2019 COA 100
Colo. Ct. App.2019Background
- In 2004 Bott allegedly sexually assaulted his newborn daughter; at that time Colorado applied the corpus delicti corroboration rule (confession alone insufficient).
- In 2010 Bott, then in sex-offender treatment, completed a questionnaire admitting he had sexually abused the infant while changing her diaper; the therapist reported it but police declined charges at that time.
- In 2014 police seized a memory card from Bott’s home containing ~294 images of child pornography and the 2010 treatment questionnaire; Bott was charged in 2015 with five counts of sexual assault on a child and multiple counts of sexual exploitation (possession and distribution of child pornography).
- At trial the prosecution relied heavily on Bott’s written admission, the ex-wife’s testimony that Bott frequently changed the child’s diaper, and the 2014 child‑pornography images; the jury convicted on all counts.
- On appeal Bott argued (1) LaRosa’s abandonment of the corpus delicti rule in favor of a “trustworthiness” standard does not apply retroactively, so his confession required independent corroboration to prove the crime occurred; and (2) statutory unit of prosecution for possession is the act of possession (one offense), not each image (multiple counts).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether LaRosa’s trustworthiness standard applies retroactively | People: LaRosa changed only trial procedure; it may apply despite earlier conduct | Bott: LaRosa was an unforeseeable substantive change; corpus delicti applied to conduct in 2004 | LaRosa does not apply retroactively; corpus delicti applied to Bott’s 2004 conduct |
| Whether evidence independent of Bott’s confession corroborated that a sexual assault occurred (corpus delicti) | People: ex-wife’s testimony (opportunity) plus later possession of child pornography corroborate the confession | Bott: opportunity and later images do not independently prove the earlier assault occurred | Insufficient corroboration; confession alone did not satisfy corpus delicti — sexual-assault convictions vacated |
| Whether 2014 possession of ~294 images supports multiple possession counts or a single count | People: may charge each image as a separate offense (prior case support) | Bott: statute treats the possession as a singular act; >20 images elevates severity but remains one offense | Unit of prosecution is the act of possession; multiple possession counts were multiplicitous — vacated excess convictions |
| Double jeopardy / sentencing effect after vacatur | People: sentencing discretion supports upholding multiple counts | Bott: multiple convictions violate Double Jeopardy and require vacatur/resentencing | Eleven possession convictions vacated; case remanded for resentencing |
Key Cases Cited
- Carmell v. Texas, 529 U.S. 513 (U.S. 2000) (corroboration rules altering quantum of proof cannot be applied retroactively without violating due process)
- Landgraf v. USI Film Prods., 511 U.S. 244 (U.S. 1994) (test for whether a rule/statute attaches new legal consequences to past events)
- People v. Smith, 510 P.2d 893 (Colo. 1973) (describing corpus delicti requirement: proof of injury and unlawfulness independent of confession)
- State v. Mauchley, 67 P.3d 477 (Utah Ct. App. 2003) (distinguishing corroboration of crime from corroboration of confession)
- United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009) (unit of prosecution for possession statutes is the act of possession, not each individual image)