21CA1322 Peo v Bachmann 07-25-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA1322
Larimer County District Court No. 02CR1018
Honorable Juan G. Villaseñor, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
James Thomas Bachmann,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE SULLIVAN
Fox and Grove, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 25, 2024
Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Stephen Arvin, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
1
¶ 1 Defendant, James Thomas Bachmann, appeals the judgment
of conviction entered on jury verdicts finding him guilty of several
charges arising from his sexual assaults of a child, B.B. We affirm.
I. Background
¶ 2 Bachmann first met B.B. when B.B. was six or seven years
old. Bachmann, a family friend, fulfilled a fatherly role in B.B.’s life
and would frequently take B.B. to the movies and on trips, and
invite him to stay the night at his house. When B.B. was
approximately twelve, Bachmann began to fondle him and perform
oral sex on him while B.B. pretended to be asleep. B.B. testified
this happened for approximately three years. B.B. also testified
that he believed he heard Bachmann take a picture of him during
one of these incidents.
¶ 3 In 2002, B.B. told his mother what had been happening at
Bachmann’s house. B.B.’s mother contacted law enforcement
shortly thereafter.
¶ 4 Detective Kristy Volesky and Detective Jeremy Yonce began an
investigation. Detective Volesky arranged for Anthony Newt,
Bachmann’s friend and B.B.’s stepfather, to place a pretext
telephone call to Bachmann. At one point in the call, during which
2
Newt discussed B.B.’s allegations against Bachmann for nearly an
hour, Newt asked whether the conduct alleged by B.B. was true.
Bachmann responded, “Maybe it is, but maybe it isn’t! I have no
fuckin’ idea!”
¶ 5 After the call, Bachmann left his house and was contacted by
law enforcement; officers eventually requested a medical check due
to Bachmann’s agitated state. After Bachmann checked into a
hospital, Detective Yonce and an assisting detective, Detective Darel
King, searched Bachmann’s house and found a photograph of B.B.
with his genitalia partially exposed. After the hospital discharged
Bachmann, and based on the pretext call, B.B.’s allegations, and
the search of Bachmann’s house, Detective Volesky took Bachmann
into custody.
¶ 6 Before trial, Bachmann moved to suppress his statements
made during the pretext call, arguing that they were coerced and
thus involuntary. After holding a hearing, the court denied
Bachmann’s motion to suppress, finding his statements weren’t
involuntary.
¶ 7 Before Bachmann’s scheduled trial in 2004, he fled the United
States to Switzerland. Law enforcement couldn’t extradite him due
3
to restrictions enforced by the Swiss government. Law enforcement
later obtained an international warrant, and Bachmann was
eventually detained and extradited from Qatar in 2019. A five-day
jury trial commenced in 2021. The court informed the jury of
Bachmann’s flight following a stipulation by the parties.
¶ 8 At trial, B.B., B.B.’s mother, Newt, Detective Volesky, Detective
Yonce, and Detective King testified for the prosecution. The jury
heard a recording of the pretext call between Newt and Bachmann
and also received the photograph of B.B. The jury found Bachmann
guilty of one count each of sexual assault on a child (position of
trust), sexual assault on a child (position of trust, pattern), sexual
exploitation of a child (made material), sexual exploitation of a child
(possessed material), and third degree sexual assault.
¶ 9 Bachmann now appeals. He contends that the trial court
erred by (1) failing to suppress his statements made during the
pretext call with Newt; (2) incorrectly instructing the jury on the
pattern enhancer for sexual assault on a child by one in a position
of trust; (3) entering separate convictions on the two counts for
sexual assault on a child by one in a position of trust; and (4)
entering separate convictions for sexual exploitation of a child
4
(made material) and sexual exploitation of a child (possessed
material). We disagree with these arguments and affirm.
II. Pretext Telephone Call
¶ 10 Bachmann seeks de novo review of whether the trial court
erred by denying his motion to suppress his statements made
during the pretext call. Specifically, Bachmann argues that (1)
Newt was an agent of the state; and (2) Newt’s questioning
“shattered Bachmann physically and mentally, overbore
Bachmann’s will, and rendered Bachmann’s statements
involuntary.” We only address Bachmann’s second contention
because, even assuming without deciding that Newt acted as an
agent of the state, we nonetheless conclude that Bachmann’s
statements were voluntary.
