2020 COA 109
Colo. Ct. App.2020Background
- On Jan. 24, 2016, L.C. reported to police that her husband, Sharif Abdulla, had beaten and raped her the previous night; she underwent a SANE exam.
- Prosecutors charged Abdulla with sexual assault (penetration) and third-degree assault; he pleaded not guilty and claimed consent.
- At trial L.C. testified Abdulla beat her with a belt (including on her buttocks), forced oral sex and intercourse, kissed injured areas, and threatened recurrence; Abdulla admitted a physical fight but argued subsequent sex was consensual.
- The prosecution requested, and the court gave, a lesser-included instruction for unlawful sexual contact (touching of intimate parts for sexual arousal/gratification/abuse) over defense objection.
- The jury acquitted Abdulla of sexual assault but convicted him of unlawful sexual contact (class 4 felony as charged) and third-degree assault; Abdulla appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether striking intimate parts with an object constitutes “touching” under § 18-3-401(4)(a) and whether unlawful sexual contact was a proper lesser-included instruction | The People argued statutory "touching" includes contact accomplished by an implement/object and the evidence (belt whipping; kissing of injured areas) provided a rational basis for the lesser instruction | Abdulla argued "touching" requires direct tactile contact (skin-to-skin or skin-to-clothing) and there was no rational basis to submit unlawful sexual contact | Court held "touching" can include use of an implement; belt-whipping or kissing could be sexual contact for sexual arousal/abuse, so the trial court did not abuse discretion in giving the lesser-included instruction |
| Whether jury unanimity was preserved/ensured as to the underlying act(s) that supported the unlawful sexual contact conviction | The People maintained the verdict requirement was satisfied by the unanimity instruction given and the single-continuing-course-of-conduct framing | Abdulla argued the unanimity instruction referenced only sexual assault and thus could allow non-unanimous verdicts on the unlawful sexual contact theory | Court found no plain error: the unanimity instruction (though referencing sexual assault) logically encompassed the lesser offense and the record shows no reasonable possibility jurors misunderstood unanimity |
| Whether admission of out-of-court statements (to detective, sister, and SANE) violated hearsay rules and was prejudicial | The People invoked exceptions (excited utterance and statements for medical diagnosis/treatment) to admit L.C.’s out-of-court statements | Abdulla argued the statements were inadmissible hearsay (excited utterance inappropriate given time lapse; some SANE statements not treatment-related) and prejudicial | Court held some rulings were at least questionable but any error was harmless: challenged statements were largely cumulative, corroborated, and did not substantially influence the jury (jury acquitted on the greater sexual-assault charge) |
Key Cases Cited
- People v. Cooke, 525 P.2d 426 (1974) (lesser-included/notice Cooke test and due-process notice concerns)
- People v. Vinson, 42 P.3d 86 (Colo. App. 2002) (use of object or ejaculate on intimate parts can constitute "touching")
- People v. Janousek, 871 P.2d 1189 (Colo. 1994) (statutory interpretation may rely on dictionary meaning)
- People v. Shaw, 646 P.2d 375 (Colo. 1982) (rational-basis/some-evidence standard for submitting lesser-included offenses)
- Thomas v. People, 803 P.2d 144 (Colo. 1990) (unanimity/election principles when multiple acts are alleged)
- Quintano v. People, 105 P.3d 585 (Colo. 2005) (unanimity instruction analysis and jury understanding presumption)
- Blecha v. People, 962 P.2d 931 (Colo. 1998) (corroborative evidence can render erroneous evidentiary rulings harmless)
- People v. Eppens, 979 P.2d 14 (Colo. 1999) (prior consistent statement admissibility and impeachment context)