Peo v. Roper

21CA0309 Peo v Roper 11-27-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0309
Boulder County District Court No. 19CR447
Honorable Thomas F. Mulvahill, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Zachary Orion Roper,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE TOW
Brown and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 27, 2024

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney
General and Assistant Solicitor 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, Zachary Orion Roper, appeals the judgment of

conviction following a jury verdict finding him guilty of sexual

assault (victim helpless) and sexual assault (victim incapable of

appraising the nature of her conduct). We affirm.

I. Factual and Procedural Background

A. The Offense

¶2 The jury heard evidence from which it could reasonably find

the following.

¶3 M.G. invited Roper to go to a laser tag event her sorority had

planned. Before going to the event, M.G. and Roper attended a

small gathering where M.G. drank approximately one cup of

alcohol, including vodka and brandy. By the time they got to the

laser tag venue, M.G. was extremely intoxicated. Witnesses

described her as “overly drunk,” having trouble walking and

standing, stumbling, slurring her speech, out of it, and not

understanding what was going on.

¶4 Sorority leaders deemed M.G. “too intoxicated” to remain at

the event and sent her and Roper home, after telling him that she

needed assistance walking. The sorority leaders ordered M.G. an

1
Uber to take her back to the sorority house, where another sorority

sister was waiting for her.

¶5 M.G. became even more intoxicated during the Uber ride, laid

down in the backseat, and was largely unresponsive according to

the driver. At some point during the ride, Roper changed the drop

off location to his apartment without consulting M.G.

¶6 When M.G. did not arrive at the sorority house and failed to

answer her phone, the sorority sister waiting for her became

concerned. Three sorority sisters and Roper’s roommate went to

Roper’s apartment. Roper’s other roommate let them into the

apartment. Once inside, the group walked in on Roper, naked, with

M.G. on his bed. M.G. was on her stomach, head turned to the

side, with her pants pulled down, exposing her vagina.

¶7 The group yelled, but despite the yelling, M.G. did not

respond. As one witness described it, “She didn’t move at all. She

didn’t turn her head or anything.” One of the sorority sisters “was

concerned she was unconscious or hurt.” She shook M.G. and

rolled her over and after what she described as “a really long time,”

M.G. was able to respond. Because M.G. could not walk and was

2
disoriented, her sorority sisters helped her out of Roper’s

apartment.

¶8 M.G. went to the hospital where she underwent a sexual

assault examination. During the examination, M.G. told the

examiner that Roper had sex with her and provided some other

details about the night. At trial, however, M.G. could not remember

the assault, and neither the examiner nor M.G. could independently

recall the examination. The results from the examination were

admitted and showed injuries to M.G.’s genital area.

B. The Court Proceedings

¶9 Roper did not testify at trial. His theory of defense was that

both he and M.G. were intoxicated, M.G. was not as intoxicated as

observers claimed, and the sex was consensual.

¶ 10 During the trial, which took place at the height of the

COVID-19 pandemic, the public was excluded from the courtroom.

A live audio and video stream of the proceedings was provided to

spectators sitting, socially distanced, in a different courtroom. On

the third day of trial, Roper’s counsel informed the court that when

witnesses were viewing and testifying about certain surveillance

videos, those videos were not also captured by the livestream and

3
thus were not broadcast to the public viewing the trial remotely.

Further, counsel indicated that when a detective would stand

during his testimony while explaining certain aspects of the case,

the spectators were unable to hear everything he said, as he would

apparently stray too far from the microphone.

¶ 11 On appeal, Roper argues that he was denied his right to a

public trial. He also challenges the masking protocol, sufficiency of

the evidence underlying his convictions, the trial court’s handling of

two jury questions, and the constitutionality of several statutory

provisions. As to the public trial issue, we remanded to the trial

court to make further findings under the test articulated in Waller

v. Georgia, 467 U.S. 39 (1984). People v. Roper, 2024 COA 9.

Following that remand hearing, the matter is now before us to fully

resolve Roper’s appeal. In doing so, we address, and reject, each of

his claims.

II. Courtroom Closure

¶ 12 Roper contends that, even after the limited remand, the trial

court’s findings fail to justify the courtroom closure. He also

contends that the closure violated the public’s and press’s right to a

public trial.

4
A. Background

¶ 13 The circumstances of Roper’s trial and the trial court’s initial

lack of adequate Waller findings are sufficiently set forth in Roper.

