September 24, 2017

Tenth Circuit: Mens Rea Element of Child Sex-Trafficking Statute Satisfied Where Defendant Recklessly Disregarded Victim’s Underage Status

The Tenth Circuit Court of Appeals issued its opinion in United States v. Doung on Tuesday, February 14, 2017.

The Tenth Circuit Court of Appeals had to determine whether a statutory amendment to 18 U.S.C. § 1591, relating to child sex-trafficking, altered the government’s burden in proving the requisite mens rea. The defendants, Tung Doung, William Baker, and Curtis Anthony were each charged with one count of child sex trafficking and one count of conspiracy to engage in child sex-trafficking in violation of 18 U.S.C §§ 1591 and 1594. The defendants moved to dismiss the indictment, on the basis that it did not allege the mens rea element of the child sex trafficking crime, and the district court granted the motion.

Under § 1591, the government can prove the mens rea element of child sex-trafficking pertaining to the age of a child in three ways: (1) by showing that the defendant knew the child was underage; (2) the defendant acted in reckless disregard of their age, or (3) the defendant had a reasonable opportunity to observe the victim prior to engaging in a commercial sex transaction. In the superseding indictment, the government charged the defendants only with having a reasonable opportunity to observe the victim to prove the requisite mens rea.

To interpret the statute, the court began by looking at the plain language of § 1591, stating, “the plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. After looking at the plain language of the statute, the court determined that § 1591 (c) (pertaining to the language adding reasonable observation as a mens rea standard), was not ambiguous, and provides the government a third option for proving a defendant’s mens rea.

Because the section was enacted by congress as a part of the Trafficking Victims Protection Act of 2000 (TVPA), the court next addressed the congressional intent behind the addition of § 1591. The court noted that Congress’ stated purpose behind the act was to, “combat trafficking in persons, especially into the sex trade, slavery, and involuntary servitude,” and that § 1591 was added to provide federal criminal penalties for engaging in such conduct. The court then stated that because Congress added subsection 1591(b) to lessen the government’s burden as to the mens rea required regarding a child’s age, the addition of a third subsection further lessening that burden is wholly consistent with the intent of the TVPA.

The defendants argued that if the court interprets § 1591(c) as giving the government a third avenue to prove mens rea, then the section would effectively relieve the government from having to prove actual knowledge or reckless disregard of a victim’s age. The court rejected the defendant’s argument, and stated that contrary to the defendant’s assertions, the government will still have to prove actual knowledge or reckless disregard in circumstances where the defendants did not have a reasonable opportunity to observe the child victim before engaging in the commercial sex transaction. Additionally, the court stated that the defendant’s preferred interpretation actually goes against the stated objective of the TVPA of lessening the government’s burden by restricting the government’s ability to show mens rea under the reckless disregard standard.

As to the conspiracy charge, the defendants argue that the courts interpretation of § 1591(c) does not resolve if the district court properly dismissed the conspiracy charge. Relying on the seventh circuit holding in United States v. Saldago, the defendants claim that they could not have conspired to commit the crime of child sex-trafficking without knowing that the child in question was actually a minor. The court rejected this claim as well, holding that because the government is alleging the defendants had reasonable opportunity to observe the victim, the indictment specifically charges that the defendants had knowledge of the victim’s age for the purpose of the conspiracy charge as well.

The court reversed the decision of the district court in dismissing both charges against the defendants, and remanded the matter for further proceedings.

Bills Signed Adding Disabilities to Bias-Motivated Harassment, Clarifying Vehicle Title Transfers on Death, and More

On Wednesday, May 3, 2017, the governor signed 14 bills into law. To date, the governor has signed 209 bills and vetoed one bill this legislative session. Some of the bills signed Wednesday include a bill to clarify the process for vehicle title transfers on death, a bill adding disabilities to bias-motivated harassment laws, a bill allowing mandatory reporters access to reports of abuse, a bill extending the agricultural water leasing pilot project, and more. The bills signed Wednesday are summarized here.

