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December 25, 2011

Colorado Supreme Court Cases Enhances Penalty for "Pattern Type" Sexual Assault Cases C.R.S. 18-3-405.3.

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A new Colorado case issued by the Supreme Court of Colorado clarifies the law in Colorado in Sexual Assault on a Child Cases where there are multiple instances of conduct constituting a pattern. The decision allows for consecutive sentences for each act notwithstanding the fact that there has been a single victim.

Colorado's sexual assault statutes authorize the possibility of greater punishments for sexual crimes against children that are committed "as a part of a pattern of sexual abuse."

Two cases, "Colorado v. Simon" and "Colorado v. Tillery" were consolidated for the Supreme Court's review in that they both involve interpretation of Section C.R.S. 18-3-405.3. The common issue presented by these cases was whether the statutory provisions and principles of double jeopardy permit only one class 3 felony conviction and sentence for a single "pattern" of abuse that comprises two or more incidents of sexual assault, or whether each separate act of sexual assault that composes a single "pattern" of abuse which may be elevated to a class 3 felony.

In "Simon," one division of the court of appeals held that section 18-3-405.3(2)(b) and double jeopardy principles prohibit the trial court from entering multiple class 3 convictions and sentences for Simon's ten counts of sexual assault on a child by one in a position of trust, where those acts composed a single pattern of abuse against one victim.

In "Tillery," a different division of the appellate court disagreed with the reasoning in "Simon." Finding no double jeopardy violation, the court upheld Tillery's class 3 convictions under 18-3-405(2)(d).

Upon review, the Supreme Court held that these statutes unambiguously allow each separately charged incident of sexual assault to be elevated to a class 3 felony, where each incident is committed as part of a pattern of sexual abuse. Furthermore, the Court held that these statutes, construed according to their plain language, do not violate the double jeopardy protection against multiple punishments under either the U.S. or the Colorado Constitution

Court Summary of the Case

December 19, 2011

No. 09SC665 - People v. Simon & No. 09SC1043 - Tillery v. People - Criminal Law - Sexual Assault on a Child, and Sexual Assault on a Child by One in a Position of Trust, as a Part of a Pattern

The supreme court holds that sections 18-3-405(2)(d) and 18-3-405.3(2)(b) unambiguously allow each separately charged incident of sexual assault on a child, or sexual assault on a child by one in a position of trust, to be elevated to a class 3 felony, where each incident is committed as part of a pattern of sexual abuse. The supreme court further holds that these statutes, construed according to their plain language, do not violate the double jeopardy protection against multiple punishments under either the U.S. or the Colorado Constitution.

The supreme court therefore reverses the court of appeals' decision in People v. Simon, Case No. 09SC665, reinstates Simon's ten class 3 felony pattern convictions and sentences, and remands to the court of appeals for consideration of the remaining issue raised by Simon on appeal. The supreme court affirms the court of appeals' decision in Tillery v. People, Case No. 09SC1043, and remands with directions to return the case to the trial court for resentencing in accordance with the court of appeals' decision.

Posted by H. Michael Steinberg | | Email This Post

August 14, 2010

South Dakota Man Arrested on Internet Luring Warrant

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Colorado Laws on Internet Luring - Sexual Exploitation - Are Being Enforced

August 2010 - A Douglas County Colorado Internet crimes investigation led to the arrest of a South Dakota man for Internet luring.

David W. Peterson, 48, was arrested Aug. 9 following a five-month Internet luring investigation that took place in the Douglas County Sheriff's Office Internet Crimes Against Children Unit. The investigation began in March when a detective from the Douglas County unit began chatting online with an adult male, later identified as Peterson. Peterson was led to believe he was sharing online conversations with a 14-year-old girl from Lone Tree. The conversations became sexual in nature and reportedly included obscene materials sent over the Internet from Peterson to the "victim."

Part of the job of the Douglas County Internet crimes unit is to troll the Internet for suspects who target minors for purposes of sexual gratification. The unit faces challenges in prosecution because Internet cases often involve multiple jurisdictions, crossing state and national boundaries, according to the sheriff's office website.

Peterson was arrested by the Pennington County Sheriff's Office, which executed an arrest warrant issued by Douglas County. Pennington County officials conducted a search of Peterson's home at the time of his arrest, resulting in possible additional charges in South Dakota, said Cocha Heyden, Douglas County Sheriff's Office public information officer.

