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First – Here is a Brief Review of How a Felony Criminal Case in Colorado Proceeds in the Colorado Courts:

  • An arrest is made (an arrest warrant or a summons is issued).

  • The person is charged.

  • There is an advisement/bond return hearing (what happened in People v. Bryant on Aug. 6, 2003). This is where the person is advised of what charges, if any, have been filed.

  • Preliminary hearing (will happen Oct. 9). The District Attorney has to produce enough evidence for the judge to determine probable cause to believe a crime has been committed and probable cause to believe the defendant has committed it. This hearing is for the purpose of determining whether enough evidence exists to proceed to trial. The court merely decides whether there is evidence which could support a conviction. During this hearing, the court does not weigh the credibility or believability of the witnesses and must view the evidence in the light most favorable to the prosecution. Hearsay evidence is allowed at such hearings and the defense has a very limited ability to call witnesses. If a determination of probable cause is found, the case will be sent to district court.

  • An arraignment is where the Defendant enters a plea of guilty or not guilty. If a plea bargain has been reached, it is often entered into at this time and a date for sentencing is set. If not, future court dates are then scheduled which may include motions dates (where legal arguments are made concerning various aspects of the case), subpoena return dates (where documents are given to the court to review), pretrial conferences (where the parties and the court assess whether the case will be proceeding to trial) and to handle any pretrial procedural matters and the trial.

  • A Motion hearings; this is an evidentiary hearing for the judge to determine various legal and evidentiary issues in a case

  • A felony jury trial will have 12 people on the jury and maybe an alternate or alternates. The verdict must be unanimous. The Defendant has a right to a speedy trial within 6 months from the date of entry of a not guilty plea (the arraignment). The Defendant may waive that right. The Prosecution has the burden of proving the case beyond a reasonable doubt.

    Colorado Law regarding sexual assault is found in the Colorado Revised Statutes,
    C.R.S. 18-3-402.

  • C.R.S. 18-3-402 prohibits sexual assault.

    The following comes from the Boulder County Bar Association Media Guide:

    The statute provides that a person commits sexual assault if the person knowingly inflicts sexual intrusion or penetration on a victim if

    a) the person causes the victim to submit by means of sufficient consequence reasonably calculated to cause submission against the victim’s will or

    b) the person knows that the victim is incapable of appraising what the perpetrator is doing or

    c) the person knows that the victim erroneously believes the person is the victim’s spouse or

    d) at the time of the commission of the act the victim is less than 15 and the person is at least 4 years older than the victim and is not the spouse of the victim or

    e) at the time of the commission of the act the victim is at least 15 but less than 17 or

    f) the person has authority over the victim and uses his position of authority to coerce the victim or

    g) the person while purporting to offer some medical service engages in some sort of treatment or examination for some other reason than a bona fide medical purpose.

    The statute goes on to provide various levels of punishment. Section e is a class one misdemeanor. Sexual assault is a class three felony if any one or more of the following circumstances exist, a) the person causes submission of the victim by the actual application of physical force or b) the person causes submission of the victim by threat of imminent death or serious bodily injury or c) the person causes submission by threatening retaliation that the victim reasonably believes the person can execute or d) the person has substantially impaired the victim’s power to understand or control the person’s conduct by using drugs or other means or e) the victim is physically helpless and the person knows the victim is physically helpless and has not consented or f) the sexual assault of the person is physically aided or abetted by one or more other persons or g) bodily injury, or by a deadly weapon or a simulate deadly weapon and uses that to cause the submission of the victim.

    Sexual intrusion is defined by any intrusion, however slight, by any object or any part of person’s body except the mouth, tongue or penis into the genital or anal opening of another person’s body if that sexual intrusion can reasonably be construed as being for the purpose of simple arousal, gratification, or abuse. Sexual penetration means sexual intercourse, cunnilingus, fellatio, analingus or anal intercourse. Consent means cooperation in the acts or attitudes pursuant to the exercise of free will and with knowledge of the nature of the act. One is a position of trust includes parents, anyone acting in the place of parents and charged with the parent’s rights and duties, anyone charged with the health, education and welfare of and supervision of a child.

