People v. Johnson

• Citation: 381 P.3d 348,2016 COA 15
• Decision Date: 11 February 2016
• Docket Number: Court of Appeals No. 13CA1850
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. William Edward JOHNSON, Defendant–Appellant.
• Court: Court of Appeals of Colorado

381 P.3d 348

2016 COA 15

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

v.William Edward JOHNSON, Defendant–Appellant.

Court of Appeals No. 13CA1850

Colorado Court of Appeals, Div. I.

Announced February 11, 2016

Rehearing Denied March 17, 2016

Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Lauretta A. Martin Neff, Alternate Defense Counsel, Bayfield, Colorado, for Defendant–Appellant.

Opinion by JUDGE HARRIS

¶ 1 William Edward Johnson was convicted of various offenses related to the sexual assault of his stepdaughter. On appeal, he contends that there was insufficient evidence to support an enhancement for committing a pattern of sexual abuse. He also argues that the trial court erred in denying his request for substitute counsel and in giving the jury unfettered access to recorded testimonial evidence.

¶ 2 We agree with Mr. Johnson's first contention and vacate his conviction for sexual assault as a pattern of sexual abuse. But we reject his other contentions and affirm his remaining convictions.

I. Background

¶ 3 Mr. Johnson was arrested after a domestic disturbance. Shortly after his arrest, his stepdaughter, R.B., reported that Mr. Johnson had anally raped her earlier that day, and that he had been sexually abusing her for many years. Mr. Johnson was subsequently charged with sexual assault on a child by one in a position of trust, aggravated incest, two counts of sexual assault on a child (one of which was dismissed before trial), and a sentence enhancer for committing sexual assault as a pattern of sexual abuse.

¶ 4 R.B. and Mr. Johnson were separately interviewed by the same detective. R.B. recited numerous instances of inappropriate touching and attempted penetration, including an allegation that Mr. Johnson had rubbed his penis against her while she was sleeping in bed with him and her mother.

¶ 5 During his interview, Mr. Johnson was confronted with, and denied, all of R.B.'s allegations. He told the detective that R.B. was overly-curious about sex and had exhibited sexual behavior problems for a number of years, which Mr. Johnson attributed to R.B.'s early exposure to sexually explicit materials by a cousin. Mr. Johnson explained that, after an incident in which R.B. had come into the bedroom while he and her mother were having sex, R.B. would frequently climb on top of Mr. Johnson and “grind” her hips against him until he pushed her off. Mr. Johnson described an incident in which he was asleep, R.B. was grinding on him, and he woke up while he was ejaculating.

¶ 6 At trial, the prosecution presented the recorded interviews and also called R.B. as a witness. R.B. did not describe any incident involving grinding in either her testimony or the forensic interview.

¶ 7 The verdict form for the pattern of sexual abuse sentence enhancer included a special interrogatory listing alleged incidents of sexual abuse. If the jury found that Mr. Johnson had committed at least two of the enumerated incidents of abuse, it could convict him of the sentence enhancer. During its deliberations, the jury sent a question to the court asking if it could rely on an incident not listed in the special interrogatory. The court replied that it could and instructed the jury to write the unlisted incident on the verdict form.

¶ 8 The jury convicted Mr. Johnson of the pattern of abuse sentence enhancer, finding that he committed the anal rape, but none of the other listed incidents. For the required second incident, the jury wrote in: “The incident where the defendant admitted in his audio interview with [the detective] that he ejaculated while [R.B.] was sitting on top of him grinding.” The jury convicted Mr. Johnson on all other counts.

¶ 9 At sentencing, the trial court merged all of the other convictions into the conviction for sexual assault on a child as a pattern of sexual abuse and sentenced Mr. Johnson to twenty years to life in prison.

II. Insufficient Evidence

¶ 10 Mr. Johnson contends that there was insufficient evidence to convict him of the pattern of sexual abuse sentence enhancer, and that his conviction on this count should be vacated. We agree.

¶ 11 To be convicted of the pattern of sexual abuse sentence enhancer, in addition to the predicate offense of sexual assault on a child, “the jury must find beyond a reasonable doubt that the defendant completed at least two distinct incidents of sexual contact on the same child victim.” People v. Day, 230 P.3d 1194, 1197 (Colo.2010)

; see § 18–3–401(2.5), C.R.S.2015. The legislature has defined “sexual contact” as

the knowing touching of the victim's intimate parts by the actor, or of the actor's intimate parts by the victim, or the knowing touching of the clothing covering the immediate area of the victim's or actor's intimate parts if that sexual contact is for the purposes of sexual arousal, gratification, or abuse.

