People v. Keene, No. 08CA2189.

• Decision Date: 30 April 2009
• Docket Number: No. 08CA2189.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Christopher Ryan KEENE, Defendant-Appellee.
• Court: Colorado Court of Appeals

226 P.3d 1140

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Christopher Ryan KEENE, Defendant-Appellee.

No. 08CA2189.

Colorado Court of Appeals, Div. VI.

April 30, 2009.

John R. Newsome, District Attorney, Stephanie M. Cusick, Deputy District Attorney, Janye Candea-Ramsey, Deputy District Attorney, Doyle Baker, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellant.

Douglas K. Wilson, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee.

Opinion by Judge HAWTHORNE.

The People appeal the trial court's order, entered at a preliminary hearing, reducing two class three felony sexual assault charges against defendant, Christopher Ryan Keene, to class four felony charges and dismissing five other sexual assault charges against defendant. We affirm in part, reverse in part, and remand the case with directions.

I. Procedural Background

The People charged defendant with a total of ten counts of sexual assault arising from four separate incidents, each involving a different victim. Counts one, two, and three of the People's amended complaint pertain to defendant's encounter with J.W. Counts one and two allege defendant sexually assaulted J.W. through the actual application of physical force or physical violence in violation of sections 18-3-402(1)(b), (4)(a), and 18-3-402(1)(a), (4)(a), C.R.S.2008, respectively, class three felonies. Count three alleges defendant sexually assaulted J.W. in violation of section 18-3-402(1)(a), a class four felony. Absent the alleged aggravating factor of physical force or physical violence in count two, it is identical to count three.

Counts four, five, and six relate to defendant's encounter with D.M. Counts four and five allege defendant sexually assaulted D.M. through the actual application of physical force or physical violence in violation of sections 18-3-402(1)(b), (4)(a) and 18-3-402(1)(a), (4)(a), respectively, class three felonies. Count six alleges defendant sexually assaulted D.M. in violation of section 18-3-402(1)(a), a class four felony. Again, only the aggravating factor of physical force or physical violence in count five distinguishes it from count six.

Counts seven, eight, and nine allege defendant sexually assaulted B.I. in violation of sections 18-3-402(1)(h), C.R.S.2008, 18-3-402(1)(b), and 18-3-402(1)(a), respectively, all class four felonies.

Count ten, which alleges defendant sexually assaulted E.T. in violation of section 18-3-402(1)(a), is not involved in this appeal.

At the preliminary hearing, the People presented testimony from the officer who investigated all four alleged sexual assaults. None of the victims testified. At the conclusion of the People's evidence, the trial court found that there was insufficient evidence to establish probable cause to believe that defendant applied physical force or physical violence against J.W. Therefore, the court reduced count one to a class four felony. The court dismissed count two in its entirety because once the court found no probable cause for the physical force or physical violence allegations, count two, also reduced to a class four felony, was duplicative of count three.

Likewise, the court found there was insufficient evidence to establish probable cause to believe that defendant applied physical force or physical violence against D.M., and therefore, it reduced count four from a class three to a class four sexual assault charge and dismissed count five. Again, because the court found no probable cause to believe that defendant used physical force or physical violence, count five, charged as a class four felony, would have duplicated count six.

The court also found that there was insufficient evidence to establish probable cause to believe that defendant sexually assaulted B.I., and it dismissed counts seven, eight, and nine.

The People now appeal the trial court's order reducing and dismissing the charges against defendant.

II. Jurisdiction

Initially, defendant contends that because the People's notice of appeal was filed more than ten calendar days after the trial court issued its order reducing and dismissing the charges, under C.A.R. 4.1(b) we lack jurisdiction to review the People's appeal.

This argument was previously considered and rejected by the motions division of this court. We have reviewed this argument and agree with the motions division. See C.A.R. 26(a) (unless otherwise specifically ordered, when period of time prescribed or allowed by appellate rule is less than eleven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation). Accordingly, we address the issues raised in the People's appeal.

