People v. Simon

219 P.3d 789, 2009 Colo. App. LEXIS 1223, 2009 WL 1956339

• Court: Colorado Court of Appeals
• Decided: July 9, 2009
• Docket: 06CA2229
• Status: Published

Opinions

Opinion by

Judge CONNELLY.

Defendant, David Kenneth Simon, was convicted of ten counts of sexual assault on a child by one in a position of trust as part of a pattern of abuse under a former version of section 18-38-405.3, C.R.S. 2008. The trial court imposed enbanced sentences of ten years per count, consecutive to each other and to a twelve-year sentence on a related count of patronizing a prostituted child, for a total sentence of 112 years in prison.

The issue is whether one "pattern" of abuse of one victim may support multiple pattern convictions. Colorado sex assault statutes differ depending on the child's age and the offender's status, but make some such crimes more serious if committed as part of a pattern. See §§ 18-8-405(2)(d), 18-8-405.3(2)(b), C.R.S. 2008. A pattern is "two or more incidents" of sexual contact involving the same victim. § 18-3-401(2.5), CRS. 2008.

We hold Colorado statutes do not allow, and double jeopardy bars, more than one pattern conviction for a single pattern of abuse against one victim. This holding precludes defendant's ten pattern convictions and his sentence to a century in prison but does not preclude sentencing defendant to many decades in prison.

I. Background

From 1997 through 1999, defendant had multiple incidents of sexual contact with a troubled teenage boy whom he had taken into his house. The abuse began with acts of prostitution when the boy was fifteen and continued until the boy was seventeen.

Defendant was charged with and convicted of twenty counts of sexual assault on a child by one in a position of trust; the counts were broken into two groups of ten because the "pattern" offense was not added to the position of trust statute until July 1, 1998. See Ch. 314, see. 38, § 18-3-405.3, 1998 Colo. Sess. Laws 1444. One group charged ten class four sexual assaults on a child occurring on unspecified dates between August 1, 1997 and June 30, 1998, while the other group charged ten class three sexual assaults on a child occurring as part of a pattern on unspecified dates between July 1, 1998 and August 1, 1999. Defendant was also charged and convicted on two counts involving patronizing a prostituted child.

The authorized sentencing range for defendant's class four offenses, without any aggravating facts found by a jury, was two to six years. § 18-1.3-401(1)(a)(V)(A), C.R.S. 2008. After July 1, 1998, committing the assaults as part of a pattern raised the offense to a class three felony and more than quintupled the presumptive range to ten to thirty-two years. See § 18-3-405.3(2)(b) (class three felony pattern offense); § 18-1.8-401(1)(a)(V)(A) (setting presumptive four-to-twelve-year range for class three felonies), § 18-1.3-401(10)(a), C.R.S. 2008 (adding four years to maximum term for "extraordinary risk" crime); § 18-1.3-406, C.R.S. 2008 (requiring sentence to at least the midpoint but not more than twice the maximum of presumptive range for "crime of violence").

Crimes such as these, if committed after November 1, 1998, would also be subject to an indeterminate life sentence under the Colorado Sex Offender Lifetime Supervision Act. See Ch. 303, see. 1, §§ 16-18-801 to - 812, 1998 Colo. Sess. Laws 1278-88 (entire section repealed and reenacted Ch. 318, see. 2, §§ 18-1.3-1001 to-1012, 2002 Colo. Sess. Laws 1434-44). Because the jury made no findings as to the specific dates of the assaults, however, the parties agreed defendant was not subject to indeterminate sentencing.

The court imposed ten consecutive sentences of ten years each on the pattern counts. It further imposed a consecutive twelve-year sentence on the count involving a prostituted child. The court imposed six-year sentences on the ten non-pattern counts but ran them all concurrently. Accordingly, defendant was sentenced to a total of 112 years in the Department of Corrections.

The division in a prior appeal vacated the sentences on the pattern counts because the district court had acted under the mistaken belief that consecutive sentences were required. People v. Simon, 100 P.3d 487, 495-96 (Colo.App.2004). It remanded the case for the district court to exercise discretion in determining whether to run the pattern sentences consecutively or concurrently. Id.

Defendant argued at resentencing that he could not be punished multiple times for a single pattern of sexual abuse. The court rejected this argument and re-imposed enhanced sentences of ten years per pattern count, consecutive to each other and to a twelve-year sentence on the related count involving prostituting the child victim, again for a total of 112 years in prison.

II. Discussion

Whether a defendant who commits a single pattern of sexual abuse may be convicted and sentenced for multiple pattern offenses raises a constitutional double jeopardy issue that turns on legislative intent. See Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); People v. Abiodun, 111 P.3d 462, 464-65 (Colo.2005). Our standard of review is de novo. People v. Stevenson, -- P.3d --, --, 2009 WL 899756, at *6 (Colo.App. No. 06CA1612, Feb. 19, 2009).

