People v. Anderson, No. 05CA0426.

Docket NºNo. 05CA0426.
Citation183 P.3d 649
Case DateDecember 13, 2007
CourtCourt of Appeals of Colorado
183 P.3d 649
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Michael Jerome ANDERSON, Defendant-Appellant.
No. 05CA0426.
Colorado Court of Appeals, Div. I.
December 13, 2007.
Certiorari Denied May 27, 2008.

[183 P.3d 650]

John W. Suthers, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge ROY.


Defendant, Michael Jerome Anderson, appeals the judgment of conviction entered upon a jury verdict finding him guilty of four counts of sexual assault on a child as a pattern of abuse, four counts of sexual assault on a child by one in a position of trust, and a mandatory sentencing enhancer for bodily injury during a sexual offense. He also appeals the enhanced sentence. We affirm.

A thirteen-year-old boy (the victim) reported to the police that he had been orally and anally sexually assaulted by defendant, who was living with the victim and the victim's mother and sister. The victim described to the responding officer five separate incidents of sexual abuse beginning in the prior year. The officer then took the victim to a hospital for an examination.

At the hospital, the victim informed a doctor that he had been molested by defendant ten or eleven times. An examination of the victim revealed scarring on the victim's anus which could have been caused by a sexual assault, but for which there were also other possible causes. After his examination, the victim described two of the incidents of sexual abuse in some detail to a second officer. The victim later received a second physical examination, which also revealed scarring consistent with, among other things, sexual abuse.

Defendant was charged with four counts of sexual assault on a child-pattern, sections 18-3-405(1), (2)(d), C.R.S.2007; four counts of sexual assault-position of trust, section 18-3-405.3, C.R.S.2007; three counts of second degree sexual assault, Ch. 127, sec. 1, § 18-3-403(1)(e), 1988 Colo. Sess. Laws 725 (now codified as section 18-3-402(1)(e), C.R.S. 2007); and a mandatory sentencing enhancer for a crime of violence-bodily injury during a sexual offense applicable to all the sexual assault counts, Ch. 287, sec. 3, § 16-11-309(2)(a)-(b), 1994 Colo. Sess. Laws 1715-16 (now codified as section 18-1.3-406(2)(a)-(b), C.R.S.2007). All the offenses were alleged to have occurred between January 1, 1998 and February 17, 1999. Prior to trial, the prosecution dismissed the three counts of second

183 P.3d 651

degree sexual assault, and the jury returned verdicts of guilty on the remaining counts.

Defendant was sentenced to consecutive ten-year sentences to the Department of Corrections (DOC) on three counts of sexual assault on a child-pattern of abuse, each sentence concurrent with the corresponding ten-year sentences for three counts of sexual assault on a child-position of trust. In addition, defendant was sentenced to eight years to life on the fourth count of sexual assault on a child-pattern of abuse, to be served consecutively to the sentences for the other pattern of abuse counts and concurrently with the sentence of eight years to life for the corresponding count of sexual assault on a child-position of trust. Thus, the total sentence is thirty-eight years to life in the DOC with mandatory parole.

I.

Defendant argues that the trial court erred in excusing a seated juror from service and replacing her with an alternate outside the presence of, and without notice to, defendant or his counsel. We disagree.

On the second day of trial the court received a telephone call from a distraught member of the jury who reported that her son had just been removed from her home in handcuffs. The juror requested to be relieved of her duties. The trial court summarily granted the request outside the presence of, and without notice to, defendant or his counsel.

The trial court later informed both counsel that the juror had been excused, at which time defense counsel was given an opportunity to object or to make a further record on the matter. Defense counsel declined to do so. The court then informed both counsel that an alternate juror, who had been passed for cause and not otherwise challenged, would serve in place of the excused juror.

On appeal, defendant does not argue that the trial court lacked the authority to excuse the juror. See People v. Abbott, 690 P.2d 1263, 1268 (Colo. 1984) (excusing a juror whose wife had been admitted to the hospital and substituting an alternate juror is within discretion of the trial court); People v. Johnson,...

