August 18, 2017

Colorado Court of Appeals: Sentence Enhancement Based on Victims’ Ages Not Structural Error

The Colorado Court of Appeals issued its opinion in People v. Ewing on Thursday, January 26, 2017.

Leon Ewing was accused in March 2013 of sexually assaulting two brothers, M.B. and J.B., during the summer of 2008 while he was living in their family’s home. The boys were around 11 and 13 at the time of the assaults. The allegations arose in May 2011, and although they were investigated, Detective Nicholas Kundert could not locate Ewing until December 2012. After Ewing was located, he was charged with nine class 3 felony counts of sexual assault on a child by one in a position of trust—eight pertaining to the crimes against J.B. and one pertaining to the crimes against M.B. For the eight charges concerning J.B., Ewing was charged with one count of sexual assault on a child by one in a position of trust (pattern of abuse), and one count of sexual assault on a child by one in a position of trust (victim under 15 years old) for each of four separate incidents. The charge pertaining to M.B. was one count of sexual assault on a child by one in a position of trust (victim under fifteen 15 old). The complaint also included three crime of violence counts.

The jury convicted Ewing of two counts of sexual assault on a child by one in a position of trust — one against J.B. and one against M.B. It specifically found that the assault against J.B. was not committed as part of a pattern of abuse. The jury made no findings regarding J.B.’s and M.B.’s ages at the time of the assaults. At sentencing, the court entered convictions and sentences for two counts of class 3 felony sexual assault on a child by one in a position of trust (victim under 15 years old). Sexual assault on a child by one in a position of trust is typically a class 4 felony. However, the offense is elevated to a class 3 felony if the victim is less than 15 years of age.

On appeal, Ewing contended that because the jury made no finding as to the ages of the victims at the time of the assaults, the district court erred in entering convictions and sentences for a class 3 felony. The court of appeals characterized the elevation of the offense to a class 3 felony as a sentence enhancer. The court held that although the district court erred in enhancing Ewing’s sentence without submitting the question to the jury, the error was harmless. The court found no reasonable possibility that the jury could have concluded that the victims were 15 or older at the time of the offenses. The information alleged that the offenses occurred between May 1, 2008, and August 31, 2008. Because each victim testified to his birthday, the jury was presented with undisputed evidence that the boys were not yet 15 years old at the time of the assaults. The Colorado Court of Appeals found no plain error in the district court’s sentence enhancement.

Ewing also argued that his recross-examination of Detective Kundert was impermissibly limited by the trial court. During Detective Kundert’s testimony, defense counsel asked to recross the detective “on biases,” arguing that the prosecution brought up “witness bias and/or interviewer/interrogative bias,” which had not been previously raised on direct or cross-examination. Defense counsel did not, however, raise a Confrontation Clause issue. The court denied the request, stating that the issue was extrinsic and had already been addressed. Because Ewing did not raise the Confrontation Clause issue in the trial court, the court of appeals reviewed for plain error and found none. The court found that the trial court’s decision to deny the recross was not in error because any information that could potentially have been elicited was only marginally relevant. Even assuming error, the court of appeals did not find that it rose to the level of plain error.

The court of appeals affirmed Ewing’s convictions and sentences.

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