Summary
In People v. Naranjo, 200 Colo. 1, 612 P.2d 1099 (1980), we affirmed the defendant's conviction for first degree sexual assault, reversed his conviction for first degree kidnapping, and remanded the case to the district court with directions to enter a judgment and sentence for the lesser included offense of second degree kidnapping.
Summary of this case from People v. NaranjoOpinion
No. 79SA457
Decided May 19, 1980. Rehearing denied July 14, 1980.
Defendant convicted of first-degree kidnapping and first-degree sexual assault and he appeals.
Affirmed in Part, Reversed in Part.
1. KIDNAPPING — First Degree — "To Make Any Concession" — Sexual Assault — Not Included — Statute — Lack of Evidence — Second Degree — Sufficient. The language "to make any concession" in the first-degree kidnapping statute does not include sexual assault where the actor is charged with causing submission of the victim through the actual application of physical force or physical violence as set forth in section 18-3-402(1)(a), C.R.S. 1973; thus, where assault by defendant in instant case was a crime of physical force or violence, the victim had no choice in the matter, and the assault ended and the victim was released when the police arrived, held, under the circumstances, the evidence was insufficient to support the crime of first-degree kidnapping under the statute; as a matter of law, the evidence was sufficient only to sustain a conviction for second-degree kidnapping.
2. CRIMINAL LAW — Statute — Legislative Silence — Intent — Culpable Mental State — Implied. Legislative silence on the element of intent in a criminal statute is generally not construed as an indication that no culpable mental state is required; a required mental state may be implied from the statute.
3. Mental State — Question of Fact — Jury. Mental state of accused at time of charged offenses is a question of fact which must be presented to the jury.
4. RAPE — First-Degree Sexual Assault — Instruction — Culpable Mental State — Penetration — Due Process. In prosecution for first-degree sexual assault, where trial court correctly instructed the jury on the requisite element of culpable mental state and that sexual penetration must be inflicted "unlawfully and knowingly," and where the existence of a culpable mental state was considered by the jury as an essential element of the crime, held, under such circumstances, defendant was not deprived of due process.
5. INSTRUCTIONS, CRIMINAL — Lesser Offense — Required — Evidence — Support Charge — Basis — Acquit. An instruction on a lesser offense is required only when there is some evidence to support the charge as defendant's theory of the case or when there is a rational basis for the jury to acquit the defendant of the greater offense but convict him of the lesser offense.
6. RAPE — Sexual Penetration — Physical Force — Second-Degree Sexual Assault — Refusal — Proper. Where there was uncontroverted evidence that sexual penetration was obtained by means of physical force, it was not error for the trial court to refuse to instruct the jury of the lesser offense of second-degree sexual assault.
7. CRIMINAL LAW — Sentence — Propriety — Review — Factors. On review of the propriety of a sentence, supreme court considers three factors: (1) the nature of the offense, (2) the public interest, and (3) the character of the offender.
8. Sentence — Maximum or Near-Maximum — Support — Sound Reasons in Record. When the maximum, or near-maximum sentence — such as in instant case — is imposed, it must be supported by sound reasons in the record.
9. Sentence — Review — Lack of Prior Criminal Record — Other Factors. Lack of prior criminal record on the part of a defendant is only one consideration in reviewing the propriety of the sentence imposed; consideration can also be given to depravity of the crime, need to protect public safety and probability of the offender's rehabilitation.
10. RAPE — First-Degree Sexual Assault — Sentence — Factors Considered — Evidence — Discretion. Where defendant was sentenced to forty-five and one-half to fifty years in the penitentiary for first-degree sexual assault conviction, and where, in so sentencing, trial court properly considered the depravity of the crime, the need to protect the public safety, and the probability of the offender's rehabilitation, held, since the sentence is supported by substantial evidence, reviewing court cannot say that trial court abused its discretion in imposing a severe sentence.
Appeal from the District Court of Larimer County, Honorable John-David Sullivan, Judge.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy, Mary J. Mullarkey, Solicitor General, Lynne Ford, Assistant Attorney General, Litigation Section for plaintiff-appellee.
R. B. Fickel, for defendant-appellant.
The defendant Sammy Naranjo appeals his conviction for first-degree kidnapping and first-degree sexual assault. We reverse the defendant's conviction for first-degree kidnapping and affirm his conviction for first-degree sexual assault.
Between 6:00 and 7:00 p.m. on September 25, 1976, the victim, who was spending the week-end with friends near Estes Park, and another woman went for a walk along Highway U.S. 34 toward the point where the highway was closed because of damage from the Big Thompson flood. As they returned, a car approaching them stopped and the occupants asked if they wanted a ride. They declined. The car made a U-turn, and again stopped beside them. Again the women declined the offered ride. This time a man in the back seat got out of the car and grabbed the victim's friend. The victim attempted to free her friend, and a second man, the defendant, got out of the front passenger seat, and hit the victim in the head. Meanwhile, the first woman freed herself and ran down into the Big Thompson River. She looked back to see the two men shove the victim into the car and leave at a high rate of speed. The woman who escaped continued across the river to a lighted house and called the police.
