Adams County District Court No. 11CR2832 Honorable Thomas R. Ensor, Judge
Cynthia H. Coffman, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Anne T. Amicarella, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Booras, J., concurs J. Jones, J., specially concurs
¶ 1 A jury convicted Paul Lacey Rail of sexual assault on a child (SAOC) and answered a special interrogatory finding a pattern of abuse, but acquitted him of sexual assault on a child-position of trust (SAOC-POT). Rail appeals, primarily contending that under Sanchez v. People, 2014 CO 29, inconsistencies between the jury's answers to the special interrogatory on pattern and the special interrogatory on unanimity constitute structural error mandating reversal.
¶ 2 Because we conclude that Sanchez is distinguishable and other precedent does not support applying structural error, we reject this contention. As to any other relief based on the inconsistent interrogatory answers, we address a novel question in Colorado and further conclude that Rail waived appellate review by declining the trial court's offer of further polling after the court polled the jury on the SAOC guilty verdict and the pattern interrogatory answers. We reject his other contentions and therefore affirm.
¶ 3 B.H. testified that beginning when she was about five years old, Rail would show her sexually explicit photos and then subject her to sexual contact. Although the abuse continued over several years, her first outcry was at age seventeen. B.H. testified to roughly twenty-five incidents over several years, some of which were "mushed together." Many of these incidents occurred in the basement of B.H.'s great-grandmother's house, where Rail lived at the time. She provided the most details about the "worst" incident, which had occurred at an Embassy Suites hotel when she was about thirteen years old.
II. Inconsistent Answers to Special Interrogatories
¶ 4 Rail contends his convictions for SAOC and the pattern enhancer cannot stand because the jury's answers to the unanimity and pattern interrogatories conflicted with each other and with the guilty verdict on the SAOC charge, thus constituting structural error. We reject this contention.
A. Additional Background
¶ 5 The jury received separate verdict forms for both the SAOC and the SAOC-POT charges. The jury was also instructed:
If . . . you do find the defendant guilty of either [SAOC] or [SAOC-POT] as it relates to [B.H.], then you must specify which act or acts of sexual assault you found to have been proved beyond a reasonable doubt.
Furthermore, if you find the defendant guilty of [SAOC], then you must also answer the following question:
"Did the defendant commit [SAOC] as a pattern of sexual abuse?"
This instruction then defined "pattern of abuse" and concluded:
In order to find that there was a "pattern of sexual abuse" you must find, beyond a reasonable doubt, by unanimous vote, that the defendant committed the same two or more acts of sexual contact on [B.H.] or that he committed all of the acts of sexual contact as testified to by [B.H.]
¶ 6 The jury received a special unanimity interrogatory, which instructed the jurors to complete the interrogatory "if you find the defendant guilty of either [SAOC] OR [SAOC-POT]." It then listed four alleged incidents of abuse regarding B.H. Next to each incident, the jury was to indicate whether the incident was "[p]roved" or "[n]ot [p]roved" beyond a reasonable doubt. Although the jury found Rail guilty of SAOC, on the unanimity interrogatory it marked all four incidents of alleged abuse as "[n]ot [p]roved."
¶ 7 The other special interrogatory - relating to the pattern enhancer and to be completed only if the jury found Rail guilty of SAOC - asked whether "the defendant commit[ed] [SAOC] as a pattern of sexual abuse[.]" It then listed five alleged incidents of abuse regarding B.H., the four incidents listed on the unanimity interrogatory that the jury had marked not proved plus the Embassy Suites incident. But this time, the jury marked all five alleged incidents "[p]roved."
¶ 8 The trial court announced the two general verdicts, read each incident of alleged abuse on the pattern interrogatory, and indicated that each incident was proved. Then the court polled the jury by asking, "were these and are these your verdicts?" Each juror answered affirmatively. Finally, the court asked whether "either counsel wish[ed] the jury to be polled any further." Both the prosecutor and defense counsel responded, "No."
¶ 9 But the partial polling left two inconsistencies unresolved. First, on the SAOC general verdict form, the jury found Rail guilty, while the jury indicated on the unanimity interrogatory that none of the four incidents had been proved. Second, the jury's answers to the unanimity interrogatory marked the four incidents as not proved, but on the pattern interrogatory, it marked those same four incidents as proved.
