21CA0309 Peo v Roper 11-27-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA0309 Boulder County District Court No. 19CR447 Honorable Thomas F. Mulvahill, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Zachary Orion Roper,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE TOW Brown and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 27, 2024
Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Zachary Orion Roper, appeals the judgment of
conviction following a jury verdict finding him guilty of sexual
assault (victim helpless) and sexual assault (victim incapable of
appraising the nature of her conduct). We affirm.
I. Factual and Procedural Background
A. The Offense
¶2 The jury heard evidence from which it could reasonably find
the following.
¶3 M.G. invited Roper to go to a laser tag event her sorority had
planned. Before going to the event, M.G. and Roper attended a
small gathering where M.G. drank approximately one cup of
alcohol, including vodka and brandy. By the time they got to the
laser tag venue, M.G. was extremely intoxicated. Witnesses
described her as “overly drunk,” having trouble walking and
standing, stumbling, slurring her speech, out of it, and not
understanding what was going on.
¶4 Sorority leaders deemed M.G. “too intoxicated” to remain at
the event and sent her and Roper home, after telling him that she
needed assistance walking. The sorority leaders ordered M.G. an
1 Uber to take her back to the sorority house, where another sorority
sister was waiting for her.
¶5 M.G. became even more intoxicated during the Uber ride, laid
down in the backseat, and was largely unresponsive according to
the driver. At some point during the ride, Roper changed the drop
off location to his apartment without consulting M.G.
¶6 When M.G. did not arrive at the sorority house and failed to
answer her phone, the sorority sister waiting for her became
concerned. Three sorority sisters and Roper’s roommate went to
Roper’s apartment. Roper’s other roommate let them into the
apartment. Once inside, the group walked in on Roper, naked, with
M.G. on his bed. M.G. was on her stomach, head turned to the
side, with her pants pulled down, exposing her vagina.
¶7 The group yelled, but despite the yelling, M.G. did not
respond. As one witness described it, “She didn’t move at all. She
didn’t turn her head or anything.” One of the sorority sisters “was
concerned she was unconscious or hurt.” She shook M.G. and
rolled her over and after what she described as “a really long time,”
M.G. was able to respond. Because M.G. could not walk and was
2 disoriented, her sorority sisters helped her out of Roper’s
apartment.
¶8 M.G. went to the hospital where she underwent a sexual
assault examination. During the examination, M.G. told the
examiner that Roper had sex with her and provided some other
details about the night. At trial, however, M.G. could not remember
the assault, and neither the examiner nor M.G. could independently
recall the examination. The results from the examination were
admitted and showed injuries to M.G.’s genital area.
B. The Court Proceedings
¶9 Roper did not testify at trial. His theory of defense was that
both he and M.G. were intoxicated, M.G. was not as intoxicated as
observers claimed, and the sex was consensual.
¶ 10 During the trial, which took place at the height of the
COVID-19 pandemic, the public was excluded from the courtroom.
A live audio and video stream of the proceedings was provided to
spectators sitting, socially distanced, in a different courtroom. On
the third day of trial, Roper’s counsel informed the court that when
witnesses were viewing and testifying about certain surveillance
videos, those videos were not also captured by the livestream and
3 thus were not broadcast to the public viewing the trial remotely.
Further, counsel indicated that when a detective would stand
during his testimony while explaining certain aspects of the case,
the spectators were unable to hear everything he said, as he would
apparently stray too far from the microphone.
¶ 11 On appeal, Roper argues that he was denied his right to a
public trial. He also challenges the masking protocol, sufficiency of
the evidence underlying his convictions, the trial court’s handling of
two jury questions, and the constitutionality of several statutory
provisions. As to the public trial issue, we remanded to the trial
court to make further findings under the test articulated in Waller
v. Georgia, 467 U.S. 39 (1984). People v. Roper, 2024 COA 9.
Following that remand hearing, the matter is now before us to fully
resolve Roper’s appeal. In doing so, we address, and reject, each of
his claims.
II. Courtroom Closure
¶ 12 Roper contends that, even after the limited remand, the trial
court’s findings fail to justify the courtroom closure. He also
contends that the closure violated the public’s and press’s right to a
public trial.
4 A. Background
¶ 13 The circumstances of Roper’s trial and the trial court’s initial
lack of adequate Waller findings are sufficiently set forth in Roper.