  • HB 17-1150“Concerning Disallowing a Court from Granting Bail After Conviction to Offenders who have Committed Certain Felony Crimes,” by Rep. Clarice Navarro and Sen. Owen Hill. The bill adds to the list of crimes for which bail is not allowed a second or subsequent conviction for stalking that occurs within 7 years after the date of a prior offense for which the person was convicted; stalking when there was a protection order, injunction, or condition of bond, probation, or parole or any other court order in effect that protected the victim from the person; and any offense that includes an act of domestic violence if the defendant at the time of sentencing has been previously convicted of three or more prior offenses that included an act of domestic violence.
  • HB 17-1185“Concerning Reports of Suspected Child Abuse or Neglect,” by Rep. Jonathan Singer and Sen. Jim Smallwood. The bill adds officials and employees of county departments of health, human services, or social services to the list of mandatory reporters and specifies that if a mandatory reporter continues to be involved with the child for whom he or she has filed a report, the reporter is entitled to access to records and reports of the abuse or neglect.
  • HB 17-1188“Concerning Bias-Motivated Harassment,” by Rep. Mike Foote and Sens. Dominick Moreno & Don Coram. The bill adds physical or mental disability and sexual orientation to the categories described in the harassment statute to make the statute consistent with Colorado’s law concerning bias-motivated crimes.
  • HB 17-1213“Concerning the Transfer of a Vehicle Title Upon the Death of the Vehicle’s Owner,” by Rep. Kevin Van Winkle and Sen. Chris Holbert. The bill amends the law regarding transfers of vehicle titles on death by clarifying that the Division of Motor Vehicles shall oversee the process, and clarifying that a personal representative or successor is not liable for obtaining a new certificate of title or for transferring title to the vehicle absent actual knowledge of the existence of a valid, unrevoked beneficiary designation form.
  • HB 17-1217“Concerning the Governance Structure of the State Historical Society,” by Reps. Faith Winter & Lori Saine and Sens. Jim Smallwood & Kerry Donovan. The bill repeals certain obsolete provisions of the statutes governing the structure of the State Historical Society and changes the language from establishing the council to allowing the board to establish the council.
  • HB 17-1219“Concerning an Extension of the Agricultural Water Leasing Pilot Program Administered by the Colorado Water Conservation Board,” by Reps. Jeni Arndt & Barbara McLaughlin and Sens. Kerry Donovan & Larry Crowder. The bill extends the agricultural water leasing pilot program.
  • HB 17-1233“Concerning Protection of the Historical Consumptive Use Analysis of a Water Right Involved in a Water Conservation Program,” by Rep. Jeni Arndt and Sen. Larry Crowder. The bill applies a rule statewide that provides that the reduced water usage that results from participation in a government-sponsored water conservation program will not be considered in analyzing the historical consumptive use of the water right.
  • SB 17-148“Concerning the Continuation of the Office of Boxing in the Division of Professions and Occupations in the Department of Regulatory Agencies, and, in Connection Therewith, Implementing the Recommendations of the 2016 Sunset Report of the Department of Regulatory Agencies and Making an Appropriation,” by Sen. Kevin Priola and Rep. Alec Garnett. The bill continues the Office of Boxing and vests the Director of the Division of Professions and Occupations with licensing authority.
  • SB 17-214“Concerning the Creation of the Voluntary Firefighter Cancer Benefits Program,” by Sens. Leroy Garcia & Jim Smallwood and Reps. Brittany Pettersen & Tony Exum. The bill allows an employer to participate in a voluntary firefighter cancer benefits program, as a multiple employer health trust to provide benefits to firefighters by paying contributions into the established trust.
  • SB 17-227: “Concerning the Nonsubstantive Relocation of Laws Related to Attorneys-at-Law from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sen.  Bob Gardner and Rep. Mike Foote. The bill relocates Article 5 of Title 12, “Attorneys-at-Law,” to a new Article 93 in Title 13, Colorado Revised Statutes.
  • SB 17-247“Concerning the Qualifications of Electricians, and, in Connection Therewith, Allowing Only persons who have Passed the Written Residential Wireman’s Examination to Act as Residential Inspectors and Waiving the Continuing Education Requirement During the First License Period for an Electrician who Passed the Appropriate Written Examination,” by Sen. Kevin Priola and Rep. Don Coram. The bill waives the continuing education requirement, otherwise applicable upon every renewal or reinstatement of an electrician’s license, for the first renewal or reinstatement of the license of an electrician who passed the appropriate written examination in connection with his or her initial license application.
  • SB 17-258“Concerning the Use of Open Educational Resources in Public Institutions of Higher Education, and, in Connection Therewith, Making an Appropriation,” by Sen. Kevin Lundberg and Rep. Bob Rankin. The bill creates the Open Educational Resources Council in the Department of Higher Education. The bill directs the Department to contract with an entity to evaluate the existing use of open educational resources by public institutions of higher education.
  • SB 17-259“Concerning a Transfer of Money from the General Fund to Cash Funds Administered by State Departments for the Protection of the State’s Natural Resources,” by Sen. Kevin Lundberg and Rep. Bob Rankin. The bill requires the state treasurer to transfer money from the general fund to certain state departments.
  • SB 17-268“Concerning an Increase in the Number of Pharmacy Technicians a Pharmacist may Supervise,” by Sens. Andy Kerr & Jim Smallwood and Reps. Joann Ginal & Kim Ransom. The bill allows a pharmacist to supervise up to 6 pharmacy technicians.

