People v. Dash

• Decision Date: 12 August 2004
• Docket Number: No. 03CA0285.,03CA0285.
• Citation: 104 P.3d 286
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John Louis DASH, Defendant-Appellant.
• Court: Colorado Court of Appeals

104 P.3d 286

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John Louis DASH, Defendant-Appellant.

No. 03CA0285.

Colorado Court of Appeals, Division IV.

August 12, 2004.

Certiorari Denied January 10, 2005.

Ken Salazar, Attorney General, Matthew D. Grove, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Samler and Whitson, P.C., Hollis A. Whitson, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge LOEB.

Defendant, John Louis Dash, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree sexual assault. He also appeals the sentence imposed upon him as a sex offender. We affirm.

Defendant's former girlfriend informed the police that defendant had forced her to have sexual intercourse with him. Defendant was charged with first degree sexual assault, a class three felony, and second degree sexual assault, a class four felony, under § 18-3-402(1)(a), (2), (4)(a), C.R.S.2003.

A jury found defendant guilty of second degree sexual assault. The trial court imposed an indeterminate sentence of five years to life in the Department of Corrections and a parole period of ten years to life under § 18-1.3-401(1)(a)(V)(C.5), C.R.S.2003.

I. Sufficiency of the Evidence

Defendant contends the victim's testimony was incredible and, therefore, the evidence was insufficient to support the jury's verdict. We are not persuaded.

We review challenges to the sufficiency of the evidence to determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crime charged beyond a reasonable doubt. Kogan v. People, 756 P.2d 945, 950 (Colo.1988). We must give the prosecution the benefit of every reasonable inference fairly drawn from the evidence. Kogan v. People, supra.

Also, the fact finder, not an appellate court, determines the credibility of witnesses, and only when testimony is "so palpably incredible and so totally unbelievable" may we reject it as a matter of law. Kogan v. People, supra, 756 P.2d at 950 (quoting People v. Franklin, 645 P.2d 1, 4 (Colo.1982)). Testimony is incredible as a matter of law when a "witness describes events she could not possibly have seen or that are not possible under the laws of nature." People v. Minjarez, 81 P.3d 348, 355 (Colo.2003). However, testimony that is merely biased, conflicting, or inconsistent is not incredible as a matter of law. People v. Minjarez, supra.

The fact finder weighs the importance of evidence and resolves any conflicts or inconsistencies in the evidence. Kogan v. People, supra. More than a modicum of evidence is necessary to support a conviction beyond a reasonable doubt. Kogan v. People, supra.

To support a verdict of second degree sexual assault, the jury was instructed it must find beyond a reasonable doubt that defendant knowingly inflicted sexual penetration, however slight and including sexual intercourse and anal intercourse, on the victim and caused the victim's submission "by any means other than physical force or physical violence, but of sufficient consequence reasonably calculated to cause submission against the victim's will." See §§ 18-3-401(6), 18-3-402(1)(a), (2), C.R.S.2003.

Defendant contends the victim was totally unbelievable, pointing to inconsistencies in her statements and testimony concerning the details and sequence of the events and her knowledge of his last name. Defendant also points to the victim's admitted lies.

The morning after the offense, the victim told her coworker she had already called the police, which she had not done. The victim explained she only wanted to confide in a friend, not call the police, until her coworker later helped her realize what a "serious crime" defendant had committed.

The victim also lied to the police at the hospital and in a subsequent interview by denying she had consensual sexual relations with defendant before the night of the offense; she said she did not want to be overheard by her coworker, who was also part of the victim's church community, and she was already feeling "really ugly and dirty" about herself at the hospital, but later felt the police would not help her if they knew she had lied. Ultimately, at a hearing, she admitted to prior sexual relations with defendant because she was under oath and when it "came down to it, [she] had to tell the truth."

Another time, the victim lied to the police by denying she sent photographs with a letter she wrote to defendant in jail.

Inconsistencies in testimony and admitted lies will undoubtedly be considered by a jury in determining the credibility and weight of the evidence. Here, however, they do not make the victim's testimony so palpably incredible and totally unbelievable that we must reject it outright as a matter of law. See People v. Minjarez, supra; Kogan v. People, supra.

