People v. Lewis

• Decision Date: 30 November 2017
• Docket Number: Court of Appeals No. 14CA1545
• Citation: 433 P.3d 70
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ronald Laroy LEWIS, Defendant-Appellant.
• Court: Colorado Court of Appeals

433 P.3d 70

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

v.Ronald Laroy LEWIS, Defendant-Appellant.

Court of Appeals No. 14CA1545

Colorado Court of Appeals, Division II.

Announced November 30, 2017

Rehearing Denied January 11, 2018

Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by JUDGE DAILEY

¶ 1 Defendant, Ronald Laroy Lewis, appeals the judgment of conviction entered on jury verdicts finding him guilty of Internet sexual exploitation of a child and Internet luring of a child. We affirm.

I. Background

¶ 2 In response to Lewis's Craigslist advertisement soliciting a "barely legal" for sexual acts, Douglas County Sheriff's Detective Christine Brite pretended to be a fourteen-year-old girl named "Kayla Nelson." After exchanging sexually explicit messages via computers, Brite forwarded to Lewis an image of what appeared to be a teenage girl. Lewis inquired whether or not "Kayla" was "legit," sent "Kayla" a sexually explicit photograph of himself, and arranged to meet her.

¶ 3 Expecting to meet "Kayla" outside his residence in Jefferson County, Lewis was instead arrested by police and charged in Douglas County with Internet sexual exploitation of a child and Internet luring of a child. Lewis's defense at trial was that he did not really believe that the person responding as "Kayla" was only fourteen years old. A jury convicted him as charged.

¶ 4 On appeal, Lewis contends that (1) the trial court erred by instructing the jury that the prosecution was not required to prove that the offenses were committed, as charged, in Douglas County; (2) the prosecution failed to present substantial and sufficient evidence showing that the offense was committed in Douglas County; (3) the trial court erred in allowing the jury unsupervised access to the videotape of Lewis' interrogation by the police following his arrest; and (4) the prosecutor repeatedly made improper comments implying guilt based upon Lewis's exercise of his constitutional right to remain silent. We address—and reject—each contention in turn.

II. Instructing the Jury on the Prosecution's Burden of Proof with Respect to the County Where the Offenses Occurred

¶ 5 After the prosecution presented its case, the court received a question from a juror which read: "What are the jurisdictional roles in this case? A Douglas County detective arresting a Jefferson County suspect and a Littleton ‘victim.’ " With the parties' agreement, the court did not answer the question.

¶ 6 After the close of all the evidence, defense counsel asserted that the elemental instructions for the offenses should include a requirement that the prosecution prove beyond a reasonable doubt that the offenses were committed, as charged, in Douglas County. Defense counsel's assertion was premised on the view that proper venue is an element of a crime. The trial court rejected counsel's assertion, and, over his objection, instructed the jury, at the prosecutor's request, that "proof of the county in which the offense occurred shall not constitute an element of any offense and need not be proven by the prosecution at trial." The instruction's language was taken nearly verbatim from section 18-1-202(11), C.R.S. 2017, and the court noted that, under that statute, any issues pertaining to the proper venue for trial had to be raised before trial or they were waived.¹

A. Presentation and Preservation of Issues

¶ 7 Defense counsel objected to the court's instructions because, in his view, they improperly lowered the prosecution's burden of proof and therefore "impede[d] Mr. Lewis's due process rights under the state and federal constitutions." Lewis reasserts that position on appeal. To succeed, however, he recognizes that he also must contest the constitutionality of section 18-1-202(11), C.R.S. 2017.

¶ 8 "To preserve an issue for appeal, a defendant must alert the trial court to the particular issue." People v. Cordova , 293 P.3d 114, 120 (Colo. App. 2011). Here, when confronted by the trial court with section 18-1-202(11), defense counsel did not raise or challenge the constitutionality of the statute. It is doubtful, then, that counsel preserved such a challenge for appellate review. Nonetheless, we will assume, for purposes of this appeal, that he did so. We are willing to do so because Lewis's constitutional claim in the trial court was inextricably intertwined with the effect and validity of the statute on which the trial court relied.

B. Analysis

¶ 9 Lewis correctly points out that "[u]nder both the United States and Colorado Constitutions, due process requires the trial court to properly instruct the jury on every element of the substantive offense with which the defendant is charged so the jury may determine whether all the elements have been established beyond a reasonable doubt." People v. Pickering , 276 P.3d 553, 555 (Colo. 2011).

