People v. Cook
| Decision Date | 27 March 2014 |
| Docket Number | Court of Appeals No. 10CA1989 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Steven Matthew COOK, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee
GarciaLaw, LLC, J. Alberto Garcia, Broomfield, Colorado, for Defendant–Appellant
¶ 1 Defendant, Steven Matthew Cook, appeals the judgment of conviction and sentences entered on jury verdicts finding him guilty of twenty-nine counts of sexual exploitation of children (sale/publication, possession for distribution, and inducement or enticement to make exploitative material); unlawful sexual contact—coercion of a child; sexual assault on a child; attempted sexual assault on a child; indecent exposure to one under fifteen years of age; sexual assault on a child by one in a position of trust; sexual assault on a child—pattern of abuse; sexual assault on a child by one in a position of trust—pattern of abuse; and crime of violence. The victims were defendant's daughter, the daughter of his former girlfriend, and other unnamed children. We affirm.
¶ 2 Defendant and his wife dissolved their marriage when their daughter, C.C., was two years old. After the divorce, defendant moved in with a girlfriend and her four-year-old daughter, S.G., in Arapahoe County. Defendant lived in the girlfriend's home for approximately five years, during which C.C. visited every other weekend. Defendant then moved out of the girlfriend's home to live with his ex-wife and C.C., but that arrangement ended shortly thereafter.
¶ 3 One month after defendant had last moved out, seven-year-old C.C. disclosed that defendant had gone to the basement of the home to view naked women on the computer and masturbate. During a video-recorded forensic interview, C.C. made the same allegations and, although she at first denied it, she later stated that defendant sometimes took her to the basement and asked her to look at the pictures with him. C.C. denied that defendant had touched her and denied that he asked to view her without clothing.
¶ 4 C.C. also disclosed that defendant had taken S.G. to the basement and had her watch computer videos of naked women, stating that S.G. had told her about it. C.C. also observed defendant showing the computer to S.G. and saw S.G. touching defendant's genitals.
¶ 5 In a second forensic interview, C.C. made some contradictory statements, but again stated that defendant would watch naked women on the computer and masturbate. She elaborated that defendant would take pictures of his genitals with a web camera. She also disclosed for the first time that defendant had patted or rubbed her genitals, made her take off her underwear, and had taken pictures of her with her vagina exposed using the computer camera. In both interviews, C.C.'s disclosures concerned incidents that had occurred in homes located in Boulder and Arapahoe Counties. But she was not clear about what acts had happened in each locale.
¶ 6 S.G. also participated in a recorded forensic interview and stated that defendant had taken her to the basement and had taken pictures of her, but she stated defendant had not touched her. S.G. was nine years old at the time of the disclosures and lived with defendant and her mother in Arapahoe County during the assaults.
¶ 7 Police executed a search warrant for the four computers to which defendant had access during the relevant period. They found many images of child and adult pornography on all the computers, but found no images of C.C. or S.G. Police found no evidence that images of the two girls had been transmitted over the internet.
¶ 8 The prosecution charged defendant in Arapahoe County with eighteen counts of sexual offenses and crime of violence concerning C.C., S.G., and unnamed victims occurring between October 1999 and March 2004.
¶ 9 Both C.C. and S.G. testified at trial. C. C.'s testimony was similar to her disclosures in the interviews, but she did not remember in which house (in Boulder or Arapahoe County) she had resided when defendant rubbed her, and could not remember defendant taking pictures of himself or her with his web camera. S.G. testified that defendant had taken her to the basement and made her take off her pants and show her vagina, which he would show on the internet. She said defendant would touch himself during these times and she had seen him masturbate several times. Other times he would ask her to touch his penis, but she refused, and also said “no” when he asked if he could touch her.
¶ 10 The prosecution also presented evidence that semen containing defendant's DNA had been found on the basement wall where the girls had alleged defendant had looked at pornography and had taken pictures of them in various states of undress.
¶ 11 Charges had previously been brought against defendant in Boulder County for acts against C.C. occurring there. At trial, the acts were proffered and admitted under CRE 404(b).
