion in instruction or access; failure to secure defense counsel presence was error but harmless beyond a reasonable doubt. |
Key Cases Cited
- Wend v. People, 235 P.3d 1089 (Colo. 2010) (standard for prosecutorial misconduct review)
- De La Cruz‑Garcia v. United States, 590 F.3d 1157 (10th Cir. 2010) (adult‑minor sexual activity is inherently nonconsensual; adult culpable)
- Davis v. Washington, 547 U.S. 813 (2006) (test for whether statements are testimonial)
- Severy v. State, 8 A.3d 715 (Me. 2010) (statutory “subjects” includes allowing child‑initiated contact)
- Traylor v. State, 489 N.W.2d 626 (Wis. Ct. App. 1992) (defendant allowing contact suffices for sexual contact)
- Frasco v. People, 165 P.3d 701 (Colo. 2007) (trial court control over jury access to exhibits; guard against undue emphasis)
- Key v. People, 865 P.2d 822 (Colo. 1994) (right to counsel at critical stages; judge must seek defense presence before interacting with jury)