Sanchez v. People

• Decision Date: 12 May 2014
• Docket Number: Supreme Court Case No. 11SC165
• Citation: 325 P.3d 553
• Parties: Dennis SANCHEZ, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

325 P.3d 553

Dennis SANCHEZ, Petitioner

v.The PEOPLE of the State of Colorado, Respondent.

Supreme Court Case No. 11SC165

Supreme Court of Colorado.

May 12, 2014

Court of Appeals Case No. 07CA898

Attorneys for Petitioner: Douglas Wilson, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado

Attorneys for Respondent: John W. Suthers, Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, Colorado

En Banc

JUSTICE COATS delivered the Opinion of the Court.

¶ 1 Sanchez petitioned for review of the court of appeals' judgment in People v. Sanchez, No. 07CA898, 2011 WL 221446 (Colo.App. Jan. 20, 2011) (not published pursuant to C.A.R. 35(f)), which affirmed, among others, his conviction for sexual assault on a child as part of a pattern of abuse. The trial court entered judgment of conviction for a class 3 felony, designated “Sexual Assault on a Child—Pattern of Abuse,” notwithstanding the jury's verdict of “Not Guilty” on the only charge actually entitled, “Sexual Assault on a Child,” on the basis of its separate finding of two out of six enumerated touching incidents presented on a verdict form entitled, “Sexual Assault on a Child—Pattern of Abuse.” A majority of the court of appeals found that the defendant had been adequately charged in a single count with both the elements of sexual assault on a child and the pattern-of-abuse sentence enhancer, separate and apart from the count charging simply “Sexual Assault on a Child”; and that the jury's instructions did not make its finding of a pattern of abuse contingent upon first finding the defendant's guilt of the separately charged crime of “Sexual Assault on a Child.”

¶ 2 Because, however, the verdict form by which the jury found the defendant “Guilty” of “Sexual Assault on a Child—Pattern of Abuse” never offered the jury an opportunity to find that he committed the elements of sexual assault on a child, and instead reflected at most the jury's factual finding of two different incidents of sexual contact, the trial court erred in entering judgment of conviction for a class 3 felony offense of sexual assault on a child, and the court of appeals' judgment affirming that conviction is now reversed.

I.

¶ 3 In October 2005, Dennis Sanchez was charged in four separate counts with class 4 felony “Sexual Assault on a Child,” class 3 felony “Sexual Assault on a Child—Pattern of Abuse,” “Criminal Attempt to Commit Sexual Assault on a Child,” and “Child Abuse,” with regard to acts committed upon his daughters, S.A.S. and S.E.S. Based on the jury's verdicts, the trial court entered judgment of conviction for one count of sexual assault on a child—pattern of abuse, one count of attempted sexual assault on a child, and one count of misdemeanor child abuse. The defendant was sentenced to an indeterminate term of nine years to life for the sexual assault conviction and concurrent terms of two years and 18 months respectively for attempt and child abuse.

¶ 4 In the only count of the Complaint and Information designated “Sexual Assault on a Child,” it was alleged, in substantially the words of section 18–3–405(1), C.R.S. (2013), the statute defining and proscribing the crime of sexual assault on a child, that over a slightly longer than one-month period in 2005, the defendant “unlawfully, feloniously, and knowingly subjected [S.A.S.], not his spouse, to sexual contact and the victim was less than fifteen years of age and the defendant was at least four years older than the victim.” In a separate count designated “Sexual Assault on a Child—Pattern of Abuse,” it was alleged, in the virtually identical language of the statute, that the defendant subjected S.A.S. to sexual contact over an approximately four-and-one-half-year period, which included the shorter period designated in the charge of “Sexual Assault on a Child,” and it was further alleged that the defendant “committed the act as a part of a pattern of sexual abuse,” in violation of subsection (2)(d) of the statute, a condition elevating the crime of sexual assault on a child from a class 4 to a class 3 felony. See§ 18–3–405(2)(d), C.R.S. (2013). The defendant's daughter S.A.S., who was 11 years old at the time of the trial, testified to six discrete incidents of sexual contact by the defendant, at six different times, one occurring in the family's Thornton home in Adams County, two occurring in the family's Wheat Ridge apartment, and the remaining three occurring at a Denver address. Only the Thornton incident fell within the narrower window of time charged solely as “Sexual Assault on a Child.”

