Peo v. Bachmann

• Court: Colorado Court of Appeals
• Decided: July 25, 2024
• Docket: 21CA1322
• Status: Unknown

Opinion

21CA1322 Peo v Bachmann 07-25-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1322

Larimer County District Court No. 02CR1018

Honorable Juan G. Villaseñor, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Thomas Bachmann,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE SULLIVAN

Fox and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 25, 2024

Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Stephen Arvin, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1 Defendant, James Thomas Bachmann, appeals the judgment

of conviction entered on jury verdicts finding him guilty of several

charges arising from his sexual assaults of a child, B.B. We affirm.

I. Background

¶ 2 Bachmann first met B.B. when B.B. was six or seven years

old. Bachmann, a family friend, fulfilled a fatherly role in B.B.’s life

and would frequently take B.B. to the movies and on trips, and

invite him to stay the night at his house. When B.B. was

approximately twelve, Bachmann began to fondle him and perform

oral sex on him while B.B. pretended to be asleep. B.B. testified

this happened for approximately three years. B.B. also testified

that he believed he heard Bachmann take a picture of him during

one of these incidents.

¶ 3 In 2002, B.B. told his mother what had been happening at

Bachmann’s house. B.B.’s mother contacted law enforcement

shortly thereafter.

¶ 4 Detective Kristy Volesky and Detective Jeremy Yonce began an

investigation. Detective Volesky arranged for Anthony Newt,

Bachmann’s friend and B.B.’s stepfather, to place a pretext

telephone call to Bachmann. At one point in the call, during which

2

Newt discussed B.B.’s allegations against Bachmann for nearly an

hour, Newt asked whether the conduct alleged by B.B. was true.

Bachmann responded, “Maybe it is, but maybe it isn’t! I have no

fuckin’ idea!”

¶ 5 After the call, Bachmann left his house and was contacted by

law enforcement; officers eventually requested a medical check due

to Bachmann’s agitated state. After Bachmann checked into a

hospital, Detective Yonce and an assisting detective, Detective Darel

King, searched Bachmann’s house and found a photograph of B.B.

with his genitalia partially exposed. After the hospital discharged

Bachmann, and based on the pretext call, B.B.’s allegations, and

the search of Bachmann’s house, Detective Volesky took Bachmann

into custody.

¶ 6 Before trial, Bachmann moved to suppress his statements

made during the pretext call, arguing that they were coerced and

thus involuntary. After holding a hearing, the court denied

Bachmann’s motion to suppress, finding his statements weren’t

involuntary.

¶ 7 Before Bachmann’s scheduled trial in 2004, he fled the United

States to Switzerland. Law enforcement couldn’t extradite him due

3

to restrictions enforced by the Swiss government. Law enforcement

later obtained an international warrant, and Bachmann was

eventually detained and extradited from Qatar in 2019. A five-day

jury trial commenced in 2021. The court informed the jury of

Bachmann’s flight following a stipulation by the parties.

¶ 8 At trial, B.B., B.B.’s mother, Newt, Detective Volesky, Detective

Yonce, and Detective King testified for the prosecution. The jury

heard a recording of the pretext call between Newt and Bachmann

and also received the photograph of B.B. The jury found Bachmann

guilty of one count each of sexual assault on a child (position of

trust), sexual assault on a child (position of trust, pattern), sexual

exploitation of a child (made material), sexual exploitation of a child

(possessed material), and third degree sexual assault.

¶ 9 Bachmann now appeals. He contends that the trial court

erred by (1) failing to suppress his statements made during the

pretext call with Newt; (2) incorrectly instructing the jury on the

pattern enhancer for sexual assault on a child by one in a position

of trust; (3) entering separate convictions on the two counts for

sexual assault on a child by one in a position of trust; and (4)

entering separate convictions for sexual exploitation of a child

4

(made material) and sexual exploitation of a child (possessed

material). We disagree with these arguments and affirm.

II. Pretext Telephone Call

¶ 10 Bachmann seeks de novo review of whether the trial court

erred by denying his motion to suppress his statements made

during the pretext call. Specifically, Bachmann argues that (1)

Newt was an agent of the state; and (2) Newt’s questioning

“shattered Bachmann physically and mentally, overbore

Bachmann’s will, and rendered Bachmann’s statements

involuntary.” We only address Bachmann’s second contention

because, even assuming without deciding that Newt acted as an

agent of the state, we nonetheless conclude that Bachmann’s

statements were voluntary.

