People v. Williams

JJ., SMITH and VAN CISE* concur. Colorado,

The PEOPLE of the State of

Plaintiff-Appellee, WILLIAMS,

Sean O. Defendant

-Appellant.

No. 93CA0681. Appeals,

Colorado Court of

Div. I. 26,

Jan. 1995. 2,

Rehearing Denied March 1995. July

Certiorari Denied 1995. * Sitting by assignment of the Chief Justice under Cum.Supp.). Const, provisions VI, 5(3), of the Colo. art. Sec. Gen., Norton, Stephen K. Atty. A.

Gale Gen., ErkenBraek, Atty. Timo- Deputy Chief Gen., Tymkovich, M. Catherine thy M. Sol. Gen., Duba, Denver, Atty. plaintiff- Asst. advising After that “the evidence appellee. presented in case has raised an affirma- defense,” tive gave follow- Vela, David F. Colorado State Public De- ing instruction on consent: fender, Krulewitch, Deputy Beth L. State It is an affirmative defense to the crimes Denver, Defender, defendant-ap- Public of Sexual Assault the First Degree pellant. Degree Sexual Assault the Second gave the victim her consent the consent Opinion by Judge KAPELKE. (em- negates offense, an element Defendant, Williams, appeals Sean Orlando added) phasis judgment from the of conviction entered 18-1-505(1) §§ This instruction was based on finding upon jury guilty him verdicts of one 8B), Repl.Vol. child, on count of sexual assault a one count language and tracks the contained in COLJI- assault, degree first sexual and two counts (1983). Crim. 7:04 degree of second assault. sexual We affirm. Each of the court’s elemental instructions Defendant’s conviction stems from inci- jury prosecution the stated the involving girls, who dents two were and 15 required prove beyond a doubt reasonable years victims, respectively. old who that the defendant committed the consti- acts high were both students at a school near the tuting the offense “without the affirmative fast food restaurant where defendant defense” of consent. worked, acquainted were with pri- defendant toor the assaults. A.

According presented by to evidence the prosecution, the victim and first a friend Relying Lybarger People, on v. 807 P.2d to the went restaurant see defendant who (Colo.1991), argues defendant the indicated that he to talk to wanted the victim instructions shifted the proof burden of alone. When defendant and the victim were him on the “improperly issue consent and sight alone and out of the of the victim’s relegated jury to the the function deter- friend, pulled defendant the victim into a mining availability” of the defense. We sexually bathroom and assaulted her. allegedly Defendant assaulted the second object Because defendant did not to the victim on two occasions. different The first instructions at trial and did not alter- tender incident occurred at the restaurant. After instructions, native apply plain error defendant told he the victim wanted to talk standard on review. Plain error when occurs alone, to her he took her into the bathroom say we can “that the error so undermined the sexually her. assaulted fundamental fairness of the trial itself as to cast reliability serious doubt The second party. incident occurred at a judgment Kruse, conviction.” Defendant, gone who party had 1, victim, with went into the bathroom where the victim friend talking, and a were outset, At the we note that an instruc leave, sexually asked the friend to then as- tion in language applicable saulted the victim. usually is sufficient to jury advise the At trial defendant contended that the vic- nature of the offense or the affirmative de having tims had consented relations fense described in the instruction. See Salas with him. People, (1973); 181 Colo. 509 P.2d

People Wilson, (Colo.App. 1990). I.

Defendant first Lybarger People, supra, contends reversal is supreme our required incorrectly because the trial court evaluated the court’s instructions jury instructed regarding jury affirmative to the the affirmative defense defense of spiritual consent. “treatment means” in a ease of Following prosecution’s and eliminated burden of resulting in death. child abuse offense, respect proof with to the affirmative de- on the elements of instruction that: fense. the court instructed evidence, If, you considering all after Lybarger supra, 581- prosecution find has established 82. beyond that the Defen- a reasonable doubt assertion, Contrary the Ly- to defendant’s as to dant ... acted in such manner so compel barger decision does not us hold ... and that satisfy all the above elements that the trial court’s instructions on consent not available to affirmative defense plainly in this were erroneous. case Defendant, you find Defen- should Assembly The is “vested with con- General Resulting in guilty of Abuse dant Child authority only to crimi- stitutional not define you any the ele- Death. that of If find legal compo- the nal conduct and to establish beyond proven a rea- ments have not been well, but, liability of criminal as to nents de- sonable doubt or that the affirmative statutory and bars to delineate defenses [,] you applicable find the is should fense Guenther, prosecution.” People v. criminal of Re- guilty Defendant not Child Abuse (Colo.1987). P.2d consti- Within sulting in Death. limitations, Assembly General tutional the supra,

