Woellhaf v. People, No. 03SC664.

Docket NºNo. 03SC664.
Citation105 P.3d 209
Case DateJanuary 18, 2005
CourtSupreme Court of Colorado

105 P.3d 209

Warren WOELLHAF, Petitioner,
v.
The PEOPLE of the State of Colorado, Respondent

No. 03SC664.

Supreme Court of Colorado, En Banc.

January 18, 2005.


105 P.3d 211
David S. Kaplan, Colorado State Public Defender, Nancy J. Lichtenstein, Deputy State Public Defender, Denver, for Petitioner

John W. Suthers, Acting Attorney General, Melissa D. Allen, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, for Respondent.

MARTINEZ, Justice.

In this case, we determine the unit of prosecution for the crimes of sexual assault on a child, section 18-3-405, C.R.S. (2004), and sexual assault on a child by one in a position of trust, section 18-3-405.3, C.R.S. (2004).1 We hold that these statutes proscribe "any sexual contact" and therefore do not define separate offenses for each type of sexual contact. After determining the legislatively prescribed unit of prosecution, we proceed to the factual component of our test. We conclude that, due to the manner in which the prosecution grouped the sexual contacts in this case, there was a single factual offense. Accordingly, the multiple punishments in this case, based on different types of sexual contact, are barred by principles of double jeopardy.

I. FACTS AND PROCEEDINGS BELOW

A jury convicted Warren M. Woellhaf of four counts of sexual assault on a child pursuant to section 18-3-405, and four counts of sexual assault on a child by one in a position

105 P.3d 212
of trust pursuant to section 18-3-405.3. Woellhaf was also convicted of other felonies not at issue here.2 The convictions were the result of allegations that Woellhaf had sexually assaulted his five-year old daughter, A.W

On December 26, 1998, Woellhaf's daughter, A.W., revealed to her foster mother that Woellhaf had sexually assaulted her. Subsequently, during video-taped interviews, A.W. stated that she had been assaulted ten times. Although she could not specify when the assaults occurred, A.W. described four specific types of sexual contact: 1) rubbing lotion on her vagina; 2) digital penetration of her vagina; 3) penile penetration of her vagina; and 4) ejaculating on her stomach. Thereafter, investigators narrowed the time frame of the assaults to between August 16, 1998 and September 16, 1998.

On June 8, 1999, Woellhaf was charged with ten identical counts of sexual assault on a child, section 18-3-405, and ten identical counts of sexual assault on a child by one in a position of trust, section 18-3-405.3. Nothing in the identical counts distinguished one count from another or associated any count with a particular assault.3 Moreover, nothing in the evidence, aside from A.W.'s statement that she had been assaulted ten times, provided any detail from which one assault could be distinguished from another. The vagueness of the evidence apparently caused the prosecution to dismiss five of the ten counts for each offense. Subsequently, Woellhaf requested a bill of particulars to compel the prosecution to elect five of the alleged ten assaults in support of the remaining five counts. The trial court denied the request.

During the trial, at the close of the prosecution's case in chief, Woellhaf moved for judgment of acquittal. Defense counsel argued that, based on the evidence, it was impossible for a reasonable juror to designate which five of the ten alleged assaults actually occurred or were being prosecuted. In response, the prosecution revealed that rather than elect separate acts or incidents of assault for each count, it was supporting four of the five counts with the four specific types of sexual contact described by A.W., and a fifth count of each offense by alleging that A.W.'s mother witnessed the four types of sexual contact. The prosecution made this election without regard to the result that none of the counts then related to a separate act or incident of sexual assault.

Specifically, to support one count of sexual assault on a child and one count of sexual assault on a child by one in a position of trust, the People elected a type of sexual contact described as "penis in vagina." The People supported a second count of each offense with a type of sexual contact described as "digital penetration," a third count of each offense with a type of sexual contact described as "rubs lotion on the vagina," and a fourth count of each offense with a type of sexual contact described as "ejaculates on stomach." In support of the fifth counts, the People alleged that A.W.'s mother witnessed these four types of sexual contact.

