Tumentsereg v. People of State
| Decision Date | 14 February 2011 |
| Docket Number | No. 08SC667.,08SC667. |
| Citation | 247 P.3d 1015 |
| Parties | Darkhanbayar TUMENTSEREG, Petitionerv.The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
OPINION TEXT STARTS HERE
Douglas K. Wilson, Colorado State Public Defender, Joseph Paul Hough, Deputy Public Defender Denver, Colorado, Attorneys for Petitioner.John W. Suthers, Attorney General, Katherine A. Hansen, Senior Assistant Attorney General Denver, Colorado, Attorneys for Respondent.Justice COATS delivered the Opinion of the Court.
Tumentsereg petitioned for review of the court of appeals judgment affirming his conviction of class-two-felony sexual assault, among others, and his indeterminate sentence of sixteen years to life. Although the court of appeals found that the trial court erred in omitting the word “physically” from the statutory formula, “physically aided or abetted,” in its interrogatory distinguishing class-two-felony sexual assault from class-four-felony sexual assault, the appellate court nevertheless held the error to be unobjected-to trial error not rising to the level of plain error. The court of appeals also rejected the defendant's assertion that the trial court abused its discretion in failing to consider a sentence of less than sixteen years, under the erroneous belief that it was statutorily obliged to impose a sentence to at least the mid-point of the presumptive range for a class two felony.
In the absence of any evidence from which the jury could have found that the actor was “aided or abetted” in any manner other than “physically,” there was no reasonable possibility that this omission could have contributed to the defendant's conviction of class-two-, as distinguished from class-four-, felony sexual assault, and therefore the omission did not amount to plain error. Because the trial court, in addition, supported its sixteen-year sentence with appropriate considerations concerning the nature of the offense, the character of the offender, and the public interest, without suggesting any belief that a less onerous sentence would be appropriate in this case or that it would have been statutorily barred from imposing a lesser sentence if it were so inclined, the judgment of the court of appeals is therefore affirmed.
Darkhanbayar Tumentsereg was charged with kidnapping, several counts of sexual assault and conspiring to commit sexual assault, second degree assault, two counts of menacing, and several counts of committing crimes of violence. All of the charges arose from a single incident in January 2001 in which the defendant and three other men gathered at the apartment of one of them, after which one of the men reported to the police that he had been beaten and anally raped. Tumentsereg was ultimately convicted of class-two-felony sexual assault, conspiracy to commit sexual assault, felony menacing, and third degree assault. He was sentenced to an indeterminate sentence of sixteen years to life on the sexual assault count and one year each for the remaining convictions, with all of the sentences ordered to run concurrently.
At trial, the only witnesses asserting first-hand knowledge of the relevant events were the victim and the man in whose apartment the assault occurred. The sum total of their testimony described an afternoon of drinking, after which the fourth man, making clear his feeling that the victim was homosexual, forced him into the bedroom, partially immobilized him by pulling his shirt over his head, and anally assaulted him. Medical examination shortly thereafter confirmed that the victim had suffered facial and anal trauma. Both witnesses also testified that the man in whose apartment the events occurred tried to come to the victim's assistance but was physically prevented from doing so by the defendant.
Both witnesses testified that the primary assailant called out for the defendant to prevent the would-be rescuer from interfering. The victim further testified that in addition to interfering with the rescue attempt, the defendant at some point also physically restrained him from resisting the sexual attack. Although the would-be rescuer contradicted the victim on that point, he testified that the defendant not only fought with him to prevent him from entering the bedroom but also threatened him with a knife.
Neither the principal assailant nor the defendant testified at the trial. The defendant's theory-of-the-case instruction asserted merely that he neither sexually assaulted nor menaced the victim and that the principal assailant acted alone throughout. Out-of-court statements by the defendant that were introduced at trial conceded a physical altercation with the would-be rescuer but asserted that the defendant was asleep during, and was therefore unaware of, any sexual assault. The defendant later left the apartment and was arrested the next day, when he came to the police station.