Lybarger People, may applicability the of an affir- also restrict added). (emphasis People, mative See Rowe defense. Lybarger in- The trial court further (Colo.1993). that, prosecution jury if the structed the proof to respect its of with satisfied burden statute, give must applying a offense, the the affirmative elements according statutory language effect the by spiritual of “treatment means” defense Court, plain meaning. People v. District the In a was “not available” to defendant. 718 P.2d 918 instruction, jury told separate the court the governing The the affirmative de- that: consent, 18-1-505(1), provides of fense presented you the evidence If find that: raised the issue the in this case has of to conduct The consent the victim of prosecution ... the affirmative defense charged to constitute an offense or the beyond of a proving then has the burden unless the result therefor not defense affirmative de- reasonable doubt the the negatives consent an element offense of or applicable is not the Defendant fense of harm or precludes the infliction the or his conduct. by the law sought prevented to be evil Lybarger supra, P.2d at 574 offense, added) defining (emphasis the added). (emphasis statutory the definition of Unlike supreme The court held that these instruc- spiritual issue in by means” at “treatment jury improperly the with the “vest[ed] tions statutory Lybarger, definition of consent the prerogative to affir- determine whether” the legislative decision to expresses the clear ease, an in the mative defense was issue the inapplicable the unless con make defense by “preempt[ed] the affirmative defense tell- of “negatives” an the either element sent long prosecution ing jury the the that as as precludes infliction of or the offense beyond doubt that the proved a reasonable by the law sought prevented harm to be as to defendant acted in such manner so 18-1-505(1). defining offense. Section satisfy charged, all the elements the crime statute, the trial with the In accordance simply not then the affirmative defense was jury of apprised instructions court’s Thus, jury’s an issue for consideration.” statutory on the limitations first of the two the court concluded that the instructions: defense of applicability of the affirmative of law contained erroneous statements consent. relegated jury the improperly to the Defendant, however, argues determining availability or function of statutory limitation on nonavailability the first the affirmative defense assault eases applicability proving the defense should not its burden that the victims had not apply only having and that the should be consented to limitation sex with defendant. “preelude[ ] consent must the inflic- Finally, unlike trial court’s instructions prevent- tion or sought of the harm evil in Lybarger, the court’s instructions here did by defining ed the law the offense.” Defen- improperly proof shift the burden of argues dant thus court’s in- Indeed, defendant on the consent issue. struction on was an erroneous state- specifically instructed that: perceive plain ment of law. no We error. prosecution prov- has the burden of Defendant’s contention is based on the as- ing guilt your the defendant sumption element submission beyond satisfaction a reasonable doubt as degree offense of first and second assault defense, to the affirmative as well as to all cannot be nullified the victim’s consent charged. elements the crime goes because the submission element to the considering After the evidence concern- state mind while the defense defendant’s defense, ing the affirmative with all the of consent relates to the victim’s state of case, you other evidence are not mind. We beyond convinced a reasonable doubt of Whether a victim consented sexual con- guilt, you the defendant’s must return a directly tact is relevant to the issue of sub- guilty. verdict of not Schmidt, People mission. v. 885 P.2d showing contrary, Absent pre- a to the we 312 (Colo.App.1994); People see also jury sume the understood heeded this (Colo.1981). Smith, Thus, 638 P.2d if the People Moody, instruction. See 676 P.2d having victim sex consented with defen- (Colo.1984). dant, element of submission would be sum, we conclude that the trial court’s negated because the victim cannot both con- on instructions the affirmative defense of sent to contact and be made to submit correctly apprised jury consent regarding against her will to such contact. See also applicability of (1994 pros- the defense and 18-3-401(1.5), § Cum.Supp.) C.R.S. proof ecution’s burden on the issue. (defining purposes “consent” for of sexual July 1, assault or offenses committed on after

