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recognizing that section 18-3-407 always requires the proponent of the evidence to show that it is relevant to a material issue in the case
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No. 98SC816
May 29, 2001 Rehearing Denied June 25, 2001
Justice MARTINEZ and Justice BENDER would grant.
Certiorari to the Colorado Court of Appeals, Court of Appeals No. 96CA1515
JUDGMENT REVERSED IN PART AFFIRMED IN PART AND JUDGMENT OF CONVICTION REINSTATED
Sexual Assault — Rape Shield Statute — Relevance — Opening the Door — Rule of Completeness — Sufficiency of Information — Sentence Enhancer
The supreme court reverses the court of appeals' judgment overturning the defendant's conviction for sexual assault on a child as a part of a pattern of sexual abuse, and affirms the court of appeals' judgment affirming the trial court's finding that count three of the information sufficiently charges the crime of sexual assault on a child as a part of a pattern of sexual abuse.
The defendant was charged and convicted of sexual assault on a child for sexually abusing his step-daughter over a period years. On appeal, the defendant claimed that the trial court erred in excluding a portion of a statement he made to police referencing an incident of prior sexual abuse of the victim by a third party. The defendant, citing the rule of completeness and the concept of "opening the door" for support, argued that the excluded portion of his statement was relevant to explain an inculpatory portion of his statement that was admitted by the trial court. The defendant also claimed that his conviction should be reversed on the basis that the information failed to sufficiently charge the crime of sexual assault on a child. The court of appeals agreed, holding that the trial court erred in excluding the statement. However, it also held that the information was sufficient to charge the crime of sexual assault on a child.
The supreme court, in reversing the court of appeals, holds that the trial court did not abuse its discretion in excluding the defendant's statement referencing the rape victim's prior sexual abuse under Colorado's rape shield statute. The court finds that the rule of completeness and the concept of "opening the door" do not, in and of themselves, obviate the requirement for admission under the rape shield statute that the defendant make an offer of proof as to the relevance of the proffered evidence. The court concludes that under CRE 401 and CRE 403, the probative value of the proffered evidence is substantially outweighed by the risk of prejudice to the victim.
The supreme court affirms the court of appeals' holding that the information sufficiently charges the crime of sexual assault on a child and the sentence enhancer because the language in the information charging the crime includes each of the elements of the crime and tracks the language of the statute.
Ken Salazar, Attorney General, John D. Seidel, Assistant Attorney General, Appellate Division, Denver, Colorado, Attorneys for Petitioner/Cross-Respondent.
David Kaplan, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, Attorneys for Respondent/Cross-Petitioner.
This case arises out of Defendant's conviction for sexual assault on a child as a part of a pattern of sexual abuse. We granted certiorari to review the court of appeals' decision inPeople v. Melillo, 976 P.2d 353 (Colo.App. 1998). In Melillo, the court of appeals held that count three of the information sufficiently charged the crime of sexual assault on a child as a part of a pattern of sexual abuse. However, it reversed Defendant's conviction, holding that the trial court erred by excluding evidence proffered by Defendant. We now reverse the court of appeals' holding that the trial court erred in excluding evidence of the victim's prior sexual conduct, as this evidence was properly excluded under CRE 401, CRE 403 and Colorado's rape shield statute, § 18-3-407, 6 C.R.S. (2000). However, we affirm the court of appeals' holding that the information sufficiently charges the crime of sexual assault on a child as a part of a pattern of sexual abuse, and that the trial court properly instructed the jury on count three. Thus, we reverse in part and affirm in part, and reinstate the trial court's judgment of conviction.
I. FACTS AND PROCEDURAL HISTORY
Defendant married the victim's mother and moved into their home in 1992. The victim testified that shortly thereafter Defendant began sexually abusing her and that this abuse became more recurrent and egregious over the course of the next year. According to the victim, Defendant was having nonconsensual sexual intercourse with her on a regular basis until the summer of 1993, when the victim became pregnant. Defendant told the victim to have an abortion, which she did. She later disclosed the sexual abuse to her mother.
