Why Rusty Barnhart Wasn't Convicted for Rape Linked to His DNA

Update: Rusty Barnhart has been convicted of second-degree kidnapping in a 1984 attack that had gone unsolved for decades. But neither Barnhart nor alleged co-conspirator Inocencio "Junior" Trevino, who's currently awaiting trial, were charged with sexual assault in the case despite plentiful DNA evidence and Trevino's alleged claim that the victim "wanted it."

Why not? Because the statute of limitations had expired by the time charges were pressed last year, and while a subsequently passed law doubled the limit, Barnhart's crime still falls outside it.

Barnhart is a registered sex offender in Texas with a lengthy record documented pictorially by at least five mug shots that linger online.

As for the facts of the local case, which took place in Greeley, they may disturb some readers.

During the early-morning hours of July 31, 1984, according to Barnhart's arrest affidavit (it's accessible below), a waitress at a Denny's restaurant in Greeley walked home after completing her shift.

As she was strolling near 8th Avenue and 16th Street, she told investigators, she saw two men jogging toward her; she thought they might have emerged from a laundromat.

Upon catching up with her, the woman maintained, they forced her into an alley immediately north of a gas station on the intersection's corner.

One of the men held her from behind, she said, while the other "took a twig and threatened to shove it down her throat and kill her if she didn't do as they said," the police report states.

The woman said the men forced her to perform oral sex and subjected her to vaginal and anal sex until a car passed by.

At that point, they relocated about half a block away and continued the assault.

Afterward, the men "told her not to go anywhere" — and she believed that one of them took her Denny's name badge off her work blouse, presumably as a souvenir.

The victim immediately reported what happened to police and submitted to a sexual-assault examination. But the case went dormant after that, and it didn't return to life until 2015, following the passage of a bill the previous year that "provided funding for testing evidence of unsolved sexual assault investigations," as noted by the 19th Judicial District DA's office.

The analysis scored hits with two men: Trevino and Barnhart.

At the time, Trevino was a guest of Colorado's Department of Corrections. During an interview, he admitted to living in the Greeley area in 1984, but he denied taking part in the kidnapping and rape of the woman.

For his part, Barnhart was living in Brownfield, Texas. During a conversation with a Colorado investigator in February 2016, he, too, confirmed that he lived in Colorado around the time of the crime and said he knew Trevino, with whom he "used to work in the onion fields."

Then, after initially denying participation in the aforementioned assault, the affidavit says, he began talking about a night of drinking with Trevino that included a stop at a laundromat. He added that he "remembered seeing a girl walking outside and Trevino running after her."

By the time he caught up, Barnhart continued, Trevino was having sex with the woman. When Trevino offered to let him have a turn, and maintained that the woman "wanted it," Barnhart took him up on the offer.

This quasi-confession, coupled with the DNA evidence, would seem to offer all a prosecutor might need.

However, as 19th Judicial District DA Michael Rourke pointed out, the statute of limitations on sexual assault in Colorado then stood at ten years — less than a third of the span since the 1984 attack.

House Bill 16-1260, legislation introduced during the 2016 general assembly term under the sponsorship of Senator John Cooke, initially called for eliminating the statute of limitations entirely, Rourke noted. But as the measure went through the legislative process, an amendment changed the limit to twenty years — double the previous standard, but still not enough to cover the Barnhart-Trevino prosecution.

Hence, Rourke could only charge the men with second-degree kidnapping, a crime that carries a possible sentence of between four and 24 years.

After the publication of our earlier item, HB 16-1260 was approved by both houses of the state legislature and signed into law by Governor John Hickenlooper. No doubt Rourke was pleased by this turn of events, given his previous comments on the subject.

“Every extra year we are afforded to solve these crimes and hold offenders accountable is a step in the right direction for victims,” he said in April 2016. “It is time for our state laws to catch up with our technology and ability to hold offenders accountable for their actions.”

As for Barnhart, the jury hearing his case determined that a sexual assault had taken place — and that lifted what would otherwise have been a third-degree kidnapping to the second-degree level. But the possible punishment of four to 24 years is still much lower than it would have been had prosecution on sexual assault been allowed to go forward.

Barnhart is due to be sentenced on July 21. Trevino's trial date is August 21. Click to read the arrest affidavit and HB 16-1260.

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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts