Peo v. DiMarco C

21CA2012 Peo v DiMarco 11-27-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA2012
Boulder County District Court No. 18CR1836
Honorable Normal A. Sierra, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Curtis James DiMarco,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE FREYRE
Grove and Lum, JJ., concur

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

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellant

Mallika L. Magner, Alternate Defense Counsel, Crested Butte, Colorado, for
Defendant-Appellant
¶1 Defendant, Curtis James DiMarco, appeals the judgment of

conviction entered on a jury verdict finding him guilty of numerous

sex offenses. He challenges his convictions on five grounds,

asserting that the trial court erroneously (1) refused to sever the

codefendants’ cases; (2) constructively amended the charges in a

jury instruction and on the verdict form after deliberations

commenced; (3) failed to require the prosecution to elect a single

transaction or to give the jury a modified unanimity instruction; (4)

admitted irrelevant and prejudicial evidence related to victim C.D.;

and (5) failed to replace an inattentive juror with the alternate.

DiMarco also claims that cumulative error deprived him of a fair

trial.

¶2 Because we agree that the trial court abused its discretion by

not replacing an inattentive juror with the alternate, we reverse the

judgment and remand for a new trial. However, because the

remaining issues are unlikely to arise in the same context on

retrial, we do not further address them.

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I. Background

¶3 DiMarco and his wife, Sherry, have six children: C.D., A.D.,

L.D., Ln.D., D.D., and Ly.D. In August 2017, DiMarco was arrested

for explosive-related charges. Consequently, all six children were

placed in foster care.

¶4 While in foster care, the children engaged in concerning

behaviors. For example, Ln.D. and D.D. masturbated in public.

Eventually, several of the children accused DiMarco and Sherry of

sexual abuse.

¶5 A.D. said that DiMarco showered with him and his brothers

and washed his genitals and buttocks. He also said that DiMarco

touched A.D.’s penis in the kids’ bedroom. A.D. also described

DiMarco placing a vibrator in his buttocks.

¶6 L.D. testified that DiMarco placed things in his buttocks and

that DiMarco touched L.D.’s penis in the kids’ bedroom.

¶7 The prosecution charged DiMarco with sexual assault on a

child (A.D.) by one in a position of trust, pattern of abuse;

solicitation to commit aggravated incest (A.D. touching Sherry);

solicitation to commit incest (A.D. touching L.D., Ln.D., and D.D.);

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sexual assault on a child (L.D.) by one in a position of trust, pattern

of abuse; solicitation to commit aggravated incest (L.D. touching

Sherry); solicitation to commit incest (L.D. touching Li.D., A.D., and

D.D.); attempt to commit aggravated incest (Ln.D.); sexual assault

on a child (Ln.D.) by one in a position of trust, pattern of abuse;

and solicitation to commit incest (Ln.D. touching A.D. and L.D.).

¶8 The prosecution charged codefendant Sherry with sexual

assault on a child by one in a position of trust, pattern of abuse and

conspiracy to commit sexual assault on a child by one in a position

of trust. The codefendants were tried jointly. The jury convicted

Sherry of conspiracy and acquitted her of the remaining charges.

¶9 Concerning DiMarco, the jury hung on the solicitation to

commit aggravated incest (A.D. touching Sherry) charge and

acquitted him of the solicitation to commit aggravated incest (Lu.D.

touching Sherry) charge. It found him guilty of the remaining

offenses. The court sentenced DiMarco to a controlling term of sixty

years to life in the custody of the Department of Corrections.

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II. Juror Misconduct

¶ 10 DiMarco contends that the trial court abused its discretion in

denying his request to replace an inattentive juror with an alternate

juror because the juror admittedly missed key testimony that

prejudiced him. We agree.

A. Additional Facts

¶ 11 On the morning of the third day of trial, L.D. and D.D.’s

adoptive mother (outcry witness), a family support worker who

supervised visits between the children and DiMarco and Sherry,

and a lead intake caseworker at the Boulder County Department of

Housing and Human Services testified.

