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People v. Simon2/12/2004
JUDGMENT AFFIRMED, SENTENCE VACATED, AND CASE REMANDED WITH DIRECTIONS
Opinion Modified, and as Modified, Petition for Rehearing DENIED
Defendant, David K. Simon, appeals the judgment of conviction entered upon jury verdicts finding him guilty of one count of inducement of child prostitution, one count of patronizing a prostituted child, ten counts of sexual assault on a child by one in a position of trust, and ten counts of sexual assault on a child by one in a position of trust as part of a pattern of abuse. He also appeals his sentence. We affirm the judgment, vacate the sentence, and remand for resentencing.
The victim was a fifteen-year-old male with a history of drug abuse. He lived in the same neighborhood as defendant. The victim offered defendant oral sex in return for money, which defendant accepted, and they became involved in an ongoing homosexual relationship. When the victim's parents moved out of the neighborhood, the victim began living with defendant. The victim's parents apparently consented to this living arrangement, which lasted for approximately one and a half years until the victim discontinued the relationship, moved out, and filed charges against defendant.
I.
Defendant first contends a potential juror should have been disqualified as a matter of law because she was employed by the United States Environmental Protection Agency (EPA), which defendant maintains is a public law enforcement agency. We disagree.
A trial court must sustain a challenge for cause if a juror is a compensated employee of a public law enforcement agency or a public defender's office. Section 16-10-103(1)(k), C.R.S. 2003; Crim. P. 24(b)(1)(XII). No actual bias need be shown to sustain such a challenge for cause, and bias is implied. People v. Manners, 708 P.2d 1391 (Colo. App. 1985); see People v. Rhodus, 870 P.2d 470 (Colo. 1994).
As a threshold matter, defendant does not contend that "all employees of the EPA would necessarily be employees of a public law enforcement agency." However, if the EPA were a public law enforcement agency, all its employees, regardless of their positions, would be disqualified under the statute. See People v. Rhodus, supra; see also People in Interest of R.A.D., 196 Colo. 430, 586 P.2d 46 (1978)(prospective juror, employed as security guard for the Colorado Bureau of Investigation, disqualified under statute); People v. Manners, supra (under statute, actual function of an employee of a law enforcement agency is irrelevant); People v. Scott, 41 Colo. App. 66, 583 P.2d 939 (1978)(bakers and counselors employed by the state prison are within scope of statute).
The statute does not define the term "public law enforcement agency." The term has been interpreted to include municipal police departments, county sheriff's offices, the Colorado Bureau of Investigation, and the Colorado Department of Corrections. See People v. Urrutia, 893 P.2d 1338 (Colo. App. 1994)(collecting statutes and cases). But we are aware of no Colorado authority that has considered the question of whether the EPA is a public law enforcement agency under § 16-10-103(1)(k) or Crim. P. 24(b)(1)(XII).
In People v. Urrutia, supra, a division of this court considered whether a prospective juror employed as a security officer at the Rocky Mountain Arsenal, an Army facility controlled by the United States Department of Defense (DOD), was statutorily ineligible for jury service under § 16-10-103(1)(k). The division looked to the DOD's function to maintain and employ armed forces to defend and secure the United States' interests against foreign and domestic enemies. People v. Urrutia, supra, 893 P.2d at 1345; see
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