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People v. RABES
Citations: 258 P.3d 937; 2010 WL 5248582Docket: 07CA2176
Court: Colorado Court of Appeals; February 2, 2011; Colorado; State Appellate Court
Erik Deane Rabes was convicted of multiple sexual offenses involving a child and appealed his sentencing, specifically objecting to the denial of his motion to suppress evidence obtained from a search of his home. The search warrant was based on a tip from America Online regarding child pornography, which led to an investigation by the National Center for Missing and Exploited Children. During the search, police discovered explicit images on Rabes's computer, including depictions of sexual contact with a four-year-old girl identified as M.V. by Rabes's ex-wife.
Rabes was charged with five counts, including sexual assault on a child and sexual exploitation of a child. He had previously pled guilty to related federal charges. The jury convicted him, resulting in concurrent ten-year sentences for sexual assault charges and a 24-month term for a misdemeanor, along with consecutive twelve-year sentences for two felony counts of sexual exploitation.
On appeal, Rabes argued that the affidavit supporting the search warrant was insufficient ("bare bones") because it did not detail the images from AOL. The court upheld the trial court's decision, affirming that the affidavit contained adequate factual support to establish probable cause. The court emphasized that a presumption of validity applies to search warrant affidavits and noted the importance of considering the totality of circumstances when evaluating informant tips. The appellate court vacated one misdemeanor sentence, remanded for resentencing on that count, but otherwise affirmed the convictions and sentences.
In assessing the validity of a search warrant, it is essential to determine whether the supporting affidavit provided a "substantial basis" for the issuing magistrate to conclude that probable cause existed. The standard for probable cause is not quantifiable, and thus, significant deference is given to the magistrate's determination. An affidavit lacking factual support, relying solely on conclusory statements, is considered a deficient "bare bones" affidavit.
When child pornography is cited to establish probable cause, courts vary on the specificity required in describing the images. Generally, a magistrate may not need to view the images themselves; a detailed verbal description can suffice. For instance, an affidavit stating that images depict "sexually explicit conduct involving children under the age of 16" has been deemed adequate for establishing probable cause. However, an insufficient description that fails to align with statutory definitions of sexually explicit conduct may not meet the threshold.
No absolute requirement exists for attaching images of child pornography to the affidavit; a sufficiently detailed description is acceptable. The affidavit’s reference to "photographs of nude young males and any other sexually explicit photographs" was found to be adequately specific. Moreover, the reliability of the affidavit was bolstered by the fact that the tip regarding the AOL images originated from a mandatory reporting obligation under federal law, which requires Internet service providers to report suspected child pornography. The affidavit was further supported by the investigating officer's corroboration of the images based on personal observation and experience, reinforcing the probable cause determination.
A magistrate can establish probable cause using reasonable inferences from the facts in an affidavit and can apply common sense. In this case, an officer's conclusion that certain images constituted child pornography was deemed a reasonable inference. The magistrate appropriately considered the officer's experience and the statement from an experienced postal inspector regarding the nature of the images. The affidavit referenced a statute that includes "sexually explicit conduct," reinforcing the belief that the premises contained images depicting children inappropriately. While acknowledging differing opinions on the necessity of specific descriptions in warrants for child pornography cases, the court determined that the affidavit was sufficiently detailed and not "bare bones," thereby affirming the trial court's denial of the motion to suppress evidence obtained from the search.
Additionally, the court addressed the admission of Rabes's prior statements from a federal case, where he pleaded guilty to inducing a minor into sexually explicit conduct. Despite defense objections, the prosecution was allowed to present these statements to counter the defense’s argument that the images were fabricated. Rabes claimed that the admission of these statements violated CRE 410 and his due process rights. However, as he did not specifically object to this during the trial, the appellate review focused only on plain error. CRE 410 prohibits the use of evidence related to plea negotiations, but since Rabes did not raise this issue at the trial level, the court upheld the admissibility of his statements.
The term "statements made in any connection with" pertains specifically to actual guilty plea offers or statements during plea negotiations, as established in People v. Garcia. Since the statements in question do not belong to these categories, Rule 410 does not apply. Rabes asserts that his right to plea allocution was undermined by the use of incriminatory statements, yet he provides no legal authority to support this claim, and it appears the statements were made during the plea acceptance, not allocution for sentencing. The right of allocution, a statutory right under section 16-11-102(5), C.R.S. 2010, is applicable at sentencing and is not a constitutional right. Rabes’s voluntary and understanding plea in his federal case further weakens his argument, as a guilty plea requires a waiver of certain rights, including self-incrimination. A guilty plea constitutes a stipulation that the prosecution need not present further proof, as referenced in Boykin v. Alabama. Additionally, during sentencing, the court may consider statements made by a defendant who chooses to speak.
Rabes also contends the trial court incorrectly denied his challenges to excuse two jurors for cause. This claim is rejected, with the ruling reviewed for abuse of discretion, which is a stringent standard. The trial court is better positioned to evaluate the sincerity and credibility of juror statements during voir dire. In the discussions between defense counsel and the jurors, Juror H acknowledges difficulty separating personal feelings from judgment, and Juror M expresses a presumption of guilt if the prosecution does not provide evidence that the depicted image is fake. Both jurors indicate potential bias based on their reactions to the evidence presented, raising concerns about their ability to adhere to the presumption of innocence and the prosecution's burden of proof.
Juror M expressed an understanding that the defendant is not obligated to testify and cannot be found guilty solely for not doing so. Defense Counsel emphasized that the burden of proof lies with the prosecution, which must establish the authenticity of evidence presented. Juror M indicated that unless the defense challenges the authenticity of the evidence, he would assume it to be genuine. The court found no indication that Juror M or Juror H would struggle to follow the burden of proof instruction, with Juror H acknowledging a potential bias but believing he could remain impartial. Thus, the trial court acted within its discretion by denying challenges for cause against these jurors.
In terms of sentencing, the defendant argued that consecutive sentences for two felony convictions of sexual exploitation of a child were inappropriate since they stemmed from the same evidence. However, the court upheld the consecutive sentences, noting that if distinct acts support each conviction, consecutive sentences are permissible. The court referenced Colorado's sexual exploitation statute, indicating that each exploitative image represents a separate act of victimization. Since the prosecution provided multiple distinct images of the victims, the trial court's decision to impose consecutive sentences was affirmed.
Sexual assault on a child is determined by evidence of sexual contact rather than the presence of sexually exploitative images, which justifies the trial court's decision to impose consecutive sentences for felony sexual exploitation. The distinction of whether the evidence for the charges is identical depends on whether they stem from the same act. The defendant received a 24-month sentence for misdemeanor sexual exploitation of a child, which, at the time of conviction, was classified as a class one misdemeanor with a maximum penalty of eighteen months. Consequently, the sentence for this misdemeanor must be vacated, and the case remanded for resentencing on that specific count, while all other judgments and sentences are affirmed. Judges Russel and Gabriel concur. Additionally, the document notes various legal principles and cases relevant to the proceedings, including the distinction between child protection and obscenity statutes, issues of good faith exceptions in legal proceedings, and the reporting responsibilities of internet service providers regarding child exploitation. Furthermore, it highlights the qualifications of a criminal investigator involved in the case.