For a list of all of the governor’s 2017 legislative decisions, click here.

Colorado Court of Appeals: No Error in Joining Trials Where CRE 404(b) Would Have Allowed Admission of Other Act Evidence

The Colorado Court of Appeals issued its opinion in People v. Raehal on Thursday, February 23, 2017.

Bradford Steven Raehal was living in the basement of S.F.’s family home when he was arrested for failing to register as a sex offender. Shortly after his arrest, S.F. reported that Raehal had sexually assaulted him on multiple occasions and had taken pictures of the assaults with a grey or silver digital camera. A search executed pursuant to a warrant found the digital camera, which contained previously deleted images of Raehal assaulting S.F.

J.H., another minor who lived at S.F.’s house, first denied that Raehal had assaulted him, but later reported three separate incidents of abuse. Although the incidents differed from the incidents with S.F., both boys reported that Raehal gave them video games and rubbed lotion on their backs before the assaults, which occurred in the same location for both boys.

At first, the trials for the acts on S.F. and J.H. were separate, but the district court joined the trials over defense counsel’s objection. A jury convicted Raehal of two counts of sexual assault on a child by one in a position of trust (one for acts against S.F. and one for acts against J.H.), two counts of sexual assault on a child as part of a pattern of abuse (one for acts against S.F. and one for acts against J.H.), and two counts of sexual exploitation of a child for the possession and production of sexually exploitative material relating to the pictures taken of S.F. In a separate proceeding, he was adjudicated a habitual sex offender against children. The trial court designated him a sexually violent predator and sentenced him to 112.5 years to life.

On appeal, Raehal first contended that the trials were improperly joined. Although he admitted that S.F.’s testimony would have been admissible under CRE 404(b) in J.H.’s trial, he argued the photos depicting the assaults of S.F. would not have been admissible. The court of appeals found no abuse of discretion. The court disagreed that the photographs should have been separately analyzed, and found the Spoto test inapplicable because the photos were admitted to corroborate S.F.’s testimony, not to prove a common scheme or plan. The court of appeals similarly found no error in the court’s failure to give a limiting instruction as to the photos, finding that any error could not have cast serious doubt on the reliability of the convictions.

Raehal next contended that the contents of the digital camera should have been suppressed because the examination of the camera occurred outside the 14-day window in the search warrant. The court of appeals again disagreed, finding that the camera was seized within the time limit and was not altered between the seizure and examination, so there was no error.

Raehal also contended that evidence of his prior assault of two other boys should have been rejected under CRE 404(b), but the court of appeals again disagreed, finding that although the prosecutor’s statements were somewhat misleading, there was no doubt that Raehal was convicted of only one charged offense.

