People v. Sabell , 2018 COA 85 ( 2018 )

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
June 14, 2018
2018COA85
No. 15CA0867, People v. Sabell — Criminal Law — Jury
Instructions — Defenses — Involuntary Intoxication
A division of the court of appeals considers whether a jury
instruction improperly lessened the People’s burden of disproving a
defendant’s affirmative defense of involuntary intoxication. An
instruction directed the jury to answer an initial question — “Was
the defendant’s intoxication self-induced?” — either “yes” or “no.”
The jury was further instructed to consider the remainder of the
intoxication instruction only if it answered that preliminary
question in the negative. The division concludes that the
instruction was erroneous because it effectively told the jury not to
consider the People’s burden of proof until after it first decided
whether the defendant’s intoxication was voluntary. However,
because the error was not plain, it does not require reversal.
Additionally, the division rejects the defendant’s contentions
that (1) reversal is required due to an erroneous limiting instruction
and (2) his sentence under section 18-1.3-1004, C.R.S. 2017, of the
Colorado Sex Offender Lifetime Supervision Act of 1998 is
unconstitutional. However, the division concludes that (1) the
defendant’s conviction for unlawful sexual contact should merge
into his conviction for sexual assault and (2) a $500 crime against a
child surcharge was erroneously imposed.
Accordingly, the division vacates the unlawful sexual contact
conviction and the $500 surcharge, and remands for the trial court
to correct the mittimus. In all other respects, the division affirms
the judgment and sentence.
COLORADO COURT OF APPEALS 2018COA85
Court of Appeals No. 15CA0867
Jefferson County District Court No. 14CR379
Honorable Tamara S. Russell, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Sean Michael Sabell,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND VACATED IN PART, SENTENCE
AFFIRMED IN PART AND VACATED IN PART, AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TAUBMAN
Bernard and Welling, JJ., concur
Announced June 14, 2018
Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Meghan M. Morris, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Sean Michael Sabell, appeals his judgment of
conviction entered on a jury verdict finding him guilty of sexual
assault, unlawful sexual contact, third degree assault, and criminal
mischief. He also appeals his sentence under section 18-1.3-1004,
C.R.S. 2017, of the Colorado Sex Offender Lifetime Supervision Act
of 1998 (SOLSA). We vacate the conviction for unlawful sexual
contact and a $500 crime against a child surcharge, and we
remand with directions to correct the mittimus. In all other
respects, we affirm the judgment and sentence.
I. Background
¶2 Sabell and his girlfriend, the victim, got into an argument on
the night of December 14, 2013. When the victim returned to the
couple’s home that evening after running errands, Sabell accused
her of cheating on him and physically assaulted her. After the fight,
the victim began audio recording the altercation on her cell phone
because she intended to play the recording later to Sabell to
demonstrate to him his abusive behavior. Sabell had smoked
marijuana earlier in the day and was drinking alcohol throughout
the evening, so the victim feared he would not remember his
behavior that evening. Sabell then forced the victim to perform oral
1
sex on him and later broke down her bedroom door after she had
locked herself inside.
¶3 A few days later, Sabell called the police and alleged that the
victim was attempting to poison him. During the investigation of
Sabell’s report, the victim played part of the December 14, 2013
audio recording for a police officer. Based on the content of the
recording, the police arrested Sabell. He was eventually charged
with one count of sexual assault, one count of unlawful sexual
contact, one count of third degree assault, one count of criminal
mischief, and one count of harassment. The People dismissed the
harassment charge prior to trial. The jury convicted Sabell of all
remaining charges, and he was sentenced to an indeterminate term
of six years to life in prison on the sexual assault and unlawful
sexual contact counts.1
¶4 On appeal, Sabell raises five arguments: (1) an improper jury
instruction on intoxication requires reversal; (2) an improper
limiting instruction regarding other acts evidence requires reversal;
1Sabell was also sentenced to six months in jail on the two
misdemeanor convictions for third degree assault and criminal
mischief. He does not appeal that aspect of his sentence.
