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Garcia v. State

Supreme Court of Colorado, En Banc

June 24, 2019

Juvenal Onel Garcia, Petitioner
v.
The People of the State of Colorado. Respondent

          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 ...


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