People v. Graham, 91CA1984

• Decision Date: 13 January 1994
• Docket Number: No. 91CA1984,91CA1984
• Citation: 876 P.2d 68
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Harold GRAHAM, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 68

876 P.2d 68

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Harold GRAHAM, Defendant-Appellant.

No. 91CA1984.

Colorado Court of Appeals,

Div. I.

Jan. 13, 1994.

Rehearing Denied March 3, 1994.

Petition and Cross-Petition for

Certiorari Denied July 18, 1994.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Linda C. Michow, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Law Office of Sheila M. Davis, P.C., Sheila M. Davis, Denver, for defendant-appellant.

Opinion by Judge PIERCE ^*.

Defendant, Harold Graham, appeals a judgment of conviction entered on a jury verdict finding him guilty of sexual assault on a child as a part of a pattern of abuse. We affirm in part and reverse in part and remand with directions.

Defendant was charged with aggravated incest and sexual assault on a child as a part of a pattern of abuse. The evidence reveals that, from 1987 through 1990, defendant repeatedly sexually assaulted the daughter of the woman with whom he was living. Although the jury found defendant guilty of both charges, the aggravated incest conviction was subsequently overturned by the trial court as a result of newly discovered evidence.

I.

Defendant contends that § 18-3-405(2)(c), C.R.S. (1993 Cum.Supp.), enacted in 1989, is unconstitutional for several reasons. This statute elevates the crime of sexual assault on a child from a class 4 to a class 3 felony when the offense is committed as a part of a pattern of sexual abuse. Defendant specifically argues that the statute is unconstitutionally vague; that, as applied to him, it allows improper introduction of similar transaction evidence; and that it violates the constitutional proscription against ex post facto laws. We perceive no constitutional defect in the statute itself, but do rule that its application to defendant may have been ex post facto and, thus, improper.

A.

Defendant's assertion that the statute is unconstitutionally vague has been rejected by our supreme court in People v. Longoria, 862 P.2d 266 (Colo.1993).

B.

We are also not persuaded by defendant's argument that the statute is unconstitutional because it allows the introduction of similar transaction evidence without requiring the safeguards outlined in Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959). The evidence of the multiple incidents of sexual abuse is not similar transaction evidence offered to prove scheme, plan, intent, or design. Rather, it is evidence that forms an integral part of the offense with which defendant was charged. Hence, no limiting instructions were required. People v. Aldrich, 849 P.2d 821 (Colo.1992).

C.

Defendant also contends, however, that the statute, as applied here, is an ex post facto law prohibited by U.S. Const. art. I, § 10, and Colo. Const. art. II, § 11. We conclude that the treatment of the issue in the trial court does reveal the possibility of an ex post facto application.

An ex post facto law is one which punishes as a crime conduct that was innocent when done, makes more onerous the punishment for a crime after its commission, or deprives a defendant of a defense that was available at the time the crime was committed. People v. District Court, 834 P.2d 181 (Colo.1992).

Two critical elements must be present for a criminal statute to be considered an ex post facto law: it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. However, legislation is not rendered unconstitutionally retrospective only because it might operate on a fact or status preexisting its effective date. As long as the punitive features of the law apply only to acts committed after the statutory proscription becomes effective, it is not constitutionally impermissible. Gasper v. Gunter, 851 P.2d 912 (Colo.1993).

The challenged subsection of the statute, § 18-3-405(2)(c), should be viewed in context of the entire statute § 18-3-405, C.R.S. (1993 Cum.Supp.) which reads:

(1) 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.

(2) Sexual assault on a child is a class 4 felony, but it is a class 3 felony if:

(a) The actor commits the offense on a victim by use of such force, intimidation, or threat as specified in section 18-3-402(1)(a), (1)(b), or (1)(c); or

(b) [subsection repealed effective July 1, 1990]

(c) 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 of 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).

(3) If a defendant is convicted of the class 3 felony of sexual assault on a child pursuant to paragraph (a) or (c) of subsection (2) of this section, the court shall sentence the defendant in accordance with the provisions of section 16-11-309, C.R.S.

Complaint is not made as to § 18-3-405(1), C.R.S. (1993 Cum.Supp.), and looking at the statute alone, the conviction as to that section stands as a class 4 felony. The record is adequate to justify the conviction as to that portion of the statute.

The difficulty comes in the application here of § 18-3-405(2), C.R.S. (1993 Cum.Supp.), the purpose of which is to provide enhanced punishment. See People v. Longoria, supra. Under § 18-3-405(2), a trial court is required to sentence a defendant as a class 3 felon if the jury finds that he or she committed two or more sexual assaults on a child within a specified ten year period. The problem in this case, however, is that several of the assaults took place before the enactment of this portion of the statute and several took place afterwards.

The particular jury instruction in question reads:

PATTERN OF SEXUAL ABUSE means 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.

The evidence in this case raises issues concerning several alleged incidents of sexual assault. In order to find a pattern of sexual abuse, you must unanimously agree that either of the following have been proven beyond a reasonable doubt:

1. The defendant committed all of the incidents described by the evidence and included within the ten year period, or

2. The defendant committed two or more incidents of sexual contact with the victim described by the evidence within the ten year period. The jurors must unanimously agree that the same two or more incidents have been proven beyond a reasonable doubt.

See Thomas v. People, 803 P.2d 144 (Colo.1990).

The jury was not instructed that defendant's conviction of the predicate offense had to be based on an act which occurred after the passage of this portion of the statute. And, there is no way that we can determine from the jurors' verdict or answers to interrogatories whether the predicate offense they selected to justify the enhancement from a class 4 to a class 3 felony occurred after the enhancement portion of the statute became operative. Under the evidence presented, the verdict could have been based on an act which preceded the passage of the statute. Therefore, the enhancement portion of the conviction cannot stand.

II.

Defendant also contends that the trial court erred in denying his motion for new trial based on newly discovered evidence. We disagree.

Throughout the trial, the victim referred to defendant as her father. After the trial, defendant filed a motion for judgment of acquittal and for new trial based on the newly discovered evidence which surfaced during a civil case involving the victim's mother. In that civil case, the victim's mother answered a complaint by stating that she had never considered the defendant to be her common law husband and that she did not believe she was involved in a common law marriage. Based on this newly discovered evidence, plus the absence of any evidence indicating the victim to be defendant's natural or adopted child, the trial court partially granted defendant's motion for judgment of acquittal with respect to the aggravated incest conviction. However, defendant's motion for new trial as to the remaining conviction was denied.

In order to prevail on a motion for new trial based on newly discovered evidence, a defendant must show that the evidence was discovered after the trial; that he and his counsel exercised diligence to discover evidence favorable to him prior to and during the trial; that the newly discovered evidence is material; and that, on retrial, the evidence would probably produce an acquittal. People v. Estep, 799 P.2d 405 (Colo.App.1990).

Motions for new trial based on newly discovered evidence are generally looked upon with disfavor. Hence, a denial of such a motion will not be overturned unless it is shown that the trial court clearly abused its discretion. People v. Williams, 827 P.2d 612 (Colo.App.1992).

Defendant argues, and we agree, that the evidence was discovered after the trial and that he and his counsel exercised due diligence to discover favorable evidence prior to and during the trial. Therefore, we need only consider whether the evidence was material and would probably produce an acquittal.

The majority of the prosecution's case against defendant rested on the testimony of the victim. The testimony of the victim's mother concerning her marriage to defendant was not critical to establishing the elements of the sexual assault charge. Nor did that testimony have any impact on the victim's version of the events which led to the charges filed in this case. Furthermore, although the...