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ADVANCE SHEET HEADNOTE June 15, 2020

No. 18SC765, Manjarrez v. People—Criminal Acts Against Children—Status as to Child—Position of Trust.

In this case, the supreme court considers whether there was sufficient

evidence for the jury to convict the defendant of sexual assault on a child by one

in a position of trust, in violation of section 18-3-405.3(1), C.R.S. (2019). Section

18-3-401(3.5), C.R.S. (2019), provides that one in a “position of trust” includes but

is not limited to a person charged with any duty or responsibility for the welfare

or supervision of a child. Colorado case law has made clear that this duty or

responsibility need not be express but can be implied from the circumstances. In

People v. Roggow,

,

, the supreme court held that

“a defendant may occupy a position of trust with respect to the victim where an

existing relationship or other conduct or circumstances establish that the

defendant is entrusted with special access to the child victim.” The supreme court

now clarifies that a defendant’s “special access” to the victim by virtue of “an

existing relationship or other conduct or circumstances” is evidence of an implied duty or responsibility for the welfare or supervision of the victim during those

periods of special access.

Because the evidence at trial, viewed in the light most favorable to the

prosecution, established that the defendant was entrusted with special access to

the victim by virtue of his relationship with her family and that he was implicitly

responsible for her welfare and supervision at the time of the assault, the supreme

court affirms the judgment of the court of appeals affirming the defendant’s

conviction for sexual assault on a child by one in a position of trust. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

Supreme Court Case No. 18SC765 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 17CA326

Petitioner:

Richard Andrew Manjarrez,

v.

Respondent:

The People of the State of Colorado.

Judgment Affirmed en banc June 15, 2020

Attorneys for Petitioner: Ridley, McGreevy & Winocur, PC Robert T. Fishman Denver, Colorado

Attorneys for Respondent: Philip J. Weiser, Attorney General Melissa D. Allen, Senior Assistant Attorney General Denver, Colorado

JUSTICE MÁRQUEZ delivered the Opinion of the Court. ¶1 Forty-five-year-old Richard Andrew Manjarrez hired his friends’ teenage

daughter to clean his house. Manjarrez had known the girl’s family for several

years, had dined and socialized with them often, and had even taken the girl’s

younger sister with his family on a weeklong vacation. The girl’s parents had

consented to the housecleaning arrangement because they considered Manjarrez

a family friend and trusted him. On the girl’s third cleaning visit, however,

Manjarrez kissed her, touched her breast, and digitally penetrated her. He then

drove her home.

¶2 A jury convicted Manjarrez of sexual assault on a child by one in a position

of trust in violation of section 18-3-405.3(1), C.R.S. (2019), and the court of appeals

affirmed the conviction. Manjarrez acknowledges that the sexual contact took

place but argues that the evidence was insufficient to show that he occupied a

position of trust with respect to the victim because there was no evidence that he

had any express duty of supervision over her.

¶3 One in a “position of trust” includes but is not limited to a person charged

with any duty or responsibility for the welfare or supervision of a child. Our case

law has made clear that this duty or responsibility need not be express but can be

implied from the circumstances. In People v. Roggow,

,

, we held that “a defendant may occupy a position of trust with respect to

[a] victim where an existing relationship or other conduct or circumstances

2 establish that the defendant is entrusted with special access to the child victim.”

We clarify that holding today by explaining that a defendant’s “special access” to

the victim by virtue of “an existing relationship or other conduct or circumstances”

is evidence of an implied duty or responsibility for the welfare or supervision of

the victim during those periods of special access.

¶4 Here, consistent with the statutory definition of the term, the jury was

instructed that one in a position of trust includes, among others, a person who is

charged with any duty or responsibility for the welfare or supervision of a child.

The evidence at trial, viewed in the light most favorable to the prosecution,

established that Manjarrez was entrusted with special access to the victim by

virtue of his relationship with her family and that he was implicitly responsible

for her welfare and supervision while she was at his home to clean. Accordingly,

we affirm the judgment of the court of appeals, albeit by different reasoning.

I. Facts and Procedural History

¶5 Manjarrez and the victim’s family lived in the same neighborhood. They

met and became family friends when the victim was twelve years old. Over the

years that followed, Manjarrez and the victim’s family frequently went to the

community pool and had dinner together. They took a ski trip together, hosted a

Thanksgiving dinner together, and Manjarrez even took the victim’s younger

sister with his family on a weeklong vacation to Wisconsin to visit mutual family

3 friends. The victim testified that Manjarrez, who worked as an airline pilot, twice

bought small gifts for her from the cities he visited.

