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People v. Market.

2020 COA 90. No. 17CA0354. Criminal Law—Sexual Assault on a Child—Statute of Limitations—Tolling—Evidence—Force.

June 11, 2020


In 1996, 4-year-old A.R. was sexually assaulted by a man she did not know who entered her bedroom through a window. The assault initially remained unsolved. In 2014, the police ran fingerprints from old cases through a national fingerprint database and learned that defendant’s fingerprints from an unrelated burglary matched those found on a screen removed from A.R.’s window on the date of the assault. A jury found defendant guilty of sexual assault on a child by use of force, and he was sentenced to a 24-year term of imprisonment.

On appeal, defendant contended that he could not be prosecuted for A.R.’s 1996 sexual assault because the applicable statute of limitations for the crime expired in June 2006. Two conflicting statutes of limitations applied to defendant’s criminal offense: CRS § 18-3-411(2) imposed a 10-year limitations period for sexual offenses against children and did not contain any tolling provisions. CRS § 16-5-401 also imposed a 10-year limitations period for sexual offenses but included a tolling provision that would apply if a defendant had been absent from Colorado.

In cases where a defendant was absent from Colorado for more than five years, CRS § 16-5-401(2) effectively imposed a 15-year limitations period on sexual offenses. Both sections 16-5-401 and 18-3-411 were amended in 2006 to eliminate a statute of limitations for felony sexual offenses against a child, and those amendments apply retroactively to sex crimes against children for which the statute of limitations had not yet expired as of July 1, 2006. Defendant did not dispute that he was absent from Colorado for more than five years, so the statute of limitations in his case did not expire until June 16, 2011, and the originally applicable statute of limitations had not expired by July 1, 2006. Therefore, the amendments eliminating a statute of limitations for crimes against children were effective against defendant, and he was properly subject to prosecution for the charged offenses.

Defendant also asserted that there was insufficient evidence to support his conviction for sexual assault on a child by force. For the force enhancer under CRS § 18-3-405(2)(a) to apply, there only needs to be some exertion of force applied to the victim’s body; an extra application of force that is distinct from the sexual contact is not required. Based on the evidence, the jury reasonably could have concluded that defendant used force to accomplish or facilitate sexual contact with A.R., and thus the evidence was sufficient to support the conviction for sexual assault on a child by force.

Defendant also contended, and the attorney general conceded, that the mittimus is incorrect.

The judgment of conviction was affirmed and the case was remanded to the trial court to correct the mittimus to reflect that defendant was convicted after a jury trial and sentenced for one count of sexual assault on a child.

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

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