Additionally, the victim's basic claim that defendant penetrated her vaginally and anally against her will on the night in question was corroborated by her daughter's testimony and evidence in the record related to the sexual assault examination performed the following morning. The detective on the case also testified it was quite common for individuals subjected to alleged sexual assaults to have memory problems and that, although the sequence of events was not always the same during his many interviews with her, the victim was very consistent concerning the actual sexual assaults. Further, after receiving the victim's letter at the jail, defendant approached a deputy sheriff and stated very seriously, "I raped her, I almost killed her, and I pissed on her head, and she still writes me love letters."

Defendant contends the victim's testimony was unbelievable specifically in relation to the element of causing submission by means other than physical force or violence to support the class four level felony of sexual assault. See § 18-3-402(1)(a), (2). Here, the record includes evidence that defendant pushed, shoved, and acted forcefully against the victim and held her down with his weight, but that evidence does not negate a finding that defendant caused submission by means other than physical force or violence. Indeed, sexual assault, by its very nature, involves physical acts against a victim.

Viewing the evidence as a whole, the combination of defendant's yelling and obscenities, his indication to the victim that he was "taking control of the situation," his threatening behavior toward the victim's daughter, his size and presence, and his actions (including disrobing the victim, moving her around the townhome, holding her down, and urinating on her), while the victim was telling him "no," that it hurt, crying, and trying to crawl away, supports the jury's conclusion that defendant caused the victim to submit against her will by means other than physical force or violence reasonably calculated to cause her submission. See People v. Martinez, 36 P.3d 154 (Colo.App.2001).

Regardless of whether the victim had consented to have sex with defendant on prior occasions, the evidence and all reasonable inferences from it, when viewed in the light most favorable to the prosecution, is substantial and sufficient to support the jury's conclusion that defendant was guilty of second degree sexual assault by penetration on the night of the offense. See People v. Martinez, supra.

II. Constitutionality of Sentencing Statute

Defendant contends that the Colorado Sex Offender Lifetime Supervision Act of 1998 (the Act), § 18-1.3-1001, et seq., C.R.S.2003, under which he was sentenced, is unconstitutional. Specifically, he argues it violates his rights to procedural and substantive due process and equal protection, his right to be free from cruel and unusual punishment, and the separation of powers doctrine. We disagree.

Statutes are presumed to be constitutional, and a party attacking the validity of a statute bears the burden of establishing unconstitutionality beyond a reasonable doubt. People v. Hickman, 988 P.2d 628 (Colo.1999); People v. Baer, 973 P.2d 1225 (Colo.1999).

A. Substantive Due Process

Defendant first asserts that the Act violates his constitutional right to substantive due process. He urges us to apply a strict scrutiny analysis because in his view, the Act is essentially a civil commitment statute designed to address future dangerousness, not past conduct and, as such, is subject to limits on preventive detention. We are not persuaded.

Substantive due process prohibits the government from engaging in conduct that shocks the conscience or interferes with rights implicit in the concept of ordered liberty. It forbids the government from infringing upon fundamental liberty interests, no matter what process is afforded, unless such infringement is narrowly tailored to serve a compelling state interest. People v. Garlotte, 958 P.2d 469 (Colo.App.1997).

When no fundamental right is implicated, a statute is evaluated under a rational basis test. An adult criminal offender has no fundamental liberty interest in freedom from incarceration. People v. Young, 859 P.2d 814 (Colo.1993). Classification of sex offenders under the Act neither creates a suspect class nor infringes upon a fundamental right. See People v. Kibel, 701 P.2d 37 (Colo.1985)(considering Colorado Sex Offender Act of 1968). In People v. Strean, 74 P.3d 387 (Colo.App.2002), and again in People v. Oglethorpe, 87 P.3d 129 (Colo.App.2003), divisions of this court rejected claims that the defendants' rights to substantive due process were violated by the Act. Both divisions applied the rational basis test. Under that test, the state must demonstrate that the legislation bears some reasonable relationship to a legitimate governmental interest. People v. Young, supra.

In People v. Strean, supra, the division concluded the Act bears a reasonable relationship to the legitimate governmental...