People v. Renander

• Decision Date: 30 November 2006
• Docket Number: No. 06CA1546.,06CA1546.
• Citation: 151 P.3d 657
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Joseph K. RENANDER, Defendant-Appellee.
• Court: Colorado Court of Appeals

151 P.3d 657

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Joseph K. RENANDER, Defendant-Appellee.

No. 06CA1546.

Colorado Court of Appeals, Div. VI.

November 30, 2006.

Scott W. Storey, District Attorney, Donna Skinner Reed, Chief Appellate Deputy District Attorney, Golden, Colorado, for Plaintiff-Appellant.

Douglas K. Wilson, Colorado State Public Defender, Nancy Holton, Deputy State Public Defender, Cobea E. Becker, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee.

Opinion by Chief Judge DAVIDSON.

This interlocutory appeal arises from charges of sexual exploitation of a child filed against defendant, Joseph K. Renander. At a pretrial hearing, the trial court ordered the prosecution to reassemble thirty-one of the counts, which effectively resulted in the dismissal of eleven of the original charges. The People appeal, alleging that the trial court improperly interfered with the authority of the executive branch to decide matters pertaining to charging, in violation of the doctrine of separation of powers. We reverse and remand.

The prosecution originally charged defendant with forty-seven felony and misdemeanor counts. Count one charged sexual exploitation of a child pursuant to § 18-6-403(3)(a), C.R.S.2006, a class three felony; counts two and three charged of violation of bail bond conditions pursuant to § 18-8-212, C.R.S. 2006, class six felonies; counts five through fifteen charged sexual exploitation of a child pursuant to § 18-6-403(3)(b.5), C.R.S.2006, class one misdemeanors; and counts sixteen through forty-seven charged class three felony sexual exploitation of a child pursuant to § 18-6-403(3)(b), C.R.S.2006. The charges pertained to the alleged possession and production of photographic images of children engaged in various acts of explicit sexual conduct.

Counts five through forty-seven were charged by the prosecution on a per-image basis, that is, one count for each particular photographic image. That method of charging resulted in several different counts that involved photographs of the same child, sometimes in a different pose or act.

Prior to trial, defendant moved to dismiss counts seven through fifteen and seventeen through forty-seven on grounds of double jeopardy and multiplicity of charges. After argument on defendant's motion, the court declined to decide the issue on constitutional grounds but, instead, ordered the prosecutor to "reassemble the counts by victim rather than by image." The court explained its ruling as follows:

I'm doing that for two reasons that perhaps are somewhat unique to this case: First reason: that is the way the People have already charged Count 1. And to be consistent, and to avoid juror confusion, I think it makes sense to do the counts by victim as opposed to by image. Secondly, a question has been raised as to whether or not the People can carry their burden of proof that these images are of children and are live children as opposed to animations, if we separate the counts by image as opposed to by child, there is the danger of inconsistent verdicts on that issue as to the same child. Therefore, the court orders that the counts be restructured so that there is a separate count as to each child, even though there are multiple images of that child engaging in different acts.

The prosecutor filed a motion for reconsideration. The prosecutor pointed out that such rearrangement effectively resulted in the dismissal of eleven of the charges and argued that such a dismissal was an improper judicial interference with prosecutorial discretion.

The following day, the People filed this interlocutory appeal, contending that the trial court's ruling resulting in the dismissal of eleven of the counts filed against defendant violated the separation of powers doctrine. We agree.

I. Propriety of Appellate Review

As a threshold matter, we address and reject defendant's contention that this is an improper interlocutory appeal. See § 16-12-102(1), C.R.S.2006; C.A.R. 4(b)(3) (unless the order is based on a determination that a statute, municipal charter provision, or ordinance is unconstitutional, the People may appeal from an order dismissing one or more but less than all counts of a charging document prior to trial).

II. Standard of Review

Because the trial court's ruling involves issues of law, our review is de novo. See In re Estate of Sheridan, 117 P.3d 39, 41 (Colo. App.2004) (determinations of law are reviewed de novo).

III. Separation of Powers

Article III of the Colorado Constitution divides the power of state government into three distinct, co-equal branches and instructs that "no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others." This directive, known as the separation of powers doctrine, bars the judiciary from interfering with the executive or legislative branches. Pena v. Dist. Court, 681 P.2d 953, 955-56 (Colo.1984).

