Peo in Interest of DG

Opinion

22CA1174 Peo in Interest of DG 07-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1174 Larimer County District Court No. 20JD259 Honorable Daniel M. McDonald, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of D.G.,

Juvenile-Appellant.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE GOMEZ Meirink and Bernard*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 17, 2025

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

Megan A. Ring, Colorado State Public Defender, Mark Evans, Colorado State Public Defender, Denver, Colorado, for Juvenile-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 D.G., a minor, appeals his adjudication of delinquency for

unlawful sexual contact. He contends that (1) his adjudication

must be vacated due to a later-enacted legislative amendment;

(2) the juvenile court erred in denying his request for a jury trial;

(3) the evidence was insufficient to support his adjudication; and

(4) the prosecutor’s reference to a witness’s credibility amounted to

misconduct, requiring reversal. We disagree and therefore affirm

the judgment.

I. Background

¶2 After the juvenile court denied D.G.’s request for a jury trial,

the prosecution presented evidence supporting the following facts

during a one-day bench trial.

¶3 When N.C. was eleven years old, his mother noticed him

watching something on television that she deemed inappropriate for

his age because it involved sexual content. N.C. said that he

“already knew about those things” and disclosed that he and his

female cousin, N.L., had engaged in sexual activities with their

uncle, D.G.

¶4 N.C. submitted to a forensic interview during the investigation

of the allegations. In the interview, N.C. explained that D.G. had

1 told him about sex and had said, “It’s good for you.” N.C. also

reported that D.G. had shown him pornographic videos “a lot . . .

like a hundred times.” N.C. described three separate incidents

occurring when he was between five and nine years old and when

N.L., who is a few months older than him, was between five and

ten.1 All three incidents occurred at the children’s grandfather’s

house — where N.C., N.L., and D.G. would sometimes spend the

night — after their grandfather had gone to sleep.

¶5 During the first incident, N.L. sucked on N.C.’s and D.G.’s

penises. During the second incident, N.L. sucked on N.C.’s penis,

and N.C. licked N.L.’s vagina. D.G. wasn’t present for this incident,

but N.C. said D.G. told them to do it. N.C. also said that sometime

after the second incident, D.G. touched his own penis and then

showed N.C. his semen, or “white stuff.” And during the final

incident, N.L. sucked on N.C.’s and D.G.’s penises. While D.G. was

waiting for his “turn” with N.C., he “played with himself.”

1 D.G., who is about five years older than N.C. and N.L., was

between ten and fifteen years old during that time frame.

2 ¶6 N.C. also revealed that his father had shown him pictures of

naked people and that another child in his father’s neighborhood

had sucked on his penis.

¶7 At trial, N.C. testified to “experimenting” with N.L. because

“[D.G.] was just talking about sex and all that stuff. . . . I didn’t

know what the heck I was doing.” N.C.’s trial testimony about the

three incidents differed in several respects from his descriptions

during his forensic interview. For instance, N.C. testified at trial

that he didn’t participate in the third incident but just “watch[ed]

[D.G. and N.L.] under the blankets.” However, N.C. also testified

that his memory of the incidents was better at the time of the

forensic interview.

¶8 The petition in delinquency alleged that D.G. committed three

counts of unlawful sexual contact.2 The first two counts alleged

that D.G. had sexual contact with N.L., who didn’t testify at trial.

The final count alleged that D.G. induced or coerced N.C. to engage

in sexual contact with N.L. The court found D.G. guilty only as to

2 The prosecution originally alleged four counts against D.G. but

later amended the petition to allege only three.

3 the final count and sentenced him to twenty-four months of juvenile

sex offender probation.

II. Legislative Amendment

¶9 D.G. initially contends that his adjudication must be vacated

because a later legislative amendment changed the language of the

offense such that “[t]he single means of behavior under which the

State charged [him] no longer exists.” We disagree.

A. Applicable Law and Standard of Review

¶ 10 A person commits unlawful sexual contact when they

“knowingly, with or without sexual contact, induce[] or coerce[] a

child by any of the means set forth in section 18-3-402[, C.R.S.

2024,] to expose intimate parts or to engage in any sexual contact,

intrusion, or penetration with another person, for the purpose of

the actor’s own sexual gratification.” § 18-3-404(1.5), C.R.S. 2024.

