Petition for Rehearing Denied August 19, 2019
Page 1066
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 werent preserved at trial, they
are subject to plain error review. See
Tumentsereg v. People, 247 P.3d 1015, 1019 (Colo.
2011). This means that Garcias convictions wont 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 Garcias
convictions. First, it concluded that any error regarding the
sexual assault instruction wasnt 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 Garcias contention regarding the sentence enhancer,
any instructional error wasnt obvious, and thus wasnt
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."
Page 1067
[¶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 doesnt 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 Garcias 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 doesnt 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 didnt
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
...