Colorado’s second-highest court upheld a man’s sex assault conviction earlier this month, although there was disagreement between appellate judges about whether jurors properly evaluated damaging evidence of the defendant’s conduct in light of his unusual defense at trial.

A Denver jury convicted Mohammed Diawarra in 2021 for sexual assault on a child after he impregnated an 11-year-old girl. Diawarra made multiple claims on appeal, including that his Sixth Amendment right to a public trial was violated when the trial judge excluded one person from the courtroom.

Diawarra’s trial took place amid continued COVID-19 precautions, including limitations on in-person attendance. Although a social worker who had been helping Diawarra wanted to attend, as well as the social worker’s intern, District Court Judge Ericka F.H. Englert decided the intern could not be in the courtroom.

The U.S. Supreme Court has recognized that judges may close their courtrooms under specific conditions, and they can even enact a “partial” closure excluding a small number of people. Moreover, the Colorado Supreme Court has ruled that some courtroom closures are “trivial” and do not affect the underlying protections of the public trial guarantee.

Initially, a three-judge appellate panel released its decision in Diawarra’s case in December, finding Englert’s exclusion of the intern did not amount to a courtroom closure because the intern could still watch the trial over a livestream. However, after being asked to reconsider its analysis, the panel released a modified opinion on Feb. 8 and softened its position.

If the intern’s exclusion amounted to a courtroom closure, clarified Judge Terry Fox, the pandemic protocols and the availability of the livestream rendered it trivial.

“While the closure lasted for the duration of the trial, it was a partial closure that only applied to one person,” she wrote. “Importantly, the social worker remained, reminding all parties of their important function during the trial. The closure, while intentional, was for a good reason: public safety in the wake of the COVID-19 pandemic.”

Case: People v. Diawarra

Decided: December 28, 2023 and February 8, 2024

Jurisdiction: Denver

Ruling: 2-1

Judges: Terry Fox (author)

Neeti V. Pawar

Michael H. Berger (dissent)

But the panel diverged on another of Diawarra’s grounds for appeal: Englert’s decision to admit evidence that Diawarra molested his victim on multiple occasions apart from his act of impregnating her. 

Englert allowed the evidence of Diawarra’s uncharged misconduct under a legal procedure the Colorado Supreme Court has since abolished. The justices’ concern was that uncharged acts, while sometimes relevant, were turning into a “shortcut” for illustrating a defendant’s bad character to the jury.

Now, judges must instruct juries they are limited in how they can incorporate other-acts evidence in their decision-making.

The Court of Appeals maintained the evidence of Diawarra’s “grooming” behavior was relevant to his unusual defense at trial. Because there was no dispute he impregnated his child victim, Diawarra instead argued the victim’s mother forced him at knifepoint to have sex with the girl.

Fox, writing for herself and Judge Neeti V. Pawar, concluded the grooming incidents could naturally contradict Diawarra’s defense.

“Its logical relevance was therefore that he likely had sexual intercourse with her because he wanted to, not because he was forced to at knifepoint,” she wrote.

It was true, Fox conceded, there was a risk jurors could have concluded Diawarra had bad character and convicted him on that basis after hearing the evidence. But to her, it was more likely jurors used the information to determine Diawarra was not under duress when he assaulted the child.

“The improper use of that evidence (proving Diawarra’s bad character) was less obvious,” she added.

Judge Michael H. Berger dissented. He agreed the grooming evidence was fair game for discrediting Diawarra’s defense. Yet, was not convinced the jury only used the evidence for that purpose due to the lack of any limitation by the trial judge.

“The question is difficult and close but, in the end,” Berger wrote, jurors “could have found that Diawarra was a morally bereft person precisely because of the other act evidence and, because he lacked moral character, rejected his duress defense.”

Because Englert did not provide guardrails for how the jury should use the evidence, Berger indicated he would have ordered a new trial for Diawarra.

The case is People v. Diawarra.