Lead Opinion
Opinion by
¶ 1 Williаm Edward Johnson was convicted of various offenses related to the sexual assault of his stepdaughter. On appeal, he contends that there was insufficient evidence to support an enhancement for committing a pattern of sexual abuse. He also argues that the trial court erred in denying his request for substitute counsel and in giving the jury unfettered access to recorded testimonial evidence.
¶ 2 We agree with Mr. Johnson’s first contention and vacate his conviction for sexual assault as a рattern of sexual abuse. But we reject his other contentions and affirm his remaining convictions.
¶ 3 Mr. Johnson was arrested after a domestic disturbance. Shortly after his arrest, his stepdaughter, R.B., reported that Mr. Johnson had anally raped her earlier that day, and that he had been sexually abusing her for many years. Mr, Johnson was subsequently charged with sexual assault on . a child by one in a position of trust, aggravated incest, two counts of sexual assault on a child (one of which was dismissed before trial), and a sentence enhancer for committing sexual assault as a pattern of sexual abuse.
¶ 4 R.B. and Mr. Johnson were separately interviewed by the same detective. R.B. recited numerous instances of inappropriate touching and attempted penetration, including an allegation that Mr. Johnson had rubbed his penis against her while she was sleeping in bed with him and her mother.
¶ 5 During his interview, Mr. Johnson was confronted with, and denied, all of R.B.’s allegations. He told the detective that R.B. was overly-eurious about sex and had exhibited sexual behavior problems for a number of years,- which Mr. Johnson attributed to R.B.’s early exposure to sexually explicit materials by a cousin. Mr. Johnson explained that, after an incident in which R.B. had come into the- bedroom while he and her mother were having séx; R.B. would frequently climb on top of Mr. Johnson and “grind” her hips against him until he pushed her off. Mr. Johnson described an incident in which he was asleep, R.B. was grinding on him, and he woke up while he was ejaculating.
¶ 6 At trial, the prosecution presented the recorded interviews and also called R.B. as a witness. R.B. did not describe any incident involving grinding in either her testimony or the forensic interview.
¶ 7 The verdict form for the pattern of sexual abuse sentence enhancer included a special interrogatory listing alleged incidents of sexual abuse. If the jury found that Mr. Johnson had committed.at least two of the enumerated incidents of -abuse, it could convict him of the sentence enhancer. During its deliberations, the jury sent a question to the court asking if it could rely on an incident not listed in. the special interrоgatory. The court replied that it could and instructed the jury to write the unlisted incident on the verdict form.
¶ 8 The jury convicted Mr. Johnson of the pattern of abuse sentence enhancer, finding that he committed the anal rape, but none of the other listed incidents. For the required second incident, the jury wrote in: “The incident where the defendant admitted in his audio inteiwiew with [the detective] that he ejaculated while [R.B.] was sitting on top of him grinding.” The jury convicted Mr. Johnson on álí other counts. .
¶ 9 At sentencing, the trial court merged all of the other convictions into the conviction for sexual assault on a child as a pattern of sexual abuse and sentenced.Mr. Johnson to twenty years to life in prison.
II. Insufficient Evidence
¶ 10 Mr. Johnson contends that there was insufficient evidence to convict him of the pattern of sexual abuse sentence enhancer, and that his conviction on this .count should be vacated. We agree.
¶ 11 To be convicted of the pattern of sexual abuse sentence enhancer, in addition to the predicate offеnse of sexual assault on a child, “the jury must find beyond a reasonable doubt that the defendant completed at least two distinct incidents of sexual contact on the same child victim.” People v. Day,
the knowing touching of the victim’s intimate parts by the actor, or of the actor’s intimate parts by the victim, or the knowing touching of the clothing covering the immediate area of the yictim’s or actor’s intimate-parts if that, sexual contact is for the purposes of sexual аrousal, gratification, or abuse.
§ 18-3-401(4).
¶ 12 The jury must unanimously determine the incidents on which it bases its pattern bf sexual abuse verdict.' People v. Melillo,
¶ 13 When the jury returned its verdict, it found Mr. Johnson guilty of the pattern of sexual abuse sentence enhancer based on two incidents—one that was listed in the special interrogatory, and one that the jury wrote in. By not checking the other boxes on the special interrogatory, the jury explicitly rejected R.B.’s six other allegations оf sexual abuse. Mr. Johnson challenges only the sufficiency of the evidence for the unlisted incident.
¶ 14 He first contends that the court erred in allowing the jury to identify an incident of sexual abuse not listed in the special interrogatory. He argues that the jury was bound to the specifically identified incidents, and since it only found him guilty of one identified incident, there was insufficient evidence to support his conviction of a pattern of sexual abuse. We disagree.
