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El Paso County District Court No. 10CR53. Honorable Robert L. Lowrey, Judge.
John W. Suthers, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Rebecca R. Freyre, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by JUDGE CASEBOLT. Dailey and Berger, JJ., concur.
[¶1] Defendant, Jeremiah Lovato, appeals the judgment of conviction entered on jury verdicts finding him guilty of five counts of child abuse resulting in serious bodily injury, one count of child abuse, four counts of first degree assault, three counts of second degree assault, one count of third degree assault, one count of sexual assault on a child by one in a position of trust, violation of bail bond conditions, and violation of a protection order. He asserts that the sexual assault on a child statute is unconstitutional as applied to him, that the evidence is insufficient to support his conviction for sexual assault on a child, and that the prosecutor made improper comments during opening statement and closing argument. Defendant also asserts that three of his convictions for second degree assault must merge into three convictions for first degree assault, and that the mittimus contains a clerical error.
[¶2] We agree with defendant that his convictions for second degree assault must merge with the convictions for first degree assault and that the mittimus must be corrected to delete a conviction for child abuse resulting in death. We reject defendant's remaining contentions and affirm the judgment in all other respects.
[¶3] Defendant adopted the male victim when the victim was thirteen. For several months thereafter, they lived in Moffat County. The evidence at trial revealed that the relationship started out normally, but defendant soon assigned chores to the victim and " punished" him if he failed to complete them to defendant's satisfaction. The punishment eventually included beating the victim with a belt, punching him with a fist, and striking him with a meat tenderizer.
[¶4] The victim was unable to recall specific dates of individual beatings. Rather, he testified that the beatings happened " all the time," and that if he would cry out or make noise during a beating, defendant would clamp his hand over the victim's mouth. As a result, the victim learned not to make any noise during the beatings. He did not call for help or report the abuse to police because he was afraid the beatings would get worse.
[¶5] When he was questioned by Moffat County teachers, counselors, or social services workers about marks they noticed on his face, or the reasons for his frequent absences from school, the victim testified he would provide an excuse that defendant had fabricated and directed him to use, and he would not tell the truth because he was afraid. Defendant ultimately withdrew the victim from public school and began home schooling him.
[¶6] Defendant and the victim moved to Colorado Springs where, the victim testified, the abuse got worse. Defendant began using a wooden board or stick to administer daily beatings. For the last months that he lived with defendant, the victim testified the beatings happened several times each day. Defendant threatened the victim by telling him that if defendant ever went to prison for the
abuse, he would come after the victim upon his release.
[¶7] In Colorado Springs, defendant would make the victim go to the basement and lie down naked on the floor on his stomach. Defendant then would beat the victim, usually with a wooden board, aiming primarily at his back and buttocks. If the victim squirmed or made noise, defendant would choke him, stomp on his back, or turn him over and stomp on his testicles. The victim testified that defendant would specifically target his testicles.
[¶8] The victim finally ran away from home and contacted the police. The prosecution charged defendant with approximately twenty-seven charges based on the reported abuse. In addition to presenting the victim's testimony, at trial, the prosecution presented photographs of the injuries and testimony from several doctors who had examined the victim. This evidence demonstrated, among other things, that the victim had suffered from a constant wound on his buttocks that did not fully heal over several months, together with bruising on his scrotum.
[¶9] Defendant essentially acknowledged his actions but contended that they constituted appropriate discipline and urged the jury to consider lesser included offenses. A jury convicted defendant on sixteen counts and this appeal followed.
II. Constitutionality of Statutes
[¶10] Defendant asserts that his conviction for sexual assault on a child for stomping on the victim's testicles violates his right to equal protection as applied in this case because the child abuse statute prohibits the same conduct and carries a lesser penalty, inasmuch as it allows a determinate sentence instead of an indeterminate one. He also asserts the sexual assault statute is unconstitutionally vague. We reject the contentions.
A. Equal Protection
1. Preservation and Standard of Review
[¶11] The parties agree, and we concur, that defendant preserved this issue for appellate review.
[¶12] We review the constitutionality of a statute, both facially and as applied, de novo. People v. Perez-Hernandez, 2013 COA 160, ¶ 10. Because statutes are presumed to be constitutional, to succeed with an as-applied challenge, " 'a defendant has the burden of establishing the unconstitutionality of a statute, as applied [to him], beyond a reasonable doubt.'" Id. at ¶ ¶ 10-11 (quoting People v. DeWitt, 275 P.3d 728, 731 (Colo.App. 2011)).