¶ 11 Section 18-3-402(1) provides eight different means by which a

child may be induced or coerced under the unlawful sexual contact

statute. People v. Mena, 2025 COA 14, ¶ 3. At the time of the

offense, one of those enumerated means was “caus[ing] submission

of the victim by means of sufficient consequence reasonably

4 calculated to cause submission against the victim’s will.” § 18-3-

402(1)(a), C.R.S. 2021.

¶ 12 In 2022, shortly after D.G.’s adjudication, the General

Assembly replaced that language with the current language:

“caus[ing] sexual intrusion or sexual penetration knowing the

victim does not consent.” § 18-3-402(1)(a); see also Ch. 41, sec. 1,

§ 18-3-402(1)(a), 2022 Colo. Sess. Laws 214; Mena, ¶ 35.

¶ 13 A defendant may be entitled to the benefit of ameliorative

legislation if they request such relief before their conviction

becomes final — in other words, before the time to appeal expires or

the mandate issues following an appeal. People v. Cali, 2020 CO

20, ¶ 21; see also People v. Boyd, 2017 CO 2, ¶ 9 (when the law

changes during the pendency of a direct appeal, such that the

conduct for which the defendant was prosecuted is no longer a

crime, the prosecution is left “without authority to continue to

prosecute,” and the defendant’s conviction must be vacated). But

regardless of the ameliorative nature of a legislative amendment,

“we apply expressly prospective statutes only prospectively.” People

v. Stellabotte, 2018 CO 66, ¶ 29.

5 ¶ 14 We review such questions of statutory interpretation de novo.

People in Interest of J.O., 2022 COA 65M, ¶ 13.

B. Application

¶ 15 We disagree with D.G.’s contention regarding the impact of the

legislative amendment.

¶ 16 Even assuming the legislative amendment is ameliorative, it

isn’t retroactive. The General Assembly made clear that the

amendment “takes effect July 1, 2022, and applies to offenses

committed on or after said date.” Ch. 41, sec. 2, 2022 Colo. Sess.

Laws 214. The charging period for D.G.’s offenses was between

2014 and 2018 — years before the amendment took effect.

¶ 17 Accordingly, D.G. isn’t entitled to the benefit, if any, of the

legislative amendment to section 18-3-402(1)(a).

III. Jury Trial

¶ 18 D.G. also contends that the juvenile court abused its

discretion when it denied his request for a jury trial. We disagree.

¶ 19 A juvenile facing delinquency proceedings is statutorily

entitled to a jury trial when they are alleged to have been an

aggravated juvenile offender or to have committed an act that would

6 constitute a crime of violence if it was committed by an adult.

§ 19-2.5-610(1), C.R.S. 2024. For all other felony allegations, the

statute gives trial courts discretion to determine whether to

empanel a jury. See id.; People in Interest of A.B.-B., 215 P.3d 1205,

1207 (Colo. App. 2009).

¶ 20 In determining whether to grant a jury trial in a juvenile

delinquency proceeding, a court should “balance the benefits of

informal, speedy and rehabilitative proceedings against the severity

of the offense, the nature of the consequences and the particular

facts of the case.” A.C. v. People, 16 P.3d 240, 244 (Colo. 2001).

¶ 21 We review a court’s ruling on a juvenile’s request for a jury

trial in a delinquency proceeding for an abuse of discretion.

A.B.-B., 215 P.3d at 1209. A court abuses its discretion if its

decision is manifestly arbitrary, unreasonable, or unfair or is based

on a misunderstanding or misapplication of law. See id.

¶ 22 In his request for a jury trial, D.G. argued that “[t]he severity

of the offenses, the nature of the consequences, and the particular

facts of the case . . . outweigh[ed] on balance any benefit to an

informal and speedy disposition.” He further argued that this was

7 in part because “a trial on the charges alleged w[ould]

involve . . . assessing the credibility of . . . the named victims . . .

who were young children at the time of the alleged offenses” and

because his “possible sentence exceed[ed] the usual juvenile

sentencing structure and could have far reaching implications

outside of what [he] would normally face for any other charges.”

