People v. Madril
| Decision Date | 07 December 1987 |
| Docket Number | No. 86SA97,86SA97 |
| Citation | 746 P.2d 1329 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Benito F. MADRIL, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Curt P. Kriksciun, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Montano & Encinas, P.C., Duane Montano, Denver, for defendant-appellant.
Benito F. Madril, the defendant, appeals his conviction of sexual assault on a child by one in a position of trust. § 18-3-405(1) and (2)(b), 8B C.R.S. (1986). He claims that the statutory crime for which he was convicted is violative of equal protection of the laws, 1 that a witness' prior inconsistent statement was erroneously admitted, that the jury was improperly instructed on the elements of the charge, and that the court abused its discretion in sentencing him to a term of imprisonment. We affirm the judgment.
The defendant was charged with the class 3 felony of sexual assault on a child by one in a position of trust. The information alleged that between August 20 and August 21, 1984, the defendant knowingly subjected C.Q., who was then less than fifteen years of age, to sexual contact and that the defendant was at least four years older than the victim and occupied a position of trust with respect to the victim. On the date of the offense the defendant was a thirty-six year old divorced parent who had legal custody of his eight year old daughter and his seven year old son. The victim, C.Q., was a young girl who was a few days short of ten years of age.
The prosecution's evidence indicated that on the evening of August 20, 1984, C.Q. and her seven year old brother came to the defendant's home with their night clothes. C.Q. and her brother lived close to the defendant's home and had received permission from their parents to spend the evening there with the Madril children. When C.Q. and her brother arrived at the defendant's home, the defendant received them into his home and allowed them to remain overnight.
C.Q. testified that she and the other children looked at a book written in Spanish and watched television during the early part of the evening. When the other children fell asleep and went to bed, C.Q. remained in the living room of the home watching television. The defendant, according to C.Q., sat next to her, and put his arm under her shirt and squeezed one of her breasts. She also testified that the defendant put his hand under her underwear, touched her vagina, and told her to open her legs. C.Q. told the defendant to stop and he did so. Although it was late in the evening when this incident occurred, C.Q. left the defendant's home and rode her bicycle to her own home where she reported to her mother that the defendant had touched her breasts.
The prosecution also called as a witness the defendant's daughter, C.M., to corroborate certain parts of the victim's testimony regarding the children's activities in the home preceding the offense. Although the prosecution questioned the defendant's daughter about whether she and C.Q. had looked at a book written in Spanish and watched television, the defendant's daughter testified that she could not remember the events on that evening. The prosecution also questioned the defendant's daughter about whether she remembered making a statement a few days later about how she and C.Q. spent the evening in question. She again stated that she did not remember any such statement. The trial court, over the defendant's objection, permitted the prosecution to call Ken Clark, a counselor with Youth and Victim Services of the Colorado Springs Police Department, to testify that the defendant's daughter told him during an interview on August 24, 1984, that she and C.Q. had looked at a book written in Spanish and had watched television with the defendant.
The defendant denied any sexual contact with C.Q. He testified that at approximately midnight he heard a scream and upon checking the children's bedroom he saw C.Q. standing next to his daughter's bed and exclaiming that she was scared and wanted to go home. According to the defendant, he offered to walk C.Q. home, but she left alone on her bicycle.
At the conclusion of the evidence the court gave the following instruction on the elements of sexual assault on a child by one in a position of trust:
The elements of the crime of Sexual Assault on a Child While in a Position of Trust as charged in this case are:
a. Subjected another person not his spouse,
b. To any sexual contact, and
6. At the time of the commission of the act and
7. The Defendant was one in a position of trust, to wit: a babysitter with respect to [C.Q.]. 2
In keeping with the statutory definition of "position of trust" in section 18-3-401(3.5), 8B C.R.S. (1986), the court gave the following instruction:
One in a "POSITION OF TRUST" includes, but is not limited to, any person who is a parent or acting in the place of a parent and charged with any of a parent['s] rights, duties, or responsibilities concerning a child, or a person who is charged with any duty or responsibility for the health, education, welfare, or supervision of a child, including foster care, child care, or family care, either independently or through another, no matter how brief, at the time of the unlawful act.
