Opinion
No. 76-817
Decided March 15, 1979.
Defendant appealed his conviction of attempt to commit sexual assault on a child.
Affirmed
1. CRIMINAL LAW — Attempt — Commit Sexual Assault on a Child — Criminal Offense. Although the crime of attempted assault has been held to be too indefinite for a specific intent crime, an attempt to commit sexual assault on a child is an offense under Colorado law.
Appeal from the District Court of the City and County of Denver, Honorable Robert P. Fullerton, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Susan P. Mele-Sernovitz, Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Robert Breindel, Deputy State Public Defender, for defendant-appellant.
Defendant appeals his conviction of attempt to commit sexual assault on a child. We affirm.
Defendant contends that under Colorado law an attempt to commit sexual assault on a child is not a statutory criminal offense. In support of this contention, defendant cites People v. Gordon, 178 Colo. 406, 498 P.2d 341 (1972) and Allen v. People, 175 Colo. 113, 485 P.2d 886 (1971) for the proposition that there is no such crime as "attempt to commit an assault".
However, these decisions were based upon interpretation of the statutory definition of assault as "an unlawful attempt . . . to commit a violent injury," C.R.S. 1963, § 40-2-33 (emphasis added). Under such definition, an attempt to commit assault would amount to "an attempt to attempt to act," and thus the court held that an attempted assault was too indefinite for a specific intent crime.
In contrast, here, the offense of sexual assault on a child is defined separately from ordinary assault. The statutory definition, § 18-3-405, C.R.S. 1973 (Repl. Vol. 8), contains none of the "attempt" language of the assault statute:
"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."
[1] Thus the anomaly of "an attempt to attempt to act" does not exist in reference to this statute. It follows that an attempt to commit sexual assault on a child is an offense under Colorado law. See § 18-2-101, C.R.S. 1973 (1978) Repl. Vol. 8).
Judgment affirmed.
JUDGE VAN CISE and JUDGE STERNBERG concur.