¶6 When the victim was sixteen years old, Manjarrez asked her parents if he

could hire her to clean his house periodically. The victim had never cleaned

houses before, but her parents agreed she could take the job. The victim’s parents

testified that they would not have allowed her to clean just anyone’s house but

permitted their daughter to work for Manjarrez because he was a trusted family

friend and they expected her to be safe in his home. The victim’s mother testified

that she expected Manjarrez would supervise the victim and that he would be

responsible for the victim’s welfare while she was at his house. After obtaining

the parents’ consent, Manjarrez contacted the victim directly, and she agreed to

clean his house. The victim testified that although she probably would not clean

the house of a stranger, she viewed Manjarrez as a “family friend” and “an adult

that [she] trusted,” and that she felt safe going to his home. The victim also

testified that she would have gone to Manjarrez for assistance if she were hurt

while cleaning.

¶7 The victim cleaned Manjarrez’s house three times. On the first visit,

Manjarrez showed the victim how he wanted the cleaning done. Nothing unusual

happened. The victim cleaned the house, and Manjarrez paid her and drove her

home. However, during her second cleaning visit, Manjarrez commented that he

4 would date the victim if he were still in high school. The comment “seemed a little

off” to the victim, but she brushed it off. Later, while the victim cleaned the

kitchen, Manjarrez watched a television show depicting a homeowner who hired

a house cleaner who had sex with the homeowner instead of cleaning the house.

The victim testified that Manjarrez remarked, “I don’t know why you don’t do

that.” This comment made the victim uncomfortable, but she returned to his

house after this incident because she trusted Manjarrez and “thought he was just

trying to make a joke [that went] too far.”

¶8 Five days after her seventeenth birthday, the victim cleaned Manjarrez’s

house a third time. He picked her up from school, drove her to the store to get

cleaning supplies, and took her to his house. When the victim finished, Manjarrez

was sitting on the couch, watching a movie. The victim testified that Manjarrez

suggested that she watch the end of the movie with him. While the victim sat on

the couch next to Manjarrez, he put his arm around her, reached into her shirt and

touched her breast, kissed her, digitally penetrated her, and lifted her onto his lap

and moved her up and down against his body.

¶9 Manjarrez then drove the victim home. The victim testified that Manjarrez

said, “Don’t tell your parents. I’ll get in so much trouble. You might have to come

over sooner than you normally do.” Immediately after she got home, the victim

told her mother what happened, and her father angrily called Manjarrez. After

5 they got off the phone, Manjarrez texted the victim’s father an apology for

“cross[ing] the line”:

I know you and [the victim’s mother] are angry. I want [t]o give my sincerest apologies to you and [the victim’s mother] and especially [the victim]. You guys are good friends and I definitely crossed the line. I will most definitely keep my distance, I didn’t mean to hurt anyone, and I[‘m] sorry that I did. I’m being honest when I tell you I didn’t have intercourse with her. I know that doesn’t make it easier, but I will do what I can [t]o make it up to you and [the victim’s mother]. Again, I am so sorry, and I felt bad even when it was happening that’s why [I] stopped.

That evening, the victim’s family called the police, who came, investigated, and

arrested Manjarrez.

¶10 Manjarrez was charged with sexual assault on a child by one in a position

of trust.1 He acknowledged that he had sexual contact with the victim but

disputed that he occupied a position of trust with respect to her.

¶11 At trial, the prosecution argued that Manjarrez used the close family

friendship “to have the kind of access that he had to her,” and that Manjarrez

“created this situation where [the victim] was going to be alone in his house” by

suggesting the housecleaning arrangement to the victim’s parents and obtaining

their consent. Once the arrangement was set, the prosecution argued, Manjarrez

1Manjarrez was also charged with unlawful sexual conduct, but the prosecution dismissed that charge before trial.

6 “independently charged himself with a duty or responsibility for the welfare or

supervision” of the victim when he drove her to his house, stayed at the house

alone with her while she cleaned, then drove her home.

¶12 In contrast, the defense argued that Manjarrez was not a close family friend

but merely a peripheral figure who did not spend much time with the victim and

her family. The defense characterized Manjarrez’s relationship with the victim as

nothing more than a flexible employment arrangement that gave the victim an

easy way to make extra money. Manjarrez took the stand and acknowledged

picking the victim up and driving her home on the second and third cleaning dates

and feeding her dinner on the first and third cleaning dates. He testified, however,

that the victim initiated the sexual contact by laying across his lap, kissing him,

lifting her dress, and straddling him.

