People v. Salazar

542 P.3d 1209

2023 COA 102

2023 COA 102

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

v.Adrian Elijah SALAZAR, Defendant-Appellant.

Court of Appeals No. 22CA0331

Colorado Court of Appeals, Div. IV.

Announced November 2, 2023

Weld County District Court No. 19CR528, Honorable James F. Hartmann, Jr., Judge

Philip J. Weiser, Attorney General, Alejandro Sorg, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE NAVARRO

¶ 1 Defendant, Adrian Elijah Salazar, appeals the judgment of conviction imposed on jury verdicts finding him guilty of several offenses based on his sexual abuse of two children. Among other offenses, he was convicted of multiple counts of sexual assault on a child by one in a position of trust. On appeal, Salazar contends that the trial court’s jury instructions were erroneous because they failed to apply the culpable mental state of this offense ("knowingly") to the element that he occupied a position of trust with respect to the children. We disagree and hold that the culpable mental state does not apply to the position of trust element. Because we also reject Salazar’s other challenges to the judgment, we affirm.

I. Factual and Procedural History

¶ 2 The children at issue, M.R. and M.M., were less than fifteen years old at the time of the offenses. M.R.’s mother and Salazar were friends who met through their work. Salazar helped around M.R.’s house and ultimately spent time alone with him. M.M. is Salazar’s cousin; Salazar also spent significant time alone with him. When alone with M.R. or M.M., Salazar played video games with them, took them to restaurants and to other activities, and had them stay overnight at his home.

¶ 3 After suspicions arose about the nature of Salazar’s relationships with the boys, they underwent forensic interviews. During their initial interviews, both M.M. and M.R. denied any sexual abuse. At a later interview, however, M.M. disclosed that Salazar had sexually abused him.

¶ 4 Based on that interview, the police arrested and interviewed Salazar. He confessed to multiple instances of sexual contact with both M.M. and M.R., including acts of sexual contact with M.R. of which the police were then unaware (but which M.R. later confirmed).

¶ 5 Officers then conducted a second forensic interview with M.R., who again did not disclose any sexual abuse. Shortly before trial, however, M.R. disclosed Salazar’s sexual assaults of him, and M.R. testified to those assaults at trial. M.M. also testified that Salazar had sexually assaulted him. Salazar did not testify at trial.

¶ 6 A jury convicted Salazar of sexual assault on a child, sexual assault on a child as part of a pattern of abuse, sexual assault on a child by one in a position of trust, and sexual assault on a child who was less than fifteen years old by one in a position of trust and as part of a pattern of abuse.¹

¶ 7 On appeal, Salazar contends that the trial court (1) erroneously instructed the jury on the culpable mental state for the position of trust charges; (2) admitted improper character evidence; (3) admitted improper testimony concerning probable cause that he committed the offenses; and (4) permitted prosecutorial misconduct. We do not detect reversible error.

II. Alleged Instructional Error

¶ 8 Salazar argues that the trial court erred by failing to instruct the jury that the culpable mental state of "knowingly" applies to the position of trust element of the offense of sexual assault on a child by one in a position of trust. We disagree.

A. Standard of Review

[1, 2] ¶ 9 We review de novo whether the jury instructions adequately informed the jury of the governing law. People v. Garcia, 2021 COA 80, ¶ 9, 495 P.3d 362, aff'd, 2023 CO 30, 531 P.3d 1031. We also review de novo "questions of statutory interpretation." Manjarrez v. People, 2020 CO 53, ¶ 19, 465 P.3d 547. While trial courts have "broad discretion to determine the form and style of jury instructions," an elemental instruction "should substantially track the language of the statute describing the crime." People v. Grudznske, 2023 COA 36, ¶ 48, 533 P.3d 579 (citation omitted).

B. Relevant Law

¶ 10 "In interpreting a statute, we give effect to the intent of the legislature." Gorman v. People, 19 P.3d 662, 665 (Colo. 2000). To do so, "[w]e begin with the plain language of the statute, reading the words and phrases in context and construing them according to their common usage." Manjarrez, ¶ 19.

