People v. Baker
Decision Date | 04 October 2007 |
Docket Number | No. 04CA0514.,04CA0514. |
Citation | 178 P.3d 1225 |
Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Bobby L. BAKER, Defendant-Appellant. |
Court | Colorado Court of Appeals |
Opinion by Judge TERRY.
This appeal raises an issue of first impression as to whether a defendant's conviction of extreme indifference first degree assault can stand where the defendant's conduct was directed at a single individual. We conclude the extreme indifference first degree assault statute, § 18-3-202(1)(c), C.R.S.2007, contains no requirement that universal malice be proved, and therefore a conviction for extreme indifference first degree assault may be upheld where the defendant's conduct is directed at a single individual. We further address defendant's challenges to his convictions, aggravation of the offenses, and his sentencing.
Defendant, Bobby L. Baker, appeals the judgment of conviction entered upon jury verdicts finding him guilty of first degree assault, second degree kidnapping, and five counts of sexual assault. He also appeals the sentence imposed. We vacate the jury's finding of the class three felony aggravator under section 18-3-402(4)(c), C.R.S.2007, as to one sexual assault count, and we affirm the judgment and sentence in all other respects.
The sixteen-year-old victim lived with her grandmother and with defendant, who is her step-grandfather. In February 2001, while defendant and the victim were home alone together, defendant convinced the victim to take two sleeping pills with a beverage containing wine. He then picked up the victim and carried her to his bedroom, where he dropped her on the bed and twisted her arm behind her back. When the victim resisted, defendant manually choked her until she lost consciousness.
When she regained consciousness, she was on her back on defendant's bed, with a rope binding her hands behind her back and also tied around her neck. Defendant told the victim that if she screamed, yelled, or resisted, he would kill her. When she screamed, defendant choked her by pressing a pillow in her face, telling her that he would only let go if she stopped screaming. He then sexually assaulted her. After the assault, defendant removed the rope, and told her that if she told anyone about what had happened, he would kill her and her entire family.
As a result of the assault, the victim suffered severe bruising around her neck, severe hemorrhaging of the blood vessels in her eyes, and injury to her genitals.
Following a jury trial, defendant was found guilty of extreme indifference first degree assault, second degree kidnapping of a victim of a sexual assault, and five counts of sexual assault, including two aggravated counts: one for causing submission of the victim by threats of imminent harm and one for causing her submission by threats of future harm. Defendant was sentenced to consecutive twenty-four-year terms in the Department of Corrections for the first degree assault and second degree kidnapping counts, and a consecutive sentence of twenty-four years to life imprisonment for the sexual assaults, plus mandatory parole of twenty years to life.
Defendant contends his conviction for extreme indifference first degree assault must be vacated because (1) extreme indifference assault, like first degree extreme indifference murder, requires proof of universal malice against human life "generally," and not conduct directed against a single individual; and (2) his conduct was directed at a single individual. We are not persuaded.
The interpretation of statutes is a question of law subject to de novo review. People v. Frazier, 77 P.3d 838, 839 (Colo. App.2003), aff'd, 90 P.3d 807 (Colo.2004).
Defendant was convicted of first degree extreme indifference assault. The elements of this crime are:
A person commits the crime of assault in the first degree if:
...
(c) [u]nder circumstances manifesting extreme indifference to the value of human life, he knowingly engages in conduct which creates a grave risk of death to another person, and thereby causes serious bodily injury to any person....
We disagree that first degree extreme indifference assault contains a requirement of universal malice. The assault statute does not contain the phrase "universal malice." Furthermore, the concept of "universal malice" in the murder statute is based on the distinct history of that statute. Because a similar history does not exist regarding the assault statute, we conclude that the assault statute contains no universal malice requirement.
