*1 type constituted therefore project,” and to be covered intended work of construction State PEOPLE (citations Id. at 254 Colorado, section 13-80-104. Plaintiff omitted). would not merely repair routine A here, as the work Highline, qualify, but in functioning proper
done was essential DAY, C.J. Defendant. dispute in this There no property. gutters installation of that when the No. 09SA350. time at the performed was Colorado, kind defined Supreme work Court of construction it was by section 13-80-104. En Banc. gutters faulty is a con- repair of May itself, two-year so the
struction defect with con- of limitations associated statute cannot, majority's as the defects
struction it, run begin have
interpretation would faulty repair. Therefore the
prior to the only begins to run when of limitations statute is, repair defect in that or should
been, discovered. should not be seen
Section 13-20-803.5 statutory repair doc- replacement requirement that must
trine. It is notice suit can be filed. Just
be satisfied before Immunity Act limits
the Governmental litigation the state must expensive
amount (see 24-10-120,
endure sections 24-10-101 (2009)), attempt to 13-20-803.5 is an
C.R.S. professionals’ exposure
limit construction
liability by to fix giving opportunity them they
problems required are to defend before Indeed, headline
against the brief lawsuit.
description to the that enacted attached bill stated that the act was
section 13-20-803.5
“[cjoncerning limitations on claims for dam-
ages against professionals.” filed construction 13-20-803.5, 188, § Colo. Sess.
Ch. protects
Laws 1361. Section 13-20-803.5 becoming po- professionals
construction from
tential defendants lawsuits. The requirement nothing
provision is a notice It not be as an
more. should construed rejection repair doc-
endorsement or
trine. respectfully dis-
For these two reasons
sent. say
I am authorized to that Justice joins in dissent.
HOBBS
H95 jury acquitted Day The of sexual assault child, 18-3-405(1), § on a and sexual assault by trust, position on a child one in a 18- 3-405.3(1), (2)(a), (2008), electing C.R.S. in- Day stead to convict attempts both instances. The proceed- issue jury proceeded arose because the to find Day guilty of of sexual abuse sentence enhancer.
However, applicable provide statutes that the trial court enter cannot conviction on the enhancer, sentence unless the first finds guilty complet- least two ed incidents of on the child victim. Because Day did not find guilty completed sexual assault on the victim, nor, child ver- dicts, could the record conclu- Day’s sion that part conduct was a of a assaults, of completed we hold trial court erred as a matter of law entering a judgment applying the sexual part assault on a child of a sexual abuse provi- sentence enhancement sion, 18-3-405(2)(d). Accordingly, section make rule our absolute and return this case resentencing. the trial court for I. Day with sexual child,
assault on a in violation of section 18- 3-405(1), (referred count one to as “couch Hautzinger, Attorney, Pete District 21st incident”); on a by sexual assault child one in District, Hand, Deputy Judicial Mark R. Dis- trust, in violation of section 18- Junction, Colorado, Attorney, trict Grand At- (referred 3-4105.3(1)(2), count two to as the — torneys Plaintiff. for incident”); “bedroom assault on a Wilson, Douglas K. State Public Colorado part child as of a Defender, Sandler, Deputy Matthew D. State enhancer, in violation of section 18- Defender, Junction, Colorado, Public Grand 3-405(1), (2)(d), count three. All three Attorneys for Defendant. counts the sexual contact oc- curred the same child victim between Opinion Justice HOBBS delivered the 1, 2007, 28, February November the Court. During regarding discussion forms, to C.A.R. we issued rule prosecution, Pursuant structions defense, show cause to determine and the trial Day whether the court erred as a matter of if the of an defendant, sentencing assault, Day, law in C.J. and not a applying enhancing provision the sentence enhanc- sexual abuse sentence pertaining inapplicable. Day’s to sexual as a er would counsel stat- abuse, ed, 18- section “I finds him believe 3-405(2)(d), (2008). assault, C.R.S. then that cannot be II. sen- [of
