People v. Shannon

• Docket Number: Court of Appeals No. 22CA0014
• Decision Date: 25 April 2024
• Citation: 553 P.3d 239,2024 COA 41
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brendan Joseph SHANNON, Defendant-Appellant.
• Court: Colorado Court of Appeals

553 P.3d 239

2024 COA 41

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

v.Brendan Joseph SHANNON, Defendant-Appellant.

Court of Appeals No. 22CA0014

Colorado Court of Appeals, Div. I.

Announced April 25, 2024

Adams County District CourtNo. 20CR85, Honorable Sean Finn, Judge

Philip J. Weiser, Attorney General, Brian M. Lanni, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meghan M. Morris, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE J. JONES

¶ 1Defendant, Brendan Joseph Shannon, appeals the judgment of conviction entered on jury verdicts finding him guilty of sexual assault on a child, sexual assault on a child by one in a position of trust, sexual assault on a child as part of a pattern of abuse, human trafficking a minor for sexual servitude, and sexual assault on a victim between fifteen and seventeen years of age.We affirm.

¶ 2 Addressing a matter of first impression, we conclude that a court may give a deliberating jury unrestricted access to recorded phone calls between a sexual assault victim and the defendant in which the defendant confesses to criminal conduct.Such recordings are in substance akin to defendants’ interviews with police officers, seeRael v. People, 2017 CO 67, 395 P.3d 772, and therefore the trial court is not required to engage in any assessment of unfair prejudice to the defendant under the line of cases dealing with recorded interviews of sex assault victims, seePeople v. Jefferson, 2017 CO 35, 393 P.3d 493;DeBella v. People, 233 P.3d 664(Colo.2010);Franco v. People, 165 P.3d 701(Colo.2007).

¶ 3 Addressing another matter of first impression, we hold that Shannon’s conviction for human trafficking under section 18-3-504(2)(a), C.R.S. 2023, doesn’t violate his right to equal protection of the laws because that statute proscribes conduct — in which Shannon engaged — that is not proscribed by the soliciting for child prostitution statute, section 18-7-402, C.R.S. 2023, or by the inducement of child prostitution statute, section 18-7-405.5, C.R.S. 2023.

I.Background

¶ 4 Shannon first met K.B. when she was eight years old and Shannon was dating her older sister.K.B. spent a lot of time at her sister and Shannon’s shared apartment when she wasn’t at school.

¶ 5 At first, Shannon was a father- or brother-like figure to K.B. Shannon covered K.B.’s meals and school expenses and offered her rides to places she needed to be.But when K.B. was thirteen or fourteen years old, Shannon initiated a sexual relationship with her.Shannon began to have sexual encounters with K.B. three to four times per month.In an attempt to hide the relationship from her older sister, K.B. continued to refer to Shannon as her "brother."Shannon told K.B. that their relationship was "destined to happen" and that they could run away and live together once she turned eighteen.

¶ 6 Shannon began offering K.B. money and gifts in exchange for sexual favors to advance the relationship.For example, Shannon took K.B. to a mall and offered to buy her things if she agreed to have sex with him.He also took K.B. to several out-of-state concerts, and paid the related expenses, in exchange for sex.On another occasion, he bought K.B. lipstick in return for a nude photo.He continued to provide K.B. with rides and meals.

¶ 7 K.B. ended the relationship in 2016, when she was fifteen years old, after she started dating someone else.Three years later, K.B. told the police about her past relationship with Shannon.She then placed two pretext phone calls to Shannon, which were recorded.In the calls, K.B. said multiple times that Shannon had had sex with her when she was thirteen years old.Shannon agreed with K.B.’s accusations at times and expressed his regret but remained silent at other points.(Shannon and K.B. had several unrecorded conversations (by telephone, text message, and social media) before these pretext calls, in which K.B. accused Shannon of having had sex with her when she was underage and expressed her intent to go to the police.)

¶ 8The People charged Shannon with sexual assault on a child, sexual assault on a child by one in a position of trust, sexual assault on a child as part of a pattern of abuse, and human trafficking a minor for sexual servitude.A jury convicted him of all charges and of the defense-requested lesser nonincluded offense of sexual assault on a victim between fifteen and seventeen years of age.The district court sentenced him to a controlling term of fifteen years to life in the custody of the Department of Corrections.

