The People of the State of Colorado v. Emmett Andrew Larsen

In 2013, a jury convicted defendant, Emmett Andrew Larsen,

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 fifteen years old (Count 2) for assaulting his

then-ten-year-old granddaughter. The trial court sentenced Larsen

to a controlling indeterminate prison term of eight years to life.

¶ 2 After his convictions were upheld on direct appeal, People v.

Larsen, (Colo. App. No. 14CA0487, July 20, 2017) (not published

pursuant to C.A.R. 35(e)), as modified on denial of reh'g (Oct. 26,

2017) (cert. denied June 25, 2018), Larsen sought habeas corpus

relief from the federal district court. Larsen v. Williams, Civ. A. No.

18-cv-02669-JLK, 2019 WL 6173668 (D. Colo. Nov. 20, 2019)

(unpublished order).1

¶ 3 In his habeas petition, Larsen argued, as relevant here, that

the jury's findings and verdicts were insufficient to support his

1 This case's extensive factual and procedural histories are laid out

in depth in the opinions by our court and the federal district court.

See People v. Larsen, (Colo. App. No. 14CA0487, July 20, 2017) (not

published pursuant to C.A.R. 35(e)), as modified on denial of reh'g

(Oct. 26, 2017) (cert. denied June 25, 2018); Larsen v. Williams, Civ.

A. No. 18-cv-02669-JLK, 2019 WL 6173668 (D. Colo. Nov. 20, 2019)

(unpublished order).

2

conviction for Count 1, the pattern count. Specifically, Larsen

contended that the question of whether the sex assault was

committed as part of a pattern — in other words, whether there

were two or more incidents of sexual contact — wasn't submitted to

and found beyond a reasonable doubt by the jury. Thus, Larsen

argued, that conviction violated his Sixth and Fourteenth

Amendment constitutional rights to have any fact that increases the

penalty for a crime submitted to a jury and proved beyond a

reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 476,

490 (2000); Alleyne v. United States, 570 U.S. 99, 103 (2013).

¶ 4 The federal district court agreed with Larsen and concluded

that he was entitled to habeas relief. However, the court observed

that the proper remedy was unclear given Larsen's multiple

convictions and the way they were entered on the mittimus. The

federal district court concluded that the question of remedy was

more appropriate for the state courts and therefore conditionally

granted the writ of habeas corpus while instructing the state courts

to "take action to remedy the constitutional violation detailed in [its]

[o]rder within 90 days” or to release Larsen from custody. Larsen,

2019 WL 6173668, at *18.

3

¶ 5 Back in the postconviction court, the parties disagreed on how

to interpret the mittimus from Larsen's sentencing and, in turn,

how the court should comply with the federal district court's order.

¶ 6 The mittimus provided that Larsen "was found guilty after trial

of:”

 "Count # 1,” SAOC-POT as part of a pattern; and

 "Count # 2,” SAOC-POT with a victim under fifteen years

old, which "merged into Count 1 for sentencing.”

(Emphasis added.)

¶ 7 The People contended that the trial court2 couldn't legally

merge the convictions because they were based on separate

instances of contact. Thus, the People argued, either the court

meant that it was sentencing Larsen concurrently on the two

counts, not merging them, or the counts were improperly merged

and the sentence was illegal. Based on all this, the People

contended that the postconviction court should (1) keep Count 1

2 For the sake of clarity, we refer to the district court that oversaw

Larsen's 2013 trial and sentenced him as "the trial court” and the

district court that oversaw Larsen's case after his successful habeas

petition as "the postconviction court.”

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but revert it to a lower class felony without the pattern

enhancement and (2) resentence Larsen on both Counts 1 and 2.

¶ 8 Defense counsel, on the other hand, argued that (1) Count 1

had to be vacated based on the constitutional issues identified by

the federal court; and (2) Count 2 couldn't be reinstated because

the trial court had merged it into Count 1, and, as a result, the

count was vacated. Defense counsel therefore sought Larsen's

immediate release.

¶ 9 Ultimately, the postconviction court vacated Count 1, the

pattern count, "leaving one conviction in place” for Count 2.3 In

doing so, the postconviction court concluded that there was a

separate verdict and conviction for Count 2, which was not

impacted by the issues with Count 1. The postconviction court

then sentenced Larsen on Count 2 to time served and twenty years

to life of sex offender intensive supervision probation (SOISP).