A. Additional Facts

¶ 11 Detective Volesky discussed making a pretext telephone call

with Newt in July 2002. Newt agreed to make the call. At the

suppression hearing, Detective Volesky testified that she informed

Newt that she would be listening in on the call and that his

directive during the call, assuming B.B.’s allegations were true, was

5

to tease out a confession from Bachmann “as to what happened in

the past with [B.B.].”

¶ 12 Bachmann received Newt’s call at his residence and out of

custody. The call lasted about fifty minutes. Bachmann became

increasingly agitated as the call went on; after approximately thirty

minutes, Bachmann could be heard dry heaving in another room.

¶ 13 At the beginning of the call, Newt said that B.B. told him

everything, stating B.B. “wants no one to know” and that only

“three [people]” (Newt, Bachmann, and B.B.) knew about

Bachmann’s conduct. Newt later stated that Bachmann needed to

come clean because Newt didn’t “want to go to [B.B.’s] mom” with

the information and that B.B. didn’t want “anyone to know

whatsoever.” Newt then said B.B. “wants to keep it quiet” and that

he would “go along with [B.B.’s] wishes.” Newt next said that if he

needed to take B.B. “to professional help,” he thought “they will

report it immediately.” Bachmann told Newt that he only looked at

B.B.’s penis, but denied having intercourse with B.B.

¶ 14 Shortly after, Bachmann expressed remorse at hurting B.B.

when Newt said, “[I]f you love him, let’s hear it . . . now you need to

fix it.” Newt later said that he “really doesn’t want [B.B.’s] dad to

6

know about this” and that he was “sure [Bachmann]” didn’t want

B.B.’s dad to know either. Bachmann, agitated, responded that his

“heart is ripped.” About thirty-five minutes into the call, Newt

asked Bachmann whether he wanted “[B.B.] to go to a therapist or

something.” Bachmann stated he had to leave to attend a court

hearing for a traffic offense and that he was “a fucking wreck.”

Bachmann made the following statement shortly after:

[NEWT]: [B.B.] told me what took place. He

said you fondled him, you went down on him.

Is that true? Just say yes or no, Jim. Is it

true?

[BACHMANN]: Maybe it is, but maybe it isn’t, I

have no fuckin’ idea!

¶ 15 At the suppression hearing, the trial court (1) heard testimony

from Detective Volesky regarding the logistics of the call; (2) listened

to a recording of the call; and (3) read a transcript of the call. In its

ruling from the bench denying the motion, the court found as

follows:

• Detective Volesky was present during the phone call and

listened in on the conversation, but never directly

addressed Bachmann;

• Newt placed the call to Bachmann at his residence;

7

• Detective Volesky may have written down or suggested a

“question or two” for Newt to ask Bachmann, or may

have suggested a method of questioning for Newt to

undertake; and

• Bachmann wasn’t in custody, in part because Bachmann

was in his own home, he didn’t know Detective Volesky

was listening, and he retained the ability to hang up the

telephone at any time.

The court ultimately denied Bachmann’s motion to suppress

because of the following:

• Bachmann received the call at his residence, out of

custody, and retained the ability to hang up at any time;

• Newt wasn’t an agent of the state when he made the call

but was merely an interested party;

• Newt implied that he could help keep the matter quiet,

but those implied promises weren’t of the kind that rose

to the level of promises by law enforcement that render a

defendant’s statements involuntary;

8

• the jury could determine what Bachmann’s emotions and

reactions meant with respect to the allegations of his

conduct; and

• there was “very little direct confession or statement”

made by Bachmann during the call.

¶ 16 At trial, the prosecution played the pretext call for the jury.

Newt testified on cross-examination that he remained patient,

courteous, not judgmental, and circumspect during the call. He

explained that he didn’t raise his voice and he refrained from

swearing at Bachmann.

B. Standard of Review

¶ 17 We review a trial court’s ruling on a motion to suppress as a

mixed question of law and fact. People v. Platt, 81 P.3d 1060, 1065

(Colo. 2004). “We will uphold a trial court’s findings of fact on the

voluntariness of a statement when the findings are supported by

adequate evidence in the record, but we review de novo a trial

court’s ultimate determination of whether a statement was

voluntary.” People v. Bryant, 2018 COA 53, ¶ 18.

9

C. Applicable Law

¶ 18 The Due Process Clauses of the United States and Colorado

Constitutions require that a defendant’s statements be voluntary for

the statements to be admissible into evidence. U.S. Const. amends.

