CO Code § 18-3-405 (2021)
2021 Colorado Code|Title 18 - Criminal Code|Article 3 - Offenses Against the Person|Part 4 - Unlawful Sexual Behavior|§ 18-3-405. Sexual Assault on a Child

  Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child if the victim is less than fifteen years of age and the actor is at least four years older than the victim.    Sexual assault on a child is a class 4 felony, but it is a class 3 felony if:   The actor applies force against the victim in order to accomplish or facilitate sexual contact; or    The actor, in order to accomplish or facilitate sexual contact, threatens imminent death, serious bodily injury, extreme pain, or kidnapping against the victim or another person, and the victim believes that the actor has the present ability to execute the threat; or    The actor, in order to accomplish or facilitate sexual contact, threatens retaliation by causing in the future the death or serious bodily injury, extreme pain, or kidnapping against the victim or another person, and the victim believes that the actor will execute the threat; or    The actor commits the offense as a part of a pattern of sexual abuse as described in subsection (1) of this section. No specific date or time must be alleged for the pattern of sexual abuse; except that the acts constituting the pattern of sexual abuse, whether charged in the information or indictment or committed prior to or at any time after the offense charged in the information or indictment, shall be subject to the provisions of section 16-5-401 (1)(a), concerning sex offenses against children. The offense charged in the information or indictment shall constitute one of the incidents of sexual contact involving a child necessary to form a pattern of sexual abuse as defined in section 18-3-401 (2.5). Prosecution for any incident of sexual contact constituting the offense or any incident of sexual contact constituting the pattern of sexual abuse may be commenced and charged in an information or indictment in a county where at least one of the incidents occurred or in a county where an act in furtherance of the offense was committed.       If a defendant is convicted of the class 3 felony of sexual assault on a child pursuant to paragraphs   to (d) of subsection (2) of this section, the court shall sentence the defendant in accordance with the provisions of section 18-1.3-406.       A person who is convicted on or after July 1, 2013, of sexual assault on a child under this section, upon conviction, shall be advised by the court that the person has no right:   To notification of the termination of parental rights and no standing to object to the termination of parental rights for a child conceived as a result of the commission of that offense;    To allocation of parental responsibilities, including parenting time and decision-making responsibilities for a child conceived as a result of the commission of that offense;    Of inheritance from a child conceived as a result of the commission of that offense; and    To notification of or the right to object to the adoption of a child conceived as a result of the commission of that offense.        History. Source: L. 75: Entire part R&RE, p. 630, § 1, effective July 1. L. 77: (1) amended, p. 962, § 18, effective July 1. L. 83: (2) amended, p. 693, § 2, effective June 15. L. 86: (3) added, p. 777, § 7, effective July 1. L. 89: (2)(b) and (3) amended and (2)(c) added, p. 903, §§ 2, 3, effective June 1. L. 90: (2)(b) repealed, p. 1033, § 25, effective July 1. L. 95: (2) and (3) amended, p. 1252, § 11, effective July 1. L. 2002: (2)(d) amended, p. 1582, § 8, effective July 1; (3) amended, p. 1513, § 191, effective October 1. L. 2006: (2)(d) amended, p. 413, § 2, effective July 1. L. 2013: (4) added,(SB 13-227), ch. 353, p. 2061, § 9, effective July 1. L. 2017: (2)(d) amended,(HB 17-1109), ch. 97, p. 293, § 2, effective April 4.    Editor's note:   This section is similar to former § 18-3-408 as it existed prior to 1975.   Cross references:   For the legislative declaration contained in the 2002 act amending subsection (3), see section 1 of chapter 318, Session Laws of Colorado 2002.   ANNOTATION   Law reviews. For note, “One Year Review of Constitutional Law”, see 41 Den. L. Ctr. J. 77 (1964). For article, “The Adolescent Sex Offender: An Overview”, see 16 Colo. Law. 1844 (1987). For comment, “Warning Bell: The Inherent Difficulties of Responding to Student-on-Student Sexual Harassment in Colorado Middle Schools”, see 76 U. Colo. L. Rev. 813 (2005).   