Peo v. Arceo Trevizo

21CA1582 Peo v Arceo Trevizo 10-17-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1582
Boulder County District Court No. 19CR1505
Honorable Norma A. Sierra, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Hugo Armando Arceo Trevizo,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE BROWN
Welling and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 17, 2024

Philip J. Weiser, Attorney General, Joshua J. Luna, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Cynthia A. Harvey, Alternate Defense Counsel, Aurora, Colorado, for
Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Hugo Armando Arceo Trevizo, appeals the

judgment of conviction entered on jury verdicts finding him guilty of

two counts of sexual assault – use of force. Arceo Trevizo contends

that the evidence presented at his trial was insufficient to support

his convictions. We disagree and affirm.

I. Background

¶2 The prosecution presented evidence that the victim met Arceo

Trevizo through a dating website in 2011, went to his office initially

to discuss insurance, and then went on a date with him a few

weeks later. On that first date, which occurred in late 2011 or early

2012, the victim and Arceo Trevizo had consensual sex. After that,

they were “kind of friends” and occasionally talked or texted every

once in a while.

¶3 In September 2012, with her friend’s encouragement, the

victim went out with Arceo Trevizo again. She met him at his

house, cooked dinner for him and his children, and watched a

movie with them. Later, the victim and Arceo Trevizo went to his

bedroom where they became intimate. When Arceo Trevizo put his

penis in the victim’s vagina, she decided “that’s not what [she]

wanted.” She tried to pull away and told him, “No, I don’t want to

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do this.” Over her continued protests, and with his hand on her

neck or his arm on her back, Arceo Trevizo forcibly penetrated the

victim both vaginally and anally.

¶4 When the victim left Arceo Trevizo’s home, she (1) called her

friend and told the friend that she had been raped; (2) went to a

hospital where she underwent a sexual assault nurse examination

(SANE) and disclosed the assault to the SANE nurse who performed

that exam; and (3) reported the assault to the police.

¶5 The prosecution charged Arceo Trevizo with two counts of

sexual assault – use of force, in violation of section 18-3-402(l)(a),

(4)(a), C.R.S. 2024. Following a trial, a jury found him guilty of both

charges.

II. Standard of Review and Applicable Law

¶6 On appeal, Arceo Trevizo challenges the sufficiency of the

evidence supporting his convictions. In assessing the evidence’s

sufficiency, we review the record de novo to determine whether the

evidence, viewed as a whole and in the light most favorable to the

prosecution, is substantial and sufficient to support a finding by a

reasonable jury that the defendant is guilty of the charge beyond a

reasonable doubt. Thomas v. People, 2021 CO 84, ¶ 10; People v.

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Donald, 2020 CO 24, ¶ 18. In so doing, we give the prosecution the

benefit of every reasonable inference that might be fairly drawn

from the evidence. People v. Perez, 2016 CO 12, ¶ 25.

¶7 When analyzing the sufficiency of the evidence, we recognize

that it is for the fact finder — the jury in this case — to evaluate the

witnesses’ credibility, determine the evidence’s weight, and resolve

conflicts or inconsistencies in the evidence. People v. Poe, 2012

COA 166, ¶ 14. We will not second-guess findings that are

supported by the evidence or substitute our judgment for the jury’s.

See Thomas, ¶ 10; see also People v. Strickler, 2022 COA 1, ¶ 11.

Although guessing, speculation, conjecture, or a mere modicum of

relevant evidence cannot support a verdict, Perez, ¶ 25, if

reasonable minds could differ, the evidence is sufficient to sustain a

conviction, People v. Kessler, 2018 COA 60, ¶ 12.

¶8 A person commits sexual assault by knowingly inflicting

sexual intrusion or sexual penetration on a victim whom the person

knows does not consent. § 18-3-402(1)(a). Although ordinarily a

class 4 felony, sexual assault is a class 3 felony if the actor causes

the victim to submit to sexual intrusion or sexual penetration

“through the actual application of physical force or physical

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violence.” § 18-3-402(4)(a). The term “physical force” has been

interpreted to mean “force applied to the body” and does not require

an “extra application” of force. People v. Keene, 226 P.3d 1140,

1143 (Colo. App. 2009) (quoting People v. Holwuttle, 155 P.3d 447,

449 (Colo. App. 2006)). For example, an actor using his body

weight to cause the victim to submit against her will is sufficient to

establish that the actor applied the physical force required under

section 18-3-402(4)(a). Id.

