People v. Simon, s. 09SC665

• Decision Date: 23 January 2012
• Docket Number: Nos. 09SC665,09SC1043.,s. 09SC665
• Parties: The PEOPLE of the State of Colorado, Petitioner v. David Kenneth SIMON, Respondent.Thomas Dean Tillery, Petitioner v. The People of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

266 P.3d 1099

The PEOPLE of the State of Colorado, Petitioner

v.David Kenneth SIMON, Respondent.Thomas Dean Tillery, Petitioner

v.The People of the State of Colorado, Respondent.

Nos. 09SC665

09SC1043.

Supreme Court of Colorado, En Banc.

Dec. 19, 2011.Rehearing Denied Jan. 23, 2012.

John W. Suthers, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, Attorneys for The People of the State of Colorado.

Douglas K. Wilson, Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado, Attorneys for David Kenneth Simon.

Douglas K. Wilson, Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, Colorado, Attorneys for Thomas Dean Tillery.Justice MÁRQUEZ delivered the Opinion of the Court.

In this opinion, we review decisions in two court of appeals cases, People v. Simon, 219 P.3d 789 (Colo.App.2009), and People v. Tillery, 231 P.3d 36 (Colo.App.2009).

Colorado's sexual assault statutes authorize the possibility of greater punishments for sexual crimes against children that are committed “as a part of a pattern of sexual abuse.” Relevant here, section 18–3–405.3 makes a single incident of sexual assault on a child by one in a position of trust a class 4 felony where the victim is at least fifteen years old but less than eighteen years old; however, the offense is elevated to a class 3 felony if committed “as a part of a pattern of sexual abuse.” § 18–3–405.3(2)(b), (3), C.R.S. (2011). Similarly, section 18–3–405 makes sexual assault on a child a class 4 felony, but the crime is elevated to a class 3 felony if committed “as a part of a pattern of sexual abuse.” § 18–3–405(2)(d), C.R.S. (2011). The General Assembly has defined a “pattern of sexual abuse” as the commission of “two or more incidents of sexual contact” involving the same child victim. § 18–3–401(2.5), C.R.S. (2011).

The common issue presented by these cases is whether these statutory provisions and principles of double jeopardy permit only one class 3 felony conviction and sentence for a single “pattern” of abuse that comprises two or more incidents of sexual assault, or whether instead, each separate act of sexual assault that composes a single “pattern” of abuse may be elevated to a class 3 felony.

In Simon, a divided division of the court of appeals held that section 18–3–405.3(2)(b) and double jeopardy principles prohibit the trial court from entering multiple class 3 convictions and sentences for Simon's ten counts of sexual assault on a child by one in a position of trust, where those acts composed a single pattern of abuse against one victim. Simon, 219 P.3d at 790–93.

In Tillery, a different division of the court of appeals disagreed with the reasoning in Simon. Discerning no double jeopardy violation, the division upheld Tillery's multiple class 3 convictions and enhanced sentences under section 18–3–405(2)(d), for five counts of sexual assault on one child that composed a single pattern of abuse. Tillery, 231 P.3d at 40, 48–50.

We granted certiorari review in both cases.¹ We now hold that these statutes unambiguously allow each separately charged incident of sexual assault (i.e., sexual assault on a child, or sexual assault on a child by one in a position of trust) to be elevated to a class 3 felony, where each incident is committed as part of a pattern of sexual abuse. We further hold that these statutes, construed according to their plain language, do not violate the double jeopardy protection against multiple punishments under either the U.S. or the Colorado Constitution.

I. Facts and Proceedings Below

a. People v. Simon

David Simon's convictions stem from multiple incidents of sexual contact he had with a troubled teenage boy who had drug-addiction and family problems. The abuse began in 1997 when the victim was fifteen and continued until 1999 when he was seventeen. In the beginning, Simon paid the boy for the sexual acts; he later took the boy into his home when the boy's parents moved. Simon had sexual contact with the boy multiple times a week during the two-year period.

