James v. People, 84SC399

• Citation: 727 P.2d 850
• Decision Date: 03 November 1986
• Docket Number: No. 84SC399,84SC399
• Parties: Jarvis JAMES, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Supreme Court of Colorado

Page 850

727 P.2d 850

Jarvis JAMES, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 84SC399.

Supreme Court of Colorado,

En Banc.

Nov. 3, 1986.

Rehearings Denied Dec. 2, 1986.

David F. Vela, Colorado State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Milton Hutchins, First Asst. Atty. Gen., Denver, for respondent.

Justice LOHR delivered the Opinion of the Court.

We granted certiorari to review the decision of the Colorado Court of Appeals in People v. James, 694 P.2d 356 (Colo.App.1984), which affirmed the conviction of Jarvis James for first degree sexual assault. The trial court instructed the jury that first degree sexual assault can be committed by causing submission of the victim in any one of three specified ways. On appeal, the defendant contended that the general verdict of the jury could not be sustained because there was no evidence to support one of these three alternative means of causing submission. The court of appeals found this contention both legally and factually wanting. That court also rejected the defendant's arguments that the trial court had erred in denying his motion for disqualification of the trial judge and in receiving testimony from two physicians concerning the victim's emotional and physical condition several days after the events upon which the prosecution was based. We granted certiorari to review these three holdings and now affirm the judgment of the court of appeals.

I.

The defendant was charged in Fremont County District Court with sexually assaulting a female victim in her apartment on July 7, 1981, in Canon City. ¹ The following description of the events in question is based upon the evidence presented by the People at the defendant's jury trial.

The complaining witness testified that James came to her apartment shortly after midnight asking to borrow a cup of sugar. Once inside the apartment, James grabbed the woman, forced her into a bathroom closet and tore off her underpants. During these activities, the woman screamed whereupon James grasped her throat and chin, pushed her face into the wall and told her that he would have good reason to kill her if she continued to scream. The defendant had begun to subject the woman to sexual intercourse when her twenty-month-old son began to cry. The woman managed to free herself and went into her son's bedroom to comfort him. The defendant followed her into the bedroom and allowed her to attempt to put her son back to sleep. While the woman was attending to her child, James told her in some detail that he had made arrangements with others to kill her and her son if the woman reported the incident. The defendant then forced her to return to the living room and again required her to submit to sexual intercourse. The woman further testified that during the second sexual act, her son emerged from his bedroom, ran to his mother, put his arms around her neck and began to cry, "Mommy, mommy." The sexual assault was completed in the presence of the child. The defense counsel offered no evidence but argued that although James and the woman did have sexual intercourse, the acts were done with the woman's consent and that she was fabricating a story to conceal her willing sexual involvement with James.

The jury found the defendant guilty of first degree sexual assault. Thereafter, the trial court denied the defendant's motion for a new trial and sentenced him to six years imprisonment. James appealed. The court of appeals affirmed and we granted certiorari.

II.

The defendant argues that the evidence presented at trial was insufficient to justify a finding by the jury that every element of each alternative method of committing the charged offense had been proven beyond a reasonable doubt. Specifically, the defendant asserts that the evidence is wanting on the third alternative method of causing submission of the victim, threat of future retaliation. As a consequence, James contends, he has been denied a due process right to assurance that his conviction was based upon the constitutionally required quantum of evidence.

The defendant first raised this issue at trial by objecting to the instruction that set out the elements of sexual assault in the first degree and that specified the three alternative methods of causing the victim to submit. He specifically based his opposition to this instruction on the contention that the evidence did not support the third alternative, causing submission by threat of future retaliation. The court overruled the objection and gave the instruction, which provided in most pertinent part:

The elements of Sexual Assault in the First Degree are ...:

1. A person

2. Knowingly inflicts sexual penetration on another, not his spouse, and

3. Causes submission of the victim through the actual application of physical force or violence; or

causes submission of the victim by threat of imminent death, and the victim believes that he has the present ability to execute these threats; or

causes submission of the victim by threatening to retaliate in the future against the victim, or any other person, and the victim reasonably believes he will execute this threat.