Id. at ¶¶ 1-3, 5-9, 18-26. We need not reiterate them here. Nor
need we reiterate the legal analysis underpinning our decision to
remand for further findings (notwithstanding the fact that Roper’s
counsel dedicated much of the effort during the remand hearing to
attacking that decision).
¶ 14 At the remand hearing, the court admitted the 20th Judicial
District of Colorado Administrative Order 20-110 – Resumption of
Jury Trials, which adopted the Plan for Resuming Jury Trials Safely
During COVID-19 Health Emergency (the Jury Trial Resumption
Plan).1 The Jury Trial Resumption Plan outlined how the District
planned to recommence jury trials in a safe way. It was developed
1 Though Roper objected during the remand hearing to the
prosecution supplementing the record, we note that we remanded the matter explicitly for the court to make specific findings regarding what reasonable alternatives were explored. Supplementation of the record was an inherent part of that inquiry. In any event, although Roper maintains his objection to the limited remand, he does not specifically challenge the trial court’s acceptance of the supplemental record. Thus, we deem any challenge to supplementing the record (but not the challenge to the limited remand itself) abandoned.
5 with input from relevant stakeholders — including judges, court
staff, prosecutors (including the two prosecutors who appeared at
the remand hearing), defense attorneys (including one of the public
defenders who appeared at the remand hearing), and public health
officials — and took into account information from the Centers for
Disease Control and Prevention, the Colorado Department of Public
Health and Environment, and other judicial districts regarding their
plans for reinstating trials, as well as executive orders issued by
Colorado Governor Jared Polis.
¶ 15 The Jury Trial Resumption Plan required all participants to
wear masks. The Plan allowed counsel to provide clear masks to
their clients, as well as for witnesses to use during testimony.
¶ 16 The People made a supplemental record about the
circumstances that existed at the time of Roper’s trial. The
supplementation included the following facts:
• At the time of Roper’s trial, the COVID-19 vaccine was
not yet available.
• Though the Jury Trial Resumption Plan originally
contemplated only one trial proceeding at a time, the
decision was made that two trials could be
6 accommodated as long as each trial’s jury pools did not
cross paths.
• The first jury trial under the Jury Trial Resumption Plan
had already begun on the newer side of the courthouse,
where the courtrooms were bigger and had better
ventilation.
• Roper’s trial, therefore, took place on the older side of the
building.
• The public health officials required that all participants
(other than the defendant and defense counsel) maintain
six-foot social distancing.
• Public health officials would not approve the use of other
courtrooms on the older side of the courthouse because
of poor ventilation.
• The jury trial resumption committee measured
courtrooms and marked places for each juror, abiding by
the social distancing guidelines, resulting in there being
no room for anybody other than the jurors to be in the
courtroom where Roper’s trial took place.
7 • The gallery benches in the courtroom were moved to
accommodate the social distancing requirement.
• Because of the social distancing requirement, no one
could be seated in the witness stand and the jury box at
the same time, so the jury had to be seated in the gallery
benches.
¶ 17 The judge presiding over the remand hearing was the same
one that presided over Roper’s trial. The trial court found that the
prosecutors’ supplements to the record were accurate and adopted
them. The court then made additional findings regarding the
closure. It found that the jury trial resumption committee had
looked at alternative locations to hold the trial besides the Boulder
County Justice Center but concluded that the courthouse was the
only option due to availability and security concerns. The court
also made findings regarding the layout of the courtroom where
Roper’s trial took place, including where the gallery benches were
placed, the layout of the counsel tables, where the lectern was in
relation to the counsel tables, where the jury box was in relation to
the counsel tables and its dimensions, where the witness stand was
in relation to the jury box, and how the jurors were seated in the
8 gallery. The court also found that the larger courtroom in which
jury selection had taken place was five feet deeper and six feet wider
than the courtroom where Roper’s trial was held.
¶ 18 The trial court then applied the Waller test to these findings.
The court concluded that Roper had conceded that the ongoing
pandemic satisfied the first prong of the test. The court then found
that, based on the supplemented record, “the closure was no
broader than necessary to protect the public’s interest in mitigating
the risks of holding jury trials during the then-ongoing COVID-19
pandemic.” It further found that it had “considered reasonable
alternatives to closing the proceeding.”
B. Applicable Law and Standard of Review
¶ 19 The United States and Colorado Constitutions guarantee
criminal defendants the right to a public trial. See U.S. Const.
amends. VI, XIV; Colo. Const. art. II, § 16. “This right ‘is for the
benefit of the accused; that the public may see he is fairly dealt with
and not unjustly condemned, and that the presence of interested
spectators may keep his triers keenly alive to a sense of their
responsibility and to the importance of their functions.’” People v.
