People v. Simon

• Decision Date: 12 February 2004
• Docket Number: No. 01CA1183.,01CA1183.
• Citation: 100 P.3d 487
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David K. SIMON, Defendant-Appellant.
• Court: Colorado Court of Appeals

100 P.3d 487

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David K. SIMON, Defendant-Appellant.

No. 01CA1183.

Colorado Court of Appeals, Div. II.

February 12, 2004.

As Modified on Denial of Rehearing May 13, 2004.

Certiorari Denied November 8, 2004.

Ken Salazar, Attorney General, Lauren Edelstein Park, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Karen Taylor, Deputy State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant. Opinion by Judge ROTHENBERG.

Defendant, David K. Simon, appeals the judgment of conviction entered upon jury verdicts finding him guilty of one count of inducement of child prostitution, one count of patronizing a prostituted child, ten counts of sexual assault on a child by one in a position of trust, and ten counts of sexual assault on a child by one in a position of trust as part of a pattern of abuse. He also appeals his sentence. We affirm the judgment, vacate the sentence, and remand for resentencing.

The victim was a fifteen-year-old male with a history of drug abuse. He lived in the same neighborhood as defendant. The victim offered defendant oral sex in return for money, which defendant accepted, and they became involved in an ongoing homosexual relationship. When the victim's parents moved out of the neighborhood, the victim began living with defendant. The victim's parents apparently consented to this living arrangement, which lasted for approximately one and a half years until the victim discontinued the relationship, moved out, and filed charges against defendant.

I.

Defendant first contends a potential juror should have been disqualified as a matter of law because she was employed by the United States Environmental Protection Agency (EPA), which defendant maintains is a public law enforcement agency. We disagree.

A trial court must sustain a challenge for cause if a juror is a compensated employee of a public law enforcement agency or a public defender's office. Section 16-10-103(1)(k), C.R.S.2003; Crim. P. 24(b)(1)(XII). No actual bias need be shown to sustain such a challenge for cause, and bias is implied. People v. Manners, 708 P.2d 1391 (Colo.App. 1985); see People v. Rhodus, 870 P.2d 470 (Colo.1994)

.

As a threshold matter, defendant does not contend that "all employees of the EPA would necessarily be employees of a public law enforcement agency." However, if the EPA were a public law enforcement agency, all its employees, regardless of their positions, would be disqualified under the statute. See People v. Rhodus, supra; see also People in Interest of R.A.D., 196 Colo. 430, 586 P.2d 46 (1978)

(prospective juror, employed as security guard for the Colorado Bureau of Investigation, disqualified under statute); People v. Manners, supra (under statute, actual function of an employee of a law enforcement agency is irrelevant); People v. Scott, 41 Colo.App. 66, 583 P.2d 939 (1978)(bakers and counselors employed by the state prison are within scope of statute).

The statute does not define the term "public law enforcement agency." The term has been interpreted to include municipal police departments, county sheriff's offices, the Colorado Bureau of Investigation, and the Colorado Department of Corrections. See People v. Urrutia, 893 P.2d 1338 (Colo.App.1994)

(collecting statutes and cases). But we are aware of no Colorado authority that has considered the question of whether the EPA is a public law enforcement agency under § 16-10-103(1)(k) or Crim. P. 24(b)(1)(XII).

In People v. Urrutia, supra, a division of this court considered whether a prospective juror employed as a security officer at the Rocky Mountain Arsenal, an Army facility controlled by the United States Department of Defense (DOD), was statutorily ineligible for jury service under § 16-10-103(1)(k). The division looked to the DOD's function to maintain and employ armed forces to defend and secure the United States' interests against foreign and domestic enemies. People v. Urrutia, supra, 893 P.2d at 1345; see 32 C.F.R. § 368.3 (2003).

The Urrutia division concluded the DOD was not a prosecutorial or law enforcement arm of the government, distinguishing it from an agency such as the Department of Corrections, "which has as an explicit statutorily mandated purpose, inter alia, to enforce the peace and to arrest violators." People v. Urrutia, supra, 893 P.2d at 1345.

The fact that the DOD performed activities similar to law enforcement, such as conducting investigations and searches, did not transform the DOD into a law enforcement arm of the government. The Urrutia division explained that "simply because a state or federal agency holds investigative powers or has contact with law enforcement personnel does not render the agency a `public law enforcement agency' within the meaning of the statute." People v. Urrutia, supra, 893 P.2d at 1345.

