People v. Madden, 03SC771.

• Decision Date: 18 April 2005
• Docket Number: No. 03SC771.,03SC771.
• Parties: The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Louis A. MADDEN, Respondent/Cross-Petitioner.
• Court: Colorado Supreme Court

111 P.3d 452

The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Louis A. MADDEN, Respondent/Cross-Petitioner.

No. 03SC771.

Supreme Court of Colorado, En Banc.

April 18, 2005.

Rehearing Denied May 16, 2005.¹

John W. Suthers, Attorney General, John J. Fuerst III, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, for Petitioner/Cross-Respondent.

David S. Kaplan, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Respondent/Cross-Petitioner.

Chief Justice MULLARKEY delivered the Opinion of the Court.

I. Introduction

In this case, we consider Louis Madden's convictions for attempted third degree sexual assault and attempted patronizing of a prostituted child. On appeal, Madden claimed that he was deprived of his constitutional right to know the nature and cause of the charges against him due to a difference between the charging document and the jury instructions in the description of third degree sexual assault. Madden also argued that he could not be convicted of attempted patronizing a prostituted child because there was no evidence that the victim received or that Madden gave anything of value in exchange for sex. In People v. Madden, 87 P.3d 153 (Colo.App.2003), the court of appeals reversed Madden's conviction for attempted third degree sexual assault, but upheld the conviction for attempted patronizing of a prostituted child.

Contrary to the court of appeals, we conclude that the information adequately notified Madden that he should be prepared to defend against evidence of attempted third degree sexual assault as it was described in the jury instructions. Consequently, his constitutional right to notice was not violated and we uphold his conviction for attempted third degree sexual assault. We also find that the crime of patronizing a prostituted child requires that the defendant must either give or receive something of value in exchange for sex with the child. Because no evidence was presented that Madden gave or the victim received anything of value in exchange for sex, his conviction for attempted patronizing of a prostituted child was in error. Accordingly, we reverse the court of appeals' decision.

II. Facts and Proceedings Below

On her way from school, S.J., a fourteen-year old girl, boarded the Durango Lift Trolley. As she was boarding, the driver said something to her to the effect of "a pretty young girl like you should have sex with me." S.J. responded "excuse me?" and sat in the back of the bus. After the only other passenger on the trolley disembarked, the driver made an unscheduled stop, approached S.J., and asked her to stand so that he could retrieve something from under her seat. When she stood, the driver pushed her against the window of the trolley, started kissing her neck, and said "Damn it, take your pants off." He then proceeded to unbuckle his pants and lift up S.J.'s shirt. S.J. testified that she felt his penis on her stomach and then "something wet." At that point, another passenger boarded the trolley, and the driver returned to his seat.

S.J. told her foster mother about the incident two weeks later. There is some discrepancy over the date the incident occurred. S.J. wrote on her calendar on January 20, 2000, "the guy that [sic] did something to me on the trolley." S.J.'s foster mother also noted on her daily log of S.J.'s behavior that S.J. acted "upset" and "angry" on January 20, 2000. Based on these calendar entries, S.J. was shown a photographic line up including drivers who worked on January 20, 2000. She was unable to make an identification out of this line up. Madden drove the trolley on January 21, 2000. His photograph was included in a second line up, and S.J. selected him as the perpetrator.

Madden was subsequently charged with: (1) attempted sexual assault on a child by one in a position of trust;² (2) attempted patronizing a prostituted child;³ and (3) attempted third degree sexual assault.⁴ The trial judge dismissed the first charge and a jury convicted Madden of the second and third charges. Madden appealed.

The court of appeals reversed Madden's conviction for attempted third degree sexual assault and affirmed his conviction for attempted patronizing a prostituted child. Madden, 87 P.3d at 159. With respect to the conviction for attempted third degree sexual assault, the court held that the trial court committed per se reversible error "[b]ecause the jury instruction for third degree sexual assault required proof of an alternative method of committing the crime not contemplated by the information." Id. at 157. The information alleged that Madden committed attempted third degree sexual assault by engaging in conduct constituting a substantial step toward "induc[ing] or coerc[ing] a child,... to expose intimate parts."⁵ By contrast, the jury instructions defined attempted third degree sexual assault as engaging in conduct constituting a substantial step toward "knowingly subject[ing] a person to any sexual contact."⁶ The court of appeals was persuaded that the change in language violated Madden's constitutional rights by requiring him to "answer a charge not contained in the charging documents." Id. (citing Schmuck v. United States, 489 U.S. 705, 717, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989)). The court further found that the error required per se reversal.

