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People v. Becker

Court of Appeals of Colorado, Sixth Division

March 27, 2014

The People of the State of Colorado, Plaintiff-Appellee,
v.
Gib Dale Becker, Defendant-Appellant

Phillips County District Court No. 11CR9. Honorable Charles M. Hobbs, Judge.

John W. Suthers, Attorney General, Jay C. Fisher, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Jon W. Grevillius, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Lichtenstein and Gabriel, JJ., concur.

OPINION

Page 1169

HAWTHORNE, JUDGE.

[¶1] Defendant, Gib Dale Becker, appeals the judgment of conviction entered upon jury verdicts finding him guilty of two counts of

Page 1170

child abuse. We reverse and remand for a new trial.

[¶2] As a matter of first impression, we conclude that a prior child abuse conviction, as specified in section 18-6-401(7)(e), C.R.S. 2013, serves as a sentence enhancer -- and not as an element -- of the child abuse crimes set forth in sections 18-6-401(1)(a)(7)(b)(I)-(II), C.R.S. 2013.

I. Relevant Facts

[¶3] The prosecution charged defendant with one count of " CHILD ABUSE -- SECOND OR SUBSEQUENT OFFENSE" under section 18-6-401(1)(a), (7)(b)(I), (7)(e) and one count of " CHILD ABUSE -- SECOND OR SUBSEQUENT OFFENSE" under sections 18-6-401(1)(a), (7)(b)(II), (7)(e). In addition to listing " SECOND OR SUBSEQUENT OFFENSE" as part of the substantive crimes charged, the charging document stated that defendant had previously been convicted of child abuse.

[¶4] Before trial, defendant requested that the court exclude any evidence of and reference to his prior child abuse conviction. As part of that request, he also offered to stipulate to " having a prior conviction for child abuse." The court granted his request to exclude evidence concerning the facts underlying his prior child abuse conviction, but rejected his request to exclude reference to his prior conviction. The court reasoned that a prior child abuse conviction, as specified in section 18-6-401(7)(e), is an element of the charged crimes and thus allowed the jury to learn of defendant's prior conviction. The court also accepted defendant's offer to stipulate to his prior child abuse conviction, but ruled that the jury -- and not just the court -- would learn of the stipulation. The court therefore told the jury of the stipulation and also provided a written copy of it in the jury instructions.

[¶5] Consistent with the court's ruling permitting the jury to learn of his prior conviction, the court and the prosecutor informed the jury multiple times that defendant had a prior child abuse conviction. The court also read the charging document to the jury multiple times, including the portion listing " SECOND OR SUBSEQUENT OFFENSE" as part of the substantive crimes' titles, as well as the statement that defendant had previously been convicted of child abuse. The court provided jury instructions, which likewise mentioned over a dozen times either that defendant had a prior child abuse conviction, that a prior child abuse conviction is an element of the charged crimes, or that " SECOND OR SUBSEQUENT OFFENSE" is part of the crimes' titles. The verdict forms correspondingly listed six times " SECOND OR SUBSEQUENT OFFENSE" as part of the charged crimes' titles.

[¶6] The jury found defendant guilty of the charged crimes, and the trial court entered the judgment of conviction, which stated that defendant was convicted of the following crimes:

" CHILD ABUSE -- KNOW/RECK -- NO INJURY -- 2ND/SUB
C.R.S. # 18-6-401(1), (7)(b)(I), (7)(e)" and
" CHILD ABUSE -- NEGLIGENCE -- NO INJURY -- 2ND/SUB C.R.S. # 18-6-401(1), (7)(b)(II), (7)(e)."

The judgment of conviction did not indicate that a second or subsequent offense was a sentence enhancer of the child abuse crimes.

[¶7] Defendant appeals.

II. Prior Child Abuse Conviction


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