PEOPLE v. CRUZ

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Docket Number

No. 93CA1198

Attorney(S)

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John J. Krause, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee. David F. Vela, Colorado State Public Defender, Anne Stockham, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Judges

Opinion by JUDGE KAPELKE.

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Smart Summary

Factual and Procedural Background

Defendant Darrell W. Cruz was convicted by a jury of first degree sexual assault. On appeal, the Colorado Court of Appeals initially reversed the conviction and remanded the case. However, after the Colorado Supreme Court vacated that judgment and remanded for reconsideration in light of the decision in Dunton v. People, the Court of Appeals reconsidered and affirmed the conviction. At trial, defendant argued that the victim consented to the sexual act and requested jury instructions on the affirmative defense of consent, which the trial court refused to give.

Legal Issues Presented

Whether the trial court erred in refusing to instruct the jury on the affirmative defense of consent in a first degree sexual assault case.
Whether the trial court erred in responding to the jury's inquiry by providing a definition of "submission" that omitted reference to the requirement of physical force or violence.

Arguments of the Parties

Defendant-Appellant's Arguments

The trial court committed reversible error by refusing to instruct the jury on the affirmative defense of consent, asserting that consent negates an element of the offense under § 18-1-505(1), C.R.S.
The court's supplemental instruction to the jury defining "submission" was improper because it omitted the requirement that submission must be effectuated through physical force or violence, thereby relieving the prosecution of its burden to prove every element of the offense.

Plaintiff-Appellee's Arguments

The trial court properly refused the requested consent instructions because the statute defining first degree sexual assault inherently requires proof of lack of consent, making a separate consent instruction unnecessary.
The jury instructions as a whole made clear that the prosecution bore the burden to prove all elements, including submission by physical force or violence, beyond a reasonable doubt.
The court’s definition of "submission" did not negate or omit the element of physical force or violence, as that element was separately and explicitly instructed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v. Cruz, 903 P.2d 1198 (Colo.App. 1995)	Prior appellate decision reversing conviction and remanding the case.	Supreme Court vacated this decision and remanded for reconsideration in light of Dunton.
Dunton v. People, 898 P.2d 571 (Colo. 1995)	Clarifies that first degree sexual assault statute equates victim's nonconsent with submission caused by force or violence.	Guided the Court of Appeals to affirm the conviction, emphasizing that lack of consent is inherent in the statutory elements.
People v. Marquez, 692 P.2d 1089 (Colo. 1984)	A defendant is entitled to jury instructions embodying their theory of the case if supported by evidence.	Court applied this principle but found no error because the defendant’s theory was encompassed within other instructions.
People v. Young, 710 P.2d 1140 (Colo.App. 1985)	Trial court may decline to give a separate instruction if the theory is already covered by other instructions.	Supported the court’s refusal to give separate consent instructions.
People v. Smith, 638 P.2d 1 (Colo. 1981)	First degree sexual assault statute prohibits conduct that negates existence of victim's consent by its very nature.	Reinforced that lack of consent is inherent in the offense, negating the need for a separate consent defense instruction.

Court's Reasoning and Analysis

The court began by acknowledging the general rule that a defendant is entitled to jury instructions supporting their theory if supported by evidence. However, it found that the trial court's instructions sufficiently encompassed the defendant's theory regarding consent, making separate instructions unnecessary. The first degree sexual assault statute requires the prosecution to prove that the defendant caused submission through physical force or violence, which inherently negates consent. Consequently, the jury was effectively instructed on the lack of consent as an element of the crime.

Regarding the jury's inquiry about the meaning of "submission," the court determined that the trial court's dictionary-based definition did not omit or negate the statutory requirement of physical force or violence. This element was clearly and repeatedly instructed elsewhere, and the jury's question was limited to the term "submission" alone. Therefore, the supplemental instruction did not mislead the jury or relieve the prosecution of its burden.

Because the defendant’s theory of consent was fully before the jury and the instructions properly conveyed the prosecution’s burden to prove every element beyond a reasonable doubt, the court found no reversible error in the trial court’s refusal to give the tendered consent instructions or in its response to the jury’s question.

Holding and Implications

The judgment of conviction is affirmed.

The direct effect of this decision is to uphold the defendant’s conviction for first degree sexual assault. The court confirmed that under the applicable statute and case law, lack of consent is inherently an element of the offense, obviating the need for separate affirmative defense instructions on consent. The ruling clarifies the proper scope of jury instructions in sexual assault cases involving consent defenses but does not establish new precedent beyond reaffirming existing legal principles.

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The People of the State of Colorado, Plaintiff-Appellee, v. Darrell W. Cruz, Defendant-Appellant.

Opinion by JUDGE KAPELKE.