¶ 15 The prosecution need not elect specific incidents of sexual contact to convict a defendant of the pattern of sexual abuse sentence enhancer. Melillo,
¶ 16 Mr. Johnson next contends that even if the jury could rely on the unlisted incident, there was insufficient evidence to support his conviction of a pattern of: sexual abuse. We review the record de novo to determine if the evidence was sufficient to support a conviction. Dempsey v. People,
¶ 17 The only evidence supporting this incident of sexual contact was Mr. Johnson’s audiotaped interview with the dеtective. During the interview, the detective asked Mr. Johnson about allegations that R.B. came into Mr. Johnson’s bed and made him ejaculate by “grinding” on him. Mr. Johnson then described an incident in which: (1) he was sleeping; (2) while he was sleeping, R.B. sat on top of him; (3) R.B. began grinding on him; (4) when he woke up, he immediately pushed her off; (5) but he was already ejaculating.- Mr. Johnson was unequivocal that R.B. initiated the contact while he was asleep and, once he woke up, he immediately ended the contact.
¶ 18 Under Colorado law, “[t]hе minimum requirement for the imposition of criminal liability is that the criminal act be performed voluntarily or consciously.’’ People v. Marcy,
¶ 19 The People contend that this is merely Mr. Johnson’s side of the story, and that the jury was free to reject this testimony in favor of R.B.’s. However, R.B. never testified, either in court or in her recorded interview, to any similar incident. Thus, this particular story did not have two sides.
¶ 20 The People suggest that in identifying the second incident of sexual contact, the jury credited R.B.’s testimony that Mr. Johnson would “rub his thing against” her while they were lying in bed. In R.B.’s forensic interview, she described occasions when: (1) she was asleep; (2) Mr. Johnson would rub his penis against her buttocks and/or anus or pubes and/or genitalia; (3) and he would sometimes attempt penetration; but (4) he would stop when he became aware that R.B. was awake. The only commonality between R.B.’s testimony and the incident specifically referenced by the jury is that something happened in bed. Aside from the location, there are no parallels between Mr. Johnson’s and R.B.’s descriptions. In the incidents recounted by R.B., she was neither sitting on top of Mr. Johnson nor “grinding” on him. And there is no mention of ejaculation. But the jury specifically referenced the conduct Mr. Johnson “admitted”—that “he ejaculated while [R.B.] was sitting on top of him grinding.” There is simply no connection between the allegations that Mr. Johnson would inappropriately “rub” R.B. while lying in bed and the incidеnt that the jury described, based on Mr. Johnson’s admission, as R.B. “sitting on top of [Mr. Johnson] grinding.”
¶21 Thus, the issue is not, as the People argue, that the jury simply credited R.B.’s side of the story over Mr. Johnson’s. Of course, under those circumstances, the resolution of inconsistent testimony and the determination of credibility are solely within the province of the jury. People v. Duncan,
¶ 22 To be sure, a jury is free to accept parts of a witness’s testimony and reject others. People v. Mendozar-Balderama,
¶ 23 Because there is no evidence that Mr. Johnson was awake during this incident, he could not have knowingly touched R.B. and could not have had sexual contact with her. Therefore, only one of the two incidents of sexual contact found by the jury was sup
¶ 24 The People contend that a remand for resentencing is unnecessary under People v. Torrez,
¶ 25 The People further contend that even if the case is remanded, Mr. Johnson could fare even worse after resentencing because his other сonvictions would no longer merge, rendering his appeal moot. An appeal is not moot if an appellate court can grant some relief. People v. Chipman,
¶ 26 We therefore vacate Mr. Johnson’s conviction of pattern оf sexual abuse and remand to the trial court for resentencing on the convictions of sexual assault on a child by one in a position of trust, aggravated incest, and sexual assault on a child.
III. Substitute Counsel
¶ 27 Mi*. Johnson contends that the trial court erred in denying his request for substitute counsel in violation of his Sixth Amendment right to counsel. We disagree.
¶ 28 More than six months before trial, Mr. Johnson filed a motion, for substitute counsel.
