Peo v. Lemuel

23CA0640 Peo v Lemuel 04-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0640
El Paso County District Court No. 21CR2706
Honorable Monica J. Gomez, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kevin Kyle Lemuel,

Defendant-Appellant.

ORDER AFFIRMED

Division III
Opinion by JUDGE TOW
Dunn and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 24, 2025

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Kevin Kyle Lemuel, appeals the district court’s

order designating him a sexually violent predator (SVP). We affirm.

I. Background

¶2 After a night of drinking at two bars, N.H. was walking to her

car when Lemuel told her that their long-time mutual friend Ladon

Wicks had told him to give her a ride. N.H. recognized Lemuel as

someone in a “car club” with Wicks, and she got in Lemuel’s car.

Lemuel drove N.H. to a park, forcibly raped her on the ground

outside the car, then drove away. N.H. contacted the police and

made her way to a nearby residence, where the police responded.

¶3 N.H. did not know her assailant’s name. A sexual assault

nurse examiner collected swabs from N.H.’s genitals and submitted

them for DNA testing. Months later, the police were notified that

the DNA collected from N.H. matched the DNA collected from two

additional sexual assault victims: one assaulted just a month before

N.H., and one assaulted in 2008. The perpetrator of the 2008

sexual assault was Lemuel. N.H. then identified Lemuel from a

photo lineup with “100%” certainty.

¶4 Lemuel pleaded guilty to one count of sexual assault. The SVP

risk assessment screening instrument (SVPASI) showed that

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Lemuel met the criteria to be designated an SVP. Sex Offender

Management Board evaluator Dennis Baker completed the relevant

portion of the SVPASI, indicating that the relationship criterion was

satisfied by a “stranger” relationship between Lemuel and N.H.

Baker later testified that his opinion was based on information in

the probable cause affidavit and Lemuel’s own statement that N.H.

“was a stranger to him.”

¶5 The district court, however, noted that Wicks generally

testified that N.H. and Lemuel had both been present and had

talked at two or more group events of at least ten people, but he

had not seen them talking one-on-one. Based on Wicks’s testimony

that N.H. and Lemuel had previous interactions, the district court

found that the evidence did not establish the stranger criterion.

¶6 The district court then turned to whether the SVP relationship

criteria was otherwise satisfied by Lemuel promoting the

relationship with N.H. primarily for the purpose of sexual

victimization. The court found that Lemuel had promoted the

relationship because he encouraged N.H., with whom he had a

limited relationship, to enter into a broader relationship for the

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purpose of sexual victimization. In particular, the court made the

following findings:

• Wicks normally “look[ed] out for” N.H. to make sure she

didn’t drink and drive.

• When N.H. left the bar, Lemuel “pulled up and said

something to the effect of, [Wicks] told me to give you a

ride since we’re going to the same place. Plus, he doesn’t

want you to get a DUI, and I’m sober, so you might as

well ride with me.”

• N.H. asked Lemuel where they were going, and he said,

“the after party.”

• Because Lemuel was in a car club with Wicks, N.H.

believed Lemuel and agreed to go with him.

¶7 Ultimately, the court found that Lemuel exploited N.H.’s trust

in their mutual friend to lure her into his vehicle, and he

manipulated her with a promise of sober transportation based on

the pretense that Wicks was concerned for her safety. The court

further found that, with the sole purpose of sexually victimizing

N.H., Lemuel acted “with a promise of being her protector, with a

promise of being her friend, with the promise of one standing in the

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position in place of her longtime trusted friend, [Wicks].” The court

thus found that Lemuel had promoted a relationship with N.H. for

the sole purpose of sexual victimization. It designated Lemuel an

SVP.

II. Discussion

¶8 Lemuel contends that (1) the record does not support the

court’s finding that he “lured” N.H. into his car; and (2) even

assuming that he encouraged N.H. to accept a ride, that conduct

does not support the district court’s ultimate finding that he

promoted a relationship under People v. Gallegos, 2013 CO 45,

¶ 14. The People counter that the evidence supports the district

court’s finding that Lemuel promoted a relationship. We agree with

the People.

A. Applicable Law and Standard of Review

¶9 Under the SVP statute, a district court may designate an

offender an SVP if the offender (1) was eighteen years of age or older

on the date of the offense; (2) was convicted of an enumerated

sexual offense (one of which is sexual assault); (3) committed the

offense against a victim who was a stranger or was a person with

whom the offender established or promoted a relationship primarily

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for the purpose of sexual victimization; and (4) is likely to recidivate

by committing an enumerated sexual offense based on the SVPASI.

§ 18-3-414.5(1)(a)(I)-(IV), C.R.S. 2024. Before entering an order

designating an offender an SVP, the district court must make

specific findings of fact regarding these criteria, particularly if the

court deviates from the SVPASI. Allen v. People, 2013 CO 44, ¶ 15;

see also § 18-3-414.5(2). Only the third criterion is at issue in this

appeal.

¶ 10 “[A]n offender ‘promoted a relationship’ if, excluding the

offender’s behavior during the commission of the sexual assault

that led to his conviction, he otherwise encouraged a person with

whom he had a limited relationship to enter into a broader

relationship primarily for the purpose of sexual victimization.”