¶13 Consistent with the statutory definition of one in a position of trust, see

§ 18-3-401(3.5), C.R.S. (2019), the jury was instructed that one in a position of trust

includes, but is not limited to, any person who is a parent or acting in the place of a parent and charged with any of a parent’s rights, duties, or responsibilities concerning a child, including a guardian or someone otherwise responsible for the general supervision of a child’s welfare, or a person who is charged with any duty or responsibility for the health, education, welfare, or supervision of a child, including foster care, child care, family care, or institutional care, either independently or through another, no matter how brief, at the time of an unlawful act.

7 ¶14 The jury convicted Manjarrez. He then moved for judgment

notwithstanding the verdict, arguing that he did not occupy a position of trust

because there was insufficient evidence that he was charged with any duty of

supervision over the victim. The district court rejected the motion, and Manjarrez

was sentenced to sex offender intensive supervised probation for ten years to life,

with sixty days in jail as a condition of probation. Manjarrez appealed.

¶15 In an unpublished opinion, a division of the court of appeals affirmed

Manjarrez’s conviction. People v. Manjarrez, No. 17CA0326, ¶ 1 (Sept. 20, 2018).

Relying on this court’s decision in Roggow, the division rejected Manjarrez’s

argument that the statutory definition of position of trust requires an express

charge of supervisory responsibility over the victim. Id. at ¶ 12.

¶16 In a special concurrence, Judge Berger agreed that Manjarrez’s argument

was foreclosed by Roggow, reasoning that Manjarrez had access to the victim only

because of his status as a family friend. Id. at ¶ 29 (Berger, J., specially concurring).

He therefore agreed that Manjarrez was entrusted with “special access” that he

exploited to engage in sexual contact with the child victim. Id.

¶17 However, Judge Berger questioned whether our holding in Roggow meant

“there is no requirement at all of any duty of supervision by the defendant with

respect to the child[.]” Id. at ¶ 30. He observed that the facts in Roggow

demonstrated that the defendant there exercised, expressly or impliedly, a duty of

8 supervision over the victim at the time of the assault when he transported her in

his truck to a hardware store. Id. at ¶ 31. Judge Berger opined that in this case,

Manjarrez had not assumed a similar supervisory role, emphasizing that the

victim here was an older teenager. Id. at ¶¶ 32–34.

¶18 We granted Manjarrez’s petition for a writ of certiorari to review the court

of appeals’ decision.2

II. Standard of Review

¶19 We review de novo questions of statutory interpretation. Roggow, ¶ 12,

. In construing the statutory definition of “position of trust,” we

seek to effectuate the General Assembly’s intent.

We begin with the plain

language of the statute, reading the words and phrases in context and construing

them according to their common usage.

318 P.3d at 449–50. If the statutory

language is clear and unambiguous, we apply it as written without resorting to

other means of discerning legislative intent.

2 We granted certiorari to review the following issue: Whether “special access” to a child—standing alone—is sufficient to prove a position of trust under section 18-3-401(3.5), and People v. Roggow,

(Colo. 2013), or whether there must be proof that a defendant also had some duty of supervision over a child in order to find that the defendant occupied a position of trust.

9 ¶20 We review the sufficiency of the evidence de novo. Id. at ¶ 13,

. In so doing, we must determine whether the relevant evidence, when viewed

as a whole in the light most favorable to the prosecution, is sufficient to support a

conclusion by a reasonable mind that the defendant is guilty of the charges beyond

a reasonable doubt.

III. Legal Principles

¶21 A person commits sexual assault on a child by one in a position of trust

when he or she “knowingly subjects another not his or her spouse to any sexual

contact . . . if the victim is a child less than eighteen years of age and the actor

committing the offense is one in a position of trust with respect to the victim.”

§ 18-3-405.3(1). Unlike the sexual assault on a child statute, see § 18-3-405, C.R.S.

(2019), the sexual assault on a child by one in a position of trust statute makes no

distinction between victims who are younger children and those who are older

teens; it protects all children until they turn eighteen, see § 18-3-405.3(1).

¶22 The definition of “position of trust” adopted by the legislature “is a broad

one.” Pellman v. People,

(Colo. 2011). Section 18-3-401(3.5)

provides as follows:

One in a “position of trust” includes, but is not limited to, [1] any person who is a parent or acting in the place of a parent and charged with any of a parent’s rights, duties, or responsibilities concerning a child, including a guardian or someone otherwise responsible for the general supervision of a child’s welfare, or [2] a person who is charged with any duty or responsibility for the health, education, welfare, or 10 supervision of a child, including foster care, child care, family care, or institutional care, either independently or through another, no matter how brief, at the time of an unlawful act.

