Peo v. Peiffer

18CA2246 Peo v Peiffer 12-16-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 18CA2246

Douglas County District Court No. 17CR528

Honorable Shay K. Whitaker, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James E. Peiffer,

Defendant-Appellant.

JUDGMENT AND SENTENCE AFFIRMED

Division V

Opinion by JUDGE HARRIS

Richman and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced December 16, 2021

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

James E. Peiffer, Pro Se

1

¶ 1 Defendant, James E. Peiffer, appeals the judgment of

conviction and sentence entered after a jury found him guilty of two

counts of sexual assault on a child as part of a pattern of sexual

abuse.

¶ 2 He contends that the evidence was insufficient to support his

convictions, the trial court admitted irrelevant and unfairly

prejudicial evidence, and his sentence is unlawful. We affirm.

I. Background

¶ 3 In April 2017, while then-seven-year-old K.B. was playing an

“airplane” game with her mother, she disclosed that Peiffer, her

maternal grandfather, had touched her chest area. Mother

informed K.B.’s father, who recorded a conversation with K.B. about

her allegations. During the conversation with father, K.B. said that

Peiffer had put his hands inside her shirt and felt her “boobs” and

had “sometimes” felt her nipples. According to K.B., Peiffer only

touched her when they were alone, and he had told her to keep the

touching a secret.

¶ 4 Father reported Peiffer’s conduct to the police. During a

subsequent forensic interview, K.B. said that Peiffer had touched

her chest area multiple times beginning on her seventh birthday

2

(June 2016) and continuing until Easter (April 2017) — just a few

days before her disclosure to mother. K.B. told the interviewer that

the touching made her uncomfortable and that she had asked

Peiffer to stop.

¶ 5 Peiffer agreed to speak to police. He admitted that he had

touched K.B.’s chest but denied that the touching was for the

purpose of sexual arousal or gratification, insisting that he was

simply showing affection for his granddaughter.

¶ 6 The People charged Peiffer with two counts of sexual assault

on a child as part of a pattern of sexual abuse. One count related

to an alleged incident on K.B.’s seventh birthday and the other

related to an alleged incident on Easter.

¶ 7 At trial, the prosecution introduced K.B.’s forensic interview

and Peiffer’s interview with the detective. K.B., who was nine years

old at the time of trial, also testified. Some of her testimony was

inconsistent with her statements in the forensic interview. For

example, she testified that “nothing really happened on Easter,” and

she said that she was not sure whether she had ever told Peiffer to

stop touching her. She acknowledged that her recollection of events

3

was better when she first spoke to mother and father, which was

over a year before trial.

¶ 8 The jury found Peiffer guilty of both counts. After filing a

notice of appeal in this court, Peiffer filed post-trial motions in the

trial court. A limited remand was ordered, and, on remand, the

trial court denied all of the post-trial motions.

1

II. Sufficiency of the Evidence

¶ 9 Peiffer’s primary contention on appeal is that the evidence was

insufficient to support his convictions because (1) he did not touch

“the breast of any person,” as required to prove sexual assault in

this case, and (2) the prosecution failed to prove that he touched

K.B. for the purpose of “sexual arousal, gratification, or abuse.”

A. The Evidence Was Sufficient to Show That Peiffer Touched

K.B.’s Breasts

1. Standard of Review

¶ 10 Peiffer’s first challenge to the sufficiency of the evidence turns

on the meaning of the term “breast” in section 18-3-401(2), C.R.S.

1

This court granted Peiffer’s motion for limited remand to allow the

trial court to rule on his pending motions. Therefore, Peiffer’s claim

that the court of appeals “determined [his] conviction was the result

of serious errors that occurred during [his] trial” is incorrect.