In June 1995, Defendant was charged with two counts of sexual assault on a child by one in a position of trust, § 18-3-405.3, 6 C.R.S. (2000), and one count of sexual assault on a child, § 18-3-405(1), 6 C.R.S. (2000), as a part of a pattern of sexual abuse, § 18-3-405(2)(c), 8B C.R.S. (1986). During the investigation, Defendant gave a statement to a law enforcement investigator referencing an incident during which the victim was sexually assaulted by her baby-sitter's son (the "daycare incident"). Prior to trial, Defendant filed a motion to present evidence of the victim's prior sexual contacts, including the daycare incident. A rape shield hearing was held and the trial court ruled that the daycare incident was not relevant to any material issue in the proceeding.
At the time of Defendant's crime, the pattern of sexual abuse sentence enhancement provision was designated as subsection (2)(c). In 1995, it was redesignated, with minor amendments, as subsection (2)(d). See ch. 240, sec. 11, § 18-3-405, 1995 Colo. Sess. Laws 1249, 1253. Because the crime occurred before 1995, we will refer to this provision as section 18-3-405(2)(c).
At trial, the prosecution called the investigator to testify about Defendant's statement. Defendant's attorney requested a bench conference, whereupon he asked that he be able to inquire about the portion of Defendant's statement referencing the daycare incident. The trial court again found that evidence of the daycare incident was inadmissible, but allowed the investigator to testify as to the other portion of the statement, which was inculpatory.
The jury acquitted Defendant on the first count and a mistrial was declared on the second count. The jury returned a verdict of guilty on the third count of sexual assault on a child as a part of a pattern of sexual abuse and the trial court entered judgment of conviction, sentencing Defendant to eighteen years in the Department of Corrections. Following the trial, Defendant filed a motion to vacate the verdict on count three and for entry of judgment of acquittal, asserting that the count did not charge a crime, but only a sentence enhancer. The trial court denied Defendant's motion.
The court of appeals affirmed the trial court's determination that count three of the information was sufficient to charge sexual assault on a child. Melillo, 976 P.2d at 355-56. The court, however, reversed Defendant's conviction and remanded for a new trial because it found that the trial court had erred by excluding the portion of his statement referencing the daycare incident. Id. It found that the evidence should have been admitted under the rule of completeness, or alternatively, the concept of "opening the door." Id. The People petitioned this court for a writ of certiorari to review the court of appeals' rulings on these evidentiary issues and Defendant cross-petitioned, contesting the sufficiency of count three. We granted certiorari on all three issues.
Specifically, we granted certiorari on the following issues:
Whether the prosecution may "open the door" to evidence which is presumptively irrelevant under the rape shield statute, when the defense, knowing that the evidence will be relevant to rebut a part of the prosecution's case, deliberately withdraws it from the trial court's consideration at the rape shield hearing.
Whether the rule of completeness, as codified in CRE 106, supports admission of [Defendant's] unrecorded, untranscribed conversation with a police officer.
Whether the evidence was insufficient to support the sexual assault — pattern of abuse.
ANALYSIS
A. EXCLUSION OF EVIDENCE OF VICTIM'S PRIOR SEXUAL CONDUCT
The first two issues presented on appeal concern whether the trial court erred in excluding evidence proffered by Defendant. Defendant posits that the court of appeals was correct in ruling that the evidence was admissible under the rule of completeness and the concept of "opening the door." We now hold that the court of appeals' reliance on these evidentiary principles was misplaced and that the trial court did not abuse its discretion in excluding evidence of the victim's prior sexual abuse. We hold that CRE 401, CRE 403 and the rape shield statute, § 18-3-407, support exclusion of the evidence.
1. Standard of Review
We review a trial court's factual determination as to the relevance of evidence for abuse of discretion. People v. Dunlap, 975 P.2d 723, 741 (Colo. 1999); King v. People, 785 P.2d 596, 603 (Colo. 1990). Under this standard, the sound discretion of the trial court will not be overturned on appeal unless the court's evidentiary ruling was manifestly arbitrary, unreasonable, or unfair. Dunlap, 975 P.2d at 741; King, 785 P.2d at 603; People v. Hampton, 758 P.2d 1344, 1348 (Colo. 1988) (holding that, "Our review of the trial court's ruling is necessarily circumscribed by the rule that a court's factual findings are entitled to deference by a reviewing court and will not be overturned if supported by competent evidence in the record.").
