19CA1239 Peo v Snodgress 11-24-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA1239
El Paso County District Court No. 18CR2675
Honorable Laura A. Tighe, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Joseph Benjamin Snodgress,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE DUNN
Dailey and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 24, 2021
Philip J. Weiser, Attorney General, Hannah Bustillo, Assistant Attorney
General Fellow, Denver, Colorado, for Plaintiff-Appellee
The Noble Law Firm, Antony Noble, Heidi Tripp, Lakewood, Colorado; Pickard
Law, P.C., Joe Pickard, Jay Pickard, Kevin Massaro, Littleton, Colorado, for
Defendant-Appellant
1
¶ 1 Defendant, Joseph Benjamin Snodgress, directly appeals his
convictions for child abuse and sexual assault on a child by one in
a position of trust (child sex assault). We affirm.
I. Background
¶ 2 One day in 2018, Snodgress was caring for the victim (his
fifteen-month-old stepdaughter) while his wife was at work. Early
that evening, Snodgress called his wife to report the victim was
“bleeding in her diaper,” and his wife told him to take the victim to
Children’s Hospital. When they arrived at the hospital, the victim
“was screaming” and “bleeding pretty profusely.” Upon
examination, doctors discovered a “gaping laceration” from the
victim’s hymen, through her perineum, and into her rectum.
Pediatric gynecological surgery was required to repair the injury.
¶ 3 When asked what happened, Snodgress reported that he was
changing the victim and that she had a “tar-like” stool after being
constipated. He said that, when he wiped her, he noticed blood on
the victim’s vagina. He later added that he “forcefully” wiped the
victim.
2
¶ 4 Because the victim’s injuries were consistent with “penetrating
trauma” and “without an adequate explanation,” hospital staff
reported the injuries to the Jefferson County Sheriff’s Office.
¶ 5 The prosecution later charged Snodgress with, as relevant
here, (1) child abuse and (2) child sex assault. A jury found
Snodgress guilty of both counts, and the court sentenced him to an
indeterminate prison term of nine years to life.
¶ 6 On appeal, Snodgress contends we must reverse his child sex
assault conviction because (1) the trial court committed reversible
instructional error and (2) insufficient evidence supports the
conviction.
II. Jury Instructions
¶ 7 Snodgress first contends the trial court committed
instructional error by “giving the prosecution’s” instruction on
“sexual abuse” and declining his proposed “sexual abuse”
instruction. We disagree.
A. Child Sex Assault
¶ 8 A person is guilty of child sex assault when he “knowingly
subjects another not his . . . spouse to any sexual contact . . . if the
victim is a child less than eighteen years of age and the actor
3
committing the offense is one in a position of trust with respect to
the victim.” § 18-3-405.3(1), C.R.S. 2021 (emphasis added).
¶ 9 The statute defines “sexual contact” as “[t]he knowing
touching of the victim’s intimate parts by the actor . . . for the
purposes of sexual arousal, gratification, or abuse.” § 18-3-
401(4)(a), C.R.S. 2021. The statute, however, doesn’t define “abuse”
(as it is used within the “sexual contact” definition), so a division of
our court considered the meaning of that term in People v. Lovato,
2014 COA 113, ¶¶ 20, 26.
¶ 10 In Lovato, the defendant physically beat the child-victim and,
as part of that abuse, stomped on the victim’s testicles. For the
latter conduct, the jury found the defendant guilty of child sex
assault. Id. at ¶¶ 7, 10. On appeal, the defendant argued that
insufficient evidence supported his child sex assault conviction
because there was no evidence that he had a sexual motive — i.e.,
that he stomped on the victim’s testicles for sexual arousal or
sexual gratification. Id. at ¶ 19.
¶ 11 The Lovato division rejected the defendant’s argument. In
doing so, it first construed the statutory definition of “sexual
contact,” concluding that “sexual” modifies “abuse” as well as
4
“gratification” and “arousal.” Id. at ¶ 26. Thus, it concluded that
“sexual contact” must be for the purpose of “sexual gratification,”
“sexual arousal,” or “sexual abuse.” Id. at ¶ 27.
