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People v. Larsen.

2023 COA 28. No. 21CA0398. Sixth Amendment—Fourteenth Amendment—Postconviction Remedies—Double Jeopardy—Right to Unanimous Jury Verdict—Due Process—Modified Unanimity Instruction.

March 30, 2023

Larsen was convicted of one count each of sex assault on a child by one in a position of trust (SAOC-POT) as part of a pattern (count 1) and SAOC-POT with a victim under 15 years old (count 2) for assaulting his then-10-year-old granddaughter. The trial court sentenced him to a controlling indeterminate prison term of eight years to life. His convictions were upheld on direct appeal, and Larsen then sought habeas corpus relief, arguing that the jury’s findings and verdicts were insufficient to support his conviction for count 1. He contended that whether the sex assault was committed as part of a pattern wasn’t submitted to and found beyond a reasonable doubt by the jury, so the conviction violated his Sixth and Fourteenth Amendment rights. The federal district court concluded that Larsen was entitled to habeas relief but stated that the proper remedy was unclear, given his multiple convictions and how they were entered on the mittimus. The federal district court thus conditionally granted the writ of habeas corpus while instructing the state courts to remedy the constitutional violation in its order within 90 days or release Larsen from custody. Ultimately, the postconviction court vacated count 1 and left the count 2 conviction in place, concluding that there was a separate verdict and conviction for count 2 that was not impacted by the count 1 issues. The postconviction court then sentenced Larsen on count 2 to time served and 20 years to life of sex offender intensive supervision probation (SOISP).

On appeal, Larsen argued that the postconviction court erred by sentencing him on count 2 because it was purposefully merged into count 1 and, accordingly, count 2 was vacated and couldn’t be reinstated. However, the Colorado Supreme Court and other courts have regularly reinstated lesser included convictions that were merged or improperly vacated. Larsen’s motion asking the postconviction court to comply with the federal district court’s order is properly construed as a Crim. P. 35(c) motion, and once Larsen filed this motion, the postconviction court had authority to vacate count 1 and enter the conviction and sentence on count 2. Here, it is apparent that the postconviction court vacated count 1, and while the mittimus reflects otherwise, it is apparent from the postconviction court’s oral rulings that count 2 is the conviction the court reinstated and on which Larsen was then sentenced. Further, reinstating count 2 didn’t violate the Double Jeopardy Clause.

Larsen also contended that his conviction on count 2 violated his right to a unanimous verdict because the trial court erred by not requiring the prosecution to elect the act of sexual assault underlying that count. Where the prosecution does not elect the transaction on which it is relying for a conviction, the defendant can receive a modified unanimity instruction advising the jurors that, to find the defendant guilty, they must unanimously agree that the defendant committed the same act or acts. A failure to elect does not cause a due process violation if the modified unanimity instruction cures any harm from the prosecution’s failure to individualize the counts charged. Here, the trial court provided a modified unanimity instruction—which the jury presumably followed—that explicitly told jurors that, to find Larsen guilty of count 2, they had to unanimously agree on which act of sexual contact had been proven. Further, there is a unanimous jury verdict finding Larsen guilty of count 2, and the jury expressly found in an interrogatory response that one of the alleged acts of sexual contact occurred. Accordingly, Larsen’s due process rights weren’t violated by the entry of conviction on count 2.

The court of appeals also determined that the mittimus incorrectly states that Larsen “pled guilty” to one count each of child sexual assault as part of a pattern and child sexual assault with a victim under 15 years old. But Larsen pleaded not guilty and was instead convicted by a jury of these charges. Additionally, the mittimus shows that Larsen is still convicted of and sentenced on count 1, but Larsen’s conviction on count 1 was vacated. Therefore, the mittimus should reflect the verdict after trial for only count 2 and the corresponding sentence of time served and 20 years to life of SOISP.

The judgment of conviction for count 2 was affirmed. The case was remanded to the trial court with directions to correct the mittimus to reflect that Larsen was convicted after trial and that count 1 was vacated.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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