While swimming at a local pool on September 3, 2002, C. H. (the sixteen-year old alleged victim in this case) informed her friends that her seventeen-year old brother, Calen Howard, had sexually abused her. C. H. indicated that the abuse occurred over a period of time, but that Howard recently kissed her breast. C. H. ’s friends related the allegations to the lifeguard on duty and the lifeguard called 911 to report the incident. Following the 911 call, Officer Jerrod Hardy was dispatched to the scene. Officer Hardy requested that C. H. be interviewed at the Child Advocacy Center.
Sometime between 5:45 p. m. and 7:00 p. m. , C. H. was interviewed at the Child Advocacy Center and the interview was videotaped. During the interview, C. H. accused both Howard and her father, Allen Howard, of sexually abusing her. Detective Ginger Mohs observed the entire interview and Detective Mohs asked C. H. a few clarification questions once the interview concluded. While C. H. was being interviewed, C. H. ’s parents became worried that she had failed to come home and C. H. ’s mother, Debra Howard, telephoned the Fort Collins Police Department to report her as missing.
Detective Mohs was alerted that Mrs. Howard had been trying to locate C. H. Detective Mohs telephoned Mrs. Howard, told her that C. H. was safe, and informed Mrs. Howard that the police wanted to speak with both parents and thus directed them to go to the Fort Collins Police Department. Detective Mohs did not reveal that Howard and his father were sexual assault suspects. Additionally, Detective Mohs asked Mrs. Howard where her son could be located. Mrs. Howard responded that Howard was at work. Following this conversation, both parents traveled directly to the Fort Collins Police Department.
Detective Mohs and Officer Hardy next attempted to locate Howard. They traveled to his place of employment, but were informed that he was not working that day. Upon leaving the place of employment, Detective Mohs received a call from Department of Human Services (DHS) caseworker, Jana Klussman. Klussman told Detective Mohs that she was with C. H. and that they were going to C. H. ’s home so that she could retrieve some personal items. Detective Mohs and Officer Hardy agreed to meet C. H. and Klussman at the house in order to serve as protective standby.
Klussman and C. H. arrived shortly before the police officers. Detective Mohs and Officer Hardy parked their patrol cars down the street and out of sight of the front door of the Howard residence. Detective Mohs, Officer Hardy, Klussman, and C. H. proceeded to the door of the residence together. Both police officers were in uniform. Detective Mohs knocked on the door of the residence and Howard responded. Detective Mohs introduced herself and asked Howard if he would mind coming outside. Howard agreed and walked with the officers to the driveway of the residence.
Once in the driveway area, Officer Hardy stood between Howard and the door to the residence. While these events transpired, Klussman escorted C. H. into the house. Klussman allowed C. H to quickly retrieve her belongings and then both C. H. and Klussman departed. During the time that C. H. gathered personal items, Howard and Detective Mohs engaged in general conversation. Once C. H. departed, Detective Mohs asked Howard why he thought the police were at his home. Howard responded that he thought it was because of the long hours his parents had C.
H. work at their personal business. Howard indicated that is why he believed a DHS worker accompanied C. H. to the residence. Detective Mohs then informed Howard that the police were there because of his relationship with C. H. and then confronted him with the details of C. H. ’s allegations. At this time, Howard slumped over, bowed his head, and appeared very remorseful. Howard then related to the officers several incriminating statements. Howard admitted that he touched C. H. ’s vagina and that he licked and fondled her breasts.
He also stated that he and C. H. had both performed oral sex on each other. Howard explained that these incidents occurred more frequently when he did not have a girlfriend, but that he realized what he was doing was wrong after listening to a relationship advice show. At some point during the time Howard was speaking to Detective Mohs, his parents returned home. The parents asked Howard to go inside the house and the questioning was terminated. Detective Mohs and Officer Hardy departed, and Howard was not placed under formal arrest until months later.
Howard was charged as an adult with one count of sexual assault, section 18-3-402(1)(a), 6 C. R. S. (2003). Prior to trial, Howard filed a motion to suppress the statements he made on the night of September 3, 2003. The trial court held a hearing on the matter and heard testimony in regard to the events surrounding the questioning of Howard. In a detailed ruling, the court found that Howard was in custody and was questioned outside the presence of a responsible adult without proper advisement of his Miranda rights.
In rendering its ruling, the court described several circumstances that led the court to find that the officers were involved in a ploy to question Howard without the presence of a responsible adult. Relying upon this finding, the court suppressed all the incriminating statements Howard made after he spoke to the officers about C. H. ’s employment situation. The People filed this interlocutory appeal to challenge the trial court’s order suppressing Howard’s statements. We hold that the trial court placed undue emphasis on the subjective intent of the officers, and we determine that Howard was not in custody.
Thus, we reverse the ruling of the trial court Defendant, Lamont A. Howard, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree assault, a class four felony in violation of § 18–3–203(1)(g), C. R. S. 2002, and third degree assault, a class one misdemeanor in violation of § 18–3–204, C. R. S. 2002, both for biting one victim, and of third degree assault for striking another victim. The trial court sentenced defendant to six years in the Department of Corrections on the felony, with the sentences on the two misdemeanor convictions to run concurrently.
Defendant alleges insufficiency of the evidence of specific intent to cause serious bodily injury, error for failure to instruct on provocation, and failure to merge the second and third degree assault convictions. We remand for correction of the mittimus, but otherwise disagree and therefore affirm. A homeowner found defendant in his front yard, unconscious and bleeding, and took him to a hospital. Once there defendant said he did not want treatment and remained in the homeowner’s car. The police were called.
Defendant then told an officer that he might have overdosed and accompanied the officer into the emergency room. However, upon questioning by a nurse, he became agitated and defensive, told the hospital staff not to touch him, and demanded to be released. Nevertheless, he was wheeled into a trauma room and placed on a bed for examination. He struggled and multiple staff members sought to restrain him. A private security guard applied a painful "compliance hold" under his jaw. When she released this hold, he turned his head and bit off the tip of her finger.
During the struggle, he also struck a nurse who was attempting to insert an intravenous needle. A test of defendant’s blood revealed a high level of an anti-epileptic prescription medication, an alcohol level of . 258, and cocaine. As a lawyer and committed civil libertarian, I will watch for developments in your case with great interest. For a police officer to demand ID from a person in a public place without having done any investigation to develop a reasonable suspicion that a crime has been or is going to be committed undermines the very foundations of our freedom.