3 While this case was in the postconviction court, the presiding

judge retired, and a new judge took over. Both judges, in separate

hearings, determined that Larsen had been and should remain

convicted of Count 2. We describe the district court judges'

conclusions in the singular for ease of reference.

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¶ 10 On appeal, Larsen contends that the postconviction court

erred by sentencing him on Count 2 because (1) that count was

vacated and couldn't be reinstated, and (2) the trial court had erred

by not requiring the prosecution to elect the act of sexual assault

underlying that count. We affirm the judgment and hold that, when

a defendant is convicted of multiple counts on multiple jury verdicts

and some of the counts merge, the merged counts can be

reinstated. We also remand the case for correction of the mittimus.

I. Reinstatement of Count 2

A. Standard of Review

¶ 11 Larsen's challenges to the reinstatement of Count 2 raise

questions of law that we review de novo. See Fransua v. People,

2019 CO 96, ¶ 11 ("We . . . review questions of law de novo.”);

People v. Firm, 2014 COA 32, ¶ 6 ("We review de novo constitutional

challenges to sentencing determinations.”); People v. Wood, 2019

CO 7, ¶¶ 29-31, 33, 36 (reviewing state court's modification of a

mittimus in light of a successful habeas petition de novo); Crespin

v. People, 721 P.2d 688, 690-91 (Colo. 1986) (reviewing the denial of

defendant's Crim. P. 35(c) motion seeking relief from a

constitutionally infirm offense de novo).

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B. The Conviction

¶ 12 As an initial matter, for the sake of clarity, we note that

Larsen's conviction for Count 2 was for SAOC-POT where the victim

is less than fifteen years of age, a class 3 felony. See

§ 18-3-405.3(1), (2)(a), C.R.S. 2022. This is how both the original

2014 mittimus and the 2021 post-habeas-petition mittimus

describe Count 2. And although the complaint lists Count 2 as

"SAOC-POT” (without the victim-age specification in the title), the

narrative for that count describes that the sexual assault was on a

"victim less than fifteen years of age.” Additionally, the complaint

alleges that this assault was in violation of the specific subsection

of the SAOC-POT statute that deals with victims less than fifteen:

section 18-3-405.3(2)(a).

¶ 13 Similarly, although the jury verdict and form describe Count 2

as "SAOC-POT” (again without the victim-age specification), the jury

instructions provided that, to convict Larsen of SAOC-POT, the jury

had to find that the prosecution proved each of the following

elements beyond a reasonable doubt:

1. That the defendant,

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2. in the State of Colorado, at or about the

date and place charged,

3. knowingly subjected a child,

4. not his spouse,

5. to any sexual contact, and

6. that person was less than fifteen years of

age, and

7. the defendant was in a position of trust

with respect to the victim.

(Emphasis added.)

¶ 14 Although 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. See People v. Mendenhall, 2015 COA 107M, ¶ 84 (if the

language of the mittimus is inconsistent with the sentencing court's

oral ruling, the oral ruling reflects the governing ruling; the

mittimus should be corrected). It is also apparent that the

postconviction court vacated Count 1. On appeal, the People

suggest that one way this court could affirm the outcome below is

by re-entering judgment on Count 1. But the prosecutor didn't

object when the postconviction court vacated Count 1. Instead, the

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prosecutor opted to proceed to sentencing on Count 2 rather than

to retry Larsen on Count 1. And the People did not cross-appeal

the postconviction court's decision to vacate Count 1. Thus, under

these circumstances, the People cannot revive Count 1 on appeal.

Forgette v. People, 2023 CO 4, ¶¶ 28-30 (holding that waiver

extinguishes error and thus appellate review); C.A.R. 4(b)(6)(A);

People v. Chetelat, 833 P.2d 771, 773 (Colo. App. 1991) (noting the

People must cross-appeal an order vacating a sentence to obtain

appellate review).

C. Postconviction Court Proceeding

¶ 15 Larsen challenges the reinstatement of Count 2 on the

grounds that neither Crim. P. 36 nor Crim. P. 35(a) provides

authority for reinstating a previously vacated count. We see no

error.

