Appeals Court upholds 2018 sentence in Garfield County assault case

Charles Ashby
Grand Junction Sentinel

The Colorado Court of Appeals upheld the sentence of a Garfield County man sentenced to up to life in prison for sexual assaulting an underaged girl.

John Wayne Diamond had been convicted on six counts of sexual assault on a child by one in a position of trust. Those 2018 convictions came with a sentence of 16 years to life.

Diamond’s attorneys tried to argue that the child had been sexually abused by her own father and subsequent boyfriends of her mother, and, as a consequence, he was being charged for something that never happened.

Diamond, 52, first tried to argue that the underaged girl, starting at the age of 10, was sexually promiscuous because of the alleged prior acts with her biological father, his sons, and other boyfriends her mother had, saying he was trying to show that to the girl’s mother.

He argued that because of those alleged prior acts on the child, the girl had knowledge of sexual activity and therefore was “sexually inappropriate,” and somehow attributed them to him at trial.

A three-judge panel of the court disagreed.

“The trial court found that most of the proffered evidence was inadmissible,” Judge Terry Fox wrote in the decision, which was joined by Judges Ted Tow and David Yun. “It found that (the girl’s) exposure to sexually explicit acts as a young child was ‘not material or relevant’ to whether Diamond assaulted her. It found that evidence of (the child’s) behavior toward her stepbrothers and mother’s past boyfriends was inadmissible because it suggested that (the child) must have consented to sex with Diamond because she had ‘loose morals.’”

In his appeal, Diamond also argued that Garfield County District Judge Denise K. Lynch erred by allowing a courtroom dog to be allowed during the child’s testimony, claiming it was prejudicial to the jury. Diamond’s trial occurred just before the Colorado Legislature approved the use of courtroom dogs and before the Colorado Judicial Department enacted rules governing their use.

“The court’s findings are largely consistent with those prescribed in the subsequently enacted facility dog statute,” Fox wrote. “As the statute took effect on July 1, 2019, and applied to trial proceedings occurring on or after that date, we reject Diamond’s argument that the court should have anticipated the exact requirements of the statute before its enactment.”

Finally, Diamond argued that the district court was wrong with tagging him as a sexually-violent offender, which enhanced his sentence, saying prosecutors were wrong when they alleged he had promoted a sexual relationship with the child.

“A (person) who victimizes (a) child can meet the definition of promoting if they expand on their relationship beyond the familiar context, so long as the promoting conduct occurs outside the commission of sexual assault itself,” Fox wrote. “Here, exchanging gifts and money for sex with (the child), while arguably contemporaneous with and closely related to the pattern of abuse, did not occur during the commission of the sexual offense.”

As a result, the judges found that the lower court properly ruled that Diamond had promoted the sexual contact.

Diamond currently is being held in the Colorado Correctional Territorial Facility in Canon City.

His first parole hearing is set for June 2032.

This story first appeared in the Grand Junction Daily Sentinel on Nov. 26 and is being republished by permission in the Glenwood Springs Post Independent.

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