People v. Duncan

• Decision Date: 18 January 2001
• Docket Number: No. 99CA1142.,99CA1142.
• Citation: 33 P.3d 1180
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James R. DUNCAN, Defendant-Appellant.
• Court: Colorado Court of Appeals

33 P.3d 1180

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James R. DUNCAN, Defendant-Appellant.

No. 99CA1142.

Colorado Court of Appeals, Div. V.

January 18, 2001.

As Modified on Denial of Rehearing March 1, 2001.

Certiorari Denied October 22, 2001.

Ken Salazar, Attorney General, Melissa D. Allen, Special Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

Opinion by Judge RULAND.

Defendant, James R. Duncan, appeals from the judgment of conviction entered upon jury verdicts finding him guilty of three felony offenses. The convictions include sexual assault on a child in violation of § 18-3-405, C.R.S.2000, and sexual assault on a child by one in a position of trust in violation of § 18-3-405.3, C.R.S.2000. The final conviction was for enticement of a child in violation of § 18-3-305, C.R.S.2000. We affirm.

Defendant lived in a mobile home park. One morning he went to the victim's trailer in a nearby park and asked the victim's father for permission to take the victim back to defendant's trailer. The stated purpose was to help defendant with some household chores. Defendant represented that he needed the victim's assistance due to a back injury. The victim was 12 years old at the time. Defendant indicated that the victim would be paid for assisting with the chores.

According to the prosecution's evidence, defendant drove the victim back to defendant's trailer and proceeded to show the victim the trash that he wanted removed. Defendant then placed his hand on the victim's penis and buttocks, rubbed his hand in a circular motion, and asked the victim if he wanted to make some extra money. The victim called his father. The victim then left defendant's trailer, and his father drove him to the police station.

After being advised of his Miranda rights, defendant was interviewed on two occasions by an investigating officer. In the first interview, defendant denied touching the victim other than on his shoulder to indicate where the trash was located. Defendant claimed that the victim was lying. Defendant also stated that he happened to be scratching his groin area while making the statement about earning extra money, and he indicated that the victim misinterpreted both defendant's body language and his statements.

In the second interview, defendant stated that, although he did not touch the victim, he had wanted to for several months. Defendant also conceded that he liked young boys like the victim too much.

I.

During voir dire one prospective juror expressed difficulty understanding some of the legal concepts included in questions asked by the prosecution and defense. The prospective juror was born in the Philippines, and English was not her first language. Defendant asked the trial court to disqualify the prospective juror because of this difficulty. The trial court denied the request, finding that the juror's command of the English language was sufficient for purposes of jury service. Defendant now claims that this ruling constitutes reversible error. We disagree.

Section 13-71-105(2)(b), C.R.S.2000, provides that a prospective juror shall be disqualified if that individual is unable to read, speak, and understand the English language. Further, the issue whether a prospective juror should be disqualified under the statute is a question of fact for resolution by the trial court. See People v. Rodriquez, 638 P.2d 802 (Colo.App.1981)

. And, as with other factual findings, we may not disturb that court's determination unless it is unsupported by the record. See Linley v. Hanson, 173 Colo. 239, 477 P.2d 453 (1970).

Here, defendant points to three occasions during voir dire where the prospective juror expressed difficulty understanding questions that included the legal concept of "beyond a reasonable doubt." Later, in response to defense counsel's question concerning whether there was any reason she should not serve as a juror, the juror repeated that she might have difficulty with understanding what was said.

We recognize that the juror's responses were brief and reflected a degree of uncertainty. Indeed, her lack of confidence was highlighted by the fact that she was questioned at the same time as another prospective juror, who had served on a jury before and was both articulate and verbose.

However, the trial court explained to the juror the prosecution's burden of proof, and the juror indicated that the clarification was helpful. Moreover, at no point during voir dire did the prospective juror state that she was unable to understand English.

Additionally, although her answers and statements were brief, they were responsive to the questions asked. Hence, there is record support for the court's finding that the juror's fluency in English was sufficient for service, and thus we find no error. See People v. Rodriquez, supra.

