The Colorado Court of Appeals issued its opinion in People v. Walker on March 3, 2011.
Sexual Exploitation—Indeterminate Sentence—Unlawful Sexual Contact—Enticement of a Child—Amendment of Charges—Right to Jury Trial—Waiver.
Defendant appealed the judgment convicting him of thirty counts of sexual exploitation of a child, three counts of unlawful sexual contact, and two counts of enticement of a child. He also appealed the indeterminate sentences imposed on twenty-four of the sexual exploitation counts. The judgment and the sentences were affirmed, and the case was remanded with directions.
Defendant abused his position as a middle school teacher by developing relationships with male students A.W., T.W., and D.B., and engaging in inappropriate and unlawful behavior with them. On appeal, he contended that the indeterminate sentences on the twenty-four counts of sexual exploitation as to T.W. and D.B. must be vacated and that he must be resentenced with determinate sentences, because the prosecution failed to prove there was an assessment required by CRS § 18-1.3-1004(4)(a)(II). Prior to sentencing, defendant underwent a mental health sex offense-specific evaluation. Based on the results, the evaluator recommended that defendant receive an indeterminate sentence. This evidence was sufficient to satisfy the requirements of CRS § 18-1.3-1004(4). Therefore, the trial court properly exercised its discretion to sentence defendant to indeterminate sentences on twenty-four of the sexual exploitation counts.
Defendant claimed the evidence was insufficient to convict him of three counts of unlawful sexual contact, because the prosecution failed to prove the elements of this offense beyond a reasonable doubt. One count involved D.B. and was based on a nude photo session of D.B.; the other two counts involved T.W. and were based on two videos of T.W. that were recovered and admitted at trial. Based on this evidence, the trial court properly convicted defendant of three of the four charged counts of unlawful sexual contact under CRS § 18-3-404(1.5). Further, the evidence that defendant induced or coerced D.B. and T.W. to expose themselves was more than sufficient to sustain the unlawful sexual contact convictions.
Defendant contended that the evidence was insufficient to convict him of two counts of enticement of a child. Contrary to defendant’s argument, the prosecution was required to prove only that defendant intended to commit the offense of unlawful sexual contact, which may be committed with or without actual touching. Therefore, the evidence was sufficient to support the enticement convictions.
Defendant charged the trial court with abusing its discretion and committing reversible error by permitting the prosecution to amend the six exploitation counts as to A.W. during trial. However, the amendment did not cause defendant to be charged with an additional or different offense; it merely expanded the dates of the offenses charged to reflect the evidence. Further, defendant was not prejudiced by this amendment, because he had received sufficient notice of the time period well before trial. Therefore, the trial court did not err by permitting the prosecution to amend the dates in counts seven through twelve on the morning of trial.
Defendant argued that his waiver to the right to trial by jury was not made voluntarily, knowingly, and intelligently. Because the Court of Appeals did not have a factual basis to review the validity of the jury trial waiver, the case was remanded for a postconviction evidentiary hearing on this issue.
Defendant contended that the trial court erred by imposing indeterminate sentences because they were not actually charged in the information as sentence enhancers. The basic requirements of Crim.P. 7(b)(2) were met and the information identified the essential elements of the offense of sexual exploitation of a child. Therefore, the failure to charge the indeterminate sentences in the information does not constitute plain error requiring these sentences to be vacated and replaced with determinate sentences. However, resolution of this contention turns on the outcome of the evidentiary hearing on whether defendant properly waived his right to a jury trial.