¶ 12 During a break in the testimony, the trial court informed the

parties that Juror V told the bailiff he had witnessed a potentially

fatal accident on his way home the previous night that he found

quite disturbing, and that he was having trouble focusing on the

testimony. The court said it planned to question Juror V outside

the presence of the other jurors.

¶ 13 The court began by confirming what Juror V had reported. It

then told the juror there would be one more witness before the

lunch break and asked whether the break would allow him to clear
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his head and focus. Juror V responded, “I’m willing to try that, but

this shook me in ways that took me by surprise.” The court said it

appreciated Juror V’s willingness to try and asked Juror V to let his

clerk know of “any continued difficulty [and] how you experience

the course of the afternoon.”

¶ 14 DiMarco’s counsel then asked, “Were you able to pay attention

and listen to the previous witnesses’ testimony?” Juror V

responded, “Not totally 100 percent. Like I mentioned[,] yesterday I

was focused on this, and today, I found myself – well, the picture of

that poor man lying on the road and appeared to me he was dead.

That’s what keeps coming back.”

¶ 15 The court followed up by asking, “When you say not totally

100 percent, I know that you were physically in the courtroom, and

undoubtedly, it appears that that image kept occurring to you. Did

you find that you were in part able to pay attention to the

testimony, but not fully?” Juror V said, “In part.” The court

responded, “Okay. And it’s impossible to quantify the depth of your

attention. Yesterday, you said that were like fully attentive.” Juror

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V said, “Yep.” The court then asked Juror V to check back in later

in the afternoon, and Juror V agreed to do so.

¶ 16 At the lunch break, defense counsel asked to make a record

outside the jury’s presence. He argued that Juror V was unable to

listen to the morning testimony up to the morning break, which

occurred later than normal due to the length of the testimony. He

said the juror had been impaired long enough with some of the

most important witnesses in the trial and asked that the juror be

excused and replaced with an alternate. The prosecutor said he

would wait until the court inquired of Juror V in the afternoon.

¶ 17 The court said it would not excuse Juror V at that point and

noted that

[Juror V] was particularly conscientious in
bringing this information to the court’s
attention. We certainly don’t know to what
extent all other jurors were paying as close
attention as [Juror V] indicated that he was
yesterday afternoon when he indicated that he
was full on paying attention to all of the
testimony. This morning, he indicated that he
was in part distracted by the memory of his
observations yesterday evening.

I would hope that he is able to regain the focus
that he believes he had yesterday afternoon,
and we will be checking in with him anew.

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¶ 18 That afternoon C.D., A.D., and Lu.D. testified. The court

questioned Juror V again. Juror V stated, “This afternoon was

much better. I can’t say that it’s all gone, but most of it’s gone.”

When asked if he was able to focus on the testimony, Juror V

responded that he was able to focus “most of the time” but not one

hundred percent. When asked how the afternoon compared to the

morning, Juror V said, “Oh, totally different. Yeah. This morning

was, oh, I missed quite a bit this morning.”

¶ 19 The prosecutor took no position and said he would defer to the

court. DiMarco’s counsel asked the court to excuse Juror V.

DiMarco argued that Juror V indicated that he was significantly

impaired during the morning session. DiMarco stated,

I think he indicated that he was not able to
focus quite normally this afternoon, which –
but nonetheless was significantly better than
this morning, which begs the question of just
how bad the morning was. And I think what
that means is that the morning was very
significantly impaired.

I would note that through the day of impaired
focus, we have had three alleged victims
testify, as well as the two foster parents, who
are really the initial outcry witnesses. And so I
would describe today as the most important
day from an evidentiary perspective of any of

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the days that I see us having this trial. And to
have a juror who is impaired for that period of
time, I think really is – violates Mr. DiMarco’s
due process rights, and rights to have a jury
truly listen to the testimony.

¶ 20 The trial court denied the request, saying

To the extent that he missed some of the
testimony, you are correct.

The Court is not excusing [Juror V] at this
point in time. The Court left open the
possibility that he touches back with the Court
in the ensuing days. As the Court indicated,
the Court tracks jurors to ensure that none are
asleep or seem to be distracted by anything
that is within their vicinity. And the Court
regards as particularly conscientious on the
part of [Juror V] the fact that he felt compelled
to inform the Court about his experience and
the fact that he regarded himself not fully able
to focus on the presentation of evidence this
morning.

There may be other jurors who at times
perhaps find themselves also distracted by
other goings on in their lives who perhaps
don’t communicate as fully with the Court.

The Court did indicate to jurors that when
they are deliberating, they have their memory
and the memory of their fellow jurors
collectively, and any notes they’ve made and
the notes of their fellow jurors also in the
collective sense. And there is absolutely a
reliance if they find something that is missing
from their own memory or notes for them to
rely upon that of other jurors.
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Should it become an issue, we can always rely
upon an alternate, but this early in a ten-day
trial, the Court is reluctant to lose a juror.
And so the Court will keep all jurors at
present.

¶ 21 Juror V remained on the deliberating jury.

B. Standard of Review and Controlling Law

¶ 22 We review a trial court’s ruling on juror misconduct due to

allegations of an inattentive juror for abuse of discretion. People v.

King, 121 P.3d 234, 241 (Colo. App. 2005). Generally, juror

inattentiveness does not warrant a new trial absent a showing of

prejudice, i.e., that the defendant did not receive a fair trial. See

People v. Herrera, 1 P.3d 234, 240 (Colo. App. 1999). “The

determination whether prejudice has occurred is within the sound

discretion of the trial court . . . .” People v. Evans, 710 P.2d 1167,

1168 (Colo. App. 1985). Jury misconduct which materially affects

the substantial rights of a party preventing a fair and impartial trial

may serve as grounds for a new trial. Id.

¶ 23 A trial court “shall replace jurors who, prior to the time the

jury retires to consider its verdict, become unable or disqualified to

perform their duties.” § 16-10-105, C.R.S. 2024.

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C. Analysis

¶ 24 We begin by acknowledging that the standard of review is

deferential and that the facts here present a close question.

Nevertheless, we conclude that the trial court abused its discretion

in refusing to replace Juror V with an alternate juror because the

undisputed record shows that Juror V missed a significant portion

of the trial testimony.

¶ 25 DiMarco argues that the facts in this case are like those in

Evans. In Evans, a juror fell asleep during defense counsel’s

closing argument. 710 P.2d at 1167-68. Defense counsel was

unaware of the situation until the trial court commenced contempt

proceedings against the juror after the jury returned its verdicts.

Id. at 1168. The trial court found that the juror was asleep and had

a “great deal of difficulty concentrating on what was going on.” Id.

However, the trial court denied the defendant’s motion for judgment

of acquittal or request for a new trial. Id. A division of this court

found reversible error. The division concluded that closing

argument is “one of the most consequential parts of the trial” and

that the juror’s inattentiveness was not only “contemptuous of the

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court, but contemptuous of the rights of the defendant.” Id.

Therefore, the division held that the defendant was prejudiced by

the juror’s misconduct and was entitled to a new trial. Id.

¶ 26 Additionally, and conversely, in People v. Tunis, the trial court

observed that one of the jurors was having trouble staying awake.

2013 COA 161, ¶ 32. The trial court found that the juror’s head fell

down and that the juror did not appear to be awake. Id. The juror

stated that he was having trouble staying awake and admitted to

sleeping. Id. Consequently, the trial court released the juror and

replaced him with an alternate. Id. The defendant moved for a

mistrial asserting he was denied a jury of his choice. Id. The trial

court denied the motion. Id. A division of this court held that a

defendant does not have a right to a jury of choice and that the trial

court’s decision to replace the sleeping juror with the alternate was

not an abuse of discretion. Id. at ¶¶ 31, 33. Notably, no one

questioned the fact that the juror was sleeping and that he had

missed part of the trial testimony.

¶ 27 In contrast, in People v. King, defense counsel notified the trial

court that a juror appeared to be dozing off “on a regular basis.”