4

2021. Statutory interpretation is a question of law that we review

de novo. People v. Campos, 2015 CO 47, ¶ 11. The primary

purpose in interpreting statutes is to give effect to the General

Assembly’s intent. Hunsaker v. People, 2015 CO 46, ¶ 11. If

statutory language is clear, we apply its plain and ordinary

meaning. Id. However, if the statute is subject to multiple

reasonable interpretations, we enlist tools of statutory

interpretation to discern the legislature’s intent and consider factors

like prior law, the goal of the statutory scheme, and the

consequences of a particular construction. See In re Marriage of

Ikeler, 161 P.3d 663, 668 (Colo. 2007).

2. Discussion

¶ 11 A person commits sexual assault on a child if he knowingly

subjects a child under the age of fifteen to any “sexual contact.”

§ 18-3-405(1), C.R.S. 2021. As relevant here, “sexual contact”

means “[t]he knowing touching of the victim’s intimate parts by the

actor . . . for the purposes of sexual arousal, gratification, or

abuse.” § 18-3-401(4)(a). And “intimate parts” includes “the breast

of any person.” § 18-3-401(2).

5

¶ 12 Peiffer contends that he did not commit sexual assault on a

child because he did not touch K.B.’s “breast.” According to Peiffer,

the statutory term “breast of any person” refers to a developed

breast and at the time of the assaults, seven-year-old K.B. had

undeveloped breasts.

¶ 13 In support of his interpretation, he points to the sexual

exploitation of a child statute. See § 18-6-403, C.R.S. 2021.

Subsection (2) of the statute defines various terms, including “erotic

fondling,” “erotic nudity,” and “masturbation,” and in doing so, the

statute specifically refers to the “developing or undeveloped breast

area” of a child. § 18-6-403(2)(c), (d), (f). Peiffer says that if the

legislature intended to criminalize the touching of an undeveloped

breast under the child sexual assault statute, it would have done so

explicitly, as it did in the sexual exploitation statute.

¶ 14 We will assume that the term “breast” is ambiguous, because

it is susceptible to two reasonable interpretations: it could mean a

developed breast, as Peiffer argues, or both a developed and

undeveloped breast, as the People argue. Thus, to ascertain the

legislature’s intent, we look to the goal of the statutory scheme and

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the statute’s prior iterations. See Marriage of Ikeler, 161 P.3d at

668.

¶ 15 The child sexual assault statute is intended to protect all

children under the age of fifteen, regardless of their gender. We

know that for two reasons. First, the plain language of section 18-

3-405(1) does not distinguish between male and female children.

Second, prior to 1988, the definition of “intimate parts” included

“the breast of a female person”; in 1988, the General Assembly

amended the statutory definition to instead include “the breast of

any person.” Ch. 124, sec. 17, § 18-3-401, 1988 Colo. Sess. Laws

712. That amendment makes clear that the legislature intended to

extend statutory protections to non-female children. See, e.g.,

Robles v. People, 811 P.2d 804, 806 (Colo. 1991) (“When a statute is

amended, it is presumed that the legislature intended to change the

law.”).

¶ 16 It follows that the term “breast” must include the undeveloped

breast of any person. As the People point out, an interpretation of

“breast” that includes only a developed breast would provide

statutory protections only to females and, even more specifically,

only to those female children who had developed breasts before the

7

age of fifteen. In light of the amendment, that interpretation is

untenable. The consequence would be that adults could subject all

prepubescent girls and all non-female children to touching of the

children’s undeveloped breasts for the purpose of sexual arousal,

gratification, or abuse.

¶ 17 Nor is it clear how Peiffer’s interpretation would be effectuated.

Under his reading of the statute, whether a person has committed

sexual assault on a child might depend on whether the child’s

breasts are sufficiently developed to meet the statutory definition.

And how would a court determine that? We are confident the

legislature did not intend for trial judges to evaluate the

development of children’s breasts to determine application of the

statute.

¶ 18 In sum, we conclude that the term “breast” includes the

developed or undeveloped breast of any child. Under that

definition, Peiffer indisputably touched K.B.’s “breasts.”

B. The Evidence Was Sufficient to Show That Peiffer Touched

K.B.’s Breasts for the Purpose of Sexual Arousal or

Gratification

8

1. Standard of Review

¶ 19 We review de novo whether the evidence before the jury was

sufficient both in quantity and quality to sustain a conviction.

Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010). We must

determine “whether the relevant evidence, both direct and

circumstantial, when viewed as a whole and in the light most

favorable to the prosecution, is substantial and sufficient to support

a conclusion by a reasonable mind that the defendant is guilty of

the charge beyond a reasonable doubt.” Id. (quoting People v.

Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)).

¶ 20 In conducting our review, we must give the People the benefit

of every reasonable inference that may fairly be drawn from the

evidence. Id. at 1292. We may not serve as a thirteenth juror or

determine what specific weight should be accorded to various pieces

of evidence. People v. Sprouse, 983 P.2d 771, 778 (Colo. 1999).

Accordingly, it is up to the fact finder to resolve all “conflicts,

inconsistencies, and disputes in the evidence.” People v. Padilla,

113 P.3d 1260, 1261 (Colo. App. 2005). Therefore, we will not

disturb the jury’s findings “unless the evidence is legally insufficient

to support a finding of guilt beyond a reasonable doubt.” Id.

9

2. Discussion

¶ 21 As noted, “sexual contact” requires that the person touch the

child’s intimate parts “for the purposes of sexual arousal,

gratification, or abuse.” § 18-3-401(4)(a).

2

Peiffer says the

prosecution failed to prove that he touched K.B.’s breasts for any

one of those purposes.

¶ 22 True, during his police interview, Peiffer repeatedly denied that

he touched K.B. for any sexual reason. He told the detective that

he was “fooling around” and having “fun” with K.B.

¶ 23 But there was also evidence that Peiffer touched K.B. only

when no one else was present, told K.B. to keep the touching a

secret, and refused to stop touching her even after K.B. told him to

stop. Peiffer also admitted to the detective that the touching was

“inappropriate.” All of that evidence undermined Peiffer’s

2

The jury instructions tracked the disjunctive language of the

statute and therefore instructed that the touching had to be for the

purpose of sexual arousal, gratification, or abuse. As Peiffer noted

in his motion for a new trial, the “prosecution proceeded on a theory

of sexual arousal or gratification.” To the extent Peiffer contends

that the prosecutor had to prove that he committed sexual contact

for the additional purpose of sexual abuse, and that no evidence

supported such a finding, we reject that contention as contrary to

the statute’s plain language.

10

statements that the touching was just part of ordinary horseplay

with his granddaughter.

¶ 24 “An actor’s state of mind is normally not subject to direct proof

and must be inferred from his or her actions and the circumstances

surrounding the occurrence.” People v. Phillips, 219 P.3d 798, 800

(Colo. App. 2009). Viewing the evidence in the light most favorable

to the prosecution, we conclude that the jury could have inferred

from Peiffer’s conduct that he touched K.B. for purposes of sexual

arousal or gratification.

¶ 25 In reaching the guilty verdict, the jury apparently gave more

weight to K.B.’s statements during her forensic interview and her

conversation with father than it did to Peiffer’s statements to the

detective that he did not touch K.B. for any sexual reason. That, of

course, was the jury’s prerogative. See Padilla, 113 P.3d at 1261.

On a review of the sufficiency of the evidence, we may not reweigh

the evidence or make our own credibility determinations. See

People v. Webster, 987 P.2d 836, 842 (Colo. App. 1998).

¶ 26 Because the evidence was sufficient for a reasonable jury to

find Peiffer guilty beyond a reasonable doubt, we may not disturb

the verdict.

11

III. Evidentiary Issues

¶ 27 Peiffer contends the trial court erred by admitting two

statements. First, he says his comment to the detective in which he

compared the nature of his contact with K.B. to the nature of

homosexual intimate contact was unfairly prejudicial. Second, he

says K.B.’s statement that she told Peiffer to stop touching her was

irrelevant because lack of consent is not an element of sexual

assault on a child.

A. Additional Background

¶ 28 During his interview with the detective, Peiffer made two

comments about homosexuality.

