People v. Green, 81CA0311
| Decision Date | 26 November 1982 |
| Docket Number | No. 81CA0311,81CA0311 |
| Citation | 658 P.2d 281 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roger Dwight GREEN, Defendant-Appellant. . II |
| Court | Colorado Court of Appeals |
J.D. MacFarlane, Atty. Gen., Richard Hennessey, Deputy Atty. Gen., Mary J. Mullarkey and Susan P. Mele, Asst. Attys. Gen., Denver, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Jody Sorenson Theis, Deputy State Public Defender, Denver, for defendant-appellant.
Defendant, Roger Green, was convicted by a jury of two counts of sexual assault on a child, pursuant to § 18-3-405, C.R.S.1973 (1978 Repl.Vol. 8). He appeals, and we affirm.
Green was initially charged by information with four counts of sexual assault. It was alleged that Green assaulted three different victims. Each assault charged in a separate count was alleged to have occurred during a different time period and at a different place.
Subsequently, one of the counts was dropped, and Green was tried on the remaining three counts. Two counts related to an alleged sexual assault of a male victim, aged four, and one count related to an alleged assault of a female victim, aged six.
Testimony at trial was limited to the three separate specific incidents. Testimony was to the effect that the male victim was assaulted once in his bedroom, and on another occasion in the basement of his home. The female victim testified about an assault upon her which was perpetrated in Green's living room. The exact date of the assaults were not proven. However, it was established that each occurred within the time periods alleged, all of which took place less than three years prior to the filing of the information.
Green was subsequently convicted on the two counts of sexual assault on the male victim, but was acquitted of the charge of sexual assault on the female victim.
On appeal, defendant asserts that the giving of the following instruction was error:
"You are instructed that the exact date as alleged in the information need not be proved, and that it is sufficient that the evidence proved that the act charged was actually committed within three years prior to the date alleged in the information."
Authority for this instruction is found in Jordan v. People, 161 Colo. 54, 419 P.2d 656 (1966); cert denied, 386 U.S. 992, 87 S.Ct. 1308, 18 L.Ed.2d 338, (1966), and the cases cited therein. In attacking the use of this instruction, Green relies upon the cases of People v. Estorga, 200 Colo. 78, 612 P.2d 520 (1980); Laycock v. People, 66 Colo. 441, 182 P. 880 (1919); and Eby v. People, 63 Colo. 276, 165 P. 765 (1917). Such reliance is misplaced.
In each of the cited cases where the use of an instruction like the one above was disapproved, it was because there was only a single charge, but the evidence disclosed several transactions or assaults, and no election was made by the People as to which they relied upon to support the conviction. This is not the situation in the case at bar.
Green was tried on three separate counts of sexual assault. Each count was premised upon a single specific transaction. At trial, the People introduced evidence concerning each of the three transactions. While there was evidence of more than one transaction, the evidence was segregated and identified with a particular count. See People v. Estorga, supra; Laycock v. People, supra. Accordingly, where, as here, there is some question as to the date of a specific incident, an instruction such as the one above is proper. People v. Estorga, supra.
We note that for the first time on appeal, Green has argued that this instruction contained an erroneous statement of the law, inasmuch as it would have permitted consideration of acts which were committed within three years prior to the "date alleged in the information" rather than within three years prior to the filing of the information. See § 16-5-401, C.R.S.1973. However, as there was no allegation of, or evidence concerning assaults, occurring more than three years prior to the filing of the information,...
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Kogan v. People
...with a number of cases decided since Estorga in which Colorado courts have held that Estorga is not applicable. In People v. Green, 658 P.2d 281, 282 (Colo.App.1982), the defendant was tried on three separate counts of sexual assault. Each count was premised on a single specific transaction......
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People v. Matthews, 81CA0262
...either separately or together, necessarily results in a deprivation of an individual's constitutional rights. Cf. People v. Green, 658 P.2d 281 (Colo.App.1983). The doctrine, however, which excuses, as harmless, error of constitutional dimension is to be sparingly applied. People v. Myrick,......
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People v. Turner, 84CA0736
...be tested by examining the sufficiency of the instructions as a whole. Chambers v. People, 682 P.2d 1173 (Colo.1984); People v. Green, 658 P.2d 281 (Colo.App.1982). Reading the instructions as a whole, we are convinced that the jury was adequately apprised of the law, notwithstanding the de......
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...of sexual assault, it is sufficient that the evidence introduced was segregated and identified with the particular count. People v. Green, 658 P.2d 281 (Colo.App.1982). Here, each count was premised on a specific transaction identified by a date (within approximately sixty days) and by uniq......