¶ 12 The Lovato division then disagreed with the defendant that
“sexual abuse” requires a “sexual motivation.” See id. at ¶ 32
(discerning “no statutory requirement of a ‘sexual motivation’ on the
part of a perpetrator under this definition”). To hold otherwise, in
its view, would render the remaining terms (“sexual arousal” and
“sexual gratification”) redundant. Id. at ¶ 31; see also People v.
White, 224 Cal. Rptr. 467, 476 (1986) (interpreting a similar
California statute and concluding that “sexual abuse” doesn’t
require a sexual motivation or lewdness because then it would be
redundant to “sexual arousal” and “sexual gratification.”), cited with
approval in and adopted by Lovato. Instead, Lovato, ¶ 32, gave
“abuse” its plain meaning — to inflict pain, injury, or discomfort.
And it concluded that “sexual abuse” occurs when the actor
“abuses” (i.e. inflicts pain or injury to) the victim’s intimate parts.
¶ 13 Consistent with the child sex assault statute, the Colorado
model criminal jury instructions include a definitional instruction
5
for “sexual contact.” See COLJI-Crim. F:337 (2020). And in 2017,
comment 3 was added to that instruction, which cites Lovato and
parenthetically recognizes its holding that “sexual abuse” “does not
require a ‘sexual motivation’ on the part of the perpetrator.” COLJI-
Crim. F:337 cmts. 3, 4 (2020).
B. The Proposed Jury Instructions
¶ 14 At the jury instruction conference, neither party objected to
the child sex assault elemental instruction or the instruction
defining “sexual contact.” But, citing Lovato and comment 3 to
model jury instruction F:337, the prosecution tendered an
additional instruction which stated, “[s]exual abuse does not
require a ‘sexual motivation’ on the part of the [a]ctor.”
¶ 15 Snodgress objected to the proposed “sexual abuse”
instruction, arguing that it was misleading because it suggested the
defendant didn’t need to intend “sexual contact” or have any intent,
in contravention of the statute. Snodgress instead proposed
instructing the jury that “[s]exual abuse requires knowingly
subjecting the victim to targeted sexual contact for the purposes of
abuse.”
6
¶ 16 The court ultimately accepted the prosecution’s instruction,
agreeing it was consistent with the model jury instruction
committee’s comment and Lovato.
1
But it declined to give
Snodgress’s proposed instruction because it was “not convinced”
that “there needs to be any language other than that which has
been stated” by the model jury instruction committee.
C. Standard of Review and Legal Principles
¶ 17 A trial court has a duty to correctly instruct the jury on all
review de novo whether the jury instructions adequately informed
the jury of the governing law. McDonald v. People, 2021 CO 64,
¶ 54. And if the jury instructions accurately inform the jury of the
relevant law, a trial court has broad discretion in deciding to give,
or not to give, a particular instruction. See id. A trial court abuses
its discretion only if its instructional ruling is manifestly arbitrary,
unreasonable, or unfair. Id. When determining whether the jury
was properly instructed, we consider the jury instructions as a
whole. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011).
1
The prosecution’s “sexual abuse” instruction became part of
instruction 17.
7
¶ 18 Because judicial opinions and jury instructions serve different
purposes, the use of an excerpt from an opinion in a jury
instruction is “generally an unwise practice.” Evans v. People, 706
P.2d 795, 800 (Colo. 1985). But an instruction excerpted from an
opinion that expands upon, and doesn’t contradict, the other jury
instructions may help explain the applicable law and isn’t
categorically improper. See, e.g., People v. Carter, 2015 COA
24M-2, ¶¶ 42-46; see also Espinosa, ¶¶ 14, 15 (concluding that
portions of a jury instruction that expanded on the definition of
“sexual abuse” based on Lovato didn’t constitute error because the
instruction correctly stated the law); People v. Benton, 829 P.2d
451, 453 (Colo. App. 1991) (holding that a jury instruction
incorporating an excerpt from an appellate opinion on an element of
a crime was appropriate and warranted by the evidence).
D. The Sexual Abuse Instruction
¶ 19 We are unpersuaded that the trial court abused its discretion
by instructing the jury that “sexual abuse” doesn’t require a “sexual
motivation.”