¶ 29 The first comment came just after Peiffer told the detective

that his touching of K.B. was not “deviant behavior.” He followed

that statement with his opinion that homosexual conduct was

deviant behavior and that whatever he did with K.B. was

“miniscule, a tiny fraction to what a homosexual would do.”

¶ 30 The second comment came about a half hour later, in

response to the detective’s question about whether Peiffer thought

any of his hugs with K.B. had escalated or been inappropriate.

12

Peiffer agreed that some hugs might have been inappropriate, but

then explained his position further:

Even though homosexuality is not against the

law . . . if there’s a god looking down and he

said, “What’s more deviant behavior?” . . . that

just seems . . . and I’m talking not just a little

bit more deviant than anything I ever did but

in a whole different category.

¶ 31 Defense counsel filed a motion in limine to exclude the

statements as unduly prejudicial. The trial court denied the

motion, reasoning that the statements were probative because they

were “akin to an admission” by Peiffer that his conduct was on a

scale of deviant behavior, and the probative value of the statements

was not substantially outweighed by the risk of unfair prejudice.

¶ 32 At trial, K.B. testified that she was not sure if she had told

Peiffer to stop touching her. In the forensic interview, however, K.B.

said that she had told her grandfather “to stop a bunch of times,

but he hasn’t.” Later, she repeated that she had told him to stop

“every time he’s come over and done it,” but that, each time, Peiffer

said he had forgotten her earlier request.

13

B. Standard of Review

¶ 33 We review a trial court’s evidentiary rulings for an abuse of

discretion. People v. Beilke, 232 P.3d 146, 151 (Colo. App. 2009).

¶ 34 Because we perceive no abuse of discretion in the trial court’s

evidentiary rulings, we need not address preservation or the proper

standard of reversal.

C. Discussion

¶ 35 CRE 401 defines relevant evidence as “evidence having any

tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than

it would be without the evidence.” Even relevant evidence is

inadmissible, however, if its probative value is substantially

outweighed by the danger of unfair prejudice. People v. Dist. Ct.,

869 P.2d 1281, 1286 (Colo. 1994). Evidence is unfairly prejudicial

if it has an “undue tendency to suggest a decision on an improper

basis, commonly but not necessarily an emotional one, such as

sympathy, hatred, contempt, retribution, or horror.” People v. Dist.

Ct., 785 P.2d 141, 147 (Colo. 1990).

¶ 36 In balancing the probative value against the risk of unfair

prejudice, the trial court has considerable discretion. Dist. Ct., 869

14

P.2d at 1285. On appellate review, we assume that evidence should

be given its “maximal probative weight and its minimal prejudicial

effect.” Id.

1. Peiffer’s Statements about Homosexuality

¶ 37 The only contested factual issue at trial was whether Peiffer

had touched K.B.’s breasts for the purpose of sexual arousal or

gratification. His comparison of his own conduct to homosexual

conduct was probative on that point. In effect, as the trial court

observed, Peiffer’s comments were an admission concerning his

state of mind — in Peiffer’s view, his touching of K.B., while

somewhat deviant, was not nearly as deviant as homosexual

conduct. By placing his conduct on a scale of deviant behavior, the

higher end of which was represented by intimate homosexual

conduct, Peiffer refuted his own assertion that his touching of K.B.

was entirely innocuous.

¶ 38 Nor are we persuaded that the probative value of the

comments was substantially outweighed by the danger of unfair

prejudice under CRE 403. To be sure, many of the jurors may not

have shared Peiffer’s view of homosexuality. But when the

prosecutor mentioned Peiffer’s comments, he admonished the jury

15

to “not for any second think about convicting this defendant based

on his [views] on homosexuality” and instead emphasized the

specific, proper purpose for which the jury could consider the

comments. As well, during voir dire, the trial court told the jury

that “sympathy and prejudice have no place in a criminal trial;

instead, this case must be decided only on the evidence presented

at trial and the law as I instruct you.” In the absence of any

evidence to the contrary, we presume the jury heeded the court’s

instructive comments. Cf. People v. Villa, 240 P.3d 343, 352 (Colo.

App. 2009).