Id. at ¶¶ 1-3, 5-9, 18-26. We need not reiterate them here. Nor

need we reiterate the legal analysis underpinning our decision to

remand for further findings (notwithstanding the fact that Roper’s

counsel dedicated much of the effort during the remand hearing to

attacking that decision).

¶ 14 At the remand hearing, the court admitted the 20th Judicial

District of Colorado Administrative Order 20-110 – Resumption of

Jury Trials, which adopted the Plan for Resuming Jury Trials Safely

During COVID-19 Health Emergency (the Jury Trial Resumption

Plan).1 The Jury Trial Resumption Plan outlined how the District

planned to recommence jury trials in a safe way. It was developed

1 Though Roper objected during the remand hearing to the

prosecution supplementing the record, we note that we remanded
the matter explicitly for the court to make specific findings
regarding what reasonable alternatives were explored.
Supplementation of the record was an inherent part of that inquiry.
In any event, although Roper maintains his objection to the limited
remand, he does not specifically challenge the trial court’s
acceptance of the supplemental record. Thus, we deem any
challenge to supplementing the record (but not the challenge to the
limited remand itself) abandoned.

5
with input from relevant stakeholders — including judges, court

staff, prosecutors (including the two prosecutors who appeared at

the remand hearing), defense attorneys (including one of the public

defenders who appeared at the remand hearing), and public health

officials — and took into account information from the Centers for

Disease Control and Prevention, the Colorado Department of Public

Health and Environment, and other judicial districts regarding their

plans for reinstating trials, as well as executive orders issued by

Colorado Governor Jared Polis.

¶ 15 The Jury Trial Resumption Plan required all participants to

wear masks. The Plan allowed counsel to provide clear masks to

their clients, as well as for witnesses to use during testimony.

¶ 16 The People made a supplemental record about the

circumstances that existed at the time of Roper’s trial. The

supplementation included the following facts:

• At the time of Roper’s trial, the COVID-19 vaccine was

not yet available.

• Though the Jury Trial Resumption Plan originally

contemplated only one trial proceeding at a time, the

decision was made that two trials could be

6
accommodated as long as each trial’s jury pools did not

cross paths.

• The first jury trial under the Jury Trial Resumption Plan

had already begun on the newer side of the courthouse,

where the courtrooms were bigger and had better

ventilation.

• Roper’s trial, therefore, took place on the older side of the

building.

• The public health officials required that all participants

(other than the defendant and defense counsel) maintain

six-foot social distancing.

• Public health officials would not approve the use of other

courtrooms on the older side of the courthouse because

of poor ventilation.

• The jury trial resumption committee measured

courtrooms and marked places for each juror, abiding by

the social distancing guidelines, resulting in there being

no room for anybody other than the jurors to be in the

courtroom where Roper’s trial took place.

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• The gallery benches in the courtroom were moved to

accommodate the social distancing requirement.

• Because of the social distancing requirement, no one

could be seated in the witness stand and the jury box at

the same time, so the jury had to be seated in the gallery

benches.

¶ 17 The judge presiding over the remand hearing was the same

one that presided over Roper’s trial. The trial court found that the

prosecutors’ supplements to the record were accurate and adopted

them. The court then made additional findings regarding the

closure. It found that the jury trial resumption committee had

looked at alternative locations to hold the trial besides the Boulder

County Justice Center but concluded that the courthouse was the

only option due to availability and security concerns. The court

also made findings regarding the layout of the courtroom where

Roper’s trial took place, including where the gallery benches were

placed, the layout of the counsel tables, where the lectern was in

relation to the counsel tables, where the jury box was in relation to

the counsel tables and its dimensions, where the witness stand was

in relation to the jury box, and how the jurors were seated in the

8
gallery. The court also found that the larger courtroom in which

jury selection had taken place was five feet deeper and six feet wider

than the courtroom where Roper’s trial was held.

¶ 18 The trial court then applied the Waller test to these findings.

The court concluded that Roper had conceded that the ongoing

pandemic satisfied the first prong of the test. The court then found

that, based on the supplemented record, “the closure was no

broader than necessary to protect the public’s interest in mitigating

the risks of holding jury trials during the then-ongoing COVID-19

pandemic.” It further found that it had “considered reasonable

alternatives to closing the proceeding.”

B. Applicable Law and Standard of Review

¶ 19 The United States and Colorado Constitutions guarantee

criminal defendants the right to a public trial. See U.S. Const.

amends. VI, XIV; Colo. Const. art. II, § 16. “This right ‘is for the

benefit of the accused; that the public may see he is fairly dealt with

and not unjustly condemned, and that the presence of interested

spectators may keep his triers keenly alive to a sense of their

responsibility and to the importance of their functions.’” People v.