Annotator's note. Since § 18-3-405 is similar to former § 18-3-408 , as it existed prior to the 1975 revision of this part, and § 40-2-32 , C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.   Enhanced crime of violence sentence on conviction for pattern of sexual assault on a child does not violate defendant's due process and equal protection guarantees. Prosecution not required to charge and prove a separate crime of violence count pursuant to § 16-11-309 (4) and (5) for per se crimes of violence even though the elements of the pattern sentence enhancer do not overlap with the elements of a crime of violence. People v. Brown, 70 P.3d 489 (Colo. App. 2002).   Neither § 18-3-403 (1) nor subsection (1) is lesser included offense of the other, as each contains elements not found in the other. People v. Opson, 632 P.2d 602 (Colo. App. 1980).   Convictions under both not double jeopardy. Convictions for violations of § 18-3-403 (1) and subsection (1) arising from the same act do not constitute double jeopardy. People v. Opson, 632 P.2d 602 (Colo. App. 1980).   But sexual assault on a child, as described in subsection (1), is a lesser included offense of second degree sexual assault, as described in § 18-3-403 (1)(e) . Accordingly, defendant could not be convicted of both offenses, and the court was required to vacate the conviction that would effectuate as fully as possible the jury's verdict. As such, the court was required to consider the general assembly's felony classification of the various crimes committed by the defendant, together with the length of sentences, and maximize the jury's verdict, which gives effect to the most serious offense. People v. Gholston, 26 P.3d 1 (Colo. App. 2000).   The “pattern” provision of subsection (2)(d) does not violate the double jeopardy protection against multiple punishments. Separate convictions and punishments authorized by the legislature never violate double jeopardy. The general assembly intended to authorize separate convictions for each incident of sexual assault on a child and authorized enhanced punishment of each assault that is committed as part of a “pattern of sexual abuse”. People v. Simon, 266 P.3d 1099 (Colo. 2011).   No double jeopardy violation for imposing sentences under §§ 18-3-405 and 18-3-405 .3. Each section required a different element, a pattern of abuse for the first and being in a position of trust for the second, thus, there was no double jeopardy violation. People v. Tillery, 231 P.3d 36 (Colo. App. 2009), aff'd sub nom. People v. Simon, 266 P.3d 1099 (Colo. 2011).   No double jeopardy violation for conviction of sexual assault on a child and conviction of sexual assault on a child-pattern. Each count was based on a separate volitional incident that was separated by time and intervening events. People v. Greer, 262 P.3d 920 (Colo. App. 2011).   Conviction under this section is not violative of equal protection on grounds that § 18-3-404 prohibits the same conduct with a lesser penalty. Statutory classifications are valid, even if difference in prohibited conduct is only a matter of degree. People v. Oliver, 745 P.2d 222 (Colo. 1987).   This section does not violate equal protection of the laws under the Colorado Constitution because, although the felony offense of sexual assault on a child by one in a position of trust and the misdemeanor offense of sexual assault in the third degree under § 18-3-404 (1)(e) contain some of the same elements, the two offenses contain elements which make them distinguishable. The fact that a single act may give rise to more than one criminal violation does not, by itself, create an equal protection problem. People v. Madril, 746 P.2d 1329 (Colo. 1987).   Although the same conduct can fit sexual assault on a child and child abuse, § 18-6-401 , the statutes also proscribe different conduct and have different legislative purposes, so there is no equal protection violation. The sexual assault statute requires sexual contact, and the child abuse statute requires serious bodily injury. Those differences show the legislature's intent to protect child from two different types of conduct even though they may overlap. People v. Lovato, 2014 COA 113 , 357 P.3d 212.   “Sexual” modifies “abuse” in the definition of “sexual contact” in § 18-3-401 (4) and is not unconstitutionally vague as applied to a perpetrator who targets a victim's intimate parts for purposes of causing physical harm. People v. Lovato, 2014 COA 113 , 357 P.3d 212.   