This instruction accurately detailed the elements of the crime of first degree sexual assault as it was charged in this case. See § 18-3-402, 8B C.R.S. (1986). The only issue concerning the propriety of its use is whether the evidence was legally and factually sufficient to support a general verdict based on this instruction.

A.

In order to sustain a criminal conviction, due process of law guaranteed by the fourteenth amendment to the Constitution of the United States requires that sufficient evidence be presented to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358, 361-64, 90 S.Ct. 1068, 1070-72, 25 L.Ed.2d 368 (1970). Even before Winship, our court recognized the "proof beyond a reasonable doubt" standard as an integral part of the due process clause of the Colorado Constitution. People ex rel. Juhan v. District Court, 165 Colo. 253, 257, 439 P.2d 741, 744 (1968). Accord People v. Gonzales, 666 P.2d 123, 127 (Colo.1983); Hendershott v. People, 653 P.2d 385, 390 (Colo.1982), cert. denied, Colorado v. Hendershott, 459 U.S. 1225, 103 S.Ct. 1232, 75 L.Ed.2d 466 (1983).

The instruction defining the elements of first degree sexual assault allowed the jury to convict the defendant if he had knowingly inflicted sexual penetration upon the victim by causing her to submit to him in one of three ways: (1) application of physical force or violence, (2) threat of imminent death, or (3) threat of future retaliation. There was substantial testimony by the victim that the defendant used both actual physical force and threat of imminent death to cause her submission. She testified that he repeatedly shoved her around, forcefully disrobed her, and threatened to kill her if she continued to scream. The jury could have arrived at the guilty verdict fully consistent with the constitutional requirement of proof beyond a reasonable doubt with respect to either of the first two alternative methods of causing submission. The defendant does not argue to the contrary. However, the jury's verdict was returned on a general verdict form that did not specify upon which of the alternatives the verdict was reached.

The defendant argues that because we are unable to determine upon which of the three theories the jury based its verdict, the evidence must be sufficient to support a guilty verdict under each of them. The United States Supreme Court stated in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), "[i]t has long been settled that when a case is submitted to the jury on alternative theories the unconstitutionality of any of the theories requires that the conviction be set aside." Id. at 526, 99 S.Ct. at 2460 (quoting Leary v. United States, 395 U.S. 6, 31-32, 89 S.Ct. 1532, 1545-46, 23 L.Ed.2d 57 (1969)). Accord People v. Lee, 630 P.2d 583, 587-88 (Colo.1981). The constitutional infirmity alleged by the defendant in the present case is a lack of sufficient evidence to enable the jury to find beyond a reasonable doubt that the defendant caused submission of the victim by threat of future retaliation.

We agree that unless the evidence on each of the alternative methods of causing the victim's submission is sufficient to support a verdict by proof beyond a reasonable doubt, there can be no assurance that the general verdict is based upon that constitutional standard mandated by the due process clauses of both the federal and state constitutions. As we stated in People v. Lowe, 660 P.2d 1261 (Colo.1983), "[i]f the jury is asked only for a general verdict [when the prosecution is based on alternative methods of committing a crime], then on appeal there is no way to decide upon which theory the jury reached its verdict. In such a case an error relating to either count would void the entire verdict." Id. at 1271. Accord People v. Lee, 630 P.2d at 587-88. ²

Many other courts that have considered this issue directly have reached the same conclusion. E.G., Bachellar v. Maryland, 397 U.S. 564, 570-71, 90 S.Ct. 1312, 1315-16, 25 L.Ed.2d 570 (1970); Street v. New York, 394 U.S. 576, 585-88, 89 S.Ct. 1354, 1362-63, 22 L.Ed. 572 (1969); Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 370 U.S. 19, 30, 82 S.Ct. 1130, 1136, 8 L.Ed.2d 305 (1962); Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1073, 1 L.Ed.2d 1356 (1957); Stromberg v. California, 283 U.S. 359, 367-68, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931); Cappellini v. McCabe Powers Body Co., 713 F.2d 1, 8 (2d Cir.1983); United States v. Head, 641 F.2d 174, 179 (4th...