People v. Bryant

• Decision Date: 14 March 2013
• Docket Number: No. 10CA0417,10CA0417
• Citation: 316 P.3d 18
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Joseph Ray BRYANT, Defendant–Appellant.
• Court: Colorado Court of Appeals

316 P.3d 18

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Joseph Ray BRYANT, Defendant–Appellant.

No. 10CA0417

Colorado Court of Appeals, Div. IV.

Announced March 14, 2013

Jefferson County District Court, No. 09CR90, Honorable Stephen M. Munsinger, Judge

John W. Suthers, Attorney General, Katherine A. Aidala, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Neff Services, Inc., Lauretta A. Martin Neff, Bayfield, Colorado, for Defendant–Appellant

Opinion by JUDGE FOX

¶ 1 Defendant, Joseph Ray Bryant, appeals the judgment of conviction entered on a jury verdict finding him guilty of two counts of unlawful sexual contact by use of force. He also appeals his designation as a sexually violent predator (SVP). We affirm.

I. Background

¶ 2 The prosecution presented evidence of the following. As seventeen-year-old A.M. and her friend were about to walk into a Starbucks, Bryant attacked A.M. Bryant wrapped one hand around A.M.'s neck and grabbed her vaginal area with his other hand. Bryant held A.M. for about eighteen seconds and tried to pull her away from the Starbucks entrance. A.M. screamed and tried to get away. When she slammed her elbow into Bryant's stomach, he released her and ran away.

¶ 3 Late that evening, Bryant approached D.P. at a bus stop. He “bumped” into D.P., stared at her, and asked her age before following her onto the bus. When D.P. got off the bus, Bryant followed her to the next bus stop. She decided to wait at a bus stop with better lighting and more stores nearby. Bryant waited with her at the second bus stop for thirty minutes. He offered several times to pay her $300 if she would accompany him to a motel room, and she declined. Bryant then grabbed D.P.'s breasts four to six times and her vagina once. D.P. asked him to stop and tried pushing his hands away. Bryant grabbed her hand, put it on his crotch. She felt he had an erection before she could pull away.

¶ 4 Bryant followed D.P. onto a second bus. Bryant again followed her off the bus, and D.P. asked him to stop following her. Bryant again grabbed her breasts, twice, and she pushed him away. Bryant then walked away but was arrested later that evening.

¶ 5 As relevant here, Bryant was charged with two counts of unlawful sexual contact by force, one for each victim, and the jury found Bryant guilty of these charges. The trial court made a preliminary finding that Bryant was a SVP and sentenced him to five years to life in the Department of Corrections on each conviction, to run consecutively. After conducting a hearing, the court made a final determination that Bryant was a SVP.

¶ 6 Bryant contends that (1) he was deprived of his right to effective assistance of counsel when the court denied his counsel's motion for a continuance, (2) the evidence was insufficient to support the jury's finding that his use of “force” caused the victims to submit to unlawful sexual contact, and (3) the SVP designation violated his rights to remain silent and to equal protection.

II. Effective Assistance of Counsel

¶ 7 Bryant contends that he was deprived of his right to effective assistance of counsel when the trial court denied his counsel's request to continue the trial two weeks beyond the Uniform Mandatory Disposition of Detainers Act (UMDDA), § 16–14–104, C.R.S.2012, deadline. We conclude that Bryant has waived this right.

¶ 8 On November 27, 2009, Bryant's counsel learned that Bryant's trial had been rescheduled from December 15 to December 1 before a different judge to comply with Bryant's speedy trial rights under the UMDDA. Counsel objected to the earlier trial date. Bryant insisted on a speedy trial and the judge warned Bryant against proceeding pro se and advised him of the consequences of his decision. Bryant decided to proceed pro se and counsel assumed that she had been removed from the case by the prior judge.¹

¶ 9 On December 1, counsel appeared with Bryant and explained that she now understood Bryant did not want to proceed pro se. She requested a two-week continuance because she was not prepared for trial. The court told Bryant's counsel, “I think your position is entirely reasonable, I have no quarrel with your position, but let me [inquire further].” The court then asked Bryant, who was present when counsel explained why she requested a continuance, “Do you want, then, to continue this over until the 15th and have [your counsel] ready to go to trial?” Bryant responded:

I know I have a right to effective assistance of counsel, [and I] have the right to under the UMDDA. And it seems like I had the choice to waive one right or the other for one right.... [I]f I [have] my speedy trial then I won't have effective counsel.... [M]y public defender was well informed I've been wanting to go to trial.... I wanted to get on with my life, or whatever.