¶ 10 Even so, Rail's counsel did not object to either of these inconsistencies when the court announced the verdicts, excused the jury, and entered judgment of conviction for SAOC with the pattern enhancer as to B.H. Nor did his counsel raise either of them at sentencing on SAOC with the pattern enhancer three months later.
B. Structural Error
¶ 11 Rail and the Attorney General disagree over applying structural error. In declining to do so, we first distinguish Sanchez. Then we consider other precedent and discern no basis for applying structural error.
1. Sanchez v. People
¶ 12 Relying solely on Sanchez, Rail argues that entering a conviction on the SAOC charge - despite the unanimity interrogatory answers that none of the four incidents had been proved - constitutes structural error. See People v. Hassen, 2015 CO 49, ¶ 7 (describing structural errors as errors that "affect the framework within which the trial proceeds, and are not errors in the trial process itself[, ]" and which require reversal) (citation omitted). Rail's reliance on Sanchez and our obligation to follow supreme court authority require that it be examined in detail.
¶ 13 In Sanchez, the defendant was convicted of, among other offenses, SAOC and sentenced based on the pattern enhancer. Sanchez, ¶¶ 1, 8. Although the jury returned a not guilty verdict on SAOC, the jury completed the pattern verdict form in favor of the prosecution. Id. at ¶ 8. The trial court entered judgment of conviction on SAOC with the pattern sentence enhancer, apparently based on this verdict form. Id.
¶ 14 Before the supreme court, the Attorney General argued that the SAOC conviction should be affirmed based on this verdict form. Id. at ¶ 17. The supreme court disagreed. Id. at ¶¶ 19-20.
¶ 15 An interrogatory pertaining to "pattern of abuse" explained that the prosecution had the burden of proving the pattern of abuse beyond a reasonable doubt. Id. at ¶ 6. But the jury was not instructed that the pattern charge "was to be understood as merely adding an additional pattern-of-abuse condition to the existing elements of the crime of sexual assault on a child, as to which the jury had already been instructed." Id. at ¶ 16.
¶ 16 The Sanchez jury was also instructed to complete a pattern verdict form "if, but only if, it were to find the defendant guilty of [SAOC.]" Id. at ¶ 7. As here, the pattern verdict form listed multiple "specific incidents" of alleged sexual contact with a box next to each, and the jury was instructed to mark the box for any incidents that the jury unanimously agreed had been proved. Id. But despite having found the defendant not guilty of SAOC, the jury completed the pattern enhancer verdict form anyway, marking two incidents as proved. Id. at ¶ 8.
¶ 17 The supreme court reversed this conviction, explaining that it rested on "nothing more than factual findings of two incidents of sexual contact against the same victim." Id. at ¶ 13. The court added that the pattern verdict form did not constitute a unanimous jury verdict because the jury was not instructed that proof of pattern required the elements of SAOC to have been proved. Id. at ¶¶ 15-16. And the court concluded that entering judgment of conviction which was "not supported by a unanimous verdict beyond a reasonable doubt" amounted to structural error. Id. at ¶¶ 14, 19.
¶ 18 We decline Rail's invitation to apply this structural error analysis because in his case, and unlike in Sanchez, the jury returned a guilty verdict on SAOC and found that the pattern enhancer had been proved. When polled, the jury in Rail's case affirmed the "verdicts." In contrast, neither the unpublished court of appeals opinion nor the supreme court opinion in Sanchez references any polling.
¶ 19 Of course, we must assess the significance of the inconsistency between the unanimity interrogatory answers and the pattern interrogatory answers. But Sanchez does not inform that inquiry because the reversal in that case rested on lack of a guilty verdict. Even so, because our supreme court has not held structural error to be waivable in all circumstances or in the circumstances presented here,  we consider whether structural error should be applied for any other reason. We conclude that it should not.
2. Inconsistent Verdicts and Structural Error
¶ 20 To be sure, the jury's answers to the special interrogatories were inconsistent. But the parties do not cite a similar Colorado case, nor have we found one.
¶ 21 One might wonder whether this inconsistency could be compared to an inconsistent verdicts case in which a defendant is convicted of two or more crimes, but "an element of one crime negates an element of another crime[.]" People v. Zweygardt, 2012 COA 119, ¶ 30 (quoting People v. Beatty, 80 P.3d 847, 852 (Colo.App. 2003)). Such verdicts are deemed "legally and logically inconsistent" and must be reversed. Id. (quoting Beatty, 80 P.3d at 852). Again, Rail cites no ...