Jones, 2020 CO 45, ¶ 16 (quoting Waller, 467 U.S. at 46). “A public

9
trial also protects the public’s and the press’s qualified First

Amendment rights to attend a criminal trial.” Id. at ¶ 18 (citing

Waller, 467 U.S. at 44, and Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555, 580 (1980)).

¶ 20 Courtroom closures, whether total or partial, can violate the

right to a public trial. Id. at ¶ 27. But the right to a public trial is

not absolute, and at times it must yield to competing interests.

People v. Lujan, 2020 CO 26, ¶ 15 (citing Waller, 467 U.S. at 45).

As the United States Supreme Court articulated in Waller, for a

courtroom closure to be justified,

the party seeking to close the hearing must
advance an overriding interest that is likely to
be prejudiced, the closure must be no broader
than necessary to protect that interest, the
trial court must consider reasonable
alternatives to closing the proceeding, and it
must make findings adequate to support the
closure.

467 U.S. at 48.

¶ 21 “Because a trial court’s decision to close the courtroom

presents a mixed question of law and fact, we review the court’s

legal conclusions de novo and its findings of fact for clear error.”

People v. Turner, 2022 CO 50, ¶ 19 (citation omitted).

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C. Analysis

1. Futility of Remand

¶ 22 We first reject Roper’s argument that the remand was futile.

¶ 23 Roper, citing People v. Montoya, 2024 COA 37, ¶ 23, contends

that the remand was futile because the prosecutors who appeared

at the remand hearing were not the same prosecutors at trial. But

before Roper filed his supplemental brief, the original Montoya

decision was modified. People v. Montoya, 2024 COA 37M. The

modified Montoya opinion no longer suggests that a remand is futile

merely because trial counsel no longer works for the same office.

Id. at ¶ 28. Nor does such a suggestion make sense, given that

nothing prevented either party from subpoenaing trial counsel to

testify at the remand hearing. Moreover, unlike in Jones, ¶ 46,

where the trial judge had died before any remand hearing could

have taken place, the trial judge here remained on the bench and,

in fact, conducted the remand hearing.

¶ 24 In sum, there is nothing to suggest that the remand was futile.

¶ 25 Further, we reiterate our rejection of the argument that Waller

categorically prohibits such remands because they amount to post

hoc rationalizations. As we noted in the order of limited remand,

11
the Supreme Court in Waller arguably only rejected the Georgia

Supreme Court’s post hoc assertion because it had no support in

the record and was insufficient in any case. Roper, ¶ 38 n.5.

Moreover, the specific admonition in Waller is against post hoc

rationalizations offered by an appellate court. And, finally, we again

note that we did not remand for the trial court to explain its

subjective thought processes but, rather, to make findings about

“objective, easily verifiable information that was largely not subject

to shifting recollections or interpretation,” for example the size,

shape, configuration (e.g., the number of rows and number of seats

per row in the gallery), and availability of the courtrooms at the time

of Roper’s trial. Id. at ¶ 42.

2. Adequacy of the Waller Findings

¶ 26 Having concluded that the remand was not futile, we turn to

whether the trial court made adequate findings on the Waller

factors. We conclude that it did.

¶ 27 In Roper, we concluded that the first Waller factor was met.

Roper, ¶ 19. Now, both parties agree and the trial court again

found, with record support, that the overriding interest was the

protection of all trial participants and spectators from contracting

12
or spreading COVID-19. We turn then to the adequacy of the trial

court’s findings as to the second and third Waller factors: whether

the closure was no broader than necessary and whether the court

considered reasonable alternatives.

a. Roper’s Proposed Alternatives During Trial

¶ 28 Roper first contends that the trial court never made sufficient

Waller findings on three other reasonable alternatives he proposed

at trial and again at the remand hearing: (1) a two-way video feed

displaying Roper’s family and friends to the parties and the jurors;

(2) informing jurors that Roper’s family and friends were present

and observing the trial in another courtroom; and (3) showing or

hanging photographs of Roper’s family and friends in the empty

jury box.

¶ 29 The trial court denied Roper’s request to notify the jury that

his friends and family were watching the trial and to have a screen

in the courtroom showing the participants who were watching. The

court also denied Roper’s suggestion to display pictures of his

family and supporters in the courtroom as a way of informing the

jurors and witnesses of their presence on the livestream. But the

13
court agreed — at Roper’s request — to advise each witness that the

trial was being observed via the livestream.

