People in Interest of A.T.S.

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
May 29, 2025

2025COA53

No. 22CA1175, People in Interest of A.T.S. — Constitutional
Law — Sixth Amendment — Confrontation Clause; Trials — Use
of Closed-Circuit Television — Presence of the Defendant

A division of the court of appeals addresses when a child

witness may testify via closed-circuit television in a criminal case.

The division holds that a child witness may testify by closed-circuit

television only if the trial court finds, among other factors, that the

child would suffer serious emotional distress or be traumatized by

the presence of the defendant in the courtroom. See Maryland v.

Craig, 497 U.S. 836, 856 (1990). While the child may have various

fears about testifying, the presence of the defendant must be “the

dominant reason” preventing the child from testifying in open court.

United States v. Bordeaux, 400 F.3d 548, 555 (8th Cir. 2005).

In this case, the juvenile court found that the presence of the

defendant’s parents, not the defendant himself, was the dominant
reason that the child victim could not testify in open court. Thus,

the division concludes that the court erred by permitting the victim

to testify via closed-circuit television. Nevertheless, after reviewing

the record, the division determines that this error was

constitutionally harmless.

Because the division also rejects the defendant’s other

contentions regarding prosecutorial misconduct and sufficiency of

the evidence, it affirms the juvenile court’s judgment.
COLORADO COURT OF APPEALS 2025COA53

Court of Appeals No. 22CA1175
City and County of Denver Juvenile Court No. 21JD94
Honorable Laurie A. Clark, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of A.T.S.,

Juvenile-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE YUN
J. Jones and Brown, JJ., concur

Announced May 29, 2025

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney
General, Gina M. Nykerk, Assistant Attorney General Fellow, Denver, Colorado,
for Petitioner-Appellee

Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State
Public Defender, Denver, Colorado, for Juvenile-Appellant
¶1 A.T.S. appeals his adjudication for sexual assault on a child.

He contends that (1) the juvenile court reversibly erred by allowing

the victim to testify by closed-circuit television; (2) the prosecutor

engaged in misconduct during closing argument; and (3) there was

insufficient evidence that an act occurred after A.T.S. turned ten

years old. We reject these arguments and affirm the judgment.

¶2 In addressing A.T.S.’s contentions, we confront a novel issue

in Colorado: Can a juvenile court permit a child witness to testify

via closed-circuit television primarily because the child would be

traumatized by the presence of the defendant’s family? We hold

that it cannot. A child witness may testify by closed-circuit

television only if the trial court finds, among other factors, that the

child would be traumatized by the presence of the defendant in the

courtroom. Maryland v. Craig, 497 U.S. 836, 856 (1990). While the

child may have various fears about testifying, the presence of the

defendant must be “the dominant reason” preventing the child from

testifying in open court. United States v. Bordeaux, 400 F.3d 548,

555 (8th Cir. 2005).

¶3 Because the juvenile court found that A.T.S.’s presence was

not the dominant reason that the victim could not testify in open

1
court, we conclude that it erred by permitting the victim to testify

via closed-circuit television. However, after reviewing the record, we

determine that this error was constitutionally harmless.

I. Background

¶4 When the victim was nine years old, he disclosed to his mother

that A.T.S., his older cousin on the paternal side of the family, had

sexually molested him. In a forensic interview, the victim described

anal-genital, oral-genital, and manual-genital contact that occurred

when he was between the ages of four and seven and A.T.S. was

between the ages of ten and thirteen. The victim said that A.T.S.

had told him the abuse would make him stronger but that, when he

was five or six, he “noticed [he] wasn’t getting strong” and told

A.T.S. to stop. He said he told his mother because he had been

“hiding it for four or five years” and did not “want it [to be] a secret”

any longer.

¶5 The People filed a petition in delinquency charging A.T.S. with

one count of sexual assault on a child. A jury found him guilty as

charged, and the juvenile court sentenced him to two years of

probation.

2
II. Testimony By Closed-Circuit Television

¶6 A.T.S. contends that the juvenile court violated his

confrontation rights by permitting the victim to testify by closed-

circuit television. We agree that the court erred, but we conclude

that the error was harmless beyond a reasonable doubt.

