Background
B.B. had been drinking at a friend’s home before leaving with Nicholas William Gallegos, whom she had known for about twenty years. She testified that her intoxication was a nine or ten out of ten after they returned to her home, where they drank beer and lay down on bedding in her living room. She remembered nothing further that night.
The next morning, B.B. found she was wearing no shorts and reviewed motion-activated camera footage from her home. A kitchen camera recorded Gallegos naked and thrusting behind B.B. Gallegos told officers that he had performed oral sex on B.B. but stopped after she fell asleep. A jury convicted him of sexual assault based on B.B.’s incapacity to appraise the nature of her conduct and unlawful sexual contact; the trial court merged the convictions and imposed an eight-years-to-life indeterminate sentence.
The Court’s Holding
The Colorado Court of Appeals affirmed. Viewing the evidence in the light most favorable to the prosecution, the court concluded that sufficient evidence supported the jury’s finding that B.B. was incapable of appraising the nature of her conduct.
Witnesses described B.B.’s drinking and intoxication, and B.B. testified that she had no memory of driving home or of the events after sitting on the couch. Multiple witnesses said the video showed or captured B.B. snoring and appearing asleep. That evidence permitted the jury to find both that B.B. was asleep and incapable of appraising her conduct and that Gallegos knew of that incapacity. The videos’ failure to depict the entire evening did not undermine the sufficiency of the evidence.
Key Takeaways
- Evidence that a victim was asleep can establish incapacity to appraise the nature of the victim’s conduct under Colorado’s sexual-assault statute.
- Video footage, witness testimony, and evidence of intoxication may collectively support an inference that the defendant knew of the victim’s incapacity.
- Appellate courts do not reweigh conflicting evidence or reassess witness credibility when reviewing a jury verdict for sufficiency.
Why It Matters
The decision illustrates that the prosecution need not present a complete recording of an encounter to prove sexual assault. Evidence showing the victim’s intoxication, lack of memory, and apparent sleep during recorded sexual activity may be sufficient for a rational jury to find incapacity and the defendant’s knowledge beyond a reasonable doubt.