2. K.B.’s Statement That She Told Peiffer to Stop

¶ 39 Peiffer contends that K.B.’s statement that she told him to

stop touching her was irrelevant because the prosecution did not

have to prove lack of consent. But the statement was relevant to

prove the disputed factual issue at trial — whether Peiffer touched

K.B.’s breasts for the purpose of sexual arousal or gratification or

whether he touched her breasts out of simple affection and

playfulness.

¶ 40 During the forensic interview, K.B. told the interviewer that

she had asked Peiffer to stop touching her but that he nonetheless

16

continued, and, in fact, the touching became more frequent. Like

Peiffer’s comments about a spectrum of deviant behavior, K.B.’s

statements undermined Peiffer’s assertion that his touching of

K.B.’s breasts had no sexual purpose. The jury could have inferred

that if Peiffer had touched K.B.’s breasts because she thought it

was “fun,” as he claimed in his interview, he would have stopped

when she asked him to. Because he did not, the jury could have

concluded that the touching was not for K.B.’s benefit but for his

own.

¶ 41 In any event, Peiffer does not allege any unfair prejudice from

the admission of K.B.’s statements and we discern none. See Dist.

Ct., 869 P.2d at 1286 (evidence is not unfairly prejudicial simply

because it weakens the defendant’s case). Accordingly, we cannot

say that the trial court abused its discretion in admitting the

statements.

IV. Sentencing Claims

¶ 42 The jury found Peiffer guilty of two counts of sexual assault on

a child as part of a pattern of sexual abuse. See § 18-3-405(2)(d).

The trial court sentenced him to concurrent prison terms of eight

years to life.

17

¶ 43 Whether Peiffer challenges his sentence and, if so, the basis

for such a challenge is not entirely clear. We construe pro se briefs

broadly to ensure that pro se litigants are not denied review of

important issues because of their inability to articulate their

arguments like a lawyer. See Jones v. Williams, 2019 CO 61, ¶ 5.

Still, we may not rewrite a pro se litigant’s pleadings or act as an

advocate by considering issues not raised in the briefs. See People

v. Cali, 2020 CO 20, ¶ 34.

¶ 44 Peiffer appears to argue that he was not subject to the “pattern

of abuse” sentence enhancer because he was “not accused of any

‘sex act.’” If that is his argument, we reject it.

¶ 45 “Pattern of sexual abuse” means “the commission of two or

more incidents of sexual contact involving a child when such

offenses are committed by an actor upon the same victim.” § 18-3-

401(2.5). The verdict forms included a definition of “pattern of

sexual abuse,” and Jury Instruction 17 defined sexual contact.

Commission of a “sex act” is not an element of sexual assault on a

child as part of a pattern of abuse.

18

¶ 46 Peiffer also appears to argue that because he “was not accused

of any violent act of any sort,” he could not be convicted of a “crime

of violence.” Again, assuming that is his argument, we disagree.

¶ 47 When a defendant is convicted of a class 3 felony of sexual

assault on a child as part of a pattern of sexual abuse, the trial

court must sentence him “in accordance with the provisions of

section 18-1.3-406[, C.R.S. 2021].” § 18-3-405(3). Section 18-1.3-

406 is the crime of violence sentencing statute. Thus, although

sexual assault on a child as part of a pattern of abuse does not

satisfy the definitional or elemental test for a crime of violence, it is

treated as a crime of violence for sentencing purposes. See

Hunsaker, ¶ 14 (explaining that sexual assault on a child as part of

a pattern of sexual abuse is a “per se” crime of violence); see also

People v. Baca, 2015 COA 153, ¶¶ 39-40 (explaining the difference

between a definitional or elemental crime of violence and a “per se”

crime of violence), overruled on other grounds by Gonzales v. People,

2020 CO 71. Thus, Peiffer was convicted of a “per se” crime of

violence and subject to the crime of violence sentencing statute.

V. Conclusion

¶ 48 The judgment and sentence are affirmed.

19

JUDGE RICHMAN and JUDGE GOMEZ concur.