Thomas V. People

We granted certiorari to review the Colorado Court of Appeals' judgment in People v. Thomas, 770 P.2d 1324 (Colo. App. 1988). The defendant, Mack Willie Thomas, was convicted of two counts of sexual assault on a child, § 18-3-405, 8B C.R.S. (1986). On appeal to the court of appeals, he challenged the admission of videotaped depositions of two child victims pursuant to section 18-3-413, 8B C.R.S. (1986), and contended that his due process rights were denied by the failure of the prosecution to elect a specific incident of alleged sexual assault as the basis for each of the charges against him. The court of appeals found no error in the trial court's ruling that the prosecution was not required to elect a specific incident. The court of appeals remanded the case to the trial court, however, for further findings regarding the unavailability of the child witnesses in order to establish whether the videotapes were admissible under section 18-3-413. We hold that in the absence of an election by the prosecution, the court should have instructed the jury more specifically on the need for unanimity concerning the incident or incidents relied on, but conclude that, in this case, failure to instruct in further detail was harmless error. We also conclude that further findings regarding the children's unavailability are unnecessary because the trial court's findings are adequate and supported by the record. We therefore affirm the judgment in part, reverse it in part, and remand the case to the court of appeals with directions to reinstate the trial court's judgment of conviction.