People v. O'Connell

• Decision Date: 17 November 2005
• Docket Number: No. 03CA1702.,03CA1702.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Erik Scott O'CONNELL, Defendant-Appellant.
• Court: Colorado Court of Appeals

134 P.3d 460

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Erik Scott O'CONNELL, Defendant-Appellant.

No. 03CA1702.

Colorado Court of Appeals, Div. IV.

November 17, 2005.

Rehearing Denied March 30, 2006.

COPYRIGHT MATERIAL OMITTED

John W. Suthers, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado; Craig L. Truman, P.C., Craig L. Truman, Denver, Colorado; Burke & Neuwirth, P.C., Dean S. Neuwirth, Denver, Colorado, for Defendant-Appellant.

ROY, J.

Defendant, Erik Scott O'Connell, appeals the judgment of conviction entered on a jury verdict finding him guilty of attempted sexual assault on a child and second degree burglary with intent to commit attempted sexual assault on a child. He also appeals the sentences imposed. We affirm.

Defendant, a college student, had a serious drinking problem commencing in high school. While attending college, defendant became a binge drinker and frequently consumed alcohol to the point where he blacked out, passed out, or became nauseated.

Prior to the events in question, defendant had been convicted of an alcohol driving offense, which resulted in the suspension of his driver's license. Nevertheless, defendant continued to drive and, after an accident, was convicted of driving under revocation, for which he was sentenced to probation and ordered to pay restitution. When he became delinquent in paying restitution, defendant embezzled from his employer, was charged and convicted of felony theft, and was again sentenced to probation. He was on probation at the time of the events here at issue.

On the night in question, defendant went bar hopping in a limousine with his friends. Defendant drank at the bars and in the limousine before, between, and after visiting the bars. Toward the end of the evening, the limousine took defendant and his friends to a private party in a neighborhood with which defendant was unfamiliar. Defendant continued to drink on the way to the party and fell as he tried to exit the limousine. His friends sat him up, left him on the curb, and went to the party. Defendant estimated that he consumed fourteen to fifteen drinks at the bars and testified that he had little memory of the events that transpired after he left the last bar.

After having been left by his friends, defendant wandered into the backyard of a nearby house, opened an unlocked sliding window, and entered. Defendant's girlfriend frequently left the back door of her residence unlocked, and, when defendant was intoxicated, he would enter her home and fall into her bed. This habit evidence was admitted to show that defendant may have been confused because of his highly intoxicated state.

As he entered the kitchen, defendant found a wallet on the kitchen counter and placed it in his pants pocket. He made his way upstairs and entered the bedroom of a nine-year-old girl (the victim).

The victim awoke to discover her pajama pants around her ankles but her underwear undisturbed. Defendant then began licking her forehead. Too scared to act, the victim remained silent. Defendant then hit his head on the headboard, which awakened the victim's father in the nearby master bedroom.

The father came to the victim's bedroom to investigate and found defendant naked from the waist down lying on top of the covers next to the victim. The father grabbed defendant by the throat and wrestled him to the floor while his wife came and removed the victim from the room and called the police.

Subsequently, defendant was charged with first degree burglary with theft and sexual assault on a child as the underlying offenses and assault and menacing upon the father as an aggravator, second degree burglary with the same underlying offenses, attempted sexual assault on a child, third degree assault with the father as victim, and theft (of wallet) with the mother as the victim. After trial to a jury, defendant was convicted of attempted sexual assault on a child and second degree burglary predicated on that offense and was sentenced to ten years with the Department of Corrections (DOC) for burglary and two years in the DOC for attempted sexual assault, to be served consecutively.

This appeal followed.

I.

Defendant contends that the trial court erred in failing to instruct the jury that intoxication can negate the specific intent required for sexual assault on a child or attempted sexual assault on a child. We conclude that any error is not plain.

A.

Initially, we consider and reject the People's argument that defendant's contention is waived under the doctrine of invited error. After the court rejected defendant's proposal to add a sentence to the instruction on voluntary intoxication, defendant said the content of the proposed instruction was acceptable. The record shows that defendant made this statement not to gain strategic advantage from the absence of language regarding sexual assault, but merely because he did not note its absence. Under these circumstances, we conclude that defendant did not invite error, but that he did not object to the error he now asserts. Therefore, we review for plain error. See Crim. P. 52(b); People v. Stewart, 55 P.3d 107 (Colo. 2002).