V, XIV; Colo. Const. art. II, § 25; Mincey v. Arizona, 437 U.S. 385,

397 (1978); People v. Raffaelli, 647 P.2d 230, 234 (Colo. 1982). The

prosecution shoulders the burden of proving, by a preponderance of

the evidence, that the defendant’s statements were voluntary.

People v. Munoz-Diaz, 2023 COA 105, ¶ 13.

¶ 19 If a statement is made to law enforcement or an agent of law

enforcement, we consider the totality of the circumstances and look

to whether the officer or agent “overcame the defendant’s will” and

induced their inculpatory statement. Id. at ¶ 14. We follow a two-

step inquiry when evaluating whether a defendant’s statement was

voluntary: “(1) whether the official conduct was coercive and (2)

whether the coercive conduct ‘played a significant role in inducing

the statements.’” Id. (quoting People v. Ramadon, 2013 CO 68,

¶ 20). Both steps of the inquiry require that we consider a wide

range of non-exhaustive factors:

1. whether the defendant was in custody;

10

2. whether the defendant was free to leave;

3. whether the defendant was aware of the

situation;

4. whether the police read Miranda rights to

the defendant;

5. whether the defendant understood and

waived Miranda rights;

6. whether the defendant had an

opportunity to confer with counsel or anyone

else prior to or during the interrogation;

7. whether the statement was made during

the interrogation or volunteered later;

8. whether the police threatened [the]

defendant or promised anything directly or

impliedly;

9. the method [or style] of the interrogation;

10. the defendant’s mental and physical

condition just prior to the interrogation;

11. the length of the interrogation;

12. the location of the interrogation; and

13. the physical conditions of the location

where the interrogation occurred.

Cardman v. People, 2019 CO 73, ¶ 23 (quoting People in Interest of

Z.T.T., 2017 CO 48, ¶ 13).

¶ 20 When weighing these factors, we don’t simply count the

factors on each side but rather accord weight depending on the

11

circumstances involved. Id. at ¶ 27. The critical inquiry is whether,

under the circumstances, the interviewing officer “actually overbore

the defendant’s will.” People v. McIntyre, 2014 CO 39, ¶ 19.

D. Analysis

¶ 21 After reviewing the record and closely listening to the pretext

call, we conclude Bachmann made several arguably inculpatory

statements — the most arguably inculpatory one being that “maybe

it is” true he committed the acts B.B. alleged.

¶ 22 The factors that weigh in favor of holding that Bachmann

made the statements voluntarily include: Bachmann wasn’t in

custody (factor 1); Bachmann was free to hang up and terminate

the conversation (factor 2); Bachmann was free to hang up and

consult with an attorney at any time (factor 6); Newt was calm,

composed, and respectful throughout the call (factor 9); and

Bachmann was in his own home during the call (factors 12 and 13).

A factor that cuts both ways, but that we ultimately conclude

weighs in favor of the statements’ voluntariness, is Bachmann’s

physical and mental condition before and during the call (factor 10).

¶ 23 The factors that weigh in favor of holding that Bachmann

made the statements involuntarily include: Bachmann wasn’t aware

12

he was being recorded or that Detective Volesky was listening in

(factor 3); Bachmann wasn’t read his Miranda rights (factors 4 and

5); Bachmann’s statements were made during the call (factor 7);

and Newt impliedly promised to keep whatever Bachmann said

between them so that others wouldn’t learn of Bachmann’s conduct

(factor 8).

¶ 24 One factor — that the call lasted approximately fifty minutes

(factor 11) — is neutral. An interview lasting approximately one

hour is “neutral.” Cardman, ¶ 26.

1. Factors Favoring Voluntariness

¶ 25 We begin our analysis by considering the factors that weigh in

favor of holding that Bachmann made his statements voluntarily.

First, Bachmann argues that Newt’s method and style of

questioning — referencing that B.B. needed help and suffered from

Bachmann’s conduct — amount to police coercion that rendered his

statements involuntary. We disagree.

¶ 26 At the outset, the trial court found, and our review of the call

confirms, that Newt spoke to Bachmann in a calm, composed, and

respectful manner. This weighs in favor of the statements’

voluntariness. See People v. Liggett, 2014 CO 72, ¶ 30 (concluding

13

investigators’ calm and polite manner during questioning “cuts

against” finding their conduct coercive). Defense counsel, too,

agreed that Newt questioned Bachmann in a patient,

nonjudgmental, and circumspect way. As a result, we disagree with

Bachmann that Newt’s questioning was “relentless,” “demanding,”

and “merciless.”