Relevant here, a jury convicted Simon of ten counts of sexual assault by one in a position of trust as part of a pattern of abuse, in violation of section 18–3–405.3(1), (2)(b), C.R.S. (1998) (Counts 1–10). These counts were based on acts committed between July 1, 1998, and August 1, 1999, as part of a pattern of abuse against the victim. Each count was charged as a class 3 felony.²

Simon did not dispute that any of the sexual acts occurred. Rather, his defense at trial was that the acts were consensual and that he was not in a position of trust relative to the victim.³

For each count of sexual assault on a child by one in a position of trust committed as “part of a pattern,” the jury verdict form stated the following:

I. We, the jury, find the defendant, DAVID KENNETH SIMON, NOT GUILTY of SEXUAL ASSAULT ON A CHILD BY ONE IN A POSITION OF TRUST. (Between and including July 1, 1998 and August 1, 1999)

[signature line for foreperson]

II. We, the jury, find the defendant, DAVID KENNETH SIMON, GUILTY of SEXUAL ASSAULT ON A CHILD BY ONE IN A POSITION OF TRUST. (Between and including July 1, 1998 and August 1, 1999)

[signature line for foreperson]

The second page of the verdict form for each such count included the following interrogatory:

If you find the defendant guilty of SEXUAL ASSAULT ON A CHILD BY ONE IN A POSITION OF TRUST, you must also complete this section by placing, in ink, an “X” in the appropriate box indicating your decision. ONLY ONE SQUARE may be filled in, with the remainder to remain unmarked.

[ ] We, the jury, unanimously find, beyond a reasonable doubt, that the defendant committed this act as part of a pattern of sexual abuse.

[ ] We, the jury, do not find that the defendant committed this act as part of a pattern of sexual abuse.

[signature line for foreperson]

For Counts 2 through 9, this second page also included the following interrogatory:

[ ] We, the jury, unanimously find, beyond a reasonable doubt, that the defendant committed all the acts of sexual contact described by [the victim] between and including July 1, 1998 and August 1, 1999.

–OR–

[ ] We, the jury, unanimously find, beyond a reasonable doubt, that the defendant committed the same act of sexual contact described by [the victim] between and including July 1, 1998 and August 1, 1999. This act is separate and distinct from any other act for which we found the defendant guilty.

[signature line for foreperson]

The trial court also gave the jury the following instruction:

The evidence in this case raises issues concerning several incidents of alleged sexual assault by one in a position of trust. In order to find a pattern of sexual abuse (as alleged in Counts One through Ten) you must unanimously agree that either of the following has been proven:

1. The Defendant committed all of the incidents of sexual contact described by the evidence between and including July 1, 1998 and August 1, 1999. The jurors must unanimously agree that all of the incidents of sexual contact have been proven beyond a reasonable doubt;

or

2. The Defendant committed two or more incidents of sexual contact with [the victim] described by the evidence between July 1, 1998 and August 1, 1999. The jurors must unanimously agree that the same two or more incidents have been proven beyond a reasonable doubt.

The jury convicted Simon on all counts and marked the interrogatory for each pattern count, thereby indicating that Simon “committed this act as part of a pattern of sexual abuse.” For pattern Counts 2 through 9, the jury unanimously found, beyond a reasonable doubt, that Simon committed the same act of sexual contact described by the victim, and that this act was “separate and distinct from any other act” for which it found Simon guilty, and marked the corresponding interrogatories accordingly.

The trial court imposed a 112–year sentence: ten consecutive ten-year sentences on the position of trust (pattern) counts; two concurrent twelve-year sentences on the counts involving a prostituted child, to run consecutively to the pattern counts; and ten concurrent six-year sentences on the position of trust (nonpattern) counts.

On his first direct appeal, the court of appeals affirmed the convictions but vacated the sentences on the pattern counts because the trial court mistakenly believed that consecutive sentences were mandatory on these counts. People v. Simon, 100 P.3d 487, 495–96 (Colo.App.2004). On remand, the trial court exercised its discretion to impose the same 112–year sentence.

Simon appealed again, arguing that (1) he could not be convicted and sentenced multiple times for a single pattern of sexual abuse by one in a position of trust, and (2) the trial court abused its discretion in imposing a 112–year sentence. In a 2–1 decision, a division of the court of appeals agreed with Simon on the first issue, concluding that “Colorado statutes do not allow, and double jeopardy bars, more than one pattern conviction for a single pattern of abuse against one victim.” People v. Simon, 219 P.3d 789, 790 (Colo.App.2009).

The Simon majority called the question a “constitutional double jeopardy issue that turns on legislative intent.” Id. at 791. To discern the General Assembly's intent, the majority relied on the separate statutory definition of “pattern of sexual abuse” in section 18–3–401(2.5); the legislative history of H.B. 89–1075 (“An Act Concerning the Enhancement of the Penalty for the Crime of Sexual Abuse on a Child When There is a Pattern of Sexual Abuse.”), which added the pattern provision to section 18–3–405(2)(c) (Sexual assault on a child); and case law from New Hampshire and New York construing those states' statutes. Id. at 791–92. The majority concluded from these sources that the General Assembly intended to punish the “overall course of conduct—the ‘pattern’—rather than just individual incidents of abuse.” Id....