Facts: The prosecution charged and a jury convicted Mr. Pellman of sexual assault on a child by a person in a position of trust. The prosecution alleged the time period to be the summer of 2005 with the complaining witness, L.B., who was 15 at the time and the daughter of a family friend. The Court went to great lengths to explain the friendship between Mr. Pellman’s family and the family of L.B. L.B. was the daughter of a pastor, Mr. Pellman’s friend, and Mr. Pellman previously taught Sunday school at the same church from 2000 to 2003. The Court highlighted horseback riding trips, dinners, amusement park trips, that Mr. Pellman helped the pastor’s kids with homework, and that basically the guy was a good friend. Mr. Pellman never babysat or assumed any actual parental duties. During the summer, L.B. started playing footsie with Pellman under the dinner table, and the relationship escalated to “unlawful sexual contact” three or four times a week during July and August of 2005. L.B. would tell her parents she was going for a run, but would meet Mr. Pellman for these rendezvous.
Issue: Whether the prosecution proved Mr. Pellman was in a position of trust with L.B. when he did not parent her, assume any parental responsibilities, and stopped teaching her two years prior to the sexual relationship started?
Held: Yes.
Reasoning: The Court overruled in part People v. Johnson, (167 P.3d 207 (Colo.App.2007). In Johnson, the Court of Appeals held that Mr. Johnson could not be convicted of position of trust because his supervision only consisted of a 5-day driving course with the complaining witness. The course ended two months prior to when the sexual relationship started. The CofA in Johnson came up with a two part test, “(1) Was the actor a parent, acting in the place of a parent, or charged with certain enumerated responsibilities for the care, education, welfare, or supervision of a child, for any period of time, no matter how brief?; and (2) Did the actor commit an unlawful act during that period of entrustment?” The Court here in Pellman rejected the first factor but agreed with the second. The Court attempts to differentiate the facts of Johnson and Pellman, and claims to support the result in Johnson. The problem with that analysis is the actual “supervisory role” Mr. Pellman play ended two years, not two months, prior to the initiation of the sexual relationship. To justify its holding, the Court emphasized the friendship between Mr. Pellman and L.B.'s family, an Elitch Gardens amusement park trip where the Court claim he was a “chaperone”, and the pastor’s testimony that he trusted Mr. Pellman with his kids. In the end, simply being a good family friend will can get lumped in under position of trust with this holding. Defense lawyer rule: never, never, ever, never, be alone with any kids under 18 that are not your own. No exceptions.
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