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
April 9, 2020
2020COA63
No. 16CA1109, People v. Espinosa — Criminal Law — Jury
Instructions; Crimes — Unlawful Sexual Behavior — Sexual
Assault on a Child by One in a Position of Trust — Definitions
— Sexual Contact
A division of the court of appeals addresses, for the first time
in a jury instruction context, the definition of sexual abuse as that
term is used in the statutory definition of unlawful sexual contact
in section 18-3-401(4)(a), C.R.S. 2019. Because the division
concludes that the trial court’s definition was potentially
misleading, it reverses the defendant’s conviction and remands for a
new trial.
COLORADO COURT OF APPEALS 2020COA63
Court of Appeals No. 16CA1109
El Paso County District Court No. 14CR5536
Honorable Richard V. Hall, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Alberto Gil Espinosa,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE TOW
Terry and Yun, JJ., concur
Announced April 9, 2020
Philip J. Weiser, Attorney General, Rebecca A. Adams, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Dayna Vise, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Alberto Gil Espinosa, appeals his judgment of
conviction entered on a jury verdict finding him guilty of sexual
assault on a child by one in a position of trust. For the first time in
the context of jury instructions, we address the definition of “sexual
abuse” as that term is used to define “sexual contact.” § 18-3-
401(4)(a), C.R.S. 2019. Because the trial court incorrectly
instructed the jury that defendant’s motivation was not relevant in
determining whether an act constituted sexual abuse, we reverse
and remand for a new trial.
I. Background
¶2 Espinosa was charged with having sexual contact with his
then-fifteen-year-old daughter, A.E. According to the prosecution’s
evidence, A.E. spent the night at Espinosa’s apartment in October
2014. Early the next morning, Espinosa attempted to wake A.E.,
first by stroking her hair, and then by kissing her cheek, forehead,
and lips. A.E. turned over to avoid Espinosa, pretending to be
asleep. Espinosa then nudged A.E.’s shoulder, apparently to see if
she was awake. When A.E. did not respond, Espinosa reached his
hands under A.E.’s blanket and felt her breasts. A.E. opened her
eyes, at which point Espinosa removed his hands and asked her if
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she wanted to go to work with him as they had planned. A.E. told
him no, and Espinosa left. A.E. vomited and began crying, then
called her mother to pick her up. A.E. was still crying when her
mother arrived.
¶3 At the suggestion of the police, A.E. later called her father to
try to get him to confess to the assault. Espinosa maintained that
he had simply been trying to wake her up, but he also indicated
that he was curious and concerned about her development, as
A.E.’s mother had required a breast reduction surgery.
¶4 In December 2014, Espinosa was arrested and charged with
sexual assault on a child by one in a position of trust. Following a
jury trial, Espinosa was convicted as charged. The trial court
sentenced Espinosa to a term of ten years to life on sex offender
intensive supervised probation.
II. The Trial Court Erroneously Instructed the Jury
¶5 Espinosa argues that the trial court erred by improperly
instructing the jury as to the definition of “sexual abuse.” We
agree.
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A. Additional Facts
¶6 To convict Espinosa, the prosecution had to prove that he
knowingly subjected A.E. to “sexual contact.” § 18-3-405.3(1),
C.R.S. 2019. As relevant here, “sexual contact” is defined as “[t]he
knowing touching of the victim’s intimate parts by the actor . . . or
the knowing touching of the clothing covering the immediate area of
the victim’s . . . intimate parts if that sexual contact is for the
purposes of sexual arousal, gratification, or abuse.” § 18-3-
401(4)(a).