¶ 27 Bachmann also argues that, by referring to B.B., Newt

exploited Bachmann’s “warmth for [B.B.] and desire to help him”

and thus forced Bachmann to stay on the line, coercing him into

making the statements. We disagree for two reasons. First,

appealing to a defendant’s sense of morality during questioning is

an acceptable tactic by law enforcement and doesn’t amount to

unlawful coercion. See Munoz-Diaz, ¶ 25 (concluding officer’s

appeals to a defendant’s religion and the family’s need for closure

wasn’t impermissible coercion but rather implicated “only ‘moral

and psychological pressures to confess emanating from sources

other than official coercion’”) (citation omitted); see also People v.

Theander, 2013 CO 15, ¶ 44 (“[I]t was not coercive for police to

indicate . . . that [the defendant’s] children would want to know that

[the defendant] had helped find their father’s killer.”).

14

¶ 28 Second, Bachmann — in his own residence, on his own phone,

and out of custody — could have hung up the telephone at any time

and for any reason. See People v. Zadra, 2013 COA 140, ¶ 34

(holding defendant’s statements were voluntary, despite officer’s

“fatherly” tone and “insistence” that defendant tell the truth, where

defendant came to the police station unescorted and was “free to

leave at any time”), aff’d, 2017 CO 18. If Bachmann felt that Newt’s

questioning warranted legal counsel, for example, Bachmann easily

could have hung up the telephone to seek counsel.

¶ 29 Next, Bachmann contends that Newt exploited his weakened

physical and mental condition during the call, rendering his

statements involuntary. Again, we don’t perceive any unlawful

coercion. As a threshold matter, we disagree with the People’s

argument that Bachmann’s mental and physical condition before

Newt’s questioning is the only interval we consider in our analysis.

Colorado precedent indicates that a defendant’s mental and

physical condition during questioning can also be relevant. See

People v. Gennings, 808 P.2d 839, 844 (Colo. 1991). While more

recent cases like Cardman and Z.T.T. appear to omit this part of the

analysis when identifying the factors to be considered, they also

15

make clear that their enumerated factors are “non-exhaustive.”

Cardman, ¶ 23; Z.T.T., ¶ 13.

¶ 30 Nonetheless, we conclude that Newt didn’t exploit Bachmann’s

mental or physical condition in a manner that coerced Bachmann

into making his statements. Bachmann’s physical and mental

condition appeared normal until approximately seventeen minutes

into the call. While Bachmann exhibited signs of physical illness

and mental anguish after that point, we discern no “police

overreaching” or “coercive police conduct” by Newt that resulted in

Bachmann making his statements. Colorado v. Connelly, 479 U.S.

157, 164 (1986) (“[A] defendant’s mental condition, by itself and

apart from its relation to official coercion, should [n]ever dispose of

the inquiry into constitutional ‘voluntariness.’”); see also People v.

Humphrey, 132 P.3d 352, 361 (Colo. 2006) (“[T]he official

misconduct must be causally related to the confession or

statement.”). Rather, Newt maintained his calm and patient

method of questioning throughout the call.

¶ 31 Bachmann, while upset, also demonstrated “an awareness of

his situation and the consequences of speaking” by responding to

Newt’s questions in a generally coherent and understandable

16

fashion. People v. Cerda, 2024 CO 49, ¶ 45. Bachmann repeatedly

mentioned, for example, that he wanted to help B.B. and that he

was running late for his court hearing. That Bachmann became

increasingly distraught as the call went on, without more, doesn’t

indicate that Newt overbore Bachmann’s will. See People v. Smith,

716 P.2d 1115, 1118 (Colo. 1986) (“Simply because the defendant

became upset when she learned that the victim had died was not a

sufficient basis for the trial court’s conclusion that her statement

was involuntary.”).

¶ 32 Bachmann’s reliance on Humphrey and Raffaelli is unavailing.