(Emphases added.)

¶23 In Roggow, we observed that this definition expressly includes two general

categories of persons. The first category encompasses “parents and persons who

regularly watch over and care for a child, such as grandparents, other relatives,

close friends, or a parent’s [partner].” Roggow, ¶ 18,

. The second

category encompasses persons who “generally have access to the child only for

limited periods of time.” Id. at ¶ 19,

. We noted, however, that these

categories are “only illustrative” and that the legislature’s broad definition of

position of trust “is not limited to” these categories. Id. at ¶ 15,

.

Rather, we explained that these general categories “reflect the General Assembly’s

overarching intent to target those offenders who are entrusted with special access

to a child victim and who exploit that access to commit an offense against the

child.” Id.; see also Pellman,

(noting that “the legislature focused

on those instances in which a defendant has gained access to a child through the

position of trust he or she holds”).

¶24 Importantly, our legislature has recognized that “a child is more vulnerable

to abuse if an offender is known to the child or is entrusted with the care of the

child by one who is otherwise responsible for that care.” People v. Martinez,

(Colo. App. 2001), rev’d on other grounds,

(Colo. 2003). “In

other words, ‘[a] person in a position of trust is more likely to be alone with a child,

successfully lure a child to a place of isolation, or manipulate a child to submit to

abuse or keep it secret.’” Roggow, ¶ 21,

(quoting Pellman,

).

¶25 By observing in Roggow that adults may occupy a position of trust when, by

virtue of their familiarity with the victim or the victim’s family, they are entrusted

with “special access” to a child, we did not purport to establish a new category of

persons who fall under the position of trust statute. Rather, our reference to

persons who are “entrusted with special access to a child” was this court’s

description of the overarching principle that binds the two categories of persons

identified in the statute. See

That is, the General Assembly intended to target

adults who, by virtue of their position relative to the victim, are trusted to be alone

with, and responsible for, a child. As we noted, “[s]uch access to a child

presupposes trust.”

¶26 Importantly, we have made clear that for purposes of the position of trust

statute, “a defendant need not be expressly charged with a particular duty or

responsibility over the child at the time of the unlawful act in order to occupy a

position of trust.” Id. at ¶ 15,

(emphasis added). Rather, our case

law has made clear that a duty or responsibility for the welfare or supervision of

12 a child can be implied from the circumstances. See People v. Madril,

(Colo. 1987) (concluding there was sufficient evidence that the defendant

“voluntarily assumed ‘a position of trust’ with respect to [the victim] when he

agreed to permit her to spend the evening with his children at his home”); People v.

Duncan,

, 1182–83 (Colo. App. 2001) (reasoning that because

defendant affirmatively asked the victim’s father for permission to take the victim

to the defendant’s home to work for him, the “defendant assumed responsibility

for the welfare and supervision of the child both en route and in the home”).

¶27 In Roggow, we held that a defendant may occupy a position of trust with

respect to the victim “where an existing relationship or other conduct or

circumstances establish that the defendant is entrusted with special access to the

child victim.” ¶ 15,

. Today we clarify that a defendant’s special

access to the victim by virtue of an existing relationship or other conduct or

circumstances is evidence of an implied duty or responsibility for the welfare or

supervision of the victim during those periods of special access.

¶28 The defendant in Roggow had an implied duty for the victim’s welfare or

supervision when he brought her along on an errand. See

at ¶¶ 30–33,

. The context of the relationship between the child and the defendant, who

was the landlord for the child’s family and someone with whom the family often

socialized, demonstrated that the defendant was entrusted with special access to

13 the victim.

The victim and her family “considered [Roggow] a family friend.”

Id. at ¶ 31,

. The victim’s parents allowed the defendant to be

around their children alone. Id. at ¶ 32,

. As such, Roggow was

entrusted with special access to the victim when the victim’s father invited him to

work in the house while the victim and her siblings were there alone. Id. at ¶ 33,

. Accordingly, although Roggow was not expressly charged with

any supervisory duty over the victim at the time of the unlawful act, he was

impliedly responsible for her welfare when he took her from her home and

brought her with him in his truck to the hardware store. See

at ¶¶ 31–32;

. In other words, given the relationship between Roggow and the

child’s family, the child’s parents trusted Roggow to bring the eight-year-old child

along for an errand and look out for her while she was with him. See

¶29 Our decision in Pellman similarly reveals facts demonstrating that the

defendant had an implied duty of supervision over or responsibility for the

welfare of the victim given the existing relationship and circumstances. In that

case, the fifteen-year-old victim had permission from her parents to spend time

alone at the defendant’s house. Pellman,

. The defendant was a

family friend and taught Sunday school at the church where the victim’s father

was a pastor, and he was a frequent dinner guest at the victim’s home.

