People v. Brown, 00CA0821.

• Decision Date: 09 May 2002
• Docket Number: No. 00CA0821.,00CA0821.
• Citation: 70 P.3d 489
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brett Dewitt BROWN, Defendant-Appellant.
• Court: Colorado Court of Appeals

70 P.3d 489

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brett Dewitt BROWN, Defendant-Appellant.

No. 00CA0821.

Colorado Court of Appeals, Div. IV.

May 9, 2002.

As Modified on Denial of Rehearing October 31, 2002.

Certiorari Denied May 19, 2003.

Ken Salazar, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge TAUBMAN.

Defendant, Brett Dewitt Brown, appeals the judgment of conviction entered on a jury verdict finding him guilty of two counts of sexual assault on a child—pattern (counts one and two) and one count each of attempted aggravated incest, attempted sexual assault on a child—position of trust, attempted incest, and attempted first degree sexual assault. He also appeals the sentence imposed. We affirm in part, reverse in part, and remand for further proceedings.

The charges involved three victims, two of whom were defendant's nieces. The two pattern counts alleged that defendant sexually abused victim K.B. twice between September 6, 1995 and December 31, 1998, during which time she was under the age of fifteen. The remaining counts involved R.B., defendant's other niece, and a teenage friend of R.B.

The evidence at trial established that defendant had sexually assaulted the victims on six different occasions while they slept at the house where he lived with one niece's father.

Counts one and two were based on two sexual assaults against K.B. For each count, one sexual assault was asserted to be the predicate act, while the other was alleged to be an incident of sexual contact involving a child, which was necessary to establish a conviction of sexual assault on a child—pattern.

I. Sexual Assault on a Child— Jury Instructions

Defendant contends that his convictions for counts one and two should be vacated because the jury verdict form did not require that the jury make a unanimous finding that defendant committed the predicate offense of sexual assault on a child separate and apart from the pattern determination. We conclude the verdict form was incorrect, but the error does not rise to the level of plain error. Notwithstanding defendant's contention that we should review this issue for structural error or constitutional plain error, we note that defendant did not object either to the jury instructions defining the offense of child sexual assault or to the jury verdict forms. See Griego v. People, 19 P.3d 1, 8 (Colo.2001)

(holding that a jury instruction that is erroneous, because it either omits or misdescribes an element of the offense, is not subject to structural error analysis, but instead constitutes trial error subject only to constitutional harmless or plain error review). Thus, we review his claims of instructional error for plain error only. Under this standard, defendant must demonstrate not only that the error, if any, affected a substantial right, but also that there is a reasonable possibility that such error contributed to his conviction. See People v. Hansen, 920 P.2d 831 (Colo.App.1995).

Section 18-3-405(1), C.R.S.2001, defines sexual assault on a child. It provides as follows: "Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child if the victim is less than fifteen years of age and the actor is at least four years older than the victim." The jury was instructed accordingly.

Section 18-3-405(2), C.R.S.2001, designates the crime as a class 4 felony, but specifies that it becomes a class 3 felony if:

(d) 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 prior to 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.2001, in turn, defines a "pattern of sexual abuse" as "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."

Under § 18-3-405(2)(d), a "pattern of sexual abuse" is a sentence enhancement that, like the substantive predicate offense, must be proven beyond a reasonable doubt. See People v. Longoria, 862 P.2d 266 (Colo. 1993)

; People v. Luman, 994 P.2d 432, 438 (Colo.App.1999).

If a defendant is convicted of sexual assault on a child—pattern, pursuant to § 18-3-405(2)(d), the court is required to sentence the defendant in accordance with the mandatory sentencing provision for violent crimes under § 16-11-309, C.R.S.2001. Section 18-3-405(3), C.R.S.2001.

The violent crimes sentencing provision provides that: "A person convicted of two or more separate crimes of violence arising out of the same incident shall be sentenced for such crimes so that sentences are served consecutively rather than concurrently." Section 16-11-309(1)(a), C.R.S.2001.