In Humphrey, officers interrogated the defendant while she was in

custody at a police station, recently injured, and awake for more

than twenty-four hours. 132 P.3d at 354-55. During the

interrogation, the officers purposefully exploited the defendant’s

guilt by relaying that she had killed a man one day earlier — a fact

she didn’t previously know. Id. at 354. The trial court made

“detailed findings,” deferred to by the supreme court, that the

officers asked argumentative questions, gave suggestive answers,

and mischaracterized what the defendant had said, resulting in

“psychological coercion” that the defendant had “little power to

17

resist.” Id. at 361-62. Similarly, in Raffaelli, an officer interviewed

the defendant in custody at a police station after he had recently

witnessed the death of his two-month-old daughter. 647 P.2d at

231-32. The trial court made findings, again deferred to by the

supreme court, that the officer’s interrogation was “accusatorial [in]

nature.” Id. at 236. Based on expert psychiatric testimony

indicating that the defendant’s emotional state rendered him

particularly susceptible, the trial court found that the defendant’s

statements were involuntary. Id.

¶ 33 Here, by contrast, Bachmann wasn’t in custody at a police

station and Newt’s interview style was calm and patient rather than

coercive. Moreover, nothing in the record suggests that Bachmann

shared a mental or physical condition akin to the defendants in

Humphrey and Raffaelli. Bachmann elicited no expert psychiatric

testimony regarding his mental state, and the trial court made no

findings suggesting that Bachmann suffered from a vulnerable or

susceptible mental condition that rendered his statements

involuntary. To the contrary, the trial court made findings, albeit

after trial, that Bachmann made false statements during the call

and attempted to manipulate Newt. Absent factual findings like

18

those in Humphrey and Raffaelli, we conclude both cases are

distinguishable.

2. Factors Favoring Involuntariness

¶ 34 We next turn to the factors weighing in favor of holding that

Bachmann made his statements involuntarily to determine, in the

totality of the circumstances, whether they outweigh the above

factors pointing toward the statements’ voluntariness. Bachmann

argues that Newt impliedly promised that his confession would

forestall criminal consequences. He asserts that Newt promised

that, in exchange for coming clean, Newt would keep his conduct

secret and refrain from either telling B.B.’s father or sending B.B. to

a therapist. While we agree with Bachmann that Newt made certain

implied promises, we disagree that they rendered Bachmann’s

statements involuntary.

¶ 35 At the outset, we conclude that the Miranda factors carry little

weight here. Bachmann wasn’t in custody during the pretext call.

Thus, Detective Volesky bore no obligation to read Bachmann his

Miranda rights or request that he waive those rights. See People v.

Wood, 135 P.3d 744, 749-50 (Colo. 2006).

19

¶ 36 Turning to Newt’s implied promises, we acknowledge that an

implied promise made by an undercover government agent — one

who the suspect has no reason to believe possesses authority to

bind the government — can in some circumstances result in the

suspect making a coerced inculpatory statement. See, e.g., Arizona

v. Fulminante, 499 U.S. 279, 288 (1991) (holding that defendant’s

inculpatory statement to jailhouse informant, motivated by fear of

physical violence and the informant’s promise of protection, was

coerced). But even accepting that, we nonetheless conclude that

Newt’s implied promises didn’t play a significant role in inducing

Bachmann’s statements. See Munoz-Diaz, ¶ 20. Unlike Cardman,

¶ 5, where the defendant responded to the detective’s explicit

promise that he could “help [the case] go away” with “I would love

that,” Bachmann didn’t utter his arguably inculpatory statements

in reliance on any of Newt’s implied promises. To the contrary,

when Newt impliedly promised that Bachmann, B.B., and Newt

could remain the “only three people” who know about the situation,

Bachmann responded, “I don’t care about that.” And throughout

the conversation, Bachmann expressed neither a desire to avoid

20

consequences nor any wish to keep B.B.’s allegations under wraps.

See Munoz-Diaz, ¶¶ 21-22.

¶ 37 Finally, even if Bachmann was indirectly motivated to make

his statements based on Newt’s implied promises, we conclude

Newt nevertheless didn’t overcome Bachmann’s will. At most,

Newt’s implied promises amount to what our supreme court has

characterized as a “subtle form of psychological coercion” that

“fall[s] far short” of the types of coercive statements that have been

found to overcome a defendant’s will. Theander, ¶ 44 (collecting

cases).

¶ 38 Accordingly, after weighing each of the factors and considering

the totality of the circumstances, we agree with the trial court that

Bachmann made his statements voluntarily. The trial court

therefore didn’t err by denying Bachmann’s motion to suppress his

statements made during pretext call.

III. Jury Instruction

¶ 39 Next, Bachmann contends that the trial court plainly erred by

improperly instructing the jury on the pattern of abuse sentence

enhancer for sexual assault on a child by one in a position of trust.