Jones, 2020 CO 45, ¶ 16 (quoting Waller, 467 U.S. at 46). “A public
9 trial also protects the public’s and the press’s qualified First
Amendment rights to attend a criminal trial.” Id. at ¶ 18 (citing
Waller, 467 U.S. at 44, and Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 580 (1980)).
¶ 20 Courtroom closures, whether total or partial, can violate the
right to a public trial. Id. at ¶ 27. But the right to a public trial is
not absolute, and at times it must yield to competing interests.
People v. Lujan, 2020 CO 26, ¶ 15 (citing Waller, 467 U.S. at 45).
As the United States Supreme Court articulated in Waller, for a
courtroom closure to be justified,
the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.
467 U.S. at 48.
¶ 21 “Because a trial court’s decision to close the courtroom
presents a mixed question of law and fact, we review the court’s
legal conclusions de novo and its findings of fact for clear error.”
People v. Turner, 2022 CO 50, ¶ 19 (citation omitted).
10 C. Analysis
1. Futility of Remand
¶ 22 We first reject Roper’s argument that the remand was futile.
¶ 23 Roper, citing People v. Montoya, 2024 COA 37, ¶ 23, contends
that the remand was futile because the prosecutors who appeared
at the remand hearing were not the same prosecutors at trial. But
before Roper filed his supplemental brief, the original Montoya
decision was modified. People v. Montoya, 2024 COA 37M. The
modified Montoya opinion no longer suggests that a remand is futile
merely because trial counsel no longer works for the same office.
Id. at ¶ 28. Nor does such a suggestion make sense, given that
nothing prevented either party from subpoenaing trial counsel to
testify at the remand hearing. Moreover, unlike in Jones, ¶ 46,
where the trial judge had died before any remand hearing could
have taken place, the trial judge here remained on the bench and,
in fact, conducted the remand hearing.
¶ 24 In sum, there is nothing to suggest that the remand was futile.
¶ 25 Further, we reiterate our rejection of the argument that Waller
categorically prohibits such remands because they amount to post
hoc rationalizations. As we noted in the order of limited remand,
11 the Supreme Court in Waller arguably only rejected the Georgia
Supreme Court’s post hoc assertion because it had no support in
the record and was insufficient in any case. Roper, ¶ 38 n.5.
Moreover, the specific admonition in Waller is against post hoc
rationalizations offered by an appellate court. And, finally, we again
note that we did not remand for the trial court to explain its
subjective thought processes but, rather, to make findings about
“objective, easily verifiable information that was largely not subject
to shifting recollections or interpretation,” for example the size,
shape, configuration (e.g., the number of rows and number of seats
per row in the gallery), and availability of the courtrooms at the time
of Roper’s trial. Id. at ¶ 42.
2. Adequacy of the Waller Findings
¶ 26 Having concluded that the remand was not futile, we turn to
whether the trial court made adequate findings on the Waller
factors. We conclude that it did.
¶ 27 In Roper, we concluded that the first Waller factor was met.
Roper, ¶ 19. Now, both parties agree and the trial court again
found, with record support, that the overriding interest was the
protection of all trial participants and spectators from contracting
12 or spreading COVID-19. We turn then to the adequacy of the trial
court’s findings as to the second and third Waller factors: whether
the closure was no broader than necessary and whether the court
considered reasonable alternatives.
a. Roper’s Proposed Alternatives During Trial
¶ 28 Roper first contends that the trial court never made sufficient
Waller findings on three other reasonable alternatives he proposed
at trial and again at the remand hearing: (1) a two-way video feed
displaying Roper’s family and friends to the parties and the jurors;
(2) informing jurors that Roper’s family and friends were present
and observing the trial in another courtroom; and (3) showing or
hanging photographs of Roper’s family and friends in the empty
jury box.
¶ 29 The trial court denied Roper’s request to notify the jury that
his friends and family were watching the trial and to have a screen
in the courtroom showing the participants who were watching. The
court also denied Roper’s suggestion to display pictures of his
family and supporters in the courtroom as a way of informing the
jurors and witnesses of their presence on the livestream. But the
13 court agreed — at Roper’s request — to advise each witness that the
trial was being observed via the livestream.