Here, although the jury was not provided with a separate pattern offense instruction, the identical jury verdict form was used for counts one and two, which stated:

II. * We, the jury, find the defendant, BRETT DEWITT BROWN, NOT GUILTY of SEXUAL ASSAULT ON A CHILD—PATTERN.

_________________________

FOREPERSON

II. * We, the jury, find the defendant, BRETT DEWITT BROWN, GUILTY of SEXUAL ASSAULT ON A CHILD—PATTERN.

_________________________

FOREPERSON

* The foreperson may sign only one of the above (I or II). If the verdict is NOT GUILTY, then I. Above should be signed. If the verdict is GUILTY, then II. Above should be signed.

* If you find the defendant guilty of SEXUAL ASSAULT ON A CHILD—PATTERN, you must also complete this section by placing, in ink, a "X" in the appropriate box indicating your decision. ONLY ONE SQUARE may be filled in, with the remainder to remain unmarked.

* * [ ] We, the jury, unanimously find, beyond a reasonable doubt that the defendant committed two or more incidents of sexual contact with the victim described by the evidence between September 6, 1995 and December 31, 1998. The jurors must unanimously agree that the same two or more acts have been proven beyond a reasonable doubt.

* * [ ] We, the jury, unanimously find, beyond a reasonable doubt that the defendant committed all the acts of sexual contact described by the evidence between September 6, 1995 and December 31, 1998.

___________________________

FOREPERSON

The jury was informed—through the evidence and closing arguments—of the two incidents upon which the prosecution relied for the predicate acts of sexual assault on a child. The prosecution referred to these incidents as the "first touching incident," describing the predicate act for count one, and the "booby incident," describing the predicate act for count two. The prosecution presented no evidence of any other incidents of sexual assault on a child related to K.B.

The jury found defendant guilty of both counts of sexual assault on a child—pattern and found that defendant had committed two or more incidents of sexual contact with the victim.

Defendant contends that the jury verdict form language is confusing and ambiguous because the jury was instructed to complete the verdict form for "SEXUAL ASSAULT ON A CHILD—PATTERN," rather than for sexual assault on a child. We agree that the jury verdict form should not have included the word "pattern," because pattern is a sentence enhancement, not a separate offense. See People v. Bowring, 902 P.2d 911, 919 (Colo.App.1995)

. Accordingly, the jury verdict forms should have required the jurors to determine whether defendant was guilty of sexual assault on a child, for counts one and two, with interrogatories then used to determine whether the pattern sexual abuse allegations had been established. See People v. Hoefer, 961 P.2d 563 (Colo.App. 1998); cf. People v. Garcia, 28 P.3d 340 (Colo.2001)(jury instructions must state that jury must first determine whether defendant is guilty of second degree murder; then it may consider sentence mitigator of provocation).

However, we conclude that this mistake was not plain error because there is no reasonable possibility that this error contributed to defendant's convictions. Based on the instructions, the interrogatory, and the testimony describing only two incidents, the jury could not have convicted defendant without unanimously finding that he had committed the two alleged acts of sexual abuse. See People v. Hansen, supra, 920 P.2d at 837

(noting that appellate courts presume that the jury followed the instructions). Accordingly, the error in the verdict form does not undermine our confidence in the jury's verdict. See People v. Melillo, 976 P.2d 353 (Colo.App.1998)(§ 18-3-405(1) defines the offense, and § 18-3-405(2) merely describes circumstances that, if present, elevate the crime to a class 3 felony),

rev'd on other grounds,

25 P.3d 769 (Colo.2001); see also People v. Honeysette, 53 P.3d 714, 2002 WL 5518 (Colo.App. No. 00CA0331, Jan. 3, 2002)(upholding conviction for sexual assault on a child as part of a pattern of abuse and concluding that jury instructions, which, for all practical purposes, were identical to those given here, were sufficient to ensure unanimous finding that defendant committed a predicate act and at least one other act of abuse); People v. Hoefer, supra, 961 P.2d at 567; People v. Hansen, supra.

III. Proof of Pattern of Sexual Abuse Charges

Defendant contends that the prosecution failed to prove all the requisite elements of the two pattern offenses. We agree in part.

The interpretation of a statute presents a question of law subject to de novo review....