November 14, 2018

Colorado Court of Appeals: Child Sexual Assault Victim Cannot Legally Consent to Use of Force During Assault

The Colorado Court of Appeals issued its opinion in People v. Hodge on Thursday, November 1, 2018.

Criminal Law—Sexual Assault—Child—Use of Force Aggravator—Consent.

The prosecution charged Hodge with three counts of sexual assault on a child and alleged that he used force against the victim to accomplish the sexual contact. The use of force aggravator made each charge a class 3 felony under C.R.S. § 18-3-405(1) and (2)(a). The district court dismissed the force aggravators based on its finding that because the 14-year-old victim had consented to the force used (restraints), the prosecution did not establish probable cause for the use of force at the preliminary hearing.

On appeal, the prosecution argued that the district court erred in dismissing the use of force aggravators. A child sexual assault victim cannot legally consent to the use of force during an unlawful sexual act. Therefore, the district court erred in finding that the victim’s agreement to the use of restraints did not constitute the use of force.

The order dismissing the use of force aggravator was reversed, and the case was remanded for reinstatement of the original charges as class 3 felony sexual assault on a child.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Failure to Give Jury Instruction on “Penetration” Not Plain Error where Fact Not At Issue

The Colorado Supreme Court issued its opinion in People v. Lozano-Ruiz on Monday, October 29, 2018.

Plain Error—Criminal Jury Instructions.

In this case, the supreme court reviewed the trial court’s reversal of a sexual assault conviction for failure to provide a jury instruction containing the statutory definition of “sexual penetration.” The court concluded that because the question of whether sexual penetration had occurred was not a contested issue at trial, the county court did not plainly err by failing to give a corresponding instruction to the jury. Accordingly, the court reversed the trial court’s order and affirmed Lozano-Ruiz’s conviction.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Due Process Violated When Jury Could Not See Defendant During Children’s Testimony

The Colorado Court of Appeals issued its opinion in People v. Aldridge on Thursday, September 20, 2018.

Criminal Law—Right to Confrontation—Right to be Present During Trial—Child Testimony—Closed Circuit Television.

C.O. and L.A. spent about three weeks camping alone with Aldridge, their maternal grandfather. At the time, C.O. was 4 years old and L.A. was 9 years old. Both girls alleged that they had touched Aldridge’s penis during the camping trip and that it got stiff. A jury found Aldridge guilty of two counts of sexual assault on a child by one in a position of trust as part of a pattern of abuse, two counts of sexual assault on a child as part of a pattern of abuse, four counts of sexual assault on a child by one in a position of trust—victim under 15, four counts of sexual assault on a child, and two counts of aggravated incest. The trial court sentenced him to 116 years to life in the custody of the Department of Corrections.

On appeal, Aldridge contended that the trial court erred by excluding him from the courtroom while C.O. and L.A. testified. Before trial, the People moved for C.O. and L.A. to testify by closed-circuit television under C.R.S. § 16-10-402. Over Aldridge’s objection, the trial court granted the motion. Neither the trial court nor the parties indicated that Aldridge, rather than the children, would be removed from the courtroom. At trial, rather than having the witnesses testify from another room, the trial court permitted the children to testify in the courtroom while the judge and defendant watched from the judge’s chambers. The jury could not see or hear defendant during the children’s testimony. Aldridge’s exclusion from the courtroom during the children’s testimony, in the absence of a stipulation, violated C.R.S. § 16-10-402, and this procedure violated defendant’s due process right to be present because he was denied an opportunity to exert a psychological influence on the jury. This error was not harmless beyond a reasonable doubt.

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

Summary provided courtesy of Colorado Lawyer.

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 Court of Appeals: Defendant’s Refusal to Leave Ex-Girlfriend’s Residence Could Leave him Subject to Prosecution for Trespass and Burglary

The Colorado Court of Appeals issued its opinion in People v. Murray on Thursday, July 27, 2018.

Criminal Law—Trespass—Burglary—Assault—Landlord–Tenant Agreement—Evidence—Doctrine of Completeness—Credibility.

