County District Court No. 12CR76 Honorable Roxanne Bailin,
AND SENTENCES AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Cynthia H. Coffman, Attorney General, William G. Kozeliski,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Ned R.
Jaeckle, Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Juvenal Onel Garcia, appeals his convictions of
first degree burglary, attempted sexual assault, unlawful
sexual contact, third degree assault, violation of a
protection order, and obstruction of telephone service; his
sentences for attempted sexual assault and unlawful sexual
contact; and an order designating him a sexually violent
predator (SVP). We affirm the convictions and sentences and
remand for reconsideration of the SVP designation.
2 Garcia and the victim met in middle school and married
after the victim turned eighteen. In August 2010, a
protection order was issued that prohibited Garcia from
contacting the victim. However, on occasion in April 2012, he
would go to the victim's home to watch their children.
One night, Garcia was late. When he arrived, the victim told
him to leave because he had been drinking. Instead, he took
her car keys and left. The victim eventually reported her car
stolen after he did not return for several hours.
3 When Garcia came back, they physically struggled. According
to the victim, Garcia forcefully tried to take off her
clothes and initiate sexual intercourse but she fought him
off, and he abruptly stood up and masturbated. They then
resumed arguing, he prevented her from calling 911, and he
left, again taking her car. According to Garcia, their sexual
contact was consensual and he voluntarily ended it before
leaving. The victim was taken to the hospital.
4 At his March 2013 trial, Garcia was convicted as noted
above and was sentenced to a term of ten years to life in the
custody of the Department of Corrections. The trial court
designated him an SVP. Garcia raises the following issues:
(1) the trial court erred by failing to apply the
"knowingly" mens rea to the "caused
submission" element of the offenses of burglary and
attempted sexual assault; (2) Garcia's conviction and
sentence for class 4 attempted sexual assault and class 4
unlawful sexual contact must be vacated because the jury did
not find that he knowingly used force to cause submission;
(3) Garcia was improperly convicted of class 4 attempted
sexual assault and class 4 unlawful sexual contact because
the jury was not correctly instructed concerning force
related to each offense, and therefore his convictions were
unconstitutionally elevated; (4) the trial court erred by
failing to instruct the jury that "knowingly"
applied to every element of the offense of violation of a
protection order; and (5) the trial court erred in
designating Garcia an SVP because he never established or
promoted his relationship with the victim for purposes of
sexual victimization as required by the statute.
Mens Rea for "Caused Submission"
5 Garcia contends that the trial court erred in not applying
"knowingly" to every element of the offense of
sexual assault, including the "caused submission"
element of this offense. We perceive no reversible error.
6 At trial, the jury was instructed on the elements of sexual
assault as follows:
1.That the defendant,
2.in the State of Colorado at or about the date and place
3.knowingly, inflicted sexual penetration, or sexual
intrusion, on a person, and
4.caused submission of the person by means of sufficient
consequence reasonably calculated to cause submission against
the person's will.
instructions did not set off "knowingly" as a
separate element of the offense. The instructions also
informed the jury that, if it found Garcia guilty of
attempted sexual assault, it should determine whether he
attempted "to cause submission of the person through the
actual application of physical force or physical
Standard of Review
7 We review de novo whether instructions accurately informed
the jury of the law. People v. Lucas, 232 P.3d 155,
162 (Colo.App. 2009). Where a defendant does not object to an
erroneous jury instruction, review is under the plain error
standard and reversal is required when the error is obvious
and substantial. People v. Garcia, 28 P.3d 340, 344
(Colo. 2001). A defendant must show that an error was
"so clear cut, so obvious, a trial judge should be able
to avoid it without benefit of objection." People v.
Ujaama, 2012 COA 36, ¶ 42, 302 P.3d 296, 304. A
defendant also has the burden of establishing that the error
was "seriously prejudicial, " that is, "so
grave that it undermines the fundamental fairness of the
trial itself so as to cast serious doubt on the reliability
of the conviction." Id. at ¶ 43, 302 P.3d
8 When a statutory offense such as sexual assault specifies a
mental state, unless otherwise stated in its text, the
culpable mental state applies to every element. Copeland
v. People, 2 P.3d 1283, 1286 (Colo. 2000).
9 Based on the jury instructions that existed at the time of
trial in this case and the language of the statute, we find
no plain error.
10 Garcia raises a fair point that offsetting
"knowingly" in the jury instructions effectively
demonstrates that it applies to every element of the offense.
The current Colorado Model Jury Instructions indeed offset
"knowingly" as a separate element to indicate that
it applies to every other element of the offense.
See COLJI-Crim. 3-4:01 (2015). However, the Colorado
Model Jury Instructions applicable at the time of
Garcia's trial did not offset "knowingly" from
the other elements of the offense. See COLJI-Crim.
3-4:01 (2008). The instructions used at Garcia's trial
match those in the Model Jury Instructions that existed at
that time. Although "[t]he [model] instructions [had]
not been approved as accurate reflections of the law, "
they were "intended as helpful resource material for
both courts and criminal practitioners in their preparation
of instructions for specific cases and should be used
accordingly." Preface, COLJI-Crim. (2008).
11 Considering those model jury instructions, we conclude
that any error in the jury instructions not defining
"knowingly" as a separate ...