¶ 30 Roper does not explain how any of his proposed alternatives

were reasonable or necessary and we conclude that, as a matter of

law, they were not.2

¶ 31 As the trial court noted in the pretrial conference, a two-way

video feed was unnecessary. Advising the witnesses (and thereby

also advising the jury) that the members of the public were viewing

the trial via the livestream, coupled with visible cameras in the

courtroom, more than adequately reminded the participants and

witnesses that they were being watched. Roper does not explain

how the interests protected by a public trial would be better served

by the addition of a screen in the courtroom displaying those

members of the public who were viewing the trial.

¶ 32 Roper’s request that the court specifically inform the jury that

his family and friends were observing the trial exceeds what a

defendant is entitled to even in a public courtroom. The jury is

2 We do not endeavor to provide a post hoc rationalization of the

trial court’s decision. See Waller v. Georgia, 467 U.S. 39, 48-49, 49
n.8 (1984). Rather, we hold that Roper has failed to demonstrate
that his proffered alternatives were reasonable ones.

14
rarely, if ever, informed of the identity of people who are seated in

the gallery observing the proceedings. And Roper provides no

authority suggesting that such information is required to be given

to the jury. Here, the court’s announcements that the public was

observing the trial via the livestream were sufficient to alert the

jurors that people were watching the trial.

¶ 33 Finally, Roper provides no support for his suggestion that he

be entitled to hang photographs of his family members on the walls.

Indeed, he does not articulate — nor can we see — how this would

have alleviated the effects of a courtroom closure any more than

informing the witnesses and jurors that the proceedings were being

livestreamed.

b. Supplemental Waller Findings

¶ 34 Regarding the court’s supplemental Waller findings in

particular, Roper contends that they are inadequate as to the

second and third factors because (1) the layout of the courtroom

that Roper’s trial took place in allowed at least one member of the

public to be in the room during opening statements and closing

arguments, (2) the larger jury selection courtroom was available for

Roper’s trial and at least one member of the public could have been

15
in that courtroom during trial, and (3) the court could have delayed

the trial.

i. Opening Statements and Closing Arguments

¶ 35 At the remand hearing, the People stated,

Your Honor, there was no room for anyone else
in the courtroom outside of the jurors in the
gallery. The one exception to that would be
the jury box at the time of certain summation,
but usually, again, if someone was at the
witness stand, no one could sit in the jury box
because we had that six[-]foot distance
between the Prosecution, the witness, and
anyone in the juror box. So the only way that
could even be feasible was during opening
statement or closing argument.

Roper contends that this was a concession by the People that one

person could have been placed in the jury box during opening

statements and closing arguments, and thus the court did not take

“every reasonable measure to ensure public attendance.”

¶ 36 First, we disagree that this was a concession by the People. It

was said in passing, as the prosecutor was arguing that the closure

was proper. Moments later, the same prosecutor unequivocally

stated that “it was just not possible” to accommodate the public in

the courtroom. Moreover, taking the prosecutor’s words at face

value, at most it was a concession that placing a single person in

16
the jury box for only those portions of the trial was feasible, not

that it was reasonable.

¶ 37 In its written order, the trial court enumerated most of the

People’s assertions from the hearing and then found that they were

accurate and adopted and incorporated them into the record. The

court did not explicitly adopt the People’s assertion that it was

feasible that a member of the public could have been in the

courtroom during opening statements and closing arguments.

Rather, the court described the layout and dimensions of the

courtroom where Roper’s trial took place, including that counsel

tables were moved to the outer edges of the courtroom in order to

allow for six-foot distancing to the lectern, the prosecution’s table

touched the jury box, the jury box measured six feet, four inches

from the wall to the front railing, and the witness stand was only

four feet, ten inches from the jury box railing. Given these findings,

it is far from clear that the trial court agreed with the People’s

assertion that someone could have been seated in the jury box

during opening statements and closing arguments, while complying

with social distancing requirements. Moreover, nothing in the

17
record other than the single remark made by the prosecutor

demonstrates that this was possible.

¶ 38 In any event, it is clear from the hearing transcript that no

one — not the prosecutor, not the judge, not even defense

counsel — treated the prosecutor’s remark as a concession that

putting a single member of the public in the jury box solely during

opening statements and closing arguments would have been a

reasonable alternative. See United States v. Veneno, 94 F.4th 1196,

1206 (10th Cir. 2024) (concluding that although the district court

could possibly have made room for a few members of the public by

rearranging the juror seating, doing so was not necessarily

reasonable at the height of the pandemic). Nor did Roper argue to

the trial court that allowing a single member of the public to sit in

the jury box only during opening statements and closing arguments

was a reasonable alternative to the closure. Thus, being made for

the first time on appeal, we decline to consider the contention now.

