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People v. Lewis

Court of Appeals of Colorado, Second Division

November 30, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
Ronald Laroy Lewis, Defendant-Appellant.

         Douglas County District Court No. 13CR235 Honorable Paul A. King, Judge.

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

          Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

          OPINION

          DAILEY JUDGE.

         ¶ 1 Defendant, Ronald Laroy Lewis, appeals the judgment of conviction entered on jury verdicts finding him guilty of Internet sexual exploitation of a child and Internet luring of a child. We affirm.

         I. Background

         ¶ 2 In response to Lewis's Craigslist advertisement soliciting a "barely legal" for sexual acts, Douglas County Sheriff's Detective Christine Brite pretended to be a fourteen-year-old girl named "Kayla Nelson." After exchanging sexually explicit messages via computers, Brite forwarded to Lewis an image of what appeared to be a teenage girl. Lewis inquired whether or not "Kayla" was "legit, " sent "Kayla" a sexually explicit photograph of himself, and arranged to meet her.

         ¶ 3 Expecting to meet "Kayla" outside his residence in Jefferson County, Lewis was instead arrested by police and charged in Douglas County with Internet sexual exploitation of a child and Internet luring of a child. Lewis's defense at trial was that he did not really believe that the person responding as "Kayla" was only fourteen years old. A jury convicted him as charged.

         ¶ 4 On appeal, Lewis contends that (1) the trial court erred by instructing the jury that the prosecution was not required to prove that the offenses were committed, as charged, in Douglas County; (2) the prosecution failed to present substantial and sufficient evidence showing that the offense was committed in Douglas County; (3) the trial court erred in allowing the jury unsupervised access to the videotape of Lewis' interrogation by the police following his arrest; and (4) the prosecutor repeatedly made improper comments implying guilt based upon Lewis's exercise of his constitutional right to remain silent. We address - and reject - each contention in turn.

         II. Instructing the Jury on the Prosecution's Burden of Proof with Respect to the County Where the Offenses Occurred

         ¶ 5 After the prosecution presented its case, the court received a question from a juror which read: "What are the jurisdictional roles in this case? A Douglas County detective arresting a Jefferson County suspect and a Littleton 'victim.'" With the parties' agreement, the court did not answer the question.

         ¶ 6 After the close of all the evidence, defense counsel asserted that the elemental instructions for the offenses should include a requirement that the prosecution prove beyond a reasonable doubt that the offenses were committed, as charged, in Douglas County. Defense counsel's assertion was premised on the view that proper venue is an element of a crime. The trial court rejected counsel's assertion, and, over his objection, instructed the jury, at the prosecutor's request, that "proof of the county in which the offense occurred shall not constitute an element of any offense and need not be proven by the prosecution at trial." The instruction's language was taken nearly verbatim from section 18-1-202(11), C.R.S. 2017, and the court noted that, under that statute, any issues pertaining to the proper venue for trial had to be raised before trial or they were waived.[1]

         A. Presentation and Preservation of Issues

         ¶ 7 Defense counsel objected to the court's instructions because, in his view, they improperly lowered the prosecution's burden of proof and therefore "impede[d] Mr. Lewis's due process rights under the state and federal constitutions." Lewis reasserts that position on appeal. To succeed, however, he recognizes that he also must contest the constitutionality of section 18-1-202(11), C.R.S. 2017.

         ¶ 8 "To preserve an issue for appeal, a defendant must alert the trial court to the particular issue." People v. Cordova, 293 P.3d 114, 120 (Colo.App. 2011). Here, when confronted by the trial court with section 18-1-202(11), defense counsel did not raise or challenge the constitutionality of the statute. It is doubtful, then, that counsel preserved such a challenge for appellate review. Nonetheless, we will assume, for purposes of this appeal, that he did so. We are willing to do so because Lewis's constitutional claim in the trial court was inextricably intertwined with the effect and validity of the statute on which the trial court relied.

         B. Analysis

         ¶ 9 Lewis correctly points out that "[u]nder both the United States and Colorado Constitutions, due process requires the trial court to properly instruct the jury on every element of the substantive offense with which the defendant is charged so the jury may determine whether all the elements have been established beyond a reasonable doubt." People v. Pickering, 276 P.3d 553, 555 (Colo. 2011).

         ¶ 10 Lewis asserts that this was not done here, however, because the court failed to recognize that proper venue was a substantive element of the crimes charged.

         ¶ 11 In People v. Reed, 132 P.3d 347 (Colo. 2006), the supreme court succinctly recounted how the issue of venue as ...


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