A prosecuting attorney belongs to the executive branch. And, as a general matter, the power to initiate, alter, or dismiss charges rests solely within the prosecuting attorney's discretion, and may not be controlled or limited by judicial intervention. See People v. Dist. Court, 632 P.2d 1022, 1024 (Colo.1981); People v. Dist. Court, 186 Colo. 335, 339, 527 P.2d 50, 52 (1974).

It is solely the authority of the prosecutor to decide matters involving the charging of offenses. See People v. Lichtenstein, 630 P.2d 70, 72 (Colo.1981) ("It is well settled that the prosecution has the constitutional power to exercise its discretion in deciding which of several possible charges to press in a prosecution."); Myers v. Dist. Court, 184 Colo. 81, 85, 518 P.2d 836, 838 (1974) (same); see also People v. Dist. Court, supra, 632 P.2d at 1024 ("The scope of the [prosecutor's] discretion extends to the power to investigate and to determine who shall be prosecuted and what crimes shall be charged.").

Conversely, interference by a court with the authority of the prosecution to dismiss charges once filed may occur only in limited circumstances: (1) when exercising its supervisory authority to dismiss on constitutional grounds (e.g., infringement of defendant's due process rights); (2) when exercising its supervisory authority to protect the integrity of the judicial process (e.g., prosecutorial misconduct that interferes with grand jury's independent function); (3) upon determination that the evidence is insufficient to support prosecution; or (4) when authorized by statute that is consistent with constitutional separation of powers (e.g., General Assembly amended § 16-8-114.5(2) to transfer from the courts to the prosecutor the power to dismiss pending criminal proceedings against incompetent defendants). See People v. Zapotocky, 869 P.2d 1234, 1243-44 (Colo.1994); People v. Dennis, 164 Colo. 163, 166, 433 P.2d 339, 340 (1967) (trial court's power to approve People's dismissal of charges under Crim. P. 48(a) does not grant court authority to sua sponte initiate dismissal); See also U.S. v. Turner, 620 F.Supp. 525, 527 (D.Colo.1985).

A. Court's Stated Grounds

Here, the trial court gave two reasons for its order: (1) to avoid juror confusion by arranging the charges in a consistent manner; and (2) to avoid inconsistent verdicts that could potentially result if the jury found defendant guilty with respect to some images of a particular child, but not as to other images of the same child. However, although the trial court's underlying concerns were certainly legitimate, these grounds do not provide a permissible basis on which effectively to dismiss charges otherwise properly filed. See People v. Dist. Court, supra, 186 Colo. at 339, 527 P.2d at 52 ("A prosecutor's discretion in charging, deferring or requesting dismissal is limited by pragmatic factors, but not by judicial intervention."); see also People v. Dennis, supra, 164 Colo. at 166, 433 P.2d at 340 ("However well intentioned the trial judge may have been in determining that further prosecution of the case was a useless and unnecessarily costly procedure, it was not within his power to dismiss the case when he did.").

B. Other Grounds

Defendant contends that, even if the particular grounds given by the trial court were insufficient to require the prosecutor to organize the charges by victim and not by image, constitutional principles of double jeopardy and multiplicity require the charges to be so grouped. He relies on Woellhaf v. People, 105 P.3d 209, 216 (Colo.2005), which held that, even when several types of sexual contact occur during an assault, a single incident of sexual assault constitutes only a single charge under § 18-3-405, C.R.S.2006. Accordingly, defendant argues, possessing multiple images of a single child should only constitute a single charge under § 18-6-403, C.R.S.2006.

The People counter that, not only does § 18-6-403 permit charging on a per-image basis, but also, because § 18-6-403(1.5), C.R.S. 2006, states that the child victim is harmed each time sexually exploitative material is viewed, the statute authorizes a discrete charge for each viewing of a sexually exploitative image. We disagree with defendant, and agree with the People in part. We conclude that, under the statute, each offending image constitutes a separate and distinct sexual exploitation and therefore is a separate, chargeable offense.

The Double Jeopardy Clauses of the United States and Colorado Constitutions protect a defendant from being placed in jeopardy more than once for a single crime. This includes protection against multiple punishments for the same crime. U.S. Const. amend. V; Colo. Const. art. II, § 18; Woellhaf v. People, supra, 105 P.3d at 214.

Multiplicity is the charging of multiple counts and the imposition of multiple punishments for the same criminal conduct. People v. Borghesi, 66 P.3d 93, 98 (Colo.2003)....