A. Additional Background

¶7 Before trial, the People moved to allow the victim to testify by

closed-circuit television, explaining that the victim’s mother had

“indicated that testifying in front of his cousin and his cousin’s

parents, namely his aunt and uncle, could cause [the victim] to

suffer serious emotional distress.” A.T.S. objected. In support of

their motion, the People submitted an affidavit from the victim’s

therapist, who said that she had become

very familiar with the dynamics of [the victim’s]
paternal family, including relationships with
aunts, uncles, cousins, and grandparents. In
working with [the victim], it is my observation
that [the victim] struggled with the power and
control dynamics present in his relationships
with those family members. I further observed
that, due to those power and control
dynamics, [the victim] struggled to advocate for
himself with that side of the family.

3
Accordingly, she expressed her “clinical opinion . . . that [the

victim’s] testifying in a courtroom directly in front of his paternal

cousin, aunt, and uncle would cause [the victim] to experience

trauma, and that that trauma is very likely to inhibit [the victim’s]

ability to communicate in court.”

¶8 After a hearing, the court found that, “based on the forensic

interview that I’ve seen, the child hearsay hearing that I had, and

the statements in the [therapist’s] affidavit, I am much less worried

about . . . the [victim] being in the same room with [A.T.S.] than I

am with the influence of [A.T.S.’s] parents and their relationship to

the [victim].” It then determined “that testimony by the [victim] in

the courtroom in the presence of [A.T.S.], and [A.T.S.’s] parents, . . .

would result in the [victim] suffering serious emotional distress or

trauma, such that the [victim] would not be able to reasonably . . .

communicate.”

¶9 At trial, the victim testified briefly by closed-circuit television.

Although A.T.S. observed the testimony from the courtroom, his

counsel was in the same room as the victim and had the

opportunity to cross-examine him. Afterward, the court instructed

the jury that it should assess the victim’s credibility without putting

4
“any special weight on the fact that [the victim] testified outside of

the courtroom.” It reiterated that message in the final jury

instructions.

B. Governing Law and Standard of Review

¶ 10 A defendant has both a federal and a state constitutional right

to confront adverse witnesses at trial. See U.S. Const. amend. VI;

Colo. Const. art. II, § 16. But neither the federal nor the state

constitution requires that a defendant be allowed in all instances to

confront an adverse witness face-to-face in court. People v. Phillips,

2012 COA 176, ¶¶ 49-59.

¶ 11 In Craig, the United States Supreme Court upheld a

defendant’s sexual assault convictions even though the victims had

testified outside her presence via closed-circuit television. The

Supreme Court reasoned that the Constitution’s “preference” for

face-to-face confrontation “must occasionally give way to

considerations of public policy and the necessities of the case.”

Craig, 497 U.S. at 848-49 (quoting Mattox v. United States, 156 U.S.

237, 243 (1895)).

¶ 12 In further elaborating on Craig, a division of this court noted

that

5
[i]n Craig, the Court recognized that a state’s
interest in protecting the physical and
psychological well-being of child abuse victims
could, in some cases, be sufficiently important
to outweigh a defendant’s right to face his or
her accusers in court. Such a case is
presented when the trial court finds that (1) a
special procedure is necessary to protect the
welfare of the particular child witness; (2) the
particular child witness would be traumatized
by the presence of the defendant — not by the
proceedings generally; and (3) the child
witness will suffer more than de minimis
emotional distress if forced to testify in the
presence of the defendant.

People v. Ujaama, 2012 COA 36, ¶ 19 (citations omitted).

¶ 13 In Colorado, section 16-10-402(1)(a)(II), C.R.S. 2024,

authorizes the use of closed-circuit television to obtain the

testimony of a child who “at the time of a trial is . . . less than

twelve years of age” when “[t]he judge determines that testimony by

the witness in the courtroom and in the presence of the defendant

would result in the witness suffering serious emotional distress or

trauma such that the witness would not be able to reasonably

communicate.” See Ujaama, ¶ 20. “We must interpret a statute in

a constitutional manner so long as that construction is consistent

with the legislative intent.” Warren v. S. Colo. Excavators, 862 P.2d

966, 968 (Colo. App. 1993). Accordingly, we interpret section

6
16-10-402 to require a finding, consistent with Craig, that the child

witness would suffer serious emotional distress or be traumatized

primarily “by the presence of the defendant” and “not by the

courtroom generally” or by other factors. 497 U.S. at 856; see also

People v. Collins, 2021 COA 18, ¶ 37 (“The Colorado Constitution

secures identical rights as the federal right to confrontation.”).

