v. Bott
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ADVANCE SHEET HEADNOTE
December 14, 2020
2020 CO 86
No. 19SC599, People v. Bott—Criminal Law—Double Jeopardy—Unit of Prosecution—Statutes.
The People petitioned for review of the court of appeals’ judgment vacating eleven of Bott‘s twelve convictions for sexual exploitation of a child by possession of sexually exploitative material. See People v. Bott, 2019 COA 100, __ P.3d __ (Colo. App. 2019). In reliance on language from the statute‘s legislative declaration and court of appeals’ decisional law predating current amendments to the statute, the trial court denied Bott‘s motion to dismiss all but one of these exploitation counts as multiplicitous, finding that the legislature intended to permit conviction for each single incident of victimization. The court of appeals disagreed, finding instead that the applicable unit of prosecution was determined by the legislature when it chose to amend the statute to designate the act of possessing more than twenty different items qualifying as sexually exploitative material a class 4 felony. Accordingly, the court of appeals held Bott‘s conviction of multiple class 4 felonies for possessing separate items numbering multiple times greater than twenty violated his constitutional protection against being subjected to jeopardy more than once for the same crime.
The supreme court affirms, holding that the language of
Attorneys for Petitioner:
Philip J. Weiser, Attorney General
William G. Kozeliski, Senior Assistant Attorney General
Denver, Colorado
Attorneys for Respondent:
Megan A. Ring, Public Defender
Mark Evans, Deputy Public Defender
Denver, Colorado
¶1 The People petitioned for review of the court of appeals’ judgment vacating eleven of Bott‘s twelve convictions for sexual exploitation of a child by possession of sexually exploitative material. See People v. Bott, 2019 COA 100, __ P.3d __ (Colo. App. 2019). In reliance on language from the statute‘s legislative declaration and court of appeals’ decisional law predating current amendments to the statute, the trial court denied Bott‘s motion to dismiss all but one of these exploitation counts as multiplicitous, finding that the legislature intended to permit conviction for each single incident of victimization. The court of appeals disagreed, finding instead that the applicable unit of prosecution was determined by the legislature when it chose to amend the statute to designate the act of possessing more than twenty different items qualifying as sexually exploitative material a class 4 felony. Accordingly, the court of appeals held Bott‘s conviction of multiple class 4 felonies for possessing separate items numbering multiple times greater than twenty violated his constitutional protection against being subjected to jeopardy more than once for the same crime.
¶2 Because the language of
I.
¶3 Joshua Christian Bott was charged with five counts of sexual assault on a child, three counts of sexual exploitation of a child (distribution), and twelve counts of sexual exploitation of a child (possession of more than twenty items). He was convicted of all charges and was sentenced to terms of eight years to life on each count of sexual assault, to run consecutively; twelve years for distribution;
¶4 As relevant to the issue before this court, evidence at trial indicated that during a search of the defendant‘s home, the police seized a memory card containing some 294 sexually exploitative images of children. The images depicted at least 250 different victims, including some infants. With regard to the charges of sexual exploitation of a child by possession of sexually exploitative material, the prosecution grouped the images into twelve separate bundles, each containing more than twenty images, and charged the defendant with the class 4 felony of possessing more than twenty different items qualifying as sexually exploitative material, as proscribed at
¶5 Both before and during trial, the defendant moved to dismiss eleven of the twelve charges on grounds that possession of more than twenty qualifying items constituted a single offense, for which he could not be convicted and punished more than once. The district court denied the motions, finding that the statute proscribed as a separate offense “each single incident of victimization.” On appeal, the intermediate appellate court reversed the defendant‘s convictions for sexual assault on a child, for the separate reason that the prosecution failed to produce sufficient evidence of those charges. It also vacated eleven of the defendant‘s twelve convictions for possessing sexually exploitative materials, finding that the statute proscribes an act of possession, which was evidenced in this case by the defendant‘s possession of a memory card containing more than twenty qualifying items. The defendant did not appeal his convictions and sentences for sexual exploitation of a child (distribution).
¶6 We granted the People‘s petition for a writ of certiorari solely on the question whether the court of appeals erred in vacating eleven of the defendant‘s convictions for sexual exploitation of a child, as a violation of the constitutional bar to his being placed in jeopardy more than once for the same offense.
