People v. Hansen

• Decision Date: 09 November 1995
• Docket Number: No. 93CA1133,93CA1133
• Citation: 920 P.2d 831
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Reid Glazier HANSEN, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 831

920 P.2d 831

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Reid Glazier HANSEN, Defendant-Appellant.

No. 93CA1133.

Colorado Court of Appeals Div. III.

Nov. 9, 1995.

As Modified on Denial of Rehearing

Dec. 21, 1995.

Certiorari Denied Aug. 19, 1996.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Roger G. Billotte, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Thomas K. Carberry, Deputy State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge BRIGGS.

Defendant, Reid Glazier Hansen, appeals the judgment of conviction entered on a jury verdict finding him guilty of sexual assault on a child as part of a pattern of sexual abuse. Defendant contends the trial court violated his right to due process by refusing to require the prosecutor to elect a specific act on which the charge was based and to provide that specification in the "pattern of sexual abuse" jury instructions. Defendant also challenges another aspect of those instructions and the trial court's admission of testimony by several witnesses concerning hearsay statements of the child. We affirm.

Defendant was charged in separate counts with sexual assault on a child by a person in a position of trust for his alleged sexual assault of a neighbor girl; aggravated incest for his alleged sexual assault of his son; and sexual assault as part of a pattern of sexual abuse, also for alleged sexual assaults of his son. After a jury trial, defendant was acquitted of sexual assault of the neighbor girl and of aggravated incest but was convicted of sexual assault of his son as part of a pattern of sexual abuse.

I.

Defendant contends that his right to due process was violated by the trial court's refusal to require the prosecution to elect a specific, predicate act on which to base the charge against him under § 18-3-405(2)(d), C.R.S. (1995 Cum.Supp.) of sexual assault on a child as part of a pattern of sexual abuse. In the circumstances presented here, we conclude that the alleged error must be addressed under a plain error standard and, applying that standard, find no reversible error.

A.

If defendant failed to bring the objection to the attention of the trial court in a timely manner, our review is limited to determining whether the failure to require an election and provide more specificity in the instruction constitutes plain error. Under this standard, defendant must demonstrate not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed to his conviction. See People v. Rubanowitz, 688 P.2d 231 (Colo.1984).

An objection pertaining to instructions must be sufficiently specific to bring the alleged error to the trial court's attention. This affords the court an opportunity to correct or clarify misleading or erroneous instructions before they are given to the jury. A general objection that does not articulate the alleged error is therefore insufficient. See Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Colo.1984).

Here, defense counsel filed a motion before trial requesting that the court order an election of a specific date and act as to the charged offense. No reference was made to any particular count.

At a hearing on the motion, the trial court stated that, in regard to the charge of pattern of sexual abuse, it would give an instruction requiring the jury to be unanimous as to specific acts. In addition, the acts relied on would have to be identified in some fashion. However, the prosecutor was not required to make any election before the presentation of evidence. The court therefore denied the motion as premature, without prejudice to the right of defendant to raise the motion again at the conclusion of the evidence.

At trial, after the prosecution had presented its case, defense counsel again requested that the prosecutor be required to select a specific act. However, counsel then stated it appeared from the jury instructions and discussions off the record that the prosecutor had done so, apparently referring to count two, the charge of aggravated incest. The court responded that it had required that a specific act be elected as to that count.

As to the charge of pattern of sexual abuse in count three, defense counsel argued only that the statute was unconstitutionally vague. The court rejected the argument and then asked for objections to jury instructions. As to the instructions pertaining to the charge of pattern of sexual abuse, defense counsel stated that his only objection was "basically tied in to [the] argument that the sexual assault on a child pattern statute is unconstitutional...."

During its deliberations, the jury in a note indicated that it had reached a verdict on two of three counts but not the third. Defense counsel made no objection to the court's proposed response that the jury continue deliberations. However, counsel indicated defendant was not waiving any argument that, if the jury did not convict on count two, the charge of aggravated incest, it could not convict on count three because count two specified the predicate offense. Once again, no objection was stated to the form in which any of the counts had been submitted to the jury in its instructions.

At no time during the trial did defense counsel request that the prosecutor elect any specific act or acts relied upon for count three. Nor did defense counsel object to the instructions on pattern of sexual abuse because they failed to specify the acts charged.

After the jury returned its verdicts of not guilty as to counts one and two, but guilty as to count three, defense counsel filed a written motion to vacate the guilty verdict and dismiss the count. The stated basis was that the verdicts were inconsistent because count two, the charge of aggravated incest, provided the predicate act for the charge of pattern sexual abuse. In oral argument on the motion, defense counsel argued that: (1) the prosecutor had not been required to elect a substantive offense for count three; (2) count two had therefore provided the substantive offense; and (3) because defendant had been acquitted of count two, defendant had been convicted of a crime that "cannot occur."

The trial court noted that the instructions pertaining to count three had charged defendant with subjecting the victim to a sexual assault, had set forth all the elements of the crime, and had informed the jurors they had to find either that all of the incidents described in the evidence that met that description had occurred or that two particular incidents had occurred. Concluding that this was all the statute required, the court denied the motion.

In these circumstances, defendant failed to bring to the attention of the court in a timely manner the arguments that the prosecutor should have been required to elect a specific predicate act for the charge in count three of pattern of sexual abuse and that the acts should have been described in the jury instructions pertaining to that crime. See Blueflame Gas, Inc. v. Van Hoose, supra; cf. Dahl v. Young, 862 P.2d 969 (Colo.App.1993). Accordingly, reversal is required only if the failure to provide such specification constituted plain error.

B.

Section 18-3-405, C.R.S. (1986 Repl.Vol. 8B) defines sexual assault on a child. Section 18-3-405(2), C.R.S. (1995 Cum.Supp.) designates the crime as a class 4 felony, but specifies that it becomes a class 3 felony if:

(d) The actor commits the offense as 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). (emphasis added)

Section 18-3-401(2.5), C.R.S. (1995 Cum.Supp.) defines "pattern of sexual abuse" as "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."

Section 18-3-405(2)(d) is a sentence enhancement provision, see People v. Longoria, 862 P.2d 266 (Colo.1993), which requires, among other things, that the prosecution charge and prove beyond a reasonable doubt that the defendant committed "the offense charged in the information or indictment." Thus, the prosecution must allege and prove the commission of a particular sexual assault with the same degree of specificity as required to allege and prove the commission of sexual assault without enhancement under § 18-3-405(1). The prosecution must then allege and prove, with the same specificity, at least one additional sexual assault within the prescribed time period. See People v. Graham, 876 P.2d 68 (Colo.App.1994) (Criswell, J., concurring in part and dissenting in part).

Cases involving charges of continuing sexual abuse of a child present a dilemma. On the one hand, a defendant has the right to sufficient notice of the act or acts charged to prepare a defense and sufficient specificity to be protected from double jeopardy, as well as the right to require that the jury be unanimous in determining the act or acts upon which a verdict of guilt is based and that the verdict be supported by sufficient evidence. See People v. Estorga, 200 Colo. 78, 612 P.2d 520 (1980).

On the other hand, children are often unable to describe specific incidents of sexual assault. The difficulty in describing a particular incident increases when the child is young, the molester has resided with the child or otherwise has had unchecked access to the child, and the abuse has...