People v. Albo, No. 27601

Docket NºNo. 27601
Citation195 Colo. 102, 575 P.2d 427
Case DateMarch 06, 1978
CourtSupreme Court of Colorado

Page 427

575 P.2d 427
195 Colo. 102
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Joe Pete ALBO, a/k/a Pete Cruz, Defendant-Appellant.
No. 27601.
Supreme Court of Colorado, En Banc.
March 6, 1978.

[195 Colo. 103]

Page 428

J. D. MacFarlane, Atty. Gen., David A. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Sharon S. Metcalf, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Al H. Haas, Durango, for defendant-appellant.

ERICKSON, Justice.

[195 Colo. 104] The defendant-appellant was convicted by a jury of first-degree sexual assault. On appeal, the central issue is interpretation of the first-degree sexual assault statute. Section 18-3-402(1)(b), C.R.S.1973 (1976 Supp.), provides that a person who inflicts sexual penetration on a victim commits sexual assault in the first degree if:

"(b) The actor causes submission of the victim by threat of imminent death, serious bodily injury, extreme pain, or kidnapping, to be inflicted on anyone, and the victim believes that the actor has the present ability to execute these threats;"

The defendant asserts that the term "extreme pain," as set forth in the first-degree sexual assault statute, is unconstitutionally vague and overbroad. As further grounds for reversal, the defendant contends that the information fails to charge an offense and that the prosecution failed to produce evidence which would sustain a conviction. We affirm.

I.

The Facts

The victim in this case was a twenty-year-old waitress who lived with friends in a duplex in Durango. On the night of the alleged rape, she arrived home from work at approximately 10:30, and shortly thereafter she retired. At approximately 2:00 a. m., she was awakened by strange noises. She called out to determine whether it was one of the other occupants of the duplex and received an affirmative response. The intruder then entered her room and advised her that he was not going to rape her. The victim asked the intruder to leave and said that she didn't want to get hurt and didn't like pain. At that point, the defendant told her to move over and he would show her some pain. The victim was threatened with something that the defendant had around his waist and which emitted clicking sounds. She submitted to sexual intercourse and pretended to enjoy it, in an attempt to avoid the infliction of pain or injury. After intercourse, the defendant remained in bed with her and tried to arrange a meeting on another occasion. He then dressed and left.

The victim promptly reported the incident to the police, underwent a medical examination, and gave a full statement and description of the defendant. The police investigation produced a fingerprint on a window adjacent to the victim's room, which had been used to obtain entrance. The victim's description and the fingerprint provided a basis for the defendant's identification. The police saw the defendant on the following morning outside the police station wearing basically the same clothes which the victim asserted the defendant was wearing when he entered her bedroom.

II.

"Extreme Pain"

The term "extreme pain" is not so vague or overbroad as to render the first-

Page 429

degree sexual assault statute unconstitutional. Section 18-3-402(1)(b), C.R.S.1973 (1976 Supp.), includes threat of "extreme pain" [195 Colo. 105] as a measure of criminal conduct and as a gauge for determining whether the threat was the cause for the victim's submission to sexual intercourse.

In reviewing a constitutional challenge of a statute, we initially presume that the statute is constitutional. The defendant, in asserting his claim that...

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36 practice notes
  • Rathke v. MacFarlane, No. 81SA263
    • United States
    • Colorado Supreme Court of Colorado
    • 19 July 1982
    ...reasonable doubt. See, e.g., Bollier v. People, 635 P.2d 543 (Colo.1981); People ex rel. C. M., 630 P.2d 593 (Colo.1981); People v. Albo, 195 Colo. 102, 575 P.2d 427 (1978); Clark v. People, 176 Colo. 48, 488 P.2d 1097 (1971). The weight of the presumption of constitutionality is even great......
  • People v. Gutierrez, No. 79SA370
    • United States
    • Colorado Supreme Court of Colorado
    • 19 January 1981
    ...has the burden of establishing the unconstitutionality of a statute, as applied, beyond a reasonable doubt, e. g., People v. Albo, 195 Colo. 102, 575 P.2d 427 (1978); People v. Gonzales, 188 Colo. 272, 534 P.2d 626 We must determine whether in prescribing a specific inflexible sentence to l......
  • People v. Marcy, No. 80SA303
    • United States
    • Colorado Supreme Court of Colorado
    • 9 March 1981
    ...supra. In conducting our review, the defendant has the burden of proving unconstitutionality beyond a reasonable doubt. People v. Albo, 195 Colo. 102, 575 P.2d 427 (1978); People v. Sneed, supra; Howe v. People, 178 Colo. 248, 496 P.2d 1040 In the present case, the majority's interpretation......
  • People v. Rodriguez, No. 91SA112
    • United States
    • Colorado Supreme Court of Colorado
    • 11 March 1996
    ...are prejudiced. The defendant is entitled to reversal if he was prejudiced, surprised, or hampered in his defense." People v. Albo, 195 Colo. 102, 106, 575 P.2d 427, 429 (1978). The record before us indicates no prejudice of Rodriguez' "substantial rights," 28 nor does Rodriguez point to an......
  • Request a trial to view additional results
36 cases
  • Rathke v. MacFarlane, No. 81SA263
    • United States
    • Colorado Supreme Court of Colorado
    • 19 July 1982
    ...reasonable doubt. See, e.g., Bollier v. People, 635 P.2d 543 (Colo.1981); People ex rel. C. M., 630 P.2d 593 (Colo.1981); People v. Albo, 195 Colo. 102, 575 P.2d 427 (1978); Clark v. People, 176 Colo. 48, 488 P.2d 1097 (1971). The weight of the presumption of constitutionality is even great......
  • People v. Gutierrez, No. 79SA370
    • United States
    • Colorado Supreme Court of Colorado
    • 19 January 1981
    ...has the burden of establishing the unconstitutionality of a statute, as applied, beyond a reasonable doubt, e. g., People v. Albo, 195 Colo. 102, 575 P.2d 427 (1978); People v. Gonzales, 188 Colo. 272, 534 P.2d 626 We must determine whether in prescribing a specific inflexible sentence to l......
  • People v. Marcy, No. 80SA303
    • United States
    • Colorado Supreme Court of Colorado
    • 9 March 1981
    ...supra. In conducting our review, the defendant has the burden of proving unconstitutionality beyond a reasonable doubt. People v. Albo, 195 Colo. 102, 575 P.2d 427 (1978); People v. Sneed, supra; Howe v. People, 178 Colo. 248, 496 P.2d 1040 In the present case, the majority's interpretation......
  • People v. Rodriguez, No. 91SA112
    • United States
    • Colorado Supreme Court of Colorado
    • 11 March 1996
    ...are prejudiced. The defendant is entitled to reversal if he was prejudiced, surprised, or hampered in his defense." People v. Albo, 195 Colo. 102, 106, 575 P.2d 427, 429 (1978). The record before us indicates no prejudice of Rodriguez' "substantial rights," 28 nor does Rodriguez point to an......
  • Request a trial to view additional results

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