People v. Espinosa

465 P.3d 114

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

v.Alberto Gil ESPINOSA, Defendant-Appellant.

Court of Appeals No. 16CA1109

Colorado Court of Appeals, Division II.

Announced April 9, 2020

Philip J. Weiser, Attorney General, Rebecca A. Adams, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Dayna Vise, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE TOW

¶1 Defendant, Alberto Gil Espinosa, appeals his judgment of conviction entered on a jury verdict finding him guilty of sexual assault on a child by one in a position of trust. For the first time in the context of jury instructions, we address the definition of "sexual abuse" as that term is used to define "sexual contact." § 18-3-401(4)(a), C.R.S. 2019. Because the trial court incorrectly instructed the jury that defendant's motivation was not relevant in determining whether an act constituted sexual abuse, we reverse and remand for a new trial.

I. Background

¶2 Espinosa was charged with having sexual contact with his then-fifteen-year-old daughter, A.E. According to the prosecution's evidence, A.E. spent the night at Espinosa's apartment in October 2014. Early the next morning, Espinosa attempted to wake A.E., first by stroking her hair, and then by kissing her cheek, forehead, and lips. A.E. turned over to avoid Espinosa, pretending to be asleep. Espinosa then nudged A.E.’s shoulder, apparently to see if she was awake. When A.E. did not respond, Espinosa reached his hands under A.E.’s blanket and felt her breasts. A.E. opened her eyes, at which point Espinosa removed his hands and asked her if she wanted to go to work with him as they had planned. A.E. told him no, and Espinosa left. A.E. vomited and began crying, then called her mother to pick her up. A.E. was still crying when her mother arrived.

¶3 At the suggestion of the police, A.E. later called her father to try to get him to confess to the assault. Espinosa maintained that he had simply been trying to wake her up, but he also indicated that he was curious and concerned about her development, as A.E.’s mother had required a breast reduction surgery.

¶4 In December 2014, Espinosa was arrested and charged with sexual assault on a child by one in a position of trust. Following a jury trial, Espinosa was convicted as charged. The trial court sentenced Espinosa to a term of ten years to life on sex offender intensive supervised probation.

II. The Trial Court Erroneously Instructed the Jury

¶5 Espinosa argues that the trial court erred by improperly instructing the jury as to the definition of "sexual abuse." We agree.

A. Additional Facts

¶6 To convict Espinosa, the prosecution had to prove that he knowingly subjected A.E. to "sexual contact." § 18-3-405.3(1), C.R.S. 2019. As relevant here, "sexual contact" is defined as "[t]he knowing touching of the victim's intimate parts by the actor ... or the knowing touching of the clothing covering the immediate area of the victim's ... intimate parts if that sexual contact is for the purposes of sexual arousal, gratification, or abuse." § 18-3-401(4)(a).

¶7 During deliberations, the jury asked the trial court to provide the legal definition of "abuse" in the context of the term "sexual contact." The court agreed, at defense counsel's request, to instruct the jury that the word "sexual" modifies the word "abuse," consistent with People v. Lovato , 2014 COA 113, 357 P.3d 212. The parties and the court then discussed at length how to define "sexual abuse" for the jury. While the trial court asserted that Lovato provided the applicable definition, defense counsel was wary of the particular language in Lovato on which the trial court was relying. Defense counsel objected that, contrary to the trial court's conclusion, Lovato did not define "abuse" as encompassing emotional as well as physical abuse, and it did not determine that the actor's motivation was irrelevant in determining whether abuse is sexual or not. Ultimately, drawing language from Lovato , the court answered the jury's question by providing the following written instruction defining "sexual abuse":

First, the word "sexual" modifies the term "abuse."

Second, sexual abuse involves behavior done with an intent to cause pain, injury, or discomfort of a serious nature to a victim's "intimate parts." The pain, injury, or discomfort can be either of a physical or an emotional nature. The term "abuse" imports an intent to injure or hurt badly, not lewdness. It is the nature of the act that renders the abuse "sexual" and not the motivation of the perpetrator.