[¶13] " The constitutional right to equal protection guarantees like treatment of persons who are similarly situated." People v. Friesen, 45 P.3d 784, 785 (Colo.App. 2001). Thus, " equal protection is violated if different statutes prohibit the same criminal conduct but impose different penalties. In considering equal protection challenges, the supreme court has emphasized that equal protection is offended only when statutes forbid identical conduct." People v. Jauch, 2013 COA 127, ¶ 9 (citation omitted).
[¶14] In an equal protection challenge that does not concern a traditionally suspect class or a fundamental right, as here, we apply a rational basis standard of review. See People v. Dean, 292 P.3d 1066, 2012 COA 106');">2012 COA 106, ¶ 13 ( cert. granted Nov. 12, 2013). " Under rational basis review, the challenging party must demonstrate beyond a reasonable doubt that the classification bears no rational relationship to a legitimate legislative interest or government objective, or that the classification is unreasonable, arbitrary, or capricious." Id.; see also Jauch, ¶ 10 (" Statutory classifications of crimes do not violate equal protection if the differences between the proscribed conduct are both real in fact and reasonably related to the general purposes of criminal legislation." ).
[¶15] " The General Assembly is free to establish more severe penalties for conduct that it believes has graver consequences, even if the conduct varies only by a matter of degree." Jauch, ¶ 10, see also People v. Thurman, 948 P.2d 69, 73 (Colo.App. 1997) (" It is the prerogative of the General Assembly to establish the penalties
which apply to particular criminal offenses and it is entitled to establish more severe penalties for acts which it determines have greater social impact and more grave consequences." ). Therefore, equal protection is not violated simply because a single criminal act may violate more than one criminal statute. See Jauch, ¶ 10.
[¶16] The prosecution charged defendant with sexual assault on a child (SAOC) by one in a position of trust for stomping on the victim's testicles. As pertinent here, 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.
§ 18-3-405.3(1), C.R.S. 2013. The term " sexual contact" means " the knowing touching of the victim's intimate parts by the actor . . . if that sexual contact is for the purposes of sexual arousal, gratification, or abuse." § 18-3-401(4), C.R.S. 2013. The term " intimate parts" means " the external genitalia . . . or the buttocks . . . of any person." § 18-3-401(2). A person convicted of sexual assault faces an indeterminate sentence in the presumptive range up to his natural life. § 18-1.3-1004(1), C.R.S. 2013.
[¶17] Child abuse occurs when a person " causes an injury to a child's life or health . . . or engages in a continued pattern of conduct that results in . . . cruel punishment, mistreatment, or an accumulation of injuries that ultimately results in . . . serious bodily injury to a child." § 18-6-401(1)(a), C.R.S. 2013. When a perpetrator acts knowingly or recklessly and the child abuse results in serious bodily injury to the child, it is a class 3 felony. § 18-6-401(7)(a)(III). A person convicted of such child abuse will be sentenced to a determinate sentence. See § 18-1.3-401, C.R.S. 2013.
[¶18] As defendant concedes, the statutes do not violate equal protection on their face because they do not proscribe identical conduct. Notably, the SAOC charge requires " sexual contact" and the child abuse statute requires " serious bodily injury."
[¶19] Defendant argues, however, that the record contains no evidence of a sexual motivation on his part, nor did the prosecution argue a sexual motive. Instead, he asserts, the prosecution argued that touching the victim's genitals merely for purposes of physical abuse satisfied the definition of sexual contact. But defendant contends that the adjective " sexual" in the definition of sexual contact modifies all three nouns, meaning that the contact must be for the purposes of sexual arousal, sexual gratification, or sexual abuse. Thus, he argues that the sexual contact must be for the purpose of sexual abuse under the plain terms of the definitional statute -- a phrase he equates with abusive conduct that has a sexual impetus (or intent). He further argues that the act of stomping on the victim's testicles was simply part of a larger beating and therefore had to be charged under the child abuse statute instead of the SAOC statute. He asserts that, unless there is a " sexual motivation" interpretation given to the SAOC statute, the two statutes prohibit identical conduct as applied to his case.
a. Sexual Contact Definition
[¶20] Defendant's contention requires us first to determine whether the adjective " sexual" in section 18-3-401(4) modifies not only " arousal," but also " abuse." We conclude that it does.
