People v. Thatcher

• Decision Date: 21 December 1981
• Docket Number: No. 79SA390,79SA390
• Citation: 638 P.2d 760
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Floyd THATCHER, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 760

638 P.2d 760

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Floyd THATCHER, Defendant-Appellant.

No. 79SA390.

Supreme Court of Colorado, En Banc.

Dec. 21, 1981.

Rehearing Denied Jan. 25, 1982.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colo. State Public Defender, Shelley Gilman, Charles Greenacre, Deputy State Public Defenders, Denver, for defendant-appellant.

DUBOFSKY, Justice.

The defendant Robert Floyd Thatcher appeals his conviction in the district court of San Miguel County of first-degree sexual assault under section 18-3-402(1)(b), C.R.S.1973 (1978 Repl.Vol. 8). ¹ We affirm the judgment of conviction.

On the evening of Friday, July 8, 1977, the victim and her two-year-old daughter were alone in a tent in which they were living outside of Telluride. The victim's husband had gone into town at about 8:00 p. m. About midnight, while the victim was reading by the light of a Coleman lantern, she heard noises outside the tent. Soon thereafter, a man entered the tent, turned off the tent light and put his hand over the victim's mouth and eyes. She tried to scream. The intruder hit her on the back of the head with a blunt object and told her to keep her mouth shut if she did not want to get cut.

The intruder, who was barefoot, pushed the victim out of the tent and, holding her by the neck at arms length, pushed her along a rough path through woods to an abandoned trailer approximately 400 feet from her family's tent. He told her to lie down on a bed at the rear of the trailer where he attempted to force her to engage in fellatio. The victim resisted, after which the attacker forced her to engage in vaginal intercourse for ten to fifteen minutes. Then he attempted to penetrate the victim anally, at which she screamed in pain. The attacker hit her on the back of the head and told her to shut up or she would really get hurt. The victim had two opportunities to see her assailant's face: once, from about a foot away, when he switched on his flashlight, and a second time, from about eighteen inches, when a car drove by and its lights shone into the trailer.

When the car drove past, the victim said, "It must be my husband looking for me." At this, the man got up, told the victim not to move, dressed quickly and left. Soon after, the victim returned to her tent to make sure her daughter was safe. A few minutes later, her husband returned to the campsite and took her and their daughter to the home of the Montrose County sheriff.

On August 9, 1977, the victim identified the defendant, who was incarcerated in the Montrose County Jail on charges stemming from another sexual assault, in a lineup. On August 31, 1977, the defendant was charged by information in San Miguel County District Court with one count of first-degree sexual assault. The defendant moved to suppress the lineup identification, and, after a suppression hearing on January 23, 1978, the prosecution stipulated that it would not use the lineup testimony at trial unless the defendant raised the issue. The trial court then ruled that there was an independent basis for an in-court identification of the defendant. On May 24, 1978, after a three-day trial, the jury found the defendant guilty of first-degree sexual assault. The trial court sentenced him to a term of not less than fifteen nor more than twenty years in the penitentiary.

On appeal, the defendant argues that the first-degree sexual assault statute violates constitutional guarantees of due process and equal protection. He also argues that the court's refusal to grant a discovery motion for information in the prosecution's possession violates Crim.P. 16 and his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The defendant also contends that admission into evidence of a mug shot and of testimony concerning the condition of his feet while incarcerated in the Montrose County Jail was reversible error because it disclosed unrelated criminal activity to the jury. The defendant's other arguments are that the victim's in-court identification was tainted by the lineup and that no independent basis for the identification existed, and that the trial court, in allowing the victim to testify that she had heard the defendant's voice prior to trial and subsequent to the assault, had revealed to the jury inadmissible evidence of the lineup; that emotional displays by the victim's husband during closing arguments and a view by some jury members of the scene of the assault denied him a fair trial; and finally, that the court committed reversible error by refusing to give to the jury tendered instructions on burden of proof and credibility of eyewitnesses. We conclude that the defendant's contentions are without merit and affirm his conviction.

I.

