People v. Wood, 85SA329

• Decision Date: 05 October 1987
• Docket Number: No. 85SA329,85SA329
• Citation: 743 P.2d 422
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. George A. WOOD, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 422

743 P.2d 422

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. George A. WOOD, Defendant-Appellant.

No. 85SA329.

Supreme Court of Colorado,

En Banc.

Oct. 5, 1987.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Cynthia Nimerichter, Cynthia Jones, Asst. Attys. Gen., Denver, for plaintiff-appellee.

Anderson, Gerig, Gross & Lederer, P.C., William M. Lederer, Colorado Springs, for defendant-appellant.

LOHR, Justice.

The defendant, George A. Wood, was convicted of two counts of sexual assault on a child by one in a position of trust, section 18-3-405, 8B C.R.S. (1986), and one count of a mandatory sentence for crime of violence, section 16-11-309, 8A C.R.S. (1986). The defendant appealed, and the case was subsequently transferred from the Colorado Court of Appeals to this court pursuant to section 13-4-110(1)(a), 6 C.R.S. (1973). We affirm the defendant's convictions.

I.

The victim in this case is the defendant's daughter. The two incidents giving rise to the charges against the defendant occurred in late September and early October of 1983, when the defendant's daughter was thirteen years old. She testified that both assaults took place under similar circumstances and in similar manners. On both occasions her brother and her mother were not at home. The defendant asked her to perform fellatio and she complied. She testified that she had done this for the defendant on many occasions since she was eight or nine years old. After he had attained an erection, the defendant attempted to penetrate her vagina. On both occasions she told the defendant that it hurt, and he stopped before entering her completely. After stopping, the defendant masturbated and ejaculated on her stomach.

A few days after the second of these two incidents, the victim told two of her schoolmates that her father had sexually abused her. One of her schoolmates convinced her to tell a school counselor. After relating the events to a school counselor, the victim was removed from her home by the El Paso County Department of Social Services (Department) and placed in foster care.

The defendant was charged with two counts of sexual assault on a child by one in a position of trust, a class 3 felony, in violation of section 18-3-405(2)(b), 8B C.R.S. (1986), and one count of a mandatory sentence for crime of violence, section 16-11-309, 8A C.R.S. (1986). Trial was to a jury. The defendant denied committing the assaults and also testified that various factors, including a severe heart condition, the medication he was taking for his heart condition, a damaged sternum, and the residual effects of having been struck by lightning in 1980, caused him to have no desire for sex and prevented him from attaining a full erection. He also testified that on the infrequent occasions that he engaged in sex with his wife he experienced great pain and discomfort and was unable to maintain an erection for more than a brief time. This testimony was corroborated by his wife. The defendant and his wife both testified to the effect that by reason of the defendant's physical condition, he could not have sexually assaulted his daughter in the way the young girl described.

The People also presented the testimony of the victim's doctor, who testified that a physical examination of the victim revealed evidence of a stretched hymen consistent with slight vaginal penetration. A mental health therapist who treated the defendant's daughter testified that she exhibited symptoms that strongly correlated with those typically found in victims of incest. An expert in the study of incest testified that the characteristics of the defendant's family were consistent with those of families in which incest commonly occurs.

The jury found the defendant guilty of all three charges, and the trial judge sentenced him to a term of imprisonment of eight years and one day, plus one year of parole. The defendant appealed his convictions to the court of appeals. However, because the defendant challenges the constitutionality of the sexual assault on a child statute, section 18-3-405, 8B C.R.S. (1986), and the mandatory sentence for crime of violence statute, section 16-11-309, 8A C.R.S. (1986), the appeal was transferred to this court pursuant to section 13-4-110(1)(a), 6 C.R.S. (1973). ¹

II.

A.

The defendant first contends that the trial court erred in failing to grant his motion for judgment of acquittal, which was based on his assertion that section 18-3-405(2)(b), classifying sexual assault on a child by "one in a position of trust" as a class 3 felony, is unconstitutionally vague because the term "one in a position of trust" is not defined by statute. The defendant's argument is without merit.