We must decide what "unit of prosecution" the legislature intended to create. Sanabria v. United States, 437 U.S. 54, 69-70, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Abiodun, 111 P.3d at 465 n. 2. "Multiplicity" is the term used to describe "the charging of the same offense in several counts, culminating in multiple punishments." Quintano v. People, 105 P.3d 585, 589-90 (Colo.2005). Problems arise where "a series of repeated acts ... are charged as separate crimes even though they are part of a continuous transaction and therefore actually one crime." Woellhaf v. People, 105 P.3d 209, 214 (Colo.2005). Our specific "inquiry is whether the General Assembly has defined the crime as a continuous course of conduct." Id. at 214-15.

Where the General Assembly has defined a crime as a continuous course of conduct, a defendant may not be prosecuted for individual acts comprising that course of conduct. The most recent Colorado case illustrating this point is Roberts v. People, 203 P.3d 513 (Colo.2009). The court there held that Colorado's consolidated theft statute, section 18-4-401(4), C.R.S. 2008, "not only permits, but in fact requires, all thefts committed by the same person within a six-month period (except any for which jeopardy had already attached before he committed the others), to be joined and prosecuted as a single felony." 203 P.3d at 516. (We note the General Assembly promptly amended the theft statutes after Roberts, stating it had always intended "to allow, but not require, aggregation of multiple violations ... into a single offense." See Ch. 244, see. 1(a), 2009 Sess. Laws at ___.)

It is often hard to discern whether a legislature intended to punish an overall "course of conduct." See Jeffrey M. Chemerinsky, Counting Offenses, 58 Duke L.J. 709, 715 (2009). Here, however, it is patently clear the General Assembly intended to punish the overall course-ie, the "pattern"-of conduct.

By definition, a "pattern" requires that a defendant engaged in a course of criminal conduct rather than simply individual criminal acts. The statute makes this clear by defining "pattern of sexual abuse" as "fwo or more incidents of sexual contact involving a child when such offenses are committed by an actor upon the same victim." § 18-3-401(2.5) (emphases added). The General Assembly thus recognized that a "pattern" case will often involve more than two criminal incidents.

Legislative history confirms the intent to punish the overall course of conduct directed at a single victim. The original pattern provisions were included because the General Assembly understood "the difficulties young children have" in separating related acts of abuse and intended to "proscribe a kind of pattern of sexual abuse conduct which it consider[ed] to be of greater social consequence and which merits greater punish, ment." People v. Longoria, 862 P.2d 266, 270-71 (Colo.1993). Indeed, the experienced prosecutor who testified in support of the new statute answered "[plrobably not" to a legislator's question whether a defendant who committed 300 abuse crimes against a single victim could be charged with 800 pattern counts. See Hearings on H.B. 1075 before the S. Comm. on Judiciary, 57th Gen. Assemb., 1st Sess. (May 3, 1989) (testimony of former Denver Chief Deputy District Attorney Karen Steinhauser). She added that while a pattern offender likely could not be charged with a pattern offense for each individual incident, the new pattern statute "makes the penalty greater, which is more in line with what it should be." Id.

Construing a pattern as a course of conduct is also supported by decisions in analogous cases. -As the Sixth Cireuit wrote:

States have the authority to enact criminal statutes regarding a "pattern" or a "continuing course" of abuse. They do not have the power to prosecute one for a pattern of abuse through simply charging a defendant with the same basic offense many times over.

Valentine v. Konteh, 395 F.3d 626, 634 (6th Cir.2005) (footnote omitted).

The New Hampshire Supreme Court has explained that "[when seeking convictions on multiple pattern indictments that charge numerous assaults within a common time frame inflicted on a single victim, ... the pattern indictments cannot rely on the same underlying act or acts to comprise the charged pattern." State v. Richard, 147 N.H. 340, 786 A.2d 876, 879 (2001), discussed in State v. Jennings, 155 N.H. 768, 929 A.2d 982, 991 (2007). Similarly, New York courts have held that because the "crime of course of sexual conduct against a child in the first degree is a continuing offense," "[an indictment cannot charge a defendant with more than one count of [that] crime ... unless there has been an interruption in the course of conduct." People v. Moore, 59 A.D.3d 809, 874 N.Y.S.2d 283, 285 (2009) (quoting and following People v. Quinones, 8 A.D.3d 589, 779 N.Y.S.2d 131, 132 (2004)).

The statutory text, legislative history, and case law construing analogous statutes thus make clear that what is being punished is the overall course of conduct-the "pattern"rather than just individual incidents of abuse. What complicates matters is that the General Assembly did not proscribe simply the pattern but also proseribed individual criminal incidents. The present case is different in that respect from Roberts, which construed Colorado's consolidated theft statute as it then existed to preclude prosecution for individual acts of theft within the defined course of conduct. See 203 P.3d at 516.

