People v. Greer

• Decision Date: 21 April 2011
• Docket Number: No. 08CA0329.,08CA0329.
• Citation: 262 P.3d 920
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee,v.Leotis Durwin GREER, Defendant–Appellant.
• Court: Colorado Court of Appeals

262 P.3d 920

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Leotis Durwin GREER, Defendant–Appellant.

No. 08CA0329.

Colorado Court of Appeals, Div. V.

March 3, 2011.As Modified on Denial of Rehearing April 21, 2011.

John W. Suthers, Attorney General, Matthew S. Holman, First Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.Pearson & Paris, P.C., Sean P. Paris, Michelle L. Searcy, Lakewood, Colorado, for Defendant–Appellant.Opinion by Judge GRAHAM.

Defendant, Leotis Durwin Greer, appeals the judgment of conviction entered on jury verdicts finding him guilty of one count of sexual assault on a child, one count of sexual assault as part of a pattern of sexual abuse, and five counts of unlawful sexual contact that the district court merged into one count. We reverse the judgment as to the merged counts of unlawful sexual contact, affirm in all other respects, and remand for further proceedings.

I. Background

Defendant was a manager at a fast-food restaurant where two teenage girls, S.D. and S.S., were employed. S.S. and S.D. testified to the following facts at defendant's trial.

On one shift, S.D., then fourteen, became uncomfortably warm while she was working the restaurant drive-thru window. Defendant told her that she could turn a fan on and although she told him she did not need help to reach the switch, defendant grabbed S.D.'s waist and lifted her to assist her reach. Defendant then left the drive-thru area. When he returned, he touched S.D.'s buttocks with his hand but told her it was an accident. Defendant again left the drive-thru area. He returned and touched S.D.'s buttocks with his hand several times, leaving between each touching for five to ten minutes. Finally, defendant returned to the drive-thru and while both were fully clothed stood behind S.D. and rubbed his penis on her buttocks.

S.S. began working at the restaurant when she was fifteen years old. While S.S. was working at the drive-thru window, defendant stood behind her and rubbed his penis against the center of her buttocks while both were fully clothed. Defendant repeated this act approximately twenty to thirty times while S.S. worked at the restaurant, always at the drive-thru window. Additionally, when S.S. was sixteen years old, defendant told her to go to the walk-in freezer to get some french fries. Defendant followed S.S. into the freezer and grabbed her hand and held it against his penis for about forty-five seconds. S.S. pulled her hand away and immediately left the freezer.

With respect to S.D., the People charged defendant with one count of sexual assault on a child (count 1) in violation of section 18–3–405(1), C.R.S.2010, and one count of sexual assault on a child-pattern (count 2) in violation of section 18–3–405(1) and (2)(d), C.R.S.2010. Concerning S.S., the People charged defendant with one count of unlawful sexual contact with force (count 3) in violation of sections 18–3–402(4), 18–3–404(1)(a) and (2), C.R.S.2010, and five counts of unlawful sexual contact (counts 4–8) in violation of section 18–3–404(1)(a).

The jury convicted defendant on all counts except count 3. Defendant appealed.

II. Double Jeopardy

We first reject defendant's argument that his convictions for counts 1 and 2 should be merged because he was charged with multiple offenses within the same unit of prosecution in violation of his rights against double jeopardy under both the United States and Colorado Constitutions.

We disagree with defendant that he preserved his double jeopardy argument by stating in his motion for judgment of acquittal regarding his acts toward S.D. that “in order to have a pattern, there has to be different and distinct acts.” This statement was not sufficient to alert the trial court as to the issue of double jeopardy. Accordingly, we review for plain error. People v. Tillery, 231 P.3d 36, 47 (Colo.App.2009) ( cert. granted May 24, 2010) (reviewing defendant's unpreserved claim of double jeopardy error and supplemental assertions for plain error under Crim. P. 52(b)). We recognize as plain error those obvious and substantial errors that “so undermined the fundamental fairness of the trial itself ... as to cast serious doubt on the reliability of the judgment.” People v. Miller, 113 P.3d 743, 749–50 (Colo.2005) (quoting People v. Sepulveda, 65 P.3d 1002, 1006 (Colo.2003)).

The Double Jeopardy Clauses of the United States and Colorado Constitutions protect an accused from being tried or punished multiple times for the same offense. U.S. Const. amend. V; Colo. Const. art. II, § 18; Woellhaf v. People, 105 P.3d 209, 214–15 (Colo.2005) (citing Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980)).

