People v. Sabell

• Decision Date: 14 June 2018
• Docket Number: Court of Appeals No. 15CA0867
• Citation: 452 P.3d 91
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Sean Michael SABELL, Defendant–Appellant.
• Court: Colorado Court of Appeals

452 P.3d 91

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

v.Sean Michael SABELL, Defendant–Appellant.

Court of Appeals No. 15CA0867

Colorado Court of Appeals, Division I.

Announced June 14, 2018

Rehearing Denied July 26, 2018

Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Douglas K. Wilson, Colorado State Public Defender, Meghan M. Morris, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant

Opinion by JUDGE TAUBMAN

¶ 1 Defendant, Sean Michael Sabell, appeals his judgment of conviction entered on a jury verdict finding him guilty of sexual assault, unlawful sexual contact, third degree assault, and criminal mischief. He also appeals his sentence under section 18–1.3–1004, C.R.S. 2017, of the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA). We vacate the conviction for unlawful sexual contact and a $500 crime against a child surcharge, and we remand with directions to correct the mittimus. In all other respects, we affirm the judgment and sentence.

I. Background

¶ 2 Sabell and his girlfriend, the victim, got into an argument on the night of December 14, 2013. When the victim returned to the couple’s home that evening after running errands, Sabell accused her of cheating on him and physically assaulted her. After the fight, the victim began audio recording the altercation on her cell phone because she intended to play the recording later to Sabell to demonstrate to him his abusive behavior. Sabell had smoked marijuana earlier in the day and was drinking alcohol throughout the evening, so the victim feared he would not remember his behavior that evening. Sabell then forced the victim to perform oral sex on him and later broke down her bedroom door after she had locked herself inside.

¶ 3 A few days later, Sabell called the police and alleged that the victim was attempting to poison him. During the investigation of Sabell’s report, the victim played part of the December 14, 2013 audio recording for a police officer. Based on the content of the recording, the police arrested Sabell. He was eventually charged with one count of sexual assault, one count of unlawful sexual contact, one count of third degree assault, one count of criminal mischief, and one count of harassment. The People dismissed the harassment charge prior to trial. The jury convicted Sabell of all remaining charges, and he was sentenced to an indeterminate term of six years to life in prison on the sexual assault and unlawful sexual contact counts.¹

¶ 4 On appeal, Sabell raises five arguments: (1) an improper jury instruction on intoxication requires reversal; (2) an improper limiting instruction regarding other acts evidence requires reversal; (3) his sentence must be vacated because SOLSA is unconstitutional; (4) the sexual assault and unlawful sexual contact convictions must merge; and (5) a crime against a child surcharge imposed by the trial court at sentencing must be vacated. We agree with the fourth and fifth contentions and therefore vacate the unlawful sexual contact conviction and the $500 crime against a child surcharge, and remand for correction of the mittimus. We affirm in all other respects.

II. Involuntary Intoxication Instruction

¶ 5 Sabell contends that the trial court erroneously instructed the jury on his affirmative defense of involuntary intoxication. He contends that this error requires reversal of the sexual assault, unlawful sexual contact, and criminal mischief convictions. We perceive no basis for reversal.

A. Additional Facts

¶ 6 Before trial, the victim admitted that she had put Seroquel, a drug she had been prescribed, in Sabell’s wine in an attempt to sedate him on the night of December 14, 2013. According to the victim, she put the drug in Sabell’s drink after the sexual assault. However, Sabell testified at trial that the victim had put the Seroquel in his drink before the recording began and that he had no memory of any of the recorded events.²

¶ 7 The defense raised the affirmative defense of involuntary intoxication. During a jury instruction conference on the second day of trial, defense counsel stated that "there should be an addendum" to the standard presumption of innocence instruction to address the People’s burden of proof on the affirmative defense. The trial court invited defense counsel to prepare an alternative instruction. The People then tendered a jury instruction on involuntary intoxication. Defense counsel objected to the wording of the instruction, but did not assert that it impermissibly lessened the prosecution’s burden of proof.

¶ 8 The next day, the trial court and both parties reviewed a packet of instructions submitted by the People. The prosecutor stated that she had prepared the intoxication instruction according to the pattern jury instructions. Specifically, the prosecutor explained that she had referred to COLJI–Crim. H:34 (2017) (voluntary intoxication) and COLJI–Crim. H:35 (2017) (involuntary intoxication) in drafting the instruction. The trial court asked if defense counsel objected to "the instructions that [the prosecutor] crafted," and defense counsel replied that he did not. Later, the trial court asked whether defense counsel renewed his objection to the standard burden of proof instruction, and defense counsel withdrew his previous objection.

