People v. San Emerterio

• Decision Date: 19 October 1992
• Docket Number: No. 91SC283,91SC283
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Nick SAN EMERTERIO, Respondent.
• Court: Colorado Supreme Court

Page 1161

839 P.2d 1161

The PEOPLE of the State of Colorado, Petitioner, v. Nick SAN EMERTERIO, Respondent.

No. 91SC283.

Supreme Court of Colorado,

En Banc.

Oct. 19, 1992.

Rehearing Denied Nov. 23, 1992.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Cheryl A. Linden, Asst. Atty. Gen., Denver, for petitioner.

David F. Vela, Colorado State Public Defender, David M. Furman, Deputy State Public Defender, Denver, for respondent.

Justice LOHR delivered the Opinion of the Court.

We granted certiorari to determine whether the Colorado Court of Appeals was correct in reversing the conviction of Nick San Emerterio for first-degree kidnapping. See People v. Emerterio, 819 P.2d 516 (Colo.App.1991). The court of appeals based its reversal on the conclusion that the victim's agreement to perform an act "after her release and over which defendant had no control to insure her performance" did not constitute a "concession" within the meaning of the first-degree kidnapping statute, section 18-3-301, 8B C.R.S. (1986). Emerterio, 819 P.2d at 519. We disagree with that conclusion and therefore reverse the court of appeals with directions to remand for entry of judgment and imposition of sentence for first-degree kidnapping.

I

The defendant was charged in El Paso County District Court with first-degree kidnapping, ¹ first-degree sexual assault, ² and soliciting for child prostitution, ³ based on events that occurred on October 17, 1987. The victim was a woman who was eighteen years old at the time. She testified at the defendant's jury trial and described her encounter with the defendant as outlined in the following paragraphs. The defendant did not testify.

On the afternoon of October 17, 1987, the victim was walking along a busy street in Colorado Springs on her way from her apartment to a convenience store a few blocks away. A vehicle driven by a person later identified as the defendant was traveling on a side street and stopped at the intersection with the street along which the victim was walking. The defendant opened the passenger door of the vehicle and asked the victim for directions. The victim offered directions and pointed the way. The defendant grasped her arm, pulled her into the vehicle against her will, and drove to the parking lot of a small, quiet shopping center several blocks away, all the while restraining the victim by her arm or her shirt. During the trip, the defendant said the victim was to perform sexual favors for him for fifty dollars and that he also wanted her to bring him some eleven- or twelve-year-old children so that he could take pictures of them. After stopping the vehicle in the parking lot, the defendant grasped the victim by the back of the head and forced her to place her mouth to his penis. Afterward, the defendant drove the vehicle down an alley, still holding the victim to prevent her from escaping, and stopped before entering a busy street.

After the sexual assault and continuing during the ensuing drive, the defendant again told the victim he wanted her to bring him eleven- or twelve-year-old children, adding that he wished to take nude pictures of them and that he wanted the children to perform sexual favors for him. The victim testified that she "tried to play along with him" and promised to bring him some children. The defendant promised monetary compensation for both the victim and the children, and the two agreed that the victim would meet him at a designated time and place the next day with an eleven- or twelve-year-old child. The victim testified further that she cooperated and made the promise to prevent the defendant from becoming angry and to avoid bodily injury.

The defendant gave the victim five dollars, rather than the promised fifty dollars, telling her that she had not performed the earlier sexual favor correctly. Then, while the vehicle was still stopped in the alley, the victim was able to break free from the defendant's grasp and escape. She immediately reported the events to a friend, who notified the police. The defendant was ultimately arrested, charged, brought to trial, and convicted of first-degree kidnapping, first-degree sexual assault, and soliciting for child prostitution. The district court sentenced the defendant to twelve years imprisonment on each count, the sentences to run concurrently.

