v. Abdulla , 2020 COA 109 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
July 23, 2020
2020COA109
No. 17CA0343, People v. Abdulla — Crimes — Unlawful Sexual
Contact
As a matter of first impression, a division of the court of
appeals considers whether striking a person’s intimate parts with
an implement or object, rather than with a part of the actor’s own
body, can constitute “touching” under Colorado’s unlawful sexual
contact statute, § 18-3-401(4)(a), C.R.S. 2019. The division
concludes that it can. Because record evidence would support the
conclusion that the defendant whipped the victim with a belt on her
buttocks for the purpose of sexual arousal, gratification, or abuse,
the division concludes that the trial court did not err by instructing
the jury on unlawful sexual contact as a lesser included offense of
sexual assault.
The division also rejects the defendant’s contention that the
jury instructions failed to ensure that the jury’s verdict was
unanimous as to the act underlying the unlawful sexual contact
conviction. The division further concludes that any error by the
trial court in admitting various hearsay statements was harmless.
Accordingly, the division affirms the judgment of conviction.
COLORADO COURT OF APPEALS 2020COA109
Court of Appeals No. 17CA0343
City and County of Denver District Court No. 16CR606
Honorable Sheila Ann Rappaport, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Sharif Mubarak Abdulla,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE BROWN
J. Jones and Harris, JJ., concur
Announced July 23, 2020
Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Alan Kratz, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A jury found defendant, Sharif Mubarak Abdulla, guilty of
unlawful sexual contact and third degree assault. On appeal, he
contends that his conviction for unlawful sexual contact must be
reversed for three reasons: (1) the trial court erred by granting the
prosecution’s request to instruct the jury on the lesser included
offense of unlawful sexual contact; (2) the jury instructions failed to
ensure that the jury’s verdict was unanimous as to the act
underlying the unlawful sexual contact conviction; and (3) the trial
court erred by admitting various hearsay statements.
¶2 Resolving the first issue requires us to determine, as a matter
of first impression, whether striking a person’s intimate parts with
an implement or object, rather than with a part of the actor’s own
body, can constitute “touching” under Colorado’s unlawful sexual
contact statute, § 18-3-401(4)(a), C.R.S. 2019. We conclude that it
can. Because record evidence would support the conclusion that
Abdulla whipped the victim with a belt on her buttocks for the
purpose of sexual arousal, gratification, or abuse, we conclude that
the trial court did not err by instructing the jury on unlawful sexual
contact as a lesser included offense of sexual assault.
1
¶3 We also reject the defendant’s contention that the jury
instructions failed to ensure that the jury’s verdict was unanimous
as to the act underlying the unlawful sexual contact conviction.
And we conclude that, if the trial court erred by admitting various
hearsay statements, such error was harmless. Accordingly, we
affirm the judgment of conviction.
I. Background
¶4 On Sunday, January 24, 2016, the victim, L.C., went to a
police station to report that her husband, Abdulla, had beaten and
raped her the previous night. That same day, L.C. consented to a
sexual assault examination at a hospital.
¶5 Five days later, the People charged Abdulla with one count of
sexual assault, a class 3 felony, and one count of third degree
assault, a class 1 misdemeanor. Abdulla pleaded not guilty.
¶6 At trial, L.C. testified that she and Abdulla had gotten into an
argument that had turned physical. L.C. said it started with
Abdulla pushing her multiple times on her arm while telling her to
call the police if she wanted him out. Abdulla then forced her to
take off her clothes so he could beat her with a belt, forced her to
get on her knees so he could put his “dick in [her] mouth,” and
2
forced her to choose between “oral sex or regular sex.” L.C. testified
that she didn’t want to have either, but, because she was scared,
said, “regular sex.” After having sex with L.C., Abdulla went to
sleep.
¶7 According to L.C., at some point Abdulla woke up and wanted
to have sex again. L.C. said that, because she was still scared, she
laid there while he had sex with her. L.C. testified that she never
said “no” to any of the sexual acts and instead pretended to go
along with it.
¶8 As his theory of defense, Abdulla acknowledged that the “fight
became physical” but argued that all the subsequent sexual acts
were consensual.
¶9 The jury acquitted Abdulla of sexual assault but convicted him
of unlawful sexual contact and third degree assault. The trial court
sentenced Abdulla to an indeterminate term of six years to life in
the custody of the Department of Corrections on the unlawful
sexual contact count and to a concurrent two-year jail term on the
misdemeanor assault count.
3
II. Analysis
A. The Lesser Included Offense Instruction
¶ 10 At the prosecutor’s request, and over Abdulla’s counsel’s
objection, the trial court instructed the jury on unlawful sexual
contact as a lesser included offense of sexual assault. Abdulla asks
us to reverse his conviction for unlawful sexual contact because
there was no rational basis for that charge to have been submitted
to the jury. We disagree.
1. Standard of Review
¶ 11 We review de novo whether the trial court applied the correct
legal standard when it evaluated the prosecutor’s request for the
lesser included offense instruction. People v. Alaniz, 2016 COA
101, ¶ 40. But we review for an abuse of discretion the court’s
determination that there was sufficient evidence to support the
instruction. People v. Jimenez, 217 P.3d 841, 870 (Colo. App.
2008); see also People v. Leyba, 2019 COA 144, ¶ 44 (cert. granted
in part May 26, 2020).
2. Applicable Law
¶ 12 A defendant may be convicted of a lesser offense that is
“necessarily included in the offense charged.” Crim. P. 31(c); see
4
also § 18-1-408(5), C.R.S. 2019; People v. Cooke, 186 Colo. 44, 46,
525 P.2d 426, 428 (1974). A lesser offense is “included in an
offense charged” if it “is established by proof of the same or less
than all the facts required to establish the commission of the
offense charged” or if it “differs from the offense charged only in the
respect that a less serious injury or risk of injury . . . or a lesser
kind of culpability suffices to establish its commission.”
§ 18-1-408(5)(a), (c).
