October 23, 2017

Colorado Court of Appeals: Aggravated Incest Statute Constitutional As Applied to Stepchildren of Common Law Marriages

The Colorado Court of Appeals issued its opinion in People v. Perez-Rodriguez on Thursday, June 1, 2017.

Sexual Assault—Minor—Aggravated Incest Statute—Common Law Marriage—Stepchildren—Unconstitutionally Vague as Applied—Jury Instruction—Mens Rea—Prosecutorial Misconduct—Due Process—Admission—Involuntary.

Defendant and A.S. lived together, and though they were never formally married, they publicly referred to each other as husband and wife. J.H-S. was one of A.S.’s children from a previous marriage, and while defendant never formally adopted her, they referred to each other as father and daughter. When J.H-S. was 15 years old, defendant forced her to have sexual intercourse with him on two separate occasions and impregnated her. When defendant was taken into custody, a detective questioned him for about 40 minutes. He was advised of his Miranda rights and signed a waiver. Defendant initially denied having had sexual intercourse with J.H.-S., but after about 15 more minutes, he confessed. Defendant was convicted of two counts each of aggravated incest, sexual assault on a child by one in a position of trust as a pattern of conduct, and sexual assault with the actor 10 years older than the victim.

On appeal, defendant first contended that the aggravated incest statute is unconstitutionally vague as applied to stepchildren of common law marriages. However, there is sufficient guidance through statute, case law, and the plain meaning of “stepchild” that a person in a common law marriage has sufficient notice as to the prohibited conduct of aggravated incest.

Defendant next contended that the trial court’s elemental instruction on aggravated incest failed to properly instruct the jury on the scope of the mens rea required to sustain a conviction. Specifically, defendant claimed that the way the jury instruction was written, the “knowingly” mens rea applied only to his act of subjecting J.H-S. to sexual penetration or sexual intrusion, and not to whether he knew she was his stepchild. Regardless of whether the instruction was erroneous, however, the evidence that defendant knew J.H-S. was his stepdaughter was overwhelming. Therefore, any error was not plain error.

Defendant then argued that the prosecution misstated the law on common law marriage during rebuttal closing argument, thereby committing reversible misconduct. The court’s instruction properly defined common law marriage and cohabitation. Although the prosecutor’s simple reference to “cohabitation,” viewed in isolation, may have misstated the law, when viewed in context as rebuttal to defendant’s arguments, there was no plain error.

Finally, defendant asserted that his confession was involuntary and that its admission violated his state and federal due process rights. Based on the totality of the circumstances, defendant’s admission was voluntary and the trial court did not err in admitting it into evidence.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

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.

Colorado Court of Appeals: Any Relevance of Polygraph Examination Overly Prejudicial and Confusing to Jury

The Colorado Court of Appeals issued its opinion in People in Interest of G.E.S. on Thursday, December 15, 2016.

Dependency and Neglect—Sexual Abuse—Evidence—Psychosexual Evaluation—Polygraph Examination—Child Hearsay.

Father’s 12-year-old stepdaughter, J.O-E., made allegations of father’s inappropriate sexual behavior toward her to her therapist. She made additional allegations in a recorded forensic interview. Shortly thereafter, J.O-E. recanted her story. In the meantime, the family voluntarily cooperated with the Department of Human Services (Department) and followed the Department’s recommended safety plan, which required father to leave the family home and have no contact with his infant child G.E.S. or any of his three stepchildren. Father took a psychosexual evaluation, but because he refused to take a polygraph examination, the Department filed a dependency and neglect petition as to G.E.S. Father denied the allegations and requested a jury trial. At a pre-trial hearing, the court determined that J.O-E. was unavailable to testify, and at trial, admitted her hearsay statements without her testifying. The court also ruled that the probative value of evidence regarding the evaluation and polygraph refusal outweighed its prejudicial effect and allowed this evidence. After the jury returned its verdict, the court entered judgment adjudicating G.E.S. dependent and neglected.

On appeal, father contended that the district court erred in admitting evidence that he underwent a psychosexual evaluation and refused to undergo a polygraph examination. Under the Children’s Code, father had no duty to cooperate by completing a psychosexual evaluation and polygraph. Further, evidence of polygraph test results is per se inadmissible at an adjudicatory trial because they are not reliable. Here, the prejudicial impact of both the polygraph evidence and evidence of father’s partial cooperation with the Department’s request that he complete its evaluative processes required reversal.