See People v. Greer, 262 P.3d 920, 930 (Colo. App. 2011) (declining

to review an alleged constitutional error first raised on appeal where

“the record may not be complete and the trial court was not

afforded an opportunity to rule”).

18
ii. Jury Selection Courtroom

¶ 39 Even assuming that the larger jury selection courtroom was

available for Roper’s trial, we reject Roper’s contention that because

the jury selection courtroom could fit twenty-two prospective jurors

in the gallery and in the jury box, at least one member of the public

could have been in the courtroom during trial. After detailing the

layout of the courtroom that was used for Roper’s trial, the trial

court found that the jury selection courtroom was only five feet

deeper and six feet wider than the courtroom used for Roper’s trial,

and the extra five feet of depth was from the front of the jury box to

the gallery railing. In other words, the gallery in the jury selection

courtroom was not significantly larger. Given these findings, had

the jury selection courtroom been arranged for trial in a similar

manner as the courtroom that was used for Roper’s trial, in order to

accommodate for social distancing, it still does not appear that

someone from the public could have been in the larger courtroom

during trial. Moreover, Roper failed to argue to the trial court that

this was a reasonable alternative, and being made for the first time

on appeal, we again decline to address it. See id.

19
iii. Delay

¶ 40 We continue to reject the argument that delay was a

reasonable alternative. As we noted in the order of limited remand,

the trial court began by considering and rejecting Roper’s request

for another continuance. Roper, ¶ 21. The court noted that the

offense was a sex offense (and thus M.G. had the right to object to

further delay) and that the case was “getting on to be two years

old.” Id. Thus, the court found that another continuance was not

appropriate. Id. We reiterate that under the circumstances, and

based on the court’s specific findings, we agree with the trial court.

¶ 41 Nor is Roper’s argument that the trial court deviated from the

Jury Trial Resumption Plan’s directive that only one felony trial

would take place at a time availing. As noted, it was determined

that two trials could safely take place in the courthouse as long as

the jury pools for each respective trial remained on opposite sides of

the courthouse.

¶ 42 In short, the trial court concluded that the public could not be

accommodated and that Roper’s proposed alternatives were not

reasonable. These findings have record support. As such we will

not disturb them. Therefore, we conclude that the supplemental

20
Waller findings are adequate to support the closure and thus turn

to Roper’s other appellate contentions. See Veneno, 94 F.4th at

1206 (concluding that the trial court made adequate Waller

findings, relying on a similar jury trial resumption plan, to justify a

similar closure).

3. First Amendment Public Trial Right

¶ 43 Roper also contends that the public’s and press’s First

Amendment public trial right was violated because they did not

have actual access to the proceedings due to the closure and the

limitations of the livestream with respect to (1) allowing the viewing

audience to see Roper; (2) displaying to the viewing audience the

surveillance videos being viewed in the courtroom; and (3) ensuring

that the detective could be heard when he moved away from the

microphone. He also contends that requiring jurors and himself to

wear masks further exacerbated the public’s actual access to the

trial and its ability to view it. The People contend that Roper lacks

standing to bring these claims. We agree with the People.

¶ 44 Roper cites no authority for the proposition that the right of

the press and public is any broader than a defendant’s public trial

right. Nor has he shown that he has standing to enforce such a

21
right. He has cited no case, nor are we aware of any, in which a

defendant brought a violation of the First Amendment public trial

right claim on behalf of the public or press. See City of Greenwood

Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427, 439

(Colo. 2000) (“The third-party standing rule prevents a party from

asserting the claims of third parties who are not involved in the

lawsuit.”). We therefore do not decide these contentions. See

Boudette v. State, 2018 COA 109, ¶ 13 (“Standing is a threshold

issue that must be satisfied in order to decide a case on the merits.”

(quoting Ainscough v. Owens, 90 P.3d 851, 855 (Colo. 2004))).

III. Face Mask Requirements

¶ 45 Roper contends that requiring jurors to wear face masks

impeded face-to-face interactions and gave jurors a “sense of

anonymity,” generally alluding to a violation of his public trial right,

right to confrontation, right to challenge jurors, and due process

rights. Roper also contends that the trial court erred by denying his

request that the prosecutor provide him with a clear mask and that

this denial violated his right to confrontation. We reject both

contentions and discern no constitutional violation.