105 P.3d 213
Because this last allegation did not constitute sexual contact, the trial judge dismissed the fifth counts. However, over defense counsel's objection, the court allowed the People to proceed on the theory that each of the four different types of sexual contact supported one of the four counts under sexual assault on a child and sexual assault on a child by one in a position of trust

The case was submitted to the jury. The jury returned guilty verdicts on all counts. The verdict forms did not require the jury to determine that the sexual contacts occurred on separate occasions as separate acts or incidents.4 At sentencing, the court imposed consecutive twelve-year sentences for each of the four counts of sexual assault on a child. These sentences ran concurrent to twelve-year sentences for each count of sexual assault on a child by one in a position of trust. In total, Woellhaf was sentenced to forty-eight years imprisonment. In People v. Woellhaf, 87 P.3d 142 (Colo.App.2003), the court of appeals affirmed Woellhaf's convictions.5

At issue before us is whether Woellhaf's multiple convictions for sexual assault on a child, section 18-3-405, and sexual assault on a child by one in a position of trust, section 18-3-405.3, violate the Double Jeopardy Clause. It is Woellhaf's position that the trial court erred by allowing the People to elect different types of sexual contact, rather than separate acts or incidents of sexual assault. The product of that error, Woellhaf argues, was the jury's return of four convictions under each of the two statutes without deciding whether the four types of contact were separate incidents. Under these circumstances, Woellhaf claims he can only be convicted of one count under each statute.

The People agree that the record does not indicate whether the four types of sexual contact occurred as part of separate incidents. Further, because of the way in which the contacts were grouped within the various counts, the People concede at this time in the proceedings that if each type of contact is not itself a single unit of prosecution, we must regard the sexual contacts as having occurred as part of a single incident.

II. ANALYSIS

We begin by reviewing principles of double jeopardy and the concept of multiplicity. After discussing the nature of the multiplicity issue before us, we ascertain whether the legislatively prescribed unit of prosecution of sexual assault on a child, section 18-3-405, or sexual assault on a child by one in a position of trust, section 18-3-405.3, permits multiple punishments for a single incident of sexual assault on a child. We determine that the General Assembly has not specifically authorized multiple punishments for each and every type of sexual contact that transpires within one act or incident of sexual assault on a child. Accordingly, because neither the unit of prosecution of sexual assault on a child, nor the unit of prosecution of sexual assault on a child by one in a position of trust, defines separate offenses for each type of sexual contact within one act or incident of sexual assault on a child, we hold that the

105 P.3d 214
multiple punishments at issue here violate state and federal double jeopardy protections and cannot be sustained.

A. DOUBLE JEOPARDY AND MULTIPLICITY

The Double Jeopardy Clauses of the United States and Colorado Constitutions protect an accused against being twice placed in jeopardy for the same crime. U.S. Const. Amend. V; Colo. Const., art. II, § 18; Boulies v. People, 770 P.2d 1274, 1277 (Colo.1989). The Double Jeopardy Clause protects not only against a second trial for the same offense, but also "against multiple punishments for the same offense." Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). Notwithstanding these protections, the Double Jeopardy Clause does not prevent the General Assembly from specifying multiple punishments based upon the same criminal conduct. Patton v. People, 35 P.3d 124, 129 (Colo.2001). However, if the General Assembly has not conferred specific authorization for multiple punishments, double jeopardy principles preclude the imposition of multiple sentences. People v. Leske, 957 P.2d 1030, 1035 (1998). In this respect, the Double Jeopardy Clause simply embodies the constitutional principle of separation of powers by ensuring that courts do not exceed their own authority by imposing multiple punishments not authorized by the legislature.6 Whalen, 445 U.S. at 689, 100 S.Ct. 1432.

