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People v. Abdulla

2020 COA 109. No. 17CA0343. Criminal Law—Sexual Assault—Unlawful Sexual Contact—Third Degree Assault—Jury Instructions—Lesser Included Offense—Unanimity—Hearsay.

July 23, 2020

L.C. reported to police that defendant, her husband, had beaten and raped her the previous night. Among other things, L.C. testified that defendant beat her with a belt. The People charged defendant with one count of sexual assault and one count of third degree assault. At the prosecutor’s request, and over defendant’s objection, the trial court instructed the jury on unlawful sexual contact as a lesser included offense of sexual assault. The jury acquitted defendant of sexual assault but convicted him of unlawful sexual contact and third degree assault.

On appeal, defendant argued that the trial court erred by granting the prosecution’s request to instruct the jury on the lesser included offense of unlawful sexual contact because there was no rational basis for that charge to have been submitted to the jury. A defendant may be convicted of a lesser offense that is included in the offense charged, and a trial court must charge the jury about such 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.” It is undisputed that unlawful sexual contact is a lesser included offense of sexual assault. A person commits unlawful sexual contact if he or she knowingly subjects the other person to any sexual contact, knowing that the other person does not consent. 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 the unlawful sexual contact statute. Here, because record evidence supports the conclusion that defendant whipped L.C. with a belt on her buttocks for the purpose of sexual arousal, gratification, or abuse, the trial court did not err by instructing the jury on unlawful sexual contact as a lesser included offense of sexual assault.

Defendant also argued that even if there was a rational basis for the trial court’s instruction on the lesser included offense, reversal is required because the trial court failed to ensure juror unanimity as to the underlying act of unlawful sexual contact. However, the trial court gave a unanimity instruction that was agreed upon by the prosecution and the defense, albeit one that specifically referenced sexual assault, and 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. Therefore, the unanimity instruction logically encompassed the lesser included offense, and there was no plain error in the jury instructions.

Defendant further argued that the trial court erred by admitting various hearsay statements from a detective, her sister, and the sexual assault nurse examiner. However, even if the court abused its discretion in admitting these statements, any error was harmless because they did not substantially influence the verdict or affect the fairness of the trial proceedings.

The judgment of conviction was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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