The plain language of § 18-3-401 (4) indicates that sexual contact occurs when a defendant touches an intimate part of a victim for purposes of sexual arousal, gratification, or abuse. A reasonable person could determine that he or she would violate this statute by targeting a victim's intimate parts for purposes of causing physical harm. A reasonable person could also determine that, when a purpose of “sexual abuse” is required, specifically targeting a victim's intimate parts for the purpose of causing pain could constitute sexual abuse, or abuse to the victim's sexual organs. People v. Lovato, 2014 COA 113 , 357 P.3d 212.   Subsection (2)(c) does not violate due process by allowing the prosecution to use evidence of alleged uncharged crimes since evidence of multiple instances of sexual abuse is not similar transaction evidence but rather evidence that forms integral part of the offense. People v. Bowring, 902 P.2d 911 (Colo. App. 1995).   Conduct proscribed by this section is different than conduct proscribed by § 18-6-403 , sexual exploitation of a child, and imposing different penalties for the two sections does not offend equal protection. People v. Slusher, 844 P.2d 1222 (Colo. App. 1992).   Subsection (2)(c) does not violate equal protection of the law since the classification of those charged with pattern sexual offense involving children has a rational basis in fact and is reasonably related to the legitimate governmental interest of protecting young children. People v. Bowring, 902 P.2d 911 (Colo. App. 1995).   Subsection (2)(c) is not unconstitutionally vague. People v. Longoria, 862 P.2d 266 (Colo. 1993); People v. Graham, 876 P.2d 68 (Colo. App. 1994); People v. Luman, 994 P.2d 432 (Colo. App. 1999).   Subsection (2)(c) was possibly applied ex post facto, therefore, enhancement portion of conviction is reversed where several assaults occurred before this law was enacted, the verdict could have been based on an act that preceded the law's enactment, and the jury was not instructed that the conviction had to be based on an act that occurred after the law's passage. People v. Graham, 876 P.2d 68 (Colo. App. 1994).   If the acts preceding the date of the enactment of the statute are included in the charges , the jury must be instructed not to consider them in determining defendant's guilt or innocence with respect to sexual abuse as a part of a pattern of sexual abuse. If the jury is permitted to consider them, the statute, as applied to the defendant, is retrospective and violates the ex post facto prohibition. People v. Luman, 994 P.2d 432 (Colo. App. 1999).   Subsection (2)(c) did not violate the prohibition against ex post facto laws since the defendant had the requisite fair warning of the consequences of committing the offense with which he was charged. People v. Bowring, 902 P.2d 911 (Colo. App. 1995).   Subsection (2)(c) did not violate the prohibition against ex post facto laws since the conduct that triggered the pattern sexual abuse statute occurred after the statute's effective date. People v. Bowring, 902 P.2d 911 (Colo. App. 1995).   Although defendant's criminal acts were committed prior to the effective date of subsection (2)(d), application of this subsection to him did not violate the ex post facto clauses of the federal and state constitutions, because the general assembly had passed legislation increasing the penalty for sexual assault as a pattern of sexual abuse as early as 1989, before defendant committed the acts for which he was convicted. Because the acts were therefore not innocent when committed and the changes to subsection (2)(d) did not change the punishment or deprive defendant of a defense, subsection (2)(d) was not an ex post facto law. People v. Gholston, 26 P.3d 1 (Colo. App. 2000).   The 1982 amendment extending the statute of limitations from a three-year period to a seven-year period for the offense of sexual assault on a child applies to all offenses which are not time-barred as of the effective date of the amendatory legislation. People v. Whitesell, 729 P.2d 985 (Colo. 1986).   Section not inconsistent with § 18-3-402 . Charges under each section are distinguishable by the nature of the prohibited sexual activity. People v. Hawkins, 728 P.2d 385 (Colo. App. 1986).   