Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 13CA2117
Attorneys for Petitioner: Megan A. Ring, Public Defender Ned
R. Jaeckle, Deputy Public Defender Denver, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General
William G. Kozeliski, Assistant Attorney General Denver,
Colorado
OPINION
HOOD
JUSTICE
¶1
A restraining order prohibited defendant Juvenal Onel Garcia
from contacting C.G. Almost two years after the issuance of
the restraining order, Garcia allegedly attempted to sexually
assault C.G. Based on events related to that criminal
episode, a jury convicted Garcia of first degree burglary,
attempted sexual assault, unlawful sexual contact, third
degree assault, violation of a protection order, and
obstruction of telephone service.
¶2
Garcia appealed, raising two unpreserved claims: (1) the
trial court improperly instructed the jury regarding the
sexual assault charge; and (2) the trial court improperly
instructed the jury regarding the force sentence enhancer
related to his attempted sexual assault conviction.
¶3
Because the alleged errors weren't preserved at trial,
they are subject to plain error review. See Tumentsereg
v. People, 247 P.3d 1015, 1019 (Colo. 2011). This means
that Garcia's convictions won't be overturned unless
at least one error was "both obvious and
substantial." See People v. Miller, 113 P.3d
743, 750 (Colo. 2005). To constitute a basis for reversal,
any such error must have "so undermined the fundamental
fairness of the trial itself as to cast serious doubt on the
reliability of the judgment of conviction." Hagos v.
People, 2012 CO 63, ¶ 18, 288 P.3d 116, 121
(quoting Wilson v. People, 743 P.2d 415, 420 (Colo.
1987)).
¶4
A division of the court of appeals affirmed Garcia's
convictions. First, it concluded that any error regarding the
sexual assault instruction wasn't obvious because the
instruction matched "the Model Jury Instructions that
existed at th[e] time" of trial. People v.
Garcia, 2017 COA 1, ¶ 10, ___P.3d___. Next, the
division concluded that because a published court of appeals
opinion refuted Garcia's contention regarding the
sentence enhancer, any instructional error wasn't
obvious, and thus wasn't plain. Id. at ¶
26.
¶5
Having agreed to review the judgment of the division, we
consider: (1) whether the division incorrectly held that an
instructional error is not plain if it tracks the model jury
instruction existing at the time of trial; (2) whether plain
error should be assessed at the time of trial or the time of
direct appeal; and (3) whether the sentence enhancer requires
proof of the mens rea "knowingly."
¶6
We conclude that the division erred in holding that simply
following the model instructions avoids plain error. But, for
different reasons, we agree that any error regarding the
sexual assault instruction doesn't require reversal. We
do so because Garcia failed to show that any error so
undermined the fundamental fairness of the trial itself as to
cast serious doubt on the reliability of Garcia's
convictions. Because we resolve this issue based on lack of
prejudice, we need not reach the question of whether the
obviousness of an error should be assessed at the time of
trial or the time of direct appeal. We also conclude that the
force sentence enhancer doesn't include a mens rea
requirement, and, therefore, there was no error with respect
to that instruction.
¶7
Accordingly, we affirm the judgment of the court of appeals.
I.
Facts and Procedural History
¶8
Garcia and C.G. met in middle school, married when C.G.
turned 18, and have two children together. In 2010, they
separated, and in August 2010, a protection order was issued
prohibiting Garcia from contacting C.G. However, Garcia,
C.G., and their children continued to participate in some
family outings together, and Garcia would occasionally
babysit their children.
¶9
On the night of April 12, 2012, Garcia had agreed to babysit
the children in C.G.'s home. But he arrived hours late.
C.G. testified that Garcia was drunk when he arrived, so she
told him to leave. Garcia left, taking C.G.'s car. He
didn't return for several hours, prompting C.G. to report
her car stolen to the police.
¶10
Around 4:00 a.m., Garcia returned and entered the apartment
using a key he had taken with him. Garcia and C.G. both
testified that a physical altercation ensued.
¶11
C.G. testified that, when Garcia returned with the car, she
told him to leave. But Garcia didn't leave. Instead, she
testified, he pulled her pants, ripped her underwear, held
her down, and attempted to penetrate her. But she
successfully fought him off.
¶12
Garcia argued consent. He testified that he fell asleep in
C.G.'s home after returning with the car and awoke to
C.G. shaking him; she attacked him and then they "both
ended up on the bed," where he believed they were going
to have consensual sex; they "both ended up naked"
and made sexual contact, but he stopped the encounter before
any penetration occurred.
¶13
The jury found Garcia guilty of first degree burglary,
attempted sexual assault, unlawful sexual contact, third
degree assault, violation of a protection order, and
obstruction of telephone service. The trial court sentenced
him to concurrent terms of ten years for first degree
burglary, ten years to life for attempted sexual assault, and
ten years to life for unlawful sexual contact.
¶14
Garcia appealed. As relevant here, he argued (1) that
"the trial court erred by failing to apply the
'knowingly' mens rea to the 'caused
submission' element of the offense[] of . . . attempted
sexual assault" and (2) that the trial court erred in
elevating his attempted sexual assault conviction to a class
4 (as opposed to a class 5) felony "because the jury did
not find that he knowingly used force to cause
submission." Garcia, ¶ 4.
¶15
A division of the court of appeals unanimously affirmed
Garcia's convictions. Id. at ¶ 48. It
concluded that any error with respect to the attempted sexual
assault instruction wasn't obvious because the
instruction matched "the Model Jury Instructions that
existed at th[e] time" of trial. Id. at ¶
10. With respect to the sentence enhancer, the division
observed that a published court of appeals opinion,
People v. Santana-Medrano, 165 P.3d 804, 807
(Colo.App. 2006), considered the same issue and held that the
sentence enhancer doesn't require proof of a mens rea.
Garcia, ¶ 25. Because a published opinion
explicitly rejected Garcia's contention, the division
concluded that any error wasn't plain error because it
wasn't obvious. Id. at ¶ 26.
¶16
Garcia petitioned this court for certiorari.[1]
II.
Analysis
¶17
First, we address Garcia's contention that the trial
court committed reversible plain error when it gave the jury
a sexual assault instruction that didn't apply the
"knowingly" mens rea to the "caused
submission" element. Second, we examine whether the
"knowingly" mens rea applies to the force sentence
enhancer. We conclude that any error regarding the sexual
assault instruction doesn't require ...