a basis for (Trial 5:19-21, May Tr. enhancer].” tence did not find Because the 2009). responded, “An at- assault on the child vic- pattern. He’s cor- tempt a basis is not *3 verdicts, tim, nor, in of the could 6:23-24). (Id. court The trial rect on that.” Day’s support record that conclusion stating, the event by in part a of conduct was of returned a verdict became confused assaults, that the trial court we hold sexual sexual sen- pattern of abuse guilty on the judg- entering as a of in a erred matter law enhancer, question can a “that’s tence applying the sexual assault on a child ment by Court after the easily be answered part a a sen- as of of of the receipt verdicts. Should one provision, of the tence enhancement section 18-3- 405(2)(d). it attempt, Accordingly, of then know make rule we we our verdicts be to absolute and return this case and that verdict would [sic] can’t be (Id. resentencing. for court pattern charge.” be set on the aside 7:2-6). Review A. Standard of attempted, Day of an convicted original jurisdic Whether exercise our to on a child for completed, not sexual assault a response petition tion in to for a rule to not attempted, incident and an the couch cause resides within our sole discretion show by in on a child one completed, sexual assault v. under C.A.R. See Cook Fernandez incident. a of trust for bedroom -Rocha, 505, (Colo.2007); 168 P.3d 506 Weav a not have entered The trial court should Ct., 227, 230, Dist. 190 Colo. er Const. Co. v. a on
judgment of conviction for assault (1976). Here, 1042, 545 P.2d 1044 we exer abuse, part authority cise this because the issue before statutory enhancement because that sentence legal significant question public is a us or more provision requires completion importance involving statutory construction on the child victim of sexual contact legality Day’s indeterminate ten attempt jury made and here the imposed. court year to life sentence the trial two, allegations one counts Interpretation ques of statutes is in assault on which subject to Du- tion of law de novo review. to ac- proceed. elected (Colo.2009). 41, 211 43 People, bois v. P.3d completed sexual quitted Day of the two statute, goal is to ascer construing In by charges, prosecu- specified the intent of the give tain effect to prosecu- tion counts one and Id. first examine the Assembly., General We prove any other incidents statutory plain language applicable sexual contact would provisions give effect. them Romanoff of conviction. See Performance, v. State Comm’n Judicial (Colo. 769, People v. 25 P.3d 778-79 (Colo.2006); 182, § 2- P.3d 188 see 126 also 2001). (2009). 4-101, language “If the C.R.S. is and the statute clear intent the General prior judge’s In contravention the trial Assembly may be discerned with reasonable statutes, a determination and the relevant necessary certainty, to resort Day, different district court sentenced statutory interpretation.” Du other rules applying abuse enhanc- bois, McKinney 211 43 v. (quoting P.3d at Day’s imposing an inde- er sentence and 508, (Colo.1990)). Kautzky, 509 801 years We terminate term ten to life. mat- conclude that the trial court erred as a B. of Sexual Abuse Sentence Pattern doing Consequently, ter of law so. Enhancement Provision court, remand, to resen- direct the trial convictions, his with- tence for child as Sexual assault on a application is a sentence en out of sexual assault proved hancer offenses provision. enhancement
HQ7 Unmistakably, Longoria, Assembly v. 862 P.2d People on a child. General also (Colo.1993). defined, statutorily As punish reoccurring intended offenders abuse is “the commission of pattern of sexual harshly greater impact more due to the re- of sexual contact two or more incidents peated incidents of sexual contact has on such are com- volving a child when offenses However, nothing child victims. plain upon the victim.” mitted an actor same applicable operates statutes (2008). 18-3-401(2.5), C.R.S. “No similarly punish attempted sexual assault date or time must application via offenders [but the] of sexual abuse ... provi- sexual abuse sentence enhancement the information indictment shall consti- Cross, sion. See *4 tute one of incidents of sexual contact (Colo.2006)(“We do not add or subtract stat- necessary pattern involving a to form a utory that legislature’s words contravene the of as defined in 18—3— sexual abuse section intent.”). obvious 18-3-405(2)(d). 401(2.5).” Although specific not elect a incident need Application C. to this Case pat- on which to of sexual contact base the In the of circumstances charge, allege tern of sexual abuse it must legal question is pattern whether the of sexu prove that defendant at committed applies al abuse enhancer least two incidents of sexual con- jury acquits underlying defendant of the sex pattern tact child victim on the same for the charge ual assault and instead finds defen apply of sexual enhancer abuse sentence dant sexual assault. We judgment of as of the trial court’s con- that as a conclude matter of law does not. Melillo, 25 viction. P.3d at 778-79. Accord- ingly, beyond find must a reasonable prosecution charged