People v. Gholston5/11/2000
d as §18-3-405(2)(d), which now specifies that the other act of sexual abuse must have occurred within ten years prior to the predicate offense.
This difference in language is important, and in this regard, we observe that there is potentially confusing language in People v. Hansen, supra, 920 P.2d at 834. The Hansen court there expressly stated its intent to quote the later version of the pattern of abuse statute, §18-3-405(2)(d), but instead -- apparently inadvertently -- recited the original language of Colo. Sess. Laws 1989, ch. 163, §18-3-405(2)(c) at 903. While this error does not affect the result in Hansen, which remains good law, it is worthy of note.
In this case, because Colo. Sess. Laws 1989, ch. 163, §18-3-405(2)(c) at 903, was in effect when defendant committed his offenses, we conclude he is not being retroactively punished for acts that were innocent when committed. Nor did the amendment embodied in §18-3-405(2)(d) change the punishment or deprive him of any defense. To the contrary, the l995 amendment provided him with an additional defense; namely, that the other acts of sexual abuse constituting a pattern must have been committed within ten years prior to the offense charged.
Accordingly, we reject defendant's contention that §18-3-405(2)(d), as applied to him, is an ex post facto law prohibited by U.S. Const. art. I, §10 and Colo. Const. art. II, §11.
B. Position of Trust - §18-3-405.3
However, we agree with defendant that §18-3-405.3, as applied to him in count 3 only, violates the constitutional prohibition against ex post facto legislation.
Count 3 charged defendant with sexual assault on a child by one in a position of trust, and was based on an incident occurring between June 1, 1990, and June 1, 1991. But, §18-3-405.3 did not become effective until July 1, 1990, leaving a one month period prior to the statute's enactment.
While the jurors clearly could have convicted defendant under §18-3-405.3, based on an act that occurred after the effective date of the statute, they were not instructed that defendant's conviction had to be based on such an act. Nor can we determine whether defendant was convicted of an act committed before or after the statute became operative. People v. Luman, supra; People v. Graham, supra. Because the verdict could have been based on an act which preceded the passage of the statute, we conclude defendant was disadvantaged by the statute's application to him. See People v. Graham, supra.
We reach this conclusion even though we agree with the People that sexual assault by a person in a position of trust was contained prior to July 1, 1990, in §18-3-405(1) and Colo. Sess. Laws 1983, ch. 197, §18-3-405(2)(b) at 693, albeit as a penalty enhancer. Nevertheless, if the defendant had been charged under §18-3-405(1) and Colo. Sess. Laws 1983, ch. 197, §18-3-405(2)(b) at 693, in count 3, as he was in count 2, he could only have been convicted and sentenced for that one crime or for second degree sexual assault.
Because under §18-3-405.3, defendant could be convicted and sentenced for both crimes, we conclude he was disadvantaged and that §18-3-405.3 as applied to him in count 3 violated the prohibition against ex post facto legislation. On remand, the trial court should vacate defendant's conviction for count 3.
V. Pattern of Abuse Instructions
Defendant next contends the conviction for a pattern of sexual abuse under §18-3-405(2)(d) must be reversed because the jurors were not instructed that they had to find he had committed another act of sexual abuse within ten years prior to the act charged -– that is, prior to the period of
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