People v. Johnson, 2016 COA 15

Background

William Edward Johnson was convicted of multiple sexual offenses against his stepdaughter R.B., including a sentence enhancer for committing a pattern of sexual abuse; he received 20 years to life after the court merged counts into the pattern conviction.
R.B. reported numerous incidents of inappropriate touching and attempted penetration; her recorded forensic interview and trial testimony described rubbing against her in bed but did not describe an incident involving "grinding" while sitting on top of Johnson.
Johnson gave a recorded interview admitting an episode in which he was asleep, R.B. climbed atop him and "grinded," and he woke up already ejaculating, but he denied initiating or being aware of the conduct while asleep.
The pattern-of-abuse special interrogatory listed several incidents; the jury found one listed incident (anal rape) and wrote in a second incident based on Johnson’s recorded admission (the "grinding/ejaculation" episode) rather than checking other listed incidents.
The trial court permitted juror access to recorded interviews under limited conditions (must request bailiff and view the tape in full) and denied Johnson’s pretrial motion for substitute counsel.
On appeal the court vacated only the pattern-of-sexual-abuse enhancer conviction (insufficient evidence) but affirmed the remaining convictions and remanded for resentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for pattern-of-sexual-abuse enhancer	The People argued the jury could rely on either victim testimony or defendant’s recorded statement to identify two distinct incidents required for the enhancer	Johnson argued the jury’s written-in incident relied solely on his recorded interview, which showed he was asleep and therefore could not have acted voluntarily, so evidence was insufficient	Reverse enhancer conviction: only one incident was supported by sufficient evidence because Johnson’s testimony showed unconsciousness, precluding voluntary sexual contact
Jury identification of unlisted incident	People: trial court may allow jury to identify incidents beyond special interrogatory if properly instructed	Johnson: jury was bound to incidents listed on the interrogatory and thus could not add an unlisted incident	Court held trial court did not err in allowing jury to identify unlisted incident because proper unanimity instruction was given (Melillo/Thomas)
Denial of substitute counsel	People: trial court reasonably investigated complaints and found no good cause for substitution	Johnson: counsel’s limited prison visits, communication issues, and alleged investigation failures constituted a breakdown warranting new counsel	Affirmed: no abuse of discretion; defendant did not show a total breakdown or other good cause requiring substitution
Jury access to videotaped interviews	People: court reasonably exercised discretion and placed limited controls (request to bailiff, view entire tape)	Johnson: DeBella requires supervision; leaving tape with jury or unfettered access is abuse of discretion	Affirmed: court exercised discretion and imposed restrictions, so no DeBella-type error

Key Cases Cited

People v. Day, 230 P.3d 1194 (Colo. 2010) (pattern-of-abuse enhancer requires at least two distinct incidents of sexual contact)
People v. Melillo, 25 P.3d 769 (Colo. 2001) (unanimity requirement and use of special interrogatories for pattern-of-abuse verdicts)
Thomas v. People, 803 P.2d 144 (Colo. 1990) (instructional requirement on unanimity: jurors must unanimously agree on same act or that defendant committed all described acts)
People v. Marcy, 628 P.2d 69 (Colo. 1981) (criminal liability requires voluntary or conscious act)
DeBella v. People, 233 P.3d 664 (Colo. 2010) (trial court must exercise and supervise discretion when allowing jury access to videotaped exhibits)
People v. LaRosa, 293 P.3d 567 (Colo. 2013) (confession may support conviction if trustworthy; concurrence discussed confession trustworthiness analysis)