Double jeopardy is commonly implicated in multiplicity issues. Multiplicity is the charging of multiple counts and the imposition of multiple punishments for the same criminal conduct. People v. Borghesi, 66 P.3d 93, 98 (Colo.2003); United States v. Morehead, 959 F.2d 1489, 1505 (10th Cir.1992). Although not fatal to an indictment, multiplicity may improperly suggest to the jury that the defendant has committed more than one crime. United States v. Johnson, 130 F.3d 1420, 1424 (10th Cir.1997). Hence, the vice of multiplicity is that it may lead to multiple sentences for the same offense and thereby implicate double jeopardy protections. Id.; 1A Charles Alan Wright, Federal Practice & Procedure § 142, at 17 (Crim.3d ed. 1999 & Supp.2004).

Multiplicity issues tend to arise in three distinct contexts. The...

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120 practice notes
  • People v. Abiodun, No. 03SC690.
    • United States
    • Colorado Supreme Court of Colorado
    • May 2, 2005
    ...crimes and prescribe punishments. Sanabria v. United States, 437 U.S. 54, 69-70, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Woellhaf v. People, 105 P.3d 209, 215-20 (Colo.2005); Martinez v. People, 69 P.3d 1029 (Colo.2003). While the double jeopardy clauses of both the federal and state constitut......
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...49 the same or less than all of the facts required to establish the other.(Citations omitted.) Tillery's reliance on Woellhaf v. People, 105 P.3d 209 (Colo.2005), is misplaced. Although the supreme court concluded that neither section 18-3-405 nor 18-3-405.3 “authorizes multiple punishments......
  • People v. Wester-Gravelle, Court of Appeals No. 16CA1010
    • United States
    • Colorado Court of Appeals of Colorado
    • June 28, 2018
    ...that the other does not. Davis , 306 F.3d at 416 ; United States v. Adesida , 129 F.3d 846, 849 (6th Cir. 1997) ; Woellhaf v. People , 105 P.3d 209, 214 (Colo. 2005). ¶ 11 Duplicity may or may not be obvious from the information itself. If it is, then Crim. P. 12(b)(2) governs the raising a......
  • State v. Pal, No. 2015AP1782-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • April 28, 2017
    ...a defendant's conduct to be divided into discrete acts for purposes of prosecuting multiple offenses." 893 N.W.2d 861Woellhaf v. People , 105 P.3d 209, 215 (Colo. 2005). In unit of prosecution cases, Wisconsin courts routinely apply the above-mentioned Blockburger test to determine if a def......
  • Request a trial to view additional results
120 cases
  • People v. Abiodun, No. 03SC690.
    • United States
    • Colorado Supreme Court of Colorado
    • May 2, 2005
    ...crimes and prescribe punishments. Sanabria v. United States, 437 U.S. 54, 69-70, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Woellhaf v. People, 105 P.3d 209, 215-20 (Colo.2005); Martinez v. People, 69 P.3d 1029 (Colo.2003). While the double jeopardy clauses of both the federal and state constitut......
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...49 the same or less than all of the facts required to establish the other.(Citations omitted.) Tillery's reliance on Woellhaf v. People, 105 P.3d 209 (Colo.2005), is misplaced. Although the supreme court concluded that neither section 18-3-405 nor 18-3-405.3 “authorizes multiple punishments......
  • People v. Wester-Gravelle, Court of Appeals No. 16CA1010
    • United States
    • Colorado Court of Appeals of Colorado
    • June 28, 2018
    ...that the other does not. Davis , 306 F.3d at 416 ; United States v. Adesida , 129 F.3d 846, 849 (6th Cir. 1997) ; Woellhaf v. People , 105 P.3d 209, 214 (Colo. 2005). ¶ 11 Duplicity may or may not be obvious from the information itself. If it is, then Crim. P. 12(b)(2) governs the raising a......
  • State v. Pal, No. 2015AP1782-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • April 28, 2017
    ...a defendant's conduct to be divided into discrete acts for purposes of prosecuting multiple offenses." 893 N.W.2d 861Woellhaf v. People , 105 P.3d 209, 215 (Colo. 2005). In unit of prosecution cases, Wisconsin courts routinely apply the above-mentioned Blockburger test to determine if a def......
  • Request a trial to view additional results

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