    Charges and the definitions under Colorado law:

    Sexual Assault – OVERCOME VICTIM’S WILL Class 3 Felony C.R.S. § 18-3-402(1) and (4)(a)

    Legal Definition of Sexual Assault:

    “Any actor who knowingly inflicts sexual intrusion or sexual penetrationon a victim commits sexual assault if: 1(a) The actor causes submission of thevictim by means of sufficient consequence reasonably calculated to cause submissionagainst the victim’s will AND 4(a) actor causes submission of the victim throughthe actual application of physical force.”

    Can He Be Sentenced to Probation?
    Yes.

    What Would The Term of Probation Be?

    20 Years to Life.

    What Type of Probation?

    Intensive Sex Offender Probation. See Chart Entitled “Sex Offender Probationary Terms”

    If Rigorous Terms of Probation Violated, What is Potential Consequence?
    Four years to Life in prison. (4 to Life)

    Can He Be Sentenced to Prison?

    Yes. (It is possible, but not mandatory).

    If Sentenced to Prison, What will the Term Be?
    Four to Life in prison (4 to Life)

    If Sentenced To and released From Prison, What is Term of Parole?
    20 years to Life (20 to Life).

    Registration As A Sex Offender?
    Yes. For Life.

    Lesser Charges

    The following are two lesser charges that a jury could return with — if they decide Mr. Bryant is guilty, but not of a class three felony sexual assault.

    Unlawful Sexual Contact Class 4 Felony C.R.S. § 18-3-404(2) and (3)

    Legal Definition:
    “Any actor who knowingly subjects a victim to any sexual contact commitsunlawful sexual contact if . . . the actor knows that the victim does not consent. . .” and . . . “the actor compels the victim to submit by use offorce, intimidation or threat . . .”

    Can He Go to Prison?

    Yes.

    Is Prison Mandatory if Convicted?

    No.

    If sentenced to prison, what is the Term??

    Indeterminate term of at least 2 years to the defendant’s natural life (2 to Life)

    Can He Be Sentenced To Probation?

    Yes.

    If in Prison, When Can He Be Reviewed For Parole?
    Upon serving the minimum term of his sentence.

    What Is One Mandatory Requirement for Parole?
    Completion of Sex Offender Treatment as outlined in the Chart Entitled “Sex Offender Probationary Terms”

    What Is The Parole Term:

    Ten years to Life. (10 to Life)

    Register as a Sex Offender?
    Yes. For Life.

    or

    Unlawful Sexual Contact Class 1 Misdemeanor C.R.S. § 18-3-404(1)(a)

    Legal Definition of Unlawful Sexual Contact:

    “Any actor who knowingly subjects a victim to any sexual contact commitsunlawful sexual contact if . . . the actor knows that the victim does not consent.”

    C.R.S. § 18-3-401(4) Definition of Sexual Contact as Applied in this Case:

    “the knowing touching of the victim’s intimate parts by the actor, of theactor’s intimate parts by the victim, or the knowing touching of the clothingcovering the immediate area of the victim’s or actor’s intimate parts of thatsexual contact is for the purposes of sexual arousal, gratification or abuse.

    C.R.S. § 18-3-401(2) Definition of Intimate Parts

    “means the external genitalia or the perineum or the anus or the buttocksor the pubes or the breast of any person.”

    Can He Go to Prison?
    No.

    Can He Go To Jail?
    Yes.

    Is Jail Mandatory?

    No.

    If Jailed, What is the Jail Term?

    Six months to two years.

    Can He Be Put on Probation?

    Yes.

    How Long is the Probation Term?

    Usually up to two years, but may be longer.

    Register as a Sex Offender?
    Yes, for at least term of probation, plus five years.