¶ 10 The court expressed confidence in his counsel's abilities, and ordered counsel to represent Bryant. It again advised Bryant of his choices and their respective consequences, and explained:

[Y]ou have two rights and they're in conflict with each other. Apparently, this was set for the 15th, [until] it was discovered that under your speedy trial rights or speedy detainer rights, that would run out today. The 1st of December. So we've got 13 days between now and the trial date. And so it's your choice. You do have two different rights: Do you want to go to trial today with [your counsel] to do the best she can, or do you want to ... wait 13 days and go to trial and have her better prepared? That's your choice.

Bryant responded, “I want to protect my rights under the UMDDA.”

¶ 11 Bryant was present when counsel explained how, in her opinion, the earlier trial date would limit her effectiveness, and how she would be more effective if she had two more weeks to prepare. Bryant's comments reflect that he understood his rights, and knew his counsel's position. He does not assert that he was not sufficiently advised before he chose his UMDDA right at the expense of being represented by insufficiently prepared counsel. Although Bryant had counsel, to the extent that he complains his counsel was not effective, the record reflects that Bryant made a voluntary, knowing, and intelligent waiver of better prepared counsel, in favor of his right to a speedy trial under the UMDDA. See People v. Krueger, 2012 COA 80, ¶ 13,–––P.3d –––– (defendant's waiver of the right to counsel is effective only when it is voluntary, knowing, and intelligent).

¶ 12 Further, Bryant's counsel did not argue at trial, and does not argue on appeal, that the client's position should have been disregarded because waiver of the UMDDA deadline was solely a matter of counsel's strategic judgment. Nor did counsel insist that Bryant waive his UMDDA rights. Cf. People v. Bergerud, 223 P.3d 686, 693 (Colo.2010) (defendant forced to choose between appearing pro se and proceed with a theory of self-defense, or continue with counsel while sacrificing constitutional rights associated with his defense, such as the choice to testify or enter a plea of not guilty). Because either Bryant or his counsel could have waived Bryant's UMDDA rights, we conclude that Bryant could insist on the earlier trial date. SeePeople v. Newton, 764 P.2d 1182, 1187–88 (Colo.1988) (recognizing, under the Interstate Agreement on Detainers Act (IAD), that the defendant or his attorney may waive speedy trial); Sweaney v. District Court, 713 P.2d 914, 918 (Colo.1986) (noting that the policies underlying the UMDDA and the IAD are similar).

¶ 13 Bryant does not argue on appeal that the trial court should have overridden his decision to invoke his UMDDA rights by allowing the continuance counsel requested. SeePeople v. Jefferson, 981 P.2d 613, 615 (Colo.App.1998) (upholding trial court's decision to grant a continuance because defense counsel was unprepared for trial and denying the defendant's attempt to revoke his speedy trial waiver). Consequently, the trial court did not err in giving effect to Bryant's choice.²

III. Use of Force Evidence

¶ 14 We also disagree with Bryant's contention that there was insufficient evidence to show that he caused each victim's submission by force because there was no evidence that he used force apart from the unlawful contact, and the victims were able to escape.

A. Standard of Review

¶ 15 We review the record de novo to determine whether the evidence before the jury was sufficient in quality and quantity to sustain the conviction. Dempsey v. People, 117 P.3d 800, 807 (Colo.2005). In so doing, we consider “whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt.” Clark v. People, 232 P.3d 1287, 1291 (Colo.2010) (quoting People v. Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)).

B. Analysis

¶ 16 “Any actor who knowingly subjects a victim to any sexual contact commits unlawful sexual contact if ... [t] he actor knows that the victim does not consent.” § 18–3–404(1)(a), C.R.S.2012. The offense is elevated from a class one misdemeanor to a class four felony “if the actor compels the victim to submit by use of such force ... as specified in section 18–3–402(4)(a).” § 18–3–404(2)(b), C.R.S.2012. Section 18–3–402(4)(a), C.R.S.2012, specifies that “[t]he actor causes submission of the victim through the actual application of physical force or physical violence.”

¶ 17 Although neither section 18–3–402 nor section 18–3–404 defines “physical force,” divisions of this court have adopted the definition of “physical force” as “force applied to the body.” People v. Keene, 226 P.3d 1140, 1143 (Colo.App.2009); People v. Holwuttle, 155 P.3d 447, 449–50 (Colo.App.2006). This definition of “physical force” does not require an “extra application” of force other than force applied to the body....