¶ 13 Section 18-1-408(6) “obligate[s]” a trial court to “charge the
jury with respect to an included offense” when the party requesting
the instruction demonstrates “a rational basis for a verdict
acquitting the defendant of the offense charged and convicting him
of the included offense.” See also People v. Arispe, 191 Colo. 555,
557, 555 P.2d 525, 527 (1976); People v. Skinner, 825 P.2d 1045,
1046 (Colo. App. 1991). Such a rational basis exists when “there is
some evidence, however slight, tending to establish the lesser
included offense.” People v. Shaw, 646 P.2d 375, 379 (Colo. 1982);
accord People v. Annan, 665 P.2d 629, 630 (Colo. App. 1983).
5
3. The Trial Court Properly Instructed the Jury on the Lesser
Included Offense of Unlawful Sexual Contact
a. Notice and the Cooke Test
¶ 14 Because the prosecutor requested the lesser included
instruction, and the trial court granted the request over Abdulla’s
counsel’s objection, the People argue that the test employed in
Cooke, 186 Colo. at 48, 525 P.2d at 428-29, governs. That test,
which is “[m]indful of the primacy of notice within the constitutional
guarantee of due process of law and of the duty of the courts to
safeguard this right,” is satisfied if the lesser included offense is “(1)
easily ascertainable from the charging instrument, and (2) not so
remote in degree from the offense charged that the prosecution’s
request appears to be an attempt to salvage a conviction from a
case which has proven to be weak.” Id.
¶ 15 On appeal, Abdulla does not argue that the Cooke test was not
satisfied or otherwise contend that he was not given enough notice
“to give him a fair and adequate opportunity to prepare his defense,
and to ensure that he is not taken by surprise because of evidence
offered at the time of trial.” Id. at 46, 525 P.2d at 428. Instead,
Abdulla argues that there is an “additional requirement that there
6
must also be a rational basis for the jury to acquit of the greater
offense and convict of the lesser.” On this point, we agree.
¶ 16 Satisfaction of the Cooke test does not end the inquiry when
the defendant’s objection to the requested lesser included offense
instruction is not based on lack of notice but rather on insufficient
evidence. In other words, even if the requested instruction satisfies
the Cooke test, the trial court must still determine that there is a
rational basis for a verdict acquitting the defendant of the offense
charged and convicting him of the lesser included offense. See §
18-1-408(6); Arispe, 191 Colo. at 557, 555 P.2d at 527; Skinner,
825 P.2d at 1046.
¶ 17 But we also conclude that the trial court applied the correct
legal standard. It is undisputed that unlawful sexual contact is a
lesser included offense of sexual assault. See Page v. People, 2017
CO 88, ¶ 19. And when the court overruled Abdulla’s counsel’s
objection to the instruction, it said, “[T]he prosecution can request a
lesser-included offense if it’s not to salvage a verdict, but if the
evidence supports it.” (Emphasis added.) So we turn to Abdulla’s
contention that there was no rational basis for the jury to acquit
him of sexual assault but to convict him of unlawful sexual contact.
7
b. Rational Basis for the Lesser Included Offense Instruction
¶ 18 As relevant in this case, a person commits sexual assault by
means of penetration when he “knowingly inflicts . . . sexual
penetration on a victim” and “causes submission of the victim by
means of sufficient consequence reasonably calculated to cause
submission against the victim’s will.” § 18-3-402(1)(a), C.R.S. 2019.
Sexual assault is a class 3 felony if the person “causes submission
of the victim through the actual application of physical force or
physical violence.” § 18-3-402(4)(a). Sexual penetration means
“sexual intercourse, cunnilingus, fellatio, anilingus, or anal
intercourse.” § 18-3-401(6).
¶ 19 A person commits unlawful sexual contact if he knowingly
subjects the other person to any sexual contact, knowing that the
other person does not consent. § 18-3-404(1)(a), C.R.S. 2019. The
offense is a class 4 felony if, as relevant here, the actor compels the
victim to submit “through the actual application of physical force or
physical violence.” § 18-3-402(4)(a); see § 18-3-404(2)(b)
(“[U]nlawful sexual contact is a class 4 felony if the actor compels
the victim to submit by use of such force . . . as specified in section
18-3-402(4)(a).”). Sexual contact includes “[t]he knowing touching
8
of the victim’s intimate parts by the actor . . . if that sexual contact
is for the purposes of sexual arousal, gratification, or abuse.” § 18-
3-401(4)(a). Intimate parts are “the external genitalia or the
perineum or the anus or the buttocks or the pubes or the breast of
any person.” § 18-3-401(2).
¶ 20 First, Abdulla contends that the only evidence of sexual
contact not involving penetration — striking L.C.’s buttocks with a
belt — is not “sexual contact” as a matter of law. He argues that
using a belt to strike a victim’s buttocks is not “touching” the
victim’s buttocks because the belt does not allow the actor to
“perceive or experience through the tactile senses.” See People v.
Pifer, 2014 COA 93, ¶ 11. We do not agree.
¶ 21 Abdulla’s argument requires us to determine whether his
conduct falls within the statutory definition of “sexual contact.”
Statutory interpretation is a question of law we review de novo.
People v. Vinson, 42 P.3d 86, 87 (Colo. App. 2002). In interpreting a
statute, we aim to ascertain and give effect to the intent of the
General Assembly based on the plain and ordinary meaning of the
statutory language. Pifer, ¶ 10. “We presume that the General
Assembly intends a just and reasonable result when it enacts a
9
statute, and we will not follow a statutory construction that defeats
the legislative intent or leads to an unreasonable or absurd result.”
Vinson, 42 P.3d at 87.
¶ 22 The legislature has not defined the word “touching.” See § 18-
3-401. When a criminal statute does not define a term, we can look
to the dictionary definition to discern its meaning. See People v.
Janousek, 871 P.2d 1189, 1196 (Colo. 1994). Indeed, prior
divisions of this court have relied on dictionary definitions of the
term “touch” to determine whether a particular act constituted
“touching” within the meaning of section 18-3-401(4). See Pifer,
¶ 11; Vinson, 42 P.3d at 87.
¶ 23 Abdulla relies on Pifer, where a division of this court was
tasked with determining whether the defendant subjected the victim
to unlawful sexual contact by touching the victim’s intimate parts
over her clothes and a sheet. Pifer, ¶ 9. The defendant argued that
because the sheet was between his hand and the victim’s clothing,
he did not touch the clothing covering the victim’s intimate parts.
Id.