Finally, Raehal argued, and the prosecution conceded, that the trial court erred in finding him a sexually violent predator without making specific findings. The court of appeals remanded for further findings on the sexually violent predator designation.

The court of appeals affirmed in part, reversed in part, and remanded for further proceedings.

Tenth Circuit: Commerce Clause Does Not Protect Creator of Child Pornography

The Tenth Circuit Court of Appeals issued its opinion in United States v. Humphrey on Wednesday, January 18, 2017.

Reginald Humphrey was convicted of the rape and forcible sexual abuse of his live-in girlfriend’s stepdaughter and sentenced to five years’ imprisonment. During the state’s investigation into the abuse claims, police found photographs and videos depicting the abuse on Humphrey’s computer. Subsequent to his conviction on the abuse claims, a grand jury indicted Humphrey on one count of producing child pornography in violation of 18 U.S.C. § 2251(a).

Section 2251(a) prohibits a minor from engaging in sexually explicit conduct to create a visual depiction of such conduct if it was made with materials that have been mailed, shipped, or transported via intrastate commerce. The court stated that there is no doubt § 2251(a) applies to Humphrey’s conduct in this case. Humphrey conditionally pleaded guilty to the charge, and reserved his right to appeal the district court’s ruling, arguing that the application of § 2251(a) to his solely intrastate activities violated the commerce clause as he did not distribute or share the child pornography across state lines.

The Tenth Circuit had to determine if the previous decisions of the court upholding the application of § 2251(a) to the production of child pornography were invalidated by the Supreme Court decision in National Federation of Independent Business v. Sebelius. While Humphrey acknowledges the court’s holding in United States v. Jeronimo-Bautista that the application of § 2251(a) to the intrastate production of child pornography did not violate the commerce clause, he argues the holding should be overturned in light of the ruling in NFIB, which rejected congress’s regulation of an individual’s inactivity in the market.

The court rejected Humphrey’s argument that NFIB should apply, as the NFIB case involved an individual’s failure to engage in a commercial activity where Congress had mandated action, while Humphrey’s case involved no requirement to act by Congress. The court states that this distinguishes Humphrey’s case from NFIB, because, “here, Humphrey didn’t fail to produce child pornography; he actively engaged in producing it.” The court states that because the NFIB case has no affect on Congress’s ability to regulate interstate commerce, they are bound by their previous holding in Jeronimo-Bautista.

The court affirmed the district court’s denial of Humphrey’s motion to dismiss.

HB 17-1109: Expanding Permissible Venues for Prosecution of Child Sexual Assault Pattern Offenses

On January 20, 2017, Reps. Terri Carver & Jessie Danielson and Sens. John Cooke & Rhonda Fields introduced HB 17-1109, “Concerning Prosecuting in One Jurisdiction a Person who has Committed Sexual Assaults Against a Child in Different Jurisdictions.”

In current law, several sex-assault-on-a-child crimes are designated ‘pattern’ offenses, meaning that the defendant has a pattern of sexually assaulting the same child repeatedly. When such assaults occur in more than one jurisdiction, the district attorney in each such jurisdiction must prosecute a case for the incident that occurred in his or her jurisdiction.

The bill allows a prosecutor to charge and bring a pattern-offense case for all such assaults in any jurisdiction where one of the acts occurred. The bill allows the prosecution of a defendant charged with sex-assault-on-a-child pattern offense or sex-assault-on-a-child-in-a-position-of-trust pattern offense to be tried:

  • In a county where at least one or more of the incidents of sexual contact occurred;
  • In a county where an act in furtherance of the offense was committed; or
  • In a county where the victim resided during all or part of the offense.

The bill was introduced in the House and assigned to the Judiciary Committee. It is scheduled for hearing in committee on February 21, 2017, at 1:30 p.m.

Colorado Court of Appeals: Constructive Amendment to Charges Does Not Require Reversal Where No Plain Error

The Colorado Court of Appeals issued its opinion in People v. Weeks on Thursday, June 18, 2015.