Peterson faces multiple charges in Douglas County, including Internet luring and sexual exploitation of a child, Heyden said. Depending on the outcome of the South Dakota investigation, Peterson could face extradition to Colorado, Heyden said.

Peterson's arrest marks 2010's second arrest by the Internet crimes unit. Since the unit was established in 2000, it has made 80 arrests for Internet luring and Internet crimes against children, Heyden said.


H. Michael's Take:

These "sting" operations are growing across the country and especially in Colorado. Defending these cases requires an understanding of the complex laws governing this area and experience and specialization as a result of handling dozens of these cases combined with many years of courtroom experience in criminal law.

Sexual Exploitation is the criminal act of persuading, employing, enticing, or coercing a person to engage in sexual acts for the financial gain or sexual gratification of the offender. Although children are the primary victim of exploitation, exploitation is a crime that affects both adults and children. Exploitation charges will be brought against someone for enticing, persuading, or coercing the victim into such unlawful sexual acts as pornography/child pornography, human trafficking, and prostitution.

In Colorado, the statute governing this crime is as follows:

Internet Sexual Exploitation of a Child (18-3-405.4)

1. A person commits internet sexual exploitation of a child if a person, who is at least four years older than a child who is under fifteen years of age, knowingly importunes, invites, or entices the child through communication via a computer network or system to:

(a) Expose or touch the child's own or another person's intimate parts while communicating with the person via a computer network or system; or

(b) Observe the person's intimate parts while communicating with the person via a computer network or system.

2. It shall not be an affirmative defense to this section that the child was actually a law enforcement officer posing as a child under fifteen years of age.

3. Internet sexual exploitation of a child is a class 4 felony.

Posted by H. Michael Steinberg | | Email This Post

August 8, 2010

Federal Criminal Law - The Long Arm of Federal Criminal Sex Offenses

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Oklahoma

A Deltona woman plead guilty Wednesday to federal charges in a case that gained national attention. She allegedly traveled to Oklahoma to have sex with a 14-year-old boy she met online.

Annamay Alexander, 44, entered her guilty plea in the Oklahoma City Federal Court House. Alexander spared herself a trial by admitting during the hearing that she drove to the Oklahoma City area January 9th to have sex with the boy. According to her arrest report she met the boy through an online Sony PlayStation 3 virtual-reality game.

Alexander was arrested in Texas in April, several weeks after authorities issued a warrant for her arrest. She has three children of her own close in age to the boy she was accused of having sex with.

The case started after Alexander drove from Florida to Oklahoma to meet the boy. The boy ran off with Annamay and his mother found him missing during the night. She confronted the pair when they returned to the boys home the next morning. Alexander reportedly told the boys mother she had traveled from Florida to meet the boy who had married her 9-year-old daughter.

During their investigation police found Alexander had sent sexually suggestive texts to the boy along with engaging in sexting with the boy by sending nude photo's of herself to him. Authorities also found a picture of Alexander stored in the boy's PlayStation console of her in her underwear.

In many of the text messages she sent to him Annamay used the boys last name when addressing herself and told him several times she was his wife.

Annamay Alexander faces up to 30 years in Federal prison when she is sentenced.

H. Michael's Take:

This case points up the extreme reach of federal sex offender criminal offender laws. These laws allow the federal government - acting through the US Department of Justice -- to charge individuals who comitt crimes between states...

Federal Sex Crimes include:

Federal sexual offense include:

Selling or buying of children (Section 2251A(a)(b))

Certain activities relating to material involving the sexual exploitation of minors, including both distribution and receipt of visual depictions in books, magazines, periodicals, films, and videotapes (Section 2252)

Certain activities relating to material constituting or containing child pornography (Section 2252A)

Production of sexually explicit depictions of a minor for importation into the United States (Section 2260)

Transporting an individual in interstate or foreign commerce with the intent that the individual engage in prostitution or other illegal sexual activity (Section 2421)

Transportation of minors in interstate or foreign commerce, with intent to engage in criminal sexual activity (Section 2423(a))

Interstate or foreign travel with intent to engage in a sexual act with a juvenile (Section 2423(b))

Use of interstate facilities to transmit information about an individual under the age of 16, with "the intent to entice, encourage, offer, or solicit that minor to engage in any sexual activity that can be charged as a criminal offense." (Section 2425)


Posted by H. Michael Steinberg | | Email This Post

July 31, 2010

Colorado Official Waives Extradition in Internet Sexual Exploitation Case

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July 22--TROY New York-- A state emergency management official wanted in Colorado on Internet sex charges agreed Wednesday to return to that state to face the charges.

