September 25, 2018

Colorado Court of Appeals: Semen Not “Intimate Part” so Evidence Insufficient to Support Child Sexual Assault Charges

The Colorado Court of Appeals issued its opinion in People v. Ramirez on Thursday, September 6, 2018.

Sexual Assault on a Child—Sexual Assault on a Child by One in a Position of Trust—Indecent Exposure—Intimate Parts—Semen.

Ramirez was the victim’s foster father. When the victim was 4 years old, Ramirez ordered her and her sister to approach him. He placed their hands in front of him, pulled down his pants and underwear, and masturbated. Ramirez ejaculated into their hands and made them drink the semen. A jury convicted Ramirez of sexual assault on a child (SAOC), sexual assault on a child by one in a position of trust (SAOC-POT), and indecent exposure.

On appeal, Ramirez contended that there was insufficient evidence to support the charges of SAOC and SAOC-POT. To prove the crimes of SAOC and SAOC-POT the prosecution must prove, beyond a reasonable doubt, that “for the purposes of sexual arousal, gratification, or abuse” the defendant knowingly touched the victim’s intimate parts or the victim touched the defendant’s intimate parts. Semen is not an “intimate part” within the meaning of C.R.S. § 18-3-401(2). Here, the victim testified that Ramirez never touched any of her “private parts” and that she never touched his “private parts.” The evidence was insufficient to prove beyond a reasonable doubt that Ramirez committed SAOC or SAOC-POT.

The SAOC and SAOC-POT convictions were vacated and the case was remanded for the trial court to dismiss those charges with prejudice. The convictions for indecent exposure were affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Jury’s Refusal to Convict on Pattern of Abuse Charge Does Not Necessitate Retrial on Only Single Act

The Colorado Supreme Court issued its opinion in In re People v. Stackhouse on Monday, June 18, 2018.

Double Jeopardy.

Pursuant to C.A.R. 21, the People challenged a district court order granting Stackhouse’s motion to compel the People to elect a particular allegation of sexual assault on a child as their sole basis for proceeding in Stackhouse’s retrial. The supreme court held that the district court erred when it concluded that the jury in Stackhouse’s first trial had necessarily concluded that he did not commit multiple acts of assault, and therefore that he could not be retried for more than a single assault. The court made the rule to show cause absolute, reversed the district court’s order, and remanded the case to the district court for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Exculpatory Statement to Police Admissible Under Rule of Completeness is Not Subject to Impeachment

The Colorado Court of Appeals issued its opinion in People v. Short on Thursday, April 5, 2018.

Sexual Assault on Child—Testimony—Credibility—Rule of Completeness—Exculpatory Statement—Hearsay Exceptions—Sentence.

A jury found Short guilty of sexual assault on a child and sexual assault on a child as a pattern of abuse.

On appeal, Short contended that the testimony of three witnesses improperly bolstered the victim’s credibility. Short did not object to any of this testimony. It was not improper for the therapist to testify as an expert as to the typical demeanor and behavioral traits displayed by a sexually abused child. It was also not improper for the detective to testify concerning his observations about child victim disclosures; he rendered no opinion about whether a child’s difficulty in disclosing something made it more or less likely that he or she was telling the truth. Finally, although the grandmother’s testimony that the victim “normally would not lie about something like that” was improper, it did not warrant reversal.

Short also argued that the trial court erroneously compelled him to forgo admitting an exculpatory part of a statement he gave to the police by telling him that, if that part of the statement was admitted, the prosecution would be permitted to expose the jury to the fact that he had previously been convicted of a felony. The trial court properly determined that Short’s otherwise inadmissible self-serving hearsay was admissible under the rule of completeness to qualify, explain, or place into context the evidence proffered by the prosecution. However, a defendant’s exculpatory statement to the police admissible under the rule of completeness is not subject to impeachment under CRE 806. Although the trial court erred, the error was harmless.

Short also contended and the People conceded that only one judgment of conviction and sentence should have been imposed in this case. The trial court incorrectly entered separate convictions for sexual assault on a child and sexual assault on a child as a pattern of abuse. The pattern of abuse count acts only as a sentence enhancer.

The judgment was affirmed in part and vacated in part, and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Whether Minor Initiated Sexual Contact is Irrelevant Under Sexual Assault on a Child Statutes

The Colorado Court of Appeals issued its opinion in People v. Sparks on Thursday, January 11, 2018.

