People v. Williams

• Citation: 899 P.2d 306
• Decision Date: 26 January 1995
• Docket Number: No. 93CA0681,93CA0681
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sean O. WILLIAMS, Defendant-Appellant. . I
• Court: Court of Appeals of Colorado

Page 306

899 P.2d 306

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sean O. WILLIAMS, Defendant-Appellant.

No. 93CA0681.

Colorado Court of Appeals,

Div. I.

Jan. 26, 1995.

Rehearing Denied March 2, 1995.

Certiorari Denied July 31, 1995.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., M. Catherine Duba, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Beth L. Krulewitch, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge KAPELKE.

Defendant, Sean Orlando Williams, appeals from the judgment of conviction entered upon jury verdicts finding him guilty of one count of sexual assault on a child, one count of first degree sexual assault, and two counts of second degree sexual assault. We affirm.

Defendant's conviction stems from incidents involving two girls, who were 14 and 15 years old respectively. The victims, who were both students at a high school near the fast food restaurant where defendant worked, were acquainted with defendant prior to the assaults.

According to evidence presented by the prosecution, the first victim and a friend went to the restaurant to see defendant who indicated that he wanted to talk to the victim alone. When defendant and the victim were alone and out of the sight of the victim's friend, defendant pulled the victim into a bathroom and sexually assaulted her.

Defendant allegedly assaulted the second victim on two different occasions. The first incident occurred at the restaurant. After defendant told the victim he wanted to talk to her alone, he took her into the bathroom and sexually assaulted her.

The second incident occurred at a party. Defendant, who had not gone to the party with the victim, went into the bathroom where the victim and a friend were talking, asked the friend to leave, then sexually assaulted the victim.

At trial defendant contended that the victims had consented to having sexual relations with him.

I.

Defendant first contends that reversal is required because the trial court incorrectly instructed the jury regarding the affirmative defense of consent.

After advising the jury that "the evidence presented in this case has raised an affirmative defense," the trial court gave the following instruction on consent:

It is an affirmative defense to the crimes of Sexual Assault in the First Degree and Sexual Assault in the Second Degree that the victim gave her consent if the consent negates an element of that offense. (emphasis added)

This instruction was based on §§ 18-1-505(1) and 18-1-505(4), C.R.S. (1986 Repl.Vol. 8B), and tracks the language contained in COLJI-Crim. 7:04 (1983).

Each of the court's elemental instructions to the jury stated that the prosecution was required to prove beyond a reasonable doubt that the defendant committed the acts constituting the offense "without the affirmative defense" of consent.

A.

Relying on Lybarger v. People, 807 P.2d 570 (Colo.1991), defendant argues that the instructions shifted the burden of proof to him on the issue of consent and "improperly relegated to the jury the function of determining the availability" of the defense. We disagree.

Because defendant did not object to the instructions at trial and did not tender alternative instructions, we apply a plain error standard on review. Plain error occurs when we can say "that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction." People v. Kruse, 839 P.2d 1, 3 (Colo.1992).

At the outset, we note that an instruction in the language of the applicable statute is usually sufficient to advise the jury of the nature of the offense or the affirmative defense described in the instruction. See Salas v. People, 181 Colo. 321, 509 P.2d 586 (1973); People v. Wilson, 791 P.2d 1247 (Colo.App.1990).

In Lybarger v. People, supra, our supreme court evaluated the trial court's instructions to the jury regarding the affirmative defense of "treatment by spiritual means" in a case of child abuse resulting in death. Following its instruction on the elements of the offense, the court instructed the jury that:

If, after considering all the evidence, you find that the prosecution has established beyond a reasonable doubt that the Defendant ... acted in such a manner so as to satisfy all the above elements ... and that the affirmative defense is not available to the Defendant, you should find the Defendant guilty of Child Abuse Resulting in Death. If you find that any of the elements have not been proven beyond a reasonable doubt or that the affirmative defense is applicable [,] you should find the Defendant not guilty of Child Abuse Resulting in Death.