¶ 24 The division considered a dictionary definition of “touch” as “to
perceive or experience through the tactile senses,” id. at ¶ 11
10
(quoting Webster’s Third New International Dictionary 2415 (2002)),
and concluded that the defendant’s conduct fell within the plain
and ordinary meaning of “touching,” id. The division flatly rejected
the defendant’s interpretation because it “would mean that sexual
contact could occur only by skin to skin contact, or when the
actor’s bare skin touches clothing that the victim is wearing.” Id. at
¶ 12. It continued:
For instance, when, for the purpose of sexual
arousal, abuse, or gratification, the actor
wears a condom during a sexual act, touches
the victim’s bare genitals with a gloved hand,
or touches the victim’s bare genitals with a
bare hand over a blanket, sexual contact
would not occur under Pifer’s construction. It
strikes us as unlikely that the General
Assembly intended to draw such distinctions
in enacting the sexual assault statute.
Id.
¶ 25 Abdulla relies on Pifer to argue that the actor must perceive or
experience the victim’s intimate parts through the tactile senses to
constitute “touching.” True, the Pifer division relied on a dictionary
definition of “touch” that included an element of sensory perception,
but it did so to address the specific facts of that case and to rebuff
defendant’s contention that adding a layer of material between his
11
hand and the victim’s clothing relieved him of criminal liability. Id.
at ¶¶ 10-12. We read Pifer more broadly — as rejecting a definition
of “touch” that requires direct skin-to-skin or skin-to-clothing
contact. Id. at ¶ 12.
¶ 26 In an earlier case, a division of this court considered whether a
defendant ejaculating semen onto the victim’s buttocks constituted
“touching.” Vinson, 42 P.3d at 87. The defendant argued that the
word “touch” required some part of his body to come into contact
with the victim’s buttocks. Id. The People argued that “touching”
need not be “direct person-to-person contact.” Id.
¶ 27 The division looked to a dictionary definition of the word
“touch” as “the act or fact of touching, feeling, striking lightly, or
coming in contact.” Id. (citing Webster’s Third New International
Dictionary 2416 (1986)). Based on that definition, it rejected the
defendant’s narrow construction as contrary to the legislative
intent. Id. It explained,
[i]f we were to adopt defendant’s interpretation,
we would have to conclude that using an
object to touch another person’s intimate parts
for the purpose of sexual gratification or
arousal does not constitute “sexual contact”
under § 18-3-401(4) and, hence, cannot
12
constitute a sexual assault. We see no basis
for adopting such an interpretation.
Id.
¶ 28 Thus, the division concluded that ejaculating semen onto
another person’s intimate parts (or onto the clothing covering
another person’s intimate parts) may constitute “touching” for
purposes of establishing “sexual contact.” Id. at 88.1
1 In People v. Ramirez, 2018 COA 129, a division of this court
considered whether a defendant ejaculating into the hands of the
victim constituted unlawful sexual contact. Because it determined
that the victim’s hands were not an intimate part (touched by
defendant’s semen) and that the defendant’s semen was not an
intimate part (touched by the victim’s hands), it found insufficient
evidence of sexual contact. Id. at ¶¶ 17-21, 36-41; see also § 18-3-
401(4)(b)-(c), C.R.S. 2019 (reflecting the legislative response to
Ramirez). In so doing, however, the Ramirez division expressly
“agree[d] with Vinson; ejaculating onto the intimate parts of the
victim constitutes sexual contact within the meaning of section
18-3-401(4)[(a)].” Id. at ¶ 16. In People v. Cook, 197 P.3d 269, 278
(Colo. App. 2008), a division of this court determined, albeit in the
context of whether a child hearsay statement was admissible as a
statement “describing any act of sexual contact” under section
13-25-129, C.R.S. 2008, that a defendant’s act of intimidating a
victim into touching herself for his own sexual gratification could
constitute “constructive touching” for purposes of “sexual contact,”
even in the absence of any physical contact between the defendant
and the victim. Similarly, in People v. Moore, 877 P.2d 840, 846-48
(Colo. 1994), the defendant was convicted of sexual assault on a
child, although under a complicity theory, even though he did not
physically touch the child, but instead forced his wife to complete
the act.
13
¶ 29 Like divisions before us, we look to the dictionary definitions of
“touch” to guide our analysis. Although one definition of “touch” is
“to bring a bodily part into contact with especially so as to perceive
through the tactile sense,” which is similar to the definition used by
the division in Pifer, another common definition is “to strike or push
lightly especially with the hand or foot or an implement,” which is
more like the definition used by the division in Vinson. Merriam-
Webster Dictionary, https://perma.cc/TY5P-DJ5N.
¶ 30 Notably, the latter definition contemplates use of “an
implement” to accomplish the “touch.” Id. Thus, we conclude that
a definition of “touching” that includes use of an implement or
object is consistent with the General Assembly’s intent as reflected
in the plain and ordinary meaning of the statutory language. Put
another way, we believe Abdulla’s narrow construction of the term
“touching” is contrary to the legislative intent. See Vinson, 42 P.3d
at 87. That is because, if we were to adopt Abdulla’s interpretation,
we would have to conclude that using an object or implement —
such as a belt, whip, or sex toy — to touch another person’s
intimate parts for the purpose of sexual gratification, arousal, or
abuse cannot constitute a sexual assault. See id. And, like the
14
division in Vinson, “[w]e see no basis for adopting such an
interpretation.” Id.; see also Matter of Winner S., 676 N.Y.2d 783,
785 (N.Y. Fam. Ct. 1998) (concluding that the defendant’s use of a
pencil to touch the victim’s vaginal area over the victim’s clothing
constitutes touching for the purposes of sexual contact as referred
to in the applicable statute); State v. Crosky, No. 06AP-655, 2008
WL 169346, at *13 (Ohio Ct. App. Jan. 17, 2008) (unpublished
opinion) (concluding that the defendant’s use of a vibrator to touch
the victim’s vagina over the victim’s clothing constitutes touching
for the purposes of sexual contact (citing State v. Jenkins, No. 2000-
CA-59, 2001 WL 848582, at *5 (Ohio Ct. App. July 27, 2001)
(unpublished opinion)).