2
(3) his sentence must be vacated because SOLSA is
unconstitutional; (4) the sexual assault and unlawful sexual contact
convictions must merge; and (5) a crime against a child surcharge
imposed by the trial court at sentencing must be vacated. We agree
with the fourth and fifth contentions and therefore vacate the
unlawful sexual contact conviction and the $500 crime against a
child surcharge, and remand for correction of the mittimus. We
affirm in all other respects.
II. Involuntary Intoxication Instruction
¶5 Sabell contends that the trial court erroneously instructed the
jury on his affirmative defense of involuntary intoxication. He
contends that this error requires reversal of the sexual assault,
unlawful sexual contact, and criminal mischief convictions. We
perceive no basis for reversal.
A. Additional Facts
¶6 Before trial, the victim admitted that she had put Seroquel, a
drug she had been prescribed, in Sabell’s wine in an attempt to
sedate him on the night of December 14, 2013. According to the
victim, she put the drug in Sabell’s drink after the sexual assault.
However, Sabell testified at trial that the victim had put the
3
Seroquel in his drink before the recording began and that he had no
memory of any of the recorded events.2
¶7 The defense raised the affirmative defense of involuntary
intoxication. During a jury instruction conference on the second
day of trial, defense counsel stated that “there should be an
addendum” to the standard presumption of innocence instruction
to address the People’s burden of proof on the affirmative defense.
The trial court invited defense counsel to prepare an alternative
instruction. The People then tendered a jury instruction on
involuntary intoxication. Defense counsel objected to the wording
of the instruction, but did not assert that it impermissibly lessened
the prosecution’s burden of proof.
¶8 The next day, the trial court and both parties reviewed a
packet of instructions submitted by the People. The prosecutor
stated that she had prepared the intoxication instruction according
to the pattern jury instructions. Specifically, the prosecutor
explained that she had referred to COLJI-Crim. H:34 (2017)
2 Both Sabell and the victim testified that the victim did not put
Seroquel in Sabell’s drink until after the physical assault. Thus,
the affirmative involuntary intoxication defense was not applicable
to the third degree assault charge.
4
(voluntary intoxication) and COLJI-Crim. H:35 (2017) (involuntary
intoxication) in drafting the instruction. The trial court asked if
defense counsel objected to “the instructions that [the prosecutor]
crafted,” and defense counsel replied that he did not. Later, the
trial court asked whether defense counsel renewed his objection to
the standard burden of proof instruction, and defense counsel
withdrew his previous objection.
¶9 In relevant part, the intoxication instruction given to the jury
read:
The evidence presented in this case has raised
a question as to the voluntariness of the
defendant’s intoxication. In this case you
must answer the question: Was the
defendant’s intoxication self-induced? (yes or
no)
....
If you answer “yes” to this question you may
not consider evidence of self-induced
intoxication for purposes of deciding whether
the prosecution has proved the elements of the
crimes charged in this case.
If you answer “no” to this question and find
the defendant’s intoxication was not self-
induced you should apply the following
instruction:
The evidence presented in this case has raised
the affirmative defense of “involuntary
5
intoxication,” as a defense to Sexual Assault,
Criminal Mischief, and Unlawful Sexual
Contact.
The defendant’s conduct was legally authorized
if:
1. he lacked the capacity to conform his
conduct to the requirements of law, because
of his intoxication, and
2. the intoxication was not self-induced.
The prosecution has the burden to prove,
beyond a reasonable doubt, that the
defendant’s conduct was not legally authorized
by this defense. In order to meet this burden
of proof, the prosecution must disprove,
beyond a reasonable doubt, at least one of the
above numbered conditions.
¶ 10 Additionally, each of the relevant elemental instructions listed
as an element that “the defendant’s conduct was not legally
authorized by the affirmative defense of Involuntary Intoxication.”
The elemental instructions also stated that the prosecution bore the
burden of proving each element beyond a reasonable doubt.
Finally, there was a standard instruction on the burden of proof,
which read, “The burden of proof is upon the prosecution to prove
to the satisfaction of the jury beyond a reasonable doubt the
existence of all of the elements necessary to constitute the crime
charged.”