§ 18–3–401(4)

.

¶ 12 The jury must unanimously determine the incidents on which it bases its pattern of sexual abuse verdict. People v. Melillo, 25 P.3d 769, 779 (Colo.2001)

. Courts often rely on special interrogatories to ensure unanimity. See, e.g., Sanchez v. People, 2014 CO 29, ¶ 7, 325 P.3d 553

.

¶ 13 When the jury returned its verdict, it found Mr. Johnson guilty of the pattern of sexual abuse sentence enhancer based on two incidents—one that was listed in the special interrogatory, and one that the jury wrote in. By not checking the other boxes on the special interrogatory, the jury explicitly rejected R.B.'s six other allegations of sexual abuse. Mr. Johnson challenges only the sufficiency of the evidence for the unlisted incident.

¶ 14 He first contends that the court erred in allowing the jury to identify an incident of sexual abuse not listed in the special interrogatory. He argues that the jury was bound to the specifically identified incidents, and since it only found him guilty of one identified incident, there was insufficient evidence to support his conviction of a pattern of sexual abuse. We disagree.

¶ 15 The prosecution need not elect specific incidents of sexual contact to convict a defendant of the pattern of sexual abuse sentence enhancer. Melillo, 25 P.3d at 778

. The trial court need only instruct the jurors that “they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all of the acts described by the victim.” Thomas v. People, 803 P.2d 144, 154 (Colo.1990). Because the court provided the required instruction, it did not err in allowing the jury to identify an incident of sexual contact other than those listed on the special interrogatory.¹

¶ 16 Mr. Johnson next contends that even if the jury could rely on the unlisted incident, there was insufficient evidence to support his conviction of a pattern of sexual abuse. We review the record de novo to determine if the evidence was sufficient to support a conviction. Dempsey v. People, 117 P.3d 800, 807 (Colo.2005)

. In reviewing the sufficiency of the evidence, we determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is both “substantial and sufficient” to support the defendant's guilt beyond a reasonable doubt. Id. In applying this test, we “must give the prosecution the benefit of every reasonable inference, which might be fairly drawn from the evidence.” People v. Sprouse, 983 P.2d 771, 778 (Colo.1999). However, a mere modicum of relevant evidence will not rationally support a conviction beyond a reasonable doubt, and a verdict “may not be based on guessing, speculation, or conjecture.” Id.

¶ 17 The only evidence supporting this incident of sexual contact was Mr. Johnson's audiotaped interview with the detective. During the interview, the detective asked Mr. Johnson about allegations that R.B. came into Mr. Johnson's bed and made him ejaculate by “grinding” on him. Mr. Johnson then described an incident in which: (1) he was sleeping; (2) while he was sleeping, R.B. sat on top of him; (3) R.B. began grinding on him; (4) when he woke up, he immediately pushed her off; (5) but he was already ejaculating. Mr. Johnson was unequivocal that R.B. initiated the contact while he was asleep and, once he woke up, he immediately ended the contact.

¶ 18 Under Colorado law, “[t]he minimum requirement for the imposition of criminal liability is that the criminal act be performed voluntarily or consciously .” People v. Marcy, 628 P.2d 69, 73 (Colo.1981)

(emphasis added); see also § 18–1–502, C.R.S.2015. Therefore, a person cannot have unlawful sexual contact while he or she is asleep and unaware of the contact. See

Whatley v. State, 445 S.W.3d 159, 167 (Tex.Crim.App.2014) (the defendant could not be found guilty of sexual assault on a child if he was asleep during the alleged assault because the conduct would not have been voluntary); State v. Bush, 164 N.C.App. 254, 595 S.E.2d 715, 722 (2004)

(unconsciousness is a complete defense because it “excludes the possibility of a voluntary act without which there can be no criminal liability”); cf.

State v. Cabrera, 891 A.2d 1066, 1072 (Del.Super.Ct.2005) (sleepwalking is a defense to the crime of unlawful sexual contact). Thus, according to Mr. Johnson's interview, because he was asleep and could not have voluntarily or consciously touched R.B., he did not have unlawful sexual contact with her.

¶ 19 The People contend that this is merely Mr. Johnson's side of the story, and that the jury was free to reject this testimony in favor of R.B.'s. However, R.B. never testified, either in court or in her recorded interview, to any similar incident. Thus, this particular story did not have two sides.

¶ 20 The People suggest that in identifying the second incident of sexual contact, the jury credited R.B.'s testimony that Mr. Johnson would “rub his thing against” her while they were lying in bed. In R.B.'s forensic interview, she described occasions when: (1) she was asleep; (2) Mr. Johnson...