¶ 31 As a result, if Abdulla whipped L.C. on her buttocks with a
belt for the purpose of sexual arousal, gratification, or abuse, the
act could constitute “touching of the victim’s intimate parts”
sufficient to establish sexual contact. The record evidence supports
this conclusion.
¶ 32 L.C. testified that she asked Abdulla to stop beating her with
the belt. When Abdulla stopped hitting her, he sat down on the
bed, told L.C. to get down on her knees, and put his erect penis into
15
her mouth. From this evidence, the jury reasonably could have
found that Abdulla got aroused from whipping L.C. with the belt,
such that his “touching” of L.C.’s intimate parts was “for the
purpose[] of sexual arousal.” See § 18-3-401(4)(a). The jury also
could have found that Abdulla knew L.C. did not consent to the
beating. Thus, it would have been reasonable for the jury to
conclude that Abdulla committed unlawful sexual contact.
¶ 33 Still, even assuming Abdulla is correct that spanking with a
belt does not constitute sexual contact as a matter of law, hitting
L.C. on her buttocks with the belt was not the only act evidenced by
the record that would qualify as sexual contact but not sexual
assault. For example, L.C. testified that Abdulla kissed her on
various parts of her body, including her breasts and her buttocks.
On cross-examination, defense counsel asked L.C., “At some point,
he did ask to kiss your wounds? To kiss you where he hit you?” To
which L.C. responded, “Yes.” And when defense counsel asked
L.C., “And he’s also kissing parts of your butt as well?” L.C. again
answered, “Yes.” Accordingly, the jury could have properly found
that when Abdulla kissed L.C.’s breasts or buttocks, he committed
unlawful sexual contact.
16
¶ 34 Second, Abdulla essentially argues that L.C.’s consent was an
all-or-nothing proposition: L.C. either consented to all the acts or
did not consent to any of them. If the former, Abdulla should be
acquitted and, if the latter, he would have been found guilty of
sexual assault (because the sexual acts included penetration), not
unlawful sexual contact. Basically, Abdulla argues that the jury
either had to believe or reject all of L.C.’s testimony that she did not
consent to any of the sexual acts; it could not have found that some
of the sexual acts were consensual while others were not.
¶ 35 But neither we nor the trial court are constrained by Abdulla’s
theory of the case. See Brown v. People, 239 P.3d 764, 767-69
(Colo. 2010) (explaining a party’s theory of the case is not
determinative of whether a lesser included instruction should be
given, but rather the inquiry focuses on whether there “is a rational
basis for the instruction in the evidentiary record”). And we
conclude there was evidence in the record that could have led the
jury to conclude that L.C. consented to certain acts and did not
consent to others.
¶ 36 L.C. said the spanking lasted on and off for about fifteen
minutes. When she asked him to stop hitting her with the belt, he
17
told her to kneel down and he put his erect penis in her mouth.
L.C. testified that she never said no to this act. Throughout the
series of events, L.C. never told him not to touch her, never tried to
push him away, and never tried to squeeze her legs to not give him
access. Instead, L.C. admitted that she “kind of pretended to go
along with him.” Based on this evidence, it would have been
reasonable for the jury to conclude that L.C. did not consent to
Abdulla whipping her with a belt and then kissing the parts of her
body he had just beaten, while at the same time concluding either
that L.C. consented to have sex with Abdulla thereafter (crediting
Abdulla’s affirmative defense of consent) or that L.C. feigned
consent well enough that Abdulla did not know the sex was against
her will.
¶ 37 As the trial court said, “[The jury has] to agree on one act,
whether it be penile, oral, vaginal, whatever. And they could find
one was consensual or one wasn’t, or any combination thereof.”
Further, as Abdulla concedes in his opening brief, “[T]he jury could
have disagreed as to whether L.C. was credible with respect to
different alleged acts of unlawful sexual contact, including whether
certain acts were consensual while other acts were not.”
18
¶ 38 Thus, we conclude that the trial court applied the correct legal
standard and did not abuse its discretion by instructing the jury on
the lesser included offense of unlawful sexual contact.
B. The Unanimity Instruction
¶ 39 Next, Abdulla argues that even if there was a rational basis for
the trial court to have instructed the jury on the lesser included
offense, reversal is nonetheless required because of the trial court’s
failure to ensure juror unanimity as to the underlying act of
unlawful sexual contact.
1. Additional Background
¶ 40 The jury received the following relevant instructions:
 Instruction Number 2 told the jury, “Mr. Abdulla is
charged with committing the crimes of Sexual Assault
and Assault in the Third Degree.”
 Instruction Number 3 explained, “[e]ach count charges a
separate and distinct offense and the evidence and the
law applicable to each count should be considered
separately, uninfluenced by your decision as to any other
count.”
19
 Instruction Number 4 said, “[i]n order to convict Sharif
Abdulla of Sexual Assault, you must either unanimously
agree that Mr. Abdulla committed the same act or acts,
or that he committed all of the acts alleged.” This
unanimity instruction was fashioned after the Colorado
Model Jury Instructions.
 Instruction Number 11 provided the elements of sexual
assault.
 Instruction Number 13 explained, “[t]he offense of Sexual
Assault, as charged in the information in this case
necessarily includes the lesser offense of Unlawful Sexual
Contact.” The instruction then gave the elements of
unlawful sexual contact.
 Instruction Number 18 was the defense theory of the
case instruction. It said, in relevant part, “Mr. Abdulla is
charged with two distinct crimes: Sexual Assault and
Assault in the Third Degree.”
¶ 41 During the jury instruction conference, defense counsel did
not request any changes to the unanimity instruction based on the
20
trial court’s decision to instruct the jury on the lesser included
offense of unlawful sexual contact.
¶ 42 Both the prosecutor and defense counsel discussed the
unanimity instruction in their closing arguments. In doing so,
neither told the jury that the unanimity requirement applied only to
the sexual assault charge. Instead, both told the jurors that they
had to be unanimous when determining what actually happened, as
a factual matter, in this case.
¶ 43 For example, when defense counsel explained unanimity to the
jury, she did so by expressly referencing Instruction Number 4, but
by applying it to the assault charge:
For example, let’s say half of you believe that
Mr. Abdulla hit his wife but that he didn’t use
any belt. The other half of you say, you know
what, I think he did use a belt. Do you know
what the verdict is? Not guilty, because that is
not a unanimous verdict. And unanimity is
required by law. You can look at Instruction
Number 4. That specifically tells you that is
the law.