1992). B. Here, while the trial court’s instructions Defendant further contends that the might specif- have been clearer had court instruction incomplete on consent was ically jury informed the that the issue of misleading did provide because the court not submission, consent related to the element an additional instruction defining further reject we defendant’s contention that scope of Again, the defense. we jury court’s failure so to instruct the consti- jury pattern that, instruction indicates plain tuted error. appropriate, may given together when Moreover, the instructions in this with the definitional instruction contained in type case did not include improper (1983) (Definition 7(11)) COLJI-Crim. 7:68 language contained in the in Ly instructions provides that “assent does not consti- barger People, supra, indicating that the if ... by force, tute consent it is induced jury prerogative had the to decide whether duress, deception.” or the affirmative defense was available to the object did Defendant not to the trial Here, defendant. the instructions indicated request court’s on or instruction that the affirmative defense available to give the court the additional definitional in- and, defendant accordance with 18—1— Accordingly, again struction. apply 505(1) (1986 Repl. plain error People standard review. See 8B), only questions Vol. jury for the Fichtner, (Colo.1994). 869 P.2d 539 alleged were determine whether the con negated Here, sent an element of because the additional instruction fenses prosecution and whether the had met defines the affirmative defense consent in

3H limited, Bowers, or court rule.” its avail- would have a manner (Colo.1990). defendant, the trial court’s failure ability to actually give instruction the additional admitting a child’s out-of-court Before specifically, the More benefitted defendant. §to the trial pursuant statements have clarified instruction would definitional content, time, must that “the determine lack resis- jury that the victims’ for the provide of the statement and circumstances to defendant’s and ultimate submission tance safeguards reliability.” People sufficient to consent. not tantamount attacks were (Colo. Court, 1083, 1089 v. District 776 P.2d instruction, jury additional Without the 1989). induced might have that submission assumed not claim that the court Defendant does duress, force, deception consti- or could ruling that the state- abused discretion tute consent. Rather, he contends ments were reliable. give trial court’s failure Because the were be- the statements inadmissible to de- instruction inured the additional at trial. are cause the victim testified We benefit, plain it did not constitute fendant’s persuaded. Shields, error. See 25—129(l)(b)(I),C.R.S. Section 13— 6A) specifically provides RepLVol. regarding sex- statements child’s out-of-court II. ual admissible when the child testi- abuse are trial. fies at next contends Defendant testimony of a by admitting the court erred Moreover, admissibility of such state police officers friend and two victim testifies ments even when the child to dis- first statements them. We victim’s upheld in trial has been several cases. _ agree. Salas, P.2d _ (Colo.App. No. People v. 93CA0771, 15, 1994); People v. Dec. Gallo hearing prosecution’s the Following a on way, (Colo.App.1986) Peo 726 P.2d 249 limine, in the trial court ruled motion Koon, (Colo.App.1986). P.2d ple v. the to her friend and the victim’s statements 13-25-129, admissible under officers were 6A) B. RephVol. and that the state- as also admissible

ments to the friend were that the vic also contends Defendant 803(2). under an “excited utterance” CRE out-of-court statements were inadmissi tim’s cumulative, unduly they were ble because A. “vouching” for to prejudicial, and amounted credibility. Again, disagree. we the victim’s reject contention We defendant’s may her friend and excluded under statements to evidence be victim’s Relevant pursuant § 13- probative substantial- officers were inadmissible 403 if its value is CRE outweighed by danger preju- of unfair ly 25-129. reviewing In the trial court’s decision dice. out-of-court a child’s Under testimony, “we must assume the to admit the relating abuse incidents sexual statements that a reasonable probative maximum value are reliable the statements are admissible might give and the fact finder the evidence or is child either testifies at trial and the reasonably prejudice minimum unfair testify corrobora- but there is unavailable Lowe, expected.” People v. 660 P.2d supporting tive the out-of-court evidence (Colo.1983). Diefenderfer, People See also statements. cumulative evidence is The admission of The is “the 784 P.2d 741 discretion, People v. admitting within the trial court’s a child-victim’s exclusive basis Baca, as is (Colo.App.1992), committed hearsay of a act statement sexual against the hearsay balancing probative value state- against child when such any such evidence. prejudicial effect of under ment is not otherwise admissible by Galloway, supra. hearsay exception specific created other Bolton, Here, (admis- victim’s statements to the offi- (Colo.App.1993) within a few hours of cers were made sion hearsay child assault victim’s still upset. assault and while she was police statements to three officers and vic- response statements were made tim’s father was not though reversible even substantially leading questions and were sim- cumulative); People statements were Gal- ilar to statements she had made to other loway, supra. Although who at trial.