¶7 During deliberations, the jury asked the trial court to provide
the legal definition of “abuse” in the context of the term “sexual
contact.” The court agreed, at defense counsel’s request, to instruct
the jury that the word “sexual” modifies the word “abuse,”
consistent with People v. Lovato, 2014 COA 113. The parties and
the court then discussed at length how to define “sexual abuse” for
the jury. While the trial court asserted that Lovato provided the
applicable definition, defense counsel was wary of the particular
language in Lovato on which the trial court was relying. Defense
counsel objected that, contrary to the trial court’s conclusion,
Lovato did not define “abuse” as encompassing emotional as well as
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physical abuse, and it did not determine that the actor’s motivation
was irrelevant in determining whether abuse is sexual or not.
Ultimately, drawing language from Lovato, the court answered the
jury’s question by providing the following written instruction
defining “sexual abuse”:
First, the word “sexual” modifies the term
“abuse.”
Second, sexual abuse involves behavior done
with an intent to cause pain, injury, or
discomfort of a serious nature to a victim’s
“intimate parts.” The pain, injury, or
discomfort can be either of a physical or an
emotional nature. The term “abuse” imports
an intent to injure or hurt badly, not lewdness.
It is the nature of the act that renders the
abuse “sexual” and not the motivation of the
perpetrator.
B. Standard of Review and Applicable Law
¶8 The trial court has a duty to correctly instruct the jury on all
matters of law. People v. Bryant, 2018 COA 53, ¶ 83. And “[i]f a
jury inquires about the meaning of a particular instruction, the
court should provide a supplemental instruction sufficient to clarify
the jury’s uncertainty.” People v. Wilford, 111 P.3d 512, 517 (Colo.
App. 2004). When it does so, we review the court’s decision to give
that instruction for an abuse of discretion. People v. McClelland,
4
2015 COA 1, ¶ 14. A court abuses its discretion when its decision
is manifestly arbitrary, unreasonable, unfair, or contrary to law.
People v. Tibbels, 2019 COA 175, ¶ 31. In the context of
instructional error, a court abuses its discretion where an
instruction is legally inaccurate or if it misleads or confuses the
jury. Id.; People v. Gwinn, 2018 COA 130, ¶ 31 (“A court abuses its
discretion if it bases its ruling on an erroneous view of the
law . . . .”); Bryant, ¶ 87. We review de novo whether a jury
instruction accurately reflects the law. Tibbels, ¶ 31.
¶9 “[W]hen a trial court misinstructs the jury on an element of an
offense, either by omitting or misdescribing that element, that error
is subject to constitutional harmless or plain error analysis . . . .”
Griego v. People, 19 P.3d 1, 8 (Colo. 2001). “A constitutional error is
harmless when the reviewing court is confident beyond a
reasonable doubt that the error did not contribute to the verdict
obtained.” Id. at 8-9 (citing Neder v. United States, 527 U.S. 1, 15
(1999)).
C. The Instruction Correctly Defined “Abuse”
¶ 10 Espinosa argues generally that the trial court should not have
taken language from Lovato, as “statements taken from opinions do
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not necessarily translate with clarity into jury instructions.” Evans
v. People, 706 P.2d 795, 800 (Colo. 1985). However, Espinosa does
not challenge the first or third sentences of the instruction’s
definition of “sexual abuse.” The first sentence, defining “abuse” as
“pain, injury, or discomfort of a serious nature,” was closely
modeled after Lovato. See Lovato, ¶ 32. But because Espinosa
does not challenge this phrasing, we will not address it.
¶ 11 Instead, Espinosa challenges the second and fourth sentences.
Espinosa first contends that the trial court erred by instructing the
jury that “[t]he pain, injury, or discomfort can be either of a
physical or an emotional nature.” We disagree.
¶ 12 As with the other aspects of this instruction, the trial court
gleaned this language from Lovato, which had reasoned that the
sexual assault on a child (SAOC) statute is intended to protect
children from “both the emotional and sometimes physical harm
that comes from abuse to the child’s intimate parts . . . .” Lovato,
¶ 37 (distinguishing the SAOC statute from the child abuse statute,
“which protects children from direct physical injury and
endangerment to life or health”). Espinosa maintains that the trial
6
court should not have relied on Lovato, arguing that the Lovato
division’s discussion regarding emotional harm was merely dicta.