[3–5] ¶ 11 "The power to define criminal conduct and to establish the legal components of criminal liability is vested in the General Assembly." Gorman, 19 P.3d at 665. The culpable mental state of a criminal statute "may speak to conduct, or to circumstances, or to result, or to any combination thereof, but not necessarily to all three." People v. Cross, 127 P.3d 71, 74 (Colo. 2006), abrogated in part on other grounds by Counterman v. Colorado, 600 U.S. 66, 143 S. Ct. 2106, 216 L.Ed.2d 775 (2023). "When a statute defining an offense prescribes as an element thereof a specified culpable mental state, that mental state is deemed to apply to every element of the offense unless an intent to limit its application clearly appears." § 18-1-503(4), C.R.S. 2023. Under this rule and its exception, we must carefully consider whether the legislature intended that the expressed culpable mental state of the offense applies only to certain elements. Cross, 127 P.3d at 74.

¶ 12 Section 18-3-405.3(1), C.R.S. 2023, provides,

Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child by one in a position of trust if the victim is a child less than eighteen years of age and the actor committing the offense is one in a position of trust with respect to the victim.

A person acts "knowingly" with respect to conduct or circumstances described by a statute when "he is aware that his conduct is of such nature or that such circumstance exists." § 18-1-501(6), C.R.S. 2023. One in a "position of trust" includes, but is not limited to,

any person who is a parent or acting in the place of a parent and charged with any of a parent’s rights, duties, or responsibilities concerning a child, including a guardian or someone otherwise responsible for the general supervision of a child's welfare, or a person who is charged with any duty or responsibility for the health, education, welfare, or supervision of a child, including foster care, child care, family care, or institutional care, either independently or through another, no matter how brief, at the time of an unlawful act.

§ 18-3-401(3.5), C.R.S. 2023.

C. Relevant Facts

[6] ¶ 13 The trial court gave the jury the following instruction for all counts of sexual assault on a child by one in a position of trust:

The elements of the crime of Sexual Assault on a Child by One in a Position of Trust as charged in counts 1, 2 (referring to [M.M.])[,] 5, and 6 (referring to [M.R.]) are:

1. That Adrian Elijah Salazar,

2. in the State of Colorado, at or about the date and place charged,

3. knowingly,

a. subjected ([M.M. or M.R.]), a child under eighteen years of age, who was not his spouse

b. to any sexual contact, and

4. Adrian Elijah Salazar was in a position of trust with respect to ([M.M. or M.R.]).

The court also instructed the jury on the statutory definition of "knowingly" as well as the meaning of one in a "position of trust." The jury returned guilty verdicts on all four position of trust counts.

D. Application

¶ 14 We reject Salazar’s contention that the court erroneously instructed the jury by not wording the instruction so as to apply the culpable mental state of "knowingly" to the position of trust element of sexual assault on a child by one in a position of trust. We hold, as an apparent matter of first impression, that the mental state of "knowingly" does not apply to the position of trust element.

¶ 15 Although "knowingly" presumptively applies to every element of an offense when a statute prescribes this mental state, "this general rule contains an exception that ap- plies to this case." Cross, 127 P.3d at 77; see § 18-1-503(4). The structure of section 18-3-405.3(1) makes this plain. See Cross, 127 P.3d at 76–77 (considering the "statutory phraseology," the statute’s "actual wording," and the statement of legislative intent when deciding that the prescribed mental state of "knowingly" did not apply to all elements).² "Knowingly" appears in the independent clause defining the conduct constituting sexual assault on a child by one in a position of trust: "Any actor who knowingly subjects another not his or her spouse to any sexual contact commits [this offense]." § 18-3-405.3(1). Hence, "knowingly" applies to this conduct.

[7] ¶ 16 The position of trust element, however, is offset by the conjunction "if" and appears in a different clause. § 18-3-405.3(1). Grammatically, "if" is widely understood to introduce a conditional clause, which is a clause that states a condition necessary "for the truth or occurrence of the main statement of a sentence." United States v. Flores, 664 F. App’x 395, 399 (5th Cir. 2016) (citation omitted). This separate conditional clause describes the circumstances necessary for commission of the offense including "the actor committing the offense is one in a position of trust with respect to the victim." § 18-3-405.3(1). Because "knowingly" does not appear in that separate clause, "knowingly" does not apply to this circumstance.³ The trial court’s instruction here accurately tracked the statutory language with respect to the position of trust element. See Cross, 127 P.3d at 77 ("The trial court’s instruction possesses the virtue of utilizing the statute’s actual language."); Garcia, ¶ 10 ("Instructions that accurately track the language of the applicable statute are generally sufficient.").⁴

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