To continue reading

Request your trial
9 practice notes
  • Blood v. Qwest Services Corp., No. 08CA0134.
    • United States
    • Colorado Court of Appeals of Colorado
    • April 30, 2009
    ...instruction is insufficient. See People v. Goldsberry, 181 224 P.3d 334 Colo. 406, 410, 509 P.2d 801, 803 (1973); People v. Anderson, 183 P.3d 649, 652 (Colo. App.2007); but see Roget v. Grand Pontiac, Inc., 5 P.3d 341, 347 (Colo.App.1999) (objectionable characterization of evidence during ......
  • Qwest Serv. Corp.. v. Blood, No. 09SC534.
    • United States
    • Colorado Supreme Court of Colorado
    • June 20, 2011
    ...was afforded the opportunity, of which he did not take advantage, of submitting additional curative instructions.”); People v. Anderson, 183 P.3d 649, 651–52 (Colo.App.2007) (presuming that jury followed curative instruction to disregard inadmissible testimony, in a sexual assault on a chil......
  • People v. Mollaun, No. 06CA1025.
    • United States
    • Colorado Court of Appeals of Colorado
    • May 15, 2008
    ...a defendant fails to make a timely and sufficient objection during the trial, appellate review is for plain error); People v. Anderson, 183 P.3d 649, 652, 2007 WL 4336313 (Colo. App. No. 05CA0426, Dec. 13, 2007) (reviewing contention for plain error where the defendant did not make a contem......
  • U.S. Fax Law Center v. T2 Technologies, No. 06CA0432.
    • United States
    • Colorado Court of Appeals of Colorado
    • December 13, 2007
    ...First Interstate Bank v. Berenbaum, 872 P.2d 1297, 1302 (Colo.App.1993) (where only one claim was dismissed under C.R.C.P. 12(b), award of 183 P.3d 649 attorney fees under section 13-17-201 was contrary to plain language of Here, in addition to the TCPA and CCPA claims, plaintiff's complain......
  • Request a trial to view additional results
9 cases
  • Blood v. Qwest Services Corp., No. 08CA0134.
    • United States
    • Colorado Court of Appeals of Colorado
    • April 30, 2009
    ...instruction is insufficient. See People v. Goldsberry, 181 224 P.3d 334 Colo. 406, 410, 509 P.2d 801, 803 (1973); People v. Anderson, 183 P.3d 649, 652 (Colo. App.2007); but see Roget v. Grand Pontiac, Inc., 5 P.3d 341, 347 (Colo.App.1999) (objectionable characterization of evidence during ......
  • Qwest Serv. Corp.. v. Blood, No. 09SC534.
    • United States
    • Colorado Supreme Court of Colorado
    • June 20, 2011
    ...was afforded the opportunity, of which he did not take advantage, of submitting additional curative instructions.”); People v. Anderson, 183 P.3d 649, 651–52 (Colo.App.2007) (presuming that jury followed curative instruction to disregard inadmissible testimony, in a sexual assault on a chil......
  • People v. Mollaun, No. 06CA1025.
    • United States
    • Colorado Court of Appeals of Colorado
    • May 15, 2008
    ...a defendant fails to make a timely and sufficient objection during the trial, appellate review is for plain error); People v. Anderson, 183 P.3d 649, 652, 2007 WL 4336313 (Colo. App. No. 05CA0426, Dec. 13, 2007) (reviewing contention for plain error where the defendant did not make a contem......
  • U.S. Fax Law Center v. T2 Technologies, No. 06CA0432.
    • United States
    • Colorado Court of Appeals of Colorado
    • December 13, 2007
    ...First Interstate Bank v. Berenbaum, 872 P.2d 1297, 1302 (Colo.App.1993) (where only one claim was dismissed under C.R.C.P. 12(b), award of 183 P.3d 649 attorney fees under section 13-17-201 was contrary to plain language of Here, in addition to the TCPA and CCPA claims, plaintiff's complain......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT