Original Proceeding Pursuant to C.A.R. 21 Adams County
District Court Case No. 08CR3237 Honorable Robert Walter
Kiesnowski, Jr., Judge
Attorneys for Plaintiff: Dave Young, District Attorney,
Seventeenth Judicial District Sarah Stout, Deputy District
Attorney Cameron Munier, Senior Deputy District Attorney
Michael Whitney, Deputy District Attorney Brighton, Colorado
Attorneys for Defendant: Johnson & Klein, PLLC Gail K.
Johnson Eric K. Klein Boulder, Colorado
In this original proceeding, we review the district
court's order permitting the People to retry James
Stackhouse on only one of the many alleged acts of sexual
assault on a child for which he had been charged. The
district court concluded that the jury in Mr.
Stackhouse's first trial had necessarily concluded that
he did not commit multiple acts of assault, and therefore
that he could not be retried for more than a single assault.
The People filed a petition under C.A.R. 21, asking us to
review this conclusion. For the reasons set forth below, we
make the rule to show cause absolute, reverse the district
court's order, and remand this case to the district court
for further proceedings.
Facts and Procedural History
In 2008, Mr. Stackhouse was charged with one count of sexual
assault on a child by one in a position of trust, a
class-three felony, in violation of sections 18-3-405.3(1)
and (2)(a), C.R.S. (2017); one count of sexual assault on a
child, a class-four felony, in violation of subsection
18-3-405(1); and the sentence enhancer of sexual assault on a
child as a pattern of abuse, in violation of sections
18-3-405(1) and (2)(d), which elevates the class-four felony
of sexual assault on a child to a class-three felony. In
2010, Mr. Stackhouse proceeded to trial on these charges. A
jury found Mr. Stackhouse guilty of sexual assault on a child
by one in a position of trust and of sexual assault on a
child. The jury did not find the pattern-of-abuse sentence
Mr. Stackhouse filed a motion for post-conviction relief
pursuant to C.R.C.P. 35(c), claiming ineffective assistance
of counsel. The People conceded the claim that the trial
court erred in failing to give a unanimity instruction. The
post-conviction court granted Mr. Stackhouse's C.R.C.P.
35(c) motion, vacating his convictions and setting the case
for a new trial.
In his pending second trial, Mr. Stackhouse faces the two
counts the jury convicted him of at his first trial; he is
not facing retrial on the pattern count. Mr. Stackhouse's
new trial counsel filed a motion asking the court to restrict
the prosecution in his second trial to only a single
allegation of sexual abuse that was based on a 2007 report by
the victim to a preschool teacher. The motion asserted that
because the first jury "unanimously found that the
sexual assault was not committed as part of a
pattern of abuse, " the jury "necessarily found
that Mr. Stackhouse did not commit two or more incidents of
sexual contact upon [the victim]." (Emphasis in
original). Because all of the allegations presented at the
first trial-with the exception of the 2007 allegation
reported to the teacher-were of multiple alleged
acts of sexual contact, Mr. Stackhouse argued that the jury
in his first trial could only have believed that single
allegation. Therefore, Mr. Stackhouse argued, his rights to
due process, a fair trial, and to be free from double
jeopardy precluded the prosecution from taking a second bite
at the apple by rearguing any of the other allegations of
abuse to a new jury.
The district court agreed, stating that "the import of
the no pattern finding is that those 12 individuals focused
on a singular act that they believed was proven beyond a
reasonable doubt." The People filed a Motion to
Reconsider. At the hearing on this motion, the district court
expressed doubts about its initial ruling, but noted that the
issue was going to come to this court one way or another, so
denied the motion. The People then petitioned this court to
review the district court's order pursuant to C.A.R. 21,
and we issued a rule to show cause why the district
court's order should not be vacated.
Original Jurisdiction and Standard of Review
Exercise of our original jurisdiction under C.A.R. 21 is
within our sole discretion. C.A.R. 21(a)(1); In re
Marriage of Gromicko, 2017 CO 1, ¶ 16, 387 P.3d 58,
61 (citing Fognani v. Young, 115 P.3d 1268, 1271
(Colo. 2005)). We may choose to exercise our original
jurisdiction when an ordinary appellate remedy would be
inadequate. C.A.R. 21(a)(1); Gadeco, LLC v.
Grynberg, 2018 CO 22, ¶ 8, 415 P.3d 323, 327;
People v. Aleem, 149 P.3d 765, 771 (Colo. 2007)
(citing People v. Miller, 25 P.3d 1230, 1231 (Colo.
2001)). Because no adequate remedy is otherwise available in
this instance, we conclude that the exercise of our original
jurisdiction is appropriate in this case.
The Double Jeopardy Clause of the Fifth Amendment provides:
"[N]or shall any person be subject for the same offence
to be twice put in jeopardy of life or limb." U.S.
Const. amend. V. The parallel clause in the Colorado
Constitution provides: "[N]or shall any person be twice
put in jeopardy for the same offense." Colo. Const. art.
II, § 18. An important principle of double jeopardy is
that the government is precluded "from relitigating any
issue that was necessarily decided by a jury's acquittal
in a prior trial." Yeager v. United States, 557
U.S. 110, 119 (2009) (citing Ashe v. Swenson, 397
U.S. 436 (1970)). In other ...