Gallegos, ¶ 14. In other words, an offender promotes a relationship

“when he and the victim have had a previous relationship, which

was limited in its nature, purpose, and customary time and place of

interaction, but the offender encouraged the expansion of that

relationship to foster sexual victimization.” People v. Valencia, 257

P.3d 1203, 1207 (Colo. App. 2011) (cited with approval in Gallegos,

¶ 15).

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¶ 11 A district court’s SVP designation presents a mixed question of

law and fact. Allen, ¶ 4. We defer to the court’s factual findings

when they are supported by the record and review de novo whether

those factual findings support an SVP designation. Id. Absent clear

error, we will not disturb the court’s findings of fact in an SVP

determination. People v. Brosh, 251 P.3d 456, 460 (Colo. App.

2010).

B. The Record Supports the District Court’s Findings

¶ 12 Lemuel argues that the record does not support the court’s

finding that he “lured” or “manipulated” N.H. into his car, because

the court heard evidence that N.H. asked him for a ride. We

disagree.

¶ 13 First, we note that near the beginning of these SVP

proceedings, Lemuel conceded that the district court could rely on

the facts presented in the probable cause affidavit. Each of the

court’s relevant findings, including its finding about the content of

the conversation that immediately preceded N.H. entering Lemuel’s

car, were based on statements reported in that document. The

court’s characterization of Lemuel’s part in the conversation as

“luring” may be readily inferred from his use of multiple rationales

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to persuade N.H. to accept a ride: Wicks directed it; Lemuel was

sober; they were going to the same after party; and Wicks did not

want her to get a DUI. Likewise, the court could infer that Lemuel

offered these rationales to manipulate N.H. and for the sole purpose

of sexual victimization, given Lemuel’s admission that he used force

to sexually assault N.H. shortly after they drove away from the bar.

We conclude that the record amply supports the court’s findings.

¶ 14 It is true that Wicks testified that N.H. had asked Lemuel for a

ride. Specifically, he testified to the following facts. Near the end of

the evening, N.H. asked Wicks, then Lemuel, and then another man

for a ride. Later, when Wicks prepared to leave, he heard Lemuel

ask N.H., “How far you gotta go?” but N.H. couldn’t remember

where she wanted to go. After that, Wicks left.

¶ 15 Based on the sequence of events presented, we cannot

conclude that Wicks’s testimony necessarily conflicts with the

probable cause affidavit or the district court’s finding that Lemuel

made efforts to lure N.H. into his car. To the extent the testimony

conflicts with the affidavit, it is the province of the fact finder, not

the appellate court, to resolve conflicting evidence. See People v.

McIntier, 134 P.3d 467, 471 (Colo. App. 2005) (It is the fact finder’s

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function “to consider and determine what weight should be given to

all parts of the evidence and to resolve conflicts, testimonial

inconsistencies, and disputes in the evidence.”).

¶ 16 Because the district court’s factual findings are supported by

the record, we will not disturb them. See Allen, ¶ 4; Brosh, 251

P.3d at 460.

C. Lemuel’s Conduct Promoted a Relationship

¶ 17 Lemuel argues that the court erred by finding that he

promoted a relationship by encouraging N.H. to accept a ride

because Gallegos explicitly excludes “the offender’s behavior during

the commission of the sexual assault” from conduct that may

promote a relationship. Gallegos, ¶ 14. We do not share Lemuel’s

view of Gallegos.

¶ 18 Lemuel asks us to interpret Gallegos broadly to exclude a

court’s consideration of conduct that occurred on the same night as

a sexual assault. But Gallegos does not require such a broad

interpretation. Nor does People v. Tunis, 2013 COA 161, ¶¶ 38-41,

where a division of this court concluded that the defendant’s

conduct of (1) asking a third party whether the victim would be

alone and (2) breaking into her home in the middle of the night did

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not establish the SVP criterion “promoted a relationship.” There,

the division did not rely on the fact that the conduct occurred on

the same night as the assault — rather, it concluded that (1) the

defendant’s planning with a third party did not encourage the

victim to enter into a broader relationship; and (2) the

“circumstances of the assault” were precluded from consideration

under Gallegos. Id.; see also Uribe-Sanchez v. People, 2013 CO 46,

¶ 10 (concluding that breaking into a victim’s home, grabbing her,

and quickly escalating into a forcible rape does not establish a

promoted relationship).

¶ 19 In this case, Lemuel’s enticement of N.H. into his car was not

merely planning. That conduct also encouraged the promotion of a

very limited acquaintanceship — a relationship that occurred only

at car club events involving Wicks and did not include names or

direct conversation — to a one-on-one relationship in a place where

the pair had never previously interacted. See Gallegos, ¶ 14;

Valencia, 257 P.3d at 1207.

¶ 20 Moreover, the relevant conduct did not occur during the

commission of the sexual assault. See Gallegos, ¶ 14; Valencia, 257

P.3d at 1208. To the extent it occurred during “the charged

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incident,” as Lemuel argues, it was separated by time and place

from the conduct underlying the sexual assault itself. We conclude

that the district court may consider Lemuel’s behavior, encouraging

N.H. to accept a ride in his car, without running afoul of Gallegos.

¶ 21 For these reasons, we conclude that the district court’s factual

findings support Lemuel’s SVP designation.

III. Disposition

¶ 22 The order is affirmed.

JUDGE DUNN and JUDGE MEIRINK concur.

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