¶ 9 In relevant part, the intoxication instruction given to the jury read:

The evidence presented in this case has raised a question as to the voluntariness of the defendant’s intoxication. In this case you must answer the question: Was the defendant’s intoxication self-induced? (yes or no)

....

If you answer "yes" to this question you may not consider evidence of self-induced intoxication for purposes of deciding whether the prosecution has proved the elements of the crimes charged in this case.

If you answer "no" to this question and find the defendant’s intoxication was not self-induced you should apply the following instruction:

The evidence presented in this case has raised the affirmative defense of "involuntary intoxication," as a defense to Sexual Assault, Criminal Mischief, and Unlawful Sexual Contact.

The defendant’s conduct was legally authorized if:

1. he lacked the capacity to conform his conduct to the requirements of law, because of his intoxication, and

2. the intoxication was not self-induced.

The prosecution has the burden to prove, beyond a reasonable doubt, that the defendant’s conduct was not legally authorized by this defense. In order to meet this burden of proof, the prosecution must disprove, beyond a reasonable doubt, at least one of the above numbered conditions.

¶ 10 Additionally, each of the relevant elemental instructions listed as an element that "the defendant’s conduct was not legally authorized by the affirmative defense of Involuntary Intoxication." The elemental instructions also stated that the prosecution bore the burden of proving each element beyond a reasonable doubt. Finally, there was a standard instruction on the burden of proof, which read, "The burden of proof is upon the prosecution to prove to the satisfaction of the jury beyond a reasonable doubt the existence of all of the elements necessary to constitute the crime charged."

B. Standard of Review

¶ 11 A trial court has a duty to correctly instruct the jury on the governing law. People v. Pahl , 169 P.3d 169, 183 (Colo. App. 2006). We review jury instructions de novo to determine whether they accurately informed the jury of the governing law, but we review questions of form and style for an abuse of discretion. Townsend v. People , 252 P.3d 1108, 1111 (Colo. 2011). Instructional error occurs when an instruction misleads or confuses the jury. Williams v. Chrysler Ins. Co. , 928 P.2d 1375, 1377 (Colo. App. 1996) ; see also Lybarger v. People , 807 P.2d 570, 582–83 (Colo. 1991).

¶ 12 As a general matter, a failure to object to a jury instruction results in review for plain error. People v. Garcia , 28 P.3d 340, 344 (Colo. 2001) ("If a defendant lodges no objection to a trial court’s jury instruction, a plain error standard should be applied in reviewing the instruction."). Plain errors are "obvious and substantial," Hagos v. People , 2012 CO 63, ¶ 14, 288 P.3d 116, 120, and "cast serious doubt on the reliability of the judgment of conviction," id. (quoting People v. Miller , 113 P.3d 743, 750 (Colo. 2005) ).

C. Applicable Law

¶ 13 "In Colorado, involuntary intoxication is an affirmative defense to a criminal charge." Miller , 113 P.3d at 750. Under that defense, "[a] person is not criminally responsible for his conduct if, by reason of intoxication that is not self-induced at the time he acts, he lacks capacity to conform his conduct to the requirements of the law." § 18–1–804(3), C.R.S. 2017. "To submit the affirmative defense of involuntary intoxication to the jury, a defendant must offer proof which constitutes ‘some credible evidence’ of the condition." People v. Garcia , 113 P.3d 775, 783 (Colo. 2005). Once a defendant meets that burden, the prosecution bears the burden of disproving the affirmative defense beyond a reasonable doubt. Id. at 784 ("[A] properly raised affirmative defense is treated as though it were another element of th[e] offense.").

¶ 14 The Model Criminal Jury Instructions Committee’s notes on the pattern voluntary intoxication instruction state:

If there is question as to the voluntariness of the defendant’s intoxication, draft an instruction explaining that: (1) the jurors are to decide, as a threshold matter, whether the defendant’s intoxication was "self-induced" (as defined in Instruction F:330); and (2) depending on the outcome of that determination, they should then apply either this instruction, or Instruction H:35 (involuntary intoxication).

COLJI–Crim. H:34 cmt. 7; see also COLJI–Crim. H:35 cmt. 3 ("In cases where there is a factual dispute concerning whether the defendant’s intoxication was self-induced, refer to...