18-3-405.3. Sexual assault on a child by one in a position of trust
(1) Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child by one in a position of trust if the victim is a child less than eighteen years of age and the actor committing the offense is one in a position of trust with respect to the victim.
(2) Sexual assault on a child by one in a position of trust is a class 3 felony if:
(a) The victim is less than fifteen years of age; or
(b) The actor commits the offense as a part of a pattern of sexual abuse as described in subsection (1) of this section. No specific date or time need be alleged for the pattern of sexual abuse; except that the acts constituting the pattern of sexual abuse whether charged in the information or indictment or committed prior to or at any time after the offense charged in the information or indictment, shall be subject to the provisions of section 16-5-401 (1)(a), concerning sex offenses against children. The offense charged in the information or indictment shall constitute one of the incidents of sexual contact involving a child necessary to form a pattern of sexual abuse as defined in section 18-3-401 (2.5). Prosecution for any incident of sexual contact constituting the offense or any incident of sexual contact constituting the pattern of sexual abuse may be commenced and the offenses charged in an information or indictment in a county where at least one of the incidents occurred or in a county where an act in furtherance of the offense was committed.
(3) Sexual assault on a child by one in a position of trust is a class 4 felony if the victim is fifteen years of age or older but less than eighteen years of age and the offense is not committed as part of a pattern of sexual abuse, as described in paragraph (b) of subsection (2) of this section.
(4) If a defendant is convicted of the class 3 felony of sexual assault on a child pursuant to paragraph (b) of subsection (2) of this section, the court shall sentence the defendant in accordance with the provisions of section 18-1.3-406.
(5) A person who is convicted on or after July 1, 2013, of sexual assault on a child by one in a position of trust under this section, upon conviction, shall be advised by the court that the person has no right:
(a) To notification of the termination of parental rights and no standing to object to the termination of parental rights for a child conceived as a result of the commission of that offense;
(b) To allocation of parental responsibilities, including parenting time and decision-making responsibilities for a child conceived as a result of the commission of that offense;
(c) Of inheritance from a child conceived as a result of the commission of that offense; and
(d) To notification of or the right to object to the adoption of a child conceived as a result of the commission of that offense.
Source: L. 90: Entire section added, p. 1028, 16, effective July 1. L. 98: Entire section amended, p. 1444, 33, effective July 1. L. 2002: (2)(b) amended, p. 1582, 9, effective July 1; (4) amended, p. 1513, 192, effective October 1. L. 2006: (2)(b) amended, p. 413, 3, effective July 1. L. 2013: (5) added,(SB 13-227), ch. 353, p. 2061, 8, effective July 1. L. 2017: (2)(b) amended,(HB 17-1109), ch. 97, p. 293, 3, effective April 4.
Cross references: For the legislative declaration contained in the 2002 act amending subsection (4), see section 1 of chapter 318, Session Laws of Colorado 2002.
Application of this section to the defendant violated the ex post facto clauses of the federal and state constitutions because, while defendants conviction was based on incidents occurring between June 1, 1990, and June 1, 1991, jurors were not clearly instructed that defendants conviction had to be based on an act that occurred after July 1, 1990, the effective date of the statute. People v. Gholston, 26 P.3d 1 (Colo. App. 2000).
The pattern provision of subsection (2)(b) does not violate the double jeopardy protection against multiple punishments. Separate convictions and punishments authorized by the legislature never violate double jeopardy. The general assembly intended to authorize separate convictions for each incident of sexual assault on a child by one in a position of trust and authorized enhanced punishment of each assault that is committed as part of a pattern of sexual abuse. People v. Simon, 266 P.3d 1099 (Colo. 2011).
Where identical acts support verdicts for each pattern of abuse count, there is but one pattern of abuse. The enhancer can apply only to the sentence for the latter of two offenses, elevating it from a class 4 felony to a class 3 felony. People v. Wiseman, 2017 COA 49M, 413 P.3d 233 (decided under subsection (2)(b) of this section as it existed prior to the deletion of the reference to acts constituting the pattern of sexual abuse committed within ten years prior to the offense charged in the information or indictment).
No double jeopardy violation for imposing sentences under 18-3-405 and 18-3-405.3. Each section required a different element, a pattern of abuse for the first and being in a position of trust for the second, thus, there was no double jeopardy violation. People v. Tillery, 231 P.3d 36 (Colo. App. 2009), affd sub nom. People v. Simon, 266 P.3d 1099 (Colo. 2011).
Courts failure to submit a sentence enhancer regarding the victims age to the jury was a Blakely v. Washington, 542 U.S. 296 , error, but it was not plain error. The jury was presented with undisputed evidence of the victims age, thus the courts error does not cast serious doubt on the reliability of the sentence. People v. Ewing, 2017 COA 10, 413 P.3d 188.
Convictions on four separate counts of sexual assault on a child, based upon different types of sexual contact, but not clearly separate incidents, violates constitutional prohibition against double jeopardy. Defendant, therefore, received more than one sentence for each single contact, and the charges were multiplicative. People v. Woellhaf, 105 P.3d 209 (Colo. 2005).
The appropriate unit of prosecution for the crime of sexual assault on a child is any sexual contact not each separate offense of touching within a single incident that encompasses a multitude of types of sexual contacts. People v. Woellhaf, 105 P.3d 209 (Colo. 2005); People v. Mintz, 165 P.3d 829 (Colo. App. 2007).
The unit of prosecution for the crime of aggravated incest is the same as for the crime of sexual assault on a child because there is no discernible difference between the language used in 18-6-302 (1)(a) and the phrase any sexual contact used in this section. People v. Mintz, 165 P.3d 829 (Colo. App. 2007).
