County District Court No. 12CR2748 Honorable Gerald J.
Rafferty, Judge Honorable Christopher C. Cross, Judge
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Jon W.
Grevillius, Deputy State Public Defender, Denver, Colorado,
1 Rogelia Perez-Rodriguez, defendant, appeals the judgment of
conviction and sentence entered on jury verdicts finding him
guilty on two counts each of aggravated incest, sexual
assault on a child by one in a position of trust as a pattern
of conduct, and sexual assault with the actor ten years older
than the victim. We affirm.
2 Defendant started dating A.S. and soon after moved in with
her. A.S. had several children from a previous marriage and
had three children with defendant during their relationship.
J.H-S. was one of A.S.'s children from a previous
marriage and was around eleven years old when defendant
started dating A.S.
3 Although defendant and A.S. did not have a wedding ceremony
and were never formally married, they publicly referred to
each other as husband and wife. And while defendant never
formally adopted J.H-S., they publicly referred to each other
as father and daughter.
4 In the summer of 2012, when J.H-S. was fifteen years old,
defendant forced her to have sexual intercourse with him on
two separate occasions, one to two weeks apart. Defendant
impregnated J.H-S., and she delivered the baby approximately
nine months after the incidents. DNA testing confirmed that
defendant was the baby's biological father.
5 After discovering she was pregnant, J.H-S. told her mother
what had happened, and police started an investigation.
During the investigation, a detective - through an
interpreter - questioned defendant. Defendant initially
denied but then admitted to having had sexual intercourse
6 A jury convicted defendant on all counts, and the trial
court sentenced him to a life sentence with parole
eligibility after twelve years.
7 Defendant first contends that the aggravated incest statute
is unconstitutionally vague as applied. He next contends that
the aggravated incest instruction incorrectly instructed the
jury that he did not need to know that J.H-S. was his
stepdaughter. Defendant then alleges that the prosecution
misstated the law on common law marriage during rebuttal
closing argument, thereby committing reversible misconduct.
Finally, defendant asserts that his confession was
involuntary because the interrogating officers made implied
promises of leniency and compassion, and therefore the court
erred in admitting the taped confession into evidence. We
examine each contention in turn.
Aggravated Incest Statute
8 Defendant contends that the aggravated incest statute is
unconstitutionally vague as applied to stepchildren of common
law marriages because common law marriage itself turns on a
multitude of factors and is not sufficiently defined by
statute. Defendant asserts, therefore, that when a couple is
not formally married, the statute fails to provide a standard
by which the accused may know whether the victim is his or
her stepchild. We do not agree.
Standard of Review and Applicable Law
9 We review de novo as-applied constitutional challenges to
statutes. People v. Trujillo, 2015 COA 22, ¶
15. A statute may be unconstitutional on its face or as
applied. People v. Stotz, 2016 COA 16, ¶ 27. A
statute is unconstitutional as applied if it does not, with
sufficient clarity, prohibit the conduct against which it is
enforced. Id.; see also Johnson v. United
States, 576 U.S.___, ___, 135 S.Ct. 2551, 2556 (2015). A
defendant has the burden of showing beyond a reasonable doubt
that the statute is unconstitutional as applied to him or
her. Trujillo, ¶ 15.
10 When determining whether a statute is vague, we apply
common principles of statutory interpretation.
Stotz, ¶ 28. First, we look to the language of
the statute itself and interpret statutory terms in
accordance with their commonly accepted meanings.
Id. If the plain language is unclear or ambiguous,
we may look beyond the words of the statute to legislative
history or rules of statutory construction. Id.
Otherwise, we apply the statute as written. Id.
11 Defendant preserved this argument by asserting it at
trial. The trial court ruled that a common law marriage is
the same as any other type of marriage for purposes of the
incest statute - the only difference being how a common law
marriage is proved.
12 Colorado's aggravated incest statute says:
(1) A person commits aggravated incest when he or she
(a) Marries his or her natural child or inflicts sexual
penetration or sexual intrusion on or subjects to sexual
contact, as defined in section 18-3-401[, C.R.S. 2016], his
or her natural child, stepchild, or child by
adoption, but this paragraph (a) shall not apply when the
person is legally married to the stepchild or child by
adoption. For the purpose of this paragraph (a) only,
"child" means a person under twenty-one years of
§ 18-6-302, C.R.S. 2016 (emphasis added).
13 The term "stepchild" is not defined by the
statute, but is typically defined as a child of one's
wife or husband by a former marriage or relationship.
See Webster's Third New International Dictionary
2237 (2002). Whether a person is a stepchild depends,
therefore, on whether or not the alleged stepparent and the
child's biological parent are husband and wife.
14 "A common law marriage is established by the mutual
consent or agreement of the parties to be husband and wife,
followed by a mutual and open assumption of a marital
relationship." People v. Lucero, 747
P.2d 660, 663 (Colo. 1987). The Lucero court
in many cases express agreements will not exist. The
parties' understanding may be only tacitly expressed, and
the difficulty of proof is readily apparent. We have
recognized that 'the agreement need not have been in
words, ' and the issue then becomes what sort of evidence
is sufficient to prove the agreement. We have stated that if
the agreement is denied or cannot be shown, its existence may
be inferred from evidence of cohabitation and general repute.
In such cases, the conduct of the parties provides the truly
reliable evidence of the nature of their understanding or
Id. at 664 (footnote and citations omitted).
15 Defendant contends that, because common law marriage
relies on evidence of cohabitation and general repute, the
aggravated incest statute is too vague to provide an accused
with a standard by which he or she could know that a person
is his or her stepchild or any standard by which law
enforcement can differentiate illegal conduct from legal
16 But a lack of clearly defined terms is not fatal to a
statute's constitutionality. See Posters 'N'
Things, Ltd. v. United States, 511 U.S. 513, 525-26
(1994) (concluding that statute defining drug paraphernalia
by using specified, objective criteria for assessing whether
an item qualifies and containing a scienter requirement was
not unconstitutionally vague); Tiplick v. State, 43
N.E.3d 1259 (Ind. 2015) (holding drug statute constitutional
because, despite having multiple undefined terms, the statute
contained a scienter requirement and numerous factors to help
determine the accused's intent); State v.
Munson, 714 S.W.2d 515, 520 (Mo. 1986) (upholding drug
paraphernalia statute even though it relied on nonexclusive
17 Similarly, a statute is not rendered vague when the
existence of a statutory element is determined by balancing
factors that are not included in the statute. See State
v. Campbell, 756 N.W.2d 263, 270-72 (Minn.Ct.App. 2008)
(upholding breach of fiduciary obligation where statute was
admittedly broad and a factual determination based on
numerous factors was necessary, noting that "[a]lthough
the determination requires a judgment call, it is not so
inherently elusive that it is not reasonably ascertainable or
that it cannot be established beyond a reasonable
doubt"). Common law marriage may be shown through
agreement or consent in combination with a variety of
factors, but the two most clearly recognized are cohabitation
and "a general understanding or reputation among persons
in the community in which the couple lives that the parties
hold themselves out as husband and wife."
Lucero, 747 P.2d at 665. Furthermore,
Specific behavior that may be considered includes maintenance
of joint banking and credit accounts; purchase and joint
ownership of property; the use of the man's surname by
the woman; the use of the man's surname by children born
to the parties; and the filing of joint tax returns. However,
there is no single form that any such evidence must take.
Rather, any form of evidence that openly manifests the
intention of the parties that their relationship is that of