That prosecutors may bring multiple counts for individual incidents of abuse does not mean they may seek multiple enhanced punishments for a single pattern of abuse. We find nothing in the former or current statute to support defendant's contention that prosecutors are precluded from bringing multiple class four felony counts for separate crimes involving the same pattern and victim. We agree with defendant, however, that he may not be convicted on multiple pattern counts for a single pattern.

We reject the suggestion that multiple pattern sentences may be imposed for one pattern because individual incidents are the crimes and the pattern element is a "sentence enhancement." Labeling such an elemental fact "a 'sentence enhancement' rather than a separate crim[e]" is "irrelevant for constitutional purposes." United States v. Booker, 543 U.S. 220, 231, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (discussing Apprendi v. New Jersey, 530 U.S. 466, 478, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Under the statutes as drafted, and consistent with Apprendi and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), defendant could be convicted and sentenced for a pattern of sexual abuse only if the pattern was proved to and found by a jury beyond a reasonable doubt. It should follow that the "pattern" was an element of the "offence" for double jeopardy purposes. See Sattazahn v. Pennsylvania, 537 U.S. 101, 111, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003) (plurality opinion of Scalia, J.) ("We can think of no principled reason to distinguish, in this context, between what constitutes an offense for purposes of the Sixth Amendment's jury-trial guarantee and what constitutes an 'offence' for purposes of the Fifth Amendment's Double Jeopardy Clause.").

We recognize that People v. Bobrik, 87 P.3d 865 (Colo.App.2003), concluded there can "be multiple patterns for each victim" because the statutory definition "is not limited to one pattern for each victim." Id. at 870. To the extent this simply means that one pattern of abuse by the same defendant against the same victim may end and another begin at a different time or location, it is consistent with decisions of other courts construing similar statutes. See, e.g., Moore, 874 N.Y.S.2d at 285; Jennings, 929 A.2d at 991. But to the extent Bobrik held more broadly that "there can be one pattern count for each underlying substantive count," 87 P.3d at 870-even if the pattern in each count is the same-the holding is unsupported, and we decline to follow it.

To the extent Colorado statutes are unclear regarding whether the allowable unit of prosecution for one pattern is a single pattern count, any doubt must be resolved in defendant's favor under the rule of lenity. See United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 224-26, 73 S.Ct. 227, 97 L.Ed. 260 (1952); People v. Lowe, 660 P.2d 1261, 1269 (Colo.1983). This "venerable rule"-which provides "the tie must go to the defendant" where a criminal statute is ambiguous-applies in all criminal cases. United States v. Santos, 553 U.S. --, --, 128 S.Ct. 2020, 2025, 170 L.Ed.2d 912 (2008) (plurality opinion of Scalia, J.). But outside the double jeopardy context, Colorado courts apply it "reluctantly," as a "rule of last resort," only where legislative intent remains hopelessly obscure. People v. Summers, 208 P.3d 251, 258 (Colo.2009) (citing People v. Thoro Products Co., 70 P.3d 1188, 1198 (Colo.2008)).

The rule of lenity applies with heightened force in double jeopardy cases involving the appropriate unit of prosecution. It does so "precisely because" this is a unique area in which legislatures have the ultimate "prerogative" to frame constitution al protections: "As long as the general assembly makes clear its intent to punish the same offense with more than one conviction and sentence, it is not constitutionally prohibited from doing so." Abiodun, 111 P.3d at 464-65 (emphasis added; citing Missouri v. Hunter, 459 U.S. at 368-69, 103 S.Ct. 673); see Nancy J. King, Portioning Punishment: Constitutional Limits on Successive and Excessive Penalties, 144 U. Pa. L.R. 101, 115 (1995) ("the legislative deference approach" to double jeopardy "mandates a presumption, favorable to defendants" against multiple punishments in unclear cases).

Thus, not only is the rule of lenity applied often in the double jeopardy context, see Abiodun, 111 P.3d at 468 (citing cases), it is applied more than just as a last-ditch tiebreaker,. Multiple convictions have been precluded "whenever the [legislative intent] for their existence is less than clear." Lowe, 660 P.2d at 1268; accord Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 99 L.Ed. 905 (1955) (multiple punishments precluded where Congress did not fix them "clearly and without ambiguity"), discussed in Note, The New Rule of Lenity, 119 Harv. LR. 2420, 2422-28 (2006), and Jack Balderson, Jr., Temporal Units of Prosecution and Continuous Acts, 36 San Diego L.R. 195, 201, 247 (1999).

We conclude a defendant who engages in only one pattern of sexual abuse may be convicted and sentenced on only one pattern count. Thus, if defendant is to be sentenced for a class three felony pattern crime, he may be sentenced to a maximum term of thirty-two years in prison, which may run consecutively to the twelve-year sentence for the legally distinct prostitution count.

III. Conclusion

The ten consecutive sentences on the pattern counts are vacated, and the case is remanded for resentencing in accordance with this opinion.

Judge ROY concurs. Judge CASEBOLT dissents.