Day The with and that at doubt least presented evidence only two incidents: the of sexual on distinct incidents couch incident and the bedroom incident. same to convict the child victim defendant The found not of completed enhanc- of sexual abuse sentence prose- sexual assaults both incidents. jurors (requiring er. See id. at 779 cution did offer other unanimously determine which incidents it completed incidents of sexual contact that on). pattern charge bases its support would abuse plain language pat- conviction. With tern of sexual abuse sentence enhancement only attempts and no evidence of other 18-3-405(2)(d), provision, § refers back completed incidents of sexual contact involv- the criminal of sexual on a assault victim, the same child the trial court 18-3-405(1). child, § It is clear from this applying erred as matter of law in Assembly that the General cross-reference abuse sentence enhancer to act intended a sexual abuse to as Day’s convictions. provision a sentence enhancement of- Consequently, we distinguish this case fense of sexual Lon- assault child. See There, from decision in Melillo. goria, 269. The As- General that determined Melillo’s conviction of the sembly enacted the sentence enhancement pattern of sexual abuse sentence enhancer provision accompanying and the definition of proper was because the in- abuse in of sexual 1989. Ch. relating charge incorporat- formation to that 1-2, 18-3-401(2.5), 18-3-405(2)(c), §§ secs. ed the elements the criminal offense of 1989 Colo. Laws 903. Sess. These sections on a child assault acknowledge
were “added to
the difficulties
specific
introduced evidence of “a number of
young
distinguishing
children have
refer-
incidents
abuse that occurred over
time, namely,
recalling
ences to
years”
of two
the course
places, particularly
dates
where
charge.
H99 Here, resolving attempt. are tasked whether assault from an This was consis- may parties’ tent with the defendant be convicted sentence the trial court’s underlying of the correct of the acquittal understanding after statute that enhancer which the offense on enhancer sexual abuse sentence substantive enhancer apply would not Day be based. found guilty must attempted of completed instead acts of plain pat- Pursuant to the However, parties sexual assault. did not enhancement tern precaution fashioning take the 3—405(2)(d), provision, at- 18— form accompany- abuse verdict tempts do not instruction to contain notation that the problem conviction. The this case proceed should not pat- consider the because, finding Day guilty arose after tern of sexual abuse sentence enhancer if it attempted sexual on a child and at- had tempted sexual assault one in a assault on either counts one or two. trust, pro- nonetheless Day guilty pat- parties All to determine had ceeded two inci- of sexual abuse sentence enhancer. In dents of sexual contact were at tern issue and the so, doing interrogatories basing it answered court submitted the case to the “allegations verdict on the contained refining with- basis. Instead of the instruc- two, the couch in” counts one and and bed- tions or the abuse verdict form, very allega- incidents. are the room These the trial he said would set aside finding Day tions the when considered of sexual abuse verdict should charged, not the “one of the verdicts of attempt.” Apparently, sexual assaults. argues now *6 jury pattern was confused the of sexu- about proceeding jury that the intended to find form; may abuse instruction verdict al and Day guilty attempted of two sexual assaults mistakenly thought attempts sup- have could in counts one and but also of two com- pattern a port of sexual abuse conviction. pleted sexual in count assaults thi’ee for the
Recognizing possibility potential the of identical incidents counts one and jury confusion Accordingly, prosecution about the of sexual two. urges the us form, prosecution, verdict jury the the de- to conclude that Day the meant to find fense, judge guilty and the trial this case completed But, of two sexual assaults. during jury that, Jury the instructions conference 14 provided Instruction Nos. and 16 attempt the finding Day if returned an on that the guilty could not find or both or completed either of the couch bedroom inci- both the the dents, assaults; instead, the sentence it had to choose between apply. attempts only. enhancer would not The defense had them. The chose Under offered different sexual abuse the facts of this this choice rendered a judgment form accept. verdict the trial court not for conviction the Referring to inoperative the instructions and verdict under section 18—3— 405(2)(d). give, the trial proceeded forms court the