As the statute defining first degree extreme indifference murder existed in 1971, it was strikingly similar to the current first degree extreme indifference assault statute. The 1971 statute provided that a person committed the crime of first degree extreme indifference murder if, "under circumstances manifesting extreme indifference to the value of human life, he intentionally engage[d] in conduct which create[d] a grave risk of death to a person other than himself, and thereby cause[d] the death of another." Ch. 121, sec. 1, § 40-3-102(1)(d), 1971 Colo. Sess. Laws at 418.
The supreme court interpreted the 1971 version of the statute in People v. Jones, 193 Colo. 250, 565 P.2d 1333 (1977), and rejected the defendant's argument in that case, that the only way to distinguish first degree extreme indifference murder from criminally negligent homicide was to include universal malice in the culpability required for murder. The supreme court stated:
To agree with the defendant, we would have to construe section (1)(d) of the first-degree murder statute as prohibiting conduct that greatly endangers many people as opposed to a single person. The statute is not that exclusive; in fact, it refers to "conduct which creates a grave risk of death to a person...."
In 1977, the statute was amended by substituting "knowingly" for "intentionally" as the applicable mens rea for the crime. People v. Jefferson, 748 P.2d 1223, 1229 (Colo. 1988). However, the supreme court in People v. Marcy, 628 P.2d 69, 79 (Colo.1981), held that the 1977 version of the statute violated the equal protection of the laws under article II, section 25 of the Colorado Constitution because it was not reasonably distinguishable from the statutory definition of murder in the second degree. See Jefferson, 748 P.2d at 1229.
In 1981, the General Assembly adopted an amended version of first degree extreme indifference murder, which is still in effect today, and provides:
(1) A person commits the crime of murder in the first degree if:
...
(d) Under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, he knowingly engages in conduct which creates a grave risk of death to a person, or persons, other than himself, and thereby causes the death of another....
§ 18-3-102, C.R.S.2007 (emphasis reflects 1981 changes).
The added language reflected the General Assembly's intent to limit the application of first degree extreme indifference murder to situations in which the defendant demonstrates an indifference to human life generally, as distinguished from indifference to, or willingness to take, a particular human life. Jefferson, 748 P.2d at 1232 ( ); see also Candelaria v. People, 148 P.3d 178, 181-82 (Colo.2006).
Comparing the extreme indifference first degree murder statute as it exists now and as it existed when Jones was decided, it is clear that the requirement that a defendant act with "a willingness to take human life indiscriminately, without knowing or caring who the victim may be," id. at 181, was not an element of extreme indifference first degree murder until section 18-3-102 was amended in 1981 to add the phrase "universal malice."
Like the 1971 extreme indifference first degree murder statute analyzed in Jones, and unlike the current version of that statute section 18-3-202(1)(c) defining extreme indifference first degree assault does not include "universal malice" as an element of the crime. Moreover, section 18-3-202(1)(c), like the statute analyzed in Jones, specifically references conduct "which creates a grave risk of death to another person." See Jones, 193 Colo. at 254, 565 P.2d at 1336. Because of the distinctions between the current extreme indifference first degree murder and assault statutes, we conclude that a finding of "universal malice" was not required for the jury to convict defendant of extreme indifference first degree assault under section 18-3-202.
Defendant contends the trial court erred when it admitted evidence that, seven years before the sexual assault charged here, he committed a sexual assault on a different victim in New Mexico. We disagree.
The General Assembly has declared that, in the prosecution of sex offenses, "evidence of other sexual acts [of the defendant] is typically relevant and highly probative, and it is expected that normally the probative value of such evidence will outweigh any danger of unfair prejudice." § 16-10-301(1), C.R.S.2007. Introduction of other acts evidence must comport with CRE 404(b), and must not infringe upon the defendant's constitutional due process rights. See People v. Rath, 44 P.3d 1033, 1037-38 (Colo.2002).
Section 16-10-301(3), C.R.S.2007, provides, in relevant part: "The prosecution may introduce evidence of other acts of the defendant to prove the commission of...
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