People v. Woellhaf, No. 00CA2351.

• Decision Date: 19 June 2003
• Docket Number: No. 00CA2351.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Warren M. WOELLHAF, Defendant-Appellant.
• Court: Colorado Court of Appeals

87 P.3d 142

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Warren M. WOELLHAF, Defendant-Appellant.

No. 00CA2351.

Colorado Court of Appeals, Div. V.

June 19, 2003.

As Modified on Denial of Rehearing August 28, 2003.

Certiorari Granted March 22, 2004.¹

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

David S. Kaplan, Colorado State Public Defender, Nancy J. Lichtenstein, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, Warren M. Woellhaf, appeals the judgment of conviction entered upon jury verdicts finding him guilty of four counts of sexual assault on a child pattern, four counts of sexual assault on a child by one in a position of trust-pattern, and one count of aggravated incest. Defendant also appeals the sentences imposed upon those convictions. We affirm in part, vacate in part, and remand for further proceedings.

When she was five years old, defendant's daughter told her foster mother that defendant had subjected her to sexual contact while she was living with him and her mother at a motel. In the investigation that followed, a social services caseworker and a child psychologist interviewed the victim and recorded the interviews on videotape.

During the interviews, the victim identified various acts of sexual contact, stating that they had happened ten times. However, because of her age, she was unable to list dates or particular times that the abuse had occurred. The time frame for the asserted acts covered a one-month period when the victim resided with her parents at the motel.

At trial, following its case-in-chief and after defendant had moved for judgment of acquittal, the prosecution elected and specified the sexual acts that supported each of the four sexual assault counts, reflecting each of the four particular types of sexual contact that the victim had identified. These were penile penetration, digital penetration, the rubbing of lotion on her vagina, and ejaculation on her stomach. The prosecutor specified that each of the assault-pattern counts and position of trust pattern counts would correspond with the four sexual acts specified by the victim.

Defendant was convicted on all counts. The court sentenced him to an aggregate of forty-eight years in the custody of the Department of Corrections: twelve years for each sexual assault on a child pattern count, to be served consecutively, and twelve years on each remaining count, to be served concurrently.

This appeal followed.

I.

Defendant was charged with violating § 18-3-405(1), C.R.S.2002, which proscribes sexual assault on a child, and violating § 18-3-405.3(1), C.R.S.2002, which prohibits sexual assault on a child by one in a position of trust. He first contends that these charges, which were all identically worded in the information and alleged as four separate violations of these two statutes, were multiplicitous, because the jury was permitted to conclude that the offenses occurred during a single criminal episode. Specifically, defendant argues that because all of the particular types of sexual contact alleged in the counts could have occurred during one incident, he essentially was convicted of the same crime four times for each involved statute, thus violating the constitutional prohibition against double jeopardy. We disagree.

As relevant here, the state and federal Double Jeopardy Clauses protect individuals against multiple punishments for the same offense. Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997); Deutschendorf v. People, 920 P.2d 53 (Colo.1996).

Multiplicity is the charging of the same offense in more than one count. It is considered a pleading defect and thus is not fatal to an indictment or information. However, one vice of multiplicity is that it may lead to multiple convictions and sentences for the same offense. C. Wright, Federal Practice and Procedure: Criminal 2d § 142 (1982 & 1987 Supp.); see People v. Borghesi, 66 P.3d 93 (Colo.2003)

.

The established test for determining whether two offenses are sufficiently distinguishable to allow successive prosecutions for separate statutory offenses is whether "each [statutory] provision requires proof of an additional fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932).

However, when, as here, multiple violations of the same statute are involved, the determination of whether double jeopardy bars prosecution for the same statutory offense involves a different analysis. The court must examine the scope of prosecution authorized by the statutory proscription and then the factual components of each prosecution and the evidence in support thereof. See Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978)

; People v. Williams, 651 P.2d 899 (Colo.1982); Brown v. State, 311 Md. 426, 535 A.2d 485 (1988).

A.

The scope of prosecution is set by determining the legislatively prescribed "allowable unit of prosecution." That prescription "determines the scope of protection offered by a prior conviction or acquittal. Whether a particular course of conduct involves one or more distinct `offenses' under the statute depends on this [legislative] choice." People v. Williams, supra, 651 P.2d at 903 (quoting Sanabria v. United States, supra, 437 U.S. at 69-70, 98 S.Ct. at 2181-82, 57 L.Ed.2d at 57).

In determining the allowable unit of prosecution, we examine whether a statute proscribes a continuous course of conduct or prohibits specific acts. People v. Williams, supra.

As the Supreme Court stated in Blockburger v. United States, supra, 284 U.S. at 302, 52 S.Ct. at 181, 76 L.Ed. at 306 (quoting Wharton's Criminal Law, § 34 n. 3 (11th ed.)), "The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately.... If the latter, there can be but one penalty." The Blockburger Court, in holding that two narcotic sales constituted separate acts even though made to the same person, contrasted that determination with the case of Ex parte Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658 (1887), which held that the offense of cohabiting with more than one woman was a continuous offense, because it "had duration" and did not consist of an isolated act. The distinction between the types of offenses, said the Court, again quoting Wharton's, is, "[W]hen the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie." See also Bustamante v. People, 136 Colo. 362, 317 P.2d 885 (1957)(if a violation of law is not continuous in its nature, separate indictments or informations may be maintained for each violation; a distinct repetition of a prohibited act, even on the same day, may constitute a second offense and incur an additional penalty).

Hence, the particular act referred to in the statute at issue is a determining factor. Whether that act is of a discrete or continuing nature is critical. See Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958)

(statute proscribing assault supported only one conviction where a single shot wounded two officers); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955)(statute proscribing knowingly transporting any woman or girl for an immoral purpose held to support only one conviction for simultaneously transporting two women because the act of transportation was a single one); Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (1915)(defendant properly convicted of six violations of a statute providing that "[w]hoever shall tear, cut, or otherwise injure any mail bag ... shall be fined," even though he cut the six mail bags during the same criminal episode).

Here, pursuant to § 18-3-405(1), a person commits the crime of sexual assault on a child whenever he or she "knowingly subjects another not his or her spouse to any sexual contact ... if the victim is less than fifteen years of age and the actor is at least four years older than the victim." Under § 18-3-405.3(1), a person commits the crime of sexual assault on a child by one in a position of trust whenever he or she "knowingly subjects another not his or her spouse to any sexual contact ... if the victim is a child less than eighteen years of age and the actor committing the offense is in a position of trust with respect to the victim."

Both statutes criminalize the act of subjecting another to "any sexual contact," which is defined, as relevant here, as the "knowing touching of the victim's intimate parts by the actor, or of the actor's intimate parts by the victim." Section 18-3-401(4), C.R.S.2002. "Intimate parts" means "the external genitalia or the perineum or the anus or the buttocks or the pubes or the breast of any person." Section 18-3-401(2), C.R.S. 2002.

Because of the disjunctive "or" used in each definitional component of the statute, and because both statutes criminalize "any" prohibited contact, we read the proscription against "sexual contact" to apply to each act of knowingly touching the described intimate parts of the body. Thus, each instance of contact with the described part of the anatomy constitutes an allowable unit of prosecution and a separate violation of the statute. It does not matter that the acts of touching all occur within the same incident.

Each knowing act of touching must, however, be different, distinct, or factually separate. See Blockburger v. United States, supra; Sanchez-Rengifo v. United States, 815 A.2d 351 (D.C.2002)

. Touching and charges based thereon are different, distinct, or factually separate in fact if, for example, they are separated in time, place, or manner, if they require...