22
A. Standard of Review and Applicable Law

¶ 46 “We review de novo whether a Confrontation Clause violation,

or other constitutional violation, occurred.” People v. Garcia, 2022

COA 144, ¶ 13.

¶ 47 “A trial court’s management of the courtroom is . . . reviewed

for an abuse of discretion.” Id. at ¶ 14. “An abuse of discretion

occurs when the trial court’s decision is manifestly arbitrary,

unreasonable, unfair, or based on an erroneous understanding of

the law.” Id.

¶ 48 “The Sixth Amendment to the United States Constitution and

article II, section 16 of the Colorado Constitution provide criminal

defendants with the right to be confronted with the witnesses

against them.” People v. Hernandez, 2021 CO 45, ¶ 19. Generally,

confrontation rights include the right to the physical presence of a

witness, testimony of the witness under oath, cross-examination of

the witness, and observation of the witness’ demeanor. Id.

B. Analysis

1. Requiring Jurors to Wear Face Masks

¶ 49 After Roper filed his opening brief a division of this court held

that a requirement that prospective and impaneled jurors wear

23
masks during jury selection and at trial during the COVID-19

pandemic did not raise constitutional concerns. See Garcia, ¶¶ 16-

26. In Garcia, the division concluded that a defendant can still

assess a juror’s credibility and demeanor during voir dire and trial

while the juror is wearing a face mask. Id. at ¶ 20. Moreover, the

division stated that it was aware of no authority holding that

defendants have a constitutional right to see jurors’ uncovered

facial expressions during trial. Id. at ¶ 21. And Roper cites no

such authority. Nor does he respond to the People’s argument that

we should follow Garcia and reject his claims. We consider Garcia

to be well reasoned and follow it here.

2. Roper’s Request for a Clear Mask

¶ 50 Before the trial resumed on the second day, defense counsel

asked the trial court to order the prosecution to provide Roper with

a clear mask because defense counsel was unable to obtain one.

The trial court denied the request, stating that it was up to defense

counsel to provide his client with a clear mask. The record is

unclear as to whether the prosecutor provided a clear mask to

Roper. But even assuming that Roper did not wear a clear mask

24
during trial, we discern no error in the trial court’s ruling or any

constitutional violation stemming from that ruling.

¶ 51 As noted, the Jury Trial Resumption Plan provided that

“[a]ttorneys may provide clear masks for themselves and their

clients, as well as for witnesses to use during their testimony.” The

trial court denied Roper’s request in accordance with the Jury Trial

Resumption Plan, and we discern no abuse of discretion in doing

so. Indeed, had defense counsel provided Roper with a clear mask

so the jurors could see his face, it would have obviated the issues

he now raises. In other words, the trial court did not deprive Roper

of the opportunity to allow the jurors to see his full face. Further,

this denial, which purportedly resulted in Roper not wearing a clear

mask, did not violate Roper’s confrontation right. Cf. Garcia, ¶ 32

(concluding that the limitation on some jurors’ ability to see the

defendant’s entire face during the trial, because they were seated in

the gallery due to COVID-19 spacing requirements, did not violate

the defendant’s right to confrontation).3

3 Roper also asserts, without citing authority or developing an

argument, that the trial court’s denial of his request for a clear
mask violated “his due process right to a fair trial generally.” We do

25
IV. Sufficiency of the Evidence

¶ 52 Roper contends that there was insufficient evidence to convict

him of sexual assault (victim helpless) and sexual assault (victim

incapable of appraising the nature of her conduct). We disagree.

A. Standard of Review

¶ 53 “[W]e review the record de novo to determine whether the

evidence before the jury was sufficient both in quantity and quality

to sustain the convictions.” Dempsey v. People, 117 P.3d 800, 807

(Colo. 2005). We view the evidence as a whole and in the light most

favorable to the prosecution to determine whether the evidence was

“sufficient to support the conclusion by a reasonable mind that the

defendant was guilty beyond a reasonable doubt.” People v. Griego,

2018 CO 5, ¶ 24. In doing so, we give the prosecution “the benefit

of every reasonable inference which might be fairly drawn from the

evidence.” People v. Perez, 2016 CO 12, ¶ 25 (quoting People v.