2. CRE 401, CRE 403 and the Rape Shield Statute
Our review of a trial court's determination of the admissibility of evidence requires an examination of such evidence under CRE 401 and CRE 403. CRE 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." CRE 403, however, authorizes a court to exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Trial courts have broad discretion to make evidentiary determinations under CRE 401 and CRE 403. Dunlap, 975 P.2d at 741; People v. Ibarra, 849 P.2d 33, 38 (Colo. 1993).
Because the evidence excluded by the trial court in this case concerns a rape victim's prior sexual abuse, we also review the trial court's determination under the rape shield statute. § 18-3-407. In relevant part, the rape shield statute provides:
(1) Evidence of specific instances of the victim's or witness's prior or subsequent sexual conduct . . . shall be presumed to be irrelevant except:
(a) Evidence of the victim's or witness's prior or subsequent sexual conduct with the actor;
(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse offered for the purpose of showing that the act or acts charged were or were not committed by the defendant.
§ 18-3-407 (emphasis added). The statute then outlines a procedure through which a defendant may nonetheless seek to admit such evidence normally inadmissible:
(2) In any criminal prosecution [for sexual assault on a child], if evidence, that is not excepted under subsection (1) of this section, of specific instances of the victim's or a witness's prior or subsequent sexual conduct . . . is to be offered at trial . . . :
(a) A written motion shall be made . . . prior to trial unless later for good cause shown . . . stating that the moving party has an offer of proof of the relevancy and materiality of [the] evidence . . . .
§ 18-3-407(2) (emphasis added).
Although our rules of evidence generally favor the admission of evidence, we have previously held that the rape shield creates a presumption that evidence relating to a rape victim's sexual conduct is irrelevant to the proceedings. People In Interest of K.N., 977 P.2d 868, 872 (Colo. 1999); People v. Murphy, 919 P.2d 195 (Colo. 1996). In Interest of K.N., we found that "the rape shield statute begins with the unmistakable statement that evidence of a victim's sexual history `shall be presumed to be irrelevant.' As a consequence, then, the force of the statute generally makes a victim's sexual history inadmissible." 977 P.2d at 872.
Although the rape shield statute creates a presumption of irrelevance for evidence of a rape victim's sexual conduct, this general prohibition on the admission of such evidence is qualified by three statutory exceptions. § 18-3-407; Interest of K.N., 977 P.2d at 872 ("[E]vidence [of a rape victim's sexual conduct] is admissible only through three exceptions explicitly set forth in the rape shield statute."). Thus, evidence is only admissible under the rape shield statute if: (1) it is evidence of a victim's prior sexual contact with the accused pursuant to subsection 407(1)(a); (2) if it is evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence pursuant to subsection 407(1)(b); or (3) if the defendant makes an offer of proof showing that the evidence is relevant to a material issue in the case pursuant to subsection 407(2). § 18-3-407. Because it is undisputed that the first two statutory exceptions under subsection 407(1) are inapposite to the facts of the instant case, we do not address them. Thus, subsection 407(2) provides the only possible basis for admission of Defendant's proffered evidence.
Under subsection 407(2), evidence of a rape victim's sexual conduct may only be admitted if a defendant makes an offer of proof in the manner prescribed by the statute, and such offer is sufficient to show that the evidence is "relevant to a material issue in the case." § 18-3-407; Interest of K.N., 977 P.2d at 871-73; People v. McKenna, 196 Colo. 367, 374, 585 P.2d 275, 280-81 (1978).
In determining whether an offer of proof sufficiently demonstrates the relevance of the proffered evidence, a trial court must apply CRE 403 to balance the probative value of the evidence against any possible unfair prejudice. It is with these principles in mind that we address the issue of whether the trial court in this case erred in excluding evidence of the victim's prior sexual abuse.
We note that the determination as to the admissibility of any relevant evidence, whether relevant under the rape shield statute or otherwise, necessarily involves an examination under CRE 403. See United States v. Ramone, 218 F.3d 1229,1237-38 (10th Cir. 2000) (holding that relevant evidence of victim's prior sexual conduct may be excluded under Federal Rule of Evidence 403); Richmond v. Embry, 122 F.3d 866, 872 (10th Cir. 1997) (holding that in making a determination of admissibility under Colorado's rape shield statute, a trial court should consider the traditional concerns of prejudice, issue and jury confusion that normally guide a trial court's evidentiary rulings); People v. Gholston, No. 98CA0952, 2000 Colo. App. LEXIS 839, at *10 (Colo.App. May 11, 2000) (upholding a trial court's finding that the probative value of evidence of a victim's prior sexual assault on his sibling was substantially outweighed by its prejudicial effect).
3. Evidence in this Case
The evidence Defendant sought to admit in this case was part of a statement he made to a law enforcement investigator. It describes an incident in which the victim's mother came home on her lunch break and found the victim with the Defendant alone in his bedroom (the "lunchtime incident"). The trial court permitted the investigator to testify about most of Defendant's statement, however, the trial court excluded the portion of his statement referencing the victim's prior sexual abuse.
Specifically, the investigator was allowed to testify that Defendant told him that during the incident in question he "hurried out of the bedroom" and began talking "gibberish" to the mother because he realized "how it must look." The investigator also testified that Defendant said he "tried to distract her "before [he] got in trouble." The trial court, however, did not permit the investigator to testify that later in the interview, Defendant said he acted oddly during the lunchtime incident because "there's a big deal in the house because [the victim] had had problems with the baby sitter when she was three years old." Defendant was referring to the daycare incident.
In determining whether the trial court properly excluded this evidence under CRE 401 and CRE 403, we will not overturn its ruling unless it is manifestly arbitrary, unreasonable, or unfair.Murphy, 919 P.2d at 197 (holding that findings on the sufficiency of an offer of proof "are within the province of the trial court"). Based on our review of the record, we find that the trial court's ruling was not manifestly arbitrary, unreasonable, or unfair because the possibility of prejudice arising from the proffered evidence substantially outweighs the probative value of that evidence. Therefore, the evidence was properly excluded.
According to Defendant, the admitted portion of his statement created an inference that he acted strangely because he had a guilty conscience. Defendant argues that the excluded portion of the statement is probative in that it provides an alternative explanation for the Defendant's behavior during the lunchtime incident. Defendant thus contends that the trial court erred in excluding the evidence because its admission was required under the concept of "opening the door" and the rule of completeness. We disagree.
The concept of "opening the door," not codified in our rules of evidence, is a court-promulgated curative measure that is not easily defined. See generally, 21 Charles A. Wright Kenneth W. Graham, Jr., Federal Practice and Procedure, § 5039 (1977). We have previously held that the concept represents an effort by courts to prevent one party from gaining an unfair advantage by presenting evidence that, without being placed in context, creates an incorrect or misleading impression. Murphy, 919 P.2d at 195 (citing People v. Miller, 890 P.2d 84, 98-99 (Colo. 1995)). InMurphy, we examined the concept of "opening the door" in the context of evidence whose admissibility is governed by the rape shield statute. Id. at 195-98. There, the defendant sought to admit evidence of a rape victim's sexual orientation, arguing that the evidence was relevant to the issue of consent and admissible because the prosecution "opened the door" when the victim testified that he was heterosexual. Id. We found that a defendant may overcome the rape shield statute's presumption of irrelevance by showing that the prosecution "opened the door":
The Rape Shield Statute does not absolutely preclude the introduction of evidence regarding a rape victim's prior sexual conduct . . . . [A]lthough the Rape Shield Statute bars evidence of a rape victim's . . . past sexual conduct, the defense may still introduce such evidence if the prosecution makes the evidence relevant by "opening the door" to the evidence.
Id. at 195. Thus, the concept of "opening the door" may provide a proper basis for asserting an offer of proof and overcoming the presumption of irrelevance created by the rape shield statute.