¶ 23 The juvenile court rejected those arguments and denied D.G.’s

request for a jury trial, reasoning,

I do not think it’s in his best interests and I do not think it’s in any of the youths involved in this case best interest to do . . . a jury trial versus a court trial, and . . . I think that that outweighs any possible detriment to [D.G] because given the nature of these charges and the way they’re being presented, the consequences are really not much more than any other type of juvenile case. And weighing . . . the potential trauma factors to [D.G.] as well as witnesses . . . , the court finds that it would not be appropriate in this case.

¶ 24 The court’s reasoning indicates that it considered and

balanced the “the benefits of informal, speedy and rehabilitative

proceedings against the severity of the offense, the nature of the

consequences and the particular facts of the case,” A.C., 16 P.3d at

8 244, in concluding that D.G.’s interest in a jury trial was

outweighed by potential detriments to himself and other witnesses.

¶ 25 We therefore disagree with D.G.’s argument that the court

ignored the relevant factors. We also disagree with his arguments

challenging the juvenile court’s weighing of those factors —

particularly whether his potential sentence was significantly greater

than that applicable to other, non-sex offense adjudications and

whether he and the other potential witnesses might be traumatized

by a jury trial. It was within the juvenile court’s discretion to

assess and weigh these matters, and we cannot say that its

reasoning in doing so exceeded the bounds of its discretion. See

A.B.-B., 215 P.3d at 1209.

¶ 26 Accordingly, we conclude that the juvenile court didn’t abuse

its discretion by denying D.G.’s request for a jury trial.

IV. Sufficiency of the Evidence

¶ 27 Next, D.G. contends that the prosecution didn’t present

sufficient evidence to prove beyond a reasonable doubt that he

induced or coerced N.C. to engage in sexual contact. Again, we

disagree.

9 A. Applicable Law and Standard of Review

¶ 28 We review claims challenging the sufficiency of the evidence

de novo, determining whether the evidence presented was sufficient

in both quantity and quality to support a juvenile’s adjudication.

See McCoy v. People, 2019 CO 44, ¶ 63; see also People in Interest of

J.R., 216 P.3d 1220, 1221 (Colo. App. 2009) (“When reviewing the

sufficiency of the evidence supporting an adjudication of juvenile

delinquency, the standards are the same as those used in a

criminal case.”). In doing so, we assess whether the evidence, both

direct and circumstantial, viewed in the light most favorable to the

prosecution, supports a reasonable conclusion that the juvenile is

guilty beyond a reasonable doubt. See McCoy, ¶ 63.

¶ 29 However, “we ‘may not serve as a thirteenth juror’ by

considering whether we ‘might have reached a different conclusion

than the [fact finder].’” Thomas v. People, 2021 CO 84, ¶ 10

(quoting People v. Harrison, 2020 CO 57, ¶ 33). Thus, we will

disturb the verdict only if, despite drawing every reasonable

inference in favor of the prosecution, the record is unsubstantial

and insufficient to support a guilty verdict beyond a reasonable

doubt. Clark v. People, 232 P.3d 1287, 1291-92 (Colo. 2010).

10 ¶ 30 As outlined above, a person commits unlawful sexual contact

when they “knowingly, with or without sexual contact, induce[] or

coerce[] a child by any of the means set forth in section 18-3-402 to

expose intimate parts or to engage in any sexual contact, intrusion,

or penetration with another person, for the purpose of the actor’s

own sexual gratification.” § 18-3-404(1.5).

¶ 31 The prosecution alleged in this case, under section 18-3-

402(1)(a), C.R.S. 2021, that D.G. “induced or coerced [N.C.]” and

“caused [his] submission . . . by means of sufficient consequence

reasonably calculated to cause submission against [his] will.” As

applied here, the reasonable calculation component means that

D.G. must have actively considered that his conduct would

overcome N.C.’s will to not engage in sexual contact. See People v.

Komar, 2015 COA 171M, ¶ 42; see also People v. Smith, 638 P.2d 1,

5 n.7 (Colo. 1981) (“[T]he actor must be aware that [their] conduct is

sufficient in character and degree to be likely to cause

nonconsensual submission.”).

¶ 32 D.G. contends that the prosecution didn’t provide sufficient

evidence to establish that he induced or coerced any sexual contact

11 because none of the evidence relating to the three incidents proves

that he induced or coerced N.C.’s actions. Moreover, D.G. argues,

even if he suggested the sexual activity, that doesn’t amount to

inducement or coercion, and “[t]here is no evidence that N.C. had

any will not to engage, or that D.G. did anything to overcome it.”

