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People v. Ewing

Court of Appeals of Colorado, Second Division

January 26, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
Leon R. Ewing, Defendant-Appellant.

         El Paso County District Court No. 13CR452 Honorable Robin L. Chittum, Judge

         JUDGMENT AND SENTENCE AFFIRMED

          Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          HARRIS, JUDGE

         ¶ 1 Leon R. Ewing was convicted of two counts of sexual assault on a child by one in a position of trust. The jury did not make a specific finding that the victims were younger than fifteen at the time of the offense, but the court nonetheless applied the sentencing enhancement for age of the victim.

         ¶ 2 On appeal, Ewing contends that his sentence amounts to structural error and that he must be resentenced without the enhancement. We disagree. While the court failed to submit the sentence enhancer to the jury, we conclude that the error does not require reversal. We also reject Ewing's contention that the court violated his rights under the Confrontation Clause by limiting the scope of his recross-examination.

         ¶ 3 For these reasons, we affirm the convictions and sentence.

         I. Background

         ¶ 4 In March 2013, Ewing was charged with sexually assaulting two brothers, J.B. and M.B. The brothers alleged that the sexual assaults occurred during the summer of 2008, when J.B. was around eleven years old and M.B. was around thirteen years old. At that time, Ewing was living in the basement of the boys' family home. Ewing moved out of the home in 2008 or 2009, and he had not been in contact with the family since then.

         ¶ 5 The allegations arose in May 2011, after an apparent suicide attempt by J.B. While in the hospital, J.B. stated that he had tried to kill himself because he had been sexually abused by Ewing. M.B. then alleged that Ewing had also sexually abused him.

         ¶ 6 Detective Nicholas Kundert opened an investigation when the allegations were first made, but he could not locate Ewing until December 2012. After Ewing was located, he was charged with nine class 3 felony counts of sexual assault on a child by one in a position of trust.[1] Eight of the counts were for crimes committed against J.B. The eight counts related to four separate incidents of sexual assault. For each incident, the prosecution charged Ewing with one count of sexual assault on a child by one in a position of trust (pattern of abuse), and one count of sexual assault on a child by one in a position of trust (victim under fifteen years old). The last count related to an incident with M.B. for which the prosecution charged Ewing with sexual assault on a child by one in a position of trust (victim under fifteen years old).

         ¶ 7 The jury convicted Ewing of two counts of sexual assault on a child by one in a position of trust - one against J.B. and one against M.B. It specifically found that the assault against J.B. was not committed as part of a pattern of abuse. The jury made no findings regarding J.B.'s and M.B.'s ages at the time of the assaults.

         ¶ 8 At sentencing, the court entered convictions and sentences for two counts of class 3 felony sexual assault on a child by one in a position of trust (victim under fifteen years old). Neither party objected to the class 3 felony designation.

         II. Challenge to the Sentence

         ¶ 9 Sexual assault on a child by one in a position of trust is typically a class 4 felony. § 18-3-405.3(3), C.R.S. 2016. However, the offense is elevated to a class 3 felony if (1) the victim is less than fifteen years of age or (2) the offense is committed as part of a pattern of abuse. § 18-3-405.3(2)(a).

         ¶ 10 Ewing contends that the district court erred in entering judgments of conviction and sentences for sexual assault on a child by one in a position of trust as a class 3 felony because the jury did not find, nor was it asked to find, that J.B. and M.B. were younger than fifteen years old at the time of the assaults. Although we conclude that the court erred in failing to submit the sentence ...


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