In Murphy, however, we ultimately held that the trial court did not err in excluding evidence of the rape victim's prior sexual conduct because: (1) the prosecution did not "open the door;" and (2) "the defense made an insufficient offer of proof and thus did not meet the requirements of the Rape Shield Statute." Id. at 195-99 (emphasis added). Thus, Murphy demonstrates that application of the "opening the door" concept is not determinative as to whether evidence is admissible under the rape shield statute. Rather, a defendant must still, pursuant to the rape shield statute, make a sufficient offer of proof showing that the evidence is relevant to a material issue in the case.Id. at 197.
Similarly, we find that the applicability of the rule of completeness is limited in the context of evidence whose admissibility is governed by the rape shield statute. Under the rule of completeness, "if a statement made by the defendant in a criminal case is admissible in evidence as an admission or declaration, it is admissible as an entire statement, including the parts thereof which are favorable as well as the parts which are unfavorable to the party offering the same." McRae v. People, 131 Colo. 305, 311, 281 P.2d 153, 156 (1955). Thus, the rule of completeness is similar to the concept of "opening the door," which is also based on principles of fairness and completeness. Therefore, as with the "opening the door" concept, application of the rule of completeness is subject to the considerations of relevance and prejudice required under CRE 401 and CRE 403.
The common-law rule of completeness is codified in CRE 106. Although the common-law rule applied to all statements, CRE 106 limits the rule to only "written and recorded" statements.
Indeed, in Callis v. People, 692 P.2d 1045, 1050 (Colo. 1984), we rejected the rule of completeness as articulated inMcRae, reasoning that evidence sought to be admitted under the rule of completeness is subject to the same considerations of relevancy and potential prejudice as other evidence. Id. We held, therefore, that irrespective of the applicability of the rule of completeness, a trial court may properly exclude part of a statement if it is irrelevant or prejudicial, while allowing admission of another part of the same statement. Id. Thus, in light of the highly prejudicial nature of evidence relating to a rape victim's prior sexual conduct, the rule of completeness has limited applicability in this context.See infra pp. 16-18.
Therefore, we hold that neither the "opening the door" concept nor the rule of completeness establish in and of themselves the admissibility of the proffered evidence. Rather, a proponent of evidence protected by the rape shield statute must nonetheless make an offer of proof as to the relevance of the evidence. Under the rape shield statute, a defendant need not make such an offer of proof before trial, but may instead make the offer at the time the evidence is proffered if "good cause" is shown. § 18-3-407(2)(a). In either instance, however, the defendant must still demonstrate that the evidence is relevant to a material issue. See Murphy, 919 P.2d at 197.
Here, Defendant made no offer of proof either prior to trial, or at the time of trial, other than to assert that the evidence was "relevant to the portion being put into evidence, and therefore should be allowed." Accordingly, we find that Defendant failed to comply with the requirements of the rape shield statute, and that his offer of proof was insufficient to demonstrate that the evidence was relevant to a material issue in the case. Furthermore, the portion of Defendant's statement referencing the daycare incident poses a high risk of prejudice to the victim.
Although Defendant did file a motion prior to trial requesting to admit evidence relating to the daycare incident, the motion does not propose a theory of relevance for its admission. At the rape shield hearing, moreover, Defendant's attorney failed to comment on or present any offer of proof demonstrating the relevance of evidence relating to the daycare incident.
Although a review of the record fails to demonstrate that Defendant had "good cause" for failing to file an offer of proof prior to trial, we need not address this issue because we conclude that Defendant failed to demonstrate the relevance of the evidence under CRE 401 and CRE 403.
