El
Paso County District Court Nos. 14CR2153 & 15CR232.
Honorable Linda Billings-Vela, Judge.
Philip
J. Weiser, Attorney General, William G. Kozeliski, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan
A. Ring, Colorado State Public Defender, Mark Evans, Deputy
State Public Defender, Denver, Colorado, for
Defendant-Appellant
OPINION
HARRIS
JUDGE.
¶
1 In 2004, when defendant, Joshua Christian Bott, allegedly
molested his infant daughter, Colorado firmly adhered to the
"corpus delicti" rule. That rule requires the
prosecution to present evidence other than the
defendant's confession to prove that the crime occurred.
By the time of Bott's trial in 2015, the Colorado Supreme
Court had abandoned the corpus delicti rule and replaced it
with a "trustworthiness" standard. See People
v. LaRosa, 2013 CO 2, ¶¶ 31, 38.
¶
2 At trial, the prosecution introduced Bott's written
confession, prepared as part of his sex offender treatment,
as well as hundreds of images of child pornography recovered
from his computer ten years after the alleged molestation.
The jury convicted Bott of five counts of sexual assault on a
child by one in a position of trust, twelve counts of sexual
exploitation of a child related to his possession of child
pornography, and three additional counts of sexual
exploitation related to his distribution of child
pornography.
¶
3 On appeal, Bott argues that the supreme court's
decision abandoning the corpus delicti rule in favor of a
trustworthiness standard did not apply retroactively;
therefore, the prosecution had to present corroborating
evidence that the crime occurred and because it did not the
evidence was insufficient to support his sexual assault
convictions. He also argues that, under the sexual
exploitation of a child statute, his single act of possession
of hundreds of images of child pornography constitutes one
crime of possession of more than twenty items of sexually
exploitative material.
¶
4 We agree with both arguments. Accordingly, we vacate
Bott's five convictions for sexual assault on a child and
eleven of his convictions for sexual exploitation of a child,
and we remand for resentencing.[1]
I.
Background
¶
5 In 2010, Bott was in sex offender treatment, a condition of
the probationary sentence imposed after he pleaded guilty to
an unrelated class 6 felony sex offense. At trial, Bott's
therapist testified that, to remain in treatment, the client
must progress to the satisfaction of the treatment staff. The
therapist did not believe that Bott was making sufficient
progress in the disclosure phase of treatment because he had
not admitted to sexually abusing his daughter - to the
contrary, during the several years he had been in treatment,
Bott was "adamant that he did not sexually assault [his
daughter]."
¶
6 In May 2010, the therapist notified Bott in writing that he
was not progressing and that if he failed to complete the
disclosure phase by October, he would be terminated from
treatment and referred to the court "for
consequences," which might include incarceration. By
July, Bott had completed a questionnaire in which he admitted
that during the six months after his daughter was born in
June 2004, he regularly "sexually abused [her] while
changing her diaper," by "rubb[ing] [her] vulva and
buttocks with [his] fingers." The therapist reported the
admission to the police, but they declined to file charges.
¶
7 In 2014, after Bott had been terminated from treatment,
incarcerated, and released from parole, police received
information that Bott's computer was linked to the
distribution of child pornography. During a search of
Bott's home, police recovered a memory card containing
nearly 300 images of child pornography as well as the
questionnaire containing his written confession to having
sexually abused his infant daughter ten years earlier.
¶
8 The People charged Bott with five counts of sexual assault
on a child, twelve counts of sexual exploitation of a child
(each count correlating to possession of more than twenty
images of child pornography), and another three counts of
sexual exploitation of a child (distribution of child
pornography).
¶
9 At various pretrial hearings, the prosecutor acknowledged
that the case was "based off of the treatment
notes," and that "the information" it had
about the case came from "Mr. Bott's
statements." The prosecutor candidly admitted that
"there is very little evidence and very little proof in
this case."
¶
10 At trial, the prosecutor introduced (1) Bott's written
confession; (2) the therapist's testimony concerning the
circumstances surrounding the confession; (3) the
ex-wife's testimony that Bott regularly changed their
daughter's diaper during the relevant period; and (4) the
images of child pornography found on Bott's computer in
2014. The jury convicted Bott of all charges.
II.
Sufficiency of the Evidence - Sexual Assault on a Child
¶
11 Bott contends that the evidence was insufficient to
support his convictions for sexual assault on a child by one
in a position of trust because, under the corpus delicti
rule, he could not be convicted based on his confession alone
and the prosecution did not present corroborating evidence
that the crime occurred.
¶
12 Bott's challenge to the sufficiency of the evidence
raises two questions. First, did the corpus delicti rule
apply at Bott's trial or did the supreme court's
decision abandoning the rule apply retroactively? And second,
if the corpus delicti rule did apply, did the prosecution
present any corroborating evidence that the crime occurred
such that the evidence as a whole was sufficient to sustain
the convictions?
A.
Preservation and Standard of Review
¶
13 Before we can address the merits of Bott's sufficiency
claim, we must determine whether, as the People contend, Bott
has waived appellate review of his claim, under either the
doctrine of invited error or general waiver principles.
1.