With respect to the conviction for attempted patronizing a prostituted child, the court found that the statutory language defining the offense was unambiguous and that the statute applied irrespective of whether the defendant "attempted to have the victim act as a `prostitute.'" Id. at 156. Under the court of appeals' holding, all that is required to be convicted of attempted patronizing a prostituted child is that the defendant takes a "substantial step toward inducing the victim to perform a sexual act." Id. The court therefore held that the evidence presented was sufficient to support Madden's conviction.

We granted the People's petition for certiorari review of the court of appeals' reversal of Madden's conviction for attempted third degree sexual assault. We also granted Madden's cross-petition for certiorari regarding his conviction for attempted patronizing a prostituted child.⁷ We now reverse the court of appeals on both issues, upholding the conviction for attempted third degree sexual assault, but reversing Madden's conviction for attempted patronizing a prostituted child.

III. Analysis

A. Difference in the Description of Attempted Third Degree Sexual Assault

We begin by examining Madden's contention that the difference in the description of third degree sexual assault between the charging document and the jury instructions violated his constitutional rights. Although the briefs concentrated on whether the difference was per se reversible error or must be analyzed under plain error, we must first determine whether it amounted to error at all.

The United States and Colorado Constitutions guarantee a defendant the fundamental right to be notified of the charges made against him. U.S. Const. amend. VI; Colo. Const. Art. II, Sec. 16; People v. Cooke, 186 Colo. 44, 46, 525 P.2d 426, 428 (1974). In Colorado, notice is accomplished through the filing of an indictment, complaint, or information. § 16-5-101, C.R.S. (2004). Madden was notified of the charges against him by information. Because the notice requirement lies at the foundation of the due process of law, a defendant cannot be required to answer a charge not contained in the information. Schmuck, 489 U.S. at 717, 109 S.Ct. 1443; People v. Rodriguez, 914 P.2d 230, 257 (Colo. 1996).

Madden was charged with attempted third degree sexual assault. §§ 18-2-101 & 18-3-404(1.5). Section 18-3-404(1.5) sets forth the crime of third degree sexual assault as follows:

Any person who knowingly, with or without sexual contact, induces or coerces a child by any of the means set forth in section 18-3-402 or 18-3-403 to expose intimate parts or to engage in any sexual contact, intrusion, or penetration with another person, for the purpose of the actor's own sexual gratification, commits sexual assault in the third degree.

(emphasis added).⁸ This statute prohibits two forms of conduct-inducing a child to expose intimate parts, with or without sexual contact, and inducing a child to engage in any sexual contact. The information charging Madden with attempted third degree sexual assault highlighted the first form of conduct. Specifically, the information charged Madden with "engaging in conduct constituting a substantial step toward its commission, namely, defendant did attempt to unlawfully, feloniously and knowingly, with or without sexual contact, induce or coerce a child, ... to expose intimate parts." (emphasis added) The information cited the attempt statute, section 18-2-101, and the third degree sexual assault statute, section 18-3-404(1.5), as the basis for the charge against Madden.

The jury instructions, on the other hand, incorporated the second form of prohibited conduct. The instructions for attempted third degree sexual assault stated that the elements of that offense were:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. with the intent to commit the crime of Third Degree Sexual Assault by Force,

4. engaged in conduct constituting a substantial step toward the commission of Third Degree Sexual Assault by Force.

In contrast to the information, the jury instruction advised that Madden committed third degree sexual assault if he "knowingly subjected a person to any sexual contact."⁹ Madden asserts that the difference between the information and the instructions amounted to a change in the essential elements of the crime charged. He alleges that the change compelled him to answer a charge not contained in the charging instrument, thereby depriving him of his constitutional right...