He asserts that the trial court failed to instruct the jury, consistent

21

with section 18-3-405.3(2)(b), C.R.S. 2001,

1

that he could be

convicted only if the acts constituting the pattern of sexual abuse

were committed within ten years prior to the predicate offense

charged in the information. We perceive no error.

A. Additional Facts

¶ 40 In count two, the prosecution charged Bachmann with sexual

assault on a child (position of trust, pattern) under section 18-3-

405.3(1) and (2)(b). The information stated that the acts alleged

under count two occurred over a three-year period between August

1, 1998, and July 11, 2002.

¶ 41 Consistent with the information, B.B. testified that Bachmann

sexually assaulted him on multiple occasions over the course of

three years. The court instructed the jury on the pattern of abuse

sentence enhancer as follows:

Question 2: Did the defendant commit the

sexual assault on a child as part of a pattern

of sexual abuse? (Answer “Yes” or “No”).

The defendant committed the sexual assault

on a child as part of a pattern of sexual abuse

only if he committed one or more incidents of

1

Section 18-3-405.3 has since been amended. We apply the

version in effect at the time, section 18-3-405.3, C.R.S. 2001, here

and in all subsequent references to this statute.

22

sexual contact upon the same victim in

addition to committing the sexual contact

forming the basis for your guilty verdict on

Count I, sexual assault on a child by one in a

position of trust.

¶ 42 The instruction didn’t expressly state that the acts

constituting the pattern of sexual abuse must have been committed

within ten years prior to the predicate offense charged in the

information. The court also instructed the jury on the definition of

“pattern of abuse,” defining it as “the commission of two or more

incidents of sexual contact involving a child when such offenses are

committed by an actor upon the same victim.” See § 18-3-401(2.5),

C.R.S. 2001. The court also provided a unanimity instruction,

informing the jury that it could reach a guilty verdict only if the jury

“either unanimously agree[d] that [Bachmann] committed the same

act or acts, or that he committed all the acts alleged.”

¶ 43 The jury found Bachmann guilty of the predicate act of sexual

assault on a child by one in a position of trust as alleged in count

two. In a separate special interrogatory for count two, the jury

answered “yes” to the question “Did the defendant commit Sexual

Assault on a Child as part of a Pattern of Abuse?” Immediately

below its answer, the jury found that Bachmann committed sexual

23

contact “more than one time” between August 1, 1998, and October

31, 1998. It also found that he committed sexual contact “more

than one time” between November 1, 1998, and July 9, 2001. In

other words, the jury found that Bachmann committed at least four

acts of sexual contact against B.B. over a three-year period. Before

the jury began deliberations, the court read these verdict forms to

the jury as part of its jury instructions.

B. Standard of Review

¶ 44 Bachmann acknowledges that he failed to preserve this issue,

limiting our review to plain error. Plain error is obvious and

substantial. People v. Procasky, 2019 COA 181, ¶ 9. “In the jury

instruction context, ‘the defendant must “demonstrate not only that

the instruction affected a substantial right, but also that the record

reveals a reasonable possibility that the error contributed to his

conviction.”’” Hoggard v. People, 2020 CO 54, ¶ 13 (quoting People

v. Miller, 113 P.3d 743, 750 (Colo. 2005)).

C. Analysis

¶ 45 To be convicted of sexual assault on a child by one in a

position of trust as part of a pattern of sexual abuse, the version of

section 18-3-405.3 in effect at the time required that the acts

24

constituting the pattern of sexual abuse be “committed within ten

years prior to the offense charged in the information or indictment.”

§ 18-3-405.3(2)(b).

¶ 46 In People v. Honeysette, 53 P.3d 714, 716-18 (Colo. App.

2002), a division of this court rejected an argument similar to

Bachmann’s, finding no plain error where the jury instruction on

the pattern of abuse sentence enhancer failed to inform the jury

that the acts constituting a pattern of abuse must have occurred

within ten years prior to the offense charged in the information.

The instructions in Honeysette informed the jury that it could find a

pattern of sexual abuse only if it determined that the defendant

committed two or more incidents of sexual contact against the

victim during a specified nineteen-month period, which period was

also alleged in the information. Id. at 717. Given this instruction,

the division explained that it “would have been impossible” for the

jury to find the defendant guilty of the pattern of abuse enhancer

unless it found that he committed at least two separate acts of

sexual contact against the same victim during the alleged nineteen-

month period. Id. at 718. As a result, the division determined that

the ten-year requirement in the pattern of abuse statute was

25

“necessarily satisfied.” Id.; see also § 18-3-405.3(2)(b) (“No specific

date or time need be alleged for the pattern of sexual abuse . . . .”).