¶ 14 We review de novo whether the juvenile court’s decision

permitting a witness to testify using closed-circuit television

violated a defendant’s confrontation rights. See Phillips, ¶ 85.

“Confrontation Clause violations are trial errors subject to

constitutional harmless error review.” Id. at ¶ 93. If the court

erred, we must reverse unless we are persuaded that the error was

harmless beyond a reasonable doubt. People v. Rodriguez, 209 P.3d

1151, 1158 (Colo. App. 2008), aff’d, 238 P.3d 1283 (Colo. 2010).

An error “is harmless beyond a reasonable doubt ‘if there is no

reasonable possibility that it affected the guilty verdict.’” Id.

(citation omitted).

7
C. Discussion

¶ 15 A.T.S. argues that the juvenile court erred by “focusing on the

impact of testifying in front of A.T.S.’s family, rather than A.T.S.”

himself. We agree.

¶ 16 To justify testimony by closed-circuit television, the juvenile

court must “find that the child witness would be traumatized, not

by the courtroom generally, but by the presence of the defendant.”

Craig, 497 U.S. at 856. “Denial of face-to-face confrontation is not

needed to further the state interest in protecting the child witness

from trauma unless it is the presence of the defendant that causes

the trauma.” Id.; see § 16-10-402(1)(a)(II) (requiring the judge to

determine that testifying “in the courtroom and in the presence of

the defendant” would cause the child witness serious emotional

distress) (emphasis added).

¶ 17 Here, the juvenile court explicitly found that its primary

concern was “with the influence of [A.T.S.’s] parents” on the victim

and that it was “much less worried about . . . the [victim] being in

the same room with [A.T.S.]” Under Craig and section

16-10-402(1)(a), this finding was insufficient to permit the victim to

8
testify by closed-circuit television.1 See United States v.

Cotto-Flores, 970 F.3d 17, 43, 47 (1st Cir. 2020) (district court’s

finding that a witness was afraid of testifying generally, rather than

afraid of testifying “in the defendant’s presence,” was insufficient to

justify testimony by closed-circuit television); Bordeaux, 400 F.3d at

555 (district court’s finding that a witness’s fear of the defendant

was “only one reason why she could not testify in open court,”

rather than “the dominant reason,” was insufficient to justify

testimony by closed-circuit television); United States v. Turning

Bear, 357 F.3d 730, 736-37 (8th Cir. 2004) (district court’s finding

that a witness was afraid “of a ‘combination’ of the presence of [the

defendant], the jury, and the prosecutor, as well as intimidation

from being in the ‘very large courtroom,’” was insufficient to justify

testimony by closed-circuit television); State v. Bray, 535 S.E.2d

1 During oral argument, the People argued for the first time that

A.T.S.’s father could be considered a “defendant” under section
16-10-402, C.R.S. 2024, because he was named as a respondent in
the petition in delinquency. We do not consider an argument raised
for the first time during oral argument. McGihon v. Cave, 2016 COA
78, ¶ 10 n.1. Nor do the People provide any legal authority to
support the proposition that a parent named as a respondent
pursuant to section 19-2.5-502, C.R.S. 2024, can be considered a
defendant under section 16-10-402. See People v. Stone, 2021 COA
104, ¶ 52 (appellate courts do not address undeveloped arguments).

9
636, 640 (S.C. 2000) (trial court’s findings referencing “the victim’s

young age and fear of [testifying in front of] other family members

who did not believe her” were insufficient to justify testimony by

closed-circuit television). Rather, Craig and section 16-10-402(1)(a)

require a finding that “the child witness will in fact be traumatized,

not merely by testifying in a courtroom, or in front of a crowd of

people or relatives, but by the presence of the particular defendant.”

Bray, 535 S.E.2d at 641. Because the defendant’s presence must

be “the dominant reason” that the child cannot testify in the

courtroom, Bordeaux, 400 F.3d at 555, we conclude that the

district court erred by allowing the victim to testify by closed-circuit

television in this case.