Timothy Riecker, 32, of Schodack, accused of using the Internet to develop a relationship with someone he thought was an underage girl, was sought by officials for more than a week when he was arrested Friday. He later checked into Albany Medical Center Hospital for psychiatric evaluation and was arrested Monday upon his release.

"You say you intend to waive extradition?" Rensselaer County Judge Andrew Ceresia asked Riecker on Wednesday morning.

"Yes sir," the man said, flanked by his local attorney, David Brickman.

Riecker then signed extradition paperwork and was sent back to the Rensselaer County Jail to await arrival of authorities from Golden, Colo., who will take him back to that state for arraignment.

Riecker, chief of training and exercises at the New York Office of Emergency Management, has been suspended without pay from his $74,000-a-year position, said SEMO spokesman Dennis Michalski.

Last week, State Police issued a statement saying authorities were looking for Riecker, who was reported to be despondent and threatening to harm himself.

Officials in Jefferson County, Colo., had issued a warrant more than a week ago for his arrest on charges of Internet sexual exploitation of a child.

Riecker allegedly developed a six-month relationship on the Internet with undercover investigator who posed as an underage girl, said Pam Russell, spokeswoman for District Attorney Scott Storey in Golden.

Colorado officials said Riecker repeatedly asked for nude photos and once exposed himself and performed a sex act before a Web camera.

When Riecker was contacted by the Jefferson County DA's office about the allegations, he said "it was a bad decision" and "I can promise you it won't happen again," Russell said.

Riecker faces one count each of Internet sexual exploitation of a child and attempted sexual exploitation of a child, Russell said.

Colorado authorities were uncertain when they will travel here to pick up Riecker.

H. Michael's Take

These internet "sting" cases are the result of police officers, men and women, trolling the chat rooms for individuals seeking to meet others. These officers often enter adult chat rooms, hook their prey and reel them in ... The entrapment defense can be raised in these cases (see my page on entrapment law) however these cases -- by their very nature-- are set up to prove in court.

The recent rash of Internet stings in Colorado, conducted by various police departments, introduces a trap - otherwise known as a young girl looking for company - in a chatroom, and lures the unsuspecting young males into a personal meeting with the provocative assumedly 14-year old girl after several hours over many days of chatting online.

The undercover agent is most often a seasoned male or female police officer. The tone of the conversation is nothing short of "enticing erotica."

In my 26 years as a Colorado Criminal Law attorney, I've never seen methods quite like this used before. All potential defenses to the charges, including entrapment and outrageous government conduct.

Who Gets Stung?

Studies show that the majority of arrests resulting from Internet stings fashioned in a manner similar to those being conducted in Colorado are of white thirty-something year old home-owning males with incomes of at least $73,000 per year.

Interestingly enough that is the exact same profile of the most frequent user of the Internet and the source of the majority of Internet commerce.

If you have been arrested for an Internet sex crime or you believe you may be under investigation by the police for an Internet sex crime, get immediate legal help. Contact us your freedom may be at stake.

The penalties for any sex crime are severe, especially if you must register as a sex offender for the rest of your life. But the personal costs of an Internet sex crimes charge can be just as serious as the criminal costs. It is embarrassing and harmful to family and marriage. If your job requires professional licensure, a security clearance, or involves children, you may lose your job. You may not be allowed to live within a certain distance of a daycare, playground, or school. Even high school kids can be convicted of Internet sex crimes and placed on the sex offender registry.

At The Steinberg Colorado Criminal Defense Lw Firm we understand how difficult and stressful this is. We tackle your case aggressively but with discretion and sensitivity. Our goal is to minimize the negative consequences of the Internet sex crime charge or conviction and to get the best possible outcome, given the facts of your case.


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Posted by H. Michael Steinberg | | Email This Post

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