¶ 47 Here, Bachmann doesn’t dispute that the prosecution

presented evidence of multiple sexual acts against B.B. during the

three-year period alleged in the information. Nor does he dispute

that the court instructed the jury regarding the three-year period

when it read the verdict forms to the jury. After the court gave

these instructions, the jury found that Bachmann committed at

least four acts of sexual contact against B.B. over the same general

three-year period. Under Honeysette, nothing more was required

for the jury to find a pattern of abuse. See also People v. Melillo, 25

P.3d 769, 779 (Colo. 2001) (holding that the information charging a

pattern of sexual abuse was sufficient where it alleged “that the

pattern of sexual abuse occurred within a fifteen-month period of

time . . . which clearly satisfies the ten-year period required by the

statute”).

¶ 48 We aren’t persuaded otherwise by Bachmann’s reliance on

People v. Gholston, 26 P.3d 1 (Colo. App. 2000), and People v.

Graham, 876 P.2d 68 (Colo. App. 1994), both of which preceded

Melillo and Honeysette. In Gholston, the division found no evidence

26

in the record of any sexual abuse by the defendant in the ten years

preceding the period alleged for the predicate act in the information.

26 P.3d at 14-15. But here, the evidence supports, and the jury

found, that Bachmann committed multiple acts of sexual assault

against B.B. over three years. Graham, involving the ex post facto

application of the pattern of abuse statute, is similarly

uninformative. There, the defendant was charged with several

sexual assaults occurring before the pattern of abuse statute was

enacted, but the jury wasn’t instructed that the defendant’s

conviction of the predicate offense had to be based on an act

occurring after the statute became effective. Graham, 876 P.2d at

71-72. Because Bachmann doesn’t make an ex post facto argument

here, Graham doesn’t apply.

¶ 49 Accordingly, the trial court didn’t err, plainly or otherwise,

when instructing the jury on the pattern of abuse sentence

enhancer in count two.

IV. Separate Convictions — Position of Trust

¶ 50 Bachmann next contends that the trial court erred by entering

separate convictions for sexual assault on a child by one in a

position of trust (count one), and sexual assault on a child by one

27

in a position of trust as part of a pattern of abuse (count two). We

don’t agree.

A. Standard of Review and Applicable Legal Principles

¶ 51 The United States and Colorado Constitutions prohibit placing

someone twice in jeopardy for the same offense. Whiteaker v.

People, 2024 CO 25, ¶ 10. Thus, punishing an individual twice for

the same offense runs afoul of double jeopardy principles. People v.

Grosko, 2021 COA 28, ¶ 24. Although we agree with the People

that Bachmann didn’t preserve this claim, we don’t review double

jeopardy sentencing errors for plain error, but rather impose merger

automatically for such errors. Whiteaker, ¶ 24.

B. Analysis

¶ 52 We agree with Bachmann that a court “may not enter a

separate conviction or sentence on a count that is only a sentence

enhancer.” People v. Torrez, 2013 COA 37, ¶ 23. And we further

agree that our supreme court has consistently described the pattern

of abuse provision in section 18-3-405.3(2) as a sentence enhancer.

People v. Simon, 266 P.3d 1099, 1108 n.9 (Colo. 2011). But one

discrete count can sufficiently charge “the crime of sexual assault

on a child, as well as the sentence enhancer because a single count

28

may charge both a crime and a sentence enhancer.” Melillo, 25

P.3d at 777. That’s what occurred here in count two.

¶ 53 Bachmann was separately charged and found guilty of count

one — sexual assault on a child by one in a position of trust — and

count 2 — sexual assault on a child by one in a position of trust as

part of a pattern of abuse. As in Melillo, count two sufficiently

charged the crime of sexual assault on a child by one in a position

of trust and the pattern of abuse sentence enhancer. Further, the

trial court instructed the jury that a “separate offense is charged

against [Bachmann] in each count of the information,” and that the

jury should consider each count separately, uninfluenced from any

other count.

2

We presume the jury understood and followed this

instruction. People v. Moody, 676 P.2d 691, 697 (Colo. 1984).