¶ 18 Having concluded that the district court erred, we turn to the

question of constitutional harmlessness. “The inquiry in a

harmless error analysis is ‘whether the guilty verdict actually

rendered in this trial was surely unattributable to the error,’ and

‘not whether, in a trial that occurred without the error, a guilty

verdict would surely have been rendered.’” Phillips, ¶ 93 (quoting

People v. Fry, 92 P.3d 970, 980 (Colo. 2004)). In analyzing the

evidence for constitutional harmless error, we disregard the

10
improper closed-circuit television testimony. See Turning Bear,

357 F.3d at 741 (“[Improper] closed-circuit television testimony

‘must be entirely excluded because it would be “pure speculation”

to consider whether the child’s testimony, or the jury’s assessment

of that testimony, would have changed had there been proper

confrontation.’” (quoting Hoversten v. Iowa, 998 F.2d 614, 617 (8th

Cir. 1993))); Cotto-Flores, 970 F.3d at 47 (same). Instead, we

consider factors including

(1) the importance of the declarant’s statement
to the prosecution’s case; (2) whether the
statement was cumulative; (3) the presence or
absence of corroborating or contradictory
evidence on the material points of the witness’s
testimony; (4) the extent of the cross-
examination otherwise permitted; [and] (5) the
overall strength of the prosecution’s case.

Phillips, ¶ 93 (quoting Arteaga-Lansaw v. People, 159 P.3d 107, 110

(Colo. 2007)).

¶ 19 Applying these factors in this case, we conclude that the error

was constitutionally harmless. The victim’s trial testimony was

quite brief, accounting for fewer than twenty pages of transcript. It

was also cumulative of the significantly more detailed statements

the victim made in his video-recorded forensic interview, which was

11
played for the jury.2 And defense counsel was in the same room as

the victim and had the opportunity to cross-examine him about the

relevant events and the forensic interview. Overall, the

prosecution’s case was not overwhelming, as it relied on a nine-

year-old recalling events that occurred years earlier. There was no

physical evidence, and there were no other witnesses to the abuse.

But the most compelling evidence of A.T.S.’s guilt was the victim’s

forensic interview and the testimony of other witnesses who

interacted with the victim following his outcry. Accordingly,

because the victim’s improper trial testimony revealed little about

the abuse and was cumulative of the forensic interview, we are

2 As defense counsel acknowledged at oral argument, A.T.S. did not

contest the admissibility of the video-recorded forensic interview in
his appellate briefs. In ruling that the victim’s statements to the
forensic interviewer were admissible, the juvenile court noted that
“the [c]ourt does find that the [victim] is available to testify and
therefore [A.T.S.’s] confrontation clause [rights] will be protected.”
See People v. Argomaniz-Ramirez, 102 P.3d 1015, 1018 (Colo. 2004)
(“Because the hearsay declarants will testify at trial and will be
subject to cross-examination, admission of their out-of-court
statements does not violate the Confrontation Clause.”);
§ 13-25-129(5)(b)(I), C.R.S. 2024. But A.T.S. did not argue that,
because we must disregard the victim’s trial testimony for purposes
of our harmless error analysis, we must also disregard the forensic
interview. Accordingly, we consider the forensic interview in
assessing the strength of the evidence of guilt and the impact, or
lack thereof, of the confrontation error.

12
confident that it “contributed nothing to the jury’s guilty verdict.”

Turning Bear, 357 F.3d at 741.

¶ 20 We thus conclude that the district court’s error in permitting

the victim to testify by closed-circuit television based primarily on

his fear of A.T.S.’s family was harmless beyond a reasonable doubt.

III. Prosecutorial Misconduct

¶ 21 Next, A.T.S. contends that the prosecutor committed

misconduct during closing argument. We conclude that no plain

error occurred.

A. Additional Background

¶ 22 A generalized expert in child sexual assault dynamics testified

at trial. During cross-examination, defense counsel asked about

the expert’s experience with false allegations, and the following

exchange occurred:

[DEFENSE COUNSEL:] So your role as a
therapist, as we discussed before, is to treat
the child; is that right?

[EXPERT:] Yes.

[DEFENSE COUNSEL:] And [for] the vast
majority of the children with [whom] you work,
there has already been some sort of
determination that they were a victim of sexual
abuse?

13
[EXPERT:] That is correct.

[DEFENSE COUNSEL:] And if it turns out that
an accused is later found innocent of the
accusation, you don’t go back and re-analyze
your opinion to see if you got it wrong?

[EXPERT:] No. I’m not making that
determination at the front end. I’m not
determining if it’s founded or not founded.

[DEFENSE COUNSEL:] So if a child later
admitted to lying or — not recanting, but
actually lying about the accusation, you don’t
change your opinion regarding that child as a
victim of sexual abuse?

[EXPERT:] That hasn’t happened.