A. Additional Facts
¶ 11 Detective Volesky discussed making a pretext telephone call
with Newt in July 2002. Newt agreed to make the call. At the
suppression hearing, Detective Volesky testified that she informed
Newt that she would be listening in on the call and that his
directive during the call, assuming B.B.’s allegations were true, was
5
to tease out a confession from Bachmann “as to what happened in
the past with [B.B.].”
¶ 12 Bachmann received Newt’s call at his residence and out of
custody. The call lasted about fifty minutes. Bachmann became
increasingly agitated as the call went on; after approximately thirty
minutes, Bachmann could be heard dry heaving in another room.
¶ 13 At the beginning of the call, Newt said that B.B. told him
everything, stating B.B. “wants no one to know” and that only
“three [people]” (Newt, Bachmann, and B.B.) knew about
Bachmann’s conduct. Newt later stated that Bachmann needed to
come clean because Newt didn’t “want to go to [B.B.’s] mom” with
the information and that B.B. didn’t want “anyone to know
whatsoever.” Newt then said B.B. “wants to keep it quiet” and that
he would “go along with [B.B.’s] wishes.” Newt next said that if he
needed to take B.B. “to professional help,” he thought “they will
report it immediately.” Bachmann told Newt that he only looked at
B.B.’s penis, but denied having intercourse with B.B.
¶ 14 Shortly after, Bachmann expressed remorse at hurting B.B.
when Newt said, “[I]f you love him, let’s hear it . . . now you need to
fix it.” Newt later said that he “really doesn’t want [B.B.’s] dad to
6
know about this” and that he was “sure [Bachmann]” didn’t want
B.B.’s dad to know either. Bachmann, agitated, responded that his
“heart is ripped.” About thirty-five minutes into the call, Newt
asked Bachmann whether he wanted “[B.B.] to go to a therapist or
something.” Bachmann stated he had to leave to attend a court
hearing for a traffic offense and that he was “a fucking wreck.”
Bachmann made the following statement shortly after:
[NEWT]: [B.B.] told me what took place. He
said you fondled him, you went down on him.
Is that true? Just say yes or no, Jim. Is it
true?
[BACHMANN]: Maybe it is, but maybe it isn’t, I
have no fuckin’ idea!
¶ 15 At the suppression hearing, the trial court (1) heard testimony
from Detective Volesky regarding the logistics of the call; (2) listened
to a recording of the call; and (3) read a transcript of the call. In its
ruling from the bench denying the motion, the court found as
follows:
• Detective Volesky was present during the phone call and
listened in on the conversation, but never directly
addressed Bachmann;
• Newt placed the call to Bachmann at his residence;
7
• Detective Volesky may have written down or suggested a
“question or two” for Newt to ask Bachmann, or may
have suggested a method of questioning for Newt to
undertake; and
• Bachmann wasn’t in custody, in part because Bachmann
was in his own home, he didn’t know Detective Volesky
was listening, and he retained the ability to hang up the
telephone at any time.
The court ultimately denied Bachmann’s motion to suppress
because of the following:
• Bachmann received the call at his residence, out of
custody, and retained the ability to hang up at any time;
• Newt wasn’t an agent of the state when he made the call
but was merely an interested party;
• Newt implied that he could help keep the matter quiet,
but those implied promises weren’t of the kind that rose
to the level of promises by law enforcement that render a
defendant’s statements involuntary;
8
• the jury could determine what Bachmann’s emotions and
reactions meant with respect to the allegations of his
conduct; and
• there was “very little direct confession or statement”
made by Bachmann during the call.
¶ 16 At trial, the prosecution played the pretext call for the jury.
Newt testified on cross-examination that he remained patient,
courteous, not judgmental, and circumspect during the call. He
explained that he didn’t raise his voice and he refrained from
swearing at Bachmann.
B. Standard of Review
¶ 17 We review a trial court’s ruling on a motion to suppress as a
mixed question of law and fact. People v. Platt, 81 P.3d 1060, 1065
(Colo. 2004). “We will uphold a trial court’s findings of fact on the
voluntariness of a statement when the findings are supported by
adequate evidence in the record, but we review de novo a trial
court’s ultimate determination of whether a statement was
voluntary.” People v. Bryant, 2018 COA 53, ¶ 18.
9
C. Applicable Law
¶ 18 The Due Process Clauses of the United States and Colorado
Constitutions require that a defendant’s statements be voluntary for
the statements to be admissible into evidence. U.S. Const. amends.
