Platt v. People

201 P.3d 545, 2009 WL 311844

• Court: Supreme Court of Colorado
• Decided: February 9, 2009
• Docket: 07SC573
• Status: Published

Opinions

Justice EID

delivered the Opinion of the Court.

Petitioner Bruce Platt was charged with- and convicted by a jury of-one count of sexual assault under section 18-3-402(1)(b), C.R.S. (2008) ("subsection (b)"), which erimi-nalizes sexual assault when "[the actor knows that the victim is incapable of appraising the nature of [her] conduct." On appeal, Platt argued that because the victim was asleep, he could only be charged with sexual assault under section 18-3-402(1)(b), C.R.S. (2008) ("subsection (h)"), which criminalizes sexual assault when "[t]he victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented." - Section 18-8-401(8), CRS. (2008), defines "physically helpless" as "unconscious, asleep, or otherwise unable to indicate willingness to act." (emphasis added). As a result of the charging decision, Platt continued, he was improperly deprived of an opportunity to present a consent defense and to instruct the jury on consent.

The court of appeals affirmed Platt's conviction, People v. Platt, 170 P.3d 802, 803 (Colo.App.2007), and we now affirm the court of appeals. Platt's conduct involved a sleeping victim. Depending on the evidence, such conduct reasonably falls within two statutory provisions-subsection (b), involving victims who are cognitively unable to understand the nature of their conduct, and subsection (h), involving physically helpless victims. When a defendant's conduct reasonably falls within two statutes, the prosecution has discretion to select under which statute to proceed; the question then becomes whether there is sufficient evidence to support the conviction. Here, we find that there is sufficient evidence to support Platt's conviction under subsection (b) because the victim was asleep and thus unable to understand the nature of her conduct. Under our decision in Dunton v. People, 898 P.2d 571, 578-74 (Colo.1995), the requirement that the prosecution prove under subsection (b) that the victim was incapable of appraising the nature of her conduct at the time of the alleged assault necessarily "negates the existence of the victim's consent." Id. at 573. Therefore, while a defendant may introduce evidence that the victim was in fact capable of appraising the nature of her conduct, as Platt did in this case, he is not permitted to present a defense of consent per se, nor is he entitled to a jury instruction concerning consent. Id. We therefore find that Platt was not improperly deprived of an opportunity to present a consent defense or to instruct the jury on consent.

1.

In 2002, Platt moved into a house shared by the victim and her boyfriend. One night in December 2002, the victim had fallen asleep on a couch in the house. She was awakened at 3:00 a.m. by Platt, who was fondling her genital area and digitally penetrating her vagina. The victim was in a state of partial sleep. She initially thought that it was her boyfriend who was fondling her. When she opened her eyes, however, she realized immediately that it was Platt. She swore at Platt loudly and kicked him off of her. Platt left the house, but was quickly apprehended by the police and confessed to sexually assaulting the victim.

Platt was charged with one count of sexual assault under section 18-3-402(1)(b), which provides that "[alny actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits a sexual assault if ... [tlhe actor knows that the victim is incapable of appraising the nature of [her] conduct." Prior to trial, the prosecution moved to amend this charge to section 18-3-402(1)(h), which eriminalizes sexual assault of a victim who is "physically helpless," defined as "unconscious, asleep, or otherwise unable to indicate willingness to act." § 18-3-401(8). The People withdrew this motion, however, and Platt remained charged pursuant to subsection (b)¹

At trial, the prosecution presented evidence that the victim was in a state of partial sleep and that Platt knew she was sleeping. The prosecution also produced a written statement by Platt in which he admitted that "I touched [the victim] with my hand and penitrated [sic] her with my finger." The prosecution further demonstrated that Platt admitted to the police in an interview that the victim had not given him "any hints that it would be okay to touch her," and he knew that the victim "would be angry ... if someone did that to her." The defense cross-examined the victim, who testified that she had initially enjoyed the touching and had allowed it to continue for several seconds before realizing that it was not her boyfriend who was touching her. She also testified that she "went to draw" Platt close to her, mistakenly thinking he was her boyfriend, but immediately realized he was not and forcefully kicked him off of her. The trial court refused Platt's request that the jury be instructed on the defense of consent. The jury convicted Platt, and he was sentenced to six years imprisonment.