¶ 16 Once Larsen's case was back in the postconviction court, after

the habeas proceedings were complete, defense counsel filed a

motion asking the postconviction court to "comply with” the federal

district court's order. As defense counsel observed in this motion,

the federal court instructed the state courts to "craft a remedy to

the constitutional violation” it found or release Larsen. Thus, we

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conclude that 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. See People v. Collier, 151 P.3d 668, 670

(Colo. App. 2006) ("The substance of a postconviction motion

controls” what type of motion it is, and "[m]otions under Crim. P.

35(c) are the proper postconviction route in which to challenge

convictions or sentences as unconstitutional.”).

¶ 17 Crim. P. 35(c)(3) authorizes a court to correct a violation of a

defendant's constitutional rights by vacating, setting aside, or

correcting the defendant's sentence, or "mak[ing] such order as

necessary to correct a violation of his constitutional rights.” Thus,

once Larsen filed his Crim. P. 35(c) motion, the postconviction court

was acting within its authority when it vacated Count 1 and entered

the conviction and sentenced Larsen on Count 2. See Crespin, 721

P.2d at 690-91 (reviewing a Crim. P. 35(c) motion and ruling that,

for a constitutionally infirm conviction to be corrected, the

defendant should be retried or resentenced on a lesser included

offense).

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D. Reinstatement

¶ 18 Larsen argues that the postconviction court erred by

sentencing him on Count 2 because it was "purposefully merged”

into Count 1; thus, Larsen contends, Count 2 was vacated and "no

conviction existed for which . . . Larsen could be lawfully

sentenced.” We are unpersuaded.

¶ 19 In making this argument, Larsen relies primarily on our

supreme court's decision in People v. Wood, 2019 CO 7. But Wood

doesn't go this far.4

¶ 20 In Wood, our supreme court considered what impact multiple

guilty verdicts and their reflection on a defendant's mittimus have

on the defendant's double jeopardy rights. The defendant in Wood

was found guilty of (1) second degree murder; (2) first degree felony

murder (with aggravated robbery as the predicate felony); and

4 To the extent Larsen raises other challenges to the reinstatement

of Count 2, they are conclusory and insufficiently developed. We

therefore decline to address them. See Fisher v. State Farm Mut.

Auto. Ins. Co., 2015 COA 57, ¶ 18 (Appellate courts "generally

decline to address arguments presented” in a "conclusory manner

that are lacking citations to any supporting authority.”), aff'd, 2018

CO 39; People v. Gingles, 2014 COA 163, ¶ 29 (An appellate court

will decline to address issues when presented in a "contradictory,

cursory, and undeveloped manner.”).

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(3) aggravated robbery, all related to the killing of the same victim.

The trial court imposed a single sentence — life imprisonment — on

the three counts and issued a mittimus that provided,

The Defendant . . . was found Guilty, . . . by

the Court, of the offense(s) of[:]

Count 1, Murder in the First Degree,

(convicted of second degree murder) F-2

Count 2, Murder in the First Degree [felony

murder], . . . [and]

Count 3, Aggravated Robbery . . .

. . . .

It is now the Judgment and Sentence of the

Court that . . .

Counts 1, 2 & 3 are merged and defendant is

sentenced to life[.]

Wood, ¶ 10.

¶ 21 Upon Wood's petition for federal habeas relief, the United

States Court of Appeals for the Tenth Circuit determined that he

was "simultaneous[ly] convict[ed] [of] first and second degree

murder,” which violated his double jeopardy rights. Id. at ¶¶ 1-2,

13 (quoting Wood v. Milyard, 721 F.3d 1190, 1195 (10th Cir. 2013)).

The Tenth Circuit therefore instructed that the first degree

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conviction must be vacated while the second degree conviction

could stay in place. Id. at ¶ 1.

¶ 22 The case then made its way back to the Colorado Supreme

Court, where that court concluded that the Tenth Circuit

"misunderstood the original mittimus.” Id. at ¶ 4. Specifically, the

court observed that, because the trial court merged the two murder

convictions, the merged count was vacated; thus, the defendant

was convicted of only one count of murder, and "there was no other

murder conviction to be vacated,” as instructed by the Tenth

Circuit. Id. at ¶¶ 4-5.