¶ 20 First, the sexual abuse instruction is taken directly from the
model jury instruction comments. See COLJI-Crim. Preface (2020)
8
(noting that the model jury instructions and comments are
approved by the supreme court and are intended as guidelines); see
also Galvan v. People, 2020 CO 82, ¶ 38 (recognizing that the model
instructions have been “approved in principle” to guide the trial
courts). As well, the instruction is directly rooted in Lovato, which
held that “sexual abuse” (as that term is used in the definition of
“sexual contact”) has “no statutory requirement of a ‘sexual
motivation’ on the part of a perpetrator.” Lovato, ¶ 32. Thus, the
jury instruction accurately summarized Lovato and correctly stated
the law. See Espinosa, ¶¶ 12, 14-15 (noting that portions of the
jury instruction defining “sexual abuse” with language “gleaned”
from Lovato “correctly stated the law”).
¶ 21 Second, the instruction neither contradicted nor conflicted
with the court’s other instructions. Compare Carter, ¶ 45 (including
an opinion excerpt in jury instructions didn’t amount to error where
the excerpt didn’t conflict with any other instruction and it
“accurately informed the jury of the applicable law”), with Evans,
706 P.2d at 799-800 (holding that an opinion excerpt shouldn’t
have been included with statutory definition because it directly
contradicted the statutory language). Indeed, when read together
9
with the child sex assault elemental instruction and the definition
of “sexual contact,” the “sexual abuse” instruction did no more than
expand on the definition of “sexual contact” and accurately inform
the jury of the law.
2
¶ 22 Even so, Snodgress contends that the jury was confused about
the “sexual abuse” instruction because it asked the court to explain
the definitional difference between child abuse and sexual assault.
But the jury didn’t express confusion about the definition of “sexual
contact.” And it didn’t seek clarification about the meaning of
“sexual abuse” or “sexual contact.” We therefore can’t infer that the
jury was confused about the “sexual abuse” instruction simply
because it asked a question about the charged crimes.
¶ 23 And to the extent Snodgress contends that the prosecution’s
“sexual abuse” instruction eliminated the mens rea for child sex
assault or lowered the prosecution’s burden of proof, we disagree.
The elemental instruction for child sex assault plainly required the
jury to find that Snodgress “knowingly” subjected the victim to
2
Nor did the court provide the jury with any committee
commentary. Rather, the “sexual abuse” instruction used language
taken from Lovato that the committee cited in comment 3. COLJI-
Crim. F:337 cmt. 3 (2020).
10
“sexual contact.” See § 18-3-405.3(1). And the “sexual contact”
instruction required the jury to find that Snodgress “knowingly”
touched the victim’s intimate parts “for the purpose” of “sexual
abuse.” See § 18-3-401(4). The “sexual abuse” instruction only
added that Snodgress wasn’t required to have a sexual motivation
for the purpose of “sexual abuse” — that is, the abuse didn’t require
sexual arousal or sexual gratification. Nothing in this instruction
eliminated the mens rea requirement or lowered the burden of
proof.
¶ 24 We also disagree that the Lovato division’s interpretation of
“sexual abuse” was unnecessary to the resolution of that case and
therefore was dicta. To the contrary, to resolve the defendant’s
contention that insufficient evidence supported his conviction, the
Lovato division was required to construe the child sex assault
statute and determine whether “sexual abuse” required a “sexual
motivation.” See Espinosa, ¶ 12 (rejecting similar argument that
Lovato’s statutory interpretation was “merely dicta”).
¶ 25 At bottom, Snodgress appears to simply disagree with Lovato
and essentially asks us to import a sexual motivation into the
definition of sexual abuse. But we agree with the Lovato division
11
that doing so would render the two companion terms in the “sexual
contact” definition — “sexual arousal” and “sexual gratification” —
redundant. See Lovato, ¶¶ 31-32. We therefore see no reason to
depart from Lovato.