witnesses testified portions testimony regarding officers’ III. the victim’s statements were cumulative of testimony, portions originally the victim’s trial other Defendant in two testimony informations, provided separate relating officers’ new informa- one each prosecution’s request, tion. victim. At the howev- er, the two cases were consolidated for trial. Moreover, recognize while that the evi- Defendant contends that im- may dence have been harmful to defendant’s properly consolidated cases because the case, we cannot conclude that it would have regarding evidence defendant’s attacks on jury led the to make its decision on an im- each victim would not have been admissible proper mitigated any basis. The trial court separate trials. We prejudicial effect of the giving evidence following cautionary instruction both at the time the evidence was admitted A. and at the close of the evidence: reject We defendant’s claim that the evi- you In out this case heard of court state- dence his attacks each victim ments of [one victims] which were would not have separate been admissible into admitted evidence. as trials evidence of other misconduct. you You are instructed is for 404(b) weight prohibits

determine CRE giv- and credit to be the admission of evi- en making these statements. dence prove de- other misconduct to the char- you age shall termination consider acter the accused in order show “that child, maturity of the the nature of conformity he acted in therewith.” Such evi- statements, the circumstances may rule, under which dence be admissible under this made, any however, statements were “motive, and other opportunity, show in- evidence which has tent, been admitted preparation, plan, knowledge, identity, you purpose, choose to consider for this or absence of or mistake accident.” See also you unless the court has (1986 8A). instructed that it C.R.S. Repl.Vol. must pur- be considered for some other cases, In sexual assault such evidence pose. is admissible even when the other misconduct Repl.Vol. See involved Pigford different victims. See 6A). 358, (1979); 197 Colo. 593 P.2d 354 reject argument defendant’s that We Allen, 345, People v. 42 Colo.App. 599 P.2d testimony the officers’ amounted vouching (1979). for the credibility. victim’s The officers did testify they not that believed the victim’s admitting Before evidence of other or she generally statements that a truth wrongs, or crimes the trial court must deter Indeed, person. instances, ful in some (1) mine: that the evidence relates to a mate testimony regarding officers’ the victim’s out- fact; (2) rial that logically evidence is of-court actually statements contradicted her (3) relevant; logical that relevance is testimony trial helpful and would have been independent prohibited of the that inference to defendant. (4) character; defendant has bad and circumstances, Under these probative conclude value of the evidence is not that the court did not its substantially outweighed by abuse discretion in danger admitting testimony prejudice. the vic- unfair People Spoto, 795 P.2d tim’s out-of-court People statements. See tive value of the evidence was substan-

A court is with consider vested relevancy outweighed by degree of determining tially unfair in able discretion in prejudice. poten- and ascer of other misconduct While the court noted of evidence evidence, of the probative value taining tially prejudicial whether the nature prejudicial ef outweighed its scope evidence its permissible acted within discre- discre Only if there is an abuse fect. concluding prejudicial in tion effect trial court be ruling of the tion will the substantially did not out- evidence Ihme, People v. 187 Colo. disturbed. weigh probative People value. (1974); Crespin, McKibben, supra. (Colo.App.1981). sum, we conclude the evidence that, as to either vic- contends Defendant each victim regarding defendant’s attacks on tim, his on the other the evidence of assault separate tri- have been admissible would admissibility satisfy any did not victim als. Spoto, supra. criteria set forth We B. hearing trial court conducted The reject defendant’s related conten- We also admissibility the evidence of determine improperly consoli- tion that the trial court other misconduct and concluded the two cases. dated Spoto met. The record criteria had been court’s conclusion. supports the permissible of criminal cases is Joinder charged in or more the offenses two when First, the of the other mis evidence joined charging been documents “could have operan- conduct related defendant’s modus information, indictment, single com- in a plan di common and were thus relevant complaint.” or summons Crim.P. plaint, place in All took to intent. three assaults may charged in or offenses be 13. Two more he after indicated that restrooms defendant charging if: the same document alone. wanted to talk the victims Two same restroom the assaults occurred same the offenses ... are of the worked. restaurant where defendant or similar character or are based two or attack, forcibly During un each defendant to- more acts or transactions connected sexually the victims before assault dressed constituting parts of a common gether or place ing took within a them. attacks plan. scheme or sup few of each other. These facts months 8(a)(2). Crim.P. finding the other port the trial court’s joined if may assault offenses be Sexual to show misconduct evidence was admissible of each offense would admis- the evidence operandi common modus defendant’s Pigford v. separate in trials. sible People v. plan as to intent. See relevant Allen, supra. People supra; v. (Colo.1994); People Snyder, 874 P.2d 1076 v. (Colo.App.1994); P.2d 141 Peo Delgado, 890 informations The decision to consolidate McKibben, (Colo.App ple P.2d 991 v. 862 of court discretion the trial within the sound .1993). an appeal on absent and will not disturbed v. District of discretion. Brown abuse Second, tendency had a to the evidence Court, 197 Colo. required intent the existence of the make probable been with- more than would have joinder on the basis of Reversal Delgado, People out the See v. evidence. justified the defen is not unless of offenses Third, McKibben, supra; People supra. re prejudice as a demonstrates actual dant independent of the logical relevance was inability separate the jury’s to sult a bad character that defendant had inference legal applicable to each and theories facts he suggest com- which could be used People Early, P.2d offense. in likely he the crimes because acted mitted (Colo.App.1984). conformity character. See with such bad Moreover, is not entitled McKibben, a defendant supra. Finally, tri- solely on his proba- trials desire separate based properly al determined testify on than all the of- Applicable Generally”) fewer sions to Offenses Part joinder prevent or (“Principles fenses. To obtain a sever- of Culpability”) Criminal basis, part ance of a defendant offenses Criminal Code. This of the code de- important states, must show that “he has both testi- culpable scribes the various mental or mony give concerning rea, one count and mens that must exist in order for an strong testifying need to refrain from on the offense to have been committed. this (1986 context, 18-1-504, supra, § People Early, Repl.Vol. other.” C.R.S. 8B), upon 1119. culpa- describes effect criminal bility may have, that a mistaken belief of fact above, As discussed the evidence (1986 8B) Repl.Vol. while C.R.S. defendant’s attacks on victim each would describes the circumstances under separate been have admissible trials as consent of culpa- the victim result in no will operandi evidence of and modus common bility. plan. Accordingly, the trial court did not 18-1-505(1) provides Section consolidating that the vic- abuse discretion the two any tim’s will Pigford consent be a People, supra; cases trial. defense to crimi- See Allen, charge only if “negatives nal such People supra; see also an Crim.P. 8(a)(2). element “precludes offense” or infliction sought of the harm or evil to be Defendant has not demonstrated either prevented by defining the law the offense.” separate that the unable the facts 18-1-505(2) 18-1-505(3), Sections and legal applicable theories each offense (1986 8B) Repl.Vol. C.R.S. incorporate also join- or prejudiced that he was because the upon the restrictions prevented der defense were testify- cases him from generally by imposed the common law. ing See about his attacks on the victim second Torcía, 1 C. Wharton’s Law Criminal remaining while silent about his attack on the (15th 1993). ed. Accordingly, first victim. reversal on the joinder basis the trial court’s cases Finally, any the statute declares that de- justified. supra. is not v. Early, fense authorized its terms shall be an “affirmative defense.” Section judgment is affirmed. 8B). Repl.Vol. J., METZGER, concurs. given The instruction here informed the jury that the consent of the victim constitut- CRISWELL, J., specially concurs. ed a charges defense first Judge specially concurring. CRISWELL degree assault, second sexual the consent “if negates an (empha- element of the offense.” agree I majority with the that defendant’s supplied) sis convictions of count degree one of first sexual assault, degree two counts of second I agree majority that, general with the aas assault, and count rule, one of sexual assault on a form an instruction incorpo- agree child must be affirmed. I also with the governing rates the terms of the statute is a B, II, expressed conclusions I Parts proper assumes, however, one. That rule majority’s opinion. III agree, I do not subject that the matter of the instruction is however, that giv- the instruction consent jurors proper one that is for the to consider. by “correctly en the trial apprised And, court the question the whether the consent of the jury regarding applicability the of [this] de- victim can constitute an affirmative defense Hence, fense....” I separately write to the charged, to offense because it would ne- why demonstrate this improper instruction is gate offense, an element is not a why it given and not be in should the form in question is, of fact for resolution. It in appears rather, COLJI-Crim. 7:04 No. a question threshold of law for the (1983). court to determine. This upon consent instruction is based a Whenever defendant seeks to assert an (1986 § 8B), Repl.Vol. C.R.S. specific charge, affirmative defense to a three (“Provi- which is within 1 questions may present contained Article themselves.