¶ 5 The jury was instructed on the elements of the crime of sexual assault on a child in the format of an elemental instruction urged by the Colorado Jury Instructions—Criminal, see COLJI–Crim. 12:09 (1983 & Supp.1993), which enumerated the elements of the offense and concluded with the two recommended parallel paragraphs, allowing for verdicts of either “Not Guilty” or “Guilty.” The first concluding paragraph instructed the jury in the words of the model instructions that after considering all the evidence, if it decided the prosecution had proven each of the elements beyond a reasonable doubt, it should find the defendant guilty of “Sexual Assault of a Child”; and the second instructed the jury that after considering all the evidence, if it decided the prosecution had failed to prove any one or more of the elements beyond a reasonable doubt, it should find the defendant not guilty of “Sexual Assault on a Child.” This instruction was generic in designation, without reference to any particular count of the charging document or any particular verdict form.

¶ 6 In addition, the jury was instructed, in the form of an interrogatory, with the introductory caution that this particular instruction should be disregarded altogether “[i]f you do not find the defendant guilty of Sexual Assault on a Child ( [S.A.S.] ).” This instruction further directed the jury, “If, however, you find the defendant guilty of Sexual Assault on a Child ( [S.A.S.] ), then answer the following question: Did the defendant commit Sexual Assault on a Child as part of a pattern of Sexual Abuse?” The instruction then defined “Pattern of Abuse”; notified the jury that it was the prosecution's burden to prove beyond a reasonable doubt that the defendant committed “a pattern of sexual abuse”; and concluded by directing the jury that after considering all of the evidence, it should indicate on the verdict form provided whether or not it found that the prosecution had proven the defendant committed “a pattern of sexual abuse.”

¶ 7 The jury received four verdict forms, three of which expressly contained a “count” designation: “Count I, Sexual Assault on a Child ( [S.A.S.] ),” “Jury Verdict, Count II, Attempted Sexual Assault on a Child ( [S.E.S.] ),” and “Jury Verdict, Count III, Child Abuse ( [S.A.S.] ).” ¹ The fourth verdict form referenced no particular count but was designated “Sexual Assault on a Child—Pattern of Abuse ( [S.A.S.] ),” corresponding precisely by title with the sole remaining charge.² While the three verdict forms referencing particular counts offered the jury a clear choice to find the defendant either “Guilty” or “Not Guilty” of the named offense, the verdict form for “Sexual Assault on a Child—Pattern of Abuse,” like the preceding interrogatory defining “Pattern of Abuse” and querying whether the defendant committed “Sexual Assault on a Child as part of a pattern of Sexual Abuse,” conditioned completion of that particular verdict form upon the jury's finding the defendant guilty of “Sexual Assault on a Child.” ³ The jury was directed that if, but only if, it were to find the defendant guilty of “Sexual Assault on a Child,” was it to complete this verdict form; and in that event, it was offered a choice to further find the defendant guilty or not guilty of “Sexual Assault on a Child—Pattern of Abuse.” As to the latter choice, the form read, “We, the jury, find the Defendant, Dennis Sanchez, GUILTY of Sexual Assault on a Child—Pattern of Abuse, by unanimously finding that the following specific incidents occurred,” (emphasis added), and it then described six incidents of “touching” in terms of particular locations, with an unmarked box next to each. The verdict form concluded by directing the foreperson to check the above boxes only if the jury had unanimously decided that either all of the incidents of sexual contact had occurred or unanimously agreed which specific incidents of sexual contact occurred.

¶ 8 The jury returned verdicts of “Guilty” as to attempt and child abuse but “Not Guilty” as to “Count I, Sexual Assault on a Child ( [S.A.S.] ).” Notwithstanding finding the defendant not guilty of the only count designated “Sexual Assault on a Child,” the jury proceeded to answer the pattern of abuse verdict form, checking two of the boxes, while leaving unmarked the remaining four, including the only touching incident falling within the time frame charged in “Count I, Sexual Assault on a Child ( [S.A.S.] ).” On the basis of this verdict form, the trial court entered judgment of conviction for a class 3 felony, designated on the mittimus as “Sex Assault/Child—Pattern of Abuse.”

¶ 9 On direct appeal the defendant raised a number of challenges to the sufficiency of the jury's verdict regarding “Sexual Assault on a Child—Pattern of Abuse,” all of which were rejected by the court of appeals majority. We granted the defendant's petition for a writ of certiorari on the questions whether the jury in fact acquitted him of the only act the prosecutor charged and elected as the predicate for the pattern of abuse enhancer and, even if not, whether the complaint and information failed to give the defendant adequate notice of the various incidents of alleged sexual assault of which evidence was ultimately presented to the jury. Following oral argument, we ordered supplemental briefing on...