V, XIV; Colo. Const. art. II, § 25; Mincey v. Arizona, 437 U.S. 385,
397 (1978); People v. Raffaelli, 647 P.2d 230, 234 (Colo. 1982). The
prosecution shoulders the burden of proving, by a preponderance of
the evidence, that the defendant’s statements were voluntary.
People v. Munoz-Diaz, 2023 COA 105, ¶ 13.
¶ 19 If a statement is made to law enforcement or an agent of law
enforcement, we consider the totality of the circumstances and look
to whether the officer or agent “overcame the defendant’s will” and
induced their inculpatory statement. Id. at ¶ 14. We follow a two-
step inquiry when evaluating whether a defendant’s statement was
voluntary: “(1) whether the official conduct was coercive and (2)
whether the coercive conduct ‘played a significant role in inducing
¶ 20). Both steps of the inquiry require that we consider a wide
range of non-exhaustive factors:
1. whether the defendant was in custody;
10
2. whether the defendant was free to leave;
3. whether the defendant was aware of the
situation;
4. whether the police read Miranda rights to
the defendant;
5. whether the defendant understood and
waived Miranda rights;
6. whether the defendant had an
opportunity to confer with counsel or anyone
else prior to or during the interrogation;
7. whether the statement was made during
the interrogation or volunteered later;
8. whether the police threatened [the]
defendant or promised anything directly or
impliedly;
9. the method [or style] of the interrogation;
10. the defendant’s mental and physical
condition just prior to the interrogation;
11. the length of the interrogation;
12. the location of the interrogation; and
13. the physical conditions of the location
where the interrogation occurred.
Cardman v. People, 2019 CO 73, ¶ 23 (quoting People in Interest of
Z.T.T., 2017 CO 48, ¶ 13).
¶ 20 When weighing these factors, we don’t simply count the
factors on each side but rather accord weight depending on the
11
circumstances involved. Id. at ¶ 27. The critical inquiry is whether,
under the circumstances, the interviewing officer “actually overbore
the defendant’s will.” People v. McIntyre, 2014 CO 39, ¶ 19.
D. Analysis
¶ 21 After reviewing the record and closely listening to the pretext
call, we conclude Bachmann made several arguably inculpatory
statements — the most arguably inculpatory one being that “maybe
it is” true he committed the acts B.B. alleged.
¶ 22 The factors that weigh in favor of holding that Bachmann
made the statements voluntarily include: Bachmann wasn’t in
custody (factor 1); Bachmann was free to hang up and terminate
the conversation (factor 2); Bachmann was free to hang up and
consult with an attorney at any time (factor 6); Newt was calm,
composed, and respectful throughout the call (factor 9); and
Bachmann was in his own home during the call (factors 12 and 13).
A factor that cuts both ways, but that we ultimately conclude
weighs in favor of the statements’ voluntariness, is Bachmann’s
physical and mental condition before and during the call (factor 10).
¶ 23 The factors that weigh in favor of holding that Bachmann
made the statements involuntarily include: Bachmann wasn’t aware
12
he was being recorded or that Detective Volesky was listening in
(factor 3); Bachmann wasn’t read his Miranda rights (factors 4 and
5); Bachmann’s statements were made during the call (factor 7);
and Newt impliedly promised to keep whatever Bachmann said
between them so that others wouldn’t learn of Bachmann’s conduct
(factor 8).
¶ 24 One factor — that the call lasted approximately fifty minutes
(factor 11) — is neutral. An interview lasting approximately one
hour is “neutral.” Cardman, ¶ 26.
1. Factors Favoring Voluntariness
¶ 25 We begin our analysis by considering the factors that weigh in
favor of holding that Bachmann made his statements voluntarily.
First, Bachmann argues that Newt’s method and style of
questioning — referencing that B.B. needed help and suffered from
Bachmann’s conduct — amount to police coercion that rendered his
statements involuntary. We disagree.
¶ 26 At the outset, the trial court found, and our review of the call
confirms, that Newt spoke to Bachmann in a calm, composed, and
respectful manner. This weighs in favor of the statements’
voluntariness. See People v. Liggett, 2014 CO 72, ¶ 30 (concluding
13
investigators’ calm and polite manner during questioning “cuts
against” finding their conduct coercive). Defense counsel, too,
agreed that Newt questioned Bachmann in a patient,
nonjudgmental, and circumspect way. As a result, we disagree with
Bachmann that Newt’s questioning was “relentless,” “demanding,”
and “merciless.”