The substantive policy concerns underlying the rape shield statute speak to the prejudicial nature of evidence of a rape victim's prior sexual conduct. In prior decisions, we have addressed these policy concerns, concluding that the rape shield statute provides "rape and sexual assault victims greater protection from humiliating and embarrassing public `fishing expeditions' into their past sexual conduct, without a preliminary showing that evidence thus elicited will be relevant to some issue in the pending case." McKenna, 196 Colo. at 371 72, 585 P.2d at 278; accord Interest of K.N., 977 P.2d at 874. Similarly, we found that the rape shield statute:
Richmond, 122 F.3d at 872 (noting that legitimate state interests behind Colorado's rape shield statute such as giving rape victims heightened protection against "surprise, harassment, and unnecessary invasions of privacy" may allow the exclusion of relevant evidence if the state's interests in excluding the evidence outweigh the defendant's interests in having the evidence admitted); see also, Ramone, 218 F.3d at 1237-38 (noting that when determining whether relevant evidence of victim's prior sexual conduct should be excluded under FRE 403, "trial judges retain wide latitude . . . to impose reasonable limits on [admission of evidence] based on concerns about . . . harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant"); United States v. One Feather, 702 F.2d 736, 739 (8th Cir. 1983) (holding that, "The policy of Federal Rule of Evidence 412 [the federal rape shield statute], to guard against unwarranted intrusion into the victim's private life, may be taken into account in determining the amount of unfair prejudice under Rule 403."); Kvasnikoff v. State, 674 P.2d 302, 305 (Alaska Ct.App. 1983) (holding that admissibility of evidence under Alaska's rape shield statute requires the trial judge to balance the probative value of the evidence against the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim).
reflects a major public policy decision by the general assembly regarding sexual assault cases. In effect the legislature has declared the state's policy to be that victims of sexual assaults should not be subjected to psychological or emotional abuse in court as the price of their cooperation in prosecuting sex offenders.
McKenna, 196 Colo. at 372, 585 P.2d at 278.
In this case, admission of evidence concerning the victim's prior sexual abuse would cause the victim to suffer precisely the unnecessary invasion of privacy and emotional abuse contemplated by the rape shield statute. Accordingly, we hold that the trial court did not abuse its discretion in excluding the portion of the statement referencing the daycare incident because its prejudicial effect outweighed its probative value.
In summary, a trial court's determination of admissibility cannot be disturbed on appeal absent abuse of discretion. Under CRE 403, a court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Evidence protected by the rape shield statute falls under a presumption that such evidence concerning a victim or witness' sexual conduct is irrelevant unless the proponent of the evidence makes a showing that the proffered evidence is "relevant to a material issue in the case." Moreover, in weighing the relevance of such evidence against its potentially prejudicial effect, a trial court may consider the policy concerns underlying the rape shield statute.
In the case at hand, we hold that the trial court did not abuse its discretion in determining that Defendant's offer of proof was insufficient under the rape shield statute. Defendant's arguments under the rule of completeness and the "opening the door" concept fail to create such a sufficient showing because the record demonstrates that the probative value of the proffered evidence is substantially outweighed by the risk of prejudice to the victim. Moreover, no further offer of proof as to the probative value of the proffered evidence was submitted by Defendant. Thus, we hold that the trial court properly excluded the portion of Defendant's statement concerning the daycare incident. Accordingly, we reverse the court of appeals' judgment overturning Defendant's conviction.
B. SUFFICIENCY OF COUNT THREE OF THE INFORMATION
Having determined that the trial court properly excluded the evidence at issue, we now turn to the issue of whether the information sufficiently charged the crime of sexual assault on a child, as a part of a pattern of sexual abuse. Because Defendant's argument on appeal raises questions of law, we review the trial court's ruling under a de novo standard of review.Valdez v. People, 966 P.2d 587, 590 (Colo. 1998).
Defendant argues that he could only be convicted on count three if he was first convicted on count two. He asserts that count three was insufficient to charge a crime, rather it only charged the sentence enhancer. As a result, Defendant argues, count three is only valid to the extent it incorporates the crime charged in count two. We disagree.
As a preliminary matter, Defendant's contention that count three incorporates count two lacks merit. In order for a count to incorporate another count we have held that it must contain aclear reference to the latter. Martinez v. People, 163 Colo. 503, 507, 431 P.2d 765, 767 (1967). Here, there is no reference to count two in count three. Thus, count three does not incorporate count two.
Furthermore, we find that count three sufficiently charges the crime of sexual assault on a child, as well as the sentence enhancer because a single count may charge both a crime and a sentence enhancer. See People v. Williams, 984 P.2d 56, 60 (Colo. 1999).