¶ 30 Roper does not explain how any of his proposed alternatives
were reasonable or necessary and we conclude that, as a matter of
law, they were not.2
¶ 31 As the trial court noted in the pretrial conference, a two-way
video feed was unnecessary. Advising the witnesses (and thereby
also advising the jury) that the members of the public were viewing
the trial via the livestream, coupled with visible cameras in the
courtroom, more than adequately reminded the participants and
witnesses that they were being watched. Roper does not explain
how the interests protected by a public trial would be better served
by the addition of a screen in the courtroom displaying those
members of the public who were viewing the trial.
¶ 32 Roper’s request that the court specifically inform the jury that
his family and friends were observing the trial exceeds what a
defendant is entitled to even in a public courtroom. The jury is
2 We do not endeavor to provide a post hoc rationalization of the
trial court’s decision. See Waller v. Georgia, 467 U.S. 39, 48-49, 49 n.8 (1984). Rather, we hold that Roper has failed to demonstrate that his proffered alternatives were reasonable ones.
14 rarely, if ever, informed of the identity of people who are seated in
the gallery observing the proceedings. And Roper provides no
authority suggesting that such information is required to be given
to the jury. Here, the court’s announcements that the public was
observing the trial via the livestream were sufficient to alert the
jurors that people were watching the trial.
¶ 33 Finally, Roper provides no support for his suggestion that he
be entitled to hang photographs of his family members on the walls.
Indeed, he does not articulate — nor can we see — how this would
have alleviated the effects of a courtroom closure any more than
informing the witnesses and jurors that the proceedings were being
livestreamed.
b. Supplemental Waller Findings
¶ 34 Regarding the court’s supplemental Waller findings in
particular, Roper contends that they are inadequate as to the
second and third factors because (1) the layout of the courtroom
that Roper’s trial took place in allowed at least one member of the
public to be in the room during opening statements and closing
arguments, (2) the larger jury selection courtroom was available for
Roper’s trial and at least one member of the public could have been
15 in that courtroom during trial, and (3) the court could have delayed
the trial.
i. Opening Statements and Closing Arguments
¶ 35 At the remand hearing, the People stated,
Your Honor, there was no room for anyone else in the courtroom outside of the jurors in the gallery. The one exception to that would be the jury box at the time of certain summation, but usually, again, if someone was at the witness stand, no one could sit in the jury box because we had that six[-]foot distance between the Prosecution, the witness, and anyone in the juror box. So the only way that could even be feasible was during opening statement or closing argument.
Roper contends that this was a concession by the People that one
person could have been placed in the jury box during opening
statements and closing arguments, and thus the court did not take
“every reasonable measure to ensure public attendance.”
¶ 36 First, we disagree that this was a concession by the People. It
was said in passing, as the prosecutor was arguing that the closure
was proper. Moments later, the same prosecutor unequivocally
stated that “it was just not possible” to accommodate the public in
the courtroom. Moreover, taking the prosecutor’s words at face
value, at most it was a concession that placing a single person in
16 the jury box for only those portions of the trial was feasible, not
that it was reasonable.
¶ 37 In its written order, the trial court enumerated most of the
People’s assertions from the hearing and then found that they were
accurate and adopted and incorporated them into the record. The
court did not explicitly adopt the People’s assertion that it was
feasible that a member of the public could have been in the
courtroom during opening statements and closing arguments.
Rather, the court described the layout and dimensions of the
courtroom where Roper’s trial took place, including that counsel
tables were moved to the outer edges of the courtroom in order to
allow for six-foot distancing to the lectern, the prosecution’s table
touched the jury box, the jury box measured six feet, four inches
from the wall to the front railing, and the witness stand was only
four feet, ten inches from the jury box railing. Given these findings,
it is far from clear that the trial court agreed with the People’s
assertion that someone could have been seated in the jury box
during opening statements and closing arguments, while complying
with social distancing requirements. Moreover, nothing in the
17 record other than the single remark made by the prosecutor
demonstrates that this was possible.
¶ 38 In any event, it is clear from the hearing transcript that no
one — not the prosecutor, not the judge, not even defense
counsel — treated the prosecutor’s remark as a concession that
putting a single member of the public in the jury box solely during
opening statements and closing arguments would have been a
reasonable alternative. See United States v. Veneno, 94 F.4th 1196,
1206 (10th Cir. 2024) (concluding that although the district court
could possibly have made room for a few members of the public by
rearranging the juror seating, doing so was not necessarily
reasonable at the height of the pandemic). Nor did Roper argue to
the trial court that allowing a single member of the public to sit in
the jury box only during opening statements and closing arguments
was a reasonable alternative to the closure. Thus, being made for
the first time on appeal, we decline to consider the contention now.