Gonzales, 666 P.2d 123, 128 (Colo. 1983)). It is the role of the jury

to weigh the credibility of witnesses and to resolve conflicting

not consider this “bald legal proposition presented without
argument or development.” People v. Rios, 2020 COA 2, ¶ 7 n.1;
see also C.A.R. 28(a)(7)(B).

26
testimony. People v. Poe, 2012 COA 166, ¶ 14. We may not

substitute our judgment for the jury’s or reweigh conflicting

evidence or witness credibility. Id.

B. Applicable Law

¶ 54 A person commits sexual assault (victim physically helpless)

when they “knowingly inflict[] sexual intrusion or sexual

penetration on a victim . . . [and t]he victim is physically helpless

and the actor knows the victim is physically helpless and the victim

has not consented.” § 18-3-402(1)(h), C.R.S. 2024. Physically

helpless “means unconscious, asleep, or otherwise unable to

indicate willingness to act.” § 18-3-401(3), C.R.S. 2024.

¶ 55 A person commits sexual assault (victim incapable of

appraising the nature of her conduct) when they “knowingly inflict[]

sexual intrusion or sexual penetration on a victim . . . [and t]he

actor knows that the victim is incapable of appraising the nature of

the victim’s conduct.” § 18-3-402(1)(b). “Subsection (b) addresses

the situation in which a victim is cognitively unable to appreciate

her conduct; in other words, it involves a victim who simply cannot

understand what she is doing.” Platt v. People, 201 P.3d 545, 548

(Colo. 2009). A victim who is extremely intoxicated may be

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incapable of appraising the nature of their conduct. See People in

Interest of J.R., 216 P.3d 1220, 1222 (Colo. App. 2009); People v.

Lancaster, 2022 COA 82, ¶¶ 19-20; People v. Martinez, 2020 COA

141, ¶¶ 45-49.

¶ 56 “Subsections (b) and (h) are not mutually exclusive. Instead,

the same conduct may, depending on the evidence, violate both

sections.” Platt, 201 P.3d at 548.

C. Analysis

¶ 57 Roper contends that there was insufficient evidence to show

that M.G. was physically helpless or incapable of appraising the

nature of her conduct and that Roper knew she was physically

helpless or incapable of appraising the nature of her conduct. We

disagree with both contentions.

¶ 58 Roper specifically contends that although M.G. testified that

she did not remember anything from that evening, “evidence

demonstrated that she appeared conscious, awake, and able to

indicate willingness to act,” specifically that she appeared awake

and conscious before and after the assault. But merely pointing to

evidence supporting his defense does not mean that there was

insufficient evidence to support the conviction. See People v. Oliver,

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2020 COA 150, ¶ 6 (“A conviction will not be set aside merely

‘because a different conclusion might be drawn from the evidence.’”

(quoting People v. Tumbarello, 623 P.2d 46, 49 (Colo. 1981))).

¶ 59 Rather, viewing the evidence as a whole and in the light most

favorable to the prosecution, and giving the prosecution the benefit

of every reasonable inference, we conclude the evidence was

sufficient to sustain Roper’s convictions for both sexual assault

(physically helpless) and sexual assault (victim incapable of

appraising the nature of her conduct).

¶ 60 With respect to whether M.G. was physically helpless, the

evidence reflected that Roper was with M.G. while she was drinking

and witnessed her exhibiting outward signs of extreme intoxication.

He knew she had been sent home from the laser tag event. He

knew she got even more intoxicated during the Uber drive. Cf.

Martinez, ¶ 48 (concluding that evidence of the victim’s intoxication

allowed the jury to infer that the victim was highly intoxicated —

and exhibited outward signs of impairment — during her encounter

with the defendant). A sorority sister testified that when the group

walked in on Roper penetrating M.G., M.G. appeared unconscious.

M.G. was unresponsive to the group’s yelling and was not moving,

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and she could not walk or dress herself. Based on this evidence,

the jury could have concluded that she was unconscious during the

sexual assault, and that Roper knew she was unconscious. See

J.R., 216 P.3d at 1222 (concluding that the evidence was sufficient

to support a finding that the victim was physically helpless).

¶ 61 Further, we reject Roper’s argument that M.G. was alert and

oriented and able to describe what had occurred between her and

Roper and thus was not “otherwise unable to indicate willingness to

act.” There was evidence that M.G. was unable to move on her own

immediately following the assault, and a reasonable inference would

have been that she could not indicate willingness to act during the

assault due to her physical incapacity, and that Roper knew it.

