People v. Bowring, No. 93CA1672

Docket NºNo. 93CA1672
Citation902 P.2d 911
Case DateMarch 23, 1995
CourtCourt of Appeals of Colorado

Page 911

902 P.2d 911
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
John B. BOWRING, Defendant-Appellant.
No. 93CA1672.
Colorado Court of Appeals,
Div. I.
March 23, 1995.
Rehearing Denied April 27, 1995.
Certiorari Denied Sept. 25, 1995.

Page 914

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

David F. Vela, State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge MARQUEZ.

Defendant, John B. Bowring, appeals the judgment of conviction entered upon jury verdicts convicting him of sexual assault on a child as a pattern of sexual abuse and aggravated incest. He also appeals the sentence imposed. We affirm the judgment, but vacate the sentence in part and remand with directions.

Page 915

The offenses for which defendant was convicted were based on evidence of defendant's sexual contact with his thirteen-year-old daughter. Defendant gave police a statement that he had been having sexual relations with his daughter for about thirteen months. At trial, however, he asserted a defense of general denial. The victim testified to many incidents of sexual molestation beginning when she was ten years old, including a sexual assault on April 22, 1992. Also, the victim's brother testified that he saw defendant and the victim having sex and that defendant instructed him to have sex with the victim.

In addition to being sentenced to two concurrent thirty-two-year terms in the Department of Corrections, defendant was ordered to pay sex offender surcharges on each count pursuant to § 18-21-103, C.R.S. (1994 Cum.Supp.) and § 24-4.2-104, C.R.S. (1994 Cum.Supp.).

I.

Defendant initially asserts that the pattern of sexual abuse provision, § 18-3-405(2)(c), C.R.S. (1994 Cum.Supp.), violates a defendant's state and federal guarantees of due process and equal protection in that it allows the prosecution to introduce evidence of alleged uncharged crimes of the accused without having to comply with the procedural safeguards afforded by § 16-10-301, C.R.S. (1994 Cum.Supp.), CRE 404(b), and case law on this issue, which insure against convictions based upon uncharged conduct. We reject these assertions.

Section 16-10-301 sets forth the circumstances under which evidence of similar transactions may be introduced in cases involving sexual assault.

CRE 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Further, in order to admit other crime evidence, the trial court must make findings as required by the four-part test set forth in People v. Spoto, 795 P.2d 1314 (Colo.1990). And, before admitting such evidence, the trial court, on the basis of all the evidence before it, must be satisfied by a preponderance of the evidence that the other crimes occurred and that the defendant committed them. People v. Garner, 806 P.2d 366 (Colo.1991).

Section 18-3-405, C.R.S. (1994 Cum.Supp.) provides in relevant part:

(2) Sexual assault on a child is a class 4 felony, but it is a class 3 felony if:

....

(c) The actor commits the offense as a part of a pattern of sexual abuse. No specific date or time must be alleged for the pattern of sexual abuse; except that the acts constituting the pattern of sexual abuse must have been committed within ten years of the offense charged in the information or indictment. The offense charged in the information or indictment shall constitute one of the incidents of sexual contact involving a child necessary to form a pattern of sexual abuse as defined in section 18-3-401(2.5).

Section 18-3-401(2.5), C.R.S. (1994 Cum.Supp.) states:

'Pattern of sexual abuse' means the commission of two or more incidents of sexual contact involving a child when such offenses are committed by an actor upon the same victim.

Hence, under the statutory language, the basic offense of sexual assault on a child, as defined in § 18-3-405, C.R.S. (1986 Repl.Vol. 8B), is a class 4 felony but, if defendant is convicted under § 18-3-405(2)(c), the offense is classified for sentencing purposes as a class 3 felony and defendant is thereby subject to an enhanced punishment. People v. Longoria, 862 P.2d 266 (Colo.1993).