The car headed into Estes Park and then toward Lyons on U.S. 36. In the back seat, the victim was subjected to involuntary sexual intercourse with each of the three men. The car stopped only long enough for the men to exchange places. The victim testified that she was hit continually and that the defendant was the most brutal of her three captors.
After about twenty minutes, the car turned up a dirt road and two miles further, stopped. The defendant and his companions forced the victim to lie on the floor of the back seat and then shoved her head first out of the car. They dragged her to a nearby grassy area, and, while continuing to hit her, forced her to have oral, anal, and vaginal sexual relations with all three of them. The assault was interrupted by the arrival of a State Patrol car, and the defendant and his two companions fled. The sheriff found the defendant nearby later that evening.
The victim, who sustained a number of cuts and bruises, ran to the patrol car. She testified that, had the patrolman not arrived, she did not know what the men would have done with her. Although the defendant and his companions spoke to her in English, they conversed among themselves in Spanish. At no time did they suggest that she would be released if she complied with their demands.
The trial court severed the cases against the defendant and his companions. A jury found the defendant guilty of first-degree kidnapping and first-degree sexual assault. He was sentenced to life imprisonment for kidnapping and forty-five and one-half to fifty years in the penitentiary for sexual assault, the sentences to be served concurrently.
The defendant contends on appeal that there was insufficient evidence to support a first-degree kidnapping conviction. He challenges the constitutionality of the first-degree sexual assault statute because it does not include a mens rea element, and he questions the trial court's refusal to accept an instruction on second-degree sexual assault. In addition, the defendant seeks review of his sentence for sexual assault.
I.
[1] The defendant questions the sufficiency of the evidence of first-degree kidnapping because there was no proof that the seizure and movement was done with
"the intent thereby to force the victim or any other person to make any concession or give up anything of value in order to secure a release of a person under the offender's actual or apparent control . . . ."
Section 18-3-301(1), C.R.S. 1973 (now in 1978 Repl. Vol. 8).
In People v. Bridges, 199 Colo. 520, 612 P.2d 1110 (1980), we determined that the language "to make any concession" in the first-degree kidnapping statute does not include submission of a victim to actual application of physical force or physical violence as set forth in the first-degree sexual assault statute, section 18-3-402(1)(a), C.R.S. 1973 (1976 Supp.; current version in 1978 Repl. Vol. 8). The facts here fall within subsection (1)(a) of the statute. The assault by the defendant was a crime of physical force or violence. The victim had no choice in the matter, and the assault ended when the police arrived. Such evidence is insufficient to support first-degree kidnapping under the statute as construed in Bridges.
See also People v. Naranjo, 200 Colo. 11, 612 P.2d 1106 (1980).
Section 18-3-402(1)(a), C.R.S. 1973 (1976 Supp.; current version in 1978 Repl. Vol. 8), provides: "Any actor who inflicts sexual penetration on a victim commits a sexual assault in the first-degree if . . . [t]he actor causes submission of the victim through the actual application of physical force or physical violence."
As a matter of law, the evidence here is sufficient only to sustain a conviction for second-degree kidnapping. Because the trial court instructed the jury on second-degree kidnapping and there is sufficient evidence to support a conviction for second-degree kidnapping, we remand the case to the trial court to enter judgment and sentence for the lesser included offense of second-degree kidnapping. See People v. Horrocks, 190 Colo. 501, 549 P.2d 400 (1976).
Section 18-3-302, C.R.S. 1973 (current version in 1978 Repl. Vol. 8) provides: "Any person who forcibly or otherwise seizes and carries any person from one place to another without his consent and without lawful justification commits second-degree kidnapping. . . ."
II.
The defendant was convicted of first-degree sexual assault under section 18-3-402, C.R.S. 1973 (1976 Supp.; current version in 1978 Repl. Vol. 8), He contends that the omission of language specifically referring to mental culpability, a mens rea element, makes the statute unconstitutional.
See footnote 1. The later amendment added the term "knowingly." Section 18-3-402, C.R.S. 1973 (1976 Supp.; current version in 1978 Repl. Vol. 8).
