People v. Simon
| Decision Date | 09 July 2009 |
| Docket Number | No. 06CA2229.,06CA2229. |
| Citation | 219 P.3d 789 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David Kenneth SIMON, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by Judge CONNELLY.
Defendant, David Kenneth Simon, was convicted of ten counts of sexual assault on a child by one in a position of trust as part of a pattern of abuse under a former version of section 18-3-405.3, C.R.S. 2008. The trial court imposed enhanced sentences of ten years per count, consecutive to each other and to a twelve-year sentence on a related count of patronizing a prostituted child, for a total sentence of 112 years in prison.
The issue is whether one "pattern" of abuse of one victim may support multiple pattern convictions. Colorado sex assault statutes differ depending on the child's age and the offender's status, but make some such crimes more serious if committed as part of a pattern. See §§ 18-3-405(2)(d), 18-3-405.3(2)(b), C.R.S. 2008. A pattern is "two or more incidents" of sexual contact involving the same victim. § 18-3-401(2.5), C.R.S. 2008.
We hold Colorado statutes do not allow, and double jeopardy bars, more than one pattern conviction for a single pattern of abuse against one victim. This holding precludes defendant's ten pattern convictions and his sentence to a century in prison but does not preclude sentencing defendant to many decades in prison.
From 1997 through 1999, defendant had multiple incidents of sexual contact with a troubled teenage boy whom he had taken into his house. The abuse began with acts of prostitution when the boy was fifteen and continued until the boy was seventeen.
Defendant was charged with and convicted of twenty counts of sexual assault on a child by one in a position of trust; the counts were broken into two groups of ten because the "pattern" offense was not added to the position of trust statute until July 1, 1998. See Ch. 314, sec. 33, § 18-3-405.3, 1998 Colo. Sess. Laws 1444. One group charged ten class four sexual assaults on a child occurring on unspecified dates between August 1, 1997 and June 30, 1998, while the other group charged ten class three sexual assaults on a child occurring as part of a pattern on unspecified dates between July 1, 1998 and August 1, 1999. Defendant was also charged and convicted on two counts involving patronizing a prostituted child.
The authorized sentencing range for defendant's class four offenses, without any aggravating facts found by a jury, was two to six years. § 18-1.3-401(1)(a)(V)(A), C.R.S. 2008. After July 1, 1998, committing the assaults as part of a pattern raised the offense to a class three felony and more than quintupled the presumptive range to ten to thirty-two years. See § 18-3-405.3(2)(b) (); § 18-1.3-401(1)(a)(V)(A) (); § 18-1.3-401(10)(a), C.R.S. 2008 (); § 18-1.3-406, C.R.S. 2008 ().
Crimes such as these, if committed after November 1, 1998, would also be subject to an indeterminate life sentence under the Colorado Sex Offender Lifetime Supervision Act. See Ch. 303, sec. 1, §§ 16-13-801 to -812, 1998 Colo. Sess. Laws 1278-88 (). Because the jury made no findings as to the specific dates of the assaults, however, the parties agreed defendant was not subject to indeterminate sentencing.
The court imposed ten consecutive sentences of ten years each on the pattern counts. It further imposed a consecutive twelve-year sentence on the count involving a prostituted child. The court imposed six-year sentences on the ten non-pattern counts but ran them all concurrently. Accordingly, defendant was sentenced to a total of 112 years in the Department of Corrections.
The division in a prior appeal vacated the sentences on the pattern counts because the district court had acted under the mistaken belief that consecutive sentences were required. People v. Simon, 100 P.3d 487, 495-96 (Colo.App.2004). It remanded the case for the district court to exercise discretion in determining whether to run the pattern sentences consecutively or concurrently. Id.
Defendant argued at resentencing that he could not be punished multiple times for a single pattern of sexual abuse. The court rejected this argument and re-imposed enhanced sentences of ten years per pattern count, consecutive to each other and to a twelve-year sentence on the related count involving prostituting the child victim, again for a total of 112 years in prison.
