People v. Cruz , 19 Brief Times Rptr. 724 ( 1995 )

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. We reverse and remand.

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.

I.

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 agree.

A defendant is not entitled to an instruction on an affirmative defense that, based on the evidence presented at trial, is “an impossibility.” People v. Marquez, 692 P.2d 1089, 1098 (Colo.1984). However, “when even a scintilla of evidence, regardless of how unreasonable or how improbable,” tends to substantiate a defendant’s theory of defense, the trial court must instruct the jury on that theory of defense. People v. Jones, 677 P.2d 383, 385 (Colo.App.1983), rev’d on other grounds, 711 P.2d 1270 (Colo.1986); see also People v. Huckleberry, 768 P.2d 1235 (Colo.1989), cert. denied, 503 U.S. 990, 112 S.Ct. 1684, 118 L.Ed.2d 400 (1992); People v. Rivera, 710 P.2d 1127 (Colo.App.1985).

The statute governing the affirmative defense of consent provides that:

The consent of the victim to conduct charged to constitute an offense or to the result thereof 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.

Section 18-1-505(1), C.R.S. (1986 Repl.Vol. 8B) (emphasis added).

In People v. Braley, 879 P.2d 410 (Colo. App.1993), a division of this court determined the defendant was not entitled to a jury instruction on the affirmative defense of consent when the only claimed basis for the defense was the victim’s failure to cry out or physically resist the sexual assault. The court pointed out that the only relevant evidence on the issue indicated that the victim’s inaction was motivated by fear. See also § 18-3-401(1.5), C.R.S. (1994 Cum.Supp.) (providing that “[submission under the influence of fear” does not constitute consent). The court also noted that the jury was instructed as to defendant’s theory of the case that the sexual contact was consensual.

Here, there was more evidence of possible consent by the victim than the mere fact that she did not cry out or physically resist defendant’s advances. More specifically, there was testimony that, shortly after rejecting defendant’s initial sexual advances, the victim, wearing only a t-shirt, underpants, and a robe, voluntarily joined defendant on the couch where he was sitting and that she had been kissing defendant immediately before the alleged assault. Moreover, the victim’s description of the events was confused and inconsistent, particularly regarding whether she let defendant into her apartment and whether defendant “pushed” her or simply “laid her down” on the couch.

This evidence bearing on the possible existence of consent, while not strong, at least satisfies the “scintilla” standard required for an instruction on an affirmative defense. See People v. Montague, 181 Colo. 143, 508 P.2d 388 (1973). Accordingly, we conclude that the trial court had a duty to instruct the jury on the affirmative defense of consent. See People v. Montague, supra; People v. Jones, supra.

Moreover, we note that here, unlike in People v. Braley, supra, the trial court did not give, and was not asked to give, an instruction regarding defendant’s theory of the case.

The trial court indicated that it refused to give defendant’s tendered instructions regarding consent because of its determination that:

[T]he district attorney has to prove that the submission of the victim was by actual application of physical force or violence. By the mere nature of the fact being an element of the crime, there cannot be any consent. If there were consent, then it would vitiate that element of the crime.... Because of that, I feel it’s redundant, and I am not going to give an affirmative defense [instruction].

The court’s stated reason for not giving the requested instruction is, in fact, the basis for giving such an instruction here.

The statute expressly provides that consent may constitute an affirmative defense if “the consent negatives an element of the offense” and, as the trial court correctly pointed out, whether the victim consented to sexual contact with defendant is directly relevant to the element of submission. See People v. Schmidt, 885 P.2d 312 (Colo.App.1994); see also People v. Smith, 638 P.2d 1 (Colo. 1981). Specifically, if the victim consented to having sex with defendant, then 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 § 18-3-401(1.5) (defining “consent” for purposes of sexual assault offenses committed on or after July 1, 1992). Thus, because the victim’s alleged consent would have “negative[d] an element of the offense,” the trial court was required to instruct the jury on the affirmative defense of consent.

While the prosecution did not argue the point, we conclude that the failure to give the requested instructions was not harmless beyond a reasonable doubt, especially in view of the fact that the evidence of defendant’s guilt was not overwhelming.

II.

Because the issue might arise on remand, we briefly address defendant’s contention that the trial court’s response to a question from the jury was improper. We reject the contention.

During their deliberations, the jurors made the following inquiry of the court: “Is there a legal interpretation of the word ‘submission’ under [the fifth element] of Instruction No. 11?” 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. That instruction employed the language contained in § 18-3-402(1), C.R.S. (1986 Repl.Yol. 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 reversed and the cause is remanded for further proceedings consistent with this opinion.

STERNBERG, C.J., concurs. DAVIDSON, J., dissents.