Relevant Facts
¶
14 The corpus delicti rule was first mentioned at the
pretrial conference. The prosecutor explained that she had
"two pieces of evidence that show that Mr. Bott was
around [his daughter]. One, his admission . . . [a]nd two,
[the ex-wife's] testimony." She intended to
introduce photographs to "show and prove that Mr. Bott
was around [his daughter] at that age" and that "he
did touch [her]." The photographs were necessary, she
argued, even though "corpus delicti is dead in the state
of Colorado now, so to speak." Neither defense counsel
nor the court responded to the prosecutor's
pronouncement.
¶
15 At the close of the prosecution's case, Bott moved for
a judgment of acquittal based on LaRosa. Defense
counsel noted that in LaRosa, the supreme court had
abandoned the corpus delicti rule and replaced it with the
trustworthiness standard. She explained that LaRosa
involved similar facts but that the court had not applied the
trustworthiness standard to the facts in that case because
"there was an ex post facto issue with that specific
defendant." Counsel then argued that the prosecution had
failed to demonstrate that Bott's confession was
trustworthy under LaRosa's new standard. The
prosecutor reiterated that LaRosa "did away
with the corpus delicti rule." She argued that the
prosecution had established the trustworthiness of the
confession through the ex-wife's testimony that Bott
changed the daughter's diaper and the introduction of the
child pornography, which showed that Bott had a sexual
interest in young children.
¶
16 The trial court denied the motion for a judgment of
acquittal. It acknowledged that the supreme court
"didn't apply their decision [in LaRosa]
retroactively"; nonetheless, the court determined that
the trustworthiness standard applied in this case and that
the standard was satisfied by evidence of Bott's
opportunity to commit the crime and of his sexual interests.
2.
Invited Error, Waiver, and Forfeiture
¶
17 The People say that by failing to argue the applicability
of the corpus delicti rule, and instead focusing exclusively
on the trustworthiness standard, Bott is precluded from
raising his sufficiency of the evidence claim on appeal. We
are not persuaded.
¶
18 The doctrine of invited error prevents a party from
complaining on appeal of an error that he injected into the
case. People v. Rediger, 2018 CO 32, ¶ 34.
Invited error is a narrow doctrine; it applies to errors in
trial strategy but not to errors based on inadvertence or
oversight. Id.; see also People v. Stewart,
55 P.3d 107, 119 (Colo. 2002).
¶
19 As an initial matter, the prosecutor, not defense counsel,
first injected the error in this case. Even so, the People
contend, Bott "urged" the trial court to apply the
trustworthiness standard and that, under the invited error
doctrine, he may not do "an about-face" on appeal
and argue that the corpus delicti standard applies. That
argument would have some force if Bott had "urged"
the trial court to apply one standard over the other as a
matter of trial strategy. But it seems clear to us that
counsel construed LaRosa to preclude reliance on the
corpus delicti rule and to require application of the
trustworthiness standard. In any event, the trial court was
not led astray by counsel's interpretation of
LaRosa; it independently considered the case, even
referring to the language concerning retroactivity.
¶
20 The People's waiver argument fares no better. Waiver
is the "intentional relinquishment of a
known right or privilege." Rediger,
¶ 39 (quoting Dep't of Health v. Donahue,
690 P.2d 243, 247 (Colo. 1984)). Thus, as a prerequisite to
waiver, we must find that the defendant (or his counsel) knew
of the right before relinquishing it. The record suggests the
opposite: that "everyone involved," see People
v. Tee, 2018 COA 84, ¶ 31, misunderstood the import
or scope of LaRosa's retroactivity analysis.
There is simply no evidence that Bott "intended to
relinquish his right to be tried" in accordance with due
process. Rediger, ¶ 42. Given that we must
"indulge every reasonable presumption against
waiver," id. at ¶ 39 (quoting People
v. Curtis, 681 P.2d 504, 514 (Colo. 1984)), we conclude
that, under these circumstances, counsel did not knowingly
and intentionally waive any claim that the corpus delicti
rule applied. See People v. Ramirez, 2019 COA 16,
¶ 18 (where counsel's failure to address the error
was "patently attributable to neglect," the
instructional error was not waived).
¶
21 We are not persuaded otherwise by the People's
citation to People v. Murray, 2018 COA 102, and
People v. Kessler, 2018 COA 60. In those cases, the
divisions assumed that the defendants knew of the error and
so focused on the intentionality of the defendants'
acquiescence. Murray, ¶¶ 43-44;
Kessler, ¶¶ 37-38. Tee is
distinguishable on other grounds. There, the division
thoroughly analyzed the "knowing" component of
waiver and concluded that, while "everyone
involved" in the case had correctly assessed the
relevant issue and the proper remedy, the defendant had
failed to seek any relief in the trial court and thus his
claim was waived. Id. at ¶¶ 31, 33, 35.
¶
22 Still, when the defendant fails to timely assert a right,
as Bott did here, we ordinarily consider the claim forfeited
and review the claim for plain error. Rediger,
¶ 40. Bott's claim involves the sufficiency of the
evidence to support the sexual assault convictions, however,
and we review sufficiency claims de novo. McCoy v.
People, 2019 CO 44, ¶ 34.
¶
23 Thus, we review de novo whether the prosecution introduced
sufficient evidence under the applicable standard to support
the sexual assault convictions. If the evidence is
insufficient, we must vacate the ...