¶ 54 Consistent with this instruction, the jury returned separate

verdict forms finding Bachmann guilty on both count one and count

two. On count two, the jury specifically found that, “with respect to

2

We decline to address Bachmann’s argument, raised for the first

time in his reply brief, that the single reference to “Count I” in the

pattern of abuse jury instruction indicates that count two operated

only as a sentence enhancer. See People v. Cline, 2022 COA 135,

¶ 75 n.3.

29

the verdict question for this count,” Bachmann committed at least

four sexual contacts that constituted a pattern of abuse.

(Emphasis added.)

¶ 55 Accordingly, the trial court didn’t err by entering separate

convictions on count one and count two.

V. Separate Convictions — Sexual Exploitation

¶ 56 Bachmann last contends that the trial court erred by entering

separate convictions for both making and possessing sexually

exploitative material of a child under section 18-6-403(3), C.R.S.

2001.

3

Leaning on People v. Meils, 2019 COA 180, ¶¶ 38-45,

Bachmann argues that the trial court violated his right to be free

from double jeopardy because (1) section 18-6-403(3) prescribes

alternative ways of committing the same offense and (2) his creation

and possession of the sexually exploitative photograph arose from

the same act. We disagree.

A. Standard of Review

¶ 57 Bachmann preserved this argument at sentencing, but the

trial court never ruled on it. We review de novo Bachmann’s claim

3

Again, this statute has since changed and we refer throughout to

the version in effect at the time: section 18-6-403, C.R.S. 2001.

30

that his separate convictions violate constitutional protections

against double jeopardy. Garcia v. People, 2023 CO 41, ¶ 13.

B. Analysis

¶ 58 A double jeopardy violation occurs when a trial court imposes

multiple convictions for the same offense based on the defendant’s

committing the crime using more than one of the prohibited

alternative means. People v. Barry, 2015 COA 4, ¶ 89.

¶ 59 As relevant here, section 18-6-403(3) at the time provided that

a person commits sexual exploitation of a child if, for any purpose,

the person knowingly:

(b) Prepares, arranges for, publishes, including

but not limited to publishing through digital or

electronic means, produces, promotes, makes,

sells, finances, offers, exhibits, advertises,

deals in, or distributes, including but not

limited to distributing through digital or

electronic means, any sexually exploitative

material; or

(b.5) Possesses or controls any sexually

exploitative material for any purpose . . . .

§ 18-6-403(3) (emphasis added).

¶ 60 In Meils, a division of this court held that section 18-6-403(3),

written in the disjunctive, shows that the legislature intended to

describe alternative ways of committing a single crime rather than

31

to create separate offenses. Meils, ¶ 43. In Quintano v. People, 105

P.3d 585, 592 (Colo. 2005), however, our supreme court upheld a

defendant’s convictions for three separate counts of sexual assault

on a child, all occurring over a single day against the same victim,

because the facts showed that “the defendant’s conduct was

separate in temporal proximity and constituted a new volitional

departure in his course of conduct.”

¶ 61 Here, the prosecution charged Bachmann with one count of

sexual exploitation of a child for making sexually exploitative

material, § 18-6-403(3)(b), and one count of sexual exploitation of a

child for possessing sexually exploitative material, § 18-6-

403(3)(b.5). B.B. testified that he believed Bachmann took a

photograph of him during one of the incidents of sexual assault.

B.B. and his mother testified that the assaults occurred between

his seventh- and ninth-grade years in school, or between 1998 and

2001. In 2002, Detective Yonce searched Bachmann’s residence

and found a photograph of B.B. with his genitalia partially exposed.

The detective testified that the photograph, taken on thirty-five-

millimeter film, required professional development.

32

¶ 62 Viewing the evidence here as the Quintano court did, the

evidence shows that Bachmann took the photograph of B.B.

sometime between 1998 and 2001, and that he possessed the

photograph, at least in 2002 but perhaps earlier, after it had been

professionally developed. We conclude that Bachmann’s distinct

and separate acts — taking the photograph and later possessing

it — were “separate in temporal proximity.” Quintano, 105 P.3d at

592. Stated differently, Bachmann’s choice to develop the

photograph and then possess it constitutes a “volitional departure”

from his decision to take the photograph; Bachmann no doubt had

“sufficient time to reflect” between his taking of the photograph and

his decision to possess the photograph after having it developed.

Id.

¶ 63 Accordingly, the trial court didn’t err by entering separate

convictions on the two counts of sexual exploitation of a child.

VI. Disposition

¶ 64 We affirm the judgment.

JUDGE FOX and JUDGE GROVE concur.