Although a sentence enhancement provision is not an element of the offense charged, it is similar thereto in that a defendant may not be sentenced at the higher felony level unless the factor enhancing the

Page 916

sentence is proved beyond a reasonable doubt. Armintrout v. People, 864 P.2d 576 (Colo.1993).

Before addressing defendant's specific constitutional challenges, we note that the constitutionality of § 18-3-405 has been upheld on a challenge that it was void for vagueness. People v. Longoria, supra. We further note that a statute is presumed to be constitutional, and the party challenging it has the burden of proving unconstitutionality beyond a reasonable doubt. People v. Janousek, 871 P.2d 1189 (Colo.1994).

A.

We reject defendant's assertion that the statutory provision violates due process.

In a prosecution under § 18-3-405(2)(c) the evidence of multiple incidents of sexual abuse is not similar transaction evidence offered to prove scheme, plan, intent, or design. Rather, it is evidence that forms an integral part of the offense with which the defendant was charged, and no limiting instructions are required. See People v. Graham, 876 P.2d 68 (Colo.App.1994) (rejecting defendant's claim that § 18-3-405(2)(c) unconstitutionally allows for the admission of other crime evidence without proper safeguards).

Therefore, the various types of authority upon which defendant relies are inapplicable in that they govern the admission of similar transaction evidence.

Here, the jury was instructed that the elements of the crime of sexual assault on a child included that the defendant committed the offense on the victim as part of a pattern of sexual abuse. The court also provided the jury with a unanimity instruction, a definition of pattern of sexual abuse, and an instruction that if the jury decided the prosecution had proven each of the elements beyond a reasonable doubt, then defendant should be found guilty. The unanimity instruction also required proof beyond a reasonable doubt.

Thus, as to the admissibility of such evidence on the charge of sexual assault on a child as a pattern of sexual abuse, we view People v. Graham, supra, as dispositive and conclude that defendant's rights to due process were not violated. See People v. Aldrich, 849 P.2d 821 (Colo.App.1992).

We also reject defendant's suggestion that, because two separate counts were charged, bifurcated proceedings were required. This assertion is not supported by any requirement of the statute, nor has defendant cited any authority in this regard.

B.

Defendant further asserts that § 18-3-405(2)(c) violates an accused's equal protection guarantees because it fails to provide appropriate guidelines to insure that an accused charged with pattern sexual abuse receives the same procedural safeguards as those charged with any other crime. We disagree.

The right to equal protection requires that all parties who are similarly situated receive like treatment by the law. In the absence of a fundamental right or suspect classification, neither of which is applicable here, the appropriate standard of constitutional review for an equal protection claim is whether the statutory classification has some rational basis in fact and is reasonably related to a legitimate government interest. People v. Czemerynski, 786 P.2d 1100 (Colo.1990).

The legislative intent in adding the pattern of sexual abuse language to the sentence enhancement statute was to acknowledge the difficulties young children have distinguishing references to time, particularly when a young child is subjected to abuse over a prolonged period, and to proscribe a pattern of conduct which the General Assembly considers to be of greater social consequence and which, therefore, merits greater punishment. People v. Longoria, supra. Thus, classification of those charged with pattern sex offenses involving children has a rational basis in fact and is reasonably related to a legitimate government interest.

Hence, the statute does not violate defendant's equal protection rights.

Page 917

II.

Defendant also contends that the trial court erred in admitting irrelevant and highly prejudicial evidence of uncharged conduct of both defendant and the victim's brother, with no preceding limiting instruction, thus violating his rights to due process and fair trial. Defendant asserts that because he was charged with two counts, pattern sexual abuse and aggravated incest, the pattern evidence could have influenced a verdict on the aggravated incest charge, even though the other crime evidence had not been tested by the safeguards created for that purpose. We disagree.