prosecution charges at clarified the issue in statute, Consistent with the trial courts that, by stating charged ease “I’ve the two jurors only they should instruct that if find separate acts ... an is not basis the guilty defendant two or complet- more pattern.” for ed they incidents of sexual contact should whole, proceed
Taken as a if the recoi’d demonstrates the determine defendant Melillo, unlike tried of sexual abuse as well. case and enhancing provision the trial submitted it to The sentence of section 3—405(2)(d) only on the two only applied basis can where the 18— alleged sexual were at Jury particular issue. defendant is found predicate 14 16 Instruction Nos. and the corre- under section 18- 3-405(1) verdict sponding pei’taining supports forms to counts and where the evidence distinguished completed and two least one one conclusion that at other inei- 1200 One of what I consider be the clear had occurred. of sexual contact
dent in connec- charged in the infor- two sexual assaults must be those incidents indictment, 3—405(2)(d), pattern-of-abuse charge. Al- but mation or 18— though its assertion that the found may be remaining incident or incidents inchoate rather than offenses through pre- uncharged proved of the matter alto- trial, long jurors dispose would seem at so as the unani- sented severely limit gether, majority goes on to comprise mously agree on which Melillo, Melillo, holding v. P.3d 769 abuse, 25 25 P.3d (Colo.2001), permissible regarding the meth- accomplished through appro- This can be finding forms, charging ods priate set Finally, entirely as if not con- People Kyle, 111 sexual abuse. interrogatories. See P.3d Brown, rationales, by either of these the ma- People v. vinced (Colo.App.2004); 503 (in view, jority my also reads the record (Colo.App.2002). Under justification) including prose- without does elect where any finding pat- concession that with a incident cutor’s defendant 3—405(2)(d) assault, tern of abuse under these circumstances section 18— have to be aside. I applied enhancer can still be where would set Because be- court, majority, lieve rather than requirements for non-election been (“[W]e analyzed properly at 779 find that count the defendant’s motion met. acquittal discharge three, after [the combined with non-election sufficiently jury, respectfully I I also charges ... dissent. Because struction] crime child.”). consider exercise of court’s of sexual assault jurisdiction under these circumstances to be error in occurred reversible this case manifestly inappropriate, would dismiss judge, judge, a different the trial when without opinion. Day pursuant sentenced to the matter, provision abuse enhancement and in- As an initial there been has never parties’ agreement prior contravention slightest doubt that inapplicable it was if completed, abuse consists more merely attempted, sexual assaults rather than acts of sexual child; child victim. contact with the same neither the *7 sug- nor trial court has ever Under the of this circumstances Rather, gested otherwise. defendant’s apply- trial court erred as a law in matter of acquittal motion for and the trial Day’s sentence the corresponding court’s .denial of that motion enhancer, pursuant abuse sentence to section question single charging count whether of a 18-3-405(2)(d). Consequently, we direct the permissibly can document both the court, remand, resentencé crime of sexual assault child and the convictions, application his without enhancer; whether of the en- abuse sentence count three of the information in this case statutory provision. hancement so; and whether the instruction and ver- jury dict form on that count find- evidenced III. ings requisite completed acts of make Accordingly, we our rule absolute light existing assault on a child. In of our return and this case the trial court for precedent specific charge, instruc- resentencing opinion. consistent with this tion, here, findings at issue the answer to „ questions only resounding, be a these can dissents, Justice COATS Justice “Yes.” EID join RICE and in the Justice dissent. Melillo, People In v. we addressed these COATS, dissenting.
Justice
precise questions
single charge
and found a
uphold
Rather
addressing
than
the trial court’s
and verdict sufficient to
on,
analysis head
conviction. 25
at 777-80.
inconsistent-verdicts
Melillo,
majority simply
acknowledge
in this
declines to
Just as
charged
jury’s
specific finding
pattern-of-
ease
the third count
on the
count,
committing
eonclusorily
information with
asserting
part
jury
predicated
assault on a child as
must have
abuse, identifying
attempts
in the same count
abuse verdict
rather
than on
child,
completed
the elements of sexual assault on
crimes.