Convictions on four separate counts of sexual assault on a child, based upon different types of sexual contact, but not clearly separate incidents, violates constitutional prohibition against double jeopardy. Defendant, therefore, received more than one sentence for each single contact, and the charges were multiplicative. People v. Woellhaf, 105 P.3d 209 (Colo. 2005).   But, if evidence supports a conclusion that the offenses were separated in time or location, and comprised separate volitional departures, defendant may be charged and convicted on separate offenses for identically worded counts of sexual assault on a child without violating constitutional prohibitions on double jeopardy. Quintano v. People, 105 P.3d 585 (Colo. 2005).   The phrase “subjects another ... to any sexual contact” encompasses when an adult defendant allows a child to touch the defendant's intimate parts. By doing so, the defendant subjects the child to sexual contact. The people are not required to prove that the defendant caused the child-victim to become subservient or subordinate or that the child-victim initiated the sexual contact at the defendant's directive. People v. Sparks, 2018 COA 1 , 434 P.3d 713.   Ejaculation of semen onto clothing covering another person's intimate parts may constitute “touching” for purposes of establishing the “sexual contact” element of sexual assault on a child. People v. Vinson, 42 P.3d 86 (Colo. App. 2002).   Subsections (1) and (2)(a) contain no language requiring the prosecution to prove that a defendant's conduct was against the victim's will. Unlike sexual crimes committed against adults, in which the prosecution must prove nonconsent as an element of the offense, this section contains no such element and recognizes that a child cannot legally consent to sexual contact or to any conduct that facilitates that sexual contact. People v. Hodge, 2018 COA 155 , __ P.3d __.   A child victim cannot consent to the use of force. A defendant may not assert the defense of consent to the force aggravator in subsection (2)(a) when it is not authorized as a defense to the crime itself under subsection (1). A court may not read a nonconsent element into this section or a force aggravator that is not there. People v. Hodge, 2018 COA 155 , __ P.3d __.   The term “pattern of sexual abuse” is clearly and unambiguously defined in § 18-3-401 (2.5) and, therefore, the sentencing enhancement provision of subsection (2)(c) which incorporates that term is not unconstitutionally vague. People v. Longoria, 862 P.2d 266 (Colo. 1993).   Defining sexual assault on a child as part of a “pattern of sexual abuse” is a sentencing enhancer of sexual assault on a child because it increases the punishment for that offense from a class 4 felony to a class 3 felony. People v. Luman, 994 P.2d 432 (Colo. App. 1999).   The “pattern” provision of subsection (2)(d) is not a separate offense, rather it allows each incident to be elevated to a class 3 felony. The definition of “pattern of sexual abuse” does not establish a separate offense; the unit of prosecution remains the substantive crime. The plain language of the statute authorizes greater punishment for the substantive crime, which is sexual assault on a child. People v. Simon, 266 P.3d 1099 (Colo. 2011).   A pattern count citing both the statute on sexual assault on a child and the pattern sentence enhancer is sufficient to charge both charges. People v. Bobrik, 87 P.3d 865 (Colo. App. 2003).   Although a conviction for sexual assault on a child as part of a pattern of abuse requires violent crime sentencing, that fact does not make it a violent crime as defined in § 18-1.3-406 . People ex rel. A.B.-B., 215 P.3d 1205 (Colo. App. 2009).   Trial court did not err in denying the request for a jury trial. Since defendant's charge of sexual assault on a child did not include charges of bodily injury, intimidation, threats, or force, defendant was not charged with a crime of violence as defined in § 18-1.3-406 and, subsequently, was not entitled to a jury trial. People ex rel. A.B.-B., 215 P.3d 1205 (Colo. App. 2009).   In order to impose the pattern of sexual abuse sentence enhancer, defendant must be convicted of at least two completed acts of sexual contact against a child. The jury found defendant guilty of only attempted, not completed offenses, and there was no other conduct that the jury could have relied upon to come to the conclusion there was a pattern of sexual abuse. People v. Day, 230 P.3d 1194 (Colo. 2010).   