Similarly, in People v. Zurenko, 833 P.2d 794 (Colo.App.1991), a division of this court held that neither the Colorado Department of Social Services (DSS) nor the federal Equal Employment Opportunity Commission (EEOC) was a law enforcement agency under the statute. The division examined DSS's originating statute, which characterized it as a public assistance and welfare organization with responsibilities including administering various statutory plans for assistance payments, food stamps, health and medical assistance, child welfare services, rehabilitation, and programs for the aging. See § 26-1-109, C.R.S.2003. DSS also had authority to investigate complaints of abuse.

The division also examined the EEOC's originating statute, which characterized the agency as an "investigatory and conciliatory organization." People v. Zurenko, supra, 833 P.2d at 796; see 42 U.S.C. § 2000e, et seq. (2003).

In reaching its conclusion, the Zurenko division reasoned that neither agency had "statutory authority to arrest or prosecute offenders." People v. Zurenko, supra, 833 P.2d at 796; see People v. Rhodus, supra

(county officer who had ongoing professional relationship with and was represented by the district attorney's office was not disqualified by statute); People v. Topping, 764 P.2d 369 (Colo.App.1988)(no evidence supported assertion that State Department of Administration was a public law enforcement agency), aff'd, 793 P.2d 1168 (Colo.1990); People v. Rogers, 690 P.2d 886 (Colo.App.1984)(firefighter at Rocky Mountain Arsenal not an employee of a public law enforcement agency).

Here, the jury questionnaire asked for information regarding "[l]aw enforcement experience and/or military experience, if any." The juror stated on the questionnaire that she was employed as a librarian by the United States Environmental Protection Agency's National Enforcement Investigations Center and that she "provide[d] support to environmental enforcement."

When the trial court later inquired, the juror stated that she did not "actually enforc[e] any code [or] regulation or law," but "provide[d] information which helps an investigator build cases." There was no further inquiry or statements about her employment.

At the time of its formation, the EPA's principal roles and functions included: (1) establishing and enforcing environmental protection standards consistent with national environmental goals; (2) conducting research on the adverse effects of pollution and on methods and equipment for controlling it, gathering information on pollution, and using this information to strengthen environmental protection programs and recommend policy changes; (3) assisting others, through grants, technical assistance, and other means, in arresting pollution of the environment; and (4) assisting in developing and recommending to the President new policies for the protection of the environment. See 42 U.S.C. § 4321, Message of the President, July 9, 1970; 42 U.S.C. § 4331(a).

The EPA maintains offices for both criminal investigation and civil enforcement. See 42 U.S.C. § 4321; see also Bravos v. Environmental Protection Agency, 324 F.3d 1166 (10th Cir.2003)

(discussing agency's enforcement duties). The EPA may also designate law enforcement officers to investigate criminal violations of a law administered by the EPA, carry firearms, execute and serve warrants, and make arrests for offenses against the United States. See 18 U.S.C. § 3063 (2004).

However, even in light of the EPA's statutory authority to arrest or prosecute offenders, we nonetheless conclude the EPA is distinguishable from other entities deemed to be public law enforcement agencies under the statute. The conclusion urged by defendant would require trial courts to exclude compensated employees of numerous other public agencies charged primarily with regulation of civil matters, but which also have incidental penal enforcement authority. This conclusion would significantly enlarge the scope of persons unavailable for jury service in a manner that, in our view, was not contemplated by the General Assembly.

We therefore conclude the EPA is properly characterized as an investigatory and rulemaking body, and not a law enforcement agency for purposes of § 16-10-103(1)(k) or Crim. P. 24(b)(1)(XII). Accordingly, the trial court did not err as a matter of law in denying defendant's challenge for cause on this basis.

II.

Defendant next contends there was an alternative basis for excusing the same juror for cause, and the trial court abused its discretion in failing to do so. Defendant relies on the potential juror's statement that she was molested when she was a young child and that "[m]aybe sympathy for the victim would not allow [her] to be impartial." We perceive no abuse of discretion by the court.

To ensure a defendant's fundamental right to a trial by jurors who are fair and impartial, the trial court must exclude prejudiced or biased persons from the jury. Section 16-10-103(1), C.R.S.2003; People...