B. Standard of Review and Applicable Law

¶8 The trial court has a duty to correctly instruct the jury on all matters of law. People v. Bryant , 2018 COA 53, ¶ 83, 428 P.3d 669. And "[i]f a jury inquires about the meaning of a particular instruction, the court should provide a supplemental instruction sufficient to clarify the jury's uncertainty." People v. Wilford , 111 P.3d 512, 517 (Colo. App. 2004). When it does so, we review the court's decision to give that instruction for an abuse of discretion. People v. McClelland , 2015 COA 1, ¶ 14, 350 P.3d 976. A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, unfair, or contrary to law. People v. Tibbels , 2019 COA 175, ¶ 31. ––– P.3d ––––. In the context of instructional error, a court abuses its discretion where an instruction is legally inaccurate or if it misleads or confuses the jury. Id. ; People v. Gwinn , 2018 COA 130, ¶ 31, 428 P.3d 727 ("A court abuses its discretion if it bases its ruling on an erroneous view of the law ...."); Bryant , ¶ 87. We review de novo whether a jury instruction accurately reflects the law. Tibbels , ¶ 31.

¶9 "[W]hen a trial court misinstructs the jury on an element of an offense, either by omitting or misdescribing that element, that error is subject to constitutional harmless or plain error analysis ...." Griego v. People , 19 P.3d 1, 8 (Colo. 2001). "A constitutional error is harmless when the reviewing court is confident beyond a reasonable doubt that the error did not contribute to the verdict obtained." Id. at 8-9 (citing Neder v. United States , 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) ).

C. The Instruction Correctly Defined "Abuse"

¶10 Espinosa argues generally that the trial court should not have taken language from Lovato , as "statements taken from opinions do not necessarily translate with clarity into jury instructions." Evans v. People , 706 P.2d 795, 800 (Colo. 1985). However, Espinosa does not challenge the first or third sentences of the instruction's definition of "sexual abuse." The first sentence, defining "abuse" as "pain, injury, or discomfort of a serious nature," was closely modeled after Lovato . See Lovato , ¶ 32. But because Espinosa does not challenge this phrasing, we will not address it.

¶11 Instead, Espinosa challenges the second and fourth sentences. Espinosa first contends that the trial court erred by instructing the jury that "[t]he pain, injury, or discomfort can be either of a physical or an emotional nature." We disagree.

¶12 As with the other aspects of this instruction, the trial court gleaned this language from Lovato , which had reasoned that the sexual assault on a child (SAOC) statute is intended to protect children from "both the emotional and sometimes physical harm that comes from abuse to the child's intimate parts ...." Lovato , ¶ 37 (distinguishing the SAOC statute from the child abuse statute, "which protects children from direct physical injury and endangerment to life or health"). Espinosa maintains that the trial court should not have relied on Lovato , arguing that the Lovato division's discussion regarding emotional harm was merely dicta.

¶13 We note that the Lovato division's definition of "abuse" as meaning "pain, injury, or discomfort" is largely consistent with the term's generally accepted meaning in this context. Lovato , ¶¶ 32-33 ; see People v. Padilla-Lopez , 2012 CO 49, ¶ 7, 279 P.3d 651 (When interpreting statutes, "[w]e accord words and phrases their plain and ordinary meaning."). In the legal context, "abuse" is defined as (1) "[a] departure from legal or reasonable use; misuse" and (2) "[c]ruel or violent treatment of someone; specif[ically], physical or mental maltreatment, often resulting in mental, emotional, sexual, or physical injury." Black's Law Dictionary 12 (11th ed. 2019). In addition, whether dicta or not, the Lovato division's reference to emotional harm was also consistent with this ordinary meaning. Here, the trial court defined "sexual abuse" in similar terms, encompassing both physical and emotional pain, injury, or significant discomfort.

¶14 Espinosa argues that abuse only includes physical pain. But this argument ignores the potentially devastating impact of emotional maltreatment. Indeed, by its very nature, sexual abuse is more likely to cause emotional harm than physical pain. See Lovato , ¶ 37 (discussing "the legislature's intent to protect children ... from both the emotional and sometimes physical harm that comes from abuse to the child's intimate parts"). For example, consider a scenario in which a perpetrator touches the victim's intimate parts (or makes the victim touch the perpetrator's intimate parts), not for the purpose of causing physical injury, but rather to control, degrade, or otherwise mistreat the victim in a sexual way. Such conduct would not fall within Espinosa's definition of "abuse." But nothing in the statute suggests the legislature intended such a narrow view, rather than the commonly held meaning reflected in the general use of the term.

¶15 Thus, while we agree with Espinosa that crafting jury instruction language by quoting from case law is "generally an unwise practice," Evans , 706 P.2d at 800,¹ we conclude that the trial court's instruction that pain, injury, or significant discomfort can be...