Death of a Child—Other Acts Evidence—Jury Instruction—Indictment—Pattern of Conduct—Expert Medical Testimony—Substitution of Counsel.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of first-degree murder and child abuse. Defendant’s convictions arose out the death of his 3-year-old daughter, A.M., who was declared brain dead after she was physically abused after urinating in her bed.

On appeal, defendant contended that reversal was required because the trial court erroneously admitted evidence of other acts showing that defendant had physically punished his other daughters and family pets for urinating and/or vomiting in the house. This other-acts evidence was properly admitted to show intent, knowledge, and absence of mistake or accident pursuant to CRE 404(b), and the incidents were sufficiently similar and numerous to be probative of an issue that was in dispute. Further, the evidence was logically relevant to disprove defendant’s claim that A.M.’s death was accidental.

Defendant also contended that his conviction and sentence for child abuse must be reversed or vacated because the court’s elemental jury instruction on child abuse effected a constructive amendment of the charge contained in the indictment. Defendant was charged in the indictment with all three categories of abuse. Varying slightly from the text of CRS § 18-6-401(1)(a), however, the indictment did not listmalnourishment and lack of proper medical care as the effects of defendant’s continued pattern of conduct against A.M. Moreover, the instruction included the two statutory effects that had been omitted from the indictment. Therefore, the instruction constructively amended the indictment. However, because defendant did not object to the instructions in the trial court, reversal was not warranted.

Defendant contended there was insufficient evidence of a causal connection between defendant’s pattern of conduct and A.M.’s death to support his conviction. The last phrase of CRS § 18-6-401(1)(a) (“ultimately results in the death of a child or serious bodily injury to a child”) applies only to the last enumerated pattern of abuse (“an accumulation of injuries”). The other enumerated patterns of abuse do not require a showing that they resulted in death or serious bodily injury. Therefore, it was sufficient for the prosecution to show that defendant engaged in a pattern of conduct that resulted in mistreatment and cruel punishment of A.M., which ultimately resulted in A.M.’s death.

Defendant also argued that the trial court erred in permitting expert medical testimony on an ultimate issue to be determined by the jury. It was not an abuse of discretion to allow four medical experts to testify that A.M.’s injuries were not accidental. These experts did not give an opinion regarding whether defendant inflicted A.M.’s injuries or whether those injuries fit the legal definition of child abuse.

Defendant argued that the court deprived him of his right to conflict-free counsel, to present a defense, and to testify when it denied his midtrial request for a substitution of counsel. An actual conflict does not arise when trial counsel pursues a strategy that would impede a defendant’s right to testify, even over the defendant’s protest. Any alleged conflict did not deprive defendant of the right to testify and call witnesses. Consequently, the trial court did not error in denying defendant’s request for new counsel. The judgment of conviction was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Other Bad Act Evidence Impermissibly Invited Jury to Infer Defendant Acted in Accordance with Character Propensities

The Colorado Court of Appeals issued its opinion in People v. Harris on Thursday, May 7, 2015.

Murder—Child Abuse Resulting in Death—Reckless Endangerment—CRE 404(b)—Other Acts Evidence.

Harris was convicted of child abuse resulting in death and reckless endangerment. In 2005, Harris lived with her two children, L.L. and O.W., and her husband and his son, S.H. On July 25, S.H. (age 4) fell down the stairs and hit his head. He was taken to the hospital, where he was diagnosed with a subdural hematoma. He was discharged three days later. Thereafter, S.H. suffered from seizures, and on the morning of August 22, he became unconscious. Harris put S.H. in the car with the other children, drove to her mother’s house, and then drove S.H. to the hospital. Upon arrival in the emergency room, S.H. was not breathing, but doctors successfully resuscitated him. S.H. died on September 2.

