People v. Abdulla

486 P.3d 380

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Sharif Mubarak ABDULLA, Defendant-Appellant.

Court of Appeals No. 17CA0343

Colorado Court of Appeals, Division V.

Announced July 23, 2020

As Modified on Denial of Rehearing August 27, 2020

Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE BROWN

¶ 1 A jury found defendant, Sharif Mubarak Abdulla, guilty of unlawful sexual contact and third degree assault. On appeal, he contends that his conviction for unlawful sexual contact must be reversed for three reasons: (1) the trial court erred by granting the prosecution's request to instruct the jury on the lesser included offense of unlawful sexual contact; (2) the jury instructions failed to ensure that the jury's verdict was unanimous as to the act underlying the unlawful sexual contact conviction; and (3) the trial court erred by admitting various hearsay statements.

¶ 2 Resolving the first issue requires us to determine, as a matter of first impression, whether striking a person's intimate parts with an implement or object, rather than with a part of the actor's own body, can constitute "touching" under Colorado's unlawful sexual contact statute, § 18-3-401(4)(a), C.R.S. 2019. We conclude that it can. Because record evidence would support the conclusion that Abdulla whipped the victim with a belt on her buttocks for the purpose of sexual arousal, gratification, or abuse, we conclude that the trial court did not err by instructing the jury on unlawful sexual contact as a lesser included offense of sexual assault.

¶ 3 We also reject the defendant's contention that the jury instructions failed to ensure that the jury's verdict was unanimous as to the act underlying the unlawful sexual contact conviction. And we conclude that, if the trial court erred by admitting various hearsay statements, such error was harmless. Accordingly, we affirm the judgment of conviction.

I. Background

¶ 4 On Sunday, January 24, 2016, the victim, L.C., went to a police station to report that her husband, Abdulla, had beaten and raped her the previous night. That same day, L.C. consented to a sexual assault examination at a hospital.

¶ 5 Five days later, the People charged Abdulla with one count of sexual assault, a class 3 felony, and one count of third degree assault, a class 1 misdemeanor. Abdulla pleaded not guilty.

¶ 6 At trial, L.C. testified that she and Abdulla had gotten into an argument that had turned physical. L.C. said it started with Abdulla pushing her multiple times on her arm while telling her to call the police if she wanted him out. Abdulla then forced her to take off her clothes so he could beat her with a belt, forced her to get on her knees so he could put his "dick in [her] mouth," and forced her to choose between "oral sex or regular sex." L.C. testified that she didn't want to have either, but, because she was scared, said, "regular sex." After having sex with L.C., Abdulla went to sleep.

¶ 7 According to L.C., at some point Abdulla woke up and wanted to have sex again. L.C. said that, because she was still scared, she laid there while he had sex with her. L.C. testified that she never said "no" to any of the sexual acts and instead pretended to go along with it.

¶ 8 As his theory of defense, Abdulla acknowledged that the "fight became physical" but argued that all the subsequent sexual acts were consensual.

¶ 9 The jury acquitted Abdulla of sexual assault but convicted him of unlawful sexual contact and third degree assault. The trial court sentenced Abdulla to an indeterminate term of six years to life in the custody of the Department of Corrections on the unlawful sexual contact count and to a concurrent two-year jail term on the misdemeanor assault count.

II. Analysis

A. The Lesser Included Offense Instruction

¶ 10 At the prosecutor's request, and over Abdulla's counsel's objection, the trial court instructed the jury on unlawful sexual contact as a lesser included offense of sexual assault. Abdulla asks us to reverse his conviction for unlawful sexual contact because there was no rational basis for that charge to have been submitted to the jury. We disagree.

1. Standard of Review

¶ 11 We review de novo whether the trial court applied the correct legal standard when it evaluated the prosecutor's request for the lesser included offense instruction. People v. Alaniz , 2016 COA 101, ¶ 40, 409 P.3d 508. But we review for an abuse of discretion the court's determination that there was sufficient evidence to support the instruction. People v. Jimenez , 217 P.3d 841, 870 (Colo. App. 2008) ; see also People v. Leyba , 2019 COA 144, ¶ 44, ––– P. 3d –––– (cert. granted in part May 26, 2020).

2. Applicable Law

¶ 12 A defendant may be convicted of a lesser offense that is "necessarily included in the offense charged." Crim. P. 31(c) ; see also § 18-1-408(5), C.R.S. 2019; People v. Cooke , 186 Colo. 44, 46, 525 P.2d 426, 428 (1974). A lesser offense is "included in an offense charged" if it "is established by proof of the same or less than all the facts required to establish the commission of the offense charged" or if it "differs from the offense charged only in the respect that a less serious injury or risk of injury ... or a lesser kind of culpability suffices to establish its commission." § 18-1-408(5)(a), (c).

¶ 13 Section 18-1-408(6) "obligate[s]" a trial court to "charge the jury with respect to an included offense" when the party requesting the instruction demonstrates "a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense." See also People v. Arispe , 191 Colo. 555, 557, 555 P.2d 525, 527 (1976) ; People v. Skinner , 825 P.2d 1045, 1046 (Colo. App. 1991). Such a rational basis exists when "there is some evidence, however slight, tending to establish the lesser included offense." People v. Shaw , 646 P.2d 375, 379 (Colo. 1982) ; accord People v. Annan , 665 P.2d 629, 630 (Colo. App. 1983).

3. The Trial Court Properly Instructed the Jury on the Lesser Included Offense of Unlawful Sexual Contact

a. Notice and the Cooke Test

¶ 14 Because the prosecutor requested the lesser included instruction, and the trial court granted the request over Abdulla's counsel's objection, the People argue that the test employed in Cooke , 186 Colo. at 48, 525 P.2d at 428-29, governs. That test, which is "[m]indful of the primacy of notice within the constitutional guarantee of due process of law and of the duty of the courts to safeguard this right," is satisfied if the lesser included offense is "(1) easily ascertainable from the charging instrument, and (2) not so remote in degree from the offense charged that the prosecution's request appears to be an attempt to salvage a conviction from a case which has proven to be weak." Id.

¶ 15 On appeal, Abdulla does not argue that the Cooke test was not satisfied or otherwise contend that he was not given enough notice "to give him a fair and adequate opportunity to prepare his defense, and to ensure that he is not taken by surprise because of evidence offered at the time of trial." Id. at 46, 525 P.2d at 428. Instead, Abdulla argues that there is an "additional requirement that there must also be a rational basis for the jury to acquit of the greater offense and convict of the lesser." On this point, we agree.

¶ 16 Satisfaction of the Cooke test does not end the inquiry when the defendant's objection to the requested lesser included offense instruction is not based on lack of notice but rather on insufficient evidence. In other words, even if the requested instruction satisfies the Cooke test, the trial court must still determine that there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the lesser included offense. See § 18-1-408(6) ; Arispe , 191 Colo. at 557, 555 P.2d at 527 ; Skinner , 825 P.2d at 1046.

¶ 17 But we also conclude that the trial court applied the correct legal standard. It is undisputed that unlawful sexual contact is a lesser included offense of sexual assault. See Page v. People , 2017 CO 88, ¶ 19, 402 P.3d 468. And when the court overruled Abdulla's counsel's objection to the instruction, it said, "[T]he prosecution can request a lesser-included offense if it's not to salvage a verdict, but if the evidence supports it ." (Emphasis added.) So we turn to Abdulla's contention that there was no rational basis for the jury to acquit him of sexual assault but to convict him of unlawful sexual contact.

b. Rational Basis for the Lesser Included Offense Instruction

¶ 18 As relevant in this case, a person commits sexual assault by means of penetration when he "knowingly inflicts ... sexual penetration on a victim" and "causes submission of the victim by means of sufficient consequence reasonably calculated to cause submission against the victim's will." § 18-3-402(1)(a), C.R.S. 2019. Sexual assault is a class 3 felony if the person "causes submission of the victim through the actual application of physical force or physical violence." § 18-3-402(4)(a). Sexual penetration means "sexual intercourse, cunnilingus, fellatio, anilingus, or anal intercourse." § 18-3-401(6).

¶ 19 A person commits unlawful sexual contact if he knowingly subjects the other person to any sexual contact, knowing that the other person does not consent. § 18-3-404(1)(a), C.R.S. 2019. The offense is a class 4 felony if, as relevant here, the actor compels the victim to submit "through the actual application of physical force or physical violence." § 18-3-402(4)(a) ; see § 18-3-404(2)(b) ("[U]nlawful sexual contact is a class 4 felony if the actor compels the victim to submit by use of such force ... as specified in section 18-3-402(4)(a)."). Sexual contact includes "[t]he...