People v. Bath

• Decision Date: 02 June 1994
• Docket Number: No. 93CA0519,93CA0519
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David E. BATH and Jeffrey W. Giardina, Defendants-Appellants. . V
• Court: Colorado Court of Appeals

Page 269

890 P.2d 269

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David E. BATH and Jeffrey W. Giardina, Defendants-Appellants.

No. 93CA0519.

Colorado Court of Appeals Div. V.

June 2, 1994.

As Modified on Denial of Rehearing

July 7, 1994.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., A. William Bonner, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Keller, Wahlberg and Morrato, P.C., Alex S. Keller, David A. Ogilvie, P.C., David Ogilvie, Denver, for defendants-appellants.

Opinion by Judge NEY.

Defendants, David Eugene Bath and Jeffrey William Giardina, appeal the judgment of conviction finding them guilty of sexual exploitation of children and of conspiracy. We reverse and remand with instructions.

Defendants participated in a party held on March 5, 1991, in a local motel room. Five of the six people attending, including defendants, took part in various sexual activities while the sixth person videotaped the happenings. All of the participants were over eighteen years of age, with the exception of the victim who was born on May 24, 1973, and was therefore seventeen years, nine months old at the time of the event.

Some time later a copy of the videotape and other materials were brought to the police. Thereafter, defendants were charged with two counts of sexual exploitation of children in violation of § 18-6-403, C.R.S. (1986 Repl.Vol. 8B) and one count of conspiracy in violation of § 18-2-201, C.R.S. (1986 Repl.Vol. 8B).

Upon a trial to the court, they were found guilty as charged. As a result, defendants were sentenced to three years' conditioned probation. This appeal followed.

I.

Defendants contend that the trial court erred in ruling that the People were not required to prove defendants had actual knowledge that one of the participants was under eighteen years of age and in applying the affirmative defense provisions of § 18-3-406(1), C.R.S. (1986 Repl.Vol. 8B). We do not agree.

A.

The pertinent portions of § 18-6-403 state:

(2)(a) Child means a person who is less than eighteen years of age.

(3) A person commits sexual exploitation of a child if, for any purpose, he knowingly:

(a) Causes, induces, entices, or permits a child to engage in, or be used for, any explicit sexual conduct for any commercial purpose or the making of any sexually exploitative material; or

(b) Prepares, arranges for, publishes, produces, promotes, makes, sells, finances, offers, exhibits, advertises, deals in, or distributes any sexually exploitative material. (emphasis added)

Section 18-3-406, C.R.S. (1986 Repl.Vol. 8B) provides:

(1) If the criminality of conduct depends on a child's being below the age of eighteen and the child was in fact at least fifteen years of age, it shall be an affirmative defense that the defendant reasonably believed the child to be eighteen years of age or older.

(2) If the criminality of conduct depends upon a child being below the age of fifteen, it shall be no defense that the defendant did not know the child's age or that he reasonably believed the child to be fifteen years of age or older. (emphasis added)

When a statute defining an offense prescribes as an element thereof a specified culpable mental state, the mental state is deemed to apply to every element of the offense unless an intent to limit its application clearly appears. Section 18-1-503(4), C.R.S. (1986 Repl.Vol. 8B). Accordingly, absent a clear intent to the contrary, the requisite mental state of "knowingly" must be deemed to apply to every element of the offense of sexual exploitation of a child, including the element of age. See People v. Trevino, 826 P.2d 399 (Colo.App.1991).

The trial court concluded that the affirmative defense provision eliminates the culpable mental state as to age prescribed by § 18-6-403(3), "knowingly," and replaces it with that prescribed by § 18-3-406(1), "[lack of] reasonable belief." We agree with the trial court that this is the correct standard. We thereby reject the People's primary contention that no element of scienter applies to the age of the victim. Indeed, our supreme court has held that, under the First Amendment, an element of scienter is required for § 18-6-403(3)(b) to be constitutional. People v. Batchelor, 800 P.2d 599 (Colo.1990).

We conclude that § 18-3-406(1), C.R.S. (1986 Repl.Vol. 8B), providing for the affirmative defense of reasonable belief, manifests a clear legislative intent that the culpable mental state of "knowingly" does not apply to the age of the victim.

We note that the General Assembly has amply demonstrated its ability to limit the application of the affirmative defense and create an offense of strict liability in which no proof of culpable mental state related to age is required. For example, in addition to § 18-3-406(2), C.R.S. (1986 Repl.Vol. 8B) (when child is below age fifteen), § 18-7-407, C.R.S. (1986 Repl.Vol. 8B) states that, in prosecutions for child prostitution, "it shall be no defense that the defendant did not know the child's age or that he reasonably believed the child to be eighteen years of age or older." See also People v. Suazo, 867 P.2d 161 (Colo.App.1993) (plain language of assault on elderly statute creates an offense of strict liability).

We, therefore, perceive no error in the conclusion of the trial court that defendants sufficiently raised the affirmative defense that they "reasonably believed" the child to be at least eighteen. Lybarger v. People, 807 P.2d 570 (Colo.1991) (question of whether there is credible evidence to support an affirmative defense is for the trial court).

B.

Even though we agree that the trial court correctly determined that defendants, by presenting credible evidence on the issue, had invoked the affirmative defense contained in 18-3-406(1), the prosecution still bore the burden of establishing defendants' guilt beyond a reasonable doubt "as to that issue as well as all other elements of the offense." Section 18-1-407(2), C.R.S. (1986 Repl.Vol. 8B).

The trial court found that...