Platt appealed his conviction to the court of appeals, which affirmed. Platt, 170 P.3d at 808. The court of appeals reasoned that Platt's conduct could fall within either subsection (b) or (h), and that, because the vice-tim was partially asleep, the evidence was sufficient to support his conviction under subsection (b). In addition, the court of appeals held that the trial court properly declined Platt's request that the jury be instructed on the defense of consent. Id.

We granted certiorari to consider whether a sleeping victim can be "incapable of appraising the nature of her conduct" under subsection (b).² We find that, depending on the evidence, a sexual assault involving a sleeping victim may reasonably fall under either subsection (b) or (h). When a defendant's conduct reasonably falls within two statutes, the prosecution has discretion to select under which statute to proceed; the question then becomes whether there is sufficient evidence to support the conviction. In this case, there was sufficient evidence to support Platt's conviction under subsection (b) because the sleeping victim was incapable of understanding the nature of her conduct. Under our decision in Dunton v. People, 898 P.2d 571, 578-74 (Colo.1995), proof that a victim is incapable of understanding the nature of her conduct necessarily negates the defense of consent. Therefore, while a defendant may introduce evidence that the vie-tim was in fact capable of appraising the nature of her conduct, as Platt did in this case, he is not permitted to present a defense of consent per se, nor is he entitled to a jury instruction concerning consent. Id. at 578. We therefore affirm the court of appeals.

II.

Subsection (b) eriminalizes sexual assault when "[the actor knows that the victim is incapable of appraising the nature of [her] conduct." Subsection (h) criminalizes sexual assault when "[the victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented," with "physically helpless" defined as "unconscious, asleep, or otherwise unable to indicate willingness to act." § 18-83-4018) (emphasis added). 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. By contrast, subsection (h) addresses the situation of a physically helpless vietim.

In this case, Platt argues that the prosecution could only proceed under subsection (h) because that subsection specifically addresses a sleeping victim. We disagree. Platt's conduct falls squarely within the language of subsection (b), because a victim who is asleep may be cognitively "incapable of appraising the nature of [her] conduct." Platt's conduct could have also fallen under subsection (h), depending on the evidence, because a victim who is asleep may be "physically helpless." Subsections (b) and (h) are not mutually exclusive. Instead, the same conduct may, depending on the evidence, violate both sections. "Itis ... well established that a single act may give rise to the violation of more than one eriminal statute." People v. Owens, 670 P.2d 1233, 1237-38 (Colo.1983).

The facts of this case illustrate how conduct can fall within both statutory provisions, depending on the evidence. Prior to trial, the prosecution moved to amend the charge against Platt to subsection (h), involving the sexual assault of a physically helpless victim, although the motion was withdrawn before trial. Had the prosecution continued to proceed under subsection (h), it would have been required to prove that the victim was "physically helpless," either because she was "unconscious," "asleep," or "otherwise unable to indicate willingness to act." § 18-3-401(8). Yet the victim in this case was not fully "asleep" nor was she unconscious, and she may or may not have been physically able "to indicate [her] willingness to act." In other words, had the prosecution proceeded under subsection (h), it might not have been able to prove that the victim was physically helpless. The prosecution also faced difficulties with regard to proceeding under subsection (b), in that it had to prove that the victim was in a sufficient state of sleep so as to be incapable of appraising the nature of her conduct.

When conduct reasonably falls within two statutes, the prosecution must be afforded discretion in choosing under which statute to charge the defendant. See People v. Dist. Ct., In and For the Tenth Jud. Dist., 632 P.2d 1022, 1024 (Colo.1981). Here, the prosecution assessed the evidence and decided to proceed under subsection (b). The question then becomes, given the decision to proceed under subsection (b), whether there is sufficient evidence to support the convietion under subsection (b). We hold that evidence in this case-that the victim was partially asleep-was sufficient to support Platt's conviction under subsection (b), because a sleeping victim may be incapable of appraising the nature of her conduct.

Under Platt's interpretation, any time a victim is asleep-whether partially, fully, or something in between-a case must proceed under subsection (h). Yet this interpretation fails to recognize that there may be some cases where the victim, depending on the evidence, could arguably be both cognitively incapable of assessing her conduct (under subsection (b)) and physically helpless (under subsection (h)). The question in this case is not governed by the principle of statutory construction that a more specific statute trumps a more general statute. See Bd. of County Comm'rs of Douglas County v. Bainbridge, 929 P.2d 691, 698 (Colo.1996). Here, we have two equally specific statutee-one that addresses a victim who is cognitively unable to appreciate the nature of her conduct, and one that addresses a victim who is physically helpless. The fact that the statute lists a sleeping victim as an example of a victim who is physically helpless under subsection (h) does not mean that same victim cannot be cognitively unable to understand her conduct under subsection (b). Again, it depends on the evidence.

Platt also argues that his conduct could not fall under subsection (b) because that section should be interpreted to apply only where the victim is incapable of understanding her conduct due to a mental impairment. He bases this argument on the statutory predecessor to subsection (b), which provided that "[aluy male who has sexual intercourse with a female person not his spouse, commits gross sexual imposition if ... [hle knows or reasonably should know that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct." § 40-3-402(1)(b), C.R.S. (1971) (emphasis added).

In 1975, the General Assembly repealed the law and reenacted it as section 18-3-408(1)(c), C.R.S. (1975), which contained virtually identical language to the present-day subsection (b).³ The 1975 statute removed the "mental disease or defect" restriction altogether. See id.

Platt cites legislative discussions in 1975 to support the proposition that subsection (b) applies only to situations where the victim has a mental impairment. Somewhat coun-terintuitively, Platt argues that by expressly removing the "mental disease or defect" language, the General Assembly still intended to limit the section to victims with mental impairments.

We agree with Platt to the extent that subsection (b) can apply to instances where the victim has a mental impairment. However, we also believe that by specifically removing the mental impairment language from the statute, the General Assembly intended to broaden the section's applicability beyond situations involving mental impairment. As the statute now stands, it applies where the vie-tim is "incapable of appraising the nature of [her] conduct"; in this case, the conduct in question falls comfortably within this statutory language.

Finally, Platt argues that the decision to charge him under subsection (b) improperly deprived him of his ability to present evidence of the victim's alleged consent-a defense that is expressly provided for in subsection (h). § 18-8-402(1)(h) (requiring the prosecution to prove that "[the victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented") (emphasis added). In addition, he argues that the trial court should have instructed the jury on the defense of consent. Again, we disagree.

The Colorado sexual assault statute, seetion 18-3-402, defines and proscribes various conduct constituting sexual assault. In Dun-ton, the defendant argued that the jury should have been given "a special instruction requiring the prosecution to show his awareness of the victim's nonconsent." 898 P.2d 571, 572 (Colo.1995). We disagreed, reasoning that "[wiith the exception of subpart [(h)], the statute prohibits conduct which by its very nature negates the existence of the victim's consent." Id. at 573. In other words, the "statute equates the victim's nonconsent with proof that the defendant has caused the victim's submission.... These acts of the defendant cause the victim to be unable to consent." ⁴ Id. at 573. Thus, with the exception of subsection (h), proof of all the elements of an offense under section 402 equates with proof of the victim's nonconsent.