¶ 44 And the prosecutor’s explanation of unanimity to the jury was
in the context of sexual assault, with a focus on the jury’s role as
the fact finder:
21
Defense counsel also talked to you about this
idea that you all have to be unanimous. Let’s
talk about that. When you go back there,
you’re going to probably start trying to sort out
the facts, because you’re the trier of facts;
you’re the ones who determine what happened.
And you may say, okay, everyone seems to be
in agreement that there was this - - that he
put his penis in her mouth, oral penetration,
fellatio; and that was done in between
whoopings. That’s one. That’s guilty.
If you agree on two, because that’s what the
facts show, that’s guilty, you agree on three;
you agree on every single time that he sexually
penetrated her during and after whooping her,
that’s guilty. You need to agree, but you only
need to agree on one.
¶ 45 During jury deliberations, the jury asked one question: “[w]hat
if we are unanimous on one count but can’t come to agreement on
another?” The question came at about 4:30 p.m. on a Friday
afternoon. Without answering the question, the trial court let the
jury go home for the weekend. Then, after a few hours of
deliberations on Monday morning, the jury returned its verdict.
2. Standard of Review
¶ 46 “Trial courts have a duty to correctly instruct juries on all
matters of law.” Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011).
22
We review jury instructions de novo to determine “whether the
instructions as a whole” correctly informed the jury of the law. Id.
¶ 47 As this issue was not preserved, the parties agree we review
for plain error. See Hagos v. People, 2012 CO 63, ¶ 14. A plain
error is an error that is both obvious and substantial. Id. Under
this standard, we will reverse only if the error “so undermined the
fundamental fairness of the trial itself so as to cast serious doubt
on the reliability of the judgment of conviction.” Id. (quoting People
v. Miller, 113 P.3d 743, 750 (Colo. 2005)). With respect to jury
instructions, the defendant must “demonstrate not only that the
instruction affected a substantial right, but also that the record
reveals a reasonable possibility that the error contributed to his
conviction.” People v. Garcia, 28 P.3d 340, 344 (Colo. 2001)
(quoting Bogdanov v. People, 941 P.2d 247, 255-56 (Colo. 1997)).
3. Applicable Law
¶ 48 Section 16-10-108, C.R.S. 2019, requires that “[t]he verdict of
the jury shall be unanimous.” The trial court must properly
instruct the jury to ensure that a conviction on any count is the
result of a unanimous verdict. See People v. Harris, 2015 COA 53,
¶ 39.
23
¶ 49 When there is evidence of distinct multiple acts, the
prosecution may be compelled to elect the act on which it relies for
conviction or, alternatively, the defendant may be entitled to a
special unanimity instruction. Melina v. People, 161 P.3d 635, 639
(Colo. 2007); Quintano v. People, 105 P.3d 585, 593 (Colo. 2005).
[W]hen the evidence does not present a
reasonable likelihood that jurors may disagree
on which acts the defendant committed, the
prosecution need not designate a particular
instance. If the prosecutor decides not to
designate a particular instance, the jurors
should be instructed that in order to convict
the defendant they must either unanimously
agree that the defendant committed the same
act or acts or that the defendant committed all
of the acts described by the victim and
included within the time period charged.
Thomas v. People, 803 P.2d 144, 153-54 (Colo. 1990).
4. We Find No Plain Error in the Jury Instructions
¶ 50 As an initial matter, both at trial and on appeal, the parties
disagree regarding whether a unanimity instruction was necessary.
The People argue that, because the evidence established one
continuing course of conduct, there was no need for a unanimity
instruction. See People v. Davis, 2017 COA 40M, ¶ 14.
24
¶ 51 If the People are correct that this was only one criminal
episode, then it follows that the trial court did not err, much less
plainly err, by failing to give an additional unanimity instruction on
the unlawful sexual contact charge. Id. But, at defense counsel’s
urging, the trial court rejected the People’s argument and
determined that a unanimity instruction was necessary.
¶ 52 We need not determine whether we could affirm on the
alternative basis advocated by the People, however, because we
discern no plain error in the instructions given, for two reasons.
¶ 53 First, the trial court gave a unanimity instruction that was
agreed upon by the prosecution and the defense, albeit one that
specifically referenced sexual assault; this is not a case in which the
trial court failed to give a unanimity instruction at all.
¶ 54 Second, the jury was instructed that unlawful sexual contact
was a lesser included offense of sexual assault, suggesting that any
instruction regarding sexual assault applied equally to unlawful
sexual contact. And the jury was instructed that it had to be
unanimous regarding the specific act or acts, or as to all the acts,
underlying the sexual assault. Accordingly, although the unanimity
instruction specifically referenced the offense of sexual assault and
25
did not reference the offense of unlawful sexual contact, because
the jury was nonetheless instructed that unlawful sexual contact
was a lesser included offense of sexual assault, the unanimity
instruction logically encompassed the lesser included offense.
¶ 55 It certainly would have been better for the unanimity
instruction to have stated explicitly that it applied to both the
greater and lesser offense. Still, under these circumstances, the
trial court’s failure to give a separate, additional unanimity
instruction was not erroneous, let alone obviously so.
¶ 56 However, even if the court erred, and that error was obvious,
that error does not cast serious doubt on the reliability of the
judgment of conviction. See Miller, 113 P.3d at 750. The record
does not establish a reasonable possibility that the instructional
error contributed to Abdulla’s conviction, Garcia, 28 P.3d at 344,
because there is no reasonable possibility that the jury
misunderstood its obligation to unanimously agree on which act or
acts constituted unlawful sexual contact.
¶ 57 As noted above, the sexual assault unanimity instruction
logically applied to the lesser included unlawful sexual contact
charge. No one argued that the concept of unanimity was limited to
26
the sexual assault charge. On the contrary, in closing argument,
Abdulla’s counsel explained the concept of unanimity to the jury by
means of an example involving a physical assault. Accordingly,
even though the unanimity instruction did not specifically refer to
either unlawful sexual contact or third degree assault, the jury was
told it needed to be unanimous as to the specific act or acts that
Abdulla committed, even with respect to charges other than sexual
assault.
