People v. Vecellio

• Decision Date: 15 March 2012
• Docket Number: No. 10CA0383.,10CA0383.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Todd George VECELLIO, Defendant–Appellant.
• Court: Colorado Court of Appeals

292 P.3d 1004

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

v.Todd George VECELLIO, Defendant–Appellant.

No. 10CA0383.

Colorado Court of Appeals, Div. VI.

March 15, 2012.

John W. Suthers, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

McClintock & McClintock, P.C., Elizabeth A. McClintock, Theodore P. McClintock, Colorado Springs, Colorado, for Defendant–Appellant.

Opinion by Judge LOEB.

¶ 1 Defendant, Todd George Vecellio, appeals the judgment of conviction entered on jury verdicts finding him guilty of conspiracy to commit sexual assault on a child by one in a position of trust; solicitation to commit sexual assault on a child by one in a position of trust; criminal attempt to commit sexual assault on a child; and enticement of a child. We affirm.

I. Background

¶ 2 On August 19, 2008, defendant contacted “Karina” in an Internet chat room through a website called “Adult Friend Finder,” which allowed registered users to post profiles that contained their biographical information and sexual interests and contact other users through e-mail or by instant message. According to her profile, Karina was a thirty-one-year-old single mother with a thirteen-year-old daughter, “Shayla.” In actuality, Karina was an undercover police officer conducting internet investigations as part of the Internet Crimes Against Children (ICAC) task force. Shayla did not exist.

¶ 3 During an initial instant message conversation, defendant learned from Karina that she and her thirteen-year-old daughter were engaged in an incestuous relationship and that she was looking for a male to “teach” her daughter about sex by having three-way intercourse with them. Defendant responded that he was interested in having sex with both Karina and Shayla, and he asked Karina several questions about her and Shayla's sexual experiences together, often remarking that Karina's answers made him sexually excited. However, defendant also regularly expressed concerns that Karina was a “cop” and sought assurances from her that she was not.

¶ 4 Defendant and Karina had many instant message conversations over several weeks. During these conversations, defendant routinely asked Karina about her and Shayla's sexual activities together and expressed interest in meeting them in person. Defendant also asked Karina whether she was interested in his taking pictures of their future sexual encounter and whether he should wear a condom. They also exchanged photos. Karina sent defendant a photo of herself (in actuality, a photo of the undercover police officer) and Shayla (in actuality, a school-age photo of a different female police officer). Defendant sent Karina a photo of his erect penis. Eventually, they exchanged phone numbers, and the undercover police officer researched defendant's phone number and discovered that it belonged to Todd Vecellio of Colorado Springs. The officer also learned that Vecellio was a police officer for the University of Colorado at Colorado Springs (UCCS).

¶ 5 Eventually, defendant and Karina had several phone conversations over a few days. During these conversations, they made plans to meet at a convenience store in Penrose. They agreed that once they met and got “comfortable” with each other, they would go to Karina's house and have three-way sex with Shayla. They also agreed that defendant would purchase condoms before making the trip.

¶ 6 On September 24, 2008, defendant drove from Colorado Springs to the convenience store in Penrose. Once defendant arrived there, Karina called defendant and asked him to buy beer from the nearby liquor store. Defendant agreed to buy beer. Upon exiting the liquor store, however, defendant was arrested by police officers from the Cañon City Police Department and Fremont County Sheriff's Office. When he was arrested, officers found a box of condoms in defendant's pocket.

¶ 7 In connection with these events, defendant was charged with four counts: (1) conspiracy to commit sexual assault on a child by one in a position of trust; (2) solicitation to commit sexual assault on a child by one in a position of trust; (3) criminal attempt to commit sexual assault on a child; and (4) enticement of a child.

¶ 8 Defendant's theory of defense was that he was conducting his own secret undercover investigation into Karina and the possible abuse of her daughter, and defendant testified consistently with that theory at trial. According to defendant's testimony, he had been passed over for promotion several times while working as a police officer at UCCS and felt that conducting the investigation would give him a “chance to shine.” As such, defendant stated that he did not drive to Penrose to have sex with Karina and Shayla; rather, he claimed he drove to Penrose to gather information about Karina so he could notify the authorities, save Shayla, and “be a hero.” However, defendant also testified that he had never conducted an ICAC investigation, had never been trained in conducting an ICAC investigation, did not save the instant message conversations with Karina, did not record the telephone calls with Karina, and did not inform anyone, including his supervisor, of his secret undercover operation, nor did he obtain authorization to conduct the operation. The jury convicted defendant on all counts.