¶ 29 We review the tidal court’s denial of an indigent defendant’s request'for substitute counsel for an abuse of discretion. People v. Garcia,
¶ 31 Although the Sixth Amendment guarantees a defendant’s fundamental right to counsel, this guarantees only competent representation. People v. Arguello,
¶ 32 Mr. Johnson contends that he was entitled to substitute counsel because there was “a total breakdown in communication” between him and his appointed аttorney. Mere communication difficulties, however, do not demonstrate a complete breakdown in communication, especially at an early stage of the case. See People v. Thornton,
’ ¶ 33 Moreover, Mr. Johnson’s complaint that he had not yet seen much of the discovery does not establish good cause for substitute counsel, particularly because Mr. Johnson admitted that he had seen the prosecution’s main evidence—the videotaped interview of R.B. See People v. Krueger,
¶34 Mr. Johnson also contends that he was entitled to new counsel because his attorney failed to pursue discovery and adequately investigate the case. His claims, however, are irrelevant, as all of the alleged failures to investigate occurred well after Mr. Johnson requested substitute counsel. If Mr. Johnson believed that this failure to investigate was grounds for substitute counsel, he should have renewed his request at that time.
IV. Jury Access to Recorded Interviews
¶35 Relying on DeBella v. People,
¶ 37 In DeBella, the supreme court concluded that the trial court abused its discretion by leaving a TV monitor and the victim’s videotaped interview with the jury and failing to supervise its use by thе jury. The problem, the supreme court explained, was that the trial court thought it lacked authority to limit the jury’s access to the videotape and therefore failed to exercise its discretion in determining whether, and under what circumstances, to allow the jury to access the exhibit.
¶ 38 Mr. Johnson contends that the same error occurred here—the district court failed to exercise its discretion and, as a result, the jury had unfettered access to R.B.’s interview. We disagree.
¶ 39 Unlike the trial court in DeBella, the district court here understood its authority, and obligation, to consider whether imposition of certain restrictions on the jury’s access to the video was necessary to guard against undue prejudice. And, indeed, the district court chose to exercise its discretion to impose certain restrictions: after hearing from both parties, the court ordered that the jury could access the videotape only upon a request to the bailiff (it is not clear whether the bailiff would also supervise the jury’s viewing of the video) and, if such request werе made, the jury was required to watch the video all the way through, to avoid emphasis on any one portion of the interview. Mr. Johnson, we should note, did not request any additional -restrictions.
¶40 We cannot say that the trial court abused its discretion in allowing the jury access under these conditions. See Frasco,
¶ 41 Our conclusion that the district court properly exercised its discretion disposes of the controversy bеtween the parties regarding whether the jurors actually viewed the videotape. Mr. Johnson’s claim is that the court erred by failing to exercise its discretion in placing limitations on the jury’s access to the videotape. We have determined that it did not err, which renders the question of whether the tape was actually viewed irrelevant,
V. Conclusion
¶ 42 We vacate Mr. Johnson’s conviction of the pattern of sexual abuse sentence enhancer, and we affirm his convictions of sexual assault on a child by onе in a position of trust, aggravated incest, and sexual assault on a child. We remand for resentencing on these counts.
Notes
. While the People contend that the difference between the special interrogatory and the incident identified by the jury is a simple variance, which would not require reversal, we find no variance at all. A variance describes a difference between "the offense in the charging instrument and the offense of which a defendant is convicted.” People v. Huynh,
. Although stylеd as an ineffective assistance of counsel claim, Mr. Johnson's motion requested that new counsel be appointed, and the district court treated the motion as a request for substitute counsel.
. Mr. Johnson also argues that the district court erred in giving the jury unsupervised access to his own taped interview. Divisions of this court, however, have held that the jury may have unrestricted access to the defendant's statement. See, e.g., People-v. Carter,
Concurrence Opinion
specially concurring.
¶ 43 I concur in the majority’s opinion but write separately to explain why I believe defendant’s conviction on the pattern count cannot stand.
1144 The conviction on the pattern count stands or falls ■ on defendant’s testimony about the- “sleeping” incident. Unless that testimony alone established commission of a sexual assault, there is no basis for the jury’s finding of a pattern bеcause, as the majority points out, there is no other evidence relating to that incident.
¶ 45 In People v. LaRosa,
¶ 46 I agree with the majority that there is no independent evidence that would satisfy either of the first two alternatives. And though it may be that the circumstances of defendant’s testimony render it reliable, the problem with relying on defendant’s testimony is that it does not amount to a confession of a crime.
¶ 47 The People try to get around this problem by arguing that the jury could have believed all of defendant’s testimony except the part where he said he was asleep. It is true that a jury is free to believe only part of a witness’s testimony. See People v. Mendoza-Balderama,
¶ 48 In short, for a criminal conviction to be based entirely on a defendant’s statements, those statements must amount to a confession of a crime. It is not enough that the statements would establish some, but not all, elements of an offense. Therefore, defendant is entitled to a judgment of acquittal on the pattern charge.