Kogan v. People

• Decision Date: 09 May 1988
• Docket Number: No. 85SC489,85SC489
• Citation: 756 P.2d 945
• Parties: Edward George KOGAN, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 945

756 P.2d 945

Edward George KOGAN, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 85SC489.

Supreme Court of Colorado,

En Banc.

May 9, 1988.

Rehearing Denied June 6, 1988.

Theodore A. Borrillo, Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for respondent.

ROVIRA, Justice.

The petitioner-defendant, Edward G. Kogan, appeals his conviction of four counts of sexual assault on a child. He contends that the evidence offered at trial was insufficient to support a finding that he was guilty of the charges beyond a reasonable doubt; that he was insufficiently apprised of the charges against him so as to be adequately prepared in his defense and be protected against double jeopardy; that the trial court should have ordered the prosecution to select a specific act upon which to rely for conviction; and finally, that the trial court improperly limited his cross-examination of a key prosecution witness. We cannot enter a judgment of acquittal, as the evidence introduced at trial, viewed in a light most favorable to the prosecution, is sufficient to find the defendant guilty of the charges beyond a reasonable doubt. Nevertheless, our concerns with the cumulative effect of the errors committed by the trial court cause us to reverse the judgment and remand for a new trial.

I.

When the charges were brought, the defendant had been a school teacher in the Sheridan School District, Arapahoe County, Colorado, for approximately twelve years. The acts of sexual assault were alleged to have occurred while the defendant was a fourth grade teacher at Ora Oliver Elementary School during the 1981-82 and 1982-83 school years. The defendant had never been suspended from teaching, nor had he ever been accused or convicted of any crimes.

An information was filed in February 1983, charging the defendant with five counts of sexual assault on a child in violation of section 18-3-405, 8B C.R.S. (1986), and four counts of child abuse in violation of section 18-6-401, 8B C.R.S. (1986). The alleged victims were V.A., C.M., J.W., and E.L. The initial information charged that two counts of sexual assault were perpetrated upon C.M. In November 1983, the information was amended to include one count of sexual assault on a child and one count of child abuse, both acts allegedly perpetrated upon A.C.

Given the general nature of the information, the defendant moved for an order requiring the prosecution to provide him with a bill of particulars. The court granted the motion, but limited it to the "best of the [district attorney's] knowledge and belief." When the information was amended to include the additional counts, the defendant moved for an amended bill of particulars, requesting the same information sought for the original nine counts. The People complied with an amended bill of particulars with responses as "specific" as the first bill. The defendant's objections to the sufficiency of the bill of particulars form a basis for this appeal.

Count 1 of the information pertaining to V.A. was dismissed at the end of the preliminary hearing for lack of probable cause. The five counts of child abuse were dismissed on motion of the People at the beginning of trial. Of the remaining five counts, that relating to J.W. was dismissed when her parents--who had moved to another state--would not return her to Colorado to testify.

Trial commenced on November 14, 1983. The defendant waived his right to a jury trial and was, therefore, tried by the court. The People's case, as will be discussed below, essentially consisted of the testimony of the three alleged victims concerning improper touching by the defendant in his classroom. The defendant testified and denied all of the allegations. The court found him guilty of four counts of sexual assault on a child and, rejecting the recommendation of the probation department, sentenced him to three years imprisonment on each count, to run concurrently.

In an unpublished opinion, the court of appeals affirmed the conviction. It concluded that the evidence presented at trial was sufficient to support the finding of guilt; that the bill of particulars was adequate; that the trial court did not err in refusing to require the prosecution to elect a specific act as to each victim, and to rely on that act for conviction; and finally, that the defendant was not prejudiced by the trial court's limitation on the cross-examination of Dr. James Cullen.

We granted certiorari to consider the defendant's claims regarding: (1) the sufficiency of the evidence; (2) the bill of particulars, and requiring the prosecution to select a specific act and to rely upon that choice for conviction; and (3) the limitation on cross-examination.

II.

A.