¶ 27 Bachmann also argues that, by referring to B.B., Newt
exploited Bachmann’s “warmth for [B.B.] and desire to help him”
and thus forced Bachmann to stay on the line, coercing him into
making the statements. We disagree for two reasons. First,
appealing to a defendant’s sense of morality during questioning is
an acceptable tactic by law enforcement and doesn’t amount to
unlawful coercion. See Munoz-Diaz, ¶ 25 (concluding officer’s
appeals to a defendant’s religion and the family’s need for closure
wasn’t impermissible coercion but rather implicated “only ‘moral
and psychological pressures to confess emanating from sources
other than official coercion’”) (citation omitted); see also People v.
Theander, 2013 CO 15, ¶ 44 (“[I]t was not coercive for police to
indicate . . . that [the defendant’s] children would want to know that
[the defendant] had helped find their father’s killer.”).
14
¶ 28 Second, Bachmann — in his own residence, on his own phone,
and out of custody — could have hung up the telephone at any time
and for any reason. See People v. Zadra, 2013 COA 140, ¶ 34
(holding defendant’s statements were voluntary, despite officer’s
“fatherly” tone and “insistence” that defendant tell the truth, where
defendant came to the police station unescorted and was “free to
leave at any time”), aff’d, 2017 CO 18. If Bachmann felt that Newt’s
questioning warranted legal counsel, for example, Bachmann easily
could have hung up the telephone to seek counsel.
¶ 29 Next, Bachmann contends that Newt exploited his weakened
physical and mental condition during the call, rendering his
statements involuntary. Again, we don’t perceive any unlawful
coercion. As a threshold matter, we disagree with the People’s
argument that Bachmann’s mental and physical condition before
Newt’s questioning is the only interval we consider in our analysis.
Colorado precedent indicates that a defendant’s mental and
physical condition during questioning can also be relevant. See
People v. Gennings, 808 P.2d 839, 844 (Colo. 1991). While more
recent cases like Cardman and Z.T.T. appear to omit this part of the
analysis when identifying the factors to be considered, they also
15
make clear that their enumerated factors are “non-exhaustive.”
Cardman, ¶ 23; Z.T.T., ¶ 13.
¶ 30 Nonetheless, we conclude that Newt didn’t exploit Bachmann’s
mental or physical condition in a manner that coerced Bachmann
into making his statements. Bachmann’s physical and mental
condition appeared normal until approximately seventeen minutes
into the call. While Bachmann exhibited signs of physical illness
and mental anguish after that point, we discern no “police
overreaching” or “coercive police conduct” by Newt that resulted in
Bachmann making his statements. Colorado v. Connelly, 479 U.S.
157, 164 (1986) (“[A] defendant’s mental condition, by itself and
apart from its relation to official coercion, should [n]ever dispose of
the inquiry into constitutional ‘voluntariness.’”); see also People v.
Humphrey, 132 P.3d 352, 361 (Colo. 2006) (“[T]he official
misconduct must be causally related to the confession or
statement.”). Rather, Newt maintained his calm and patient
method of questioning throughout the call.
¶ 31 Bachmann, while upset, also demonstrated “an awareness of
his situation and the consequences of speaking” by responding to
Newt’s questions in a generally coherent and understandable
16
fashion. People v. Cerda, 2024 CO 49, ¶ 45. Bachmann repeatedly
mentioned, for example, that he wanted to help B.B. and that he
was running late for his court hearing. That Bachmann became
increasingly distraught as the call went on, without more, doesn’t
indicate that Newt overbore Bachmann’s will. See People v. Smith,
716 P.2d 1115, 1118 (Colo. 1986) (“Simply because the defendant
became upset when she learned that the victim had died was not a
sufficient basis for the trial court’s conclusion that her statement
was involuntary.”).
¶ 32 Bachmann’s reliance on Humphrey and Raffaelli is unavailing.
