People v. Lozano-Ruiz
2018 CO 86
Colo.2018Background
- Defendant Rodolfo Lozano-Ruiz was convicted in county court of misdemeanor sexual assault of a 15–17 year-old when defendant was more than ten years older (section charged: § 18-3-402(1)(e)).
- At trial multiple witnesses and the victim repeatedly described the contact as “sex” or “sexual intercourse”; the victim expressly testified that the defendant put his penis inside her.
- Lozano-Ruiz’s defense at trial focused exclusively on mistake of the victim’s age (he claimed he did not know she was a minor); he did not dispute that penetration occurred and did not cross-examine the victim about that statement.
- The trial court’s jury instruction set out the elements of the offense (including that defendant inflicted sexual intrusion or penetration) but did not include the statutory definition of “sexual penetration.”
- Defense counsel did not object to the omission or request a definitional instruction at trial; on appeal the district court reviewed for plain error, concluded the omission might have contributed to the verdict, and vacated the conviction.
- The Colorado Supreme Court granted certiorari to decide whether omission of the statutory definition constituted reversible plain error and reinstated the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether omission of the statutory definition of “sexual penetration” from the jury instructions was reversible plain error | People: Omission did not constitute plain error because the State proved penetration and the issue was not contested | Lozano-Ruiz: Failure to instruct on the statutory definition may have contributed to the verdict and thus was plain error | Court reversed district court and held omission was not plain error because penetration was not contested at trial |
Key Cases Cited
- Auman v. People, 109 P.3d 647 (Colo. 2005) (plain-error review and standard for assessing whether omitted instruction undermines jury verdict)
- People v. Fichtner, 869 P.2d 539 (Colo. 1994) (failure to instruct is not plain error when subject of omission is not contested at trial)
- Bogdanov v. People, 941 P.2d 247 (Colo. 1997) (same principle: omission harmless when issue not disputed)
- People v. Pearson, 546 P.2d 1259 (Colo. 1976) (instructional error requires showing the omitted matter was contested to amount to plain error)