¶ 26 That leaves us with Espinosa, which was decided after the trial
in this case and after Snodgress filed his opening brief. In Espinosa
— like here — the trial court instructed the jury on “sexual abuse,”
“drawing language from Lovato.” Espinosa, ¶ 7. The Espinosa
division concluded that much of the instruction challenged there
“correctly stated the law” and was not error. Id. at ¶ 15. But the
division took issue with the portion of the instruction stating, “it is
the nature of the act that renders the abuse ‘sexual’ and not the
motivation of the perpetrator.” Id. at ¶¶ 7, 16. The division
concluded that this statement “misconstrued the holding from
Lovato.” Id. at ¶ 17. But the “sexual abuse” instruction here did
not include similar language. And it didn’t tell the jury to disregard
the perpetrator’s motivation. Thus, Espinosa doesn’t lead us to
12
conclude that the trial court’s “sexual abuse” instruction here was
beyond its discretion.”
3
¶ 27 Given all this, we conclude the court acted within its
discretion when it instructed the jury on “sexual abuse.”
E. Snodgress’s Proposed Instruction
¶ 28 Snodgress also tendered an instruction on “sexual abuse.” His
stated, “[s]exual abuse requires knowingly subjecting the victim to
targeted sexual contact for the purposes of abuse.”
¶ 29 The prosecutor objected to Snodgress’s instruction, arguing
that it added a mens rea requirement (“knowingly subjecting”) and
increased the prosecution’s burden of proof. The trial court rejected
the tendered instruction.
¶ 30 We perceive no abuse of discretion. Snodgress’s proposed
instruction paraphrased the Lovato division’s conclusion that the
3
We recognize that People v. Espinosa went on to apparently
require the perpetrator to have some sort of sexual motivation.
2020 COA 63, ¶ 21 (“[T]he perpetrator must act for the purpose of
causing sexual humiliation, sexual degradation, or other physical or
emotional discomfort of a sexual nature.”). But Espinosa doesn’t
offer any analysis or authority for doing so and doesn’t meaningfully
distinguish Lovato. At any rate, to the extent Espinosa departed
from Lovato, we can’t conclude the trial court abused its discretion
by not anticipating that departure.
13
evidence in that case was sufficient to support the defendant’s
conviction. It wasn’t based directly on the Lovato division’s
statutory interpretation.
¶ 31 And in any event, Snodgress’s proposed instruction was
confusing. It included an additional mens rea requirement —
“knowingly subjecting the victim to . . . contact.” (Emphasis added.)
And it included within its definition the words it intended to define
(like “sexual contact” and “abuse”).
¶ 32 We therefore conclude that rejecting the instruction was not
manifestly arbitrary, unreasonable, or unfair.
III. Sufficiency of the Evidence
¶ 33 Snodgress also contends that insufficient evidence supports
his child sex assault conviction. We disagree.
A. Standard of Review
¶ 34 We review sufficiency of the evidence claims de novo. People v.
Donald, 2020 CO 24, ¶ 18. In doing so, we must determine whether
the evidence, when viewed in the light most favorable to the
prosecution, is sufficient to support a conclusion by a rational jury
that the defendant is guilty beyond a reasonable doubt. Dempsey v.
People, 117 P.3d 800, 807 (Colo. 2005); People v. Market, 2020 COA
14
90, ¶ 47. We give the prosecution the benefit of every reasonable
inference that might fairly be drawn from the evidence. Market,
¶ 47.
¶ 35 If there is evidence upon which the jury may reasonably infer
an element of the crime, sufficient evidence supports that element.
People v. Grant, 174 P.3d 798, 812 (Colo. App. 2007). It is for the
jury — not us — to determine witness credibility and what weight, if
any, to give evidence. See People v. Plancarte, 232 P.3d 186, 192
(Colo. App. 2009). So it doesn’t matter that we might have reached
a different conclusion had we sat on the jury. Clark v. People, 232
P.3d 1287, 1291 (Colo. 2010); see also People v. Arzabala, 2012
COA 99, ¶ 13 (stating that an appellate court may not act as a
thirteenth juror and set aside a verdict because it might have drawn
different conclusions from the evidence).
B. Discussion
¶ 36 As explained, the prosecution had to prove that Snodgress
touched the victim’s intimate parts “for the purposes of sexual . . .
abuse.”
4
§§ 18-3-401(4)(a), 18-3-405.3(1). Snodgress contends that
4
The prosecution didn’t argue at trial that the “sexual contact” was
for either “sexual arousal or gratification.”
