People v. Walker
| Decision Date | 31 March 2011 |
| Docket Number | No. 07CA1572.,07CA1572. |
| Citation | 321 P.3d 528 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Marshall Adam WALKER, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
OPINION TEXT STARTS HERE
John W. Suthers, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.
Douglas K. Wilson, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.
Opinion by Judge LOEB.
Defendant, Marshall Adam Walker, appeals the judgment of conviction entered upon the trial court's determination, following a bench trial, that he was guilty of thirty counts of sexual exploitation of a child, three counts of unlawful sexual contact, and two counts of enticement of a child. He also appeals the indeterminate sentences imposed on twenty-four of the sexual exploitation counts. We affirm the judgment and the sentences and remand with directions.
Defendant began his teaching career in the fall of 1997 as a student teacher at Bell Middle School in Jefferson County. After one year, he accepted a permanent position as an eighth grade science teacher at Everitt Middle School, also in Jefferson County. At both schools, defendant developed relationships with his students outside of the classroom. He befriended three male students—A.W., T.W., and D.B.—spending time with them after school and inviting them on extracurricular outings related to his hunting hobby. Ultimately, defendant engaged in inappropriate and unlawful behavior with each of these students, giving rise to the criminal charges in this case.
Evidence at trial showed that A.W. had just turned fourteen years old when he was a student in defendant's class at Bell Middle School. In conversations during class and afterschool help sessions, A.W. learned of defendant's passion for hunting. A.W. became intrigued by the idea of duck hunting, and with defendant's help, A.W. obtained his mother's permission to go duck hunting with defendant. A.W. and defendant went on two or three day trips together during the fall 1997 duck season.
A.W. continued to hunt with defendant the following fall when he was fifteen years old. At defendant's suggestion, A.W. began to spend the night before their hunting trips at defendant's parents' home (where defendant was living at the time) in order to get an early morning start. One night, defendant offered A.W. a handgun if A.W. would allow defendant to photograph him nude. This offer caught A.W. by surprise, and when A.W. asked defendant why he wanted the nude photographs, defendant responded that it was for “blackmail reasons ... to get back at [A.W.] sometime in the future if [he] ever did something.” A.W. undressed for defendant, and defendant took at least six photographs in which A.W. was nude and touching himself. However, defendant did not give A.W. the handgun after he posed for the photographs. Rather, defendant told A.W. that he would have to work to get the gun. A.W. declined to pose nude for defendant on a second occasion because he “didn't want the gun bad enough.”
T.W. was in defendant's class at Everitt Middle School during the 2002–2003 school year. T.W. often spent time with defendant after school, and they talked about hunting and other extracurricular interests. About two weeks into the school year, defendant offered to take T.W. to a shooting range. Soon after, defendant paid for T.W. to get his hunter's safety license so that they could hunt together. Defendant and T.W. went on at least twenty hunting trips that year, including overnight trips, where defendant provided the equipment and paid the entire cost of the trips. They continued to hunt together the following year after T.W. entered high school, although the trips became less frequent.
On one of their earliest overnight trips, defendant asked T.W. to perform a dare for him. Specifically, he asked T.W. to do ten naked jumping jacks in front of him, explaining that the dare would be T.W.'s “way of paying” for the hunting trips. T.W. initially refused, but after about an hour of arguing with defendant, T.W. eventually relented and performed the jumping jacks.
According to T.W.'s testimony at trial, the dares became routine after this first incident. Defendant would suggest some kind of dare on nearly every subsequent hunting trip, and would also suggest a dare on other occasions, such as when he invited T.W. to the movies, to Dairy Queen, or to his house to watch wrestling. While the dares constantly changed to correspond to the amount of money spent by defendant, they always involved T.W. removing his clothes for defendant. At trial, T.W. explained that he was asked to pose in various nude positions, to watch pornographic movies, to pose for nude photographs, and to create nude videos. Indeed, police found twenty photographs and two videos of T.W. The videos and photos were admitted into evidence at trial, and the court made the following findings of fact:
There are two videos ... which contain [T.W.] naked for relatively lengthy periods of time being directed by the defendant of what to do, where to stand, how [to] walk, how to lean over, how to lie down, how to masturbate, whether or not to ejaculate....
