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Schneider v. People

Supreme Court of Colorado, En Banc

October 17, 2016

Fritz Daniel Schneider, Petitioner
v.
The People of the State of Colorado. Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 11CA2343

          Attorneys for Petitioner: Mulligan Breit, LLC Patrick J. Mulligan Denver, Colorado

          Attorneys for Respondent: Cynthia H. Coffman, Attorney General Katharine Gillespie, Assistant Attorney General Denver, Colorado

          OPINION

          COATS JUSTICE

         ¶1 Schneider sought review of the court of appeals' judgment affirming his convictions and consecutive sentences for two counts of sexual assault. The jury returned guilty verdicts on one count of sexual assault of a physically helpless victim and another count of sexual assault by causing submission of a victim by means of sufficient consequence reasonably calculated to cause submission against the victim's will, based on evidence of a single, continuous penetration of the same victim; and the trial court imposed mandatory consecutive sentences for conviction of separate crimes of violence arising out of the same incident. The court of appeals upheld the two sexual assault convictions against challenges of jeopardy and merger, on the grounds that the defendant was convicted of violating two separate statutes; and it upheld the trial court's order of consecutive sentences, on the grounds that consecutive sentences were mandated by statute unless both convictions were supported by identical evidence, which it reasoned could not be the case where the evidence required to prove each sexual assault charge was inconsistent with that required to prove the other.

         ¶2 Although section 18-3-402, C.R.S. (2016), proscribes a single crime of "sexual assault, " which can be committed in either of the two ways charged in this case, the evidence at trial was sufficient to support a jury finding that the defendant committed that single crime of "sexual assault" twice against the same victim; and even if a sentencing court would be relieved of its obligation to impose consecutive sentences for separate crimes of violence arising out of the same incident, when both crimes of violence have been supported by identical evidence, and instead be obligated to impose concurrent sentences, nevertheless both convictions in this case were not supported by identical evidence. Although on slightly different grounds, the judgment of the court of appeals is therefore affirmed.

         I.

         ¶3 Fritz Schneider was charged with one count of felony 3 sexual assault (by means sufficient to cause submission against the victim's will), as proscribed at section 18-3-402(1)(a), C.R.S. (2016), one count of felony 4 sexual assault (physically helpless victim), as proscribed at section 18-3-402(1)(h), one count of misdemeanor assault, and two counts of committing a crime of violence, all arising from the same encounter with the victim on the night of August 6-7, 2007. The jury returned verdicts of guilty on all five counts, and the district court sentenced him to consecutive terms of ten years to life and five years to life for the sexual assaults, with a concurrent term for the misdemeanor assault.

         ¶4 The evidence at trial indicated that on August 6, 2007, the 16-year-old victim and her 37-year-old female friend returned from a party to the friend's apartment, accompanied, at the friend's invitation, by the 28-year-old defendant. When the three arrived at the apartment, the defendant and victim's friend got into bed together, and the victim, who was extremely intoxicated, went to sleep, fully clothed, on a futon in the same room. At some point during the night, the victim ran to a nearby apartment, alleging that she had been raped and seeking help from friends living there, who contacted the police and took her to the hospital. At the emergency room, an examination revealed evidence of several bite marks on her body, multiple additional abrasions, injuries where her earrings had apparently been ripped from her ears, and tears in her vaginal tissue. DNA from the bite marks and the victim's cervix and vagina were later matched to the defendant.

         ¶5 When interviewed by the police, both at the scene and the next afternoon at the police station, the defendant denied having any sexual contact with the victim; however, at trial, after the presence of his DNA had been confirmed, he asserted the affirmative defense of consent. He testified that the victim actually initiated the sexual encounter and explained that during the encounter, the victim bit him, in response to which, assuming she was "into that, " he bit her back.

         ¶6 At the defendant's trial, some four years after the encounter, the victim testified that she did not remember the rape, but she remembered waking up with her pants off and that her vagina was burning and her earrings had been ripped from her ears. Although she denied remembering the rape, she nevertheless later testified in response to a direct question that after the defendant stopped, she ran to the apartment of some friends for help. In addition to her trial testimony, however, the court admitted an interview with the victim at the emergency room on the night of the encounter. In that interview, while not clear about the precise sequence of events, the victim unequivocally stated that she had been raped. While she conceded being extremely drunk and blacking out, she recalled the defendant's biting her neck and penetrating her, and she expressly stated that at some point she said, "[S]top, stop . . ., "and prayed for help.

         ¶7 At the sentencing hearing, the defendant argued for mandatory concurrent sentences for the two sexual assault convictions, on the grounds that they were supported by identical evidence. In response, the prosecutor again made clear the People's theory that at the time the assault began, the victim was unconscious and was therefore physically helpless, and that during the course of the assault she awoke and the defendant then used physical force to continue the assault. The prosecutor argued that the jury found both that the victim was physically helpless, unable to resist, and that at some point during the assault the defendant used means sufficient to overcome her will, which amounted to distinctly different evidence of two assaults, even though they occurred during one continuous event.

         ¶8 Among a number of other assignments of error, the defendant alleged on appeal that the trial court erred by not merging the two sexual assault verdicts into one conviction or, alternatively, by not imposing concurrent sentences. With regard to the former contention, the court of appeals held simply that a criminal defendant may be convicted of multiple offenses arising out of a single transaction if he has violated more than one statute, and that sexual assault of a physically helpless victim, proscribed by section 18-3-402(1)(h), and sexual assault by causing submission of a victim by means of sufficient consequence reasonably calculated to cause submission against the victim's will, proscribed by section 18-3-402(1)(a), are two separate statutes. With regard to the latter contention, it upheld the trial court's order of consecutive sentences on the grounds that consecutive sentences were mandated by statute unless both convictions were supported by identical evidence, which could not be the case where the evidence that was required to prove each sexual assault charge was inconsistent with that required to prove the other.

         ¶9 We granted the defendant's petition for writ of certiorari concerning the question whether his constitutional rights were violated by ordering consecutive sentences in this case, either because both counts were based on identical evidence or because the trial court erroneously applied the ...


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