Father also contended that the court erred in admitting J.O-E.’s hearsay statements. Under CRS § 13-25-129(1), an out-of-court statement made by a child describing an unlawful sexual offense, which would otherwise be inadmissible, is admissible if the court determines that (1) the time, content, and circumstances of the statements provide sufficient safeguards of reliability; and (2) the child either testifies at trial or is unavailable as a witness and there is corroborative evidence of the act that is the subject of the statements. Here, father did not challenge the court’s findings that the statements were reliable and that corroborative evidence supported J.O-E.’s statements. The Court of Appeals agreed with the district court that the Sixth Amendments’ Confrontation Clause does not extend to dependency and neglect cases, and the record supported the finding that J.O.-E. was not available to testify, because testifying would gravely harm her mental and emotional health. Thus, the court did not abuse its discretion in admitting J.O-E.’s hearsay statements.

The judgment was reversed and the case was remanded for a new trial.

Summary provided courtesy of The Colorado Lawyer.

CJD 16-03 Added Regarding Retention, Viewing, and Transmission of Sensitive Records

On Friday, September 30, 2016, the Colorado State Judicial Branch announced the adoption of a new Chief Justice Directive. CJD 16-03, “Retention, Transmission, and Viewing of Sensitive Records,” was adopted on September 22, 2016.

This directive sets forth the judicial department’s policy governing the retention, transmission, and viewing of sexually exploitative material, visual depictions involving the use of a minor engaging in sexually explicit conduct, and child pornography, collectively a “sensitive record.”  Among other things, the CJD prohibits anyone from uploading a sensitive record into an electronic case file, uploading or downloading a sensitive record onto an electronic device connected to the Judicial Department’s network, or using a Judicial Department computer or other electronic device to view or display a sensitive record.  The CJD is applicable to the courts, court personnel, a party, an attorney for a party, or any other person.

To read the Chief Justice Directive, click here.

Colorado Court of Appeals: Pattern of Abuse Enhancement Requires Proof of At Least Two Distinct Instances

The Colorado Court of Appeals issued its opinion in People v. Johnson on Thursday, February 11, 2016.

William Edward Johnson was arrested after a domestic disturbance. Shortly after his arrest, his stepdaughter, R.B., reported that Johnson had anally raped her earlier that day and had been sexually abusing her for years. Johnson was charged with one count of sexual abuse on a child by one in a position of trust, aggravated incest, two counts of sexual assault on a child (one of which was dismissed before trial), and a sentence enhancer for committing sexual assault as a pattern of abuse. The jury found Johnson guilty of the anal rape but none of the other listed incidents of sexual assault. The jury convicted Johnson of the pattern of abuse enhancer based on the anal rape and another incident where Johnson was asleep and woke up ejaculating as R.B. was “grinding” on him. The trial court merged all the convictions into the sexual assault on a child as a pattern of abuse conviction and sentenced Johnson to 20 years to life.

On appeal, Johnson argued the evidence was insufficient to support the sentence enhancer, and the court of appeals agreed. The jury had rejected all of the incidents listed by the prosecution except the anal rape and instead wrote in the incident where R.B. was grinding on Johnson while he slept. The court disagreed with Johnson’s contention that the jury was bound to consider only the specifically listed incidents, finding instead that the jury need only agree unanimously that the defendant committed the same act or acts or all of the acts described by the victim. However, evaluating the incident in question, the court found insufficient evidence to support his conviction based on that incident, because he was asleep at the time of the incident and therefore could not have knowingly committed the act. Therefore, only one of the specific incidents found by the jury qualified as sexual assault, and the enhancer could not apply. The court of appeals remanded for resentencing.

Johnson also argued the trial court erred in denying his request for substitute counsel based on his dissatisfaction with the level of communication present with current counsel. The trial court denied Johnson’s motion, finding that counsel’s failure to visit Johnson in prison did not indicate deficient performance, and also noting that it had observed counsel in other trials and she had always provided effective assistance. The court of appeals affirmed the trial court’s denial of Johnson’s motion for substitute counsel, finding that mere difficulties in communication do not constitute deficient performance.

Next, the court evaluated Johnson’s claim that the jury’s access to the videotaped interview of R.B. was unduly prejudicial. The trial court in this case understood its obligation to consider certain restrictions on the jury’s view of the videotape and imposed restrictions. Because the court considered its duty and restricted the jury’s access, the court of appeals found no error.

The court of appeals remanded for resentencing based on the insufficient evidence to support the sentence enhancer and affirmed on all other counts.

