People v. Simon

266 P.3d 1099, 2011 WL 6318965
CourtSupreme Court of Colorado
DecidedDecember 19, 2011
DocketNos. 09SC665, 09SC1043
StatusPublished
Cited by297 cases

This text of 266 P.3d 1099 (People v. Simon) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Simon, 266 P.3d 1099, 2011 WL 6318965 (Colo. 2011).

Opinion

Justice MARQUEZ

delivered the Opinion of the Court.

In this opinion, we review decisions in two court of appeals cases, People v. Simon, 219 P.3d 789 (Colo.App.2009), and People v. Tillery, 231 P.3d 36 (Colo.App.2009).

Colorado's sexual assault statutes authorize the possibility of greater punishments for sexual crimes against children that are committed "as a part of a pattern of sexual abuse." Relevant here, section 18-8-405.3 makes a single incident of sexual assault on a child by one in a position of trust a class 4 felony where the victim is at least fifteen years old but less than eighteen years old; however, the offense is elevated to a class 3 felony if committed "as a part of a pattern of sexual abuse." § 18-3-405.3(2)(b), (8), C.R.S. (2011). Similarly, section 18-3-405 makes sexual assault on a child a class 4 felony, but the crime is elevated to a class 3 felony if committed "as a part of a pattern of sexual abuse." § 18-8-405(2)(d), C.R.S. (2011). The General Assembly has defined a "pattern of sexual abuse" as the commission of "two or more incidents of sexual contact" involving the same child victim. § 18-8-401(2.5), C.R.S. (2011).

The common issue presented by these cases is whether these statutory provisions and principles of double jeopardy permit only one class 3 felony conviction and sentence for a single "pattern" of abuse that comprises two or more incidents of sexual assault, or whether instead, each separate act of sexual assault that composes a single "pattern" of abuse may be elevated to a class 3 felony.

In Simon, a divided division of the court of appeals held that section 18-8-405.3(2)(b) and double jeopardy principles prohibit the trial court from entering multiple class 3 convictions and sentences for Simon's ten counts of sexual assault on a child by one in a position of trust, where those acts composed a single pattern of abuse against one victim. Simon, 219 P.3d at 790-98.

In Tillery, a different division of the court of appeals disagreed with the reasoning in Simon. Discerning no double jeopardy violation, the division upheld Tillery's multiple class 3 convictions and enhanced sentences under section 18-8-405(2)(d), for five counts of sexual assault on one child that composed a single pattern of abuse. Tillery, 2831 P.3d at 40, 48-50,

We granted certiorari review in both cases.1 We now hold that these statutes unambiguously allow each separately charged incident of sexual assault (ie., sexual assault on a child, or sexual assault on a child by one in a position of trust) to be elevated to a class 3 felony, where each incident is committed as part of a pattern of sexual abuse. We further hold that these statutes, construed according to their plain language, do not violate the double jeopardy protection against multiple punishments under either the U.S. or the Colorado Constitution.

I. Facts and Proceedings Below

a. People v. Simon

David Simon's convictions stem from multiple incidents of sexual contact he had with a troubled teenage boy who had drug-addiction and family problems. The abuse began in 1997 when the victim was fifteen and continued until 1999 when he was seventeen. In [1102]*1102the beginning, Simon paid the boy for the sexual acts; he later took the boy into his home when the boy's parents moved. Simon had sexual contact with the boy multiple times a week during the two-year period.

Relevant here, a jury convicted Simon of ten counts of sexual assault by one in a position of trust as part of a pattern of abuse, in violation of section 18-3-405.3(1), (2)(b), C.R.S. (1998) (Counts 1-10). These counts were based on acts committed between July 1, 1998, and August 1, 1999, as part of a pattern of abuse against the victim. Each count was charged as a class 3 felony.2

Simon did not dispute that any of the sexual acts occurred. Rather, his defense at trial was that the acts were consensual and that he was not in a position of trust relative to the victim.3

For each count of sexual assault on a child by one in a position of trust committed as "part of a pattern," the jury verdict form stated the following:

I. We, the jury, find the defendant, DAVID KENNETH SIMON, NOT GUILTY of SEXUAL ASSAULT ON A CHILD BY ONE IN A POSITION OF TRUST. (Between and including July 1, 1998 and August 1, 1999)
[signature line for foreperson]
II. We, the jury, find the defendant, DAVID KENNETH SIMON, GUILTY of SEXUAL ASSAULT ON A CHILD BY ONE IN A POSITION OF TRUST. (Between and including July 1, 1998 and August 1, 1999)
[signature line for foreperson]

The second page of the verdict form for each such count included the following interrogatory:

If you find the defendant guilty of SEXUAL ASSAULT ON A CHILD BY ONE IN A POSITION OF TRUST, you must also complete this section by placing, in ink, an "X" in the appropriate box indicating your decision. ONLY ONE SQUARE may be filled in, with the remainder to remain unmarked.
[ ] We, the jury, unanimously find, beyond a reasonable doubt, that the defendant committed this act as part of a pattern of sexual abuse.
[ ] We, the jury, do not find that the defendant committed this act as part of a pattern of sexual abuse.
[signature line for foreperson]

For Counts 2 through 9, this second page also included the following interrogatory:

[ ] We, the jury, unanimously find, beyond a reasonable doubt, that the defendant committed all the acts of sexual contact described by [the victim] between and including July 1, 1998 and August 1, 1999.
-OR-
[ ] We, the jury, unanimously find, beyond a reasonable doubt, that the defendant committed the same act of sexual contact described by [the victim] between and including July 1, 1998 and August 1, 1999. This act is separate and distinct from any other act for which we found the defendant guilty.
[signature line for foreperson]

The trial court also gave the jury the following instruction:

The evidence in this case raises issues concerning several incidents of alleged sexual assault by one in a position of trust. In order to find a pattern of sexual abuse [1103]*1103(as alleged in Counts One through Ten) you must unanimously agree that either of the following has been proven:
1. The Defendant committed all of the incidents of sexual contact described by the evidence between and including July 1, 1998 and August 1, 1999. The jurors must unanimously agree that all of the incidents of sexual contact have been proven beyond a reasonable doubt;
or
2. The Defendant committed two or more incidents of sexual contact with [the victim] described by the evidence between July 1, 1998 and August 1, 1999. The jurors must unanimously agree that the same two or more incidents have been proven beyond a reasonable doubt.

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Cite This Page — Counsel Stack

Bluebook (online)
266 P.3d 1099, 2011 WL 6318965, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-simon-colo-2011.