14 ¶30 Thus, in both Roggow and Pellman, the defendant was not expressly charged

with a duty of supervision over the child victim, but the relationship between the

defendant and the victim’s family and the surrounding circumstances reflected an

implied duty of supervision over or responsibility for the victim’s welfare when

the defendant was alone with the victim.

¶31 We acknowledged in Roggow that whether a defendant occupies a position

of trust will depend on the facts in a particular case, and we expressly declined to

adopt an exhaustive definition to cover every conceivable situation in which a

position of trust might arise. Roggow, ¶ 29,

. But we rejected the

contention that section 18-3-401(3.5) “requires the prosecution to prove that a

defendant was expressly charged with supervisory responsibility over the victim

at the time of the unlawful act.”

(emphasis added). Rather, we concluded that

a defendant may hold a position of trust with respect to a victim where an existing

relationship or other conduct or circumstance establish that the defendant is

entrusted with special access to the victim.

Being entrusted with special access

to a child because of a close family relationship or similar circumstances carries

the understanding that the entrusted adult will be responsible for the child’s

welfare during those periods of special access. See, e.g., Duncan,

.

¶32 In sum, a defendant need not be expressly charged with a duty of

supervision; in determining whether a defendant occupied a position of trust, the

15 fact the defendant is entrusted with special access to a child by virtue of an existing

relationship or other conduct or circumstances is evidence of an implied duty or

responsibility for the welfare or supervision of the victim during those periods of

special access. See Roggow, ¶¶ 31–33,

; Pellman, 252 P.3d at 1126–27.

IV. Application

¶33 Here, the evidence viewed in the light most favorable to the prosecution

established that Manjarrez had an implied duty or responsibility for the victim’s

welfare and supervision at the time of the assault.

¶34 Similar to Roggow, the context of the relationship between Manjarrez and

the victim’s family demonstrates that Manjarrez was entrusted with special access

to the victim. Manjarrez frequently socialized and dined with the victim’s family.

He occasionally bought small gifts for the victim from the cities he visited. The

victim’s parents even allowed Manjarrez to take their youngest child out of state

on a weeklong vacation. So when Manjarrez asked the victim’s parents for their

permission to hire the victim to clean his house, they permitted her to take the job

because they knew him and trusted him to be alone with their daughter. Cf.

Madril,

(noting that the statutory definition of “position of trust”

was broad enough to encompass a defendant who permitted a nine-year-old child

to spend the night at his house). Absent the preexisting relationship, Manjarrez

would not have been entrusted with such access to the victim.

16 ¶35 That Manjarrez was entrusted with special access to the victim was evidence

from which the jury could reasonably infer that he had an implied responsibility

for the victim’s welfare and supervision. In addition, the victim’s mother testified

that she expected Manjarrez to supervise the victim and be responsible for her

welfare. The victim also testified that she would have gone to Manjarrez for

assistance if she were hurt while cleaning. And Manjarrez’s own actions also

reflect an implied duty or responsibility for the victim’s welfare and supervision

during these periods of special access. He showed the victim how he wanted his

house cleaned, and he was present during each of the three times she cleaned. On

two of the cleaning dates, he picked the victim up before work and even fed her

dinner. And he insisted on driving the victim home after she finished cleaning.

Viewed in the light most favorable to the prosecution, the evidence at trial was

sufficient to establish that Manjarrez occupied a position of trust with respect to

the victim.

V. Conclusion

¶36 Today, we clarify our holding in Roggow by explaining that a defendant’s

special access to the victim by virtue of an existing relationship or other conduct

or circumstances is evidence of an implied duty or responsibility for the welfare

or supervision of the victim during those periods of special access.

17 ¶37 Here, the evidence at trial, viewed in the light most favorable to the

prosecution, established that Manjarrez was entrusted with special access to the

victim by virtue of his relationship with her family and that he was implicitly

responsible for her welfare and supervision at the time of the assault. Accordingly,

we affirm the judgment of the court of appeals.

18