Colorado’s second-highest court concluded on Thursday that an Arapahoe County man’s conviction for unlawful sexual contact on a child violated his constitutional rights and must be vacated.

Jurors convicted Lucas Bienvenido Mena in 2021 of multiple sex offenses after hearing he pushed a 12-year-old relative into a bathroom, touched her genitals and took photos of her while she was undressed. Although Mena denied several of the allegations, he admitted to touching the girl’s vagina and masturbating in front of her.

Among Mena’s convictions were sexual assault on a child, which is a class 4 felony, and unlawful sexual contact by coercion, also a class 4 felony. Because the latter crime involved coercion, the law deemed it a violent offense requiring a prison sentence.

On appeal, Mena argued his conviction for sexual assault on a child, in contrast, was eligible for the lesser sentence of probation, despite being a more serious crime.

“Thus, the less culpable offender must serve a prison term, while the more culpable offender may be supervised in the community. Colorado’s equal protection guarantees preclude this sort of arbitrary and irrational result,” wrote public defender Andrea R. Gammell.

A three-judge panel for the Court of Appeals agreed. Judge Ted C. Tow III explained that Colorado’s constitutional right to equal protection of the laws is violated whenever someone is convicted under two laws for identical conduct, yet one law lays out a harsher penalty.

In Mena’s case, the prosecution’s evidence for coercion was the same as for sexual assault on a child — yet Mena received two punishments, one harsher than the other.

“Mena’s conviction for unlawful sexual contact (coerce child) cannot stand,” wrote Tow in the Feb. 6 opinion. 

Because Mena’s other convictions were all eligible for probation, the panel could not tell whether the trial judge would still have given Mena an indefinite sentence of up to life in prison if the sole offense requiring incarceration had been taken off the table.

The panel ordered a resentencing for Mena.

The Court of Appeals also addressed a question it had not previously answered: Is it appropriate for jurors to hear evidence of a sex assault victim’s emotional and psychological reaction in order to gauge the victim’s credibility?

During trial, the prosecution asked the victim, identified as K.B., numerous questions about how she reacted to the assault, whether the forensic exam was “comfortable” and if the events changed “how you viewed other people.” K.B. testified:

• “I was really, like, sad”

• Her family was “sad, down and they were, like, mad”

• “I think I felt like it was my fault”

• “I didn’t feel like I could trust even the doctors”

• “I didn’t go to school for I think 2.5 years”

The defense objected to some of the questions and at one point asked to speak at the bench with District Court Judge Joseph R. Whitfield Jr.

“It is not relevant that she was afraid to go to school or anything like that. That is just meant to inflame the passions of the jury and make it seem more traumatic for her,” the defense attorney argued.

“It was traumatic,” responded the prosecutor, referring to the sexual assault.

Whitfield said that “in these types of matters, credibility is important.” He allowed the line of questioning to continue.

On appeal, Gammell argued the lengthy victim-impact testimony mainly served to create an “emotional pull” on jurors to convict her client.

“Mena did not deny having some inappropriate contact with KB, so her sadness and distrust of others would not be unexpected,” Gammell wrote. “Yet, evidence of her emotional state did not tend to prove that Mena subjected her to other, disputed sexual contact, and did not bolster her credibility in this regard.”

Tow acknowledged the existence of a 2020 Court of Appeals decision that found it erroneous for jurors to hear a sex assault victim, who was highly intoxicated and did not remember the events, testify about how the assault negatively affected her life afterwards. That Court of Appeals panel concluded the victim’s statements were irrelevant to whether the charged defendant committed the crime.

However, Tow, who sat on the panel that decided the 2020 case, wrote that the circumstances were different in Mena’s trial.

“K.B.’s credibility was a central issue in the defense’s case,” he wrote. “K.B.’s newly developed distrust of others and severe behavioral changes in the aftermath of the alleged sexual assault are indicative of her having suffered a traumatic event, which relates directly to whether the events she described even occurred.”

The panel concluded K.B.’s description of her guilt, sadness and discomfort would have made it less likely that she pursued fabricated allegations through trial. Therefore, it was “highly” relevant.

The case is People v. Mena.