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Rail v. People

Supreme Court of Colorado, En Banc

December 9, 2019

Paul Lacey Rail, Petitioner:
v.
The People of the State of Colorado, Respondent:

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 13CA392.

         Judgment Reversed

          Attorneys for Petitioner: Megan A. Ring, Public Defender Anne T. Amicarella, Deputy Public Defender Denver, Colorado.

          Attorneys for Respondent: Philip J. Weiser, Attorney General John T. Lee, Senior Assistant Attorney General Denver, Colorado.

          OPINION

          MÁRQUEZ JUSTICE.

         ¶1 A jury found Defendant Paul Lacey Rail guilty of sexual assault on a child. In response to a special interrogatory, the jury also found, unanimously and beyond a reasonable doubt, that Rail committed the offense as part of a pattern of abuse and that the People had proved each of the listed incidents of sexual contact, including "[a]ll of the alleged incidents of sexual contact" testified to by the victim. However, in response to a separate unanimity interrogatory, the jury indicated that these same incidents of sexual contact (excluding one that appeared only on the pattern of abuse interrogatory) were "[n]ot [p]roved." Rail argues that, under Sanchez v. People, 2014 CO 29, 325 P.3d 553, this inconsistency requires reversal of his conviction for sexual assault on a child as part of a pattern of abuse.

         ¶2 We disagree. Unlike in Sanchez, the jury here returned a unanimous verdict of guilt beyond a reasonable doubt. Moreover, any ambiguity in this verdict created by the jury's response on the unanimity interrogatory was resolved by individual polling of the jurors, each of whom confirmed their intent to find the defendant guilty of sexual assault on a child as part of a pattern of abuse, and their express findings that the People had proved all the alleged incidents of sexual contact beyond a reasonable doubt. We therefore affirm the judgment of the court of appeals upholding Rail's conviction, albeit based on somewhat different reasoning.

         I. Facts and Procedural History

         ¶3 In 2012, the State charged Rail with two counts of sexual assault on a child[1] as to B.H. and her younger sister, C.H.; two counts of sexual assault on a child by one in a position of trust[2] as to victims B.H. and C.H.; and sexual assault on a child conducted as part of a pattern of abuse[3] as to B.H.[4]

         ¶4 At trial, B.H. testified that starting when she was about five years old and for several years thereafter, Rail, her great uncle, showed her sexually explicit photos and subjected her to sexual contact. B.H. testified that many of these incidents occurred in the basement of B.H.'s great-grandmother's house, where Rail lived at the time. B.H. testified about roughly twenty-five incidents, including one that took place at an Embassy Suites hotel.

         ¶5 After the close of evidence, the trial court instructed the jury. As relevant here, the court explained that to find Rail guilty of either sexual assault on a child ("SAOC") or sexual assault on a child by one in a position of trust ("SAOC-POT"), the jury must unanimously find, beyond a reasonable doubt, that Rail committed the same one or more acts of sexual contact involving B.H., or that he committed all the acts of sexual contact to which B.H. testified. The court further instructed the jury that if it found Rail guilty of either SAOC or SAOC-POT, then it must indicate on a special interrogatory form which act or acts of sexual assault it found to have been proved beyond a reasonable doubt ("the unanimity interrogatory"). Finally, the court instructed the jury that if it found Rail guilty of SAOC, it must determine whether Rail committed the offense as a pattern of abuse (defined as "the commission of two or more separate incidents of sexual contact with the same child").

         ¶6 After instructing the jury, the trial court introduced the verdict and interrogatory forms at issue.

         ¶7 First, the court introduced the general verdict form for the SAOC charge, explaining that the foreperson should sign either the "guilty" or "not guilty" line on the form. Next, the court introduced the pattern of abuse interrogatory, which stated that it was to be completed only if the jury found the defendant guilty of SAOC.[5] This interrogatory asked whether the defendant committed SAOC "as a pattern of sexual abuse" and listed specific alleged incidents of abuse involving B.H. (including the Embassy Suites incident). The fifth listed incident asked whether the People had proved "[a]ll of the alleged incidents of sexual contact which were testified to by [B.H.]." The form required the jury foreperson to mark whether each incident had been "[p]roved" or "[n]ot [p]roved."

         ¶8 After introducing the pattern of abuse interrogatory, the court stated, "The next case or the next interrogatory that I have or verdict form that I have is pretty much the same. It deals with the charge of sexual assault on a child by one in a position of trust." (Emphasis added.)

         ¶9 The court then introduced the general verdict form for the SAOC-POT charge, stating, "Again, the first page [i.e., the general verdict form] is a guilty-not guilty finding. 'I' is not guilty. 'II' is guilty." (Emphasis added.)

         ¶10 Immediately after introducing the general verdict form, the court stated, "Then we have the special interrogatory for this," and introduced the disputed unanimity interrogatory.[6] (Emphasis added.) This interrogatory listed the same incidents as the pattern of abuse interrogatory, excluding the Embassy Suites incident.[7] Like the pattern of abuse interrogatory, the unanimity interrogatory required the jury foreperson to mark whether each incident had been "[p]roved" or "[n]ot [p]roved."