6
B. Standard of Review
¶ 11 A trial court has a duty to correctly instruct the jury on the
governing law. People v. Pahl, 169 P.3d 169, 183 (Colo. App. 2006).
We review jury instructions de novo to determine whether they
accurately informed the jury of the governing law, but we review
questions of form and style for an abuse of discretion. Townsend v.
People, 252 P.3d 1108, 1111 (Colo. 2011). Instructional error
occurs when an instruction misleads or confuses the jury. Williams
v. Chrysler Ins. Co., 928 P.2d 1375, 1377 (Colo. App. 1996); see also
Lybarger v. People, 807 P.2d 570, 582-83 (Colo. 1991).
¶ 12 As a general matter, a failure to object to a jury instruction
results in review for plain error. People v. Garcia, 28 P.3d 340, 344
(Colo. 2001) (“If a defendant lodges no objection to a trial court’s
jury instruction, a plain error standard should be applied in
reviewing the instruction.”). Plain errors are “obvious and
substantial,” Hagos v. People, 2012 CO 63, ¶ 14, 288 P.3d 116,
120, and “cast serious doubt on the reliability of the judgment of
conviction,” id. (quoting People v. Miller, 113 P.3d 743, 750 (Colo.
2005)).
7
C. Applicable Law
¶ 13 “In Colorado, involuntary intoxication is an affirmative defense
to a criminal charge.” Miller, 113 P.3d at 750. Under that defense,
“[a] person is not criminally responsible for his conduct if, by reason
of intoxication that is not self-induced at the time he acts, he lacks
capacity to conform his conduct to the requirements of the law.”
§ 18-1-804(3), C.R.S. 2017. “To submit the affirmative defense of
involuntary intoxication to the jury, a defendant must offer proof
which constitutes ‘some credible evidence’ of the condition.” People
v. Garcia, 113 P.3d 775, 783 (Colo. 2005). Once a defendant meets
that burden, the prosecution bears the burden of disproving the
affirmative defense beyond a reasonable doubt. Id. at 784 (“[A]
properly raised affirmative defense is treated as though it were
another element of th[e] offense.”).
¶ 14 The Model Criminal Jury Instructions Committee’s notes on
the pattern voluntary intoxication instruction state:
If there is question as to the voluntariness of
the defendant’s intoxication, draft an
instruction explaining that: (1) the jurors are
to decide, as a threshold matter, whether the
defendant’s intoxication was “self-induced” (as
defined in Instruction F:330); and (2)
depending on the outcome of that
8
determination, they should then apply either
this instruction, or Instruction H:35
(involuntary intoxication).
COLJI-Crim. H:34 cmt. 7; see also COLJI-Crim. H:35 cmt. 3 (“In
cases where there is a factual dispute concerning whether the
defendant’s intoxication was self-induced, refer to Comment 7 of
Instruction H:34 (intoxication (voluntary)).”).
D. Analysis
1. Waiver
¶ 15 At the outset, we note that the parties disagree on whether we
should review this claim. Sabell admits that he did not object to
the intoxication instruction in the trial court on the basis that it
lessened the prosecution’s burden of proof. However, he urges us
to consider the issue on appeal. In contrast, the People urge us to
conclude that Sabell waived this contention.
¶ 16 We recognize that the Colorado Supreme Court recently held
that “mere acquiescence to a jury instruction does not constitute a
waiver without some record evidence that the defendant
intentionally relinquished a known right.” People v. Rediger, 2018
CO 32, ¶ 3, ___ P.3d ___, ___; see also People v. Smith, 2018 CO 33,
___ P.3d ___. In Rediger, the court held that the defendant’s
9
“purported acquiescence” in an erroneous instruction tendered by
the People constituted, “at most,” forfeiture. Rediger, ¶ 3, ___ P.3d
at ___. As a result, the Rediger court reviewed for plain error. Id.
¶ 17 However, we need not discuss the applicability of Rediger and
Smith here because we assume without deciding that Sabell did not
waive this claim, and we will therefore review it on appeal. Cf.