[2,3] Legislative silence on the element of intent in a criminal statute is generally not construed as an indication that no culpable mental state is required. In fact, the United States Supreme Court in construing federal legislation has held that the basic definition of a crime usually requires the conjunction of an act and a culpable mental state. United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978); Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). This required mental state may be implied from the statute. Cf. United States Gypsum, supra; Morissette, supra; State v. Berry, 101 Ariz. 310, 419 P.2d 337 (1966). Cf. People v. Washburn, 197 Colo. 419, 593 P.2d 962 (1979) (where the court construed the words "intentionally" and "knowingly" to determine legislative intent with regard to mental state). Moreover, as the United States Supreme Court held in Morissette, the mental state is a question of fact which must be presented to the jury. See also People v. Washburn, supra.
[4] The trial court therefore correctly instructed the jury on the requisite element of culpable mental state [ Colorado Jury Instructions (Criminal) 6:1] and that sexual penetration must be inflicted "unlawfully and knowingly." The existence of a culpable mental state was considered by the jury as an essential element of the crime, and thus, the defendant was not deprived of due process.
III.
[5] The defendant also questions the trial court's refusal to instruct the jury on second-degree sexual assault. However, an instruction on a lesser offense is required only when there is "some evidence" to support the charge as defendant's theory of the case or when "there is a rational basis for the jury to acquit the defendant of the greater offense but convict him of the lesser offense." People v. White, 191 Colo. 353, 356, 553 P.2d 68, 70 (1976).
[6] Second-degree sexual assault is committed when
"[t]he actor causes submission of the victim to sexual penetration by any means other than those set forth in section 18-3-402, but of sufficient consequence reasonably calculated to cause submission against the victim's will." (Emphasis added.)
Section 18-3-403(1)(a), C.R.S. 1973 (1978 Repl. Vol. 8). One of the means set forth in section 18-3-402 is "through the application of physical force or physical violence." There was uncontroverted evidence in this case that the sexual penetration was obtained by means of physical force, and therefore, it is not error for the trial court to refuse to instruct the jury on the lesser offense of second-degree sexual assault.
IV.
[7] Finally, the defendant seeks appellate review of the propriety of his sentence and the propriety of the sentencing proceeding. On review of the propriety of the sentence, we consider three factors: (1) the nature of the offense, (2) the public interest, and (3) the character of the offender. People v. Malacara, 199 Colo. 243, 606 P.2d 1300 (1980).
[8] The trial court sentenced the defendant to forty-five and one-half to fifty years in the penitentiary for the first-degree sexual assault conviction. The minimum sentence for first-degree sexual assault is ten years, and the maximum sentence is fifty years. Section 18-1-105(1), C.R.S. 1973 (1976 Supp.; current version in 1978 Repl. Vol. 8). When the maximum, or near-maximum sentence such as the one here, is imposed, it "must be supported by sound reasons in the record." People v. Strong, 190 Colo. 189, 192, 544 P.2d 966, 967 (1976). In imposing sentence, the trial court stated that the decision was based on the evidence presented at the sentencing hearing, psychiatric reports from an evaluation under the Sex Offenders Act, section 16-13-201, et seq., C.R.S. 1973 (1978 Repl. Vol. 8 and 1979 Supp.), the probation department's report, the staff psychologist's report, the evidence presented at trial, the nature of the crimes, the defendant's character, the possibility of rehabilitation, the need to protect the public from the defendant, the need to punish the defendant, and the deterrent effect of such punishment.
[9,10] The defendant challenges the sentence primarily because he had no significant criminal history. The lack of a prior criminal record is only one consideration. The trial court properly considered the depravity of the crime, People v. Euresti, 187 Colo. 266, 529 P.2d 1319 (1975), the need to protect the public safety, People v. Campbell, 188 Colo. 79, 532 P.2d 945 (1975), and the probability of the offender's rehabilitation. People v. Duran, 188 Colo. 207, 533 P.2d 1116 (1975). The sentence is supported by substantial evidence, and we cannot say that the trial court abused its discretion in imposing a severe sentence.
The defendant also challenges the trial court's comment, when imposing a life sentence for the first-degree kidnapping conviction, that the defendant not be considered eligible for parole "until he had served a minimum of twenty-two years rather than the usual ten years." The defendant maintains that taking parole eligibility into account is not a judicial function and improperly infringes on executive authority in determining parole. We need not reach this consideration because we have vacated the conviction and sentence for first-degree kidnapping.
Section 17-1-207(3), C.R.S. 1973 [current version at section 17-2-207, C.R.S. 1973 (1978 Repl. Vol. 8, 1979 Supp.)], which was in effect at the time the defendant was convicted, provided that one serving a life sentence would not be eligible for parole consideration until he had served ten years.
We affirm the judgment of the trial court on first-degree sexual assault, and we reverse the judgment of the trial court on first-degree kidnapping. The cause is remanded for further proceedings consistent with this opinion.
JUSTICE LEE and ROVIRA concur in part and dissent in part.