On appeal, Harris argued that the court erred by admitting other acts evidence pursuant to CRE 404(b). Specifically, L.L.’s father and his fiancée testified that in 2003, when they went with their infant child to pick L.L. up from Harris’s mother’s house, Harris got into an argument with the fiancée and chased after her in a vehicle, intentionally ramming into the fiancée’s vehicle with the infant inside. This evidence was not logically relevant to Harris’s mental state on August 22, nor was it sufficiently similar to the charged conduct in this case. The only thing to which the car-chase incident was logically relevant was Harris’s propensity to get angry and failure to consider how her actions could pose a safety risk to children. This evidence invited the jury to infer that she acted in conformity with the anger propensity when S.H. was fatally injured, which is precisely the inference that CRE 404(b) expressly prohibits. Therefore, admitting evidence of this car-chase incident was an abuse of discretion. Furthermore, the prosecution’s case was not so strong, and the improperly admitted evidence may have substantially swayed the jury to its verdict. As a result, any error was not harmless. The judgment was reversed and the case was remanded for a new trial.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Two Incidents of Producing Child Pornography Satisfy “Pattern of Activity” Requirement for Sentence Enhancement

The Tenth Circuit Court of Appeals issued its opinion in United States v. Evans on Thursday, April 2, 2015. The Tenth Circuit originally issued its opinion in Evans on March 3, 2015, as an unpublished opinion, but granted Evans’ petition to publish.

In 2012, authorities found 4,800 images of child pornography in Jesse Evans’ possession, at least 100 of which depicted his own minor daughters and his minor niece. He eventually pled guilty to production of child pornography, and admitted in his plea that he had produced child pornography of two minor victims between January 2010 and November 25, 2011. Over Evans’ objection, the district court applied a five-point sentence enhancement pursuant to Guidelines § 4B1.5(b), specifically finding that Evans had produced child pornography on November 5, 2011 and November 25, 2011, satisfying the “pattern of activity” element of 4B1.5(b). Evans’ Guidelines range was 360 months, and the judge varied downward and sentenced him to 252 months.

Evans appealed, arguing § 4B1.5(b) does not apply to him because the “pattern of activity” requirement was not met, and also the district court erred because the government did not request the sentence enhancement so it should not have been applied in the interest of fairness. The Tenth Circuit first found that Evans had preserved his objection at the sentencing hearing, then evaluated the language of the application notes to § 4B1.5(b), finding Evans’ conduct clearly satisfied the criteria for a “pattern of activity.” The Tenth Circuit similarly rejected Evans’ argument that the district court should not have applied the sentence enhancement in the interest of fairness, noting the court was not bound by Evans’ plea agreement.

The Tenth Circuit affirmed Evans’ sentence, and granted his motion to permanently seal Attachment B to the government’s opening brief.

Tenth Circuit: Published Concurrence Condemns Police Abuse of Children Under Color of Sovereign Immunity

The Tenth Circuit Court of Appeals published Judge Lucero’s concurrence in Hawker v. Sandy City Corp. on Friday, December 5, 2014.

The Tenth Circuit issued its opinion in Hawker v. Sandy City Corp. as an unpublished opinion. The facts of the case were that C.G.H., a 9-year-old boy, stole an iPad from a classmate. His grandmother, who was his legal guardian, found the iPad and asked C.G.H. to return it. When he was returning it, school officials caught him with the iPad and took it from him. He was upset, and school officials forcibly restrained him and called his grandmother and the police. C.G.H. began to calm down as his grandmother spoke to him, but then the police arrived and placed the child in a forcible twist-and-lock restraint and handcuffed him as he cried, “you’re hurting me!” The grandmother took him to the doctor later that day, where he was treated for a hairline fracture to his clavicle (collarbone). In addition to the fracture, C.G.H. suffered post-traumatic stress and anxiety from this experience. The grandmother brought suit on his behalf under 42 U.S.C. § 1983 against the officer and the city, but the district court granted summary judgment on qualified immunity grounds. The Tenth Circuit reluctantly upheld the summary judgment.

