2020 COA 63
Colo. Ct. App.2020Background:
- Defendant Alberto Gil Espinosa was charged with sexual assault on a child by one in a position of trust for knowingly subjecting his 15‑year‑old daughter (A.E.) to sexual contact after he, while she was in bed, stroked her hair, kissed her and reached under her blanket to touch her breasts.
- A.E. testified she woke, vomited, cried, and reported the incident; Espinosa said he was trying to wake her and was curious about her development.
- The jury convicted Espinosa; the court sentenced him to intensive supervised probation (ten years to life).
- During deliberations the jury asked for a definition of “abuse” as used in the statutory definition of “sexual contact.” The trial court gave a supplemental instruction stating (1) “abuse” can be physical or emotional pain, injury, or discomfort, and (2) the sexual nature of the act — not the perpetrator’s motivation — renders the abuse “sexual.”
- Defense objected that the court’s language misstated the law by making the perpetrator’s motivation irrelevant; the Court of Appeals agreed and found the instruction potentially misleading as to an element of the offense.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "abuse" may include emotional harm | "Abuse" may be emotional or physical; sexual abuse protects against emotional and physical harm | "Abuse" should be limited to physical pain/injury | Held: "Abuse" may include emotional pain, injury, or significant discomfort (instruction correct on this point) |
| Whether the perpetrator's motivation is relevant to finding "sexual" abuse | Motivation is irrelevant; the nature of the act alone can make it sexual | Motivation is relevant; actor must act for a sexual purpose (e.g., to cause sexual humiliation/degradation) | Held: Motivation is relevant; the court erred by instructing it was irrelevant (instruction misleading) |
| Whether the instructional error was harmless | Error did not affect verdict; conviction should stand | Error was prejudicial because defense relied on innocent motivation theory; jury specifically asked about "sexual abuse" | Held: Error not harmless beyond a reasonable doubt; reversal and new trial required |
Key Cases Cited
- Wilford v. People, 111 P.3d 512 (Colo. App. 2004) (trial courts should clarify instructions when jury inquires)
- Griego v. People, 19 P.3d 1 (Colo. 2001) (constitutional instructional error is subject to harmless‑beyond‑a‑reasonable‑doubt review)
- Neder v. United States, 527 U.S. 1 (1999) (standard for harmless constitutional error)
- Evans v. People, 706 P.2d 795 (Colo. 1985) (caution against directly quoting case language in jury instructions)
- People v. White, 224 Cal. Rptr. 467 (Ct. App. 1986) (discussing sexual motivation vs. sexual element in defining sexual offenses)