Defendant, Darrell W. Cruz, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree sexual assault. On such appeal, we previously reversed the judgment of conviction and remanded the cause. People v. Cruz, 903 P.2d 1198 (Colo.App. 1995). On petition for certiorari, the supreme court vacated our judgment and remanded the case for reconsideration in light of Dunton v. People, 898 P.2d 571 (Colo. 1995). Upon reconsideration, we affirm.

At trial, defendant contended that the victim had consented to having sexual relations with him. He tendered five proposed jury instructions regarding the affirmative defense of consent, but the trial court refused to instruct the jury on that defense.

Defendant first contends that the trial court committed reversible error by refusing his request to instruct the jury on the affirmative defense of consent. We disagree.

As a general rule, a defendant is entitled to an instruction embodying his or her theory of the case if there is evidence supporting it. People v. Marquez, 692 P.2d 1089 (Colo. 1984). However, if the defendant's theory of the case is already encompassed within other instructions being given by the trial court, the court may properly decline to give an additional, separate instruction tendered by the defendant. See People v. Young, 710 P.2d 1140 (Colo.App. 1985).

Here, the trial court instructed the jury that the burden of proof was on the prosecution to prove each element of the crime beyond a reasonable doubt. The court also instructed the jury with respect to the elements of the offense of first degree sexual assault, essentially in accordance with COLJI-Crim. No. 12:01 (1983), including that defendant must have "caused submission of [the victim] . . . through the actual application of physical force or violence . . . ." That instruction further required that each element be proven beyond a reasonable doubt.

Section 18-3-402(1)(a), C.R.S. (1986 Repl. Vol. 8B), the statute prescribing the offense of which defendant was convicted, provides as follows:

(1) Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits a sexual assault in the first degree if:

(a) The actor causes submission of the victim through the actual application of physical force or physical violence . . . .

As the supreme court recognized in Dunton v. People, supra, this statute equates the victim's nonconsent with proof that the defendant caused the victim's submission by force or violence. Thus, the defendant's conduct causes the victim to be unable to consent.

Here, in arguing that he was entitled to separate jury instructions on the affirmative defense of consent, defendant relies on § 18-1-505(1), C.R.S. (1986 Repl. Vol. 8B), the general provision on consent, which states that a victim's consent 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)

However, in our view, § 18-1-505(1) does not impose a requirement that the jury be instructed on an affirmative defense of consent in a case under the first degree sexual assault statute which itself requires, in effect, that the prosecution prove a lack of consent. The first degree sexual assault statute prohibits conduct which "by its very nature negates the existence of the victim's consent." People v. Smith, 638 P.2d 1, 4 (Colo. 1981).

Since the jury could only convict upon a determination that the prosecution had proven lack of consent beyond a reasonable doubt, we find no prejudice to the defendant resulting from the failure of the trial court to give the tendered instructions on consent. No evidence relating to the issue of consent was excluded, and the focus of the trial was on that issue. Defendant's theory of the case was squarely before the jury throughout the trial, and the jury could not have failed to consider the issue of consent or have misallocated the burden of proof.

We therefore conclude that the trial court did not err in refusing to give the consent defense instructions tendered by defendant.

II.

Defendant also contends that the trial court erred in giving a particular response to a question from the jury. Again, we disagree.

During their deliberations, the jurors made the following inquiry of the court: "Is there a legal interpretation of the word `submission' [as that term is used in the elemental instruction]?" The court made the following response, which was based on a dictionary definition of "submission": "You are instructed that the word `submission' means the act of submitting to the power of another."

Defendant contends that the trial court's response was improper because it "both omitted and negated the fact that submission in the context of first degree sexual assault must be effectuated through physical force or violence," and therefore relieved the prosecution of its burden to prove every element of the charged offense. We disagree.

The trial court's instruction to the jury regarding the elements of first degree sexual assault made it clear that the prosecution was required to prove each of those elements beyond a reasonable doubt. As discussed above, that instruction employed the language contained in § 18-3-402(1), C.R.S. (1986 Repl. Vol. 8B) and COLJI-Crim. No. 12:01 (1983).

In a separate instruction, the court again apprised the jury of the prosecution's burden to prove "to the satisfaction of the jury beyond a reasonable doubt the existence of all of the elements necessary to constitute each of the crimes charged."

Hence, the jury was explicitly instructed that one of the elements of first degree sexual assault was that the defendant caused the victim's submission "through the actual application of physical force or physical violence." In its inquiry, the jury merely requested a definition of the term "submission." Nothing in the jury's question suggests that the jurors were confused about the separate requirement that defendant use physical force or violence to cause the victim's submission. Accordingly, the court's failure to mention physical force or violence in the definitional instruction did not "negate" that element of the offense or lead the jury to disregard it.

Thus, we find no error in the supplemental instruction given by the trial court.

The judgment is affirmed.

CHIEF JUDGE STERNBERG and JUDGE DAVIDSON concur.