[¶21] In construing a statute, a court's primary task is to ascertain and give effect to the intent of the General Assembly. To do so, we must first look to the language of the statute itself, giving the words their commonly accepted meaning and avoiding a strained or forced interpretation. When the language of the statute is clear, so that the legislative intent can be discerned with reasonable certainty, there is no need to resort to other rules of statutory construction. See State v. Nieto, 993 P.2d 493, 500 (Colo. 2000).
[¶22] If the General Assembly's intended meaning of a phrase is doubtful, the court should consider the language in the
context of the statute and by reference to the common meaning of words or phrases associated with the statute at issue. Sandoval v. Archdiocese of Denver, 8 P.3d 598, 601 (Colo.App. 2000); see also § 2-4-101, C.R.S. 2013 (" Words and phrases shall be read in context and construed according to the rules of grammar and common usage." ); Fogg v. Macaluso, 892 P.2d 271, 274 (Colo. 1995).
[¶23] When the statutory language is susceptible to more than one reasonable interpretation, leading to different results, the statute is ambiguous. In that event, a court must look beyond the language and consider other factors, such as the statute's legislative history and the objective sought to be achieved by the legislation. See Nieto, 993 P.2d at 500-01; see also § 2-4-203(1), C.R.S. 2013.
[¶24] Here, the particular phrase employs an adjective (sexual) before a series of three nouns (arousal, gratification, and abuse). There is no doubt that the adjective applies to the term " arousal," because it appears immediately before that word in the statute and thus modifies and describes it. And when there is a series of words or a phrase with an adjective at the beginning,
[m]ost readers expect the first adjective in a series of nouns or phrases to modify each noun or phrase in the following series unless another adjective appears. For example, if a writer were to say, " The orphanage relies on donors in the community to supply the children with used shirts, pants, dresses, and shoes," the reader expects the adjective " used" to modify each element in the series of nouns, " shirts," " pants," " dresses," and " shoes." The reader does not expect the writer to have meant that donors supply " used shirts," but supply " new" articles of the other types of clothing.
Ward Gen. Ins. Servs., Inc. v. Emp'rs Fire Ins. Co., 114 Cal.App.4th 548, 7 Cal.Rptr.3d 844, 849 (Cal. Ct.App. 2003); see also Lewis v. Jackson Energy Coop. Corp., 189 S.W.3d 87, 92 (Ky. 2005) (" [A]n adjective at the beginning of a conjunctive phrase applies equally to each object within the phrase. In other words, the first adjective in a series of nouns or phrases modifies each noun or phrase in the following series unless another adjective appears." ); In re Estate of Pawlik, 845 N.W.2d 249, 252 (Minn. Ct.App. 2014) (Under the series-qualifier canon of statutory construction, '" when several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.'" (quoting Porto Rico Ry., Light & Power Co. v. Mor, 253 U.S. 345, 348, 40 S.Ct. 516, 64 L.Ed. 944 (1920))); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, 147 (2012) (" When there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series." ).
[¶25] Furthermore, the statute at issue defines " sexual contact," not simply " contact." It would be incongruous to say that such contact could occur without having a " sexual element." In addition, the definition appears in a section under the broad heading " Unlawful Sexual Behavior," for Part 4 of the statute.
[¶26] For all these reasons, we conclude that " sexual" modifies " abuse" in the definition of " sexual contact" contained in section 18-3-401(4). See United States v. De La Cruz-Garcia, 590 F.3d 1157, 1160 (10th Cir. 2010) (noting that section 18-3-401(4) is limited to sexual acts); State v. Riolo, 50 Kan.App.2d 351, 330 P.3d 1120, 2014 WL 2155252, at *3-4 (Kan. Ct.App. 2014) (holding that " the touching for the purposes of abuse language [in section 18-3-401(4)] means touching for the purposes of sexual abuse, not abuse in general" ).
[¶27] Having determined that there must be a touching for the purpose of sexual abuse for there to be sexual contact, we next turn to defendant's contention that the prosecution must demonstrate ...