Background
David Lee Rewerts was convicted of sexual assault on a child by a person in a position of trust and aggravated incest involving his daughter, K.R., who is nonverbal and developmentally delayed. The convictions rested on Rewerts touching K.R.’s breasts; he also admitted touching high on her thigh and said K.R. touched his penis.
Rewerts disclosed the conduct to his wife and older daughter, repeated it during a later family mediation, and wrote an apology letter. He told police he touched K.R. to see whether she would react, rather than for sexual gratification. A jury convicted him, and the trial court imposed nine months of work release plus sex-offender intensive supervised probation for an indeterminate term of twenty years to life.
The Court’s Holding
The Colorado Court of Appeals affirmed. It held that the trial court plainly erred by instructing jurors that sexual contact includes touching that “can reasonably be construed” as being for sexual arousal, gratification, or abuse. The current statute instead requires that the touching actually be for one of those purposes, and Colorado precedent had expressly disapproved the older wording.
But the unpreserved instruction error was not structural and did not warrant reversal under plain-error review. The court concluded that substantial circumstantial evidence supported a finding of sexual purpose, including the nature of the touching, Rewerts’ statements about marital intimacy problems and sexual temptation, and his apologies. Those facts also sufficiently corroborated the reliability of his repeated admissions, supporting the convictions.
Key Takeaways
- An instruction using the superseded “can reasonably be construed” sexual-contact language is erroneous.
- Such an unpreserved instructional error is reviewed for plain error, not automatically reversible structural error.
- A sexual purpose and the trustworthiness of a defendant’s confession may be established through circumstantial evidence.
Why It Matters
The decision distinguishes an erroneous sexual-contact instruction from a structural reasonable-doubt error. Even when an instruction improperly relaxes the wording of an element, reversal requires the defendant to satisfy the applicable plain-error standard if no contemporaneous objection was made.
It also underscores that Colorado’s confession-corroboration rule focuses on whether other evidence supports the confession’s reliability, rather than requiring independent proof of every element or an express confession to each element.