Colorado’s second-highest court last week overturned a woman’s felony menacing conviction because a Boulder County judge effectively barred jurors from hearing evidence suggesting she acted to defend herself against a sexual assault.

In Michelle Nicole Couch’s 2019 trial, jurors learned that Couch had twice pulled a knife on the alleged victim while the two were engaged in intimate behavior. They did not learn about Couch’s earlier warning to the victim that she would not be having sex with him. District Court Judge Bruce Langer had told the defense that if they asked about Couch’s statement, which implied Couch drew a boundary around what she was comfortable with, the prosecution could introduce damaging information about her criminal history.

“This ruling had important consequences,” wrote Judge Timothy J. Schutz in the Court of Appeals’ March 23 opinion.

A three-judge panel for the appellate court noted that jurors were confused about the level of consent in Couch’s interaction with the victim, and the omission of her statement affected the fairness of her trial.

Couch and the alleged victim returned to his home late one night. Couch told the man she would not have sex with him. The two began making out, but at one point Couch brandished a pocketknife. The victim acknowledged he was “playing with lines a little bit,” but continued making out with her. Couch then pulled out the knife with the blade open, which halted the interaction.

Couch left the home and called 911. When police arrived, they arrested her.

Langer believed Couch’s advisement to the victim was hearsay, meaning an out-of-court statement aimed at proving the truth. The judge allowed the defense to ask the victim about Couch’s statement, but if they did, Langer would permit the prosecution to introduce evidence about Couch’s criminal history.

The defense opted not to bring up Couch’s statement about having sex. Langer also did not instruct jurors that they could find Couch acted in self-defense. After jurors submitted multiple questions about whether Couch viewed the encounter as consensual – which Langer declined to ask the witnesses – they convicted her of felony menacing.

On appeal, Couch argued it was unfair for jurors to be shielded from evidence that could corroborate her defensive response to the victim’s advances after previously drawing the line for him.

“That statement was not hearsay because at the end of the day, it just doesn’t make any difference whether it was true or not,” public defender Mark Evans told the Court of Appeals panel at oral arguments. “It impacted her perception of events because having provided that line to (the victim), it was more reasonable for her to believe when he started to try to push over it, that she was at risk of being subject to unlawful physical force.”

The appellate panel agreed with Couch.

“Whether a person has consented to sexual contact is directly relevant to the question of whether an assault is being committed,” Schutz wrote, “and, hence, directly relevant to a determination of whether the person was justified in using physical force to resist the perceived assault.”

He elaborated that Couch’s statement to the victim would have allowed the jury to better understand Couch’s reaction to the victim’s advances. In the absence of that evidence, the questions jurors raised about consent suggested the jury “could have assessed Couch’s deployment of the knife within a wholly different context,” Schutz added.

The panel’s decision came days before the Colorado Supreme Court is set to hear oral arguments in another case out of Boulder County – also featuring Langer as the trial judge – in which jurors did not learn about a purported hearsay statement relevant to the victim’s consent in a sex assault case. 

The Court of Appeals similarly ordered a new trial in that case, finding Langer relied on a “nonexistent evidentiary rule” to exclude the statement.

The case is People v. Couch.