Trial court erred in entering a conviction for “sexual assault on a child - pattern of abuse” since the verdict form that the jury used to find defendant guilty of the pattern of abuse offense did not give the jury the opportunity to find that the defendant committed the elements of sexual assault on a child. At most, the verdict form showed the jury's factual finding of different incidents of sexual contact. In addition, the jury specifically found the defendant not guilty of the charge of sexual assault on a child. Sanchez v. People, 2014 CO 29, 325 P.3d 553.   Defendant's position of trust in relation to victim could not be used as aggravating factor under § 18-1-105 where it was also element of substantive crime. People v. Garciadealba, 733 P.2d 1240 (Colo. App. 1986).   The crime of sexual assault on a child as part of a pattern of sexual abuse is not a lesser included offense of the crime of sexual assault on a child by one in a position of trust. In addition, neither of these are sentence enhancers for a person convicted of sexual assault on a child. All are separate crimes and each requires proof of facts not required by any of the others. People v. Valdez, 874 P.2d 415 (Colo. App. 1994).   Dismissal of specific counts alleging a violation of subsection (1) does not preclude conviction on subsection (2)(d). People v. Melillo, 976 P.2d 353 (Colo. App. 1998), aff'd, 25 P.3d 769 (Colo. 2001).   Verdicts for sexual assault on a child as part of a pattern of sexual abuse and sexual assault on a child by one in a position of trust were not inconsistent and were based upon separate statutory provisions requiring proof of different elements. People v. Hoefer, 961 P.2d 563 (Colo. App. 1998).   Where the jury instructions invited the jury to find defendant guilty of a pattern of sexual abuse count based on any two sexual acts, regardless of when they occurred, the conviction required reversal. Since the pattern of sexual abuse under subsection (2)(d) is a sentence enhancer to a crime charged under subsection (1), only a count charged under subsection (1) can serve as the predicate offense, and the jury must find the defendant guilty both of the predicate offense and of another act of sexual abuse occurring within 10 years prior to the period in which the predicate offense occurred. Reversal of the conviction was required where the jury instruction did not specify the 10-year requirement. People v. Gholston, 26 P.3d 1 (Colo. App. 2000).   Jury verdict form for sexual assault on a child should not have included the word “pattern” because pattern is a sentence enhancement and not a separate offense. However, use of such instruction was not plain error because there was no reasonable possibility that it contributed to defendant's convictions. People v. Brown, 70 P.3d 489 (Colo. App. 2002).   The people adequately elected the specific acts underlying each count that constituted the pattern of sexual abuse. People v. Greer, 262 P.3d 920 (Colo. App. 2011).   Both the predicate act and the earlier pattern act or acts may occur within the period alleged in the pattern of sexual assault count in the information. The period in the information was less than ten years, therefore it would have been impossible to find the defendant guilty of the enhancer unless the jury found the defendant committed two separate acts within the period in the information. People v. Honeysette, 53 P.3d 714 (Colo. App. 2002).   Enhanced penalty under subsection (2)(d) improper when, based on jury instruction and argument of prosecutor, jury could have found a pattern of abuse from multiple sexual contacts during a single sexual assault episode. People v. Woellhaf, 87 P.3d 142 (Colo. App. 2003), rev'd on other grounds, 105 P.3d 209 (Colo. 2005).   Former section held constitutional. Gallegos v. People, 176 Colo. 191 , 489 P.2d 1301 (1971).   Purpose of former statute was to protect morals of children. The evident purpose of former statute was to protect children under a certain age from those acts which would tend to corrupt their morals, so that the question of the consent or nonconsent of those included within the law was not material, because its prime object was to protect the morals of such youth. Dekelt v. People, 44 Colo. 525 , 99 P. 330 (1908); Martinez v. People, 111 Colo. 52 , 137 P.2d 690 (1943); Cross v. People, 122 Colo. 469 , 223 P.2d 202 (1950).   Former statute was designed to protect children from depravity and licentiousness. Kidder v. People, 115 Colo. 72 , 169 P.2d 181 (1946).   