People v. Mena.
2025 COA 14. No. 22CA0563. Colorado Constitution—Equal Protection—Sexual Assault on a Child—Unlawful Sexual Conduct—Inducement or Coercion of a Child—Victim Impact Evidence.
February 6, 2025
Mena was charged with several crimes in connection with the sexual assault of K.B., his then 12-year-old step-granddaughter. Mena admitted to masturbating in front of K.B, “grazing” her vagina, and taking photos of K.B. while she was clothed, but he denied all other allegations. K.B. testified at trial about how the assault affected her and her family emotionally, and her trust in others, and how her behavior changed after the assault. Mena was found guilty of sexual exploitation of a child, sexual assault on a child (SAOC), unlawful sexual contact (coerce child), and enticement of a child. Mena was also convicted of misdemeanor indecent exposure. The trial court sentenced Mena to six years in Department of Corrections (DOC) custody on the exploitation charge and indeterminate prison terms of six years to life on the remaining felony charges. The indeterminate sentences were imposed to run concurrently with each other but consecutively to the six-year term on the exploitation charge. In addition, the court imposed a concurrent six-month sentence on the indecent exposure charge, to be served in the DOC.
On appeal, Mena contended that the trial court erred by admitting K.B.’s testimony about the effects of the assault. Mena maintained that the challenged testimony was irrelevant because it did not impact K.B.’s credibility or establish the elements of the charged offenses. The court of appeals held that an alleged sexual assault victim’s emotional and psychological reaction to a sexual assault may be relevant to the victim’s credibility and to whether the sexual assault actually happened. Here, K.B.’s statements were relevant to her credibility because her emotional and behavioral responses are consistent with the experiences of sexual abuse victims. Further, any unfair prejudice that might arise from the jury sympathizing with K.B. was not likely to substantially outweigh this relevance. Accordingly, the trial court did not err.
Mena also argued that there was insufficient evidence to prove the required elements of unlawful sexual contact (coerce child) under CRS § 18-3-404(1.5). Section 18-3-402(1) lists eight ways by which a child may be induced or coerced under § 18-3-404(1.5). The court construed §§ 18-3-402(1)(d) and 404(1.5) to require that the prosecution prove that when the act was committed, the victim was less than 15 years old and the actor was at least four years older than the victim and was not the victim’s spouse; and that the act resulted in the victim exposing intimate parts or engaging in unlawful sexual contact. Here, the evidence proved that K.B. was under 15, that Mena was significantly more than four years older than her and not her spouse, and that Mena subjected her to unlawful sexual contact. Based on these facts, it was reasonable for the jury to find that the essential elements of unlawful sexual contact (coerce child) were satisfied beyond a reasonable doubt.
Mena further contended that, as applied to him, his conviction for unlawful sexual contact (coerce child) under § 18-3-404(1.5) violates Colorado’s equal protection doctrine because, as charged and prosecuted in this case, that statute proscribes the same or lesser conduct as the offense of SAOC under § 18-3-405(1), but the former statute has a harsher penalty than the latter. The court determined that where, as here, the prosecution chooses to prove coercion or inducement through simply the existence of a nonmarital relationship with the prohibited age difference, unlawful sexual contact (coerce child) proscribes exactly the same conduct that SAOC does. The only difference between the two crimes is that SAOC requires sexual contact, while unlawful sexual contact (coerce child) can be accomplished either with unlawful sexual contact or exposing the child’s intimate parts. Thus, the latter offense prohibits either the exact conduct or less egregious conduct; but the offense that does not require contact carries a mandatory prison sentence, while the crime with the more egregious result does not. Accordingly, as charged here, Mena’s disparate punishments for unlawful sexual contact (coerce child) and SAOC violated his Colorado constitutional rights. In addition, because Mena’s remaining convictions are eligible for probation sentences, the court could not discern whether the trial court would have considered a probation sentence without the mandatory prison sentence required by the vacated conviction. Mena is thus entitled to a new sentencing hearing at which the court can consider a probation sentence.
The conviction for unlawful sexual contact (coerce child) was vacated. The remaining convictions were affirmed. The case was remanded for a new sentencing hearing on all counts other than unlawful sexual contact (coerce child).