See People v. Greer, 262 P.3d 920, 930 (Colo. App. 2011) (declining
to review an alleged constitutional error first raised on appeal where
“the record may not be complete and the trial court was not
afforded an opportunity to rule”).
18 ii. Jury Selection Courtroom
¶ 39 Even assuming that the larger jury selection courtroom was
available for Roper’s trial, we reject Roper’s contention that because
the jury selection courtroom could fit twenty-two prospective jurors
in the gallery and in the jury box, at least one member of the public
could have been in the courtroom during trial. After detailing the
layout of the courtroom that was used for Roper’s trial, the trial
court found that the jury selection courtroom was only five feet
deeper and six feet wider than the courtroom used for Roper’s trial,
and the extra five feet of depth was from the front of the jury box to
the gallery railing. In other words, the gallery in the jury selection
courtroom was not significantly larger. Given these findings, had
the jury selection courtroom been arranged for trial in a similar
manner as the courtroom that was used for Roper’s trial, in order to
accommodate for social distancing, it still does not appear that
someone from the public could have been in the larger courtroom
during trial. Moreover, Roper failed to argue to the trial court that
this was a reasonable alternative, and being made for the first time
on appeal, we again decline to address it. See id.
19 iii. Delay
¶ 40 We continue to reject the argument that delay was a
reasonable alternative. As we noted in the order of limited remand,
the trial court began by considering and rejecting Roper’s request
for another continuance. Roper, ¶ 21. The court noted that the
offense was a sex offense (and thus M.G. had the right to object to
further delay) and that the case was “getting on to be two years
old.” Id. Thus, the court found that another continuance was not
appropriate. Id. We reiterate that under the circumstances, and
based on the court’s specific findings, we agree with the trial court.
¶ 41 Nor is Roper’s argument that the trial court deviated from the
Jury Trial Resumption Plan’s directive that only one felony trial
would take place at a time availing. As noted, it was determined
that two trials could safely take place in the courthouse as long as
the jury pools for each respective trial remained on opposite sides of
the courthouse.
¶ 42 In short, the trial court concluded that the public could not be
accommodated and that Roper’s proposed alternatives were not
reasonable. These findings have record support. As such we will
not disturb them. Therefore, we conclude that the supplemental
20 Waller findings are adequate to support the closure and thus turn
to Roper’s other appellate contentions. See Veneno, 94 F.4th at
1206 (concluding that the trial court made adequate Waller
findings, relying on a similar jury trial resumption plan, to justify a
similar closure).
3. First Amendment Public Trial Right
¶ 43 Roper also contends that the public’s and press’s First
Amendment public trial right was violated because they did not
have actual access to the proceedings due to the closure and the
limitations of the livestream with respect to (1) allowing the viewing
audience to see Roper; (2) displaying to the viewing audience the
surveillance videos being viewed in the courtroom; and (3) ensuring
that the detective could be heard when he moved away from the
microphone. He also contends that requiring jurors and himself to
wear masks further exacerbated the public’s actual access to the
trial and its ability to view it. The People contend that Roper lacks
standing to bring these claims. We agree with the People.
¶ 44 Roper cites no authority for the proposition that the right of
the press and public is any broader than a defendant’s public trial
right. Nor has he shown that he has standing to enforce such a
21 right. He has cited no case, nor are we aware of any, in which a
defendant brought a violation of the First Amendment public trial
right claim on behalf of the public or press. See City of Greenwood
Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427, 439
(Colo. 2000) (“The third-party standing rule prevents a party from
asserting the claims of third parties who are not involved in the
lawsuit.”). We therefore do not decide these contentions. See
Boudette v. State, 2018 COA 109, ¶ 13 (“Standing is a threshold
issue that must be satisfied in order to decide a case on the merits.”
(quoting Ainscough v. Owens, 90 P.3d 851, 855 (Colo. 2004))).
III. Face Mask Requirements
¶ 45 Roper contends that requiring jurors to wear face masks
impeded face-to-face interactions and gave jurors a “sense of
anonymity,” generally alluding to a violation of his public trial right,
right to confrontation, right to challenge jurors, and due process
rights. Roper also contends that the trial court erred by denying his
request that the prosecutor provide him with a clear mask and that
this denial violated his right to confrontation. We reject both
contentions and discern no constitutional violation.