Former statute was neither obscure nor indefinite. It was designed to protect the morals of children in any place, and arbitrary rules of construction were not to be invoked to restrict its meaning. Martinez v. People, 111 Colo. 52 , 137 P.2d 690 (1943).   Evidence on age of juvenile-defendant required. Where the petition in delinquency states the respondent's age, although § 19-3-106 and C.R.J.P. 8 specify that “jurisdictional matters of the age and residence of the child shall be deemed admitted . . . unless specifically denied”, the juvenile-defendant's age is not thereby admitted, and it is necessary to present evidence specifically on that element of an offense when it is critical under this section. People in Interest of M. M., 41 Colo. App. 44, 582 P.2d 692 (1978).   Effect of lack of evidence on four-year age differential. Since the four-year age differential is an essential element of the offense, a conviction cannot be sustained where no evidence was adduced as to that element. People in Interest of M. M., 41 Colo. App. 44, 582 P.2d 692 (1978).   Evidence of age differential admitted. An 11-year-old child's estimate of her father's age as within a range greater than her own by only four years is not so inherently speculative as to be without probative value. People v. Fierro, 199 Colo. 215 , 606 P.2d 1291 (1980).   Where evidence of many acts, prosecution compelled to select specific transaction for conviction. Where there is evidence of many acts, any one of which would constitute the offense charged, the prosecution may be compelled to select the transaction on which it relies for a conviction, and although it is not required to identify the exact date of the offense, it must individualize and select a specific act. People v. Estorga, 200 Colo. 78 , 612 P.2d 520 (1980); People v. Quintano, 105 P.3d 585 (Colo. 2005).   The appropriate “unit of prosecution” for the crime of sexual assault on a child is “any sexual contact” not each separate offense of touching within a single incident that encompasses a multitude of types of sexual contacts. People v. Woellhaf, 105 P.3d 209 (Colo. 2005).   Mental state required is “knowingly”. The general assembly intended that the mental state requirement for this crime be “knowingly”, and that this supersedes any indication of mens rea suggested by the term “intentional” in § 18-3-401 . People v. Salazar, 648 P.2d 157 (Colo. App. 1981).   Evidence of similar offenses committed by accused against same child is admissible in prosecutions for taking indecent liberties with the child. Godfrey v. People, 168 Colo. 299 , 451 P.2d 291 (1969).   The exception to the general rule excluding evidence of other offenses allows such evidence to show design, motive, or intent. The exception is broadened in cases of sexual offenses. Huerta v. People, 168 Colo. 276 , 450 P.2d 648 (1969).   Evidence of prior sexual episodes with the victim which goes to prove a common plan, scheme, or design, is admissible under § 16-10-301 (1) . People v. Whitesel, 200 Colo. 362 , 615 P.2d 678 (1980).   Evidence of uncharged sexual contact properly admitted as evidence of pattern of sexual assault against same victim. Since the incident occurred within 10 years of the predicate offenses charged under this section, it was evidence that could be used to prove the pattern under this section. People v. Tillery, 231 P.3d 36 (Colo. App. 2009), aff'd on other grounds sub nom. People v. Simon, 266 P.3d 1099 (Colo. 2011).   Similar acts as to other persons cannot be shown in evidence. Huerta v. People, 168 Colo. 276 , 450 P.2d 648 (1969).   Other offenses inadmissible where guilty knowledge is necessary conclusion. Where the intent or guilty knowledge is a necessary conclusion from the act done, proof of other offenses of a similar character is inadmissible, and violates the rule that the evidence must be confined to the issue. Huerta v. People, 168 Colo. 276 , 450 P.2d 648 (1969).   Testimony of prior offenses not prejudicial. Each of the witnesses testified that defendant had perpetrated indecent liberties on occasions prior to the ones with which he was charged. The witnesses gave no dates or in any other manner identified or testified about any particular occurrence. In this circumstance no election is required because the evidence only tends to show one particular transaction, which in each instance was the transaction charged in the information. Examination of the record fails to disclose that the jury could have somehow convicted defendant for some act other than the very ones with which he was charged. Nowels v. People, 166 Colo. 140 , 442 P.2d 410 (1968).   