315 has, by First, preclude. It creates standards which the Assembly the General because considerations, to the victim’s the court is determine whether subject to constitutional culpa- to crimes is to the defendant’s right to affirmative defenses consent relevant create particular applicability bility; to it does not describe circum- to limit their and factual Ledman, crimes, People categories 622 the existence of which is to be deter- stances (Colo.1981), by jurors. lay the first issue to mined sought to be the defense resolved is whether 18-1-505(1) conclude, therefore, § I is by legisla been made available asserted has solely by used the court to determine to be Yaklich, People See tive enactment. affirmative defense of consent is whether the (as law, (Colo.App.1991) matter a P.2d light the of the available to defendant not avail affirmative defense of self-defense if, charge against him or And laid her. upon charge of murder con able to based the example, the court determines that vic- killed). And, such issue tract to have victim if charged, tim’s consent to the conduct es- Lybarger v. for the court to resolve. is one defendant, tablished, exonerate the be- would (Colo.1991) (“[T]he 570, P.2d negate one the cause such consent would availability is the of the defense question of charged, of the and that elements offense (empha jury_” the for the court not issue, is to raise this there sufficient evidence supplied)) sis jurors acquit instructed to then the should be Second, the determines that the find, they beyond unless the defendant legally for assertion as defense is available doubt, did not the victim reasonable charged, it must next be defense to the crime addition, ap- the conduct. consent there has been sufficient determined whether cases, proper propriate it would also be presented raise a factual issue as evidence concept of jurors upon the instruct of the 18-1- to the existence defense. No. See COLJI-Crim. 7:68 term “consent.” 8B) (if (1986 407, Repl.Vol. state’s C.R.S. 7(11)) (1983) (Special Rule 18-3- issue, does not raise defendant evidence 401(1.5), They Cum.Supp.). present upon must some credible evidence not, however, pass upon should be allowed issue). And, question is also this one (previously by legal question determined by law for resolution the court. court) negates an whether such Fincham, (Colo.App.1990) offense, as instruction of the element (“[T]he of whether threshold determination required them do. here by raised affirmative defense has been an not must be made the court and evidence conclude, therefore, giving I Dover, jury.”) People See also in the form which it instruction on consent (Colo.1990) (evidence insufficient given was here error. defense). emergency justification invoke the However, because of nature Finally, if the court determines that given subject upon the instructions other prevent affirmative defense is available defense, agree I with the affirmative conviction of offense majority this erroneous instruction did sufficient to raise there credible evidence People plain constitute error. See not defense, it of the existence of that the issue Fincham, Thus, judg- supra. reversal of the jury to a matter for the deter then becomes required. not ment of conviction is proven that mine have whether Ly has been established. the defense

barger People, supra.

Here, lays pertinent down under which the affirma-

legal circumstances will be available

tive defense i.e., charge, if vic-

against particular negate ele- would one

tim’s consent consent would

ments of the offense or such

preclude the harm or evil the law seeks

Case Details

Case Name: People v. Williams

Court Name: Colorado Court of Appeals

Date Published: Jan 26, 1995

Citation: 1995 Colo. App. LEXIS 9

Docket Number: 93CA0681

Court Abbreviation: Colo. Ct. App.