In part because the victim initially reported that he had been anally penetrated by both men, the defendant was charged with the same offenses as the principal assailant. Although he continued to assert that the defendant threatened and physically restrained him during the attack, the victim conceded in later interviews that he had been anally penetrated only by the other attacker. A number of the charges against the defendant were thereafter dismissed, but the charges of sexual assault, including class-two-felony sexual assault, were retained on the theory that the defendant was accountable as a principal for the behavior of the principal assailant and that the principal assailant was guilty of a class-two-felony under a statutory provision elevating the seriousness of a sexual assault if the assailant is physically aided or abetted by another.
The jury returned guilty verdicts for, among other things, sexual assault, along with a finding that the defendant was aided or abetted by another in the commission of the sexual assault.
In conjunction with the July 2000 repeal of sections 18–3–402, C.R.S. (1999) ( “Sexual assault in the first degree”) and 403 (“Sexual assault in the second degree”), the elements of both offenses were substantially reenacted as section 402, under the heading simply of “Sexual assault,” without any further reference to degree of offense. See ch. 171, sec 18–19, § 18–3–402 to –403, 2000 Colo. Sess. Laws 692, 698–700. Depending upon the existence of various circumstances concerning the act, the actor, or the victim, which are enumerated within the body of the statute itself, the offense of sexual assault is now proscribed as either a class two, three, or four felony, or a class one misdemeanor. In addition, this same statutory section limits the sentencing ranges available for conviction of class-one-misdemeanor and class-two-felony sexual assault, and expressly mandates that any person convicted of felony sexual assault committed on or after November 1, 1998 be sentenced in accordance with the Colorado Sex Offender Lifetime Supervision Act of 1998, currently found at sections 18–1.3–1000 through 1012, of the revised statutes. See § 18–3–402(3), (5), (6), C.R.S. (2010).
As relevant here, the statute proscribes, as a class four felony, knowingly inflicting sexual penetration on someone else whenever the actor causes submission by means of sufficient consequence reasonably calculated to cause submission against that person's will. § 402(1)(a), (2). If, in addition, the actor causes submission through the actual application of physical force or physical violence, the sexual assault is instead classified as a class three felony. § 18–3–402(4)(a). If the actor is “physically aided or abetted” in the commission of a sexual assault by one or more others, the sexual assault is classified as a class two felony. § 18–3–402(5)(a)(I).
The jury in this case was instructed on the definition of complicity and, further, that the defendant would be guilty of an offense committed by another person if the defendant were found to be a complicitor in the commission of that offense. See § 18–1–603, C.R.S. (2010). The jury was instructed as to the elements of the charged offenses of class-three- and class-four-felony sexual assault, which were presented to it as greater and lesser offenses, and it was asked in a single verdict form to determine whether the defendant was guilty of either offense. Rather than by separate elemental instruction, the jury was presented with the option to find circumstances elevating the offense of sexual assault to the level of a class two felony by interrogatory in the same verdict form. In the single verdict form presented for sexual assault, the jury was instructed, more particularly, that if it were to find the defendant guilty of either class-three- or class-four-felony sexual assault, it was to further determine whether he was aided or abetted in the commission of that offense by some other person and, separately, whether he committed that offense in a manner rendering it a crime of violence.1 Neither this method of determining the felony classification of any sexual assault found to have been committed by the defendant nor any elemental instruction on sexual assault itself was challenged on appeal.
The jury returned a verdict of guilt on the lesser rather than the greater of the two sexual assault offenses and found that this sexual assault was not proven beyond a reasonable doubt to have been committed as a crime of violence. The jury answered affirmatively, however, the interrogatory concerning aiding or abetting by another. Although not objected to, and apparently not noticed by anyone at trial, this interrogatory omitted the word “physically” from the statutory formula “physically aided or abetted,” the condition elevating sexual assault from a class four to a class two felony in section 18–3–402(5)(a)(I). As he did in the court of appeals, the defendant contends that this omission requires reversal of the judgment of conviction against him for class-two-felony sexual...
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