¶ 23 The supreme court's holding in Wood resolved only that a

mittimus reflecting multiple guilty verdicts and one resulting

conviction doesn't violate a defendant's double jeopardy rights. Id.

at ¶¶ 36-37. The court did not, as Larsen suggests, conclude that a

merged count could never be reinstated or that doing so would

necessarily violate a defendant's double jeopardy rights.

¶ 24 Instead, the court observed that "[n]othing in double jeopardy

jurisprudence prohibits the documentation of guilty verdicts in a

mittimus, judgment of conviction, or sentencing order.” Id. at ¶ 25.

The purpose of documenting guilty verdicts and convictions, even

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when they merge, is for situations exactly like the one here — where

one conviction is found infirm, the unimpacted jury verdicts can be

reinstated. And courts, including our supreme court, have

regularly reinstated lesser included convictions that were merged or

improperly vacated. See, e.g., Doubleday v. People, 2016 CO 3, ¶ 34

(instructing the court of appeals to vacate defendant's conviction for

felony murder and reinstate the previously merged second degree

murder conviction); People v. Leske, 957 P.2d 1030, 1046 (Colo.

1998) (reversing court of appeals' judgment vacating a conviction of

sexual assault on a child and instructing that the conviction be

reinstated); United States v. Silvers, 90 F.3d 95, 99, 101-02 (4th Cir.

1996) (holding that the "district court's action [in a federal habeas

proceeding] of reinstating [defendant's] previously-vacated [lesser

included] conspiracy conviction, after vacating his [continuing

criminal enterprise] conviction on grounds that did not affect the

conspiracy conviction, was appropriate, and did not violate the

Double Jeopardy Clause”); United States v. Ward, 37 F.3d 243, 251

(6th Cir. 1994) (remanding for resentencing on a previously vacated

lesser included conviction after the greater offense was vacated);

United States v. Cabaccang, 481 F.3d 1176, 1184 (9th Cir. 2007)

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(concluding that a previously vacated conviction was correctly

reinstated after the greater conviction was ultimately vacated);

United States v. West, 201 F.3d 1312, 1312 (11th Cir. 2000) (per

curiam) (remanding for the district court to reinstate a previously

vacated conspiracy conviction that had been vacated only because

it was a lesser included offense of a conviction that was later

vacated).

¶ 25 Thus, we reject Larsen's contention that, because Count 2 was

previously merged and "vacated,” it couldn't be reinstated.

¶ 26 Larsen also contends, without explanation or legal citation,

that Count 2 couldn't be reinstated because doing so would violate

his double jeopardy rights. This argument is conclusory, see People

v. Wiseman, 2017 COA 49M, ¶ 48 ("[I]ssues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.” (quoting United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990))). Nevertheless, we

conclude that reinstating Count 2 didn't violate the Double

Jeopardy Clause. See United States v. Wilson, 420 U.S. 332, 353-

54 (1975) (holding that the reinstatement of a jury's verdict of

conviction that had erroneously been vacated after a post-trial

15

motion didn't violate the Double Jeopardy Clause because the

reinstatement didn't subject the defendant to a new trial or multiple

punishments); Silvers, 90 F.3d at 99, 101-02 (relying on the

Supreme Court's decision in Wilson to hold that district court's

reinstatement, in a federal habeas proceeding, of defendant's

previously vacated lesser included conspiracy conviction did not

violate the Double Jeopardy Clause).

II. Unanimity

¶ 27 Larsen also contends that his conviction on Count 2 violates

his right to a unanimous verdict because the trial court did not

require the People to specify on which alleged sexual contact the

count was based.5 We are not persuaded.

A. Background

¶ 28 At trial, the People presented evidence, as relevant to this

appeal, that Larsen touched his granddaughter on three occasions:

(1) once he touched her breasts over her clothes; (2) once he

5 Although Larsen already had a direct appeal, Larsen, No.

14CA0487, he didn't have the opportunity or any reason to raise

the unanimity issue at that time because Count 2 had merged into

Count 1.

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touched her breasts under her clothes; and (3) once he touched her

vaginal area.

¶ 29 During the discussion regarding jury instructions, defense

counsel requested that the People elect which act they intended to

rely upon for each of the charges. The trial court denied counsel's

request, saying it would give "the unanimity instruction in lieu

thereof.” The unanimity instruction provided that "[e]ach verdict

[the jurors] reach must be unanimous [and,] [i]n reaching each

verdict, [the jurors] must unanimously agree to the specific act

which underlies the verdict.”