Crim. P. 7(b)(2) sets forth the requirements for determining whether an information is sufficient and thus invokes jurisdiction of the court. Crim. P. 7(b)(2) provides:
The information shall be deemed technically sufficient and correct if it can be understood therefrom:
(I.) That it is presented by the person authorized by law to prosecute the offense;
(II.) That Defendant is identified . . . ;
(III.) That the offense was committed within the jurisdiction of the court . . . ;
(IV.) That the offense charged is set forth with such degree of certainty that the court may pronounce judgment upon a conviction.
Crim. P. 7(b)(2) is identical to section 16-5-202(1), 6 C.R.S. (2000).
(Emphasis added). We have previously held: "When an information satisfies each of these requirements [of Crim. P. 7(b)(2)], it invokes jurisdiction of the court." Williams, 984 P.2d at 60 (emphasis added). The issue in this case is whether count three sets forth the offense charged "with such degree of certainty that the court may pronounce judgment upon a conviction." Crim. P. 7(b)(2)(IV).
Since count three clearly meets requirements I, II and III, we do not address them.
In determining whether an information is sufficient, moreover, this court has identified two fundamental objectives that an information must serve: "A charge is sufficient if it alleges sufficient facts to permit the accused to prepare an adequate defense and to assure that the defendant cannot be prosecuted again for the same crime." People v. Chavez, 730 P.2d 321, 325 (Colo. 1986); accord People v. Moore, 200 Colo. 481, 484, 615 P.2d 726, 728 (1980); People v. Albo, 195 Colo. 102, 104, 575 P.2d 427, 429 (1978). In Williams, we spoke to these dual requirements and held: "Colorado has followed the modern trend of testing the sufficiency of the information based upon the fundamental objectives the information serves rather than technical pleading requirements of the common law. This functional approach mirrors the efforts of the federal criminal code and follows the lead of the Supreme Court." 984 P.2d at 60 (citations omitted).
This court has held, moreover, that if an information identifies the essential elements of the crime charged, then it is sufficient. Id.; Cervantes v. People, 715 P.2d 783, 786 (Colo. 1986); Moore, 200 Colo. at 485, 615 P.2d at 729; Martinez, 163 Colo. at 507, 431 P.2d at 767. This requirement is satisfied if the language in the charge tracks the statutory language.Williams, 984 P.2d at 60; People v. Hunter, 666 P.2d 570, 573 (Colo. 1983); Gallegos v. People, 166 Colo. 409, 413, 444 P.2d 267, 269 (1968).
The crime of sexual assault on a child is defined by the legislature as follows: "Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child if the victim is less than fifteen years of age and the actor is at least four years older than the victim." § 18-3-405(1). An examination of the language of count three demonstrates that it not only alleges each of the elements of the crime of sexual assault on a child, it also tracks the language of section 18-3-405(1). Count three reads as follows:
On and between June 1, 1992 and September 1, 1993, in the County of Jefferson State of Colorado, FRANK MELILLO did unlawfully, feloniously and knowingly, as part of a pattern of sexual abuse, subject another, namely [the victim], not his spouse, to any sexual contact, and the victim was less than fifteen (15) years of age and the defendant was at least four years older than the victim; contrary to the form of the statute in such case made and provided, Section 18-3-405(1)(2)(c), C.R.S., and against the peace and dignity of the People of the State of Colorado.
Thus, the information in this case properly identifies the elements of the crime charged. See Williams, 984 P.2d at 60. Furthermore, count three specifically cites section 18-3-405(1), the crime of sexual assault on a child. We conclude, therefore, that count three sufficiently charges the crime of sexual assault on a child.
We reach this conclusion despite the prosecution's failure to elect a specific incident of sexual contact on which to base its charge of sexual assault on a child. We have previously held that the prosecution need not elect a specific incident of sexual contact constituting the sexual assault on a child, nor is it required to specify the other instance(s) of sexual contact forming the pattern of sexual abuse "where there is a reasonable likelihood that jurors will not disagree on which acts of sexual contact the defendant committed." Thomas v. State, 803 P.2d 144, 152-54 (Colo. 1990). Thus, if the prosecution does not elect an incident, the trial court must instruct the jurors that "in order to find Defendant guilty . . . they must unanimously agree either that the defendant committed the same individual act or acts or that he committed all of the acts described by the victim."Id. at 155.
