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People v. Perez-Rodriguez

Court of Appeals of Colorado, Fifth Division

June 1, 2017

The People of the State of Colorado, Plaintiff-Appellee,
Rogelia Perez-Rodriguez, Defendant-Appellant.

         Arapahoe 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 Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Jon W. Grevillius, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          BOORAS JUDGE.

         ¶ 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.

         I. Background

         ¶ 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 with J.H-S.

         ¶ 6 A jury convicted defendant on all counts, and the trial court sentenced him to a life sentence with parole eligibility after twelve years.

         II. Issues

         ¶ 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.

         III. 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.

         A. 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.

         B. Analysis

         ¶ 12 Colorado's aggravated incest statute says:

(1) A person commits aggravated incest when he or she knowingly:
(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 age.

§ 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 recognized that

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 agreement.

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 conduct.

         ¶ 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 enumerated factors).

         ¶ 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 ...

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