Jefferson County District Court No. 14CR379 Honorable Tamara
S. Russell, Judge.
Cynthia H. Coffman, Attorney General, Erin K. Grundy,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Meghan M.
Morris, Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Sean Michael Sabell, appeals his judgment of
conviction entered on a jury verdict finding him guilty of
sexual assault, unlawful sexual contact, third degree
assault, and criminal mischief. He also appeals his sentence
under section 18-1.3-1004, C.R.S. 2017, of the Colorado Sex
Offender Lifetime Supervision Act of 1998 (SOLSA). We vacate
the conviction for unlawful sexual contact and a $500 crime
against a child surcharge, and we remand with directions to
correct the mittimus. In all other respects, we affirm the
judgment and sentence.
2 Sabell and his girlfriend, the victim, got into an argument
on the night of December 14, 2013. When the victim returned
to the couple's home that evening after running errands,
Sabell accused her of cheating on him and physically
assaulted her. After the fight, the victim began audio
recording the altercation on her cell phone because she
intended to play the recording later to Sabell to demonstrate
to him his abusive behavior. Sabell had smoked marijuana
earlier in the day and was drinking alcohol throughout the
evening, so the victim feared he would not remember his
behavior that evening. Sabell then forced the victim to
perform oral sex on him and later broke down her bedroom door
after she had locked herself inside.
3 A few days later, Sabell called the police and alleged that
the victim was attempting to poison him. During the
investigation of Sabell's report, the victim played part
of the December 14, 2013 audio recording for a police
officer. Based on the content of the recording, the police
arrested Sabell. He was eventually charged with one count of
sexual assault, one count of unlawful sexual contact, one
count of third degree assault, one count of criminal
mischief, and one count of harassment. The People dismissed
the harassment charge prior to trial. The jury convicted
Sabell of all remaining charges, and he was sentenced to an
indeterminate term of six years to life in prison on the
sexual assault and unlawful sexual contact
4 On appeal, Sabell raises five arguments: (1) an improper
jury instruction on intoxication requires reversal; (2) an
improper limiting instruction regarding other acts evidence
requires reversal; (3) his sentence must be vacated because
SOLSA is unconstitutional; (4) the sexual assault and
unlawful sexual contact convictions must merge; and (5) a
crime against a child surcharge imposed by the trial court at
sentencing must be vacated. We agree with the fourth and
fifth contentions and therefore vacate the unlawful sexual
contact conviction and the $500 crime against a child
surcharge, and remand for correction of the mittimus. We
affirm in all other respects.
Involuntary Intoxication Instruction
5 Sabell contends that the trial court erroneously instructed
the jury on his affirmative defense of involuntary
intoxication. He contends that this error requires reversal
of the sexual assault, unlawful sexual contact, and criminal
mischief convictions. We perceive no basis for reversal.
6 Before trial, the victim admitted that she had put
Seroquel, a drug she had been prescribed, in Sabell's
wine in an attempt to sedate him on the night of December 14,
2013. According to the victim, she put the drug in
Sabell's drink after the sexual assault. However, Sabell
testified at trial that the victim had put the Seroquel in
his drink before the recording began and that he had no
memory of any of the recorded events.
7 The defense raised the affirmative defense of involuntary
intoxication. During a jury instruction conference on the
second day of trial, defense counsel stated that "there
should be an addendum" to the standard presumption of
innocence instruction to address the People's burden of
proof on the affirmative defense. The trial court invited
defense counsel to prepare an alternative instruction. The
People then tendered a jury instruction on involuntary
intoxication. Defense counsel objected to the wording of the
instruction, but did not assert that it impermissibly
lessened the prosecution's burden of proof.
8 The next day, the trial court and both parties reviewed a
packet of instructions submitted by the People. The
prosecutor stated that she had prepared the intoxication
instruction according to the pattern jury instructions.
Specifically, the prosecutor explained that she had referred
to COLJI-Crim. H:34 (2017) (voluntary intoxication) and
COLJI-Crim. H:35 (2017) (involuntary intoxication) in
drafting the instruction. The trial court asked if defense
counsel objected to "the instructions that [the
prosecutor] crafted, " and defense counsel replied that
he did not. Later, the trial court asked whether defense
counsel renewed his objection to the standard burden of proof
instruction, and defense counsel withdrew his previous
9 In relevant part, the intoxication instruction given to the
The evidence presented in this case has raised a question as
to the voluntariness of the defendant's intoxication. In
this case you must answer the question: Was the
defendant's intoxication self-induced? (yes or no)
If you answer "yes" to this question you may not
consider evidence of self-induced intoxication for purposes
of deciding whether the prosecution has proved the elements
of the crimes charged in this case.
If you answer "no" to this question and find the
defendant's intoxication was not self-induced you should
apply the following instruction:
The evidence presented in this case has raised the
affirmative defense of "involuntary intoxication, "
as a defense to Sexual Assault, Criminal Mischief, and
Unlawful Sexual Contact.
The defendant's conduct was legally authorized if:
1. he lacked the capacity to conform his conduct to the
requirements of law, because of his intoxication, and
2. the intoxication was not self-induced.
The prosecution has the burden to prove, beyond a reasonable
doubt, that the defendant's conduct was not legally
authorized by this defense. In order to meet this burden of
proof, the prosecution must disprove, beyond a reasonable
doubt, at least one of the above numbered conditions.
10 Additionally, each of the relevant elemental instructions
listed as an element that "the defendant's conduct
was not legally authorized by the affirmative defense of
Involuntary Intoxication." The elemental instructions
also stated that the prosecution bore the burden of proving
each element beyond a reasonable doubt. Finally, there was a
standard instruction on the burden of proof, which read,
"The burden of proof is upon the prosecution to prove to
the satisfaction of the jury beyond a reasonable doubt the
existence of all of the elements necessary to constitute the
Standard of Review
11 A trial court has a duty to correctly instruct the jury on
the governing law. People v. Pahl, 169 P.3d 169, 183
(Colo.App. 2006). We review jury instructions de novo to
determine whether they accurately informed the jury of the
governing law, but we review questions of form and style for
an abuse of discretion. Townsend v. People, 252 P.3d
1108, 1111 (Colo. 2011). Instructional error occurs when an
instruction misleads or confuses the jury. Williams v.
Chrysler Ins. Co., 928 P.2d 1375, 1377 (Colo.App. 1996);
see also Lybarger v. People, 807 P.2d 570, 582-83
12 As a general matter, a failure to object to a jury
instruction results in review for plain error. People v.
Garcia, 28 P.3d 340, 344 (Colo. 2001) ("If a
defendant lodges no objection to a trial court's jury
instruction, a plain error standard should be applied in
reviewing the instruction."). Plain errors are
"obvious and substantial, " Hagos v.
People, 2012 CO 63, ¶ 14, 288 P.3d 116, 120, and
"cast serious doubt on the reliability ...