Certiorari to the District Court El Paso County District
Court Case No. 16CV32107
Attorneys for Petitioner: Daniel H. May, District Attorney,
Fourth Judicial District Carleigh C. Fite, Deputy District
Attorney Tanya A. Karimi, Deputy District Attorney Colorado
Springs, Colorado
Attorneys for Respondent: McClintock Law Firm, LLC Elizabeth
A. McClintock Colorado Springs, Colorado
OPINION
HART,
JUSTICE
¶1
We granted certiorari to review an order from the El Paso
County District Court reversing the sexual assault conviction
of defendant, Rodolfo Lozano-Ruiz, due to the county
court's failure to provide a jury instruction containing
the statutory definition of "sexual
penetration."[1] Under the circumstances of this case, we
disagree that such an omission constituted reversible error.
Therefore, we reverse the district court's order and
reinstate the county court conviction.
I.
Facts and Procedural History
¶2
Lozano-Ruiz was convicted of misdemeanor sexual assault of a
victim between the ages of 15 and 17, where the difference in
his age and hers fell beyond a ten-year range. See
§ 18-3-402(1)(e), C.R.S. (2018). At trial, Lozano-Ruiz
argued vehemently that he did not know that the young woman
was a minor. He did not contest the repeated
characterization, by witnesses and the prosecutor, of the
physical interaction between the two as "sex" or
"sexual intercourse." When specifically asked if
Lozano-Ruiz "put his penis inside of [her]," the
minor victim responded in the affirmative, without any
apparent hesitation or indicia of confusion. Defense counsel
did not cross-examine the victim as to this statement or
otherwise call into question the victim's use of the word
"sex" to describe the physical contact she had with
Lozano-Ruiz. Nor did Lozano-Ruiz offer any contradictory
testimony.
¶3
The trial court provided the jury with an instruction setting
forth the elements of the crime charged: that the defendant
knowingly "inflicted sexual intrusion or penetration on
a person" who was between 15 and 17 years of age when
the defendant was at least ten years older than the person
and not the person's spouse. The court did not provide
the jury with an instruction defining "sexual
penetration." Lozano-Ruiz did not object to the
instructions provided, and he did not request a definitional
instruction.
¶4
Lozano-Ruiz appealed his conviction to the district court,
arguing that the county court erred by failing to instruct
the jury as to the definition of "sexual
penetration." The district court agreed and vacated
Lozano-Ruiz's conviction. The district court recognized
that, because there had been no objection to the absence of a
definitional instruction at trial, it was reviewing for plain
error. Applying that standard, the court concluded that there
was a reasonable possibility that the absence of the
definition of "sexual penetration" improperly
contributed to the jury verdict.
II.
Analysis
¶5
Like the district court, we review the trial court's
omission of the definitional instruction for plain error.
See Auman v. People, 109 P.3d 647, 665-66 (Colo.
2005); People v. Fichtner, 869 P.2d 539, 543 (Colo.
1994). This review requires us to determine whether a
reasonable possibility exists that the absence of the
definitional instruction contributed to Rozano-Luiz's
conviction "such that serious doubt is cast upon the
reliability of the jury's verdict." Auman,
109 P.3d at 665. In this case, we cannot agree with the
district court's conclusion that the missing instruction
might have influenced the jury's verdict. Instead,
because the question of whether sexual penetration occurred
was not contested at trial beyond the mere fact of the
defendant pleading not guilty, failure to include the
definitional instruction did not rise to the level of plain
error.
¶6
In reviewing erroneous jury instructions, we have
consistently explained that "[f]ailure to instruct the
jury properly does not constitute plain error where the
subject of the error in the instruction is not contested at
trial . . . ." Bogdanov v. People, 941 P.2d
247, 255 (Colo. 1997); see also Fichtner, 869 P.2d
at 543-44; People v. Pearson, 546 P.2d 1259, 1263
(Colo. 1976). Here, Lozano-Ruiz never contested the testimony
from several witnesses that he and the victim engaged in
"sex" or "sexual intercourse." He did not
cross-examine the victim as to the veracity of her statement
that he put his penis inside of her. His sole defense at
trial was mistake of age, a defense wholly unrelated to the
statutory definition of "sexual penetration."
Cf. Auman, 109 P.3d at 651-52 (concluding that the
jury instructions were erroneous where the
"knowingly" element of theft was omitted and the
defendant's defense to the related burglary charge
"centered upon the claim that she had not formed the
intent to steal when the unlawful entry occurred").
¶7
While Lozano-Ruiz did not concede that sexual
penetration occurred, in that he maintained throughout the
trial that he was not guilty of the charged offense, he also
did not contest that sexual penetration occurred, in
that he never challenged the evidence suggesting that it had.
It is the failure to contest the issue that is the
crucial missing ingredient here. Without putting the
definition of "sexual penetration" at issue in the
trial, and without objecting to the jury instructions,
Lozano-Ruiz cannot now claim that the trial court plainly
erred in omitting that definition from the instructions.
III.
...