COLORADO COURT OF APPEALS
June 1, 2017
2017 COA 75. No. 13CA1516. People v. George.
Sexual Contact—Minor—Search—Suppression— Warrant—Independent Source Doctrine—Law of the Case Doctrine—Joinder—CRE 404(b)—CRS § 16-10-301(3).
George was arrested on charges related to sexual encounters with underage girls A.R. and G.D. Following George’s arrest and inability to post bond, he was evicted from his apartment. The landlord had George’s car towed from the premises to an impound lot. The lead investigator obtained the towing company’s consent to search the car and instead of seeking a warrant, obtained the company’s consent to examine the GPS device in the vehicle. Data obtained from a forensic examination of the GPS device showed that George’s movements were generally consistent with the victims’ testimony about their meetings with him. George moved to suppress, challenging the car search and the examination of the GPS device. The court suppressed evidence obtained from examination of the device. Rather than appealing the suppression order, the prosecution directed the investigator to seek a search warrant for the GPS device from a different magistrate. When applying for the warrant, the investigator did not specifically refer to data obtained from examination of the GPS device nor disclose the suppression ruling. The warrant was issued and the GPS device was reexamined. George again moved to suppress. The court denied the motion to suppress based on the independent source doctrine. The court found that that the decision to seek the warrant had not been based on the fruits of the initial unlawful search and information from the search had not been presented to the magistrate as a basis for seeking the warrant. A jury convicted George of multiple offenses arising from his sexual contact with two young girls.
On appeal, the Attorney General argued that the data obtained from the initial warrantless search of George’s GPS device in his vehicle should not have been suppressed because the search was conducted in good faith. Because the Attorney General did not challenge the trial court’s consent ruling based on a question of law, the validity of the initial search was not properly before the Court of Appeals.
George argued on appeal that the trial court should have suppressed data obtained from the second examination of the GPS device because the first suppression order was the law of the case and an unchallenged order that applied the exclusionary rule. Here, had the towing company not asserted ownership of the GPS device and given its consent to examination, the investigator would have sought a warrant to search the device. Therefore, the investigator did not later seek a warrant based on the fruits of the warrantless search. Additionally, the investigator did not specifically refer to any data obtained from examination of the GPS device in the warrant application. Thus, the warrant at issue in the second suppression hearing raised a different issue—independent source—that was not and could not have been raised at the first suppression hearing, and the law of the case doctrine does not apply.
George also argued that the trial court erred in joining the cases involving A.R. and G.D. over his objection. Here, evidence related to A.R. and G.D. was sufficiently similar to establish a common plan or scheme under CRE 404(b) and CRS § 16-10-301(3). Therefore, evidence from each case would be admissible in the other. Because George did not show prejudice, the trial court properly joined the trials involving A.R. and G.D.
The judgment was affirmed.
2017 COA 76. No. 14CA0014. People v. Henley.
Sexual Exploitation of a Child—Erotic Nudity— Objective Standard.
A detective searched defendant’s computer and found over 90 images that he thought were sexually exploitative. The charged images that were introduced into evidence show fully or partially naked children (sometimes accompanied by adults) talking, walking, and standing outside, posing in costumes, or participating in activities like body painting and games. The prosecution was also allowed to introduce uncharged images as relevant to show context. A jury found defendant guilty of 22 counts of sexual exploitation of a child (possession of materials) and one count of sexual exploitation of a child (possession of more than 20 items).
On appeal, defendant contended that his convictions should be vacated because there was insufficient evidence that the charged images are “sexually exploitative” as required to support a conviction under CRS § 18-6-403(3) because they weren’t “erotic nudity.” Under CRS § 18-6-403(3) (b.5), a person commits sexual exploitation of a child if he knowingly possesses or controls sexually exploitative material. “Sexually exploitative material” is any photograph depicting a child engaged or participating in, observing, or being used for explicit sexual conduct. Explicit sexual conduct includes, as relevant in this case, “erotic nudity.” The People conceded that the charged images don’t depict “erotic nudity” if viewed objectively. When viewed objectively, images that are not “erotic nudity” don’t become so merely because a particular person—one not involved in the creation or distribution of the images—looks at them for the purpose of personal sexual gratification. Therefore, evidence that defendant viewed the charged images for sexual gratification was insufficient to support defendant’s convictions.
The judgment was vacated.
2017 COA 77. No. 14CA1175. People v. Perez-Rodriguez.
Sexual Assault—Minor— Aggravated Incest Statute—Common Law Marriage—Stepchildren—Unconstitutionally Vague as Applied—Jury Instruction—Mens Rea—Prosecutorial Misconduct—Due Process— Admission—Involuntary.
Defendant and A.S. lived together, and though they were never formally married, they publicly referred to each other as husband and wife. J.H-S. was one of A.S.’s children from a previous marriage, and while defendant never formally adopted her, they referred to each other as father and daughter. When J.H-S. was 15 years old, defendant forced her to have sexual intercourse with him on two separate occasions and impregnated her. When defendant was taken into custody, a detective questioned him for about 40 minutes. He was advised of his Miranda rights and signed a waiver. Defendant initially denied having had sexual intercourse with J.H.-S., but after about 15 more minutes, he confessed. Defendant was convicted of two counts each of aggravated incest, sexual assault on a child by one in a position of trust as a pattern of conduct, and sexual assault with the actor 10 years older than the victim.
On appeal, defendant first contended that the aggravated incest statute is unconstitutionally vague as applied to stepchildren of common law marriages. However, there is sufficient guidance through statute, case law, and the plain meaning of “stepchild” that a person in a common law marriage has sufficient notice as to the prohibited conduct of aggravated incest.
Defendant next contended that the trial court’s elemental instruction on aggravated incest failed to properly instruct the jury on the scope of the mens rea required to sustain a conviction. Specifically, defendant claimed that the way the jury instruction was written, the “knowingly” mens rea applied only to his act of subjecting J.H-S. to sexual penetration or sexual intrusion, and not to whether he knew she was his stepchild. Regardless of whether the instruction was erroneous, however, the evidence that defendant knew J.H-S. was his stepdaughter was overwhelming. Therefore, any error was not plain error.
Defendant then argued that the prosecution misstated the law on common law marriage during rebuttal closing argument, thereby committing reversible misconduct. The court’s instruction properly defined common law marriage and cohabitation. Although the prosecutor’s simple reference to “cohabitation,” viewed in isolation, may have misstated the law, when viewed in context as rebuttal to defendant’s arguments, there was no plain error.
Finally, defendant asserted that his confession was involuntary and that its admission violated his state and federal due process rights. Based on the totality of the circumstances, defendant’s admission was voluntary and the trial court did not err in admitting it into evidence.
The judgment was affirmed.
2017 COA 78. No. 16CA1005. Galindo v. Valley View Ass’n.
CRCP 54(b)—Certification—Final Order.
Plaintiffs Erika and Jose Galindo are the parents of Ariana Galindo, who died in utero. They brought various claims against Valley...