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121 P.3d at 241. Counsel raised the issue three times with the trial

court. Id. Counsel eventually requested that the juror be replaced

with the alternate juror. Id. The trial court rejected counsel’s

request, stating that there was insufficient evidence that the juror

was asleep or that he had missed substantial portions of the

evidence to warrant removing him from the jury. Id. at 242. A

division of this court found no abuse of discretion and held that the

trial court’s observations supported its conclusion not to remove the

juror. Id.

¶ 28 We agree with DiMarco that the facts here are similar to those

in Evans and Tunis, where the records undisputedly showed that

the juror missed important parts of the trial. Like the jurors in

Evans and Tunis, no one disputes that Juror V was distracted and

inattentive. Indeed, when questioned by the court and defense

counsel, Juror V admitted that he was having difficulty focusing

and that, as a result, he had missed “quite a bit” of the morning’s

testimony. Therefore, we find this case distinguishable from those

relied on by the People, where the juror’s inattentiveness was

disputed. See People v. Hayes, 923 P.2d 221, 229 (Colo. App. 1995)

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(finding no prejudice where the record did not reflect that the juror

actually fell asleep, but showed she was once admonished by the

judge for having trouble keeping her eyes open); Herrera, 1 P.3d at

240 (no abuse of discretion where court instructed jury to pay

attention and neither the prosecutor nor the trial court witnessed

any sleeping jurors); Durham v. State, 867 A.2d 176, 181 (Del.

2005) (no prejudice occurs absent a showing of juror inattention).

¶ 29 Moreover, because under section 16-10-105, a trial court shall

dismiss a juror “who, prior to the time the jury retires to consider

its verdict, become[s] unable or disqualified to perform their duties,”

and because the record establishes that Juror V was unable to

perform his duties during the morning’s testimony, we conclude the

trial court should have replaced him with an alternate juror. People

v. Durapau, 280 P.3d 42, 46 (Colo. App. 2011) (“Unless the context

indicates otherwise, the word ‘shall’ generally indicates that the

General Assembly intended the provision to be mandatory.”)

(citation omitted).

¶ 30 We further conclude that DiMarco was prejudiced. The record

shows that Juror V missed the testimony of the outcry witnesses,

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significant witnesses in a sexual assault on a child trial. Moreover,

he missed portions of the testimony of three child victims. The trial

court acknowledged as much when it said, “To the extent he missed

some of the testimony, you are correct.” The trial court knew that

Juror V was inattentive and missed a significant part of the

testimony but did not replace him. While the court questioned

Juror V, we are not convinced that questioning alone remedied the

prejudice. The court never disagreed with counsel’s assertions that

the testimony was significant, nor did it make any findings that

contradicted Juror V’s assertions. Indeed, the court made no

findings that the missed testimony constituted an insignificant

portion of the ten-day trial, or otherwise was not important.

Moreover, the court’s reasoning that it did not want to lose a juror

so early into a ten-day trial is contrary to the mandatory language

in section 16-10-105 and failed to address the significance of the

evidence Juror V had already missed.

¶ 31 We do not mean to suggest that a court faced with this

dilemma is always required to dismiss a juror who, due to a lapse in

concentration, misses some testimony. The impact on a juror’s

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ability to engage in informed deliberations would depend, among

other things, on the degree and length of the juror’s inattention, the

complexity of the case, and the importance of the testimony at

issue. For example, a juror who loses partial focus while a witness

authenticates documents under CRE 901(b)(1) would likely present

a different scenario from a juror who tunes out completely while a

key eyewitness or victim testifies. The court retains discretion to

assess the impact of a juror’s momentary — or extended —

inattention on the juror’s ability to fairly assess the evidence. Here,

however, we see no indication in the record that the court

considered the potential impact of Juror V’s situation on his ability

to fully and fairly assess the evidence. And given the importance of

the testimony that Juror V admitted he missed, we cannot conclude

as a matter of law that Juror V’s extended lapse in concentration

did not prejudice DiMarco.

¶ 32 Accordingly, we conclude that DiMarco has demonstrated that

he was prejudiced by the juror’s misconduct and that he is entitled

to a new trial.

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III. Disposition

¶ 33 The judgment is reversed, and the case is remanded for a new

trial.

JUDGE GROVE and JUDGE LUM concur.

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