People v. McMinn, 2013 COA 94, ¶ 17, 412 P.3d 551, 557 (assuming
without deciding that double jeopardy claim had been preserved).
2. Intoxication Instruction
¶ 18 Sabell contends that the involuntary intoxication instruction
impermissibly lessened the prosecution’s burden of proof. He
argues that the first paragraph of the instruction allowed the jury to
make a preliminary factual determination as to the voluntariness of
his intoxication without requiring that the People disprove that
element of the affirmative defense beyond a reasonable doubt. We
agree that the instruction was erroneous.
¶ 19 The first paragraph of the intoxication instruction directed the
jury to answer the initial question — “Was the defendant’s
intoxication self-induced?” — without clarifying that the People bore
the burden of disproving involuntary intoxication beyond a
10
reasonable doubt. The instruction did not mention the
prosecution’s burden of proof until after the initial paragraphs
addressing the preliminary “yes or no” determination. Further, the
instruction told the jury to apply the entirety of the instruction,
including the portion correctly stating that the People bore the
burden of disproving the affirmative defense, only if the jury
answered the initial question in the negative.
¶ 20 Thus, the involuntary intoxication instruction in effect told the
jury not to consider the People’s burden of proof until after it first
decided whether Sabell’s intoxication was self-induced. The
instruction therefore erroneously created the possibility that the
affirmative defense of involuntary intoxication — and the
prosecution’s burden with respect thereto — would not be given due
consideration by the jury.
3. Plain Error Review
¶ 21 In light of our conclusion that the instruction was erroneous,
we turn to whether that error requires reversal. The parties
disagree on the appropriate standard of review. Sabell urges us to
consider this a structural error requiring automatic reversal. In
11
contrast, the People contend that plain error review is appropriate.
We agree with the People and review for plain error.
¶ 22 Where, as here, the trial court erroneously instructs the jury
in a manner that lessens the prosecution’s burden of proof with
respect to an affirmative defense, constitutional error has been
committed. See People v. Pickering, 276 P.3d 553, 555 (Colo. 2011);
Garcia, 113 P.3d at 784 (“[A] defendant’s constitutional right to due
process is violated by an improper lessening of the prosecution’s
burden of proof . . . .”). Indeed, the Colorado Supreme Court has
rejected the argument that such instructional errors are structural
in nature and has instead concluded that such errors are subject to
constitutional harmless or plain error review. Griego v. People, 19
P.3d 1, 8 (Colo. 2001), as modified on denial of reh’g (Mar. 12, 2001)
(“[A] jury instruction that is erroneous, either because the
instruction omits or misdescribes an element of the offense, is not
subject to structural error analysis.”). Thus, we reject Sabell’s
argument that this error is structural. See Hagos, ¶ 10, 288 P.3d
at 119 (listing as examples of structural error “complete deprivation
of counsel, trial before a biased judge, unlawful exclusion of
members of the defendant’s race from a grand jury, denial of the
12
right to self-representation, and denial of the right to a public
trial”); see also Neder v. United States, 527 U.S. 1, 8-12 (1999)
(concluding that a jury instruction omitting an element is not
structural error); Miller, 113 P.3d at 751 (reviewing erroneous jury
instruction on voluntary intoxication for plain error).
¶ 23 We review instructional errors, “constitutional and
nonconstitutional, that were not preserved by objection for plain
error.” Hagos, ¶ 14, 288 P.3d at 120.
¶ 24 We conclude that the instructional error here was not plain.
First, we determine that the error was not obvious. “To qualify as
‘plain’ error, an error must be so clear-cut, so obvious, that a trial
judge should be able to avoid it without benefit of objection.” People
v. Pollard, 2013 COA 31M, ¶ 39, 307 P.3d 1124, 1133.