The actual
victim,
specific
jury’s
time-frame over
however,
committed,
simply
which the abuse was
and the
interpreta-
does
such an
appropriate statutory
indisputably
reference. See id. at
tion. The
was
instructed
regard,
significant
779-80.
In this
that it
guilt
was to return a verdict of
on the
pattern-of-abuse
only upon
difference between Melillo and this case is
count
finding all
was,
unnecessary
the fact
as it
of the elements of two
sexual as-
specifically
predicate
addition,
identified as
offenses
saults on the same child.
In
the two sexual assaults with which
specific findings
the defen-
made
that the two inci-
separately
upon
dant was
and of which he
dents
which it
based its
was, most, implicitly acquitted.
“allegations”
abuse verdict were the
con-
tained in counts one and two of the informa-
clearly
Even more
than in
there-
counts,
course, alleged
tion. Both
com-
fore,
instruction,
charge,
verdict on
pleted acts of sexual assault rather
than
finding
count three in this case evidence a
attempts.
mere
part
sexual assault on a child committed as
of sexual abuse.
Although
Because the
returned verdicts of the
found the defendant
of com-
lesser included
of attempt
offenses
in counts
mitting
two sexual assaults
its verdict on one
they
is obvious that
did not
of abuse count but
they actually
also returned
do so because
believed the de-
attempting
verdicts of
to commit the same
fendant
complete
failed to
the criminal acts
in its
charged.
sexual assaults
verdicts on counts one with which he
was
In
information, however,
presented
ease,
and two of the
it would have
inconsistency
sepa-
obvious
patently
these verdicts
been
absurd to believe the defen-
rately
question
step
raises the
whether effect can
dant took a
touching,
substantial
toward
touch,
given
actually
to them all. As the trial court
but failed to
intimate
noted,
accurately
Frye
question.
this court
of the child in
Whether the incon-
(with
possi-
sistency
made clear that
verdicts
between the
exception
ble
verdicts for two differ-
first two counts and its verdict on the third
crimes,
logically
ent
one of which
excludes a
count
compromise,
was the result of
a desire
other)
finding
guilt
on the
leniency,
need not be
to show
or even a failure to under-
specifically required by
consistent unless
obliged
stand that
it was
to return
(Colo.1995).
statute.
verdicts of
sexual assaults rather
crimes,
Finding the actual commission of
than
attempts
mere
if it considered both to
*8
pattern-of-abuse
did in
proved,
count in
in
improper
been
the absence of
exclude,
clearly
logically
does not
inadequate findings,
instructions or
its ver-
in
necessarily implies,
fact
a determina-
dict is sacrosanct
questioned.
and cannot be
tion that
Frye,
to commit See
give to inconsistent effect Although majority un- appears
verdicts. overtly carve out an
willing overturn or recent
exception to our inconsistent-verdicts indirectly by it does so effec-
jurisprudence, authority forbidding prosecuting
tively same charging
from act of sexual individually part of a
on a child both and as abuse. majority par-
Finally, the asserts that the disregard guilt agreed to a verdict of
ties a verdict
count three also returned included offense of the lesser
either count one count two. Whatever
majority significance considers of this be, sup- believe it cannot be
assertion
ported by counsel the record. While defense
clearly differently phrased wanted judge just clearly
form and the trial indi- matter, his intent to deal with the
cated necessary, after return of should become verdicts, prosecutor agreed law, pattern
as a matter of predicated inchoate offenses.
could not be
Nothing suggests prosecu- in the record
tor that a verdict on count conceded disregarded
three under these cir- should
cumstances, remotely ap- nothing even binding
proaching stipulation occurred.
Regardless of the substitute intentions harbored, may have the effect of verdicts, charges, forms, ultimately and verdict of law for this court. matter majority’s I not consider the
Because fundamentally
analysis flawed but also fear distinguish Melillo has
substantially holding undercut of that I respectfully dissent. Because also perceive anything
fail case dis- about this
tinguishing it from the a motion for denial of acquittal following