¶ 9 This appeal followed.

II. Conspiracy

¶ 10 Defendant contends that the evidence was insufficient to convict him of conspiracy to commit sexual assault on a child by one in a position of trust. Specifically, he contends that, in Colorado, the crime of conspiracy requires a real agreement between two true co-conspirators. Accordingly, because Karina was in actuality an undercover police officer who never intended to engage in any criminal activity, defendant contends that he never entered into an agreement with a true co-conspirator, and, thus, the evidence was insufficient to convict him of conspiracy.

¶ 11 On this issue of first impression, we conclude that Colorado's conspiracy statute reflects the “unilateral” approach to conspiracy, under which a defendant may be convicted of conspiracy by agreeing with another party to commit a crime, regardless of whether the other party is an undercover police officer who feigns agreement. Therefore, because the fact that defendant agreed to commit a crime with an undercover police officer does not preclude his conviction, and because the evidence was sufficient to support his conviction, we reject defendant's contention.

A. Standard of Review

¶ 12 When reviewing a sufficiency of the evidence contention, a court must determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt. People v. Sprouse, 983 P.2d 771, 777 (Colo.1999); People v. McIntier, 134 P.3d 467, 471 (Colo.App.2005). The prosecution must be given the benefit of every reasonable inference that might be fairly drawn from the evidence. McIntier, 134 P.3d at 471.

¶ 13 Here, defendant's sufficiency of the evidence contention turns on a question of statutory interpretation. Statutory interpretation is a question of law that we review de novo. Bostelman v. People, 162 P.3d 686, 689 (Colo.2007).

¶ 14 When interpreting a statute, we must give effect to the intent of the General Assembly, which is vested with the power to define criminal conduct and to establish the legal components of criminal liability. People v. Hoskay, 87 P.3d 194, 197–98 (Colo.App.2003). To determine the General Assembly's intent, we look first to the language of the statute itself, giving words and phrases their plain and ordinary meaning. People v. Rice, 198 P.3d 1241, 1244 (Colo.App.2008). We read words and phrases in context and construe them according to their common usage. Id. “[W]e must read and consider the statutory scheme as a whole to give consistent, harmonious and sensible effect to all its parts.” People v. Luther, 58 P.3d 1013, 1015 (Colo.2002) (quoting Charnes v. Boom, 766 P.2d 665, 667 (Colo.1988)). If the statutory language is clear and unambiguous, we do not engage in further statutory analysis and apply the statute as written. Bostelman, 162 P.3d at 690;People v. Witek, 97 P.3d 240, 243 (Colo.App.2004).

B. Analysis

¶ 15 Defendant's argument raises an issue of first impression in Colorado, namely, whether Colorado's conspiracy statute adopts the bilateral or unilateral approach to conspiracy. See Marquiz v. People, 726 P.2d 1105, 1108 n. 6 (Colo.1986) (declining to decide as unnecessary to the resolution of the case whether the conspiracy statute adopts the unilateral approach and noting that the issue had never been presented to the court directly).

¶ 16 On appeal, defendant asks us to adopt the “bilateral” approach to conspiracy applied in the federal courts, as enunciated in United States v. Barboa, 777 F.2d 1420 (10th Cir.1985). Under the bilateral approach, the crime of conspiracy is committed when at least two true co-conspirators agree to proceed in a prohibited manner.¹See State v. Rambousek, 479 N.W.2d 832, 833–34 (N.D.1992). Accordingly, under the bilateral approach, a defendant cannot be convicted of conspiracy when the other party feigns agreement, such as in cases involving undercover government agents, because two true co-conspirators have not agreed to commit a crime. See Barboa, 777 F.2d at 1422 (“[T]here can be no indictable conspiracy involving only the defendant and government agents....”).

¶ 17 However, as defendant concedes on appeal, state courts have rejected the bilateral approach in favor of a “unilateral” approach. See, e.g., State v. John, 213 Neb. 76, 328 N.W.2d 181, 191 (1982); Rambousek, 479 N.W.2d at 835–36;Miller v. State, 955 P.2d 892, 897 (Wyo.1998) (the modern trend in state courts is to rule that a conspiracy count is viable even when one of the participants is a government agent or...