Douglas County District Court No. 11CR143 Honorable Richard B. Caschette, Judge.
Modified and Petition for Rehearing DENIED.
Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Elizabeth Porter-Merrill, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
OPINION is modified as follows:
¶ 1 Defendant, Cory James Komar, appeals the judgment of conviction entered on a jury verdict finding him guilty of sexual assault. He also appeals his sentence, the characterization of his offense as a class 3 felony on the mittimus, and the manner of designating his status under the sexually violent predator (SVP) determination. We affirm the judgment and sentence, and we remand for correction of the mittimus.
¶ 2 Defendant was convicted of sexual assault in violation of section 18-3-402(1)(a), C.R.S. 2015, by causing submission of the victim by means of sufficient consequences reasonably calculated to cause submission against her will. Because the jury found in a special interrogatory that defendant did not use physical force, the conviction was for a class 4 felony. The jury found defendant not guilty of sexual assault of a helpless victim under section 18-3-402(1)(h).
¶ 3 The mittimus erroneously recorded the conviction as a class 3 felony. The postconviction evaluation by the Sex Offender Management Board concluded that defendant did not meet the criteria of an SVP, but the mittimus noted only that there was no SVP finding. Defendant was sentenced to sex offender intensive supervised probation under the Sex Offender Lifetime Supervision Act of 1998 (SOLSA), §§ 18-1.3-1001 to -1012, C.R.S. 2015.
¶ 4 The evidence at trial supported the following facts. M.A., the victim, celebrated her twenty-first birthday with several others, including Joshua Thurston and Cody Halbrook, drinking heavily at a bar to the point of intoxication. Thereafter, she went with some of her friends to Halbrook's house, where she went to bed in a severely intoxicated state. Defendant, who was also intoxicated, subsequently entered the bedroom and engaged in sexual intercourse with M.A.
¶ 5 The trial witnesses offered inconsistent testimony as to the surrounding circumstances.
¶ 6 M.A. testified that she awoke to find defendant engaging in sexual intercourse with her. She told him to stop, but he continued the assault. She screamed for help and for him to cease the assault. She tried to push him off of her, but he resisted, put more of his weight on her, held her down with his hands, and continued to sexually assault her. She testified that he remained on top of her until Thurston and Hasenbalg pulled him off of her.
¶ 7 Hasenbalg testified that she overheard M.A.'s repeated protests. At her direction, Thurston broke down the bedroom door. In contrast to M.A.'s testimony, Hasenbalg stated that she did not see defendant and M.A. lying down together. Rather, she saw M.A. "sitting up with a sheet wrapped around her" and defendant in his underwear, pulling his pants up. Thurston offered testimony consistent with Hasenbalg's.
¶ 8 Defendant did not testify at trial. However, a videorecording of his statement to police was introduced. Referring to that statement, his attorney argued in closing that M.A. initially consented to the sexual encounter, but that she later withdrew her consent, at which point the encounter ended. Defendant's theory of the case instruction stated his contention that he and M.A. engaged in consensual intercourse.
¶ 9 In support of this theory, defendant offered the testimony of Sean Conway, who was present at the Halbrook house. Conway testified that he overheard the sexual encounter for one to two seconds. Asked to "describe the type of sex," he stated, "It was loud. It was a moan . . . ." He replied, "No" in answer to the question: "Did you hear someone cry out to say 'stop' or 'get off' or . . . 'I want to go to sleep' or something?" He answered, "Yes" to the question: "Did you hear a female voice?" However, he also stated, "I thought it was Cody [Halbrook] having sex . . . ."
¶ 10 Defendant also introduced the testimony of Mandy Stone, M.A.'s former friend, who testified that M.A. had a reputation for dishonesty and had, contrary to M.A.'s testimony, previously accused at least one person of sexual assault. Defendant sought to introduce Stone's testimony that M.A. had previously accused three specific people of sexual assault, but the district court did not allow this testimony.
¶ 11 As noted, the jury found defendant guilty of sexual assault by causing the victim's submission through means of sufficient consequence to overcome her will, a class 4 felony.
II. Issues on Appeal
¶ 12 Defendant first contends that we should vacate his conviction because the sexual assault provision of the statute pursuant to which he was convicted is unconstitutionally vague. He further contends that, even if we do not vacate his conviction on constitutional grounds, we should nonetheless reverse it because the district court erred by (1) incorrectly instructing the jury on the mens rea of the offense and (2) incorrectly limiting Mandy Stone's testimony.
¶ 13 Defendant further contends that, even if we affirm his conviction, we should remand for resentencing because SOLSA, under which the district court sentenced him, is unconstitutional. Finally, defendant contends that, even if we affirm his conviction and sentence, we should remand for correction of the mittimus.
A. Constitutional Challenge
¶ 14 Defendant argues that the "sufficient consequence" language of the sexual assault statute, § 18-3-402(1)(a), is unconstitutionally vague, both on its face and as applied to him. We address this claim first because if defendant is correct his conviction must be vacated and he may not be retried.
¶ 15 Following conviction, defendant filed a motion for judgment of acquittal in which he argued, inter alia, that the sexual assault statute under which the jury convicted him was unconstitutionally vague. The statute states:
(1) Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if:
(a) The actor causes submission of the victim by means of sufficient consequence reasonably calculated to cause submission against the victim's will . . . .
¶ 16 Defendant supported his vagueness argument by noting that during the deliberations the jury requested a definition of the phrase "sufficient consequence." He further argued that the statute was vague as applied to him because it did not address the circumstance where an intoxicated individual may recognize and respond more slowly to an assertion of nonconsent than a sober person.
¶ 17 Relying on People v. Smith, 638 P.2d 1 (Colo. 1981), the district court rejected defendant's facial challenge to the "sufficient consequence" language of the statute. The district court also rejected defendant's as-applied challenge, stating that defendant "fail[ed] to provide any basis for his assertion that an intoxicated individual should be treated differently by the law." The district court acknowledged defendant's assertion that the jury ...