Section 18-6-302, C.R.S. (1986 Repl.Vol. 8B) provides in pertinent part:

(1) A person commits aggravated incest when he or she knowingly:

(a) ... inflicts sexual penetration or sexual intrusion on or subjects to sexual contact ... his or her natural child, stepchild, or child by adoption.... For the purpose of this paragraph (a) only, "child" means a person under twenty-one years of age.

While the court ruled that evidence of defendant's alleged bad conduct was admissible to show plan, scheme, design, or modus operandi, it did not make the findings described in Garner and Spoto. However, the record indicates that at trial the evidence of other incidents was offered only in connection with the count concerning pattern sexual abuse.

Defendant directs our...

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21 practice notes
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...of other acts of sexual contact is not similar transaction evidence offered to prove scheme, plan, intent, or design. People v. Bowring, 902 P.2d 911, 916 (Colo.App.1995) (evidence of pattern acts not subject to CRE 404(b) procedural safeguards). “Rather, it is evidence that forms an integr......
  • People v. Marko, Court of Appeals No. 11CA0623
    • United States
    • Colorado Court of Appeals of Colorado
    • October 8, 2015
    ...760 (Colo. App. 2006). Accordingly, "[t]he prosecution cannot attempt to shift the burden of proof to the defense." People v. Bowring, 902 P.2d 911, 921 (Colo. App. 1995). ¶ 226 Factors to consider in determining the strength of a prosecutor's burden-shifting actions and whether they have s......
  • Lewis v. Class, No. 19651
    • United States
    • Supreme Court of South Dakota
    • January 15, 1997
    ...meaning and extent of the statutes until they have been formally and explicitly revised. Weaver v. Graham, supra; See People v. Bowring, 902 P.2d 911 ¶18 Lewis argues that the reasoning of Williams v. Lee, 33 F.3d 1010 (8th Cir.1994) supports his position that the suspension of parole super......
  • People v. Tillery, Court of Appeals No. 06CA1853 (Colo. App. 10/1/2009), No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • October 1, 2009
    ...of other acts of sexual contact is not similar transaction evidence offered to prove scheme, plan, intent, or design. People v. Bowring, 902 P.2d 911, 916 (Colo. App. 1995) (evidence of pattern acts not subject to CRE 404(b) procedural safeguards). "Rather, it is evidence that forms an inte......
  • Request a trial to view additional results
21 cases
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...of other acts of sexual contact is not similar transaction evidence offered to prove scheme, plan, intent, or design. People v. Bowring, 902 P.2d 911, 916 (Colo.App.1995) (evidence of pattern acts not subject to CRE 404(b) procedural safeguards). “Rather, it is evidence that forms an integr......
  • People v. Marko, Court of Appeals No. 11CA0623
    • United States
    • Colorado Court of Appeals of Colorado
    • October 8, 2015
    ...760 (Colo. App. 2006). Accordingly, "[t]he prosecution cannot attempt to shift the burden of proof to the defense." People v. Bowring, 902 P.2d 911, 921 (Colo. App. 1995). ¶ 226 Factors to consider in determining the strength of a prosecutor's burden-shifting actions and whether they have s......
  • Lewis v. Class, No. 19651
    • United States
    • Supreme Court of South Dakota
    • January 15, 1997
    ...meaning and extent of the statutes until they have been formally and explicitly revised. Weaver v. Graham, supra; See People v. Bowring, 902 P.2d 911 ¶18 Lewis argues that the reasoning of Williams v. Lee, 33 F.3d 1010 (8th Cir.1994) supports his position that the suspension of parole super......
  • People v. Tillery, Court of Appeals No. 06CA1853 (Colo. App. 10/1/2009), No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • October 1, 2009
    ...of other acts of sexual contact is not similar transaction evidence offered to prove scheme, plan, intent, or design. People v. Bowring, 902 P.2d 911, 916 (Colo. App. 1995) (evidence of pattern acts not subject to CRE 404(b) procedural safeguards). "Rather, it is evidence that forms an inte......
  • Request a trial to view additional results

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