¶ 62 Roper contends that for the same reasons, the evidence was

insufficient to convict him of sexual assault (victim incapable of

appraising the nature of her conduct). But the same evidence

shows that M.G. was unable to appreciate the nature of her

conduct, and that Roper knew it. Additionally, the evidence

reflected that M.G.’s tampon had not been removed when Roper

assaulted her, which further supports the conclusion that she did

not understand what she was doing. See Platt, 201 P.3d at 548.

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¶ 63 In sum, we conclude the evidence was sufficient to convict

Roper of both types of sexual assault.

V. Jury Questions

¶ 64 Roper contends that the trial court erred by failing to provide

further guidance to the jury in its answers to two jury questions.

We agree with the People, however, that Roper waived this

contention.

¶ 65 During deliberation, the jury sent two questions to the trial

court:

(1) “We would like further explanation of ‘unable to indicate

willingness to act;’” and

(2) “Is there any further legal definition of incapable of

appraising the nature of conduct?”

¶ 66 The prosecutor requested that “the Court should instruct

them that they have all of the instructions of law that they will be

provided related to this.” Defense counsel responded,

Generally, I agree with that. I think the
language I have seen as you had been provided
the legal definitions for all words which have a
legal definition, and either leave it at that, or
then I think there’s some case law that
suggests if they keep asking or if they’re not
sure that this common usage is something

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that’s been tested by appellate courts. So I
think we’re in accord, generally; how to phrase
it specifically, I’d defer to the Court. But I
think they’ve been given what they can and
they need to apply common usage for those
that they don’t have a definition for.

The trial court asked, “That’s if they persist in asking for direction?”

And defense counsel responded, “I think that’s right.” The trial

court then said, “Okay. My thought would be this. This verbiage

would be, you’ve been provided the legal definition for all words that

have a legal definition.” After discussing the second juror question,

defense counsel agreed with the prosecutor that the court should

answer this question the same way it planned to answer the first.

¶ 67 Roper waived any challenge to the sufficiency of the trial

court’s answers to the two jury questions by affirmatively agreeing

with the answer to both. See People v. Dunlap, 124 P.3d 780, 817

(Colo. App. 2004) (“When a defendant actively participates in the

preparation of a response to the jury, or expressly agrees to it, he or

she is prevented from asserting error with respect to that

response.”). Accordingly, we will not consider this claim. See

Rediger v. People, 2018 CO 32, ¶ 40 (“[W]aiver extinguishes error,

and therefore appellate review . . . .”).

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VI. Constitutionality Challenges to Statutes

¶ 68 Finally, Roper lodges facial and as-applied challenges to the

constitutionality of three statutes. In particular, he contends that

(1) section 18-3-402(1)(h) (sexual assault where the victim is

physically helpless) is unconstitutionally vague both on its face and

as applied to him; (2) section 18-3-402(1)(b) (sexual assault where

the victim is incapable of appraising their own conduct) is

unconstitutionally vague as applied; and (3) the voluntary

intoxication statute is unconstitutional both facially and as applied.

¶ 69 Roper concedes that none of his constitutional challenges was

preserved. While we generally do not address as-applied challenges

that are not presented to the district court, we may do so in the

interest of judicial economy and where, despite the lack of an

objection, the record is sufficient to do so. People v. Price, 2023

COA 96, ¶ 47. Roper urges us to consider his claims and assures

us that we have a sufficient record to do so. We agree the record is

sufficient and accordingly, we exercise our discretion to address his

claims. In doing so, we reject them.

¶ 70 Because each of the claims was unpreserved, we review each

claim for plain error. Hagos v. People, 2012 CO 63, ¶ 14. To be

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plain, an error must be obvious, meaning that it “contravene[d] a

clear statutory command, a well-settled legal principle, or

established Colorado case law.” People v. Crabtree, 2024 CO 40M,

¶ 42. Roper points to no such command, principle, or case law in

existence at the time of trial for any of the three statutory provisions

he now attacks. To the contrary, two of the three provisions have

been explicitly held to be constitutional. See People v. Gross, 670

P.2d 799, 801 (Colo. 1983) (holding that the provision regarding

sexual assault when “the actor knows that the victim is incapable of

appraising the nature of the victim’s conduct” was not

unconstitutionally vague); People v. Stone, 2020 COA 23, ¶ 20

(rejecting a constitutional challenge to the voluntary intoxication

statute).

¶ 71 Because Roper does not identify any obvious error, his

constitutional challenges must fail.

VII. Disposition

¶ 72 The judgment is affirmed.

JUDGE BROWN and JUDGE SCHOCK concur.

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