II.
¶7 The double jeopardy clauses of both the federal and state constitutions protect individuals not only from prosecution after either an acquittal or conviction of the same offense, but also from being subjected to multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 795 (1989). Although the Supreme Court has clarified this articulation of the constitutional protection—specifying that with respect to cumulative sentences imposed at a single proceeding, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended, Missouri v. Hunter, 459 U.S. 359, 366-69 (1983); see Whalen v. United States, 445 U.S. 684, 691–92 (1980); see also Lewis v. People, 261 P.3d 480, 481 (Colo. 2011) (summarizing this court‘s jurisprudence acknowledging this clarification and accepting it as the correct interpretation of the state constitutional jeopardy provision as well)—it nevertheless remains the case that unless the General Assembly makes clear its intent to punish the same offense with more than one conviction and sentence, it is not constitutionally permitted to do so, see Hunter, 459 U.S. at 368–69; Boulies v. People, 770 P.2d 1274, 1278–79 (Colo. 1989).
¶8 Subject to constitutional limitations, it is, however, the prerogative of the legislature to define crimes and prescribe punishments. Sanabria v. United States, 437 U.S. 54, 69-70 (1978); Woellhaf v. People, 105 P.3d 209, 215-20 (Colo. 2005); Martinez v. People, 69 P.3d 1029, 1031 (Colo. 2003). Because any particular criminal proscription can be violated more than once and often in more than one way, it is similarly for the legislature to determine the breadth of the conduct it intends to be punished as a single crime or single violation of its criminal proscription. Although not specifically defining the term, the Supreme Court, in cases involving more than one violation
¶9 Further, the Court has expressly held that “once Congress has defined a statutory offense by its prescription of the ‘allowable unit of prosecution’ . . . that prescription determines the scope of protection afforded by a prior conviction or acquittal.” Sanabria, 437 U.S. at 70 (citations omitted). This court has followed suit by similarly characterizing the “unit of prosecution” as the manner in which a criminal statute permits a defendant‘s conduct to be divided into discrete acts for purposes of prosecuting multiple offenses, Woellhaf, 105 P.3d at 215, and by holding that once the General Assembly prescribes the unit of prosecution, that prescription determines the scope of protection offered by the Double Jeopardy Clause, id.; People v. Williams, 651 P.2d 899, 903 (Colo. 1982).
¶10 It is the legislature‘s choice to treat a course of conduct, or various acts that it considers to be related in time, nature, or purpose (or in any other way) as one or as more than one offense. See Williams, 651 P.2d at 903 (citing Sanabria, 437 U.S. at 69-70). For a host of reasons, including not only its assessment of the appropriateness of multiple punishments but also the practical consequences of requiring that similar or related acts be distinguishable, the legislature may very well choose to define a series of acts, related along a continuum of conduct or motivated by a single objective, for example, as a single crime. Abiodun, 111 P.3d at 465; e.g., Prince v. United States, 352 U.S. 322, 328 (1957) (explaining that it is Congress‘s prerogative to proscribe the robbing of a federal bank and merely entering with the intent to rob it, as the same crime).
¶11 Where the General Assembly proscribes conduct in different provisions of the penal code and identifies each provision with a different title, its intent to establish more than one offense is generally clear. Unless all the elements of a separately designated offense are a subset of another, and therefore the one is considered the same as, or included within, the other, see Blockburger v. United States, 284 U.S. 299, 304 (1932); Reyna-Abarca v. People, 2017 CO 15, ¶ 64, 390 P.3d 816, 826, a legislative intent to permit separate punishments for each can be presumed, see Albernaz v. United States, 450 U.S. 333, 341-42 (1981). Where, however, a number of acts are joined as a disjunctive series in a single criminal proscription, whether the legislature intends to allow separate convictions and sentences for each enumerated act is not so readily apparent and must be ascertained, if at all, from the language and organization of the statute itself or through the use of various aids to statutory construction. Abiodun, 111 P.3d at 466.
