Peo v. Burkhalter

── Peo v. Burkhalter ── Court: Colorado Court of Appeals Date: June 04, 2026 Category: General 24CA1358 Peo v Burkhalter 06-04-2026 COLORADO COURT OF APPEALS Court of Appeals No. 24CA1358 Boulder County District Court No. 21CR1710 Honorable Nancy W. Salomone, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Bryan Andrew Burkhalter, Defendant-Appellant. JUDGMENT AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS Division III Opinion by JUDGE MOULTRIE Dunn and Harris, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 4, 2026 Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Polansky Law Firm, PLLC, Lisa A. Polansky, Boulder, Colorado, for Defendant-Appellant ¶1 Defendant, Bryan Andrew Burkhalter, appeals the district court’s judgment of conviction entered after a jury found him guilty of two counts of sexual assault. He also appeals the court’s sexually violent predator (SVP) designation. We conclude that the court incorrectly designated Burkhalter an SVP. We therefore vacate that portion of the sentence and remand for correction of the mittimus. In all other respects, we affirm. I. Background ¶2 In 2021, Burkhalter and the victim matched on Tinder, a dating application. They spent several weeks exchanging messages, and the victim eventually suggested that they meet in person. She gave Burkhalter her home address, and Burkhalter picked her up in his car. ¶3 The two ate dinner at a sandwich shop, then went to hang out at a nearby creek. Burkhalter repeatedly groped the victim throughout the date; the victim claimed she swatted Burkhalter’s hand away each time but didn’t otherwise tell him to stop, while Burkhalter asserted that the victim was receptive to his actions. Burkhalter eventually suggested that they go back to the victim’s apartment, and the victim agreed. 1 ¶4 Excluding the groping, the victim’s and Burkhalter’s testimony mostly aligned up to this point. But they presented drastically different accounts of what happened in the victim’s apartment. The victim said that Burkhalter suddenly shoved his penis in her mouth, then carried her to her bedroom where he began to vaginally penetrate her with his penis. Burkhalter then switched to anally penetrating the victim, at which point she, for the first time, clearly expressed that she didn’t consent. Burkhalter nevertheless continued to anally penetrate her and afterward vaginally penetrated her again. Burkhalter didn’t deny engaging in these sex acts with the victim but claimed that they were consensual, that the victim never withdrew her consent, that he immediately stopped when the victim began to pull away and express discomfort after anal penetration, and that he began to vaginally penetrate her again only after it appeared to him that she was aroused again. ¶5 The next day, the victim reported the assault to the police and was evaluated by a sexual assault nurse examiner (SANE). The SANE’s examination revealed a small bruise and scratches on the victim’s knees and hip, as well as anal and vaginal injuries consistent with penetration. However, the SANE later testified at 2  trial that, “[t]ypically[,] with intercourse, whether it’s consensual or nonconsensual, you would see injuries.” ¶6 The People charged Burkhalter with two counts of sexual assault (submission against will – use of force) under section 18-3-402(1)(b), (4)(a), C.R.S. 20211 — one count corresponding to the anal penetration and the other to the vaginal penetration after the victim vocalized her lack of consent. A jury found him guilty as charged. II. Discussion ¶7 Burkhalter