In Humphrey, officers interrogated the defendant while she was in
custody at a police station, recently injured, and awake for more
than twenty-four hours. 132 P.3d at 354-55. During the
interrogation, the officers purposefully exploited the defendant’s
guilt by relaying that she had killed a man one day earlier — a fact
she didn’t previously know. Id. at 354. The trial court made
“detailed findings,” deferred to by the supreme court, that the
officers asked argumentative questions, gave suggestive answers,
and mischaracterized what the defendant had said, resulting in
“psychological coercion” that the defendant had “little power to
17
resist.” Id. at 361-62. Similarly, in Raffaelli, an officer interviewed
the defendant in custody at a police station after he had recently
witnessed the death of his two-month-old daughter. 647 P.2d at
231-32. The trial court made findings, again deferred to by the
supreme court, that the officer’s interrogation was “accusatorial [in]
nature.” Id. at 236. Based on expert psychiatric testimony
indicating that the defendant’s emotional state rendered him
particularly susceptible, the trial court found that the defendant’s
statements were involuntary. Id.
¶ 33 Here, by contrast, Bachmann wasn’t in custody at a police
station and Newt’s interview style was calm and patient rather than
coercive. Moreover, nothing in the record suggests that Bachmann
shared a mental or physical condition akin to the defendants in
Humphrey and Raffaelli. Bachmann elicited no expert psychiatric
testimony regarding his mental state, and the trial court made no
findings suggesting that Bachmann suffered from a vulnerable or
susceptible mental condition that rendered his statements
involuntary. To the contrary, the trial court made findings, albeit
after trial, that Bachmann made false statements during the call
and attempted to manipulate Newt. Absent factual findings like
18
those in Humphrey and Raffaelli, we conclude both cases are
distinguishable.
2. Factors Favoring Involuntariness
¶ 34 We next turn to the factors weighing in favor of holding that
Bachmann made his statements involuntarily to determine, in the
totality of the circumstances, whether they outweigh the above
factors pointing toward the statements’ voluntariness. Bachmann
argues that Newt impliedly promised that his confession would
forestall criminal consequences. He asserts that Newt promised
that, in exchange for coming clean, Newt would keep his conduct
secret and refrain from either telling B.B.’s father or sending B.B. to
a therapist. While we agree with Bachmann that Newt made certain
implied promises, we disagree that they rendered Bachmann’s
statements involuntary.
¶ 35 At the outset, we conclude that the Miranda factors carry little
weight here. Bachmann wasn’t in custody during the pretext call.
Thus, Detective Volesky bore no obligation to read Bachmann his
Miranda rights or request that he waive those rights. See People v.
Wood, 135 P.3d 744, 749-50 (Colo. 2006).
19
¶ 36 Turning to Newt’s implied promises, we acknowledge that an
implied promise made by an undercover government agent — one
who the suspect has no reason to believe possesses authority to
bind the government — can in some circumstances result in the
suspect making a coerced inculpatory statement. See, e.g., Arizona
v. Fulminante, 499 U.S. 279, 288 (1991) (holding that defendant’s
inculpatory statement to jailhouse informant, motivated by fear of
physical violence and the informant’s promise of protection, was
coerced). But even accepting that, we nonetheless conclude that
Newt’s implied promises didn’t play a significant role in inducing
Bachmann’s statements. See Munoz-Diaz, ¶ 20. Unlike Cardman,
¶ 5, where the defendant responded to the detective’s explicit
promise that he could “help [the case] go away” with “I would love
that,” Bachmann didn’t utter his arguably inculpatory statements
in reliance on any of Newt’s implied promises. To the contrary,
when Newt impliedly promised that Bachmann, B.B., and Newt
could remain the “only three people” who know about the situation,
Bachmann responded, “I don’t care about that.” And throughout
the conversation, Bachmann expressed neither a desire to avoid
20
consequences nor any wish to keep B.B.’s allegations under wraps.
See Munoz-Diaz, ¶¶ 21-22.
¶ 37 Finally, even if Bachmann was indirectly motivated to make
his statements based on Newt’s implied promises, we conclude
Newt nevertheless didn’t overcome Bachmann’s will. At most,
Newt’s implied promises amount to what our supreme court has
characterized as a “subtle form of psychological coercion” that
“fall[s] far short” of the types of coercive statements that have been
found to overcome a defendant’s will. Theander, ¶ 44 (collecting
cases).
¶ 38 Accordingly, after weighing each of the factors and considering
the totality of the circumstances, we agree with the trial court that
Bachmann made his statements voluntarily. The trial court
therefore didn’t err by denying Bachmann’s motion to suppress his
statements made during pretext call.
III. Jury Instruction
¶ 39 Next, Bachmann contends that the trial court plainly erred by
improperly instructing the jury on the pattern of abuse sentence
enhancer for sexual assault on a child by one in a position of trust.