22 A. Standard of Review and Applicable Law
¶ 46 “We review de novo whether a Confrontation Clause violation,
or other constitutional violation, occurred.” People v. Garcia, 2022
COA 144, ¶ 13.
¶ 47 “A trial court’s management of the courtroom is . . . reviewed
for an abuse of discretion.” Id. at ¶ 14. “An abuse of discretion
occurs when the trial court’s decision is manifestly arbitrary,
unreasonable, unfair, or based on an erroneous understanding of
the law.” Id.
¶ 48 “The Sixth Amendment to the United States Constitution and
article II, section 16 of the Colorado Constitution provide criminal
defendants with the right to be confronted with the witnesses
against them.” People v. Hernandez, 2021 CO 45, ¶ 19. Generally,
confrontation rights include the right to the physical presence of a
witness, testimony of the witness under oath, cross-examination of
the witness, and observation of the witness’ demeanor. Id.
B. Analysis
1. Requiring Jurors to Wear Face Masks
¶ 49 After Roper filed his opening brief a division of this court held
that a requirement that prospective and impaneled jurors wear
23 masks during jury selection and at trial during the COVID-19
pandemic did not raise constitutional concerns. See Garcia, ¶¶ 16-
26. In Garcia, the division concluded that a defendant can still
assess a juror’s credibility and demeanor during voir dire and trial
while the juror is wearing a face mask. Id. at ¶ 20. Moreover, the
division stated that it was aware of no authority holding that
defendants have a constitutional right to see jurors’ uncovered
facial expressions during trial. Id. at ¶ 21. And Roper cites no
such authority. Nor does he respond to the People’s argument that
we should follow Garcia and reject his claims. We consider Garcia
to be well reasoned and follow it here.
2. Roper’s Request for a Clear Mask
¶ 50 Before the trial resumed on the second day, defense counsel
asked the trial court to order the prosecution to provide Roper with
a clear mask because defense counsel was unable to obtain one.
The trial court denied the request, stating that it was up to defense
counsel to provide his client with a clear mask. The record is
unclear as to whether the prosecutor provided a clear mask to
Roper. But even assuming that Roper did not wear a clear mask
24 during trial, we discern no error in the trial court’s ruling or any
constitutional violation stemming from that ruling.
¶ 51 As noted, the Jury Trial Resumption Plan provided that
“[a]ttorneys may provide clear masks for themselves and their
clients, as well as for witnesses to use during their testimony.” The
trial court denied Roper’s request in accordance with the Jury Trial
Resumption Plan, and we discern no abuse of discretion in doing
so. Indeed, had defense counsel provided Roper with a clear mask
so the jurors could see his face, it would have obviated the issues
he now raises. In other words, the trial court did not deprive Roper
of the opportunity to allow the jurors to see his full face. Further,
this denial, which purportedly resulted in Roper not wearing a clear
mask, did not violate Roper’s confrontation right. Cf. Garcia, ¶ 32
(concluding that the limitation on some jurors’ ability to see the
defendant’s entire face during the trial, because they were seated in
the gallery due to COVID-19 spacing requirements, did not violate
the defendant’s right to confrontation).3
3 Roper also asserts, without citing authority or developing an
argument, that the trial court’s denial of his request for a clear mask violated “his due process right to a fair trial generally.” We do
25 IV. Sufficiency of the Evidence
¶ 52 Roper contends that there was insufficient evidence to convict
him of sexual assault (victim helpless) and sexual assault (victim
incapable of appraising the nature of her conduct). We disagree.
A. Standard of Review
¶ 53 “[W]e review the record de novo to determine whether the
evidence before the jury was sufficient both in quantity and quality
to sustain the convictions.” Dempsey v. People, 117 P.3d 800, 807
(Colo. 2005). We view the evidence as a whole and in the light most
favorable to the prosecution to determine whether the evidence was
“sufficient to support the conclusion by a reasonable mind that the
defendant was guilty beyond a reasonable doubt.” People v. Griego,
2018 CO 5, ¶ 24. In doing so, we give the prosecution “the benefit
of every reasonable inference which might be fairly drawn from the
evidence.” People v. Perez, 2016 CO 12, ¶ 25 (quoting People v.
