specially concurring:
I concur but write separately to point out the limited significance of the mistrial issue raised by defense counsel and addressed in part I.A. of the opinion. I concur in the result reached in parts II.B. and C. of the opinion but for somewhat different reasons.
I.A.
The prosecution contended that the defendant gained entrance to the victim’s apartment through the removal of a screen on a window. Neither his fingerprints nor those of the caretaker were on the screen and a stipulation was made to permit testimony as to the absence of fingerprints without further foundation. The defendant’s theory of the case was that the defendant knocked on the victim’s door, and that the victim admitted him and then consented to and voluntarily engaged in sexual intercourse. The defendant did not deny that he was in the apartment. The absence of the defendant’s fingerprints on the screen, to the extent relevant, supported the defendant’s theory that the victim voluntarily admitted him to her apartment. The motion for a mistrial was predicated on proposed testimony beyond the stipulation on fingerprints and would not have enhanced the defendant’s case. In my view, the errors asserted and addressed in part I.A. of the opinion totally lack merit and do not justify comment. See People v. Gladney, 194 Colo. 68, 570 P.2d 231 (1977) (reviewing court will not engage in abstract speculation to find prejudicial error).
II.B.
I agree with the court’s conclusion that the sentence imposed in this case did not violate the double jeopardy provisions of the United States or Colorado Constitutions. Under Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the imposition of cumulative punishments for the same offense does not violate protections afforded by the double jeopardy clause if the legislature intended to authorize the additional punishment. Here, there can be no question that the legislature intended to authorize punishment for a crime of violence in addition to the punishment for first-degree sexual assault.
II.C.
In part II.C., the majority holds that additional punishment predicated upon the commission of a crime of violence is not contrary to due process and equal protection of the laws. I agree. However, I would go no further in this case than to conclude that the General Assembly intended and, consistent with constitutional protections, provided for enhanced punishment. To the extent that People v. Montoya, 709 P.2d 58 (Colo.App.1985), is contrary to our holding, the case should be disapproved. The rule of lenity relied upon in People v. Manley, 707 P.2d 1021 (Colo.App.1985), is inapplicable because the legislature’s intent is apparent on the face of the crime of violence statute.