B.

A defendant may offer evidence of voluntary intoxication when "it is relevant to negative the existence of a specific intent if such intent is an element of the crime charged." Section 18-1-804(1), C.R.S.2005. A person acts with this intent when "his conscious objective is to cause the specific result proscribed by the statute defining the offense." Section 18-1-501(5), C.R.S.2005. Voluntary intoxication is not an affirmative defense that negates the criminal act. People v. Harlan, 8 P.3d 448 (Colo.2000).

Sexual assault on a child occurs if "[a]ny actor . . . knowingly subjects another not his or her spouse to any sexual contact . . . if the victim is less than fifteen years of age and the actor is at least four years older than the victim." Section 18-3-405(1), C.R.S.2005. "Sexual contact," in turn, is defined as "the knowing touching of the victim's intimate parts by the actor . . . if that sexual contact is for the purposes of sexual arousal, gratification, or abuse." Section 18-3-401(4), C.R.S.2005.

The specified mens rea for sexual assault on a child is "knowingly," which makes the offense a general intent crime, and voluntary intoxication is not a consideration in determining mens rea. However, in People v. Moore, 877 P.2d 840, 847 (Colo.1994), our supreme court indicated, without holding, that sexual assault on a child had a dual mens rea because of the definition of "sexual contact." The court stated that the "culpable mental state required for the commission of sexual assault on a child is knowing touching that is specifically intended to be for the purposes of sexual arousal, gratification, or abuse." People v. Moore, supra, 877 P.2d at 847 (emphasis added; footnote omitted).

As applicable in Moore, the definition of "sexual contact" contained the phrase "if that sexual contact can reasonably be construed as being for the purposes of sexual arousal, gratification, or abuse." Colo. Sess. Laws 1975, ch. 171, § 18-3-401(4) at 627 (emphasis added). The current statute, as amended in 1993, substitutes "is" for the emphasized words.

The Moore court relied in part on People v. West, 724 P.2d 623, 628 (Colo.1986), which dealt with a challenge to the constitutionality of the definition of "sexual contact." The definition then required an intentional touching but contained the phrase "can reasonably be construed as being for the purpose of sexual arousal, gratification or abuse," and the defendant in West argued that the latter phrase was vague and overbroad. The court essentially wrote the phrase "can reasonably be construed as being" out of the statute as to the purpose of the touching and substituted "was" in its stead.

In People v. Vigil, 104 P.3d 258 (Colo. App.2004) (cert. granted Dec. 20, 2004), which was decided subsequent to defendant's trial, a division of this court, relying on the quoted language in Moore as to the culpable mental state, held that intoxication is relevant to the issue of whether the defendant could have formed the requisite specific intent for sexual assault on a child. We note that the supreme court granted certiorari in People v Vigil, supra, on this issue. Attempted sexual assault on a child encompasses the same mens rea as the crime of sexual assault on a child. See Palmer v. People, 964 P.2d 524 (Colo.1998).

The United States Supreme Court, in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), discussed Fed.R.Crim.P. 52(b) and plain error at some length in the context of a jury deliberations issue. The court indicated that a trial error to which no objection is made is forfeited and therefore not reviewable. However, such errors can be reviewed for plain error, which means an error must be plain, and it must affect a substantial right of a party. With respect to the requirement that the error must be plain, the court stated:

The second limitation on appellate authority under Rule 52(b) is that the error be "plain." "Plain" is synonymous with "clear" or, equivalently, "obvious." We need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified. At a minimum, [the] court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.

United States v. Olano, supra, 507 U.S. at 734, 113 S.Ct. at 1777 (citations omitted). Fed.R.Crim.P. 52(b) and our rule Colo.Crim. P. 52(b) are identical. We are persuaded by the United States Supreme Court's construction and application of Fed.R.Crim.P. 52(b) and apply it to Colo.Crim. P. 52(b).

Because Vigil was decided after defendant's trial, we need to consider the "special...