[DEFENSE COUNSEL:] That’s never
happened?

[EXPERT:] That’s not happened in my
experience in my work, no. . . . [T]he children
that I’ve worked with around sexual abuse,
there has been an investigation, there has
been a determination made. So I don’t screen
children. If someone calls me and says, I’m
concerned my child has been sexually abused,
I refer them to an investigation team. I don’t
see them to screen that out. . . .

[DEFENSE COUNSEL:] So you’ve never had a
child admit to false allegations?

[EXPERT:] That is correct.

14
¶ 23 During closing argument, the prosecutor reviewed the

evidence supporting the victim’s credibility. In doing so, she made

the following reference to the expert’s testimony:

And I will mention something interesting that
[the expert] said. She was asked on cross, you
know, how many times has a kid come forward
and said, Oh, I was lying. I was lying. I made
it up, something to that effect. What did she
say? In her decades of experience, that just
hasn’t happened. That just doesn’t happen.

¶ 24 Defense counsel did not object.

B. Governing Law and Standard of Review

¶ 25 We engage in a two-step analysis when reviewing claims of

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010).

¶ 26 First, we determine whether the conduct was improper based

on the totality of the circumstances. Id. We consider the context of

the argument as a whole and view it in light of the evidence before

the jury. People v. Samson, 2012 COA 167, ¶ 30. “A prosecutor

has wide latitude to make arguments based on facts in evidence

and reasonable inferences drawn from those facts.” People v.

Strock, 252 P.3d 1148, 1153 (Colo. App. 2010). The prosecutor may

also “employ rhetorical devices and engage in oratorical

15
embellishment.” Samson, ¶ 31. Because arguments delivered in

the heat of trial are not always perfectly scripted, we give the

prosecutor the benefit of the doubt when her remarks are

“ambiguous or simply inartful.” Id. at ¶ 30. But the prosecutor

may not misstate the evidence or the law. Id. at ¶ 32; People v.

Weinreich, 98 P.3d 920, 924 (Colo. App. 2004), aff’d, 119 P.3d 1073

(Colo. 2005).

¶ 27 Next, if we identify misconduct, then we determine whether it

warrants reversal under the applicable standard. Wend, 235 P.3d

at 1096. We review unpreserved claims of prosecutorial misconduct

for plain error. People v. Licona-Ortega, 2022 COA 27, ¶ 86. To

meet this standard, the conduct must be “flagrantly, glaringly, or

tremendously improper” and “so undermine[] the fundamental

fairness of the trial itself as to cast serious doubt on the reliability

of the jury’s verdict.” Domingo-Gomez v. People, 125 P.3d 1043,

1053 (Colo. 2005) (first quoting People v. Avila, 944 P.2d 673, 676

(Colo. App. 1997); and then citing People v. Miller, 113 P.3d 743,

750 (Colo. 2005)). “Prosecutorial misconduct in closing argument

rarely constitutes plain error.” Weinreich, 98 P.3d at 924.

16
C. Discussion

¶ 28 The prosecutor characterized the expert’s cross-examination

testimony regarding children admitting to having made false

accusations of abuse as follows: “In her decades of experience, that

just hasn’t happened. That just doesn’t happen.” While A.T.S. does

not dispute that the first sentence was an accurate statement of the

expert’s testimony, he argues that the second sentence was

improper because it equated something that had not happened in

the expert’s experience with something that does not happen at all.

By saying “[t]hat just doesn’t happen,” he argues, the prosecutor

vouched for the victim’s credibility and implied that the People had

secret information “confirming children never lie about sexual

assault.” We are not persuaded.

¶ 29 While the prosecutor’s statement that “[t]hat just doesn’t

happen” may have been inartful, it was, in context, a clear reference

to her prior accurate statement of the expert’s testimony. See

Samson, ¶ 30. The prosecutor simply highlighted the expert’s

observation that she had never worked with a child who admitted to

making a false allegation. In doing so, the prosecutor did not state

or imply a personal belief in the credibility of the victim’s allegation.

17
Indeed, moments before making the challenged statement, she

reminded the jury that determining the credibility of witnesses was

“up to you and you alone.”

¶ 30 Nor did the prosector imply that the People had access to

additional information beyond that presented at trial. Rather, she

began by referencing the expert by name and mentioning a specific

part of her trial testimony, inviting the jury to recall “something

interesting that [the expert] said.” To the extent the prosecutor’s

statement that “[t]hat just doesn’t happen” was imprecise, it did not

stray so far from the expert’s testimony as to indicate to the jury

that the prosecutor was relying on something other than the

evidence offered at trial.