Colorado Court of Appeals: Defendant Not Entitled to Withdraw Guilty Plea to Correct Purportedly Illegal Sentence

The Colorado Court of Appeals issued its opinion in People v. Fritz on Thursday, August 28, 2014.

Illegal Sentence—Plea Bargain—Moot.

Fritz admitted to sexually abusing his adopted daughter, J.F., more than 1,000 times over a three-year period. He pleaded guilty to aggravated incest, and the prosecution dropped the remaining charges. Fritz complied with the plea agreement until 2008, when he left Colorado without permission and travelled to the Philippines. The prosecution filed a complaint seeking to revoke his probation.

Fritz then filed a Crim.P. 35(a) motion to withdraw his guilty plea and a Crim.P. 35(c) motion to vacate an allegedly illegal sentence and conviction; both motions were denied by the court. Two months after Fritz filed a notice of appeal, he pleaded guilty to the probation violation. Both parties stipulated to a sentence of thirteen years in prison subject to discretionary parole. The trial court sentenced Fritz according to the new plea agreement.

On appeal, Fritz contended that he obtained an illegal sentence as part of his original plea bargain, thus entitling him to withdraw his guilty plea. However, Fritz was not materially induced to enter into a plea by the mandatory parole provision. If his original sentence was illegal, the only remedy is imposition of a new legal sentence. This appeal is moot because Fritz pleaded guilty to the probation violation and the trial court imposed a new legal sentence, thereby superseding the original sentence. Accordingly, the appeal was dismissed.

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

Tenth Circuit: Three-Year Statute of Limitations for General Tort Applies to Childhood Sexual Abuse Claims

The Tenth Circuit Court of Appeals issued its opinion in Varnell v. Dora Consolidated School District on Tuesday, July 1, 2014.

Plaintiff Varnell was allegedly sexually abused by her coach, Amber Shaw, beginning in 2005 and ending in early 2007, when plaintiff was in seventh through ninth grades at Dora Consolidated School District. On May 24, 2012, when she was 20 years old, plaintiff brought suit against Shaw, Dora Schools, and Dora Schools superintendent Steve Barron under the New Mexico Tort Claims Act, the Civil Rights Act of 1871, and Title IX of the Education Amendments Act of 1972. She later sought to amend her complaint to add additional parties and claims. On defendants’ motion, the district court dismissed the claims as time-barred, denied the amendments to the complaint as futile, and dismissed without prejudice the state court claims. Plaintiff appealed.

The Tenth Circuit affirmed the district court’s judgment. The Tenth Circuit evaluated applicable statutes of limitation for the federal claims, noting that § 1983 does not contain a statute of limitations. It therefore evaluated local state statutes of limitations, and decided that New Mexico’s three-year statute of limitations for tort personal injury claims under § 1983 applied. Because of her minority at the time of the abuse, plaintiff would have been given one extra year after achieving majority in which to file suit, but she did not file until she was 20 years old. Plaintiff argued that the statute should have been further tolled due to alleged incapacity. However, she brought forth no evidence of incapacity and was a college student pursuing a biology degree at the time of the appeal, evidencing an ability to manage her own affairs. Plaintiff also argued that the limitations period was tolled because she did not realize the extent of her psychiatric injury until 2012. This argument failed as well, since under Supreme Court precedent in Wallace v. Kato, 549 U.S. 384 (2007), the common-law tort claim closest to plaintiff’s injuries was battery, and the statute of limitations would have begun to run in early 2007, when the last incident occurred. Plaintiff erroneously relied on the “discovery rule,” which delays accrual of a claim until the discovery of the claim, stating that she did not discover the extent of the damage until 2012. However, quoting Wallace, the Tenth Circuit noted that the cause of action accrues even though the full extent of the injury is not known or predictable, because if it were otherwise, “the statute would begin to run only after a plaintiff became satisfied that he had been harmed enough, placing the supposed statute of repose in the sole hands of the party seeking relief.” Wallace, 549 U.S. at 391.

Plaintiff also alleged that the district court erred by dismissing her state court claims without prejudice instead of remanding them, but the Tenth Circuit noted that the district court properly exercised its discretion under 28 U.S.C. § 1367, and that she would have had 30 days in which to bring her claims in state court after they were dismissed in federal court. Finally, plaintiff contends that the district court erred by denying as futile her motion to amend. Because her claims were time-barred and plaintiff failed to present any argument as to why the amendments would not be time-barred in her opening brief, the Tenth Circuit found no error.

The judgment of the district court was affirmed on all counts.