People v. Hastings, 97CA0017.

• Decision Date: 10 December 1998
• Docket Number: No. 97CA0017.,97CA0017.
• Citation: 983 P.2d 78
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kim L. HASTINGS, Defendant-Appellant.
• Court: Colorado Court of Appeals

983 P.2d 78

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kim L. HASTINGS, Defendant-Appellant.

No. 97CA0017.

Colorado Court of Appeals, Div. I.

December 10, 1998.

Rehearing Denied January 21, 1999.

Certiorari Granted August 23, 1999.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Evan W. Jones, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

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

Opinion by Judge PLANK

Defendant, Kim L. Hastings, appeals from a judgment of conviction on jury verdicts finding her guilty of contributing to the delinquency of a minor and distribution of a controlled substance. We affirm.

The charges at issue were premised on allegations that defendant gave several diazepam pills to a thirteen-year-old girl who was a visitor at defendant's apartment. Defendant testified that the victim had misidentified herself as her eighteen-year-old sister and that she had given the victim only some generic ibuprofen tablets at the victim's request. However, the victim testified that she had received several pills from defendant of differing descriptions. During the police investigation, defendant confessed to giving the victim two diazepam tablets but thereafter recanted the confession, asserting that it was obtained by coercion.

I.

Defendant first contends that her conviction for contributing to the delinquency of a minor should be reversed because the jury was improperly instructed on the prosecution's burden of proof on a material element of the offense. We disagree.

Contributing to the delinquency of a minor is defined in §18-6-701(1), C.R.S.1998:

Any person who induces, aids, or encourages a child to violate any federal or state law, municipal or county ordinance, or court order commits contributing to the delinquency of a minor. For the purposes of this section, the term `child' means any person under the age of eighteen years.

Because the statute does not expressly state the mens rea required for the offense of contributing to the delinquency of a minor, the appropriate culpable mental state is "knowingly." See People v. Moore, 674 P.2d 354 (Colo.1984)

(mental state of "knowingly" generally applies when statute silent); People v. Trevino, 826 P.2d 399 (Colo.App.1991) (specifically approving mental state of "knowingly" for offense of contributing to the delinquency of a minor).

When a mental state is specified in a statute, or imputed under People v. Moore, supra,

that mental state applies to all the elements of the offense unless a contrary intent clearly appears in the statute. Section 18-1-503(4), C.R.S.1998; People v. Trevino, supra.

However, when an element of a crime is that the victim be under the age of eighteen years, under §18-3-406(1), C.R.S.1998, there exists an affirmative defense if the defendant reasonably believes the victim to be over the requisite age provided that the victim is at least fifteen years old. But, when an element of a crime is that the victim be under the age of fifteen years, there is no defense available based on the defendant's knowledge or belief as to the age of the victim. Thus, such crimes are strict liability offenses as to that element. See §18-3-406(2), C.R.S.1998; People v. Salazar, 920 P.2d 893 (Colo.App. 1996).

The affirmative defense statute is, however, silent as to the requisite mental state required when, as here, a statute proscribes conduct directed at a child under the age of eighteen where the victim is, in fact, under the age of fifteen.

A division of this court previously determined that the mental state "knowingly" applies to the age of the victim in a prosecution for contributing to the delinquency of a minor, but the effect of the affirmative defense in §18-3-406(1) was not addressed by the parties in that case, and the division expressly declined to consider it. People v. Trevino, supra.

A different division of this court stated, in construing the statute proscribing sexual exploitation of a child, that the affirmative defense in §18-3-406(1) "manifests a clear legislative intent that the culpable mental state of `knowingly' does not apply to the age of the victim," at least when the victim's age is between fifteen and eighteen years. People v. Bath, 890 P.2d 269, 271 (Colo.App. 1994). We read §18-3-406 as expressing the General Assembly's clear intention to provide a defendant with an affirmative defense if he or she reasonably believes a victim to be eighteen years of age or older, but to deny any defense based on a belief about the age of a victim when the criminal conduct is directed at a child under the age of fifteen. It would be incongruous to hold that the General Assembly intended to require the prosecution, for crimes in which "the criminality of conduct depends on a child's being below the age of eighteen," to meet only the lesser burden of disproving the defendant's reasonable belief as to the victim's age when the victim is fifteen or older, but the higher burden of affirmatively proving the defendant's knowledge of the victim's age for a younger victim.