II.Discussion

¶ 9 Shannon contends that the district court erred by allowing the jury unrestricted access to the recorded pretext telephone calls and admitting expert testimony without making findings under People v. Shreck, 22 P.3d 68(Colo.2001).He also contends that the cumulative effect of these alleged errors requires reversal.Lastly, he contends that the human trafficking for sexual servitude conviction violates his right to equal protection.

A.Jury’s Unrestricted Access to the Recordings

¶ 10 Shannon first contends that the district court erred by allowing the jury unrestricted access to the two recorded pretext telephone calls in which Shannon agreed with K.B. that he had had sex with her when she was underage.We disagree.

1.Additional Background

¶ 11 At trial, the prosecution introduced recordings of the two pretext calls between K.B. and Shannon.The first was a call K.B. video- and audio-recorded with her sister’s phone; the second call was video- and audio-recorded by a police detective.In both calls, Shannon agreed that he had had sex with K.B. when she was thirteen years old.Both the prosecution and the defense relied on the recordings at trial and made various arguments as to w’hat conclusions the jury should draw from specific portions of the recordings.

¶ 12 After closing arguments, the district court instructed the Jurors that all admitted exhibits, including audio and video exhibits, would be provided to them during deliberations upon request,

¶ 13 After the Jury left the courtroom, the court initiated a conversation with counsel as to what it should do if the jurors asked for the recordings and whether the jurors should have unrestricted access to them.It sought input as to whether the recordings should be treated as statements of a witness (in this case, K.B.), similar to a child victim's recorded forensic interview, or recordings of a defendant’s inculpatory statements during a police interview.Defense counsel argued that the recordings fell into the former category, while the prosecutor argued they fell into the latter.

¶ 14The court agreed with the prosecutor that the recordings were "largely in the nature of" Shannon’s statements because K.B. was "doing the questioning" and Shannon was responding, similar to the situation of a police officer interviewing a suspect.And it ruled that the jury could therefore have unrestricted access to them.It also reasoned that the recordings would assist the jury because they were crucial to the case, the attorneys had repeatedly referred to them in their arguments during trial, and the jurors weren’t likely to give undue weight to them because both sides "have made significant arguments as to whether or how to view these videos."

2.Preservation

[1]¶ 15 Shannon argues that this issue is preserved.The People disagree, arguing that the record doesn’t show whether the jury ever requested access to the recordings and thus had unfettered access.We tend to agree with the People that this issue isn’t preserved.

¶ 16 It is the jurors’ supposed unrestricted access to the recordings during deliberations that Shannon identifies as the error on appeal.But nothing in the record shows that the deliberating jury actually had access to the recordings.The court said it would provide the recordings to the jury if it asked for them.Defense counsel didn’t make a record of any request by the jury to see the recordings.And it was Shannon's appellate counsel's burden to present a record disclosing the purported error.SeeLePage v. People, 2014 CO 13, ¶ 16, 320 P.3d 348;Schuster v. Zwicker, 659 P.2d 687, 690(Colo.1983).Shannon, however, didn’t present us with such a record.¹

¶ 17 But even if we were to assume that the issue is preserved, we conclude that the district court didn’t abuse its discretion.

3.Standard of Review

[2, 3]¶ 18"Control over the use of exhibits during jury deliberations rests firmly within the district court’s discretion …. "Rael, ¶ 15.Accordingly, we won’t disturb a district court’s refusal to limit the jury’s use of an exhibit unless the court’s decision was manifestly arbitrary, unreasonable, or unfair, or based on a misapplication of the law.Jefferson, ¶ 25.

4.Analysis

[4, 5]¶ 19 In a line of cases beginning with Frasco, 165 P.3d 701, the Colorado Supreme Court has instructed trial courts as to how they should determine whether, and under what conditions, a victim’s recorded, out-of-court statements should be provided to a deliberating jury.See alsoJefferson, 2017 CO 35, 393 P.3d 493;DeBella, 233 P.3d 664.In each of these cases, the recorded statements in question were recorded interviews of child victims of sexual assault.The rule arising from these cases is that, before allowing a jury unrestricted access to such recordings during deliberations, the court must exercise its discretion to determine whether access to the recording will assist the jury and, even if so, whether such access might unfairly prejudice the defendant.Ray v. People, 2019 CO 21, ¶ 16, 440 P.3d 412;Jefferson, ¶¶ 38, 42;DeBella, 233 P.3d at 668;Frasco, 165 P.3d at 704-05.Underlying this rule is the concern that a jury may give "undue weight" to recorded statements of child sex assault victims.Frasco, 165 P.3d at 704;Carter v. People, 2017 CO 59M, ¶ 17, 398...