In the instant case, the victim testified about a number of specific incidents of sexual abuse that occurred over the course of two years. Her recollection of many of these events was incomplete and she was unable to differentiate among the numerous incidents of sexual contact between her and Defendant. Thus, the trial court did not require the prosecution to specify the act of sexual contact forming the basis of the sexual assault on a child charge. The court instead issued an instruction requiring jury unanimity, pursuant to Thomas. In addition, the record supports the jury's finding that the victim was subjected to a series of undifferentiated acts of sexual contact over a prolonged period of time. Thus, we find that count three, combined with Instruction 17, satisfies the requirements outlined in Thomas and sufficiently charges the crime of sexual assault on a child.
Instruction 17 provides:
The evidence in this case raises issues concerning several incidents of sexual assault. In order to find a pattern of sexual abuse, you must unanimously agree that either of the following have been proven beyond a reasonable doubt:
1. Defendant committed all of the incidents described by the evidence and included between June 1, 1992 and May 23, 1993.
2. Defendant committed two or more incidents of sexual contact with the victim . . . between June 1, 1992 and May 23, 1993. The jurors must unanimously agree that the same two or more incidents have been proven beyond a reasonable doubt.
Similarly, we conclude that count three sufficiently charges the sentence enhancer. Under section 18-3-405(2)(c), sexual assault increases from a class 4 felony to a class 3 felony if "[t]he actor commits the offense as a part of a pattern of sexual abuse." Count three alleges: "On and between June 1, 1992 and September 1, 1993 . . . [Defendant did] unlawfully, feloniously and knowingly, as a part of a pattern sexual abuse, subject another . . . to any sexual contact . . . ." (Emphasis added.) Thus, the information specifically alleges that the sexual assault was part of a pattern of sexual abuse.See § 18-3-401(2.5).
Although the charge does not allege the specific dates or times of the act(s) of sexual contact that constitute the pattern of sexual abuse, such specificity is not required under the statute. The statute provides that "[n]o specific date or time must be alleged for the pattern of sexual abuse; except that the acts constituting the pattern of sexual abuse must have been committed within ten years of the offense charged in the information or indictment." § 18-3-405(2)(c). Here, the information alleges that the pattern of sexual abuse occurred within a fifteen-month period of time commencing on June 1, 1992, and ending September 1, 1993, which clearly satisfies the ten-year period required by the statute. The charge, moreover, provides adequate notice to Defendant, as required under Williams, by expressly citing section 18-3-405(2)(c). See Cervantes, 715 P.2d at 786-87 (considering the fact that an information included a citation to the statute defining the crime being charged when examining whether an information provided adequate notice). In the instant case, it is clear that the count provided sufficient notice to Defendant that he was being charged with sexual assault on a child as a part of a pattern of sexual abuse.
In summary, we hold that the plain language of count three sufficiently charges both the crime of sexual assault on a child and the sentence enhancer. Count three clearly identifies each of the elements of the crime of sexual assault on a child, and each of the elements of the sentence enhancer. Thus, the count was pled with sufficient particularity to meet the dual requirements outlined in Williams, 984 P.2d at 60, and Defendant had notice that he was not only being charged with sexual assault on a child, but also that he was being charged with committing the crime as a part of a pattern of sexual abuse.
III. CONCLUSION
For the foregoing reasons, we hereby reverse the court of appeals' holding that the trial court erred in excluding evidence relating to the victim's prior sexual abuse. However, we affirm the court of appeals' holding that the information sufficiently charges both the crime of sexual assault on a child under section 18-3-405(1), and the pattern of sexual abuse sentence enhancement provision under section 18-3-405(2)(c). We therefore reverse in part and affirm in part, and order that the judgment of conviction be reinstated against Defendant.
JUSTICE BENDER dissents, and JUSTICE MARTINEZ joins in the dissent.