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

Description: 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(unpublished order).1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(unpublished order).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
12
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
13
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.

Outcome: 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.

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