¶ 13 We note that the Lovato division’s definition of “abuse” as
meaning “pain, injury, or discomfort” is largely consistent with the
term’s generally accepted meaning in this context. Lovato, ¶¶ 32-
33; see People v. Padilla-Lopez, 2012 COA 49, ¶ 7 (When
interpreting statutes, “[w]e accord words and phrases their plain
and ordinary meaning.”). In the legal context, “abuse” is defined as
(1) “[a] departure from legal or reasonable use; misuse” and (2)
“[c]ruel or violent treatment of someone; specif[ically], physical or
mental maltreatment, often resulting in mental, emotional, sexual,
or physical injury.” Black’s Law Dictionary 12 (11th ed. 2019). In
addition, whether dicta or not, the Lovato division’s reference to
emotional harm was also consistent with this ordinary meaning.
Here, the trial court defined “sexual abuse” in similar terms,
encompassing both physical and emotional pain, injury, or
significant discomfort.
¶ 14 Espinosa argues that abuse only includes physical pain. But
this argument ignores the potentially devastating impact of
emotional maltreatment. Indeed, by its very nature, sexual abuse is
7
more likely to cause emotional harm than physical pain. See
Lovato, ¶ 37 (discussing “the legislature’s intent to protect
children . . . from both the emotional and sometimes physical harm
that comes from abuse to the child’s intimate parts”). For example,
consider a scenario in which a perpetrator touches the victim’s
intimate parts (or makes the victim touch the perpetrator’s intimate
parts), not for the purpose of causing physical injury, but rather to
control, degrade, or otherwise mistreat the victim in a sexual way.
Such conduct would not fall within Espinosa’s definition of “abuse.”
But nothing in the statute suggests the legislature intended such a
narrow view, rather than the commonly held meaning reflected in
the general use of the term.
¶ 15 Thus, while we agree with Espinosa that crafting jury
instruction language by quoting from case law is “generally an
unwise practice,” Evans, 706 P.2d at 800,1 we conclude that the
trial court’s instruction that pain, injury, or significant discomfort
can be either of a physical or emotional nature correctly stated the
1 This practice is particularly risky when the language from which
the jury instruction is crafted does not come from a case involving a
jury instruction issue.
8
law. Accordingly, we perceive no error in this part of the
instruction. See Bryant, ¶ 100.
D. The Instruction Regarding the Import of the Perpetrator’s
Motivation Was Misleading
¶ 16 Espinosa also takes issue with the last sentence of the jury
instruction, contending that the trial court erred by instructing the
jury that “[i]t is the nature of the act that renders the abuse ‘sexual’
and not the motivation of the perpetrator.” We agree with Espinosa.
¶ 17 The trial court again looked to Lovato when crafting this part
of the instruction. Specifically, the trial court relied on the Lovato
division’s holding that “sexual abuse,” as the term is used to define
“sexual contact,” requires no “‘sexual motivation’ on the part of a
perpetrator.” Lovato, ¶ 32. Following Lovato’s lead, the trial court
instructed the jury that, essentially, the perpetrator’s motivation is
irrelevant in determining whether an act constitutes sexual abuse;
rather, the trial court said, the sole consideration is the nature of
the act itself. But, in our view, the trial court misconstrued the
holding from Lovato.
¶ 18 True, the Lovato division specifically stated that sexual abuse
does not require a “sexual motivation.” Id. However, to the extent
9
Lovato discussed the kind of motivation necessary to find “sexual
abuse,” we do not read Lovato to stand for the proposition that the
motivation of the perpetrator is irrelevant. Rather, Lovato
specifically explained that the perpetrator’s motivation need not
involve “sexual passion, lust, or lascivious intent.” Id. at ¶ 31
(citing People v. White, 224 Cal. Rptr. 467, 476 (Ct. App. 1986)). To
require otherwise would make sexual “abuse” redundant, as it
would encompass nothing more than what is already covered by
sexual arousal and sexual gratification.