¶12 The crime defined at
¶13
¶14 Although “possession” is now widely accepted as a proper basis for a crime, at least to the extent that the possessed item was knowingly received or consciously retained after sufficient time to have given up control of it, as a criminal act, or actus reus, it is clearly different in nature from other discrete, voluntary acts. See generally Wayne R. LaFave, 1 Substantive Criminal Law, § 6.1(e) (3rd ed. 2020); Model Penal Code § 2.01 (Am. Law Inst., Proposed Official Draft 1962); Model Penal Code Commentaries, Part I, Vol. 1, 214, 224 (1985). Because possession, as that term is ordinarily understood, continues until the possessor is divested of control of the possessed item, it is more in the nature of a condition than a discrete act, or at least has more in common with a course of conduct or a series of acts related along a continuum of conduct. Factors we have previously identified as determining whether conduct supporting one commission of a particular offense is factually distinct from conduct supporting a second or subsequent commission of that offense, like temporal and spatial proximity and the presence of intervening events or volitional departures, see Schneider v. People, 2016 CO 70, ¶ 14, 382 P.3d 835, 839; Woellhaf, 105 P.3d at 219, are therefore less applicable to offenses of possession. Rather, the intended scope of a single offense of possession is typically determined by considerations involving the nature of the thing or quantity of things simultaneously possessed, how or where or when they were acquired or controlled, the length of time they have been possessed, or the purpose or intended use for which they were possessed. See LaFave, § 6.1(e) n.50 (“[B]ut when the crime is possession with certain intention, one uninterrupted possession may become multiple crimes because of a change in the defendant‘s intention.“).
¶15 By contrast with the definition of the offense itself in
¶16 In the past, we have found that by classifying as a single felony the commission of a number of crimes under statutorily specified circumstances, the legislature not only permits, but in fact requires, all such crimes to be joined and prosecuted as a single felony. See, e.g., Roberts v. People, 203 P.3d 513, 516 (Colo. 2009) (“When a person commits theft twice or more within a period of six months . . . it is a class . . . felony.” (quoting
¶17 Because a statute takes its meaning from the language chosen for it by the legislature, as long as that language is unambiguous and does not conflict with other statutory provisions, the legislative intent, and therefore the meaning of the statute, is clear without reference to other interpretative aids. See People v. Jones, 2015 CO 20, ¶ 10, 346 P.3d 44, 48; Pham v. State Farm Auto. Ins. Co., 2013 CO 17, ¶ 13, 296 P.3d 1038, 1043. A declaration of legislative intent or purpose attached to a proscriptive enactment can never be in conflict with that enactment because it merely provides an explanation, in the form of legislative history, of its goals and reasons for choosing to legislate as it has. While such a declaration of legislative purpose may be helpful in resolving existing ambiguity, it cannot create ambiguity in or conflict with an otherwise unambiguous proscriptive statute. See People in Int. of T.B., 2019 CO 53, ¶ 33, 445 P.3d 1049, 1056 (“[The] additional legislative declaration in subsection (1.5) likewise does not narrow or otherwise modify the actual elements of the offense of sexual exploitation of a child found in subsection (3) of the statute or its associated definitional provisions in subsection (2).“).
¶18 In any event, the legislative declaration of purpose included in the broader statute creating the crime of sexual exploitation of a child in no way suggests that the language chosen to accomplish the legislature‘s purpose was inadequate or inadvertent. The categorization of possession pursuant to
¶19 In Marsh v. People, 2017 CO 10M, ¶¶ 22-23, 389 P.3d 100, 105–06, this court found the term “possession” itself to be ambiguous, at least with regard to images conveyed over the internet, and therefore considered extrinsic aids in resolving the case before it. No question concerning either the possession or number of images of individual children appearing on the memory card in question has been raised before this court. Similarly, because the items as to which separate conviction and punishment at issue here were all found on a single memory card possessed or controlled by the defendant, we need not determine whether possession pursuant to
III.
¶20 Because the language of
Notes
Possesses or controls any sexually exploitative material for any purpose; except that this subsection (3)(b.5) does not apply to law enforcement personnel, defense counsel personnel, or court personnel in the performance of their official duties, nor does it apply to physicians, psychologists, therapists, or social workers, so long as such persons are licensed in the state of Colorado and the persons possess such materials in the course of a bona fide treatment or evaluation program at the treatment or evaluation site.