¶ 31 Further, even if the prosecutor misstated the expert’s

testimony, we conclude that her single improper statement does not

warrant the drastic remedy of reversal under the plain error

standard. See Domingo-Gomez, 125 P.3d at 1053 (“Comments that

were ‘few in number, momentary in length, and were a very small

part of a rather prosaic summation’ do not warrant reversal under

the plain error standard.” (quoting People v. Mason, 643 P.2d 745,

753 (Colo. 1982))). Any misstatement was immediately preceded by

18
an accurate statement of the expert’s testimony and, therefore, was

not “flagrantly, glaringly, or tremendously improper.” Id. (quoting

Avila, 944 P.2d at 676).

¶ 32 We thus conclude that no plain error occurred.

IV. Sufficiency of the Evidence

¶ 33 Finally, A.T.S. contends that there was insufficient evidence

that an act occurred within the date range alleged in the

delinquency petition and after A.T.S. turned ten years old, the age

at which he became subject to the juvenile court’s jurisdiction. We

are not persuaded.

A. Additional Background

¶ 34 A.T.S. was born on March 13, 2005. The victim was born on

January 17, 2012. The People charged A.T.S. with acts occurring

“[b]etween and including approximately January 17, 2016 and

January 17, 2019” — that is, when the victim was between the ages

of four and seven and when A.T.S. was between the ages of ten and

thirteen.

¶ 35 The victim, who was nine years old at the time of his outcry,

made conflicting statements about when exactly the abuse

occurred. He said in his forensic interview that it was “four or five

19
years ago” — that is, when he was five or four years old. He also

said that he finally told A.T.S. to stop when he was five or six. At

trial, he testified that he was “4 or 5 or 3.” In both his forensic

interview and his trial testimony, he said that the abuse occurred

before the birth of his little sister. The sister was born on

December 6, 2015, when the victim was three years and ten and a

half months old and when A.T.S. was ten years and nine months

old.

¶ 36 At the close of evidence, A.T.S. moved for a judgment of

acquittal, arguing that the evidence was insufficient for the jury to

find that an act occurred after A.T.S turned ten. In response, the

court observed that (1) A.T.S. turned ten on March 13, 2015, and

the sister was born on December 6, 2015, so there were several

months before the sister’s birth when A.T.S. was over the age of ten;

and (2) there was also evidence that the victim told A.T.S. to stop

when he was six years old, which would have made A.T.S. twelve or

thirteen. Accordingly, the court denied the motion.

¶ 37 The court instructed the jury as follows:

[A.T.S.] has been charged with committing a
delinquent act between approximately
01/17/2016 and 01/17/2019 but not before

20
03/13/2015. You are instructed that you
must unanimously agree, beyond a reasonable
doubt that the sexual act occurred during this
time period for the charge of Sexual Assault on
a Child.

The Juvenile Court has jurisdiction over
children between the age of 10 years old until
a child turns 18 years old. This jurisdiction is
based on the date of the alleged offense and
not the age of the child at the time of the trial.
If you find the sexual act occurred prior to
[A.T.S.’s] 10th birthday, 03/13/2015, you
must find [A.T.S.] not guilty of Sexual Assault
on a Child.

B. Governing Law and Standard of Review

¶ 38 “Subject matter jurisdiction concerns a court’s authority to

hear and rule on a certain class of cases and is conferred by the

state constitution and statutes.” People In Interest of P.K., 2015

COA 121, ¶ 9. “If a court does not have subject matter jurisdiction,

it is deprived of any authority to act from the outset of the case.”

Id.

¶ 39 “In Colorado, the juvenile court is a creature of statute, and

the statutory language establishing the scope of its jurisdiction

necessarily delimits that jurisdiction.” Id. at ¶ 10 (footnote omitted).

Except as otherwise provided by law, section 19-2.5-103(1)(a),

C.R.S. 2024, confers exclusive jurisdiction on the juvenile court

21
over cases concerning juveniles between ten and eighteen years of

age. “In assessing the jurisdiction of the juvenile court, the relevant

inquiry is the age at which the alleged acts were committed, not the

age at which a disposition was imposed.” P.K., ¶ 10.