The defendant was convicted of first-degree sexual assault under section 18-3-402(1)(b), C.R.S.1973 (1978 Repl.Vol. 8), which provides:

Sexual assault in the first degree. (1) Any actor who knowingly inflicts sexual penetration on a victim commits a sexual assault in the first degree if:

(b) The actor causes submission of the victim by threat of imminent death, serious bodily injury, extreme pain, or kidnapping, to be inflicted on anyone, and the victim believes that the actor has the present ability to execute these threats.

"Sexual penetration" is defined in section 18-3-401(6), C.R.S.1973 (1978 Repl.Vol. 8), as:

sexual intercourse, cunnilingus, fellatio, analingus, or anal intercourse. Emission need not be proved as an element of any sexual penetration. Any penetration, however slight, is sufficient to complete the crime.

"Serious bodily injury" is defined in section 18-1-901(3)(p) as:

bodily injury which involves a substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body.

The defendant argues that the first-degree sexual assault statute violates constitutional guarantees of due process and equal protection. Specifically, he alleges that the phrase in the statute, "threat of ... serious bodily injury," is unconstitutionally vague, that the statute is not constitutionally distinguishable from the second-degree sexual assault statute, ² and that the statute as applied violates due process by permitting a third party to determine the degree of criminal liability.

The defendant's first contention is that the phrase "threat of ... serious bodily injury" is so vague that it violates the due process requirements of precision and clarity. In People v. Heckard, 164 Colo. 19, 431 P.2d 1014 (1967), this court enunciated the standard a statute must satisfy to accord due process. The legislature must

frame criminal statutes with sufficient clarity so as to inform persons subject to such laws of the standards of conduct imposed, i.e., give a fair warning of the forbidden acts. Cline v. Frink Dairy Co., 274 U.S. 445 (47 S.Ct. 681, 71 L.Ed. 1146) (1927); Memorial Trusts v. Beery, 144 Colo. 448, 356 P.2d 884 (1960).

Statutes "must also provide the police and prosecution with clearly defined standards" which "lessen the effect of personal judgments and discrimination upon enforcement processes" and "inform a court and jury whether a crime has been committed and proved." People v. Heckard, supra. See People v. Hines, 194 Colo. 284, 572 P.2d 467 (1977).

The first-degree sexual assault statute is not unconstitutionally vague under the standard set out in Heckard. The statute sets out the act ("sexual penetration"), the requisite mental state ("knowingly"), and the content of the threat used to force the victim's submission ("threat of ... serious bodily injury") and each of these elements is defined. ³ The term upon which the defendant focuses, "serious bodily injury," has been applied in a number of instances. See, e.g., People v. Martinez, 189 Colo. 408, 540 P.2d 1091 (1975); People v. Thompson, 187 Colo. 252, 529 P.2d 1314 (1975).

The defendant contends that defining "serious bodily injury" is more difficult in the context of the sexual assault statute since here the definition encompasses a threat in the absence of the actual injury threatened. We have held statutes which require intent to cause serious bodily injury sufficiently clear to avoid a due process infirmity, People v. Benjamin, 197 Colo. 188, 591 P.2d 89 (1979), even as applied to cases where no actual injury is inflicted. People v. Jackson, 194 Colo. 93, 570 P.2d 527 (1977). Certainly, intent is no more concrete than are threats. Indeed, while threats typically are uttered aloud, intent usually must be inferred from surrounding circumstances.

The victim testified at trial that on two occasions during the assault her assailant struck her and told her to keep quiet or she would get hurt. The statute, which requires threats of serious bodily injury, is written with sufficient clarity to provide the required guidance. People v. Hines, supra.

The defendant's second contention is that the acts proscribed by the first-degree sexual assault statute cannot be distinguished from those covered by the second-degree sexual assault statute and that the absence of a difference violates equal protection. Criminal liability for second-degree sexual assault requires sexual penetration where "(t)he actor causes submission of the victim ... by any means other than those set forth in section 18-3-402 (first-degree sexual assault statute), but of sufficient consequence reasonably calculated to cause submission against the victim's will." Section 18-3-403, C.R.S.1973 (1978 Repl.Vol. 8). The defendant contends that the first-degree statute punishes more severely acts indistinguishable from those described in the second-degree statute and thus violates the equal protection guarantees of "like treatment of all those who are...