¶ 33 We disagree and conclude that, when viewed in the light most

favorable to the prosecution, the following evidence is substantial

and sufficient to support a conclusion by a reasonable fact finder

that D.G. “cause[d] [the] submission of [N.C.] by means of sufficient

consequence reasonably calculated to cause submission against

[his] will.” § 18-3-402(1)(a), C.R.S. 2021.

• D.G. is more than five years older than N.C. During the

relevant time period, D.G. was between ten and fifteen

years old, while N.C. was only between five and nine.

• D.G. is N.C.’s uncle, they saw each other frequently, and

they had a good relationship, such that N.C.’s mother

described them as “like brothers” in some ways.

• N.C. stated at trial and during his forensic interview that

D.G. showed him pornographic videos on numerous

occasions to “make [him] understand what sex was.”

12 • N.C. stated, “I didn’t know what I was doing when I was

little.” But he said he participated in the sexual conduct

because D.G. had shown him how to do it through the

pornography and had said, “It’s good for you.”

• N.C. frequently repeated during his forensic interview

that the sexual contact and pornography was “gross” and

“nasty.” N.C. also said, “[D.G.], my uncle, is kind of a

creep. I kind of don’t feel safe around him.”

• N.C. testified that the incidents all occurred in an area of

their grandfather’s home away from their grandfather,

and that they would end if they heard their grandfather

waking up.

¶ 34 It is true, as D.G. points out, that N.C. gave conflicting

accounts of what happened during his forensic interview and his

trial testimony. And some evidence — such as N.C.’s viewing of

photos of naked people with his father, his encounter with another

child in his father’s neighborhood, and his statements about

“experimenting” — may have supported a finding that the conduct

wasn’t induced or coerced. But we don’t assess the credibility of

witnesses or resolve inconsistencies in the evidence. See People in

13 Interest of K.D.W., 2020 COA 110, ¶ 38. Rather, drawing every

reasonable inference in favor of the prosecution, as we must, we

conclude that the evidence was sufficient to establish beyond a

reasonable doubt that D.G. induced or coerced N.C. into sexual

contact. See Komar, ¶ 42; Smith, 638 P.2d at 5 n.7; see also People

v. Walker, 321 P.3d 528, 540-41 (Colo. App. 2011) (finding

sufficient evidence to establish the defendant’s inducement or

coercion of the victims), aff’d in part and vacated in part on other

grounds, 2014 CO 6.

V. Prosecutorial Misconduct

¶ 35 Finally, D.G. contends that the juvenile court plainly erred by

allowing the prosecutor to engage in misconduct during the trial.

Specifically, he cites the prosecutor’s references to N.C.’s credibility

during the witness examinations and closing argument. We discern

no plain error.

A. Additional Facts

¶ 36 On redirect examination, the prosecutor elicited testimony

from N.C. suggesting that his memory of events was more accurate

in his forensic interview than at trial. The prosecutor also elicited

14 testimony indicating that N.C. had been truthful during the forensic

interview:

Q. Do you remember [the forensic interviewer] talked about the rules of like, if you didn’t remember something, not to guess. Do you remember that?

A. Yeah.

Q. Okay. And if — a rule about always telling the truth, right, in the room? Yeah?

Q. Okay. And you said you remember giving that interview with the lady. Do you remember if you tried your best to follow all the rules in that interview?

A. Yes, I tried as hard as I could.

¶ 37 Then, during closing argument, the prosecutor made the

following challenged statements regarding N.C.’s credibility:

• “[N.C.] had told . . . the interviewer that he understood he

needed to tell the truth and tell what happened to

him. . . . [H]e starts off by talking to [the interviewer]

about the details of his day. He was very detailed about

the things that happened that day, and he was honest

with her. He is so honest that he goes on to tell the

interviewer about how he got in trouble earlier that day

15 because he was misbehaving. He is not trying to hide

anything.”

• “[N.C.’s mother] also told the Court that [N.C.] really

struggled with this after he came forward, that he acted

out towards her, that he was angry at her for reporting

this, that he ran away a couple times, that he was

suicidal, and one of those times that he ran away, he

even ran to [D.G.] This is very consistent behavior that

we have seen from a kid who was really close to

somebody who hurt them, and now he can’t see them

anymore.”