Gonzales, 666 P.2d 123, 128 (Colo. 1983)). It is the role of the jury
to weigh the credibility of witnesses and to resolve conflicting
not consider this “bald legal proposition presented without argument or development.” People v. Rios, 2020 COA 2, ¶ 7 n.1; see also C.A.R. 28(a)(7)(B).
26 testimony. People v. Poe, 2012 COA 166, ¶ 14. We may not
substitute our judgment for the jury’s or reweigh conflicting
evidence or witness credibility. Id.
B. Applicable Law
¶ 54 A person commits sexual assault (victim physically helpless)
when they “knowingly inflict[] sexual intrusion or sexual
penetration on a victim . . . [and t]he victim is physically helpless
and the actor knows the victim is physically helpless and the victim
has not consented.” § 18-3-402(1)(h), C.R.S. 2024. Physically
helpless “means unconscious, asleep, or otherwise unable to
indicate willingness to act.” § 18-3-401(3), C.R.S. 2024.
¶ 55 A person commits sexual assault (victim incapable of
appraising the nature of her conduct) when they “knowingly inflict[]
sexual intrusion or sexual penetration on a victim . . . [and t]he
actor knows that the victim is incapable of appraising the nature of
the victim’s conduct.” § 18-3-402(1)(b). “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.” Platt v. People, 201 P.3d 545, 548
(Colo. 2009). A victim who is extremely intoxicated may be
27 incapable of appraising the nature of their conduct. See People in
Interest of J.R., 216 P.3d 1220, 1222 (Colo. App. 2009); People v.
Lancaster, 2022 COA 82, ¶¶ 19-20; People v. Martinez, 2020 COA
141, ¶¶ 45-49.
¶ 56 “Subsections (b) and (h) are not mutually exclusive. Instead,
the same conduct may, depending on the evidence, violate both
sections.” Platt, 201 P.3d at 548.
C. Analysis
¶ 57 Roper contends that there was insufficient evidence to show
that M.G. was physically helpless or incapable of appraising the
nature of her conduct and that Roper knew she was physically
helpless or incapable of appraising the nature of her conduct. We
disagree with both contentions.
¶ 58 Roper specifically contends that although M.G. testified that
she did not remember anything from that evening, “evidence
demonstrated that she appeared conscious, awake, and able to
indicate willingness to act,” specifically that she appeared awake
and conscious before and after the assault. But merely pointing to
evidence supporting his defense does not mean that there was
insufficient evidence to support the conviction. See People v. Oliver,
28 2020 COA 150, ¶ 6 (“A conviction will not be set aside merely
‘because a different conclusion might be drawn from the evidence.’”
(quoting People v. Tumbarello, 623 P.2d 46, 49 (Colo. 1981))).
¶ 59 Rather, viewing the evidence as a whole and in the light most
favorable to the prosecution, and giving the prosecution the benefit
of every reasonable inference, we conclude the evidence was
sufficient to sustain Roper’s convictions for both sexual assault
(physically helpless) and sexual assault (victim incapable of
appraising the nature of her conduct).
¶ 60 With respect to whether M.G. was physically helpless, the
evidence reflected that Roper was with M.G. while she was drinking
and witnessed her exhibiting outward signs of extreme intoxication.
He knew she had been sent home from the laser tag event. He
knew she got even more intoxicated during the Uber drive. Cf.
Martinez, ¶ 48 (concluding that evidence of the victim’s intoxication
allowed the jury to infer that the victim was highly intoxicated —
and exhibited outward signs of impairment — during her encounter
with the defendant). A sorority sister testified that when the group
walked in on Roper penetrating M.G., M.G. appeared unconscious.
M.G. was unresponsive to the group’s yelling and was not moving,
29 and she could not walk or dress herself. Based on this evidence,
the jury could have concluded that she was unconscious during the
sexual assault, and that Roper knew she was unconscious. See
J.R., 216 P.3d at 1222 (concluding that the evidence was sufficient
to support a finding that the victim was physically helpless).
¶ 61 Further, we reject Roper’s argument that M.G. was alert and
oriented and able to describe what had occurred between her and
Roper and thus was not “otherwise unable to indicate willingness to
act.” There was evidence that M.G. was unable to move on her own
immediately following the assault, and a reasonable inference would
have been that she could not indicate willingness to act during the
assault due to her physical incapacity, and that Roper knew it.