15
the prosecution didn’t do this because it presented no evidence that
he “specifically targeted the victim’s intimate parts for the purpose
of causing harm or pain.”
¶ 37 Viewing the evidence in the light most favorable to the
prosecution — as we must — we conclude that the prosecution
presented sufficient and substantial evidence from which the jury
could infer that Snodgress touched the victim’s intimate parts for
the purpose of causing harm or pain (in other words “for the
purposes of sexual abuse”).
¶ 38 To start, the jury heard evidence that the victim’s intimate
part (her vagina) was bleeding profusely and she was in pain.
Indeed, the victim’s mother testified that, when they arrived at the
hospital, the victim was “screaming” and “crying like she was in
pain.” And an examining doctor testified that the victim was “quite
uncomfortable” and “crying.”
¶ 39 The jury also heard substantial medical expert testimony
about the severity of the victim’s vaginal injury and what could have
caused it.
¶ 40 Dr. Jill Keyes, a pediatric emergency room physician who
performed the initial examination of the victim, testified that the
16
victim’s vaginal tear appeared to be a “non-accidental trauma.” Dr.
Keyes said the injury did not fit the story reported by Snodgress
because the laceration was so severe and the victim’s anus was
completely intact with no trauma to it — instead, the injury was
concentrated in the vagina to the perineum. Dr. Keyes testified that
she was therefore concerned the injury was a “penetrating injury” to
the vagina.
¶ 41 Dr. Antonia Chiesa, a member of the Child Protection Team at
the hospital, also testified. Based on her expertise in child abuse
pediatrics, Dr. Chiesa opined that the victim’s injury wasn’t the type
of injury that happens “with routine daily handling” or with
“normal, prudent wiping, or even aggressive wiping that gets a little
too rough.” Instead, Dr. Chiesa testified the victim’s injury was “the
type of injury [doctors] see when children have penetrating genital
trauma from either severe accidents, sexual assault, or physical
abuse.” However, the hospital social worker and investigating
officers testified that the family didn’t report any accident or any
other possible source of the injury beyond the “tar like” stool and
forceful wiping.
17
¶ 42 Dr. Timothy Givens, an expert in pediatric medicine who also
examined the victim, testified that he diagnosed the victim with “a
laceration to her perineum and the vaginal area.” And he testified
that, although he had frequently treated children “for issues related
to bowel movement[s],” he had never seen an injury like the victim’s
result from a hard bowel movement.
¶ 43 And Dr. Veronica Alaniz, an expert in pediatric gynecology and
the doctor who surgically repaired the victim’s vaginal injury,
testified that the victim’s injury was consistent with “penetrating
genital trauma” — an injury caused by something from the outside
penetrating the vagina beyond the hymen. She also stated that,
based on her experience and expertise, the injury was “not
consistent with a bowel movement” or an accident. And she
explained the severity of the injury; she stated that the laceration
went to the level of the anal sphincter (the muscle complex that
controls fecal continence).
¶ 44 Finally, the jury saw photos showing the severity of the
victim’s vaginal injury and could draw its own reasonable inferences
— based on the evidence — about whether a bowel movement and
18
wiping caused the depicted injury or whether Snodgress targeted
the victim’s intimate parts for the purpose of causing harm or pain.
¶ 45 This is so even though no one testified that Snodgress touched
the victim’s vagina for the purpose of causing harm or pain because
“[i]ntent can rarely be proven other than through circumstantial or
indirect evidence.” People v. Sena, 2016 COA 161, ¶ 16. And
although Snodgress provided an alternate explanation — that the
injury had “an unexplained, accidental cause” — it was for the jury
to determine witness credibility, weigh the evidence, and resolve
any evidentiary disputes. People v. Poe, 2012 COA 166, ¶ 14.
¶ 46 We therefore conclude that, based on the evidence presented,
a reasonable juror could infer that Snodgress knowingly touched
the victim’s vagina for the purpose of sexual abuse, i.e., to cause
her harm or pain (and that he did, in fact, cause both). Sufficient
evidence therefore supports the child sex assault conviction.
IV. Conclusion
¶ 47 We affirm the judgment of conviction.
JUDGE DAILEY and JUDGE KUHN concur.