Our reasoning in Dunton applies here. Under subsection (b), the prosecution must prove that the defendant "[knew] that the victim [was] incapable of appraising the nature of [her] conduct." Such proof necessarily negates any consent defense. We therefore agree with the court of appeals in this case that "[blecause a person who cannot appraise the nature of his or her conduct cannot validly consent to sexual intrusion or sexual penetration, proof of the elements of [subsection (b) ] necessarily constitutes proof of the absence of consent by the victim." Pictt, 170 P.3d at 805. While a defendant may introduce evidence that the victim was in fact capable of appraising the nature of her conduct, as Platt did in this case, he is not permitted to present a defense of consent per se, nor is he entitled to a jury instruction concerning consent. The trial court thus properly refused to instruct the jury on consent, and instead correctly instructed the jury that it had to find that Platt acted "with knowledge that [the victim] was incapable of appraising the nature of her conduct."

Here, the relevant questions before the jury were whether "the victim [was] incapable of appraising the nature of [her] conduct," and whether Platt knew of her incapacity. - The defendant admitted in statements to police that he knew that the victim was asleep when he began to assault her. He also admitted that the victim had not given him "any hints that it would be okay to touch her," and that he knew that the victim "would be angry ... if someone did that to her." Indeed, the victim immediately kicked him away and swore at him loudly upon realizing it was Platt-not her boyfriend-who had been touching her. See § 18-1-505(8)(d), C.R.S. (2008) ("[Alssent does not constitute consent if [it] is induced by force, duress, or deception."). Platt attempted to counter this evidence by eliciting cross-examination testimony of the victim stating that she had enjoyed the touching at first and had allowed it to continue for several seconds before realizing that it was Platt-not her boyfriend-who was touching her.

The prosecution was required to prove beyond a reasonable doubt that Platt "knew that the victim [was] incapable of appraising the nature of [her] conduct." Platt had an adequate opportunity to present evidence of the victim's alleged consent in his attempt to demonstrate that the prosecution had not met this burden. The jury considered the evidence and concluded that the prosecution had proven its case-thus negating any consent defense Platt might have had. We therefore find that the Platt was not improperly deprived of his ability to present evidence of the victim's alleged consent, and that the trial court properly refused to instruct the jury on consent.⁵

HIL.

We hold that there was sufficient evidence to support Platt's conviction under section 18-3-402(1)(b) because the victim was sleeping and therefore unable to understand the nature of her conduct. We also find that Platt was not improperly deprived of an opportunity to present a defense of consent or to instruct the jury on consent. We therefore affirm the court of appeals.

Justice HOBBS dissents, and Justice MARTINEZ and Justice BENDER join in the dissent.

1 . He was also originally charged with one felony count of failure to register as a sex offender, which was pled down to a misdemeanor of the same offense.

2 . We granted certiorari on the following question: "Whether a sleeping victim is "incapable of appraising the nature of her conduct' within the meaning of section 18-3-402(1)(b), CRS. (2007)."

3 . In 2000, the General Assembly amended the statute to merge the varying degrees of sexual assault into section 18-3-402, C.R.S. (2000).

4 . The sexual assault statute in place when we considered Dunton, § 18-3-402, C.R.S. (1995), did not yet contain subsection 402(1)(b), which merged into section 402 from section 18-3-403, C.R.S. (1975). Nonetheless, the analysis we used in Dunton is fully applicable to today's subsection 402(1)(b), which proscribes conduct that inherently negates any consent by the victim.

5 . At oral argument, counsel for defense argued that if conduct involving sleeping victims were permitted to fall within subsection (b), it would be possible to convict a defendant of sexually assaulting a sleeping victim even though the victim had consented to such touching. This is not the case. Where such a "victim" has consented to the touching, then that "victim"" would not be "incapable of appraising the nature of [her] conduct" because the "conduct" at issue would be exactly what she had consented to-sexual activity between consenting individuals-and the prosecution would thus be unable to present sufficient evidence under subsection (b).