III. Analysis

¶9 Arceo Trevizo contends that the evidence presented at his trial

was insufficient to establish that (1) he had any knowledge that the

victim did not consent to vaginal intercourse; (2) anal intercourse

occurred; and (3) he caused the victim to submit through the use of

force. Specifically, he argues that there was no physical evidence

linking him to the anal intercourse and the testimony from the

SANE nurse did not prove that the victim did not consent. Viewing

the evidence in the light most favorable to the prosecution, we

conclude that it was sufficient to support the jury’s verdicts that

Arceo Trevizo sexually assaulted the victim twice and did so by

using physical force.

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¶ 10 The victim testified as follows:

• She went to Arceo Trevizo’s home on September 15, 2012,

cooked dinner for him and his children, and watched a

movie with them.

• Later that evening, she engaged in consensual intimate

activities with Arceo Trevizo. However, when Arceo Trevizo

inserted his penis into her vagina, she decided that was not

what she wanted and pulled back her hips.

• Arceo Trevizo then grabbed her neck. She tried to push him

back and told him, “No, I don’t want to do this.”

• Trevizo continued having sex with her with one of his hands

on her neck and the other holding her hand above her head.

• She was crying and asked him to stop, saying, “Please don’t.

I don’t want to do this.” Arceo Trevizo told her to “[s]hut up

and be a good little girl.” When she continued to cry and

asked him to stop, Arceo Trevizo “moved his hand over [her]

mouth so [she] couldn’t cry loud anymore.”

• Arceo Trevizo paused and flipped her over onto her stomach

where she “could feel the pressure of his arm on [her] back

so [she] couldn’t move.” She then felt him “spitting on [her]

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butt,” and as she tried to grab the sheets to pull herself up,

he “put his penis into [her] butt and push[ed] harder.” She

tried to get Arceo Trevizo to stop by pinching him and

yelling for him to stop, but he kept going.

• When Arceo Trevizo stopped, she told him that he had

raped her, dressed, and left his house.

• After she left Arceo Trevizo’s house, she called her friend

and told the friend that Arceo Trevizo had raped her. She

went to a hospital where she reported the assault and

underwent a comprehensive SANE.

¶ 11 The victim’s friend testified that the victim called her in the

middle of the night after leaving Arceo Trevizo’s house, was crying

uncontrollably, and told her that Arceo Trevizo had raped and

sodomized her. Also, the SANE nurse and a detective each testified

about how the victim described the assault to them and their

accounts corroborated details of the victim’s trial testimony.

¶ 12 Viewing the evidence in the light most favorable to the

prosecution, we conclude that it is substantial and sufficient to

support the jury’s finding that Arceo Trevizo was guilty of two

counts of sexual assault by use of force against the victim — one for

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vaginally sexually assaulting her and another for anally sexually

assaulting her. See Thomas, ¶ 10. The victim’s testimony that she

repeatedly protested the sexual assault was sufficient for the jury to

find that Arceo Trevizo knew she did not consent. § 18-3-402(1)(a).

And her testimony that Arceo Trevizo held her by the neck and kept

her arms over her head while vaginally penetrating her and pressed

his arm into her back while anally penetrating her was sufficient for

the jury to find “the actual application of physical force.” § 18-3-

402(4)(a).

¶ 13 In reaching our conclusion, we reject Arceo Trevizo’s assertion

that the evidence was insufficient because (1) the SANE nurse

testified that (a) she did not observe bruising or injuries to the

victim’s neck, back, or arms, and (b) the victim’s injuries could have

been consistent with consensual sex; and (2) there was no DNA

evidence to prove that he spit on the victim’s back or penetrated her

anally. As we have explained, the victim’s testimony alone, which

recounted the details of both assaults, provided more than a mere

modicum of relevant evidence to establish the elements of each of

the offenses. See Poe, ¶ 14; see also Keene, 226 P.3d at 1143.

Arceo Trevizo’s argument amounts to nothing more than a request

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that we “serve as a thirteenth juror” and reweigh the evidence,

which we will not do. Thomas, ¶ 10 (quoting People v. Harrison,

2020 CO 57, ¶ 33); see also Strickler, ¶ 11.

IV. Disposition

¶ 14 We affirm the judgment of conviction.

JUDGE WELLING and JUDGE HAWTHORNE concur.

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