The jury was also instructed on the lesser offenses of sexual assault on a child, a class 4 felony when not committed by one in a position of trust, § 18-3-405(1), 8B C.R.S. (1986), and the class 1 misdemeanor of sexual assault in the third degree by knowingly subjecting a victim to sexual contact when the victim is less than eighteen years of age and the actor is the victim's guardian or is otherwise responsible for the general supervision of the victim's welfare, § 18-3-404(1)(e), 8B C.R.S. (1986).
During the course of deliberations, the jury asked the court to clarify the term "general supervision," which related to the lesser offense of sexual assault in the third degree, and the term "charge," as used in the jury instruction defining a "position of trust." The court responded to the jury's request for a definition of "general supervision" as follows:
A person responsible for the general supervision of the welfare of one under eighteen is a person who has powers, rights, and duties similar to those of a guardian but who has not been formally appointed by the Court as a guardian nor designated by a parent as a guardian. A guardian of one under eighteen in Colorado has the same powers, rights, and duties respecting a person under eighteen that a parent would have concerning a parent's unemancipated minor child except that a guardian is not required to provide for the child from his own funds. One with general supervision is to be distinguished from one with supervision which is for a particular purpose only. For example, some guardians are appointed for limited or special purposes.
In response to the jury's question about the term "charge," the court informed the jury by written answer that "charge" means "to impose a parental right, duty, or responsibility."
The jury eventually returned a guilty verdict to sexual assault on a child by one in a position of trust. When the matter came before the court for sentencing, the court considered a presentence report which included a sentencing-grid worksheet prepared by the probation department. The court also received sentencing recommendations from the victim's family, from a personal friend of the defendant, and from the probation department. The court imposed a four-year sentence, plus one year of parole, which is the minimum sentence for a class 3 felony. This appeal followed.
We first address the defendant's constitutional challenge to the statutory offense of sexual offense on a child by one in a position of trust, next the evidentiary issue relating to the admission of evidence concerning a prior inconsistent statement made by the defendant's daughter, then the defendant's claims regarding the jury instructions, and finally the propriety of the sentence.
The defendant claims that the statutory offense of sexual assault on a child by one in a position of trust, § 18-3-405(1) and (2)(b), 8B C.R.S. (1986), violates equal protection of the laws under the Colorado Constitution, Colo. Const. art. II, sec. 25, because it carries a greater penalty than the penalty applicable to the misdemeanor offense of sexual assault in the third degree, § 18-3-404(1)(e), 8B C.R.S. (1986), while, according to the defendant, the conduct proscribed by both statutes is identical. 3 We find the defendant's claim devoid of merit.
The crime of sexual assault on a child by one in a position of trust is defined in section 18-3-405(1) and (2)(b) as follows:
(1) Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child if the victim is less than fifteen years of age and the actor is at least four years older than the victim.
(2) Sexual assault on a child is a class 4 felony, but it is a class 3 felony if:
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(b) The actor who commits the offense on a victim is one in a position of trust with respect to the victim.
A class 3 felony, on the date of the offense in question, carried a presumptive sentence of four to eight years. § 18-1-105(1)(a)(II), 8B C.R.S. (1986).
The misdemeanor offense of sexual assault in the third degree is defined in section 18-3-404(1)(e), as follows:
(1) Any actor who knowingly subjects a victim to any sexual contact commits sexual assault in the third degree if:
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(e) At the time of the commission of the act, the victim is less than eighteen...
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...single act may give rise to more than one criminal violation does not, by itself, create an equal protection problem." People v. Madril , 746 P.2d 1329, 1333 (Colo. 1987). ¶ 59 When evaluating an as-applied equal protection challenge, we consider whether, under the circumstances of the case......
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Prior Inconsistent Statements
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Foreword
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