To determine if defendants actions satisfy more than one unit of prosecution, the court looks at all evidence introduced at trial to determine whether evidence relied upon by the jury for conviction supports distinct and separate offenses. Factors to determine distinct offenses include contacts occurring at different locations or times or whether they were the product of new volitional departures. If the acts are not distinct offenses, they merge into a single conviction. People v. Mintz, 165 P.3d 829 (Colo. App. 2007).
The crime of sexual assault on a child as part of a pattern of sexual abuse is not a lesser included offense of the crime of sexual assault on a child by one in a position of trust. In addition, neither of these are sentence enhancers for a person convicted of sexual assault on a child. All are separate crimes and each requires proof of facts not required by any of the others. People v. Valdez, 874 P.2d 415 (Colo. App. 1994).
The pattern provision of subsection (2)(b) is not a separate offense, rather it allows each incident to be elevated to a class 3 felony. The definition of pattern of sexual abuse does not establish a separate offense; the unit of prosecution remains the substantive crime. The plain language of the statute authorizes greater punishment for the substantive crime, which is sexual assault on a child by one in a position of trust. People v. Simon, 266 P.3d 1099 (Colo. 2011).
The crime of sexual assault on a child is not a lesser included offense of sexual assault on a child by one in a position of trust under analysis of either 18-1-408 (5)(a) or 18-1-408 (5)(c). People v. Leske, 957 P.2d 1030 (Colo. 1998).
Violent crime sentencing for patterned enhanced counts of sexual assault on a child by one in a position of trust only apply to offenses committed on or after July 1, 1998.People v. Bobrik, 87 P.3d 865 (Colo. App. 2003).
Because this section requires a knowingly culpable mental state, the requisite intent by the assailant could be demonstrated in a juvenile proceeding. Swentkowski v. Dawson, 881 P.2d 437 (Colo. App. 1994).
Jury could conclude that defendant was in a position of trust relative to the victim within the meaning of the applicable statute, where defendant lived in the same residence with the victim and her family and contributed to the household income, the victim spent hours alone with the defendant in his room, the victim was the only child the defendant allowed in his room, and neither the victims mother nor any other individual intervened during the time that the victim was alone in the defendants room. People v. Luman, 994 P.2d 432 (Colo. App. 1999) (decided under law in effect prior to 1990 amendment to 18-3-401 (3.5)).
Defendant in position of trust even though he was not performing a specific supervisory duty at the time of the unlawful act. Where victim was pastors daughter and defendant previously taught victim in Sunday school, defendant and his wife babysat for victim and her sister on several occasions, defendant joined victims family often for dinner, defendant helped victim and her sisters with their school work, defendant chaperoned church trip for victim, and victims parents allowed victim to go to defendants house by herself to ride horses, defendant assumed a position of trust through an ongoing and continuous supervisory relationship with victim. Pellman v. People, 252 P.3d 1122 (Colo. 2011).
A position of trust for purposes of this section and 18-3-401 (3.5) may be a supervisory position that exists for a brief period a matter of hours or days or it may extend over a long relationship. Defendants discrete acts of supervision were the product of the general position of trust that defendant assumed in relation to victim. Pellman v. People, 252 P.3d 1122 (Colo. 2011).
Defendant must be in position of trust at time of unlawful act. Court properly dismissed charges against defendant who met victim while in a position of trust but who was no longer in a position of trust at the time of the unlawful act. People v. Johnson, 167 P.3d 207 (Colo. App. 2007).
A defendant need not be expressly charged with a particular duty or responsibility over the child at the time of the crime in order to occupy a position of trust. A person may occupy a position of trust when an existing relationship or other conduct or circumstances establish that the defendant is entrusted with special access to the child victim. The evidence supported the jurys finding that defendant was in a position of trust with respect to the victim. People v. Roggow, 2013 CO 70, 318 P.3d 446.
Defendants special access to the victim by virtue of an existing relationship or other conduct or circumstances is evidence of an implied duty or responsibility for the welfare or supervision of the victim during those periods of special access. Manjarrez v. People, 2020 CO 53, 465 P.3d 547.
Sufficient evidence of defendants guilt on solicitation charge when defendant attempted to persuade undercover officer posing as mother to act as his accomplice in his commission of sexual assault on a child by one in a position of trust. People v. Douglas, 2012 COA 57, 296 P.3d 234.
Ejaculation of semen onto clothing covering another persons intimate parts may constitute touching for purposes of establishing the sexual contact element of sexual assault on a child by one in a position of trust. People v. Vinson, 42 P.3d 86 (Colo. App. 2002).
Enhanced penalty under subsection (2)(b) improper when, based on jury instruction and argument of prosecutor, jury could have found a pattern of abuse from multiple sexual contacts during a single sexual assault episode. People v. Woellhaf, 87 P.3d 142 (Colo. App. 2003), revd on other grounds, 105 P.3d 209 (Colo. 2005).
Evidence sufficient to support a charge of sexual assault by one in a position of trust beyond a reasonable doubt. People v. Carmichael, 179 P.3d 47 (Colo. App. 2007), revd on other grounds, 206 P.3d 800 (Colo. 2009).
Because sexual assault on a child is based not on a sexually exploitative image but on evidence of a sexual contact, it was appropriate for the trial court to impose the felony sexual exploitation sentences consecutive to defendants other sentences. People v. Rabes, 258 P.3d 937 (Colo. App. 2010).