    What type of Probation?
    Intensive supervision, sexual offender probation. See Chart outlining Colorado Sex Offender Probationary Terms.

    The Colorado Rape Shield Law is found in the Colorado Revised Statutes, C.R.S. 18-3-407
    (click here to see the Statute in its entirety)

    It sets out that there’s the presumption of irrelevance of reputation, or opinion evidence or specific instances of a victim’s prior or subsequent sexual conduct unless it involves evidence having to do with same defendant or evidence having to do with the source of an injury, bodily fluid, etc. If the defense wants to introduce such evidence, they have to file a motion and affidavit setting forth the evidence they want to introduce and the court may conduct a hearing outside the presence of the jury.

    Definition of consent in C.R.S. 18-3-401 (1.5)

    “Consent” means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. A current or previous relationship shall not be sufficient to constitute consent under the provisions of this part 4. Submission under the influence of fear shall not constitute consent. Nothing in this definition shall be construed to affect the admissibility of evidence or the burden of proof in regard to the issue of consent under this part 4.

    Sentencing

    If the jury comes back with a guilty verdict, it is totally up to the judge as to what the sentence should be. Sentencing would be done in another phase. The judge is going to base his/her decision on a pre-sentence investigation report (which will include person’s criminal history, description of circumstances of the case, victim impact statements, etc.) and a sex offender evaluation. If a person is found guilty, the judge must decide whether to place the person on probation or send that person to prison.

    Terms of a Colorado Sex Offender

    If a person is judged guilty and the judge decides to put him on probation, here are the terms for a Colorado sex offender:

    The Colorado Legislature amended the sexual offense statutes to reflect what is now known as indeterminate sentencing, which requires that most – not all – felony sexual offenders face a life on probation or a life sentence to prison. C.R.S. § 18-1.3-1004.

    Probationary terms

    If the individual is not sentenced to prison, the sexual offender probationary terms are:

  • Registration as a sexual offender for the remainder of the defendant’s natural life. Defendant must re-register every 90 days from the date he received notice of his obligation to register. C.R.S. § 16-22-108. (For most felonies.)

  • Forced to participate in the Sexual Offender Intensive Supervision Probation. C.R.S. § 18-1.3-1004(2)(a) (for all sexual offenses.)

  • Terms of the sexual offender treatment “Guidelines” created by the Colorado Sexual Offender Management Board, include the following (this is not exhaustive):

  • Participate in treatment which requires masturbating into a tape for review by the treatment provider. If offender does not comply, probation is revoked and offender can face sentence to prison and, if so, will be an indeterminate life sentence.

  • Take a plethysmograph (genital monitoring) to “evaluate” sexual deviancy.

  • Take regular polygraphs regarding all sexual history, including reading pornography.

  • Offender will not be able to have any contact with his children, or any other children, even if the victim does not live in the house or the victim is not a family member. This includes no letter writing, pictures, or telephone conversations with any children (including offender’s own children).

  • Offender can have visitation with children if the treatment provider and probation officer agree that

    (i) sexual deviant impulses are manageable;

    (ii) the offender accepts full responsibility for the act with no differences between his story and the victim’s;

    (iii) the offender has disclosed is deviant acts to all necessary others; and the offender has passed all polygraphs. Includes daily contact between sex offender and the probation officer.

  • Monitored curfew.
  • Home visitation.
  • Employment visitation.
  • Can be ordered to a residential community corrections program for a minimum term specified by the court.

    When does probation end realistically?

    For a Class 4 Felony: After 10 years, the court can review whether the sex offender has successfully progressed in treatment; if not, the court shall review the denial at least once every three years until the defendant is successful for discharge.

    For a Class 3 Felony: After 20 years, the court can do the same as stated above.

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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
The Edward Building
8400 East Prentice Avenue - Suite 420
Greenwood Village, Colorado 80111
Primary Web Site:  http://www.HMichaelSteinberg.com
Colorado Criminal Law Blog:  www.Colorado-Criminal-Lawyer-Online.com
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