¶ 58 Moreover, we employ the presumption that the jury
understands and applies the given instructions unless a contrary
showing is made, and there was no indication that the jury did not
understand the instructions as a whole or the unanimity
instruction in particular. See Quintano, 105 P.3d at 594-95
(affirming the defendant’s convictions notwithstanding the jury’s
expressed confusion regarding unanimity because “[a]s a whole, the
record demonstrate[d] that the jury understood their tasks and
arrived at some means of demarcating the various incidents of
sexual contact”). Unlike in Quintano, the jury did not ask questions
demonstrating confusion about the unanimity instruction. Id. at
589. In fact, the only question the jury asked while it was
27
deliberating indicated it was not unanimous on one of the counts,
thus demonstrating its general understanding of the need for a
unanimous verdict on every count.
¶ 59 Thus, we discern no plain error in the jury instructions.
C. Hearsay
¶ 60 Abdulla argues that the trial court erroneously admitted
multiple hearsay statements and that the statements substantially
influenced the verdict and affected the fairness of the trial
proceedings. Specifically, he challenges the trial court’s admission
of statements L.C. made to (1) a detective; (2) her sister; and (3) the
sexual assault nurse examiner (SANE). We find no reversible error.
1. Standard of Review
¶ 61 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Tyme, 2013 COA 59, ¶ 8. A trial court abuses
its discretion when its ruling is manifestly arbitrary, unreasonable,
or unfair, or if it misapplies the law. People v. Dominguez, 2019
COA 78, ¶ 13.
¶ 62 Because Abdulla’s counsel objected to admission of this
evidence at trial, we review for harmless error. People v. Pernell,
2018 CO 13, ¶ 22. Under this standard, “an erroneous evidentiary
28
ruling does not require reversal unless the ruling affects the
accused’s substantial rights.” Id. (quoting Nicholls v. People, 2017
CO 71, ¶ 17). This determination necessarily results from “a case
specific assessment of the likely impact of the error in question on
the outcome of the litigation as a whole.” Id. (quoting People v.
Rock, 2017 CO 84, ¶ 22). An error is harmless “if there is no
reasonable possibility that it contributed to the defendant’s
conviction.” Id.
2. Applicable Law
¶ 63 Hearsay is “a statement other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” CRE 801(c). If a statement is
hearsay, it is inadmissible unless it falls within an exception. CRE
802. “The burden of establishing the preliminary facts to establish
the hearsay exception is on the proponent of the evidence.” People
v. Garcia, 826 P.2d 1259, 1264 (Colo. 1992).
3. Excited Utterances
¶ 64 Hearsay may be admitted at trial if it constitutes an excited
utterance — a statement relating to a startling event made while the
declarant was under the stress of the excitement caused by the
29
event. See CRE 803(2). A statement may qualify under the excited
utterance exception if
(1) the occurrence or event was sufficiently
startling to render inoperative the normal
reflective thought processes of an observer; (2)
the declarant’s statement was a spontaneous
reaction to the event; and (3) direct or
circumstantial evidence supports an inference
that the declarant had the opportunity to
observe the startling event.
People v. King, 121 P.3d 234, 237-38 (Colo. App. 2005).
¶ 65 Factors to be considered in determining whether the statement
was spontaneous include the lapse of time between the startling
event and the out-of-court statement, whether the statement was
made in response to an inquiry, whether the statement was
accompanied by outward signs of excitement or emotional distress,
and the choice of words employed by the declarant to describe the
experience. People v. Compan, 100 P.3d 533, 536 (Colo. App. 2004),
aff’d, 121 P.3d 876 (Colo. 2005). While there is no “bright-line time
limitation” for an excited utterance, the statement must be a
spontaneous reaction rather than the operation of “normal reflective
thought processes.” People v. Stephenson, 56 P.3d 1112, 1115-16
(Colo. App. 2001). The trial court is in the best position to consider
30
the effect of a startling event on a declarant, and it is afforded wide
discretion in determining admissibility under the excited utterance
hearsay exception. People v. Martinez, 18 P.3d 831, 835 (Colo. App.
2000).
a. The Detective’s Testimony
¶ 66 Abdulla argues that the trial court erred by admitting, as an
excited utterance, L.C.’s statements made while she was at the
police station at approximately 2 p.m. the day after the alleged
incident.
¶ 67 L.C. testified that when she woke up the morning after the
assault, she took a shower and went to church with her son. At
church, she spoke with her pastor’s wife. And after church, she
went to the police station with her son.
¶ 68 Detective Derek McCluskie testified at trial regarding L.C.’s
initial report at the police station. The detective described L.C.’s
demeanor upon arriving at the station as “fearful, visibly upset,
crying, and distraught.” When the prosecutor asked the detective
whether L.C. had “indicate[d] how [he] could help her,” Abdulla
objected on hearsay grounds.
31
¶ 69 The trial court overruled the objection, reasoning that L.C.’s
statements to the detective fell within the excited utterance
exception to hearsay. In support of its ruling, the trial court made
the following record:
 “[T]here is no timeframe specifically for excited
utterances.”
 Though the timeframe was unclear, it was “certainly
some time, some hours after the alleged incident
occurred.”
 “According to [Detective McCluskie], she was still under
the trauma, if you will, excitement, stress of what had
occurred to her according to the physical demeanor that
has been described to us.”
 The detective’s description was “consistent with someone
who is still seeing or feeling the effects of the trauma.”
¶ 70 Detective McCluskie then testified that L.C. reported that “her
husband had made her take off her clothing, he whipped her with a
belt and made her - - her words - - suck his dick, then had sex with
her.” L.C. “didn’t tell [Abdulla] to stop for fear of further assault.”
32
¶ 71 On appeal, Abdulla does not argue that the event L.C.
described was not “startling” or that L.C. did not have the
opportunity to observe it (nor could he, based on the evidence).
Instead, he argues that too much time passed between the event
and the statements and “that [L.C.] had regained her composure
and exercised reflective thought,” as evidenced by having gone to
church and spoken with the pastor’s wife before going to the police
station. Under such circumstances, he argues, the statements were
not excited utterances.
