Quintano v. People

• Decision Date: 18 January 2005
• Docket Number: No. 03SC567.,03SC567.
• Citation: 105 P.3d 585
• Parties: Petitioner: Robert QUINTANO, v. Respondent: The PEOPLE of the State of Colorado.
• Court: Colorado Supreme Court

105 P.3d 585

Petitioner: Robert QUINTANO, v. Respondent: The PEOPLE of the State of Colorado.

No. 03SC567.

Supreme Court of Colorado, En Banc.

January 18, 2005.

Rehearing Denied February 14, 2005.

David S. Kaplan, Colorado State Public Defender, Andrea R. Manning, Deputy State Public Defender, Denver, for Petitioner.

John W. Suthers, Acting Attorney General, Wendy J. Ritz, Assistant Attorney General, Criminal Justice Section, Appellate Division, Denver, for Respondent.

Justice COATS does not participate.

KOURLIS, Justice.

In this sexual assault on a child case, Robert E. Quintano, the defendant in the underlying action, sought review of the court of appeals decision in People v. Quintano, 81 P.3d 1093 (Colo.App.2003), upholding three convictions against him for sexual assault on a child. Specifically, this court granted certiorari on two issues: (1) whether the failure of the trial court to compel the People to elect specific instances of the defendant's conduct for each count charged in the information violated the defendant's due process rights; and (2) whether the defendant's convictions were multiplicitous in violation of the prohibition against double jeopardy.

Concerning Quintano's multiplicity contention, the court of appeals disagreed that his three convictions violated the double jeopardy clause. The court opined that the three convictions were not based upon a single criminal act, and instead constituted separate offenses.

The court of appeals held, also, that the trial court erred in failing to compel the People to elect specific acts for each count. That court, however, found the error harmless. It reasoned that the three convictions were based on five specific incidents and that the jury was instructed that they were required to agree upon the same incident or agree that all acts had been proven. Because the jury acquitted the defendant of two counts, the court concluded that the jury agreed upon particular separate incidents for each of the three counts on which they convicted.

We granted certiorari, and now affirm. The prosecution here charged the defendant with five identically worded counts of sexual assault on a child, occurring on the same day. On its face, the complaint and information was problematic. At no time did the prosecution file a bill of particulars or elect specific acts or series of acts as to each count. However, the evidence ultimately supported a conclusion that the defendant could have committed five separate offenses, because they were separated in time, location and comprised separate volitional departures, and the jury instructions and verdict forms required the jury to agree upon specific acts for each count. Therefore, the convictions are not infirm, either on double jeopardy or due process grounds. We sustain defendant's three convictions for sexual assault on a child.

I. FACTS AND PROCEDURAL HISTORY

A. BACKGROUND

On October 1, 1998, Robert E. Quintano was arrested and charged in Arapahoe County with, among other things, five counts of sexual assault on a child, in violation of section 18-3-405(1), C.R.S. (2004). All five offenses occurred on the same day and against the same victim, M.H. The jury convicted Quintano of three of five counts.

Quintano was a long time friend of M.H.'s family. M.H. was fourteen-years-old at the time of the alleged sexual assaults; Quintano was thirty eight. On July 25, 1998, the evidence indicates that he appeared at M.H.'s aunt's house where M.H. was babysitting. While the two were wrestling playfully in the living room of the house, Quintano grabbed M.H.'s left breast at least ten times, telling her "this is your day to get picked on." Quintano persisted, even though she admonished him to stop several times. M.H. pushed Quintano away and tried to escape.

The encounter then moved outside the house after Quintano carried M.H. to the poolside. At the pool, he grabbed her crotch area several times. Quintano then placed his hand up M.H.'s shorts and touched her vaginal area several times. There was no digital penetration. She pushed him away, but he continued by grabbing at her leg, and then pushed her into the pool with his hand resting on her crotch area.