         ¶11 After deliberations, the jury returned the verdict forms and interrogatories. As relevant here, the jury indicated on the SAOC verdict form that it found Rail guilty of sexual assault on a child. On the related pattern of abuse interrogatory, the jury found, unanimously and beyond a reasonable doubt, that Rail had committed SAOC as part of a pattern of abuse and that the People had proved all the listed incidents of sexual contact, including "[a]ll of the alleged incidents of sexual contact testified to by [B.H.]." The jury acquitted Rail of the position of trust charge, marking "NOT GUILTY" on the SAOC-POT verdict form. Finally, on the unanimity interrogatory attached to the SAOC-POT verdict form, the jury marked all four of the listed incidents "[n]ot [p]roved."

         ¶12 Notably, the jury's responses on the unanimity interrogatory (indicating that none of the listed incidents had been proved) were inconsistent with both the jury's guilty verdict on the SAOC charge and its responses on the pattern of abuse interrogatory (unanimously finding that the same incidents, plus the Embassy Suites incident, had been proved beyond a reasonable doubt). But this inconsistency did not immediately come to light.

         ¶13 Upon receiving the verdict forms, the court first announced that the jury found Rail not guilty of SAOC-POT. Next, it announced that the jury found Rail guilty of SAOC. From there, the court addressed the pattern of abuse interrogatory, announcing that the jury found that the People proved beyond a reasonable doubt that the SAOC charge was committed as part of a pattern of sexual abuse and, further, that the jury unanimously found that all the incidents of alleged abuse listed on the pattern of abuse interrogatory had been proved beyond a reasonable doubt. The court read aloud each of the five listed incidents and, after each one, announced that the jury had found that incident "proved," including "[a]ll of the alleged incidents of sexual contact which were testified to by [B.H.]." However, in reading aloud the verdict forms, the court failed to announce the jury's responses on the unanimity interrogatory, which stated that these same incidents (excluding the Embassy Suites incident) were "[n]ot [p]roved."

         ¶14 The jury foreperson confirmed that these were the unanimous verdicts of all twelve jury members. The court then polled each juror individually, asking "were these and are these your verdicts?" Each juror responded affirmatively. Finally, the court asked whether "either counsel wish[ed] the jury to be polled any further." Both the prosecutor and Rail's counsel declined. The court accepted the jury's verdicts and sentenced Rail to eight years to life in the custody of the Department of Corrections.

         ¶15 Rail appealed his conviction. As relevant here, Rail argued for the first time that the jury's responses on the unanimity interrogatory were inconsistent with its guilty verdict on the SAOC charge, rendering that verdict ambiguous and thus legally insufficient. Relying solely on this court's decision in Sanchez, Rail argued that this inconsistency gave rise to structural error requiring reversal of his conviction.

         ¶16 A division of the court of appeals, with Judge J. Jones specially concurring, rejected Rail's contention and affirmed his convictions. People v. Rail, 2016 COA 24, ¶¶ 2, 78, P.3d .

         ¶17 First, the division held there was no structural error, concluding that Sanchez was distinguishable. Id. at ¶¶ 2, 11-19. In Sanchez, the defendant's conviction for SAOC as part of a pattern of abuse rested on "nothing more than factual findings of two incidents of sexual contact against the same victim." Rail, ¶ 17 (quoting Sanchez, ¶ 13, 325 P.3d at 557-58). Thus, the division reasoned, reversal in that case rested on the lack of a guilty verdict. Id. at ¶ 19. By contrast, the jury here returned a guilty verdict on the SAOC charge and found that the pattern enhancer had been proved; moreover, the jury confirmed the verdicts when polled. Id. at ¶ 18.

         ¶18 The division majority also concluded that Rail waived any claim regarding the inconsistent interrogatories by failing to raise the inconsistency before the jury was discharged, citing to People v. Cordova, 199 P.3d 1, 4 (Colo.App. 2007), and drawing guidance from section 13-71-140, C.R.S. (2019) (providing that the court "shall not declare a mistrial or set aside a verdict based upon allegations of any irregularity in selecting, summoning, and managing jurors," unless the aggrieved party "objects to such irregularity . . . as soon as possible after its discovery"). Rail, ¶¶ 39-40.

         ¶19 The division majority reasoned that even if section 13-71-140 did not compel the conclusion that Cordova's "waiver by silence" rule controls, the court of appeals' opinion in People v. Rediger, 2015 COA 26, 411 P.3d 907, "tip[ped] the scales." Rail, ¶ 41. In Rediger, the defense acknowledged in response to the trial court's query that it was "satisfied" with the jury instructions. Rediger, ¶¶ 45-47, 411 P.3d at 914. When Rediger argued on appeal that an incorrect elemental instruction tendered by the prosecution resulted in a constructive amendment of his charging document, the court of appeals concluded that he had waived the claim through his counsel's "affirmative acquiescence" to the incorrect instruction. Id. at ¶¶ 55, 57, 60, 411 P.3d at 915-17.

         ¶20 Here, the division majority observed that, like defense counsel in Rediger, Rail's counsel "did more than fail to object." Rail, ¶ 41 (quoting Rediger, ¶ 49, 411 P.3d at 915). Specifically, counsel "affirmatively declined the trial court's offer to poll the jury further," which the division majority concluded would have brought to light the jury's inconsistent answers to the unanimity interrogatory. Id. The court explained that, as in Rediger, defense counsel's "affirmative conduct obviate[d] further inquiry" into whether counsel declined the court's offer as a matter of strategy or inadvertence. Id.

         ¶21 Because it concluded that Rail waived his inconsistency claim, the division majority declined to consider whether ...


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