¶ 30 The instruction continued as follows:

Before you may convict [Larsen] of Sexual

Assault on a Child by One in a Position of

Trust[, Count 2], and Sexual Assault on a

Child by One in a Position of Trust-Pattern of

Abuse, [Count 1], you must unanimously agree

which act of sexual contact has been proven

beyond a reasonable doubt.

(Emphasis added.)

¶ 31 The jurors completed the verdict forms, indicating that they

found Larsen guilty of both counts. Additionally, the jurors

answered an interrogatory in which they indicated, as relevant here,

that they found beyond a reasonable doubt that Larsen committed

17

the second alleged contact — i.e., that Larsen assaulted his

granddaughter by touching her breasts under her shirt.

B. Relevant Law and Analysis

¶ 32 A defendant has the right to a jury trial and a unanimous jury

verdict. U.S. Const. amends. VI, XIV; Colo. Const. art. II, §§ 16, 25;

People v. Archuleta, 2020 CO 63M, ¶ 20 (first citing § 16-10-108,

C.R.S. 2022; then citing Crim. P. 23(a)(8); and then citing Crim. P.

31(a)(3)).

¶ 33 When the prosecution presents evidence of multiple discrete

acts that could constitute the charged crime — in this case, the

alleged sexual contacts between Larsen and his granddaughter that

could constitute sexual assault on a child — it "may be compelled

to select the transaction on which [it is] relying for a conviction.”

Archuleta, ¶ 21. If, however, the prosecution does not elect, 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. Id. at

¶ 22. If the modified unanimity instruction sufficiently cures any

harm from the prosecution's failure to individualize the counts

charged in the information, then any failure to elect does not cause

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a due process violation. Quintano v. People, 105 P.3d 585, 595

(Colo. 2005).

¶ 34 We review de novo whether a defendant's due process rights

were violated by the prosecution's failure to elect the specific act it

is relying on for a conviction. Id. at 592. Because Larsen preserved

this error by requesting that the People elect in this case, we will

reverse unless the error was harmless beyond a reasonable doubt.

See People v. Perez-Hernandez, 2013 COA 160, ¶ 58.

¶ 35 Here, the trial court provided a modified unanimity instruction

that explicitly told the jury that, to find Larsen guilty of Count 2,

the jurors "must unanimously agree which act of sexual contact

has been proven.” We presume the jury followed the court's

instructions. See Johnson v. People, 2019 CO 17, ¶ 16. And not

only is there a unanimous jury verdict finding Larsen guilty of this

count, but, as Larsen notes in his brief, the jury also expressly

found in an interrogatory response that one of the alleged acts of

sexual contact — the under-the-shirt breast contact — occurred.

Thus, in addition to the jury finding beyond a reasonable doubt that

all the elements of Count 2 were proved, we also know that the jury

unanimously found beyond a reasonable doubt that at least one of

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the acts of sexual contact occurred. Under these circumstances, we

conclude that Larsen's due process rights weren't violated by the

entry of conviction on Count 2. See People v. Ramos, 2017 COA

100, ¶ 24 (instructing the district court to enter a conviction for a

single count of theft where the interrogatories demonstrated the

prosecution proved the essential elements of that offense); People v.

Sepulveda, 65 P.3d 1002, 1004 (Colo. 2003) (holding that "because

the jury verdict on first-degree murder, absent the tainted element

of 'after deliberation' established all of the elements of seconddegree murder,” it was proper on remand for "the trial court to enter

a conviction for that charge”).

III. Mittimus

¶ 36 Our review of the mittimus shows that it 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

fifteen 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, as discussed, Larsen's conviction on Count 1 was vacated.

Thus, the mittimus should reflect the verdict after trial for only

20

Count 2 and the corresponding sentence: time served and twenty

years to life of SOISP.

¶ 37 We therefore remand this case to the district court to correct

these clerical errors. See Crim. P. 36 (clerical mistakes in

judgments may be corrected by the court at any time); Mendenhall,

¶ 84.

The judgment of conviction for Count 2, SAOC-POT with a

victim less than fifteen years of age, a class 3 felony under section

18-3-405.3(2)(a), is affirmed. The case is 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.