¶ 25 Here, the trial court and prosecutor relied on the pattern jury
instructions, and the committee’s comments on their use, in an
attempt to draft a proper intoxication instruction. Comment 7 on
COLJI-Crim. H:34 states that, if there is a question as to the
voluntariness of the defendant’s intoxication, a separate instruction
should be drafted “explaining that: (1) the jurors are to decide, as a
threshold matter, whether the defendant’s intoxication was ‘self-
13
induced’ . . . ; and (2) depending on the outcome of that
determination, they should then apply either” the involuntary
intoxication instruction or the voluntary intoxication instruction.3
There was a question as to the voluntariness of Sabell’s intoxication
because he had smoked marijuana and drunk alcohol on December
14, 2013. Accordingly, although the prosecutor did not draft a
separate instruction on the issue, the preliminary paragraphs
added to the intoxication instruction attempted to comply with
comment 7 on COLJI-Crim. H:34.4 Cf. People v. Laurson, 15 P.3d
791, 796 (Colo. App. 2000) (noting that a jury instruction
3 We disagree with Sabell’s argument that comment 7 on COLJI-
Crim. H:34 (2017) is implicated only when the jury is instructed on
both voluntary and involuntary intoxication. Rather, as the People
assert, that comment becomes relevant when there is a factual
question as to the voluntariness of the defendant’s intoxication,
regardless of whether the jury is instructed on a voluntary
intoxication defense.
4 We express no opinion as to whether COLJI-Crim. H:34, COLJI-
Crim. H:35 (2017), and the accompanying comments on those
pattern instructions are proper. However, we note that comment 7
on COLJI-Crim. H:34 recommends the use of a separate instruction
“explaining that . . . the jurors are to decide, as a threshold matter,
whether the defendant’s intoxication was ‘self-induced.’” That
comment does not specify that such an instruction should also
explain the People’s burden of proof in the event that a defendant
raises involuntary intoxication as an affirmative defense. See also
COLJI-Crim. H:35 cmt. 3.
14
“track[ing]” the pattern instruction and conforming to the language
of relevant statutes is generally sufficient).
¶ 26 Further, we determine that the instructional error was not
substantial. Looking at the instructions as a whole, we note the
jury was adequately informed of the prosecution’s burden of proof
as to the affirmative defense. See People v. Garcia, 2012 COA 79,
¶ 51, 296 P.3d 285, 292 (considering as part of plain error review
the jury instructions as a whole). First, a presumption of innocence
instruction explained that the prosecution had to prove beyond a
reasonable doubt the existence of all the elements necessary to
constitute the crimes charged. Second, all the pertinent elemental
instructions included, as the final element of each offense, that “the
defendant’s conduct was not legally authorized by the affirmative
defense of Involuntary Intoxication in [the intoxication instruction].”
The elemental instructions also stated that the prosecution had to
prove “each of the elements beyond a reasonable doubt.” See Miller,
113 P.3d at 750 (“[T]he court’s failure to instruct the jury properly
does not constitute plain error if the relevant instruction, read in
conjunction with other instructions, adequately informs the jury of
the law.”). Finally, the intoxication instruction itself included
15
language properly explaining the People’s burden of disproving the
two elements of the affirmative defense, albeit after the improper
preliminary paragraphs.
¶ 27 Moreover, even if the jury would have found that Sabell was
involuntarily intoxicated had it been properly instructed, we
conclude there was no reasonable possibility that the jury would
have found the other component of the involuntary intoxication
defense — namely, that Sabell lacked the capacity to conform his
conduct to the requirements of the law. The jury heard significant
portions of the approximately three-hour audio recording in which
Sabell was coherent and responsive to the victim. Aside from his
testimony that he did not remember the events recorded by the
victim, Sabell presented no evidence that the dose of Seroquel the
victim put in his drink resulted in his inability to conform his
conduct to law.
¶ 28 Thus, we cannot conclude that 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.” Hagos, ¶ 14, 288
P.3d at 120 (quoting Miller, 113 P.3d at 750). In sum, although the
16
involuntary intoxication jury instruction here was erroneous, we
perceive no basis for reversal.
III. Other Acts Instruction
¶ 29 Sabell also contends that the trial court gave an erroneous
instruction limiting the jury’s consideration of other acts evidence.
We perceive no error.