¶ 72 Abdulla is correct that the passage of time and L.C.’s
intervening conduct both cut against the likelihood that the
statement to the detective was an excited utterance. We
acknowledge that “the excited utterance exception extends to
statements made in response to questioning.” King, 121 P.3d at
238 (citing People v. Hulsing, 825 P.2d 1027, 1031 (Colo. App.
1991)). And we acknowledge that there is no bright line rule
regarding the passage of time between the startling event and the
excited utterance. Stephenson, 56 P.3d at 1115-16.
¶ 73 But at least a dozen hours had passed between the event and
L.C.’s report to the detective, which is more time than has been
33
sanctioned by previous reported decisions of this court for adult
excited utterances. Pernell, ¶¶ 27-35 (holding it was error to admit
statements made twelve hours after a sexual assault because the
declarant’s testimony indicated that she had “several independent
interludes of reflective thought” before making the statements
(quoting People v. Pernell, 2015 COA 157, ¶ 34)); Stephenson, 56
P.3d at 1116 (holding it was error to admit statements made three
hours after the declarant witnessed a shooting because there were
“several independent interludes of reflective thought” that removed
the required spontaneity from the declarant’s statements). And the
trial court’s finding that L.C. was “still under the trauma” of the
event when she was speaking with the detective would be
insufficient by itself to support admitting the challenged statements
under CRE 803(2). See Pernell, ¶¶ 31, 33. But even if the court
erred by admitting the statement as an excited utterance, for the
reasons set forth infra Part II.C.5, we conclude that any error was
harmless.
b. The Sister’s Testimony
¶ 74 Abdulla also argues that the trial court erred by admitting,
under the excited utterance exception to hearsay, statements L.C.
34
made during a phone call with her younger sister the day after the
alleged incident.
¶ 75 Although L.C.’s sister testified that L.C. called her before L.C.
went to the police station, L.C. testified that she called her sister
after she had been at the police station. Her sister testified that
when L.C. called, L.C. was “quiet . . . shaky . . . real shaky like she
was scared” and that she “could tell that she was crying” and that
something was wrong. When the prosecutor asked her, “What did
she tell you?” Abdulla’s attorney objected on hearsay grounds.
¶ 76 The trial court overruled the objection, reasoning that L.C.’s
statements to her sister satisfied the excited utterance exception to
the hearsay rule. In support of its ruling, the trial court made the
following record:
 The incident occurred on the evening of Saturday,
January 23, sometime after 7 p.m.
 The phone call occurred early the next morning.
 “This is her sister, whom she’s close to.”
 “[L.C.] was crying. She appeared scared. Her - - her
voice was different, soft.”
 “[S]he was crying as she relayed the information.”
35
 “The important thing about excited utterance, leaving
aside the time frame, which is close in time here in terms
of the number of hours, but, secondly, the person
appears to be still under the stress of the trauma,
emotion of the incident that was being discussed at that
time.”
¶ 77 L.C.’s sister then testified that L.C. told her “that her and her
husband had gotten into a fight, and he had beat her with a belt
and raped her.”
¶ 78 Again, Abdulla does not challenge the nature of the event L.C.
reported to her sister or L.C.’s ability to observe it; instead, he
argues that the lengthy time lapse between the event and the
statement and the evidence that L.C. had regained her composure
and reflected cause the statements to fall outside the excited
utterance exception to the hearsay rule.
¶ 79 We have the same concerns about the admission of L.C.’s
statements to her sister as we do regarding L.C.’s statements to the
detective. A significant amount of time had passed between the
event and the statement, and it appears that L.C. had several
independent interludes of reflective thought during that interval.
36
But, again, even if the trial court abused its discretion by admitting
L.C.’s statement to her sister, for the reasons set forth infra Part
II.C.5, we conclude that any error was harmless.
4. Statements Made for Medical Treatment or Diagnosis
¶ 80 Hearsay statements may be admitted if they are “[s]tatements
made for purposes of medical diagnosis or treatment and describing
medical history, or past or present symptoms, pain, or sensations,
or the inception or general character of the cause or external source
thereof insofar as reasonably pertinent to diagnosis or treatment.”
CRE 803(4). Statements made to a medical professional are
presumptively reliable due to the declarant’s general belief that
providing truthful information to medical professionals will assist in
effective diagnosis and treatment. People v. Galloway, 726 P.2d
249, 252 (Colo. App. 1986). A statement made to a medical
professional during an exam is admissible if (1) the statement is
reasonably pertinent to treatment or diagnosis and (2) the content
of the statement is such as is reasonably relied on by a physician in
treatment or diagnosis. Tyme, ¶ 16.
37
¶ 81 Abdulla contends that the trial court erred by admitting the
hearsay testimony of the SANE, who recounted what L.C. told her
regarding the alleged sexual assault.
¶ 82 The SANE testified that she first takes a “medical history from
[the patient] about what happened, the events of the assault.” The
medical history helps her identify injuries and determine whether
the patient may need further treatment. She explained that she
writes down what the patient says word for word. Then she
conducts a “head-to-toe-body-surface exam looking for injury” while
also “collecting evidence.” When the prosecutor said to the SANE,
“So let’s talk about what she told you that you took down word for
word,” Abdulla’s counsel objected on hearsay grounds.
¶ 83 The trial court overruled the objection, reasoning that L.C.’s
statements to the SANE were admissible pursuant to the medical
diagnosis exception. Citing Tyme, the trial court made the following
record in support of its ruling:
 There is “ample case law” that “allows SANE testimony
for a number of reasons.”
 One of the reasons SANE testimony is generally
admissible is that “the patient has to consent.”
38
 Another reason is that “a SANE nurse doing an
examination collects evidence and statements from the
alleged victim in order to determine what to relate to the
doctor, what type of treatment is necessary, whether it be
physical injuries, internal injuries.”
 The information the SANE nurse collects is for purposes
of medical diagnosis and treatment.
¶ 84 The SANE then testified that L.C. told her that the assailant
“hit [L.C.’s] arm and told her to call the police, and said that he
wasn’t leaving until she called police.” Then he took away L.C.’s
cellphones and went looking for something in the house. He said
he “couldn’t find a wire hanger, so that’s when he took his belt off
and hit her in the back with his belt and then made her get on her
knees and put his penis in her mouth and then had her get on the
bed and had sex with her, and then there was another time he had
sex with her.” The SANE also said that “at one point in the
morning, he told [L.C.] that if they don’t get an understanding this
will happen again.”