In addition, there are photographs ... that show [T.W.] naked in ... to some extent, erotic poses. In any event, sexually explicit naked photographs of [T.W.]
....
In addition, during these photo sessions and video sessions, the defendant would put pornography [on] or have [T.W.] put pornography on the DVD so that that would assist [T.W.] in getting aroused so the defendant could take the videos of [T.W.] while he was aroused and masturbating.
T.W. testified at trial that the dares became such a regular occurrence that defendant would no longer have to ask T.W. to perform them.
D.B., the final student victim in this case, was in defendant's class at Everitt the same year as T.W. Like A.W. and T.W., D.B. would spend time with defendant after school, such as when defendant was grading papers, and they would discuss their interests and hobbies with each other. At one point, D.B. asked defendant if he could go hunting with defendant. Defendant explained that D.B. would first have to obtain a hunter's safety license. Because D.B. was not interested in undertaking the license certification process, defendant suggested skeet shooting as an alternative activity.
Thereafter, D.B. and defendant made arrangements to go skeet shooting together. They left directly from school one Friday afternoon, first stopping at defendant's parents' house so that defendant could retrieve his guns. They were inside defendant's bedroom when D.B. spotted a pornographic DVD and a deck of playing cards decorated with images of naked women. D.B. casually joked about the DVD and cards, but defendant became noticeably worried and responded that he could not trust D.B. to keep a secret, that he was concerned that D.B. had “dirt on him,” and that he could “lose his job.” After this brief exchange, D.B. and defendant went to the shooting range as planned.
On the drive home, defendant repeated his concern that D.B. had “dirt on him” and suggested that D.B. pose for nude photographs in return. D.B. refused, but defendant persisted with his request and brought D.B. back to his bedroom. There, defendant first tried to change D.B.'s mind by offering him the deck of playing cards, which D.B. declined. Defendant next offered D.B. a duck call device for use in duck hunting, and D.B. again declined. Finally, defendant offered to change D.B.'s recent test grade from “F” to “B” if he would pose for nude photographs. D.B. agreed at this point because, as he explained at trial, he “needed that grade on that test.” Accordingly, D.B. undressed and reclined on the bed for several photographs. Defendant then played a pornographic DVD and asked D.B. to get an erection for more photographs. He repeated this request more than ten times, even offering to give the DVD to D.B. However, D.B. refused, and defendant ceased taking the photographs.
The above incidents between defendant and A.W., T.W., and D.B., respectively, were kept a secret until late April 2006. At that time, D.B. was watching a movie that sparked a repressed memory of defendant taking nude photographs of him. D.B. confided in his father about the photo session and met with a therapist. With D.B.'s consent, the therapist disclosed the incident to authorities.
On May 10, 2006, the prosecution charged defendant with one count of sexual exploitation of a child and one count of enticement of a child in connection with D.B.'s allegations. Numerous counts were then added to the complaint and information as law enforcement officials recovered additional evidence of the various incidents described above as to the three victims. Several counts were also amended or dismissed over time to correspond to the unfolding investigation. Defendant was ultimately charged with thirty counts of sexual exploitation of a child, four counts of unlawful sexual contact, and three counts of enticement of a child.
At a motions hearing one week prior to trial, defendant waived his right to a jury trial, and on February 12, 2007, a two-day trial to the court commenced. At trial, the prosecution presented, among other evidence, the live testimony of A.W., T.W., and D.B., and the various nude photographs and videos that had been recovered of these boys. After a proper advisement, defendant waived his right to testify at trial.
Based on the evidence adduced at trial, the court convicted defendant of thirty counts of sexual exploitation, three counts of unlawful sexual contact, and two counts of enticement. The court then sentenced defendant as follows: (1) four years in prison for each of the six exploitation counts involving A.W.; (2) an indeterminate sentence of twelve years to life in prison for each of the twenty-three exploitation...
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People v. McEntee
...appellate cases that address charges under this particular subsection. None of them involved a third person.¶15 In People v. Walker , 321 P.3d 528 (Colo. App. 2011), aff’d in part and vacated in part on other grounds , 2014 CO 6, 318 P.3d 479, the defendant was convicted of three counts of ......