Tenth Circuit Judge Lucero wrote a separate concurrence, which was published. Judge Lucero concurred with the findings of the panel, since they followed the law, but disagreed with the state of the law that allows a 9-year-old boy to be treated so forcibly. Judge Lucero writes, “It is time for a change in our jurisprudence that would deal with petty crimes by minors in a more enlightened fashion and would not automatically extend qualified immunity for conduct such as occurred in this case.” The potential future consequences for this child and society at large are great; the child is now branded a criminal and no doubt has lost all faith in the criminal justice system. And although it would be ideal if this were an isolated incident, it is not. School districts across the country are adopting swift punishment for such childish behavior, and children as young as six are handcuffed and treated as criminals.

Judge Lucero condemns the “school-to-prison pipeline” and the myriad negative consequences created by treating children as criminals. Without the benefit of an education free from duress, children are unlikely to succeed in life, and end up populating already overcrowded prisons. Instead of swift punishment, the school’s aim should be to realign the child away from criminal behavior and encourage the pursuit of a productive and educated life. As Judge Lucero says in closing, “We should change course and instead leave it to the factfinder to determine whether the handcuffing of six- to nine-year-old children is excessive force rather than giving schools and police a bye by holding them immune from liability. A more enlightened approach to elementary school discipline by educators, police, and courts will enhance productive lives and help break the school-to-prison chain.”

Colorado Court of Appeals: Evidence of Other Bad Acts Evaluated on Case-by-Case Basis

The Colorado Court of Appeals issued its opinion in People v. Whitlock on Thursday, December 4, 2014.

Sexual Assault on a Child—Prior Bad Acts—Sentencing—Probation—Sex Offender Treatment—Fifth Amendment.

According to the victim, when she was 11 years old, defendant (her stepfather at the time) went into her room one night while she was sleeping, lay down beside her, removed her underwear, and touched her vagina. When she woke up and told him to stop, defendant left the room. Several years later, the victim told her new stepfather and her mother about the incident, who then contacted the police. The jury later convicted defendant of sexual assault on a child and sexual assault on a child by one in a position of trust (victim under 15 years old).

On appeal, defendant contended that the trial court reversibly erred when it admitted evidence of his prior bad acts. The victim’s mother testified that during the last year of her relationship with defendant, she would wake up with defendant having sex with her and defendant would refuse to stop when she objected. The victim’s sister testified that defendant watched her undress one time and, on a separate occasion when defendant had picked her up from work, he stopped the car and showed her his intimate parts. The evidence regarding the victim’s mother was probative of defendant’s method and intent of seeking sexual gratification from individuals who were isolated and sleeping. Conversely, the evidence involving the victim’s sister was not probative of any relevant evidence, so the trial court erred in admitting it. However, such error was harmless given defendant’s admissions regarding his assault on the victim.

Defendant also contended that the trial court erroneously sentenced him to imprisonment rather than probation. Both the probation department and a psychosexual evaluator recommended that defendant be sentenced to probation with sex offender treatment. However, defendant stated his intent to invoke his Fifth Amendment right against self-incrimination during sex offender treatment sessions. Because the court determined that defendant could not successfully complete treatment without admitting any wrongdoing, it did not abuse its discretion in sentencing him to imprisonment. The judgments and sentences were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

 

Tenth Circuit: Parental Privilege is Constitutionally Protected Interest and Restrictions on Parenting Require Heightened Justification

The Tenth Circuit Court of Appeal issued its opinion in United States v. Bear on Friday, October 31, 2014.

In 2001, Wesley A. Bear was convicted in Iowa state court of two counts of committing lascivious acts on a child following offenses involving two children under 12 years of age. As a result of these convictions, Mr. Bear is required to register for life as a sex offender under the Sex Offender Registration and Notification Act (SORNA). In 2010, Mr. Bear was convicted of a SORNA violation in a different part of Iowa. He subsequently purchased a trailer home and registered at the trailer’s address, but he and his wife and children moved to Oklahoma City and Mr. Bear failed to update his registration. He was arrested and charged with failure to comply with SORNA. He pled guilty, and was sentenced to 23 months imprisonment followed by 5 years’ supervised release with sex offender conditions, including requirements that he submit to sex offender mental health assessment and treatment, a prohibition on being at any residence where children under age 18 are residing, and a prohibition on associating with children under the age of 18 unless in the presence of a responsible adult who is aware of his criminal background. He objected to the imposition of the special conditions, arguing they were too remote in time to be reasonably related as conditions of his supervised release, that they prevented him from parenting his own children, and that he previously underwent sex offender mental health treatment around the time of his previous conviction. The district court overruled Mr. Bear’s objections and imposed the special conditions, and Mr. Bear appealed.