III. Physical Force or Physical Violence

The People contend that the trial court erred in concluding that the prosecution failed to show probable cause for the "physical force or physical violence" element of sexual assault under section 18-3-402(4)(a) concerning J.W. and D.M. We agree as to J.W., but disagree as to D.M.

When a trial court bases its ruling at a preliminary hearing on its review of the evidence and correct conclusions of law and legal standards, we review only for an abuse of discretion. People v. Beck, 187 P.3d 1125, 1127 (Colo.App.2008). However, when a court applies erroneous legal standards or bases its ruling on erroneous conclusions of law, we review the record to determine whether the evidence, viewed in the light most favorable to the prosecution, would induce a reasonably prudent and cautious person to entertain the belief that the defendant committed the crimes charged. Id. Thus, we must first consider whether the trial court based its rulings on correct conclusions of law. Id.

The trial court concluded that evidence that defendant used his body weight to hold down J.W. and D.M. during the alleged sexual assaults was inadequate to establish probable cause to believe that defendant sexually assaulted J.W. and D.M. through the actual application of physical force or physical violence. The trial court reasoned:

[T]o find [the actual application of physical force or physical violence], to say that this case has force just based on the fact that the defendant allegedly has his body weight on the victim, I think would mean that just about every sexual assault that there is would be [a class three felony] rather than a [class four felony]. The problem [the court has] is [there is] nothing here to distinguish between the class three felony and the class four felony. I don't have that extra added physical force. There is no holding her down, holding her wrists, holding her neck, covering her mouth, threatening her, hitting her. Any of the things that we normally see in [a class three felony] where there is an actual application of physical force or physical violence which all the case law tells me is needed. Something extra to have that extra application of physical force or physical violence.

Based on this reasoning, we infer that the trial court concluded that evidence that a defendant's body weight prevented a victim from escaping a sexual assault is categorically insufficient to constitute the actual application of physical force or physical violence under section 18-3-402(4)(a). Because this is a conclusion of law, our review of it is de novo. Id.

Under section 18-3-402(4)(a), sexual assault is a class three felony if the actor causes "submission of the victim through the actual application of physical force or physical violence." See § 18-3-402(4)(a); People v. King, 151 P.3d 594, 600 (Colo.App.2006). Neither this section, nor any other section of the criminal code, provides a definition of "physical force" or "physical violence."

However, a division of this court has concluded that the definitions of "physical force" to mean "force applied to the body" and "physical violence" to mean "unjust or unwarranted exercise of physical force," as those terms are used in section 18-3-402(4)(a), are not inaccurate. People v. Holwuttle, 155 P.3d 447, 449 (Colo.App.2006). These definitions of "physical force" or "physical violence" do not require an "extra application" of force other than any force applied to the body. We are persuaded by the division's analysis and adopt these definitions, although we note that the physical force or physical violence, as defined here for the purposes of section 18-3-402(4)(a), must cause the victim to submit to sexual intrusion or sexual penetration.

Thus, we conclude that evidence that a defendant's body weight caused the victim to submit against his or her will is sufficient to establish probable cause to believe that the defendant applied the physical force required under section 18-3-402(4)(a).

Other jurisdictions have addressed similar statutes in the context of whether an assailant used physical force by holding a victim down with his body weight during a sexual assault and reached the same conclusion. In United States v. Allery, 139 F.3d 609, 611 (8th Cir.1998), the court held that a defendant used physical force and committed abusive sexual contact by force in violation of 18 U.S.C. § 2241(a)(1) when the evidence indicated that the victim attempted to push the defendant away and the defendant physically restrained the victim by lying on top of her at the same time he was having sexual intercourse with her. According to the court, the statutory language did not require force that prevents the victim's escape. Rather, it required the use of force sufficient to restrain the victim and allow the actor to engage in sexual contact.

The court in Commonwealth v. Riley, 434 Pa.Super. 414, 418, 643 A.2d 1090, 1092 (1994), reached a similar conclusion. There, the evidence showed that the victim did not consent to sexual intercourse with the defendant and that, despite the lack of consent, the defendant laid on top of the victim, pinned her down with his body weight, and sexually penetrated...