Attempt to commit sexual assault on child is offense under Colorado law. People v. Martinez, 42 Colo. App. 257, 592 P.2d 1358 (1979).   Evidence sufficient to support conviction. Rapue v. People, 171 Colo. 324 , 466 P.2d 925 (1970); People v. Ortega, 672 P.2d 215 (Colo. App. 1983).   Evidence sufficient to support a charge of sexual assault on a child beyond a reasonable doubt. People v. Carmichael, 179 P.3d 47 (Colo. App. 2007), rev'd on other grounds, 206 P.3d 800 (Colo. 2009).   Evidence sufficient for conviction. Victim's testimony, if believed by the jury, was enough to convict defendant, and the credibility of witness is almost solely within the province of the jury. People v. McNeely, 222 P.3d 370 (Colo. App. 2009).   Conviction on one count may not be set aside simply because it is factually inconsistent with acquittals on other counts. People v. McNeely, 222 P.3d 370 (Colo. App. 2009).   Evidence insufficient for class 3 conviction sufficient for class 4 conviction. Evidence which was insufficient to support a conviction for a class 3 felony charge was sufficient to convict for a lesser included class 4 felony. People v. Whitesel, 200 Colo. 362 , 615 P.2d 678 (1980).   Verdicts of guilty under this section and of contributing to juvenile delinquency. Verdicts of guilty under this section and also as to a count of contributing to juvenile delinquency were not inconsistent. Warren v. People, 121 Colo. 118 , 213 P.2d 381 (1949).   In a trial for commission of a crime under subsection (2)(c), no limiting instructions were required, as evidence of multiple sexual abuse incidents is not similar transaction evidence but is evidence of an integral part of the offense. People v. Graham, 876 P.2d 68 (Colo. App. 1994).   Trial court's failure to instruct the jury that voluntary intoxication may apply to sexual assault on a child does not constitute plain error for there is doubt whether the issue is yet settled. People v. O'Connell, 134 P.3d 460 (Colo. App. 2005).   Sentence enhancement under subsection (2)(c) is not precluded by fact that prior conduct contributing to the establishment of pattern sexual abuse occurred in another state. People v. Bowring, 902 P.2d 911 (Colo. App. 1995).   Conviction for attempted sexual assault on a child constitutes sexual abuse of a minor and therefore is a crime of violence under the United States sentencing guidelines. United States v. De La Cruz-Garcia, 590 F.3d 1157 (10th Cir. 2010).   When a defendant is convicted of sexual assault on a child by one in a position of trust, the offense of sexual assault on a child is not a lesser included offense. People v. Leske, 957 P.2d 1030 (Colo. 1998); People v. Duncan, 33 P.3d 1180 (Colo. App. 2001).   A victim's belief that defendant would continue to hold her against her will unless she complied with his sexual demands could constitute a continuing threat of imminent kidnap sufficient to support defendant's conviction for violating subsection (2)(b). People v. Zamora, 940 P.2d 939 (Colo. App. 1996).   Because sexual assault on a child is based not on a sexually exploitative image but on evidence of a sexual contact, it was appropriate for the trial court to impose the felony sexual exploitation sentences consecutive to defendant's other sentences. People v. Rabes, 258 P.3d 937 (Colo. App. 2010).   The bottom end of an indeterminate sentence for a sex offense that is also a crime of violence is between the midpoint and twice the maximum of the presumptive range. People v. Hunsaker, 2013 COA 5 , 411 P.3d 36, aff'd, 2015 CO 46, 351 P.3d 388.   If the court sentences a defendant above the maximum of the presumptive range for a sex offense that is also a crime of violence, the prosecution does not have to establish aggravating circumstances to support sentencing above the maximum range. People v. Hunsaker, 2013 COA 5 , 411 P.3d 36, aff'd, 2015 CO 46, 351 P.3d 388.   Applied in Continental Liquor Co. v. Kalbin, 43 Colo. App. 438, 608 P.2d 353 (1977); People v. Lake, 195 Colo. 454 , 580 P.2d 788 (1978); People v. Cavalier, 41 Colo. App. 119, 584 P.2d 92 (1978); People v. Boyette, 635 P.2d 552 (Colo. 1981); People in Interest of W.C.L., 650 P.2d 1302 (Colo. App. 1982); People v. Green, 658 P.2d 281 (Colo. App. 1982); People v. Corbett, 656 P.2d 687 (Colo. 1983); People v. Lindsey, 660 P.2d 502 (Colo. 1983); People v. Wood, 743 P.2d 422 (Colo. 1987); People v. Melillo, 25 P.3d 769 (Colo. 2001).