Sexual Assault—Child—Prosecutorial Misconduct—Sufficiency of Evidence—Hearsay—Jury Instructions—Video Interview of Defendant.

Sparks attended a party at his wife’s cousin’s house. The cousin’s daughter, A.M., reported that while she was at the party and Skyping on her computer, Sparks touched her breast over her clothing. She also reported that as she was Skyping, her friend S.F. (the victim) and Sparks were behind her, and that through her computer’s camera she saw the victim grabbing Sparks’s groin area and making other movements. At the time, A.M. was 14 and the victim was 13. Sparks admitted to what A.M. reported and to touching the victim’s groin, breast, and bottom area. Sparks was convicted of one count of sexual assault on a child as to the victim.

On appeal, Sparks contended that the prosecutor engaged in misconduct by misstating the law and evidence during closing argument. Specifically, Sparks asserted it was error for the prosecutor to tell the jury that it did not matter that the victim initiated the sexual contact, arguing that C.R.S. § 18-3-405(1), the sexual assault on a child statute, required the prosecution to prove that he caused the victim to become subservient or subordinate or that the child victim initiated the sexual contact at his directive. Sexual contact includes the touching of the defendant’s intimate parts by the victim. The phrase “subjects another . . . to any sexual contact” in the statute does not require the People to prove that defendant caused the child-victim to become “subservient or subordinate” or that the child-victim initiated the sexual contact at defendant’s directive. There was no error in the prosecutor’s statement to the jury.

Sparks also argued that the prosecutor misstated the evidence by saying A.M. saw improper sexual contact between the victim and Sparks through a computer camera while on Skype and that Sparks knew exactly how old the victim was. As discussed below, the court did not err in admitting this evidence, and given this evidence, the prosecutor did not misstate nor draw improper inferences from it.

Sparks further contended that the prosecution failed to produce sufficient evidence to prove that he committed sexual assault on a child because the only evidence as to the victim’s age was inadmissible. He contended that the court erred in admitting the detective’s and A.M.’s testimony and Sparks’s interview statement about the victim’s age because these were hearsay. All of this evidence was admitted without objection. A.M.’s testimony may have been based on her personal knowledge or the victim’s reputed age, and thus would not have been hearsay or would have fallen within a hearsay exception. Thus, the trial court’s ruling on A.M.’s testimony was not erroneous, much less obviously so. Similarly, the basis for the detective’s testimony could not be determined, but the court of appeals could not conclude that the trial court’s admission of this testimony was obviously erroneous. And even assuming that admitting this testimony was obvious error, such error would be harmless in light of A.M.’s testimony and Sparks’s interview statement. CRE 805 does not apply to Sparks’s interview admission because as a party opponent his statement does not require firsthand knowledge to be admissible. It was not plain error to admit the evidence, and it was sufficient.

Sparks also asserted that the court abused its discretion by instructing the jury that it could assign his interview video any weight it wanted when the court provided the video to the jury during deliberations. The court did not instruct the jury to give Sparks’s statements any weight it wanted. Further, no special protections against undue emphasis as to a defendant’s out-of-court statements were required. Lastly, the court provided specific instructions for the jury to follow in viewing the evidence, and thus appropriately exercised its discretion.

Sparks further contended that the trial court denied him his constitutional right to effective assistance of counsel by providing his interview video to the jury during deliberations without notifying his counsel. The court agreed, but concluded this error was harmless beyond a reasonable doubt.

The judgment of conviction was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Erred in Omitting Jury Instruction on Right Not to Testify, but Reversal Not Required

The Colorado Court of Appeals issued its opinion in People v. Deleon on Thursday, November 16, 2017.

Sexual Assault—Child—Jury Instruction—Right Not to Testify—Hearsay.

Defendant was found guilty of two counts of sexual assault on a child.

On appeal, defendant contended that the district court erred by rejecting his tendered jury instruction on his right not to testify and by failing to instruct the jurors immediately before closing arguments of his constitutional right not to testify. The trial court did not err in choosing to give the jury the pattern jury instruction on defendant’s right not to testify because defendant’s proposed instruction went beyond the language of the pattern instruction. However, the trial court had an obligation to instruct jurors about defendant’s right not to testify before the attorneys made their closing arguments. Although the court violated Crim. P. 30 by not reading the instruction to the jury before closing argument, the court properly instructed jurors on defendant’s right not to testify during voir dire and reminded the sworn jurors of its earlier remarks. Reversal isn’t warranted because the error doesn’t cast serious doubt on the reliability of the judgment of conviction.

