Adams County District Court No. 12CR1682 Honorable Thomas R. Ensor, Judge
Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Lauretta A. Martin Neff, Alternate Defense Counsel, Bayfield, Colorado, for Defendant-Appellant
¶ 1 William Edward Johnson was convicted of various offenses related to the sexual assault of his stepdaughter. On appeal, he contends that there was insufficient evidence to support an enhancement for committing a pattern of sexual abuse. He also argues that the trial court erred in denying his request for substitute counsel and in giving the jury unfettered access to recorded testimonial evidence.
¶ 2 We agree with Mr. Johnson's first contention and vacate his conviction for sexual assault as a pattern of sexual abuse. But we reject his other contentions and affirm his remaining convictions.
¶ 3 Mr. Johnson was arrested after a domestic disturbance. Shortly after his arrest, his stepdaughter, R.B., reported that Mr. Johnson had anally raped her earlier that day, and that he had been sexually abusing her for many years. Mr. Johnson was subsequently charged with sexual assault on a child by one in a position of trust, aggravated incest, two counts of sexual assault on a child (one of which was dismissed before trial), and a sentence enhancer for committing sexual assault as a pattern of sexual abuse.
¶ 4 R.B. and Mr. Johnson were separately interviewed by the same detective. R.B. recited numerous instances of inappropriate touching and attempted penetration, including an allegation that Mr. Johnson had rubbed his penis against her while she was sleeping in bed with him and her mother.
¶ 5 During his interview, Mr. Johnson was confronted with, and denied, all of R.B.'s allegations. He told the detective that R.B. was overly-curious about sex and had exhibited sexual behavior problems for a number of years, which Mr. Johnson attributed to R.B.'s early exposure to sexually explicit materials by a cousin. Mr. Johnson explained that, after an incident in which R.B. had come into the bedroom while he and her mother were having sex, R.B. would frequently climb on top of Mr. Johnson and "grind" her hips against him until he pushed her off. Mr. Johnson described an incident in which he was asleep, R.B. was grinding on him, and he woke up while he was ejaculating.
¶ 6 At trial, the prosecution presented the recorded interviews and also called R.B. as a witness. R.B. did not describe any incident involving grinding in either her testimony or the forensic interview.
¶ 7 The verdict form for the pattern of sexual abuse sentence enhancer included a special interrogatory listing alleged incidents of sexual abuse. If the jury found that Mr. Johnson had committed at least two of the enumerated incidents of abuse, it could convict him of the sentence enhancer. During its deliberations, the jury sent a question to the court asking if it could rely on an incident not listed in the special interrogatory. The court replied that it could and instructed the jury to write the unlisted incident on the verdict form.
¶ 8 The jury convicted Mr. Johnson of the pattern of abuse sentence enhancer, finding that he committed the anal rape, but none of the other listed incidents. For the required second incident, the jury wrote in: "The incident where the defendant admitted in his audio interview with [the detective] that he ejaculated while [R.B.] was sitting on top of him grinding." The jury convicted Mr. Johnson on all other counts.
¶ 9 At sentencing, the trial court merged all of the other convictions into the conviction for sexual assault on a child as a pattern of sexual abuse and sentenced Mr. Johnson to twenty years to life in prison. II. Insufficient Evidence
¶ 10 Mr. Johnson contends that there was insufficient evidence to convict him of the pattern of sexual abuse sentence enhancer, and that his conviction on this count should be vacated. We agree.
¶ 11 To be convicted of the pattern of sexual abuse sentence enhancer, in addition to the predicate offense of sexual assault on a child, "the jury must find beyond a reasonable doubt that the defendant completed at least two distinct incidents of sexual contact on the same child victim." People v. Day, 230 P.3d 1194, 1197 (Colo. 2010); see § 18-3-401(2.5), C.R.S. 2015. The legislature has defined "sexual contact" as
the knowing touching of the victim's intimate parts by the actor, or of the actor's intimate parts by the victim, or the knowing touching of the clothing covering the immediate area of the victim's or actor's intimate parts if that sexual contact ...