2015 COA 171
Colo. Ct. App.2015Background
- Defendant Cory Komar was convicted by a jury of sexual assault under § 18-3-402(1)(a) for causing submission by "means of sufficient consequence reasonably calculated to cause submission"; jury answered special interrogatory that no physical force was used, so offense was a class 4 felony.
- Victim M.A. was heavily intoxicated at a party, slept at a friend’s house, awoke to Komar having intercourse; she testified she told him to stop and resisted; others’ testimony about the encounter was inconsistent.
- Defense theory: the sex was consensual or consent was withdrawn later; defense introduced witnesses challenging victim credibility; defense sought to elicit testimony that victim had made prior sexual-assault accusations (court limited specifics).
- Postconviction Sex Offender Management Board evaluation found Komar did not meet SVP criteria, but the mittimus mistakenly listed a class 3 felony and omitted the required SVP finding.
- Komar appealed on multiple grounds: vagueness of the "sufficient consequence" language (facial and as-applied), mens rea jury instruction, restriction of impeachment evidence, constitutionality of SOLSA sentencing, and mittimus errors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vagueness of "sufficient consequence" (facial) | Statute is constitutionally valid and provides adequate standards. | Phrase is unconstitutionally vague on its face. | Rejected — statute not unconstitutionally vague; Smith/Barger/Beaver support validity. |
| Vagueness (as-applied) | Komar's conduct (continuing after clear protest) is clearly proscribed. | Intoxication complicates notice; statute unclear when victim/respondent are intoxicated. | Rejected — conduct clearly proscribed; intoxication does not make statute inapplicable. |
| Mens rea in jury instruction | Instruction tracked statute and conveyed required mental state. | Court should have tied "knowingly" explicitly to the causation element. | Held no reversible error — instruction adequate; no plain error shown. |
| Limitation on impeachment of victim (prior inconsistent statements) | Exclusion was within court's discretion and did not prejudice defendant. | Excluding testimony about three specific past accusations violated §16-10-201 and impaired defense. | Court erred in excluding specifics but error was harmless given admitted impeachment and jury verdicts. |
| SOLSA constitutionality (sentencing under SOLSA) | SOLSA is constitutional and properly applied. | SOLSA violates due process, equal protection, Eighth Amendment, and jury-trial rights; inapplicable to "adolescent" offenders. | Rejected — court follows precedent upholding SOLSA; Miller inapplicable (defendant was 20). |
| Mittimus errors (offense class and SVP finding) | Mittimus should reflect actual conviction and required SVP finding. | Agreed errors exist and require correction. | Agreed — remand to correct mittimus to reflect class 4 conviction under §18-3-402(1)(a) and record SVP finding. |
Key Cases Cited
- People v. Smith, 638 P.2d 1 (Colo. 1981) (upholding "by any means of sufficient consequence reasonably calculated to cause submission" against vagueness challenge)
- People v. Barger, 550 P.2d 1281 (Colo. 1976) (statute using threats "of sufficient consequence" not unconstitutionally vague)
- People v. Beaver, 549 P.2d 1315 (Colo. 1976) (similar holding on statutory vagueness regarding threats of sufficient consequence)
- Chambers v. People, 682 P.2d 1173 (Colo. 1984) (mens rea "awareness" applies to nonconsent element in sexual-assault context)
- Miller v. Alabama, 567 U.S. 460 (2012) (juvenile sentencing principles; court explained it applies to offenders under 18 and was not controlling here)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (vagueness/due process framework for criminal statutes)