H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
Published on:

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

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.