He asserts that the trial court failed to instruct the jury, consistent
21
with section 18-3-405.3(2)(b), C.R.S. 2001,
1
that he could be
convicted only if the acts constituting the pattern of sexual abuse
were committed within ten years prior to the predicate offense
charged in the information. We perceive no error.
A. Additional Facts
¶ 40 In count two, the prosecution charged Bachmann with sexual
assault on a child (position of trust, pattern) under section 18-3-
405.3(1) and (2)(b). The information stated that the acts alleged
under count two occurred over a three-year period between August
1, 1998, and July 11, 2002.
¶ 41 Consistent with the information, B.B. testified that Bachmann
sexually assaulted him on multiple occasions over the course of
three years. The court instructed the jury on the pattern of abuse
sentence enhancer as follows:
Question 2: Did the defendant commit the
sexual assault on a child as part of a pattern
of sexual abuse? (Answer “Yes” or “No”).
The defendant committed the sexual assault
on a child as part of a pattern of sexual abuse
only if he committed one or more incidents of
1
Section 18-3-405.3 has since been amended. We apply the
version in effect at the time, section 18-3-405.3, C.R.S. 2001, here
and in all subsequent references to this statute.
22
sexual contact upon the same victim in
addition to committing the sexual contact
forming the basis for your guilty verdict on
Count I, sexual assault on a child by one in a
position of trust.
¶ 42 The instruction didn’t expressly state that the acts
constituting the pattern of sexual abuse must have been committed
within ten years prior to the predicate offense charged in the
information. The court also instructed the jury on the definition of
“pattern of abuse,” defining it as “the commission of two or more
incidents of sexual contact involving a child when such offenses are
committed by an actor upon the same victim.” See § 18-3-401(2.5),
C.R.S. 2001. The court also provided a unanimity instruction,
informing the jury that it could reach a guilty verdict only if the jury
“either unanimously agree[d] that [Bachmann] committed the same
act or acts, or that he committed all the acts alleged.”
¶ 43 The jury found Bachmann guilty of the predicate act of sexual
assault on a child by one in a position of trust as alleged in count
two. In a separate special interrogatory for count two, the jury
answered “yes” to the question “Did the defendant commit Sexual
Assault on a Child as part of a Pattern of Abuse?” Immediately
below its answer, the jury found that Bachmann committed sexual
23
contact “more than one time” between August 1, 1998, and October
31, 1998. It also found that he committed sexual contact “more
than one time” between November 1, 1998, and July 9, 2001. In
other words, the jury found that Bachmann committed at least four
acts of sexual contact against B.B. over a three-year period. Before
the jury began deliberations, the court read these verdict forms to
the jury as part of its jury instructions.
B. Standard of Review
¶ 44 Bachmann acknowledges that he failed to preserve this issue,
limiting our review to plain error. Plain error is obvious and
instruction context, ‘the defendant must “demonstrate not only that
the instruction affected a substantial right, but also that the record
reveals a reasonable possibility that the error contributed to his
conviction.”’” Hoggard v. People, 2020 CO 54, ¶ 13 (quoting People
v. Miller, 113 P.3d 743, 750 (Colo. 2005)).
C. Analysis
¶ 45 To be convicted of sexual assault on a child by one in a
position of trust as part of a pattern of sexual abuse, the version of
section 18-3-405.3 in effect at the time required that the acts
24
constituting the pattern of sexual abuse be “committed within ten
years prior to the offense charged in the information or indictment.”
§ 18-3-405.3(2)(b).
¶ 46 In People v. Honeysette, 53 P.3d 714, 716-18 (Colo. App.
2002), a division of this court rejected an argument similar to
Bachmann’s, finding no plain error where the jury instruction on
the pattern of abuse sentence enhancer failed to inform the jury
that the acts constituting a pattern of abuse must have occurred
within ten years prior to the offense charged in the information.
The instructions in Honeysette informed the jury that it could find a
pattern of sexual abuse only if it determined that the defendant
committed two or more incidents of sexual contact against the
victim during a specified nineteen-month period, which period was
also alleged in the information. Id. at 717. Given this instruction,
the division explained that it “would have been impossible” for the
jury to find the defendant guilty of the pattern of abuse enhancer
unless it found that he committed at least two separate acts of
sexual contact against the same victim during the alleged nineteen-
month period. Id. at 718. As a result, the division determined that
the ten-year requirement in the pattern of abuse statute was
25
date or time need be alleged for the pattern of sexual abuse . . . .”).