The defendant contends that the evidence introduced at trial was insufficient to support the trial court's finding of guilt.

Under section 18-3-405, 8B C.R.S. (1986), sexual assault on a child is committed when "an actor ... knowingly subjects another not his or her spouse to any sexual contact ... if the victim is less than 15 years of age and the actor is at least four years older than the victim." We have construed the term "sexual contact" to mean "the intentional touching of the victim's intimate parts by the actor ... for the purpose of sexual arousal, gratification, or abuse." People v. West, 724 P.2d 623, 628 (Colo.1986).

Since the defendant's first claim concerns the sufficiency of the evidence tying him to the sexual assaults, the evidence as adduced upon trial will be discussed in some detail.

Evidence offered at trial indicates that K.M., a student in the defendant's 1982-83 fourth grade class, spoke to her mother on or about October 12, 1982, about alleged improper touching in the defendant's classroom. K.M.'s mother called the school principal, Dr. James Cullen, on October 15, 1982, and gave him the names of four girls that K.M. stated were talking among themselves regarding improper touching. Those names were V.A., C.M., C.D., and B.P. After receiving this call, Cullen went to the defendant's classroom and requested that the four named girls accompany him back to his office. Once there, he asked them if they wanted to talk to him about something.

C.M. was the first to talk. She told the principal that the defendant was "touching some of the girls and putting his hands up their blouses." Initially she referred to V.A. V.A. thereupon said that the defendant had recently tried to put his hand up her blouse, but she had taken his hand out and slapped him. The girls indicated that the improper touching was happening to all the girls in the classroom. At no time during this initial meeting with Cullen did any of the girls state that the defendant placed his hand in the pants of any of the four girls. C.M. never stated that the defendant placed a hand on her breast. The meeting lasted 15 to 20 minutes.

After this initial conversation, Cullen summoned the defendant into his office and suspended him with pay pending further investigation. At that time, Cullen did not tell the defendant the names of the students making the allegations or their specific nature.

Cullen had the four girls and their parents come to school on October 18 for further interviews, at which time he met with them in the presence of a police detective.

Following that meeting, Cullen arranged to have interviews conducted at the school by police officers and directed Juanita Oppergard, the school psychologist, to sit in on the interviews. The detectives interviewed students from the defendant's present (1982-83) fourth grade class (which numbered 25 to 28 students), and his previous (1981-82) fourth grade class (the present fifth grade class, which numbered approximately 30 students). The students' ages ranged from 9 to 11 years. These interviews took the better part of three days and were not tape recorded. Students were interviewed for a period of time ranging from one-half hour to a half a day, and then sent back into the classroom.

Cullen attended several of the interviews conducted by the police. In addition, he also conducted another series of approximately twenty interviews with students, which he tape recorded, with the school district's attorney present.

Because the interviews she sat in on were proceeding too fast to transcribe everything, Oppergard tried to summarize what the students told the police. Oppergard took notes of the police interviews she attended and testified that Cullen asked her to destroy these notes, which Cullen denied. Upon request at trial to produce his tapes, Cullen stated that he did not have them and did not know where they were. Those tape recordings have apparently disappeared. Her notes, therefore, represent the only contemporaneous record of the numerous and extensive interviews of these students.

Cullen was a key witness for the People. To attempt to explain the discrepancy between the allegations of students that the defendant was touching people improperly, and the fact that many adults in the school building who went into the defendant's classroom unannounced never saw the defendant improperly touching anyone, Cullen offered into evidence an "early warning system" adopted by the defendant. The essence of this testimony was that the placement of the defendant's desk provided the defendant an early warning system to detect individuals who were about to walk into his classroom. According to Cullen, a 3-foot shadow would precede a person's going into the classroom, thereby giving the defendant about 2 seconds to pull his hands out of the pants or shirt of a female student (or 3 or 4 seconds if the door was closed).

Following Cullen's testimony, several former students testified that during class, in the presence of other students, while at his desk, the defendant put his hand under the victims' shirts, rubbed...