Lybarger v. People, supra, 807 P.2d at 574 (emphasis added).

The trial court in Lybarger further instructed the jury that, if the prosecution satisfied its burden of proof with respect to the elements of the offense, the affirmative defense of "treatment by spiritual means" was "not available" to the defendant. In a separate instruction, the court told the jury that:

If you find that the evidence presented in this case has raised the issue of the affirmative defense ... the prosecution then has the burden of proving beyond a reasonable doubt that the affirmative defense is not applicable to the Defendant or his conduct.

Lybarger v. People, supra, 807 P.2d at 574 (emphasis added).

The supreme court held that these instructions improperly "vest[ed] the jury with the prerogative to determine whether" the affirmative defense was an issue in the case, and "preempt[ed] the affirmative defense by telling the jury that as long as the prosecution proved beyond a reasonable doubt that the defendant acted in such a manner so as to satisfy all the elements of the crime charged, then the affirmative defense was simply not an issue for the jury's consideration." Thus, the court concluded that the instructions:

contained erroneous statements of law which improperly relegated to the jury the function of determining the availability or nonavailability of the affirmative defense and eliminated the prosecution's burden of proof with respect to the affirmative defense.

Lybarger v. People, supra, 807 P.2d at 581-82.

Contrary to defendant's assertion, the Lybarger decision does not compel us to hold that the trial court's instructions on consent in this case were plainly erroneous.

The General Assembly is "vested with constitutional authority not only to define criminal conduct and to establish the legal components of criminal liability but, as well, to delineate statutory defenses and bars to criminal prosecution." People v. Guenther, 740 P.2d 971, 977 (Colo.1987). Within constitutional limitations, the General Assembly also may restrict the applicability of an affirmative defense. See Rowe v. People, 856 P.2d 486 (Colo.1993).

In applying a statute, we must give effect to the statutory language according to its plain meaning. People v. District Court, 713 P.2d 918 (Colo.1986).

The statute governing the affirmative defense of consent, § 18-1-505(1), provides that:

The consent of the victim to conduct charged to constitute an offense or to the result therefor is not a defense unless the consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense. (emphasis added)

Unlike the statutory definition of "treatment by spiritual means" at issue in Lybarger, the statutory definition of consent expresses the clear legislative decision to make the defense inapplicable unless the consent either "negatives" an element of the charged offense or precludes the infliction of the harm sought to be prevented by the law defining the offense. Section 18-1-505(1). In accordance with the statute, the trial court's instructions apprised the jury of the first of the two statutory limitations on the applicability of the affirmative defense of consent.

Defendant, however, argues that in sexual assault cases the first statutory limitation on the applicability of the defense should not apply and that the only limitation should be that the consent must "preclude[ ] the infliction of the harm or evil sought to be prevented by the law defining the offense." Defendant thus argues that the trial court's instruction on consent was an erroneous statement of the law. We perceive no plain error.

Defendant's contention is based on the assumption that the submission element of the offense of first and second degree assault cannot be nullified by the victim's consent because the submission element goes to the defendant's state of mind while the defense of consent relates to the victim's state of mind. We disagree.

Whether a victim consented to sexual contact is directly relevant to the issue of submission. See People v. Schmidt, 885 P.2d 312 (Colo.App.1994); see also People v. Smith, 638 P.2d 1 (Colo.1981). Thus, if the victim consented to having sex with defendant, the element of submission would be negated because the victim cannot both consent to sexual contact and be made to submit against her will to such contact. See also § 18-3-401(1.5), C.R.S. (1994 Cum.Supp.) (defining "consent" for purposes of sexual assault offenses committed on or after July 1, 1992).

Here, while the trial court's instructions might have been clearer had the court specifically informed the jury that the issue of consent related to the element of submission, we reject defendant's contention that the court's failure so to instruct the jury constituted plain error.

Moreover, the instructions in this case did not include the type of improper language contained in the instructions in Lybarger v. People, supra, indicating that the jury had the prerogative to decide whether the affirmative defense was available to the defendant. Here, the instructions indicated that the...