A. Additional Facts
¶ 30 At trial, the victim testified about four other incidents in which
Sabell had been violent toward her or had forced her to have sex.
Other witnesses, including the victim’s friend and police officers,
also testified about these other acts.
¶ 31 Two of these incidents were described as the South Yank
Court incidents because they occurred in Sabell and the victim’s
house on that street. The first incident took place in the kitchen,
when Sabell “got in [the victim’s] face and headbutted [her]” during
an argument. The second South Yank Court incident took place in
the victim’s bedroom, when Sabell kicked a hole in her locked door
around 3 a.m. because he wanted to have sex with her.
¶ 32 The victim also testified about a 2011 incident during which
Sabell grabbed her arm, forced her to the floor, and threatened to
17
kill her while holding a knife. Finally, the victim testified that, on
Thanksgiving in 2013, Sabell forced her to have sex with him and
attempted to force her to perform oral sex on him.
¶ 33 Before each witness testified about these incidents, the trial
court gave an oral limiting instruction. As to the first three
incidents, the trial court instructed the jury that it could consider
the evidence for the limited purpose of proving absence of mistake
and intent. With regard to the Thanksgiving incident, the trial
court instructed the jury it could consider the evidence for the
purpose of proving absence of mistake, intent, and motive.
¶ 34 During the instruction conference on the second day of trial,
the trial court asked defense counsel if he objected to having the
prosecutor draft a written limiting instruction that mirrored the oral
instructions given during testimony. Defense counsel stated that
he had no objection.
¶ 35 The final limiting instruction read:
The court admitted evidence of events at the
South Yank Court address for the limited
purpose of proving absence of mistake and
intent only. You may not consider it for any
other reason.
18
The court admitted evidence of events in 2011
for the limited purpose of proving absence of
mistake and intent only. You may not
consider it for any other reason.
The court admitted evidence of events around
Thanksgiving 2013 for the limited purpose of
proving absence of mistake, intent and motive.
You may not consider it for any other reason.
B. Standard of Review
¶ 36 As noted, we review jury instructions de novo to determine
whether they accurately informed the jury of the governing law, but
we review questions of form and style for an abuse of discretion.
Townsend, 252 P.3d at 1111.
C. Applicable Law
¶ 37 CRE 404 governs the admission of evidence of “other crimes,
wrongs, or acts.” Such evidence “is not admissible to prove the
character of a person in order to show that he acted in conformity
therewith.” CRE 404(b). However, evidence of other crimes is
admissible “for other purposes, such as proof of motive, . . . intent,
. . . or absence of mistake or accident.” Id.
¶ 38 When evidence is admitted for a certain purpose, but is
inadmissible for another purpose, the trial court “shall restrict the
evidence to its proper scope and instruct the jury accordingly” if a
19
party so requests. CRE 105. In People v. Garner, the supreme
court stated that when evidence of other acts is admitted under
CRE 404(b), “the court should instruct the jury, pursuant to CRE
105, on the limited purpose for which such evidence is admitted at
the time of admission,” as well as at the close of the trial. 806 P.2d
366, 374 (Colo. 1991); see also Yusem v. People, 210 P.3d 458, 469
(Colo. 2009) (“[T]he trial court should take care to admit [other acts]
evidence for specific purposes and to properly instruct the jury as to
those purposes.”).
¶ 39 In the context of sexual assault prosecutions, evidence of other
sexual assaults by a defendant will often be admissible under CRE
404(b). See People v. Martinez, 36 P.3d 154, 159-60 (Colo. App.
2001). See generally § 16-10-301(1), C.R.S. 2017 (This legislative
declaration states that, in a prosecution for sexual assault,
“evidence of other sexual acts is typically relevant and highly
probative.”). Similarly, in criminal prosecutions involving domestic
violence, “evidence of similar transactions can be helpful and is
necessary in some situations.” § 18-6-801.5(1), C.R.S. 2017.