Defendant’s ex-girlfriend (the victim) asked him to come to her house to help with an errand. The couple had dated “on and off” for about two years, and defendant had stayed frequently at the house, but the two had broken up about two-and-a-half weeks earlier. Defendant entered the victim’s house, and the two got into an argument. The victim told defendant to leave. Defendant threatened the victim, ripped off her clothes, and tried to sexually assault her. At that moment, a friend of the victim showed up. Defendant chased him into the street. The victim locked the door behind defendant and called 911. Defendant yelled at the victim to let him back in the house, but she refused. He then broke a window on the front door trying to get back inside. Defendant was found guilty of first degree burglary, trespass, third degree assault, false imprisonment, attempted sexual assault, attempted second degree burglary, and criminal mischief.

On appeal, defendant contended that the court provided an inaccurate jury instruction defining “enters unlawfully” and “remains unlawfully,” and that it abused its discretion by refusing his tendered instruction explaining those concepts. The basis for defense counsel’s objection to the prosecutor’s added instruction and for his requested instruction was his argument that defendant wasn’t on the premises unlawfully because he lived there. However, defendant failed to present any evidence of a landlord–tenant agreement between him and the victim, and he didn’t pay rent. Therefore, defendant was not a tenant and didn’t have a possessory interest in the premises other than that the victim allowed. The district court did not need to provide the type of instruction that defense counsel tendered.

Defendant further contended that the district court erred by denying his motions for a judgment of acquittal based on insufficiency of the evidence. The record contains sufficient evidence to support the jury’s finding that defendant knowingly entered or remained in the victim’s house unlawfully with the intent to assault and sexually assault the victim, and that he attempted to sexually assault the victim.

Defendant also contended that the district court erred by ruling that if he introduced certain of his recorded statements pursuant to the doctrine of completeness, his credibility would be implicated, and the prosecution could use his Montana deferred judgment to impeach his credibility. He argued that as a result of these rulings, the district court infringed on his right to a fair trial and to confront witnesses, because he was dissuaded from introducing his statements and cross-examining the prosecution’s investigator. Defendant’s statements were self-serving and were inadmissible under the doctrine of completeness. Further, defendant waived his contention that his testimony couldn’t be impeached by the Montana judgment. Alternatively, had defendant not waived this issue, the Montana judgment constituted an admissible felony conviction, and any error wasn’t plain.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Jury Instruction that Effectively Told Jury Not to Consider Burden of Proof Erroneous, but Error Not Plain

The Colorado Court of Appeals issued its opinion in People v. Sabell on Thursday, June 14, 2018.

Jury Instructions—Involuntary Intoxication—Other Acts Evidence—Merger—Colorado Sex Offender Lifetime Supervision Act.

Sabell and his girlfriend, the victim, got into an argument one night. When the victim returned to the couple’s home that evening after running errands, Sabell accused her of cheating on him and physically assaulted her. The victim then began audio recording the altercation on her cell phone. Sabell then forced the victim to perform oral sex on him and later broke down her bedroom door after she had locked herself inside. A jury found Sabell guilty of sexual assault, unlawful sexual contact, third degree assault, and criminal mischief.

On appeal, Sabell contended that the trial court erroneously instructed the jury on his affirmative defense of involuntary intoxication and that this lessened the prosecution’s burden of proof. Before trial, the victim admitted that she had put Seroquel, a drug she had been prescribed, in Sabell’s wine after the sexual assault in an attempt to sedate him. Sabell testified that the victim had put the Seroquel in his drink before the recording began and that he had no memory of any of the recorded events. Although the involuntary intoxication instruction was erroneous because it effectively told the jury not to consider the People’s burden of proof until after it first decided whether Sabell’s intoxication was self-induced, it was not plain error.

Sabell also contended that the trial court gave an erroneous instruction limiting the jury’s consideration of other acts evidence. At trial, the victim, along with the victim’s friend and police officers, testified about four other incidents in which Sabell had been violent toward her or had forced her to have sex. The other acts evidence was relevant as to whether Sabell acted knowingly and voluntarily, and the court properly gave limiting instructions to the jury. There was no error.