Defendant also argued that the district court erred by admitting into evidence the victim’s out-of-court statement to a Sexual Assault Nurse Examiner (SANE nurse) that defendant had been “kicked out of the house.” Defendant argued that by saying he got kicked out of the house, the victim implied that her mother had kicked him out because of the victim’s allegations, which implied that the victim’s mother believed those allegations. Even assuming that the statement was inadmissible hearsay, any error in allowing it was harmless because any inferences defendant drew from the statement were speculative, and the victim’s mother testified that she did not believe the victim.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Social Worker Not Entitled to Qualified Immunity after Violating Defendant’s Constitutional Rights

The Tenth Circuit Court of Appeals issued is opinion in T.D. v. Patton on Monday, August 28, 2017.

Ms. Patton is a social worker for the Denver Department of Human Services (DDHS) and was responsible for removing T.D., a minor, from his mother’s home, and recommending T.D. remain in the temporary custody of his father, Duerson. T.D. was removed from Duerson’s home after DDHS made a determination that T.D. had suffered physical and sexual abuse at the hands of his father. This case concerns Ms. Patton’s motion for summary judgment on the grounds that she is entitled to qualified immunity.

The Tenth Circuit Court of Appeals concluded that Ms. Patton violated T.D.’s clearly established substantive due process constitutional right to be free of a state official’s creation of danger from a private actor under a danger-creation theory. The court found that Ms. Patton violated T.D.’s substantive due process right by knowingly placing T.D. in a position of danger by recommending that T.D. be placed in Duerson’s custody despite admitted concerns about T.D.’s safety, her knowledge of Duerson’s criminal history and conviction for attempted sexual assault against a minor, and failure to investigate whether Duerson was abusing T.D. despite her awareness of evidence of potential abuse. The court found that Ms. Patton acted recklessly and in conscious disregard of a known and substantial risk that T.D. would suffer serious, immediate, and proximate harm in his father’s home.

Under 42 U.S.C. § 1983, a person acting under color of state law who subjects any citizen of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution shall be liable to the injured party. However, a defendant in an action may raise a defense of qualified immunity, which shields public officials from damages unless their conduct was unreasonable in light of law. Once a defendant asserts qualified immunity, the plaintiff has the burden to show that the defendant’s actions violated a federal constitutional or statutory right and that the right was clearly established at the time of the defendant’s unlawful conduct.

The court first evaluated whether the facts satisfied T.D.’s claim of danger-creation. The court considered whether Ms. Patton created or increased the danger posed to T.D. The court concluded that Ms. Patton’s actions amounted to a failure to investigate evidence that Duerson was abusing T.D., satisfying the first element. The second element is whether T.D. was a member of a limited and specifically definable group. The court held that because the state removed T.D. from his natural parent and took him into state custody, T.D. fell within a limited and specifically definable group of children.

Third, Ms. Patton’s conduct put T.D. at substantial risk of serious, immediate, and proximate harm. This is evidenced by Ms. Patton withholding relevant information and recommending T.D. be placed with his father, by failing to investigate evidence of potential abuse, and by continuing to recommend T.D. remain with his father.

The court discussed the fourth and fifth elements simultaneously. Ms. Patton acted recklessly and in conscious disregard of a risk (element 4) that was obvious or known (element 5). Ms. Patton knew of Duerson’s criminal history, but deleted those concerns for fear of being fired. She further withheld concerns of T.D.’s safety and concerns, stemming from her professional judgment, that T.D. should be removed from the home. Her intentional exclusion of her knowledge and concerns from her hearing report showed she acted recklessly and in conscious disregard of an obvious or known risk that Duerson posed to T.D.

The last element is satisfied by Ms. Patton’s conscience-shocking conduct. Ms. Patton’s conduct was held to significantly exceed ordinary negligence or permitting unreasonable risk and rose to a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.

In sum, Ms. Patton’s conduct violated T.D.’s substantive due process right by creating or increasing T.D.’s vulnerability to the danger of private violence by Duerson.

The court found that the law was clearly established at the time of Ms. Patton’s misconduct. The court held that a reasonable official in Ms. Patton’s shoes would have understood that she was violating T.D.’s constitutional right by creating or increasing T.D.’s vulnerability to the danger posed by Duerson.

The Tenth Circuit Court of Appeals AFFIRMED the district court’s DENIAL of summary judgment.

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.