¶ 47 Here, Bachmann doesn’t dispute that the prosecution
presented evidence of multiple sexual acts against B.B. during the
three-year period alleged in the information. Nor does he dispute
that the court instructed the jury regarding the three-year period
when it read the verdict forms to the jury. After the court gave
these instructions, the jury found that Bachmann committed at
least four acts of sexual contact against B.B. over the same general
three-year period. Under Honeysette, nothing more was required
for the jury to find a pattern of abuse. See also People v. Melillo, 25
P.3d 769, 779 (Colo. 2001) (holding that the information charging a
pattern of sexual abuse was sufficient where it alleged “that the
pattern of sexual abuse occurred within a fifteen-month period of
time . . . which clearly satisfies the ten-year period required by the
statute”).
¶ 48 We aren’t persuaded otherwise by Bachmann’s reliance on
People v. Gholston, 26 P.3d 1 (Colo. App. 2000), and People v.
Graham, 876 P.2d 68 (Colo. App. 1994), both of which preceded
Melillo and Honeysette. In Gholston, the division found no evidence
26
in the record of any sexual abuse by the defendant in the ten years
preceding the period alleged for the predicate act in the information.
26 P.3d at 14-15. But here, the evidence supports, and the jury
found, that Bachmann committed multiple acts of sexual assault
against B.B. over three years. Graham, involving the ex post facto
application of the pattern of abuse statute, is similarly
uninformative. There, the defendant was charged with several
sexual assaults occurring before the pattern of abuse statute was
enacted, but the jury wasn’t instructed that the defendant’s
conviction of the predicate offense had to be based on an act
71-72. Because Bachmann doesn’t make an ex post facto argument
here, Graham doesn’t apply.
¶ 49 Accordingly, the trial court didn’t err, plainly or otherwise,
when instructing the jury on the pattern of abuse sentence
enhancer in count two.
IV. Separate Convictions — Position of Trust
¶ 50 Bachmann next contends that the trial court erred by entering
separate convictions for sexual assault on a child by one in a
position of trust (count one), and sexual assault on a child by one
27
in a position of trust as part of a pattern of abuse (count two). We
don’t agree.
A. Standard of Review and Applicable Legal Principles
¶ 51 The United States and Colorado Constitutions prohibit placing
someone twice in jeopardy for the same offense. Whiteaker v.
People, 2024 CO 25, ¶ 10. Thus, punishing an individual twice for
the same offense runs afoul of double jeopardy principles. People v.
Grosko, 2021 COA 28, ¶ 24. Although we agree with the People
that Bachmann didn’t preserve this claim, we don’t review double
jeopardy sentencing errors for plain error, but rather impose merger
automatically for such errors. Whiteaker, ¶ 24.
B. Analysis
¶ 52 We agree with Bachmann that a court “may not enter a
separate conviction or sentence on a count that is only a sentence
enhancer.” People v. Torrez, 2013 COA 37, ¶ 23. And we further
agree that our supreme court has consistently described the pattern
of abuse provision in section 18-3-405.3(2) as a sentence enhancer.
People v. Simon, 266 P.3d 1099, 1108 n.9 (Colo. 2011). But one
discrete count can sufficiently charge “the crime of sexual assault
on a child, as well as the sentence enhancer because a single count
28
may charge both a crime and a sentence enhancer.” Melillo, 25
P.3d at 777. That’s what occurred here in count two.
¶ 53 Bachmann was separately charged and found guilty of count
one — sexual assault on a child by one in a position of trust — and
count 2 — sexual assault on a child by one in a position of trust as
part of a pattern of abuse. As in Melillo, count two sufficiently
charged the crime of sexual assault on a child by one in a position
of trust and the pattern of abuse sentence enhancer. Further, the
trial court instructed the jury that a “separate offense is charged
against [Bachmann] in each count of the information,” and that the
jury should consider each count separately, uninfluenced from any
other count.
2
We presume the jury understood and followed this
instruction. People v. Moody, 676 P.2d 691, 697 (Colo. 1984).