Double jeopardy is commonly implicated when a statute establishes multiple ways of committing the same offense and a defendant is charged with multiple offenses because the offense was committed using more than one of the alternative methods. Woellhaf, 105 P.3d at 215. In these situations, a defendant may be prosecuted for distinct offenses under the same criminal statute where (1) the unit of prosecution prescribed by the General Assembly permits the charging of multiple offenses, and (2) the evidence supporting each offense justifies the charging of distinct offenses. Id.

“Any sexual contact” constitutes the unit of prosecution for sexual assault on a child. Id. at 216. The prosecution may seek multiple convictions under the statute “if the evidence adduced in support of each count justifies the charging of distinct offenses.” Quintano v. People, 105 P.3d 585, 591 (Colo.2005).

Sexual assault incidents may be factually distinct if, among other things, separate criminal acts occurred at different times, were separated by intervening events, resulted from separate volitional events based on a “fresh impulse,” were temporally distinct, involved moving or repositioning the victim, involved penetration of different orifices, or involved more than one victim. Id.

Here, the prosecution had sufficient evidence to charge defendant with two counts arising from two separate sexual assault crimes on S.D. S.D. testified that defendant had touched her buttocks with his hand, then left the drive-thru for approximately five or ten minutes (or at another point she testified to as much as fifteen minutes), and returned several times to touch her buttocks with his hand again. S.D. testified that defendant again left the drive-thru and only then came back and rubbed his penis against her buttocks. Thus, the evidence demonstrated that the touchings resulted from separate volitional events. See id. at 592 (the relocation of the victim to various areas of the house, statements by the defendant indicating renewed intentions, the presence of a sufficient break in acts, and other circumstances offered the defendant an opportunity to reflect before embarking on a new course of conduct). Accordingly, the prosecution's separate charges were not improper based upon the evidence, and defendant was not placed in jeopardy of being charged and convicted twice for the same offense. We therefore discern no error, plain or otherwise.

III. Unanimity

Defendant complains of three unanimity problems. First, he contends that the trial court erred in not requiring the People to more specifically elect the act providing the basis for count 1 involving S.D. Second, he contends that the trial court erred in not requiring the People to elect a specific act for the pattern of abuse sentencing enhancer in count 2 or in not providing a modified unanimity instruction. Third, he complains that the trial court's solution of merging counts 4–8 into one count did not resolve the unanimity problem after the jurors convicted on each count but indicated by special interrogatory on the verdict forms that they were not unanimous as to the specific act which constituted the merged offense. We reject defendant's first two contentions but agree with the third.

An accused has the right to a jury trial and a unanimous jury verdict. U.S. Const. amends. VI, XIV; Colo. Const. art. II, §§ 16, 25; § 16–10–108, C.R.S.2010 (“The verdict of the jury shall be unanimous.”); Thomas v. People, 803 P.2d 144, 153–54 (Colo.1990). “The trial court is responsible for ensuring that the jury is properly instructed on the law and that a conviction on any count is the result of a unanimous verdict.” People v. Rivera, 56 P.3d 1155, 1160–61 (Colo.App.2002).

When evidence of many acts is presented, any one of which could constitute the offense charged, the trial court must take one of two actions to ensure jury unanimity: (1) require the prosecution to elect the transaction on which it relies for the conviction, or (2) if there is not evidence to differentiate between the acts and there is a reasonable likelihood that jurors may disagree on the act the defendant committed, instruct the jury that to convict it must agree unanimously that the defendant committed the same act or that the defendant committed all of the acts included within the period charged. See Thomas, 803 P.2d at 153–54; Rivera, 56 P.3d at 1160.

There are however several exceptions to this rule. “[W]hen the evidence does not present a reasonable likelihood that jurors may disagree on which acts the defendant committed, the prosecution need not designate a particular instance.” Quintano, 105 P.3d at 593 (quoting Thomas, 803 P.2d at 153–54). Additionally, when a defendant is charged with crimes occurring in a single transaction, the prosecutor need not elect among the acts, and the trial court need not give a modified unanimity instruction. Melina v. People, 161 P.3d 635, 639–40 (Colo.2007).

A. Unanimity for Count 1 Involving S.D.

Defendant contends that the trial court abused its discretion because the People's election of the specific act defendant committed for count 1 was insufficient to allow the jury to reach a unanimous decision. We disagree.

A trial court has discretion to...