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People v. Bott

Court of Appeals of Colorado, Fifth Division

July 3, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Joshua Christian Bott, Defendant-Appellant.

          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 ...


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