Gallegos v. People, 23886

• Decision Date: 26 October 1971
• Docket Number: No. 23886,23886
• Parties: Philip GALLEGOS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 1301

489 P.2d 1301

176 Colo. 191

Philip GALLEGOS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 23886.

Supreme Court of Colorado, En Banc.

Oct. 26, 1971.

Levi Martinez, Richard R. Macrorie, Pueblo, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Michael T. Haley, Asst. Atty. Gen., for defendant in error.

DAY, Justice.

Plaintiff in Error, defendant below, was convicted of statutory rape (C.R.S.1963, 40--2--25), taking immodest and immoral liberties, and assault with intent to take indecent liberties (1965 Perm.Supp., C.R.S., 1963, 40--2--32(1) and (2)).

I.

Defendant contends first that 1965 Perm.Supp., C.R.S.1963, 40--2--32 (assault on a child under 16) is so vague that it denies him his rights to due process under the United States and Colorado Constitutions. This contention has been fully answered contrary to this contention in prior decisions of this court dealing both with the present statute and its predecessor. Godfrey v. People, 168 Colo. 299, 451 P.2d 291 (1969); Jordan v. People, 161 Colo. 54, 419 P.2d 656 (1966); Dekelt v. People, 44 Colo. 525, 99 P. 330 (1908).

II.

Defendant claims next the trial court erred in denying his motions for judgment of acquittal on count 1--statutory rape--made at the close of People's case. The defendant asserts that these motions should have been granted, the People having failed to prove the age of the defendant.

The applicable statute provides one of the elements of this crime to be that the male was over the age of 18 (C.R.S.1963, 40--2--25(1)(b)). We have previously held that the age of the defendant in a charge of statutory rape is a material element and must be proven beyond a reasonable doubt. Slocum v. People, 120 Colo. 86, 207 P.2d 970 (1949).

At trial, two law enforcement officers testified as to the age of the defendant. The first, a deputy sheriff, testified, 'I would guess his age to be 19 or 20 at least.' On cross examination when asked, 'Your opinion of the age--you said 19 or 20, maybe--of the defendant, is that a guess?' The witness replied, 'Yes, it is a rough guess.'

A patrolman from the Pueblo County Jail then testified that in his opinion the defendant was between 20 and 21 years. On cross-examination he first indicated his estimate would be 20 to 21--22; then he stated, '20 to 21.' Counsel then queried, 'So, actually you are just guessing, you don't have the slightest idea how old that man is, it is pure guesswork?' and the reply was '20 to 21, yes.'

It is well established that in a proper case a competent observer may be permitted to state his estimate or opinion as to age. See, e.g. Hood v. Duren, 33 Ga.App. 203, 125 S.E. 787 (1924); Watson v. State, 236 Ind. 329, 140 N.E.2d 109 (1957); National Aid Life Ass'n v. Wiles, 171 Okl. 57, 41 P.2d 655 (1935). Given the requirements that the defendant in the instant case be over the age of 18, it was essential that his age be pinpointed with some preciseness. Neither of the officers was qualified by any preliminary examination as to his ability or past experience in observing age, nor was any indication given as to what physical characteristics might have been used in arriving at the estimates made. Both officers testified that their estimate of defendant's age was guesswork, one characterizing it as a 'rough guess.' Therefore, we hold that where, as here, the guessing covered a range of four years, including the age of 19, the approximation was so close to the statutory minimum that a more definite and better qualified answer was required in this case. Proof of the material elements of the crime may not rest on surmise, speculation, conjecture or guesswork. See Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959); Leonard v. Bauer, 112 Colo. 247, 149 P.2d 376 (1944); Neal v. Wilson County Bank, 83 Colo. 118, 263 P. 18 (1927).

We conclude as a matter of law that the observations and testimony of the two officers which stood alone in this case, were not of sufficient probative value to support the conviction of the defendant on the charge of statutory rape. Therefore it was error to deny defendant's motion for directed verdict of acquittal on the ground of failure of proof of the material element of the crime.

III.

The defendant alleges error in submitting verdicts that permitted the jury to find him guilty on counts two and three of the information relating, respectively, to charges of 'taking of immodest and immoral liberties with the person' of the complaining witness and 'assault with intent to take indecent and improper liberties with the person' of the complainant child (1965 Perm.Supp., C.R.S.1963, 40--2--32(1)).

The applicable portions of the indecent liberties statute upon which the court instructed the jury and submitted verdicts relating to counts two and three of the information are as follows:

'Assault on child under sixteen.--(1) Any person who shall Assault any child under sixteen years of age With the intent to take indecent and improper liberties with the person of such child * * * shall be deemed a felonious assaulter, and, upon conviction thereof, shall be punished, if eighteen years of age or older, by confinement in the penitentiary for a term of not less than one year nor more than ten years, and, if under eighteen years of age, may be punished by commitment to the state reformatory.

'(2) Any person who shall Take immodest, immoral liberties with any child under sixteen years of age shall be deemed a felonious assaulter, and, upon conviction thereof, shall be punished, if eighteen years of age or older, by confinement in the penitentiary for a term of not less than one year nor more than ten years, and, if under eighteen years of age, may be punished by commitment to the state reformatory.' 1965 Perm.Supp., C.R.S.1963, 40--2--32. (Emphasis added.)

This statute has previously been before this...