Whether a defendant who commits a single pattern of sexual abuse may be convicted and sentenced for multiple pattern offenses raises a constitutional double jeopardy issue that turns on legislative intent. See Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); People v. Abiodun, 111 P.3d 462, 464-65 (Colo.2005). Our standard of review is de novo. People v. Stevenson, ___ P.3d ___, ___, 2009 WL 399756, at *6 (Colo.App. No. 06CA1612, Feb. 19, 2009).
We must decide what "unit of prosecution" the legislature intended to create. Sanabria v. United States, 437 U.S. 54, 69-70, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Abiodun, 111 P.3d at 465 n. 2. "Multiplicity" is the term used to describe "the charging of the same offense in several counts, culminating in multiple punishments." Quintano v. People, 105 P.3d 585, 589-90 (Colo.2005). Problems arise where "a series of repeated acts ... are charged as separate crimes even though they are part of a continuous transaction and therefore actually one crime." Woellhaf v. People, 105 P.3d 209, 214 (Colo. 2005). Our specific "inquiry is whether the General Assembly has defined the crime as a continuous course of conduct." Id. at 214-15.
Where the General Assembly has defined a crime as a continuous course of conduct, a defendant may not be prosecuted for individual acts comprising that course of conduct. The most recent Colorado case illustrating this point is Roberts v. People, 203 P.3d 513 (Colo.2009). The court there held that Colorado's consolidated theft statute, section 18-4-401(4), C.R.S. 2008, "not only permits, but in fact requires, all thefts committed by the same person within a six-month period (except any for which jeopardy had already attached before he committed the others), to be joined and prosecuted as a single felony." 203 P.3d at 516.
It is often hard to discern whether a legislature intended to punish an overall "course of conduct." See Jeffrey M. Chemerinsky, Counting Offenses, 58 Duke L.J. 709, 715 (2009). Here, however, it is patently clear the General Assembly intended to punish the overall course—i.e., the "pattern"—of conduct.
By definition, a "pattern" requires that a defendant engaged in a course of criminal conduct rather than simply individual criminal acts. The statute makes this clear by defining "pattern of sexual abuse" as "two or more incidents of sexual contact involving a child when such offenses are committed by an actor upon the same victim." § 18-3-401(2.5) (emphases added). The General Assembly thus recognized that a "pattern" case will often involve more than two criminal incidents.
Legislative history confirms the intent to punish the overall course of conduct directed at a single victim. The original pattern provisions were included because the General Assembly understood "the difficulties young children have" in separating related acts of abuse and intended to "proscribe a kind of pattern of sexual abuse conduct which it consider[ed] to be of greater social consequence and which merits greater punishment." People v. Longoria, 862 P.2d 266, 270-71 (Colo.1993). Indeed, the experienced prosecutor who testified in support of the new statute answered "[p]robably not" to a legislator's question whether a defendant who committed 300 abuse crimes against a single victim could be charged with 300 pattern counts. See Hearings on H.B. 1075 before the S. Comm. on Judiciary, 57th Gen. Assemb., 1st Sess. (May 3, 1989) (testimony of former Denver Chief Deputy District Attorney Karen Steinhauser). She added that while a pattern offender likely could not be charged with a pattern offense for each individual incident, the new pattern statute "makes the penalty greater, which is more in line with what it should be." Id.
Construing a pattern as a course of conduct is also supported by decisions in analogous cases. As the Sixth Circuit wrote:
States have the authority to enact criminal statutes regarding a "pattern" or a "continuing course" of abuse. They do not have the power to prosecute one for a pattern of abuse through simply charging a defendant with the same basic offense many times over.
Valentine v. Konteh, 395 F.3d 626, 634 (6th Cir.2005) (footnote omitted).
The New Hampshire Supreme Court has explained that "[w]hen seeking convictions on multiple pattern indictments that charge numerous assaults within a common time frame inflicted on a single victim, ... the pattern indictments cannot rely on the same underlying act or acts to comprise the charged pattern." State v. Richard, 147 N.H. 340, 786 A.2d 876, 879 (2001), discussed in State v. Jennings, 155...
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