¶ 10 Lewis asserts that this was not done here, however, because the court failed to recognize that proper venue was a substantive element of the crimes charged.

¶ 11 In People v. Reed , 132 P.3d 347 (Colo. 2006), the supreme court succinctly recounted how the issue of venue as an element has been addressed in Colorado law:

Prior to 1992, in the absence of any legislative provision to the contrary, a defendant's right to trial in the county where the crime was committed was vindicated at the trial itself, with the prosecution having an obligation to prove venue as alleged, just "as any other issue in the case." If the issue was raised, and the prosecution failed to prove venue to the satisfaction of the trier of fact, beyond a reasonable doubt, the defendant was entitled to acquittal. Therefore, in a jury trial, unless there was not even sufficient evidence of the location of the crime to withstand a motion for judgment of acquittal, the issue was one for jury determination.

In 1992, however, the legislature radically changed the nature and effect of a venue determination, see Ch. 73, sec. 12, § 18-1-202(11), 1992 Colo. Sess. Laws 396, 402, placing Colorado among a small minority of jurisdictions treating venue solely as a procedural prerequisite to prosecution. No longer is an allegation of venue a matter to be proved to the satisfaction of the jury, as other elements of an offense, unless the statute defining the crime actually requires as much. § 18-1-202(11), C.R.S. (2005). Instead, any objection to the place of trial authorized by this provision is waived unless it is raised by written motion before trial, in the manner prescribed. Id.

Id . at 349-50 (footnote omitted) (some citations omitted).

¶ 12 Lewis points out, however, that the supreme court in Reed was not called upon to determine whether in 1992 the General Assembly could constitutionally convert venue from an element to a non-element of a crime. Lewis says it could not, based on Amendment VI to the United States Constitution.²

¶ 13 "A statute is presumed to be constitutional; the challenging party bears the burden of proving its unconstitutionality beyond a reasonable doubt." Dean v. People , 2016 CO 14, ¶ 8, 366 P.3d 593.

¶ 14 United States Constitution Amendment VI provides, in pertinent part, that

[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where the crime shall have been committed , which district shall have been previously ascertained by law.

(Emphasis added.)³

¶ 15 Most federal courts applying this provision recognize that, contrary to Lewis's position, venue is not an element of a crime which needs to be proven by the prosecution beyond a reasonable doubt. See, e.g. , United States v. Davis , 689 F.3d 179, 185 (2d Cir. 2012) ("Despite its constitutional pedigree, venue is not an element of any crime, so as to require proof beyond a reasonable doubt."); United States v. Engle , 676 F.3d 405, 412 (4th Cir. 2012) ("Venue ‘is not a substantive element of a crime.’ " (quoting United States v. Griley , 814 F.2d 967, 973 (4th Cir. 1987) )); United States v. Miller , 111 F.3d 747, 749 (10th Cir. 1997) ("Although venue is a right of constitutional dimension, and has been characterized as ‘an element of every crime,’ this court and others have consistently treated venue differently from other, ‘substantive’ elements of a charged offense. ... [V]enue need not be proved beyond a reasonable doubt.") (citation omitted).

¶ 16 True, in federal court, unless waived, the prosecution must prove venue to the jury's satisfaction by a preponderance of the evidence. See, e.g. , Davis , 689 F.3d at 185 ; Engle , 676 F.3d at 412 ; Miller , 111 F.3d at 749-50. But the clause in the Sixth Amendment on which those authorities rely has been held inapplicable to the states by the federal circuit courts of appeal and by most state courts that have squarely addressed the issue. See Stevenson v. Lewis , 384 F.3d 1069, 1071-72 (9th Cir. 2004) (collecting cases); see also Schmutz v. State , 440 S.W.3d 29, 35-39 (Tex. Crim. App. 2014) (collecting more cases to this effect). Because, in accord with those authorities, the right to a trial in the district where the defendant committed the crime is not one of those rights that rises to the level of being "fundamental and essential" to a fair trial, we too conclude that the part of the Sixth Amendment on which Lewis relies is not applicable through the Fourteenth Amendment to Colorado. See also, e.g. , Price v. Superior Court , 25 Cal.4th 1046, 108 Cal.Rptr.2d 409, 25 P.3d 618, 624-26 (2001).

¶ 17 A defendant's right to proper venue can be vindicated without having to submit the issue to a jury. See, e.g. , People v. Posey , 32 Cal.4th 193, 8 Cal.Rptr.3d 551, 82 P.3d 755, 759 (2004) (submitting the question of venue to a jury at the end of the case (1) undermines the...