The matter reconvened inside the house. After Quintano pushed M.H. into the pool, she got out and entered the house where she proceeded to the bathroom to dry off. Quintano followed her there and again grabbed her breasts four to five times. M.H. exited the bathroom to use the telephone. Quintano followed her back to the bathroom and grabbed her buttocks, for about two to three minutes, telling her "do you know what I want to do to you? I want to eat your pussy." She tried to leave the bathroom but the defendant kept pulling her back. Lastly, the encounter relocated to the living room where Quintano bit M.H.'s left breast. M.H. could not recall specifically how long the various encounters lasted.¹

B. TRIAL PROCEEDINGS

The People charged Quintano with five counts of sexual assault on a child, in identically worded terms.² Prior to trial, Quintano moved, through his attorney, for a bill of particulars specifying more clearly the charges alleged in the information. The People objected, stating that information furnished through discovery had sufficiently apprised Quintano of the nature, time and extent of the charges and number of witnesses.

On October 7, 1999, at the pretrial hearing on the motion for bill of particulars, counsel for Quintano reasserted his argument that the charging document was too general to defend against. In addition, counsel argued that the five counts constituted overcharging and were therefore prejudicial. Counsel emphasized that "there is one date of offense, and there's one incident." He therefore demanded that the People elect a single count. Counsel also requested that "[i]f the People are saying that Count No. 1 is grabbing of the crotch, if they could just tell me that." The People responded that defense counsel was asking for two things, an election and a bill of particulars. The prosecutor disclosed that the victim had alleged at least 15 to 20 different acts as to which he was not required to make an election until at the close of the People's case.

Although the trial court noted that the information contained identically worded counts, it found pretrial discovery, including numerous acts alleged in the affidavit, sufficient. The court therefore dismissed the defendant's request for a bill of particulars. It left the issue of election to be resolved at trial.

At the preliminary hearing, defense counsel renewed his request for an election of acts. Counsel reiterated that the People had not shown probable cause for several distinct offenses but had instead charged, "each time he may have touched her inappropriately, even if it was within five seconds of each other." The prosecutor countered that she had filed five counts for five distinct incidents of sexual assault, and not for several acts of continuous touching. She explained her charging decision as follows: "I have charged" (1) one count for touching the victim's left breast in the living room, (2) one count for touching the victim's vaginal area at the pool, (3) one count for touching the victim's buttocks in the bathroom, (4) touching her breast in the bathroom, and (5) one count for biting the victim's breast in the living room. The court again denied the defendant's motion.

At trial, the jury heard testimony from nine witnesses including the victim, her mother and two officers. All testified to the events as described above with minor variations in the victim's testimony — that on one occasion the defendant had touched her breast four or five times rather than ten times.

Defense counsel did not renew his request for an election at the close of the People's case, but the issue arose again during the jury instruction conference when defense counsel challenged the lack of variance in the verdict forms. Except for the form for count five, which contained a reference to bodily injury, all five forms contained identically worded counts. Counsel argued that the forms were confusing, but did not ultimately object to their submission to the jury. The prosecutor conceded only that count five related to the breast-biting incident. The trial court noted that the jury would receive the standard unanimity instruction, which would require the jury to agree that the defendant committed the same act of sexual contact for each separate count, or that the defendant committed all of the acts of sexual contact. The jury also received an instruction on the elements of sexual assault on a child as contained in section 18-3-405(1); but the verdict forms did not otherwise distinguish any counts.

During closing argument, the prosecutor argued to the jury that "the defendant didn't just do one thing. He did many, many things. And as you go through the evidence, you may determine that we could have charged him twenty five times or some other." The trial court overruled defense counsel's strenuous objections to those statements by the prosecutor, stating that "this is a closing argument." The prosecutor explained that the jury need only consider whether there were facts sufficient to support five counts.

During deliberation, the jury sent out two questions. The jury first asked: "Do we have to be unanimous for each count[?] We are in agreement on counts 1, 3, and 6[.] We are split on the remaining counts 2, 4, 5, and 7." The court instructed the jury that "any verdict that you reach on any count must be unanimous." Later, the jury sent out the following question:

We do not understand the difference between the two interrogatories on counts 1 thru 4. Please explain the difference between `committed the same act of sexual contact' and `committed all of the acts of sexual contact[.]' Please give an example. Also why is page 2 of count 5 different than page 2 of counts 1 thru 4[?] Please explain.

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