Colby Messer, a Canadian citizen is currently being charged with six counts of class two felony sexual assault. This case
has gotten extreme media attention due to the alleged brutal nature of the crime. Colby Messer is the only one, of four individuals being charged with this crime, as he is the only person to return to the United States as of now. A reporter from Global News in Canada, came down to our office to interview Mr. Bresee about what it means for Mr. Messer while he faces these charges. As we all know, Canada does not have capital punishment. Canada’s legal system is so from the United States. This creates a scary and different situation for Mr. Messer.
What does the law say?
Let’s start off with what the legislators define sexual assault as. C.R. S. 18-3-402 Sexual assault is;
1) Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if;
a) The actor causes submission of the victim by means of sufficient consequences reasonably calculated to cause submission against the victim’s will; or
b) The actor knows that the victim is incapable of appraising the nature of the victim’s conduct; or
c) The actor knows that the victim submits erroneously, believing the actor to be the victim’s spouse; or
d) At the time of the commission of the act, the victim is less than fifteen years of age and the actor is at least four years older than the victim and is not the spouse of the victim; or
e) At the time of the commission of the act, the victim is at least fifteen years of age but less than seventeen years of age and the actor is at least ten years older than the victim and is not the spouse of the victim; or
f) the victim is in the custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over the victim and uses this position of authority to coerce the victim to submit unless the act is incident to a lawful search; or
g) the actor while purporting to offer a medical service, engages in treatment or examination of a victim for other than a bona fide medical purpose or in a manner substantially inconsistent with reasonable medical practices; or
h) the victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented.
What is a class two felony sexual assault in Colorado and what are the penalties? There is a certain threshold that someone must cross in order to reach the charge of class two felony sexual assault. According to C.R.S. 18-3-402; Sexual Assault is a class 2 felony if any one or more of the following circumstances exist:
1) In the commission of the sexual assault, the actor is physically aided or abetted by one or more other persons; or
2) the victim suffers serious bodily injury;
3) The actor is armed with a deadly weapon or an article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon or represents verbally or otherwise that the actor is armed with a deadly weapon and uses the deadly weapon, article, or representation to cause submission of the victim.
These three circumstances are essentially an enhancer to the charge of Sexual Assault. If you meet any of these circumstances than your punishment greatly increases and you will be sentenced in accordance with the mandatory sentencing for C.R.S. 18-1.3-406 Crime of Violence Statute.
In order to reach the threshold of crime of violence, you must meet one of the following factors;
1) Used of possessed and threatened the use of, a deadly weapon; or
2) Caused serious or bodily injury or death to any other person except another participant.
3) Any crime against an at-risk adult or at-risk juvenile;
5) First or second-degree assault;
7) A sexual offense pursuant to part 4 of article 3 of this title;
8) Aggravated robbery;
9) First-degree arson;
10) First-degree burglary;
12) Criminal Extortion; or
13) First or Second-degree unlawful termination of pregnancy.
14) The crime of Violence also means any unlawful sexual offense in which the defendant cause bodily injury to the victim or in which the defendant used threat, intimidation, or force against the victim.
This crime of violence threshold forces a mandatory sentence. Any person convicted of a crime of violence shall be pursuant to section 18-1.3-401 to the department of corrections for a term of incarceration of at least the midpoint in, but not more than twice the maximum of, the presumptive range provided for such offense. Now, a person convicted of two or more crimes of violence arising out of the same incident shall be required to serve their sentences consecutively rather than concurrently. A consecutive sentence means you serve each sentence one after another. A concurrent sentence means that you would serve all sentences at the same time.
Another mitigating factor for a crime of violence is if there is a weapon involved. If a person is convicted of a crime of violence, and the jury has decided that they also used a weapon of some sort while committing a crime, then the judge shall impose and additional five years to be served consecutively to each sentence where they were found to be using a weapon. This is an additional five years to the already lengthy sentence that comes with a crime of violence charge.
However, for crimes that involve an underlying sexual factual basis, for example, a class two felony sexual assault, has a mandatory indeterminate sentencing. Indeterminate sentencing C.R.S. 18-1.3-1004 means, a specific range depending on the crime up to the rest of your natural life. If a sex offender committed a sex offense that constitutes a crime of violence, the court shall sentence the person to an indeterminate term of at least the midpoint of the presumptive range for the level of offense committed and a maximum of the sex offender’s natural life.
How does the law apply?
Let’s look at Messer’s case to try and figure all this out. The presumptive range for an F2 under the indeterminate sentencing is at least 24 years – 48 years, to a maximum of the person’s natural life. Now, the judge gets to determine where in that range the sentence will have. But yet, if Messer if found guilty of using a weapon during the alleged attack, which he is being charged with then he is looking at the addition of five years to his sentence. Messer faces the possibility of 29 years – 53 years with a maximum of the rest of his natural life. This means that if the judge decided to give him, let’s say 40 years for each count. In 40 years, Messer will be eligible for parole in 40 years, and can apply for it every year after that up to the rest of his life. Now, as we said earlier, if he is convicted of more than two crimes of violence, then he must serve all of his sentences consecutively. In Messer’s case for example, if he was found guilty of all six counts, he would have to serve each of his sentences consecutively which means he would really be in prison for the rest of his life.
These types of crimes are taken very seriously in the United States. There are various penalties and various enhancers for these very complex crimes. If you are charged with anything of this nature, contact and attorney right away. Only an experienced attorney can explain to you the penalties for your unique situation. Do not leave these cases up to chance, contact our office for a free consultation for your case. M. Colin Bresee is a very experienced attorney in this area
By Shannon Lynch