The Tenth Circuit, noting that district courts have broad authority to impose special conditions of supervised release, first addressed Mr. Bear’s contention that his prior convictions were too remote to be reasonably related to his supervised release. The Tenth Circuit found that, although his convictions were 12 years old and he had shown no further proclivity toward sexual deviance since his original conviction, the facts surrounding the original incidents were troubling, and the requirements of mental health assessment and treatment were appropriate. The Tenth Circuit also found no error in the district court’s reliance on the probation officer to determine when Mr. Bear was ready to be released from mental health treatment.

Next, the Tenth Circuit turned to Mr. Bear’s argument that the condition against being at any residence where minor children resided prevented him from associating with his own children. The Tenth Circuit found that the imposition of special conditions should not deprive a parent of his constitutionally protected parental privilege. Mr. Bear had not committed any sexual offense in the 12 years since his original offense, did not display continuing sexually deviant tendencies, and had never shown himself to be a danger to his own three children. The Tenth Circuit vacated the imposition of conditions that prevented Mr. Bear from parenting his own children. However, the Tenth Circuit found no error in the imposition of the special conditions as related to other children.

The district court’s sentence was affirmed as related to the mental health assessment and treatment, and also as to the restrictions involving unrelated children, vacated as to the restrictions regarding Mr. Bear parenting his own children, and remanded for further proceedings.

Colorado Court of Appeals: Defendant Need Not Be Same Race as Excused Juror to Make Batson Challenge

The Colorado Court of Appeals issued its opinion in People v. Friend on Thursday, September 25, 2014.

Child Abuse—Murder—Batson Challenge—Jurors—Challenge for Cause—Expert Testimony—Merger.

M.B., the 12-year-old daughter of defendant’s girlfriend, C.H., was declared brain dead and taken off life support after defendant physically abused her, causing her fatal injuries. A jury convicted defendant of (1) first-degree murder—victim under the age of 12, position of trust; (2) child abuse causing death; (3) child abuse causing death—pattern of conduct; (4) two counts of child abuse causing serious bodily injury; and (5) child abuse causing serious bodily injury—pattern of conduct.

On appeal, defendant contended that the trial court erred in holding that he did not have standing to assert a challenge under Batson v. Kentucky, 476 U.S. 79 (1986). Defendant made a Batson challenge when the prosecutor used a peremptory challenge to excuse Juror H, an African American. The prosecutor asserted that defendant could not make a Batson challenge because he was not African American. The trial court agreed and concluded that the challenged juror and defendant had to be of the same race. A defendant does not have to be of the same race or cognizable group as that of an excused juror to make a Batson challenge. However, the prosecution provided race-neutral grounds for excusing Juror H, and defendant did not establish purposeful discrimination. Therefore, the court did not err.

Defendant contended that the trial court should have granted his challenges for cause to two prospective jurors, Juror C and Juror W, who were later removed by peremptory challenges. Because defendant failed to demonstrate that a biased juror actually sat on the jury, the court did not err.

Defendant also contended that the trial court erred in admitting the testimony of three expert witnesses regarding injuries consistent with non-accidental trauma, as well as Detective Thrumston’s testimony recounting M.B.’s removal from life support. The Court of Appeals ruled that the trial court did not abuse its discretion nor err in admitting the testimony.

Defendant further argued that the court erred in failing to merge his convictions. Defendant is correct that the four child abuse counts must merge into one conviction because they are alternative ways of committing the offense of child abuse. The child abuse convictions, however, should not have merged into the first-degree murder conviction, because each offense contains an element not included in the other. The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary and full case available here, courtesy of The Colorado Lawyer.