20
D. Analysis
¶ 40 The People again urge us to conclude that Sabell waived this
claim because defense counsel acquiesced in the prosecutor’s
tendered instruction. Again, without discussing the applicability of
the supreme court’s recent decisions in Rediger, 2018 CO 32, ___
P.3d ___, and Smith, 2018 CO 33, ___ P.3d ___, we assume without
deciding that Sabell did not waive this claim, and we therefore
review it on the merits. Cf. McMinn, ¶ 17, 412 P.3d at 557.
¶ 41 Sabell asserts that the limiting instruction was erroneous for
two reasons. First, he contends that the instruction did not prevent
the jury from engaging in impermissible propensity inferences.
Second, he contends that the instruction allowed the jury to use the
evidence improperly because it was not relevant to intent, motive, or
absence of mistake. We disagree with both arguments.
¶ 42 Contrary to Sabell’s first contention, we conclude that the
instruction properly informed the jury of the permissible use of the
other acts evidence. In fact, the instruction expressly stated that
the jury could not consider the evidence for any purpose other than
those specifically enumerated. When a trial court admits other acts
evidence for specific purposes, it “should . . . properly instruct the
21
jury as to those purposes.” Yusem, 210 P.3d at 469. The trial
court did so here. “We presume that the jury followed the court’s
instructions, absent evidence to the contrary.” Garcia, ¶ 20, 296
P.3d at 289.
¶ 43 We similarly reject Sabell’s contention that the instruction
improperly directed the jury to consider the evidence for purposes of
intent, absence of mistake, and — with regard to the Thanksgiving
2013 incident — motive. During a motions hearing on the other
acts evidence, the trial court ruled that evidence of the four
incidents was relevant because they all involved the victim in this
case and “assaultive behavior while Sabell was allegedly
intoxicated.” We agree that, in the circumstances here, the
evidence of prior incidents involving the victim were relevant to the
purposes identified by the trial court. Sabell put his motive, intent,
and the possibility of mistake at issue by raising the affirmative
involuntary intoxication defense. As Sabell acknowledges, whether
he acted knowingly and voluntarily was the primary issue at trial.
The other acts evidence was relevant to that issue.
¶ 44 Thus, we reject Sabell’s contention that the other acts
instruction was inaccurate.
22
IV. Constitutionality of SOLSA
¶ 45 Sabell was sentenced under SOLSA to six years to life in the
custody of the Department of Corrections as a result of his sex
offense convictions. See § 18-1.3-1004(1)(a). He contends that
SOLSA is unconstitutional on its face and as applied to him.
¶ 46 The constitutionality of SOLSA is an issue of law we review de
novo. See Hinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo.
2007). Sabell did not challenge the constitutionality of his sentence
under SOLSA in the trial court. Nevertheless, we will exercise our
discretion to review an unpreserved constitutional challenge for the
first time on appeal. Id. at 667-68. We review unpreserved
constitutional challenges for plain error. Hagos, ¶ 14, 288 P.3d at
120.
¶ 47 Sabell argues that SOLSA violates his privilege against self-
incrimination, procedural and substantive due process, the right to
trial by a jury, the Equal Protection Clause, and the prohibition
against cruel and unusual punishment. As Sabell acknowledges,
numerous divisions of this court have considered the
constitutionality of SOLSA and have rejected all such challenges.
See, e.g., People v. Collins, 250 P.3d 668, 679 (Colo. App. 2010);
23
People v. Firth, 205 P.3d 445, 452 (Colo. App. 2008); People v.
Lehmkuhl, 117 P.3d 98, 108 (Colo. App. 2004); People v. Dash, 104
P.3d 286, 290 (Colo. App. 2004); People v. Oglethorpe, 87 P.3d 129,
133 (Colo. App. 2003); People v. Strean, 74 P.3d 387, 393 (Colo.
App. 2002). We are not persuaded to depart from these decisions,
and therefore we reject Sabell’s contentions for the reasons stated
therein. Thus, we perceive no error, let alone plain error.
V. Merger
¶ 48 Sabell contends, the People concede,5 and we agree that
the unlawful sexual contact conviction should have merged with the
sexual assault conviction at sentencing.