¶ 54 Consistent with this instruction, the jury returned separate
verdict forms finding Bachmann guilty on both count one and count
two. On count two, the jury specifically found that, “with respect to
2
We decline to address Bachmann’s argument, raised for the first
time in his reply brief, that the single reference to “Count I” in the
pattern of abuse jury instruction indicates that count two operated
only as a sentence enhancer. See People v. Cline, 2022 COA 135,
¶ 75 n.3.
29
the verdict question for this count,” Bachmann committed at least
four sexual contacts that constituted a pattern of abuse.
(Emphasis added.)
¶ 55 Accordingly, the trial court didn’t err by entering separate
convictions on count one and count two.
V. Separate Convictions — Sexual Exploitation
¶ 56 Bachmann last contends that the trial court erred by entering
separate convictions for both making and possessing sexually
exploitative material of a child under section 18-6-403(3), C.R.S.
2001.
3
Leaning on People v. Meils, 2019 COA 180, ¶¶ 38-45,
Bachmann argues that the trial court violated his right to be free
from double jeopardy because (1) section 18-6-403(3) prescribes
alternative ways of committing the same offense and (2) his creation
and possession of the sexually exploitative photograph arose from
the same act. We disagree.
A. Standard of Review
¶ 57 Bachmann preserved this argument at sentencing, but the
trial court never ruled on it. We review de novo Bachmann’s claim
3
Again, this statute has since changed and we refer throughout to
the version in effect at the time: section 18-6-403, C.R.S. 2001.
30
that his separate convictions violate constitutional protections
against double jeopardy. Garcia v. People, 2023 CO 41, ¶ 13.
B. Analysis
¶ 58 A double jeopardy violation occurs when a trial court imposes
multiple convictions for the same offense based on the defendant’s
committing the crime using more than one of the prohibited
alternative means. People v. Barry, 2015 COA 4, ¶ 89.
¶ 59 As relevant here, section 18-6-403(3) at the time provided that
a person commits sexual exploitation of a child if, for any purpose,
the person knowingly:
(b) Prepares, arranges for, publishes, including
but not limited to publishing through digital or
electronic means, produces, promotes, makes,
sells, finances, offers, exhibits, advertises,
deals in, or distributes, including but not
limited to distributing through digital or
electronic means, any sexually exploitative
material; or
(b.5) Possesses or controls any sexually
exploitative material for any purpose . . . .
§ 18-6-403(3) (emphasis added).
¶ 60 In Meils, a division of this court held that section 18-6-403(3),
written in the disjunctive, shows that the legislature intended to
describe alternative ways of committing a single crime rather than
31
to create separate offenses. Meils, ¶ 43. In Quintano v. People, 105
P.3d 585, 592 (Colo. 2005), however, our supreme court upheld a
defendant’s convictions for three separate counts of sexual assault
on a child, all occurring over a single day against the same victim,
because the facts showed that “the defendant’s conduct was
separate in temporal proximity and constituted a new volitional
departure in his course of conduct.”
¶ 61 Here, the prosecution charged Bachmann with one count of
sexual exploitation of a child for making sexually exploitative
material, § 18-6-403(3)(b), and one count of sexual exploitation of a
child for possessing sexually exploitative material, § 18-6-
403(3)(b.5). B.B. testified that he believed Bachmann took a
photograph of him during one of the incidents of sexual assault.
B.B. and his mother testified that the assaults occurred between
his seventh- and ninth-grade years in school, or between 1998 and
2001. In 2002, Detective Yonce searched Bachmann’s residence
and found a photograph of B.B. with his genitalia partially exposed.
The detective testified that the photograph, taken on thirty-five-
millimeter film, required professional development.
32
¶ 62 Viewing the evidence here as the Quintano court did, the
evidence shows that Bachmann took the photograph of B.B.
sometime between 1998 and 2001, and that he possessed the
photograph, at least in 2002 but perhaps earlier, after it had been
professionally developed. We conclude that Bachmann’s distinct
and separate acts — taking the photograph and later possessing
it — were “separate in temporal proximity.” Quintano, 105 P.3d at
592. Stated differently, Bachmann’s choice to develop the
photograph and then possess it constitutes a “volitional departure”
from his decision to take the photograph; Bachmann no doubt had
“sufficient time to reflect” between his taking of the photograph and
his decision to possess the photograph after having it developed.
Id.
¶ 63 Accordingly, the trial court didn’t err by entering separate
convictions on the two counts of sexual exploitation of a child.
VI. Disposition
¶ 64 We affirm the judgment.
JUDGE FOX and JUDGE GROVE concur.
