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
6
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
¶ 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
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,
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.