¶ 40 In juvenile cases, “a delinquency petition is the equivalent of a

complaint and information.” Id. at ¶ 11. A petition therefore must

“advise the juvenile of the nature and cause of the accusation”

against them and “assert details concerning the jurisdiction of the

juvenile court.” Id.; see § 19-2.5-502(4), C.R.S. 2024.

¶ 41 “A simple variance occurs when the charged elements are

unchanged, but the evidence proves facts materially different from

those alleged in the charging instrument.” People v. Rice, 198 P.3d

1241, 1245 (Colo. App. 2008). Generally, a simple variance does

not require reversal. Id. “However, a variance between the specific

date of the offense as alleged in the information and the date as

proved at trial is reversible error if the defendant’s ability to defend

against the charge was impaired.” People v. Lopez, 140 P.3d 106,

109 (Colo. App. 2005).

¶ 42 We review challenges to subject matter jurisdiction de novo.

P.K., ¶ 8. We also review de novo whether a variance occurred.

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People v. Rail, 2016 COA 24, ¶ 48, aff’d on other grounds, 2019 CO

99, and abrogated by Bock v. People, 2024 CO 61. Finally, we

review sufficiency of the evidence challenges de novo. McCoy v.

People, 2019 CO 44, ¶ 34. In doing so, we consider “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. at ¶ 63 (citation omitted).

C. Discussion

¶ 43 A.T.S. argues that, because the victim testified that the abuse

occurred before his sister was born on December 6, 2015, “it

necessarily occurred before the time charged by the State,” which

began the following month on “approximately January 17, 2016.”

He thus argues that a variance occurred and that it requires

reversal because it impaired A.T.S.’s ability to defend against the

charge. He furthers argues that, “[m]ore critically,” the evidence

was insufficient to support the jury’s finding that the abuse

occurred after A.T.S. turned ten.

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¶ 44 But while A.T.S. argues that the evidence could support only

one conclusion — “that the abuse had to have occurred before

December 6, 2015,” when the victim was three years old — the

evidence was not as straightforward as A.T.S. suggests. The victim

also said that the abuse occurred “four or five years ago,” when he

was five or four years old, and that he told A.T.S. to stop when he

was five or six. All three of these later dates — when the victim was

four, five, or six years old — fall within the charged timeframe,

which began when the victim turned four and ended when he

turned seven. Because there was evidence from which the jury

could find that the abuse occurred within the charged timeframe,

we are not convinced that a variance occurred. But even to the

extent there was a discrepancy between the dates alleged in the

petition and the victim’s trial testimony about the abuse occurring

before his sister was born, the evidence at trial could not have

taken the defense by surprise because the victim shared the same

information in his forensic interview. The evidence at trial thus did

not force A.T.S. to defend against anything new or unknown.

¶ 45 Further, the evidence that the abuse occurred within the

charged timeframe also supports the jury’s finding that it occurred

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after A.T.S. turned ten. Indeed, as the juvenile court noted in

ruling on A.T.S.’s motion for a judgment of acquittal, the victim’s

testimony that the abuse took place before his sister was born did

not contradict a finding that it happened after A.T.S. turned ten, as

A.T.S.’s tenth birthday (on March 13, 2015) fell several months

before the sister was born (on December 6, 2015).

¶ 46 “It is the fact finder’s role to weigh the credibility of witnesses,

to determine the weight to give all parts of the evidence, and to

resolve conflicts, inconsistencies, and disputes in the evidence.”

People v. Poe, 2012 COA 166, ¶ 14. Accordingly, determinations on

issues of credibility and weight will not be disturbed on appeal

unless the evidence is legally insufficient to support a finding of

guilt beyond a reasonable doubt. People v. Padilla, 113 P.3d 1260,

1261 (Colo. App. 2005). “The jury, not the court, must perform the

fact-finding function when conflicting evidence — and conflicting

reasonable inferences — are presented,” and, therefore, in a

sufficiency of the evidence inquiry, an appellate court “must not

invade the province of the jury by second-guessing its conclusion

when the record supports the jury’s findings.” People v. Perez, 2016

CO 12, ¶ 31. Because there is sufficient evidence in the record to

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support the jury’s finding that an act occurred after A.T.S. turned

ten, we will not disturb its determination on appeal.

V. Disposition

¶ 47 The juvenile court’s judgment is affirmed.

JUDGE J. JONES and JUDGE BROWN concur.

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