¶ 38 Defense counsel didn’t object to any of these questions,

answers, or statements.

B. Applicable Law and Standard of Review

¶ 39 Prosecutors may not offer their own personal opinions about a

case, Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005),

or imply that they have specialized knowledge and expertise to

which a fact finder should defer, People v. Davis, 280 P.3d 51, 54

(Colo. App. 2011). Nor may prosecutors elicit testimony that

improperly bolsters another witness’s credibility by directly or

16 indirectly implying that the witness was telling the truth on a

particular occasion. Venalonzo v. People, 2017 CO 9, ¶ 32; People

v. Wittrein, 221 P.3d 1076, 1081 (Colo. 2009).

¶ 40 When, as here, there was no contemporaneous objection, we

review a claim of prosecutorial misconduct for plain error. People v.

Rhea, 2014 COA 60, ¶ 43. “To constitute plain error, misconduct

must be flagrant or glaring or tremendously improper, and it must

so undermine the fundamental fairness of the trial as to cast

serious doubt on the reliability of the judgment of conviction.” Id.

(quoting People v. Weinreich, 98 P.3d 920, 924 (Colo. App. 2004)).

Prosecutorial misconduct rarely constitutes plain error. People v.

Knapp, 2020 COA 107, ¶ 47.

C. Application

¶ 41 As an initial matter, we disagree with D.G.’s assertion that the

prosecutor improperly offered her own personal opinions of N.C.’s

credibility or implied that the court should defer to her specialized

knowledge and expertise. Instead, the challenged statements from

the prosecutor’s closing argument, read in conjunction with other

related statements she made in closing, simply reflect her

argument, based on a commonsense interpretation of the evidence

17 presented at trial, that N.C.’s statements during the forensic

interview were credible. That was proper. See People v. Curtis,

2021 COA 103, ¶ 54 (“It’s proper for a prosecutor to argue — based

on reasonable evidentiary inferences — why the [fact finder] should

or shouldn’t believe a witness.”); People v. Wilson, 2014 COA 114,

¶ 55 (“[T]he prosecutor was drawing reasonable inferences from the

evidence rather than professing her personal opinion as to [the

victim’s] veracity.”).

¶ 42 Moreover, the prosecutor’s questioning of D.G. about the “rule”

that he tell the truth during his forensic interview didn’t elicit the

kind of bolstering testimony Colorado courts have found

impermissible. Instead, it “merely elicited testimony from the victim

about the truthfulness of [his] own testimony, which does not

constitute bolstering as discussed in Wittrein and Venalonzo.”

People v. West, 2019 COA 131, ¶ 42. Thus, the questioning and the

later argument about it were not impermissible — and certainly

were not plainly so. See id. at ¶¶ 34-35, 42, 44 (the trial court

didn’t err, much less plainly err, by admitting a child victim’s

testimony that she’d been told “the number one rule about

testifying” was to “[t]ell the truth” and that she’d followed that rule);

18 People v. Coughlin, 304 P.3d 575, 582-83 (Colo. App. 2011) (the trial

court didn’t err by admitting a witness’s testimony that he’d been

instructed to testify honestly).

¶ 43 Finally, even if the juvenile court had erred in allowing any of

the evidence or argument, it wouldn’t constitute plain error for the

additional reason that there’s no “indication in th[e] record” that the

court, as the fact finder in this case, “was improperly swayed by”

that evidence or argument. People v. Liggett, 114 P.3d 85, 89 (Colo.

App. 2005) (potential prosecutorial misconduct during a bench trial

didn’t constitute plain error), aff’d, 135 P.3d 725 (Colo. 2006); see

also People v. White, 870 P.2d 424, 440 (Colo. 1994) (“Trial judges

are presumed to know the law and to apply it in making their

decisions.” (quoting Walton v. Arizona, 497 U.S. 639, 653 (1990)))

(emphasis omitted); Liggett, 135 P.3d at 733 (“In the context of a

bench trial, the prejudicial effect of improperly admitted evidence is

generally presumed innocuous.”). Accordingly, any potential error

does not cast serious doubt on the reliability of the judgment of

conviction. See Rhea, ¶ 43.

VI. Disposition

¶ 44 The judgment is affirmed.

19 JUDGE MEIRINK and JUDGE BERNARD concur.