II.

Defendant next asserts the court erred in denying his pre-trial motion to declare § 18-3-401(3.5) unconstitutional. According to defendant, the statute is unconstitutionally vague because it fails to define precisely what constitutes a "position of trust." Specifically, defendant claims that because he was not acting in an actual parental or guardianship capacity with regard to the victim, he was not given fair notice that the statute applied to him. We conclude that the statute is constitutional.

A statute is presumed to be constitutional. As a result, the party challenging the statute must prove the claim of unconstitutionality beyond a reasonable doubt. See People v. Longoria, 862 P.2d 266 (Colo.1993)

. To the extent that the challenge is based on alleged vagueness, a reviewing court must uphold the validity of the statute if a reasonable and practical construction may be applied to resolve the claim. See People v. Buckallew, 848 P.2d 904 (Colo.1993). The relevant inquiry then is whether the statute describes the forbidden conduct in terms such that persons of common intelligence can readily understand its meaning and application. See People v. Gross, 830 P.2d 933 (Colo.1992).

One in a "position of trust" is defined in § 18-3-401(3.5) to include:

any person who is a parent or acting in the place of a parent and charged with any of a parent's rights, duties, or responsibilities concerning a child, including a guardian or someone otherwise responsible for the general supervision of a child's welfare, or a person who is charged with any duty or responsibility for the health, education, welfare, or supervision of a child, including foster care, child care, family care, or institutional care, either independently or through another, no matter how brief, at the time of an unlawful act. (emphasis supplied)

The trial court reasoned that, because defendant affirmatively asked the victim's father for permission to take the victim to defendant's home to work, and the father consented, it was reasonable to construe that permission as notice to defendant that he was in a position of trust to perform parental duties and supervision with respect to the victim. We agree with that reasoning.

Specifically, a person of ordinary intelligence could rationally conclude that, upon taking the victim to defendant's home where the two of them were to be alone, defendant assumed responsibility for the welfare and supervision of the child both en route and in the home. See People v. Luman, 994 P.2d 432 (Colo.App.1999)(jury could reasonably conclude that defendant was in a position of trust because he lived with victim, contributed money to the household, and often spent time alone with victim). Further, contrary to defendant's contention, in our view neither defendant's back injury nor his stated desire briefly to employ the victim negates this obvious responsibility.

Defendant alternatively argues that § 18-3-401(3.5) defines "position of trust" so broadly that it renders § 18-3-405.3 indistinguishable from § 18-3-405, the general sexual assault on a child statute. We again disagree.

Someone not responsible for the general supervision of a child's welfare in any respect, such as a stranger, may otherwise be in a position to sexually assault a child. In that scenario, § 18-3-405.3 does not apply. Cf. People v. Leske, 957 P.2d 1030 (Colo.1998)

(sexual assault on a child is not a lesser-included offense of sexual assault on a child by one in a position of trust). Hence, we perceive a clear distinction between the statutes and thus conclude that the void for vagueness challenge must be rejected.

We have considered and reject defendant's contention that the evidence was insufficient to establish the element of position of trust. See Kogan v. People, 756 P.2d 945 (Colo. 1988)

.

III.

Prior to trial the prosecution filed a notice of intent to introduce evidence of prior similar transactions at trial. During a hearing, four men testified that they had been sexually assaulted by defendant when they were minors in various incidents occurring prior to the incident in this case. The court acknowledged the prejudicial nature of this testimony and ruled that it was admissible only for the limited purposes of rebutting the defense of recent fabrication, to show intent, and to demonstrate the absence of mistake or accident.

At trial three of the men testified to incidents that occurred when they were all approximately the same age as the victim. In all three cases, defendant took the victim to a secluded area or was otherwise alone with the victim, and in one case defendant asked the victim if he would like to make some money in exchange for sexual contact.

Defendant asserts that the trial court erred in admitting this evidence. First, he argues that the similar transaction evidence was not logically relevant independent of an intermediate inference that defendant was a bad person. Next, he contends that the prejudicial effect of the evidence far...