¶ 85 On appeal, Abdulla challenges the admissibility of L.C.’s
statements to the SANE (1) indicating that it was Abdulla who
39
assaulted her; (2) describing how Abdulla assaulted her; and (3)
alleging that Abdulla made threats during the assault.2
¶ 86 As an initial matter, the record belies Abdulla’s contention
that the trial court erred by allowing the SANE to testify that L.C.
“indicat[ed] it was Mr. Abdulla who assaulted her.” The SANE did
not identify Abdulla by name at any point during her testimony,
and, even if she had, identity was not an issue in this case.
¶ 87 Given that one purpose of the SANE’s examination was to
provide medical care or treatment to L.C., the trial court did not
abuse its discretion by admitting most of the SANE’s testimony
regarding what L.C. told her about the sexual assault, including
L.C.’s “statements as to how [Abdulla] allegedly assaulted her.” See
CRE 803(4).
¶ 88 But we agree with Abdulla that not all of the testimony fit the
exception. The statements regarding (1) L.C.’s phones being taken
away; (2) Abdulla looking for a wire hanger; and (3) the threat that
2 We note that, after the trial court overruled defense counsel’s
initial objection and ruled that the SANE’s testimony fell under the
medical diagnosis exception to the hearsay rule, defense counsel
did not renew the objection when the SANE relayed statements that
would fall outside that exception. But the People do not challenge
preservation of this issue, so we analyze it as if it were preserved.
40
“if they don’t get an understanding this will happen again” likely fall
outside the exception. See People v. Jaramillo, 183 P.3d 665, 669
(Colo. App. 2008) (concluding that the victim’s statements to a
nurse practitioner were inadmissible hearsay because the
challenged statements were not necessary for or pertinent to the
nurse practitioner’s diagnosis or treatment).
¶ 89 But even if the trial court abused its discretion by admitting
these statements, for the reasons set forth in the following section,
we conclude that any error was harmless.
5. Any Error Admitting Hearsay Was Harmless
¶ 90 Even if the trial court erred by admitting L.C.’s statements to
the detective, to her sister, and to the SANE under exceptions to the
hearsay rule, we conclude that the error was harmless and reversal
is not required. Hagos, ¶ 12; People v. Gaffney, 769 P.2d 1081,
1088 (Colo. 1989) (“If a reviewing court can say with fair assurance
that, in light of the entire record of the trial, the error did not
substantially influence the verdict or impair the fairness of the trial,
the error may properly be deemed harmless.”).
¶ 91 Abdulla admitted to a physical altercation and did not dispute
that the sexual acts occurred; his defense was that L.C. had
41
consented. Indeed, the defense theory instruction stated, “[L.C.]
and her husband, Sharif Abdulla, had a verbal argument about him
being out all night on Friday. The fight became physical and
thereafter, [L.C.] consented to all sexual acts with Mr. Abdulla.”
Thus, any hearsay statements about the physical acts were largely
cumulative and related to uncontested facts. See People in Interest
of R.D.H., 944 P.2d 660, 664 (Colo. App. 1997) (determining that
any error in allowing a social worker to testify as to mother’s history
of drug use was harmless because the challenged evidence was
cumulative); see also Jaramillo, 183 P.3d at 669 (noting the
improperly admitted hearsay statements were related to
uncontested facts and concluding any error in the admission of the
challenged statements was harmless).
¶ 92 To the extent that the hearsay statements related to the
contested issue of consent, they appear not to have had an impact
on the jury. People v. Harris, 43 P.3d 221, 231 (Colo. 2002)
(considering, among other things, whether the impact the
erroneously admitted hearsay evidence had on the jury was
significant). At trial, L.C. admitted that she did not indicate to
Abdulla that any of the sexual acts were nonconsensual; rather, she
42
said she was too scared to tell him no. The jury was able to judge
L.C.’s credibility for itself. By acquitting Abdulla of sexual assault,
it appears the jury did not believe L.C. that the sex was
nonconsensual or that she communicated her lack of consent to
Abdulla.
¶ 93 To the extent that the hearsay statements related to the
contested issue of exactly how Abdulla assaulted L.C., the
prosecution offered strong, corroborating evidence, including L.C.’s
own testimony at trial, pictures of L.C.’s injuries, and the SANE’s
testimony that L.C.’s injuries were consistent with what L.C.
reported to her. Blecha v. People, 962 P.2d 931, 944 (Colo. 1998)
(determining that any error in the improperly admitted hearsay
statements was harmless because there was “persuasive
corroborative evidence”).
¶ 94 In addition, had the improperly admitted statements been
offered after L.C. testified, they may have been admitted as prior
consistent statements. See CRE 801(d)(1)(B). The trial court even
alluded to this when overruling Abdulla’s objection to the detective’s
testimony when it said, “In addition, I don’t know this, I haven’t
heard from the alleged victim, [but it] might be a prior consistent or
43
inconsistent statement.” L.C. did testify and, on cross-examination,
defense counsel attacked her credibility, impeached her with prior
inconsistent statements, and suggested she had an ulterior motive
for making allegations against her husband. See People v. Eppens,
979 P.2d 14, 21-22 (Colo. 1999).
¶ 95 Abdulla argues the acquittal on the sexual assault charge
demonstrates that “this was a very close case,” thus increasing the
likelihood that “[a]dmission of the improperly admitted hearsay
statements . . . may have tipped the balance in favor of a jury
determination that, although he had not committed the sexual
assault, Mr. Abdulla had been abusive and should be found guilty
of some sort of sexual misconduct.” We disagree. If the jury was
improperly influenced, it would have been more likely to have
convicted of the greater offense. Instead, its verdict demonstrates it
was not improperly swayed by what L.C. said to the detective, her
sister, or the SANE; rather, it was thoughtful and deliberate in its
decision.
¶ 96 Ultimately, we conclude that any erroneous admission of
hearsay statements was harmless as it did not substantially
44
influence the verdict or affect the fairness of the trial proceedings.
Yusem v. People, 210 P.3d 458, 469 (Colo. 2009).
III. Conclusion
¶ 97 The judgment of conviction is affirmed.
JUDGE J. JONES and JUDGE HARRIS concur.
45