Sabell’s contention that the Colorado Sex Offender Lifetime Supervision Act is unconstitutional on its face and as applied to him was without merit.

Sabell further argued, and the People conceded, that his unlawful sexual contact conviction should have merged with the sexual assault conviction at sentencing because they were based on the same conduct. The trial court plainly erred in entering both the sexual assault and unlawful sexual contact convictions.

Sabell also argued, and the People conceded, that the trial court erred in imposing a crime against a child surcharge of $500. The victim here was not a child, and the trial court plainly erred.

The unlawful sexual contact conviction and the crime against a child surcharge were vacated. The case was remanded for the trial court to correct the mittimus. The judgment and sentence were affirmed in all other respects.

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: Trial Court Committed Structural Error by Excluding Underage Spectators from Trial

The Colorado Court of Appeals issued its opinion in People in Interest of G.B. on Thursday, May 31, 2018.

Juvenile Delinquency—Sufficiency of the Evidence—Sexual Assault—Right to a Public Trial.

In this juvenile delinquency proceeding, a jury convicted 16-year-old G.B. of offenses that would, if committed by an adult, constitute felony sexual assault against the 15-year-old victim. The trial court adjudicated G.B. delinquent and sentenced him to the custody of the Division of Youth Corrections.

On appeal, G.B. challenged the sufficiency of the evidence that he knew the victim was incapable of appraising the nature of her conduct. However, the record evidence, including testimony about the victim’s drug and alcohol use and her testimony that she wasn’t able to move on her own and didn’t remember certain events from the night in question until she had nightmares and flashbacks months later, was sufficient to support a conclusion by a reasonable jury that G.B. knew the victim was incapable of appraising the nature of her conduct.

G.B. also contended that the trial court violated his right to a public trial by excluding, over his objection, all spectators during his cross-examination of the sexual assault nurse examiner, and by excluding all spectators under 18 from a significant portion of the trial. The trial court’s closure of the courtroom to all spectators under 18 was broader than necessary to achieve the trial court’s legitimate interest in protecting young children from exposure to age-inappropriate evidence. Further, the trial court failed to consider reasonable alternatives when it closed the courtroom to all spectators under 18. The trial court committed structural error by excluding from two days of trial all spectators under 18.

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

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.

Colorado Court of Appeals: Expert Testimony that Child Did Not Seem to be Coached Proper Under Circumstances

The Colorado Court of Appeals issued its opinion in People v. Heredia-Cobos on Thursday, October 19, 2017.

Sexual Assault—Child—Forensic Interviewer—Expert Testimony—Credibility—Defendant’s Theory of the Case—Evidence—Prior Acts—CRE 404(b).

Defendant was convicted of sexual assault on his 9-year-old great niece, Y.P.

On appeal, defendant contended that the district court abused its discretion by allowing the forensic interviewer who had interviewed Y.P. to testify that Y.P. didn’t show any signs of having been coached. Although such testimony ordinarily is improper (because it’s tantamount to vouching for the child’s credibility), in this case the testimony was admissible to rebut defendant’s defense theory that Y.P. had made up the allegations. Because defendant opened the door to this testimony, it was not error to allow it.

Defendant also contended that the district court erred by allowing evidence of his prior acts of a sexual nature involving other relatives in violation of CRE 404(b). He argued that the prior acts were too dissimilar to his alleged assault of Y.P. to be admissible. Evidence that defendant physically assaulted two female relatives who lived with him was probative of defendant’s intent to sexually assault another female at his home and was relevant to refute his claim that Y.P. fabricated the allegation. Further, the other act evidence was especially relevant because Y.P.’s testimony was the only direct evidence of defendant’s guilt. Thus the potential for unfair prejudice did not outweigh the evidence’s probative value, and the district court did not err in admitting evidence of these acts. Additionally, evidence that defendant masturbated in front his 19-year old niece several times (although he did not physically assault her) was also relevant and no more potentially prejudicial than the evidence of the acts involving the other two relatives. But even assuming that allowing this evidence was error, any error was harmless.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.