People v. Williams ( 1995 )

Judge CRISWELL

specially concurring.

I agree with the majority that defendant’s convictions of one count of first degree sexual assault, two counts of second degree sexual assault, and one count of sexual assault on a child must be affirmed. I also agree with the conclusions expressed in Parts I B, II, and III of the majority’s opinion. I do not agree, however, that the instruction on consent given by the trial court “correctly apprised the jury regarding the applicability of [this] defense....” Hence, I write separately to demonstrate why this instruction is improper and why it should not be given in the form in which it appears in COLJI-Crim. No. 7:04 (1983).

This consent instruction is based upon § 18-1-505(1), C.R.S. (1986 Repl.Vol. 8B), which is contained within Article 1 (“Provisions Applicable to Offenses Generally”) Part 5 (“Principles of Criminal Culpability”) of the Criminal Code. This part of the code describes the various culpable mental states, or mens rea, that must exist in order for an offense to have been committed. In this context, § 18-1-504, C.R.S. (1986 Repl.Vol. 8B), describes the effect upon criminal culpability that a mistaken belief of fact may have, while § 18-1-505, C.R.S. (1986 Repl.Vol. 8B) describes the circumstances under which the consent of the victim will result in no culpability.

Section 18-1-505(1) provides that the victim’s consent will be a defense to any criminal charge only if such 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.”

Sections 18-1-505(2) and 18-1-505(3), C.R.S. (1986 Repl.Vol. 8B) also incorporate the restrictions upon this defense that were generally imposed by the common law. See 1 C. Torcía, Wharton’s Criminal Law § 46 (15th ed. 1993).

Finally, the statute declares that any defense authorized by its terms shall be an “affirmative defense.” Section 18-1-505(4), C.R.S. (1986 Repl.Vol. 8B).

The instruction given here informed the jury that the consent of the victim constituted a defense to the charges of first and second degree sexual assault, “if the consent negates an element of the offense.” (emphasis supplied)

I agree with the majority that, as a general rule, a form of an instruction that incorporates the terms of the governing statute is a proper one. That rule assumes, however, that the subject matter of the instruction is one that is proper for the jurors to consider. And, the question whether the consent of the victim can constitute an affirmative defense to the offense charged, because it would negate an element of that offense, is not a question of fact for jury resolution. It is, rather, a threshold question of law for the court to determine.

Whenever a defendant seeks to assert an affirmative defense to a specific charge, three questions may present themselves.

First, because the General Assembly has, subject to constitutional considerations, the right to create affirmative defenses to crimes and to limit their applicability to particular categories of crimes, People v. Ledman, 622 P.2d 534 (Colo.1981), the first issue to be resolved is whether the defense sought to be asserted has been made available by legislative enactment. See People v. Yaklich, 833 P.2d 758 (Colo.App.1991) (as a matter of law, affirmative defense of self-defense not available to charge of murder based upon contract to have victim killed). And, such issue is one for the court to resolve. Lybarger v. People, 807 P.2d 570, 579 (Colo.1991) (“[T]he question of the availability of the defense is for the court and not the jury_” (emphasis supplied))

Second, if the court determines that the defense is legally available for assertion as a defense to the crime charged, it must next be determined whether there has been sufficient evidence presented to raise a factual issue as to the existence of the defense. See § 18-1-407, C.R.S. (1986 Repl.Vol. 8B) (if state’s evidence does not raise the issue, defendant must present some credible evidence upon the issue). And, this question is also one of law for resolution by the court. People v. Fincham, 799 P.2d 419, 424 (Colo.App.1990) (“[T]he threshold determination of whether an affirmative defense has been raised by the evidence must be made by the court and not the jury.”) See also People v. Dover, 790 P.2d 834 (Colo.1990) (evidence insufficient to invoke the emergency justification defense).

Finally, if the court determines that the affirmative defense is available to prevent conviction of the offense charged and that there is credible evidence sufficient to raise the issue of the existence of that defense, it then becomes a matter for the jury to determine whether the People have proven that the defense has not been established. Lybarger v. People, supra.

Here, the pertinent statute lays down the legal circumstances under which the affirmative defense of consent will be available against a particular charge, i.e., if the victim’s consent would negate one of the elements of the offense or if such consent would preclude the harm or evil the law seeks to preclude. It creates standards by which the court is to determine whether the victim’s consent is relevant to the defendant’s culpability; it does not describe factual circumstances the existence of which is to be determined by lay jurors.

I conclude, therefore, that § 18-1-505(1) is to be used solely by the court to determine whether the affirmative defense of consent is available to the defendant in light of the charge laid against him or her. And if, for example, the court determines that the victim’s consent to the conduct charged, if established, would exonerate the defendant, because such consent would negate one of the elements of the offense charged, and that there is sufficient evidence to raise this issue, then the jurors should be instructed to acquit the defendant unless they find, beyond a reasonable doubt, that the victim did not consent to the conduct. In addition, in appropriate cases, it would also be proper to instruct the jurors upon the concept of the term “consent.” See COLJI-Crim. No. 7:68 (1983) (Special Rule 7(11)) and § 18-3-401(1.5), C.R.S. (1994 Cum.Supp.). They should not, however, be allowed to pass upon the legal question (previously determined by the court) whether such consent negates an element of the offense, as the instruction here required them to do.

I conclude, therefore, that the giving of the instruction on consent in the form in which it was given here was error.

However, because of the nature of the other instructions given upon the subject of this affirmative defense, I agree with the majority that this erroneous instruction did not constitute plain error. See People v. Fincham, supra. Thus, reversal of the judgment of conviction is not required.