[Copyrighted Material Omitted]
Adams County District Court No. 09CR2476. Honorable Francis C. Wasserman, Judge.
John W. Suthers, Attorney General, Katherine A. Hansen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Anne Stockham, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by JUDGE STERNBERG[*] Taubman* and Vogt**, JJ., concur.
[¶1] Defendant, Marvin Lee Richardson, appeals the judgment of conviction entered on jury verdicts finding him guilty of sexual assault on a child, sexual assault on a child by a person in a position of trust, and sexual assault on a child as part of a pattern of abuse. We affirm.
[¶2] Until the victim, C.S., was almost twelve years old, he lived with his great-grandmother. Defendant, the great-grandmother's brother, often visited the home. When the victim was eleven years old, defendant began touching the victim's genitals. Later, defendant progressed to performing oral sex on the victim.
[¶3] When the victim turned fourteen, he disclosed defendant's conduct to his father and mother, who contacted the police. A detective asked the victim to place a pretext phone call to defendant for the purpose of eliciting statements from defendant. The victim made the call, which was recorded, and confronted defendant about the sexual contact. Defendant implicitly acknowledged the contact. Defendant was subsequently arrested and interviewed by police. After signing a written waiver of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), defendant substantially confirmed the victim's allegations.
[¶4] Before trial, defendant moved to suppress the statements he made to the victim during the recorded phone call and the statements he made during his police interview. He argued that the statements he made during the phone call were the product of an unlawful interception and the statements he made during the interrogation were improperly elicited because he had previously invoked his right to silence. The trial court denied defendant's motions to suppress. Defendant was convicted by a jury and sentenced to an indeterminate prison term of fifteen years to life.
II. Suppression of the Phone Conversation
[¶5] Defendant contends that the trial court erred in denying his motion to suppress the statements he made during his phone conversation with the victim. He acknowledges that law enforcement officials were permitted to record the conversation as long as they had the victim's consent. And he concedes that the victim agreed to participate in the recorded phone conversation. Nonetheless, he argues that because the victim was a minor, he could not " voluntarily or validly" consent to the recording of the conversation without the presence of, or a waiver signed by, a parent or guardian. We disagree.
[¶6] As an initial matter, the People contend that defendant lacks standing to challenge the victim's consent. Defendant argues that his standing is conferred by section 16-15-102(10), C.R.S. 2013. We agree with defendant.
[¶7] Section 16-15-102(10) allows " [a]ny aggrieved person in any trial, hearing, or proceeding in or before any court" to move for suppression of " the contents of any intercepted wire, oral, or electronic communication or the evidence derived therefrom" on the basis that the communication was unlawfully intercepted. An aggrieved person is " a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed." § 16-15-101(1), C.R.S. 2013.
[¶8] Here, because it is undisputed that defendant was an aggrieved person within the meaning of section 16-15-101(1), we conclude that he had standing to move for suppression on the basis that the communication was unlawfully intercepted due to a lack of valid third-party consent. See People v. Rivera, 792 P.2d 786, 789 (Colo. 1990) (addressing an aggrieved person's claim that a third party's consent to an intercepted communication was involuntary).
[¶9] We are likewise unpersuaded by the People's argument that defendant failed to preserve a claim that the victim's consent was not voluntary. During the hearing on defendant's suppression motion, defense counsel argued that the victim could not consent to the recording without either the presence of a parent or a written waiver from the parent. Although defense counsel did not specifically frame the argument as a challenge to the voluntariness of the victim's consent, we conclude that it was sufficient to alert the trial court to the issue. Cf. People in Interest of S.J., 778 P.2d 1384, 1388 (Colo. 1989) (in consent-to-search case, the presence or absence of a parent, guardian, or custodian is one factor to be considered in making a determination of voluntariness).
C. Governing Standards
[¶10] We review a trial court's suppression ruling as a mixed question of law and fact. People v. Mares, 263 P.3d 699, 705 (Colo. App. 2011). We defer to the trial court's factual determinations where there is sufficient evidence to support them. Id. But we review its legal conclusions de novo. Id.
[¶11] Before suppressing evidence under section 16-15-102(10), a court must find not only that the moving party is an aggrieved person but also that the communication was unlawfully intercepted. People v. Morton, 189 Colo. 198, 201, 539 P.2d 1255, 1258 (1975). To determine the lawfulness of the interception, the court " must look to the prohibitory statutes on wiretapping and eavesdropping." Id. Those statutes, sections 18-9-303 and 18-9-304, C.R.S. 2013, do not make unlawful a scenario in which one party to the conversation agrees to the recording. Id. Thus, as long as one party voluntarily consents to the recording of the conversation, there is no unlawful interception within the meaning of section 16-15-102(10). Rivera, 792 P.2d at 791; Morton, 189 Colo. at 201, 539 P.2d at 1258. To be voluntary, " the party's consent may not be the product of threats, coercion, undue influence or improper conduct by government officials." Rivera, 792 P.2d at 790. A challenge to the voluntariness of a party's consent is determined based on the totality of the circumstances. Id.
[¶12] In his suppression motion, defendant argued, by analogy to laws governing a juvenile's waiver of his Fourth, Fifth, and Sixth Amendment rights, in favor of a per se rule that parental presence is required before a victim can consent to the recording of a conversation. He specifically pointed to section 19-2-511, C.R.S. 2013, for the proposition that a parent ...