The defendant appealed to the court of appeals, which affirmed the convictions for first-degree sexual assault and soliciting for child prostitution ⁴ but reversed the conviction for first-degree kidnapping and remanded for entry of a judgment of conviction and imposition of sentence for second-degree kidnapping. Emerterio, 819 P.2d at 519, 520. The reversal was based on the court's conclusion that the intent to force a "concession," an element of first-degree kidnapping, had not been established. Id. at 519. Without citing authority, the court held that the victim's agreement to obtain children for the defendant in the future "after her release and over which defendant had no control to insure her performance, [did] not amount to a concession" and, therefore, did not supply a basis for a finding that he acted with the specific intent required by the statute. Id. We granted the People's petition for certiorari to review the propriety of that determination as a basis for the court of appeals' reversal of the first-degree kidnapping conviction. ⁵

II

The statute defining first-degree kidnapping provides in relevant part:

Any person who does any of the following acts with the intent thereby to force the victim or any other person to make any concession or give up anything of value in order to secure a release of a person under the offender's actual or apparent control commits first degree kidnapping:

(a) Forcibly seizes and carries any person from one place to another....

§ 18-3-301(1), 8B C.R.S. (1986) (emphasis added). To review the court of appeals' decision that there was insufficient evidence to establish that the defendant intended to force the victim "to make any concession" in order to secure her release, we must address the meaning of the term "concession" as it relates to the evidence.

In considering whether there is sufficient evidence to support a jury's finding of fact, we must view the evidence in the light most favorable to the prosecution. People v. Jensen, 747 P.2d 1247, 1253 (Colo.1987). Additionally, the prosecution must be given the benefit of every reasonable inference that can be drawn from that evidence. People v. Gonzales, 666 P.2d 123, 128 (Colo.1983); People v. Trujillo, 190 Colo. 45, 47, 543 P.2d 523, 524 (1975).

The evidence would have permitted the jury to find that the defendant intended to force the victim to promise to bring him eleven- or twelve-year-old children and that she did promise to meet him at a designated time and place on the following day to provide him with such a child. The evidence also permits the inference that the defendant implicitly agreed to release the victim when he had completed the sexual assault and when she had made the promise to supply the defendant with young children. This brings us to the specific question of whether such a promise constitutes a "concession" within the meaning of the first-degree kidnapping statute.

In determining the meaning and scope of a statutory term, our primary objective must be to give effect to the intent of the General Assembly. People v. District Court, Second Judicial Dist., 713 P.2d 918, 921 (Colo.1986). We look first to the statutory language to ascertain this intent. Id. However, when language can be construed in alternative ways and its intended scope is not clear, we may look to legislative history to determine the construction that is in accordance with the statute's objective. People v. Davis, 794 P.2d 159, 180 (1990), cert. denied, 498 U.S. 1018, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991).

The General Assembly amended Colorado's kidnapping statute in 1971, ch. 121, sec. 1, §§ 40-3-301, -302, 1971 Colo.Sess.Laws 388, 421-22, and set forth two degrees of the offense. ⁶ As related to the facts of this case, first-degree and second-degree kidnapping were distinguished by the actor's intent in seizing a victim. Compare § 18-3-301(1)(a), 8B C.R.S. (1986) with § 18-3-302(1), 8B C.R.S. (1986). The revision originated with a recommendation made by the Colorado Legislative Council to elevate the offense to aggravated kidnapping if the actor holds a victim for ransom. The Council's proposed language covered those situations where the person acts with the specific intent to force another "to give up anything of value in order to secure [the victim's] release." Colorado Legislative Council, Research Publication No. 98, Report to the Colorado General Assembly: Preliminary Revision of Colorado Criminal Laws 19 (1964). ⁷ The Council stated that while "ransom will usually be money, the broader term 'anything of value' is used to cover things like jewels or other valuables." Id. at 20. Thus, as recommended by the Council, although the term "anything of value" was meant to be broadly inclusive, it was still limited by the requirement that the item sought have monetary value. ⁸

The General Assembly, however, enacted a more comprehensive version of the first-degree kidnapping statute. It adopted most of the Council's recommendations, but added the words "make any concession or" before the words "give up anything of value" in the final enactment. Although we have been unable to discover any legislative discussion relating to this new language, we must assume the General Assembly intended to increase the statute's scope beyond the Council's proposal so as to cover situations where a kidnapper seeks something other than monetary reward in exchange for the victim's release. Bridges, 199 Colo. at 526, 612 P.2d at 1114-15 (addition of...