Furthermore, to the extent that the language of §18-3-406 is ambiguous regarding the General Assembly's intent under the circumstances presented here, we choose to construe it in favor of protecting the child victim rather than the adult perpetrator.

The General Assembly has the authority to create and limit the application of affirmative defenses. Rowe v. People, 856 P.2d 486 (Colo.1993). It also plainly has the authority to create crimes and elements of strict liability, especially where necessary to protect children from the acts and decisions of adults. See Hershorn v. People, 108 Colo. 43, 113 P.2d 680 (1941) (lack of knowledge of child's age no defense for selling liquor to an intoxicated minor); People v. Salazar, 920 P.2d 893 (Colo.App.1996) (the purpose underlying crime of statutory rape is to protect children from the consequences of acts they cannot comprehend; accordingly, §18-3-406(2), C.R.S.1998, makes sexual assault on a child a crime of strict liability as to the element of the victim's age); see also People v. Atchison, 22 Cal.3d 181, 583 P.2d 735, 148 Cal. Rptr. 881 (1978) (Clark, J., concurring and dissenting)

(mistake of age should not be a defense to a charge of contributing to the delinquency of a minor predicated on the furnishing of a controlled substance); Complaint Concerning Winton, 350 N.W.2d 337 (Minn.1984) (mistake of age is no defense to a charge of contributing to the delinquency of a minor); Pennsylvania v. Robinson, 497 Pa. 49, 54, 438 A.2d 964, 966 (1981) (statutory rape is a crime of strict liability as to the age of the victim, and by establishing it as such the legislature has expressed an intention to "protect those who are too unsophisticated to protect themselves"). Similarly, this court has held that the offense of assault on the elderly is a crime of strict liability as to the defendant's knowledge of the victim's age. People v. Suazo, 867 P.2d 161 (Colo.App. 1993).

Here, the jury was instructed, in pertinent part, that, to find defendant guilty of contributing to the delinquency of a minor, it must find that she had:

3. knowingly,

4. induced, aided, or encouraged,

5. a person under the age of 18, [the victim],

6. to violate state law, to wit: Unlawful Use of a Controlled Substance....

During its deliberations, the jury requested clarification of whether "knowingly" applied to the element of the victim's age, and in particular whether the prosecution must prove that defendant knew the victim to be under the age of eighteen. The trial court, over defendant's objection, gave the following supplemental instruction to the jury:

[T]he mental culpability of `knowingly' as defined previously in the instructions applies only to the element of inducing, aiding, or encouraging a violation of state law under the elements of contributing to the delinquency of a minor. It does not apply to element 5 requiring the other person to be under the age of eighteen. The Court again instructs you that the prosecution bears the burden of proving beyond a reasonable doubt all of the elements set out in the instructions concerning contributing to the delinquency of a minor.

In light of our holding above, this supplemental jury instruction was a correct statement of the law and did not relieve the prosecution of the burden of proving a material element of the charged offense beyond a reasonable doubt. There was no error.

II.

Defendant next contends that her conviction for distribution of a controlled substance must be reversed because there was insufficient evidence to support it. We disagree.

When a defendant asserts that the evidence was insufficient to support a conviction, we review the evidence presented, in the light most favorable to the prosecution, to ascertain whether a reasonable juror could conclude that the prosecution proved all elements of the charged offense beyond a reasonable doubt. We may not substitute our judgment for that of the jury and reweigh the evidence or the credibility of witnesses, and we may not disregard the testimony of a witness unless it is utterly unbelievable. However, more than a modicum of evidence is required to prove an element beyond a reasonable doubt. Kogan v. People, 756 P.2d 945 (Colo.1988). The jury may not speculate, guess, or indulge in conjecture to reach its guilty verdict. People v. Gonzales, 666 P.2d 123 (Colo.1983).

Here, taking the evidence in the light most favorable to the prosecution, we conclude that the evidence presented at trial adequately supports a finding, beyond a reasonable doubt, that defendant knowingly distributed the controlled substance diazepam to the victim as charged.

In pertinent part, the jury was instructed that, to find defendant guilty...