¶ 62 Roper contends that for the same reasons, the evidence was
insufficient to convict him of sexual assault (victim incapable of
appraising the nature of her conduct). But the same evidence
shows that M.G. was unable to appreciate the nature of her
conduct, and that Roper knew it. Additionally, the evidence
reflected that M.G.’s tampon had not been removed when Roper
assaulted her, which further supports the conclusion that she did
not understand what she was doing. See Platt, 201 P.3d at 548.
30 ¶ 63 In sum, we conclude the evidence was sufficient to convict
Roper of both types of sexual assault.
V. Jury Questions
¶ 64 Roper contends that the trial court erred by failing to provide
further guidance to the jury in its answers to two jury questions.
We agree with the People, however, that Roper waived this
contention.
¶ 65 During deliberation, the jury sent two questions to the trial
court:
(1) “We would like further explanation of ‘unable to indicate
willingness to act;’” and
(2) “Is there any further legal definition of incapable of
appraising the nature of conduct?”
¶ 66 The prosecutor requested that “the Court should instruct
them that they have all of the instructions of law that they will be
provided related to this.” Defense counsel responded,
Generally, I agree with that. I think the language I have seen as you had been provided the legal definitions for all words which have a legal definition, and either leave it at that, or then I think there’s some case law that suggests if they keep asking or if they’re not sure that this common usage is something
31 that’s been tested by appellate courts. So I think we’re in accord, generally; how to phrase it specifically, I’d defer to the Court. But I think they’ve been given what they can and they need to apply common usage for those that they don’t have a definition for.
The trial court asked, “That’s if they persist in asking for direction?”
And defense counsel responded, “I think that’s right.” The trial
court then said, “Okay. My thought would be this. This verbiage
would be, you’ve been provided the legal definition for all words that
have a legal definition.” After discussing the second juror question,
defense counsel agreed with the prosecutor that the court should
answer this question the same way it planned to answer the first.
¶ 67 Roper waived any challenge to the sufficiency of the trial
court’s answers to the two jury questions by affirmatively agreeing
with the answer to both. See People v. Dunlap, 124 P.3d 780, 817
(Colo. App. 2004) (“When a defendant actively participates in the
preparation of a response to the jury, or expressly agrees to it, he or
she is prevented from asserting error with respect to that
response.”). Accordingly, we will not consider this claim. See
Rediger v. People, 2018 CO 32, ¶ 40 (“[W]aiver extinguishes error,
and therefore appellate review . . . .”).
32 VI. Constitutionality Challenges to Statutes
¶ 68 Finally, Roper lodges facial and as-applied challenges to the
constitutionality of three statutes. In particular, he contends that
(1) section 18-3-402(1)(h) (sexual assault where the victim is
physically helpless) is unconstitutionally vague both on its face and
as applied to him; (2) section 18-3-402(1)(b) (sexual assault where
the victim is incapable of appraising their own conduct) is
unconstitutionally vague as applied; and (3) the voluntary
intoxication statute is unconstitutional both facially and as applied.
¶ 69 Roper concedes that none of his constitutional challenges was
preserved. While we generally do not address as-applied challenges
that are not presented to the district court, we may do so in the
interest of judicial economy and where, despite the lack of an
objection, the record is sufficient to do so. People v. Price, 2023
COA 96, ¶ 47. Roper urges us to consider his claims and assures
us that we have a sufficient record to do so. We agree the record is
sufficient and accordingly, we exercise our discretion to address his
claims. In doing so, we reject them.
¶ 70 Because each of the claims was unpreserved, we review each
claim for plain error. Hagos v. People, 2012 CO 63, ¶ 14. To be
33 plain, an error must be obvious, meaning that it “contravene[d] a
clear statutory command, a well-settled legal principle, or
established Colorado case law.” People v. Crabtree, 2024 CO 40M,
¶ 42. Roper points to no such command, principle, or case law in
existence at the time of trial for any of the three statutory provisions
he now attacks. To the contrary, two of the three provisions have
been explicitly held to be constitutional. See People v. Gross, 670
P.2d 799, 801 (Colo. 1983) (holding that the provision regarding
sexual assault when “the actor knows that the victim is incapable of
appraising the nature of the victim’s conduct” was not
unconstitutionally vague); People v. Stone, 2020 COA 23, ¶ 20
(rejecting a constitutional challenge to the voluntary intoxication
statute).
¶ 71 Because Roper does not identify any obvious error, his
constitutional challenges must fail.
VII. Disposition
¶ 72 The judgment is affirmed.
JUDGE BROWN and JUDGE SCHOCK concur.