¶ 12 The jury acquitted defendant of sexual assault and incest concerning C.C. It also acquitted defendant of one of the sexual exploitation charges, having an unnamed victim. The jury convicted defendant of the remaining fifteen charges. The trial court sentenced him to an aggregate term of forty years to life in the custody of the Department of Corrections.
¶ 13 Defendant appealed the judgment. A division of this court vacated his convictions and remanded for a new trial. People v. Cook, 197 P.3d 269, 274–77 (Colo.App.2008).
¶ 14 In preparation for retrial, the prosecution conducted interviews with the victims, during which S.G. disclosed new instances of sexual assault. She told the interviewers and the prosecutor that she had not previously disclosed these instances of abuse because defendant had threatened to kill her mother, and she feared him.
¶ 15 The prosecution obtained a warrant to re-search defendant's four computers for additional pornographic images using technological methods that were not available before the first trial. They recovered deleted sexual images of S.G. and additional pornographic images. Based on the new allegations by S.G. and the newly recovered images on defendant's computers, the prosecution moved to add fourteen additional counts to the information. The court granted the motion.
¶ 16 Between the remand in November 2008 and the retrial in April 2010, defense counsel asked for and received three continuances to prepare the case. The trial court denied a request for a fourth continuance made three days before trial.
¶ 17 The prosecution retried defendant on the fifteen original charges for which he had been previously convicted, including sexual exploitation and indecent exposure charges concerning C.C., and the fourteen added charges. Before retrial, defense counsel moved to pierce the rape shield statute. Defendant also objected under CRE 404 to the prosecution using evidence of sexual assaults on C.C. from defendant's Boulder County case. The court denied the rape shield motion and allowed the evidence from the Boulder County case.
¶ 18 C.C. and S.G. testified at the second trial and videos of their 2004 and 2009 interviews were admitted into evidence. Both girls were thoroughly cross-examined on motive, bias, and inconsistencies in their statements. S.G., in particular, was questioned concerning her new revelations and motive for revealing the additional assaults years later.
¶ 19 At the second trial, defendant sought to show that R.R., S.G.'s older half-brother, was an alternate suspect on the sexual exploitation counts because he had assaulted C.C. on one occasion, had access to one or more of the computers, and may have been home from college during one of the relevant periods. The court rejected the evidence.
¶ 20 The jury at the second trial convicted defendant on all counts. The trial court imposed the same aggregate length of sentence of forty years-to-life on the retried charges that defendant had received after the first trial. On the new charges, according to the mittimus, the court sentenced defendant to additional consecutive terms of fifty-two years to life, for an aggregate total of ninety-two years to life. This appeal followed.
¶ 21 Defendant first contends that the trial court erred in permitting the prosecution to add fourteen additional counts on remand following his successful appeal. He asserts that the addition of those counts constituted punishment for successfully prosecuting his prior appeal, which violated his due process rights and chilled his right to direct appeal. We disagree.
¶ 22 A trial court has discretion to permit the information to be amended before trial, and we will not disturb its decision absent an abuse of that discretion. Crim. P. 7(e) ; People v. Al–Yousif, 206 P.3d 824, 830 (Colo.App.2006) (citing People v. Wright, 678 P.2d 1072, 1074 (Colo.App.1984) ). However, when, as here, the issue involves amendment of the information on remand following a successful appeal, due process rights are implicated. See People v. Williams, 916 P.2d 624, 626–27 (Colo.App.1996). Hence, we will review the issue as a mixed question of fact and law, giving deference to the trial court's factual findings as long as they are supported by the record, and reviewing the court's legal conclusions de novo. See id . (concluding that the trial court's findings of fact were supported by the record and its conclusion correctly applied the pertinent law).
¶ 23 In North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the United States Supreme Court held that the constitutional requirement of due process restricts a trial court's ability to impose a greater sentence on remand following a successful appeal of a defendant's conviction. See People v. Montgomery, 737 P.2d...
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