¶ 49 The United States and Colorado Constitutions protect
individuals from multiple punishments for the same offense. See
U.S. Const. amends. V, XIV; Colo. Const. art. II, § 18; see also
Woellhaf v. People, 105 P.3d 209, 214 (Colo. 2005). A defendant
may not be convicted of two offenses for the same conduct if one
offense is included in the other. § 18-1-408(1)(a), C.R.S. 2017. The
supreme court recently concluded that “unlawful sexual contact is
5As the People note, we are not bound by their concessions. See
People v. Corral, 174 P.3d 837, 839 (Colo. App. 2007).
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a lesser included offense of sexual assault, and when a defendant is
convicted of both offenses based on the same conduct the
conviction for unlawful sexual contact merges into the conviction
for sexual assault.” Page v. People, 2017 CO 88, ¶ 19, 402 P.3d
468, 472; see also § 18-3-402(1)(a), C.R.S. 2017; § 18-3-404(1)(a),
C.R.S. 2017.
¶ 50 Here, the People concede that Sabell’s sexual assault and
unlawful sexual contact convictions were based on the same
conduct. Indeed, at the sentencing hearing the prosecutor and trial
court both acknowledged that these convictions were based on the
same set of facts. Sabell did not raise the issue of merger, however,
so we review for plain error. See Reyna-Abarca v. People, 2017 CO
15, ¶¶ 45-46, 390 P.3d 816, 823 (holding that an unpreserved
double jeopardy claim is reviewable for plain error).
¶ 51 We conclude that the trial court plainly erred in entering both
the sexual assault and unlawful sexual contact convictions. See
People v. Friend, 2014 COA 123M, ¶ 74, ___ P.3d ___, ___ (cert.
granted in part Feb. 8, 2016). The protections against double
jeopardy affect a substantial constitutional right. Id. at ¶ 75, ___
P.3d at ___. Further, we determine that the error was obvious.
25
Sabell points to several cases decided prior to his sentencing that
recognized that unlawful sexual contact is a lesser included offense
of sexual assault. See, e.g., People v. Rogers, 220 P.3d 931, 938
(Colo. App. 2008). Moreover, an analysis of the sexual assault and
unlawful sexual contact statutes under the test set forth in
Blockburger v. United States, 284 U.S. 299, 304 (1932), would have
led to the conclusion that unlawful sexual contact is a lesser
included offense of sexual assault.
¶ 52 Thus, we merge the sexual assault and unlawful sexual
contact convictions by vacating the latter conviction. See Page, ¶
19, 402 P.3d at 472; see also People v. Rhea, 2014 COA 60, ¶¶ 16-
17, 349 P.3d 280, 287-88 (“Merger has the same effect as vacating
one of the multiplicitous sentences.”). Because the prison terms
imposed for these counts were ordered to run concurrently, merger
will have no effect on the length of Sabell’s sentence. However, we
remand for the trial court to correct the mittimus.
VI. Crime Against a Child Surcharge
¶ 53 Sabell contends, the People concede, and we agree that the
trial court erred in imposing a crime against a child surcharge of
$500.
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¶ 54 Under section 18-24-102(1), C.R.S. 2017, anyone convicted of
a crime against a child is required to pay a surcharge to the court.
See also § 18-24-102(2)(c) (requiring $500 surcharge if a person is
convicted of a class 4 felony crime against a child). Here, the
sentencing minute order states that the trial court imposed a $500
crime against a child surcharge on the unlawful sexual contact
conviction. There was no discussion of this surcharge at the
sentencing hearing.
¶ 55 The victim here was not a child. The trial court therefore
plainly erred in imposing the $500 crime against a child surcharge.
Thus, we vacate that surcharge and remand for correction of the
mittimus to the extent that the $500 sum is included in the
$3248.50 assessed on the mittimus.
VII. Conclusion
¶ 56 We vacate the unlawful sexual contact conviction and the
crime against a child surcharge, and remand for the trial court to
correct the mittimus accordingly. In all other respects, the
judgment and sentence are affirmed.
JUDGE BERNARD and JUDGE WELLING concur.
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