Section 18-3-405 provides in pertinent part:

(1) Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child if the victim is less than fifteen years of age and the actor is at least four years older than the victim.

(2) Sexual assault on a child is a class 4 felony, but it is a class 3 felony if:

* * *

(b) The actor who commits the offense on a victim is one in a position of trust with respect to the victim.

* * *

At the same time subsection (2)(b) was added to section 18-3-405, the General Assembly also enacted section 18-3-401(3.5). Ch. 197, secs. 1, 2, §§ 18-3-401(3.5), 18-3-405(2)(b), 1983 Colo.Sess.Laws 693. Section 18-3-401(3.5) provides:

As used in this part 4, unless the context otherwise requires:

* * *

(3.5) One in a "position of trust" includes, but is not limited to, any person who is a parent or acting in the place of a parent and charged with any of a parent's rights, duties, or responsibilities concerning a child or a person who is charged with any duty or responsibility for the health, education, welfare, or supervision of a child, including foster care, child care, family care, or institutional care, either independently or through another no matter how brief, at the time of an unlawful act.

Both section 18-3-405(2)(b) and section 18-3-401(3.5) were signed into law by the Governor on June 15, 1983, and became effective on that date. Therefore, the definition of "one in a position of trust" contained in section 18-3-401(3.5) was in effect at the time of the offenses. As the father of the victim, the defendant clearly falls within the statutory definition of "one in a position of trust." His claim that section 18-3-405 is unconstitutionally vague for failure to define this term has no merit.

B.

At trial, a schoolmate of the victim testified as to certain statements made by the victim to her regarding the two sexual assaults. The defendant contends that the trial judge erred in permitting the schoolmate to testify as to these statements. Specifically, the defendant argues that the trial judge erred by (1) failing to hold a hearing pursuant to section 13-25-129(1)(a), 6 C.R.S. (1986 Supp.), to determine the reliability of her testimony; (2) allowing her to testify despite the fact that the prosecution had not complied with section 13-25-129(3), 6 C.R.S. (1986 Supp.), by giving the defendant reasonable notice of its intention to offer out-of-court statements made by the victim and the particulars of the out-of-court statements; and (3) failing to instruct the jury, as required by section 13-25-129(2), 6 C.R.S. (1986 Supp.), that it was for them to determine the weight and credit to be given the statements and that they should consider certain specified factors in making those determinations. We find the defendant's arguments unpersuasive.

1.

Section 18-3-411(3), 8B C.R.S. (1986), provides:

Out-of-court statements made by a child describing any act of sexual contact, intrusion, or penetration, as defined in section 18-3-401, performed with, by, or on the child declarant, not otherwise admissible by a statute or court rule which provides an exception to the objection of hearsay, may be admissible in any proceeding in which the child is the victim of an unlawful sexual offense pursuant to the provisions of section 13-25-129, C.R.S.

Section 13-25-129, 6 C.R.S. (1986 Supp.), provides an exception to the hearsay rule for out-of-court statements made by a child who is the victim of an unlawful sexual offense, and sets forth procedures to be followed in order to admit such out-of-court statements. Section 13-25-129(1) provides that such a statement is admissible in evidence if:

(a) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and

(b) The child either:

(I) Testifies at the proceedings; or

(II) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.

The defendant alleges that the trial judge failed to conduct a hearing to determine whether the schoolmate's testimony concerning statements made by the victim to her was sufficiently reliable to be admitted. However, the record reveals that such a hearing was held.

When the prosecutor notified the court at trial that he intended to call the schoolmate as his next witness, defense counsel objected on the basis that much of her testimony would be hearsay. The prosecutor then brought the court's attention to the hearsay exception contained in section 18-3-411(3). The trial judge immediately recognized that an in camera hearing concerning statements made by the victim to the witness would be required pursuant to section 13-25-129(1)(a). Following a recess, the court held a hearing outside the presence of the jury, and the prosecutor, defense counsel and the trial judge questioned the schoolmate. The trial judge ruled that the witness's testimony concerning what the victim told her would be admitted, with certain restrictions.

The trial judge properly conducted the hearing required by section 13-25-129(1)(a). He expressly...