¶ 19 In our view, the trial court read the Lovato language too
broadly –– so broadly, in fact, that the term would encompass
actions that are clearly not within the intended scope of the statute.
Take, for example, parents who spank their children. Because
spanking at least arguably involves the intent to cause pain, injury,
or discomfort to the child’s buttocks (which are included in the
definition of intimate parts, § 18-3-401(2)), the act may be
considered “sexual abuse” as the trial court defined it here, and
that parent could potentially face charges under the SAOC statute.
But as the Lovato division stated, “[i]t would be incongruous to say
10
that [‘sexual contact’] could occur without having a ‘sexual
element.’” Lovato, ¶ 25.
¶ 20 Instead, we read the division’s decision in Lovato simply to
acknowledge that the sexual nature of the act may be viewed from
the victim’s perspective rather than the perpetrator’s. In other
words, if the nature of the act is likely to be perceived by the victim
as mistreatment of a sexual nature (such as an improper touching),
and that mistreatment is such that the victim is likely to experience
physical or emotional pain or discomfort, the act can be sexual
abuse.
¶ 21 That being said, the perpetrator’s motivation is still relevant to
the determination. While the perpetrator need not be motivated by
passion, lust, lasciviousness, or lewdness (motivations that are
perhaps more indicative of sexual arousal or sexual gratification),
the perpetrator does need to have a motivation to cause the victim
such pain or discomfort as specifically derives from the sexual
nature of the act.2 In other words, the perpetrator must act for the
2To the extent the division in Lovato held otherwise, we respectfully
disagree and decline to follow that decision. See People v. Smoots,
2013 COA 152, ¶ 20 (“We are not obligated to follow the precedent
11
purpose of causing sexual humiliation, sexual degradation, or other
physical or emotional discomfort of a sexual nature. To read the
statute otherwise would be to disregard the requirement that the
perpetrator act “for the purpose[] of sexual . . . abuse.” § 18-3-
401(4)(a) (emphasis added); see also People v. Moore, 2013 COA 86,
¶ 11 (noting that appellate courts “do not presume that the
legislature used language idly” (citing People v. J.J.H., 17 P.3d 159,
162 (Colo. 2001))). Thus, the perpetrator’s purpose is not irrelevant
to the determination of whether the abuse was sexual.
¶ 22 For the above reasons, we conclude that the trial court’s
instruction exceeded the holding in Lovato. But more importantly,
the inclusion of this instruction potentially misled the jury. By
instructing that Espinosa’s motivation was irrelevant to determining
whether the abuse was sexual, the trial court ignored the distinct
danger that the jury would overlook the remaining part of the
“sexual contact” definition. In particular, the trial court informed
the jury that it must find that Espinosa acted with a particular
purpose (i.e., sexual arousal, gratification, or abuse), but that the
established by another division, even though we give such decisions
considerable deference.”).
12
perpetrator need not have been motivated by a sexual purpose.
Read together, these instructions may have confused the jury as to
whether Espinosa’s motivation — or purpose — was relevant at all.
¶ 23 The trial court thus incorrectly instructed the jury, and
consequently, it abused its discretion. Tibbels, ¶ 31; Gwinn, ¶ 31
(“A court abuses its discretion if it bases its ruling on an erroneous
view of the law . . . .”). Because the trial court misinstructed the
jury on an element of the offense that Espinosa was charged with —
namely, the definition of “sexual contact” — the trial court’s error is
subject to a constitutional harmless error analysis. Griego, 19 P.3d
at 8.
¶ 24 The jury could have convicted Espinosa if it found that he
acted for any of three improper purposes: sexual arousal, sexual
gratification, or sexual abuse. §§ 18-3-401(4)(a), -405.3(1). That
the jury specifically requested the trial court clarify what the term
“sexual abuse” meant suggests that the jury was not necessarily
convinced that Espinosa acted for the alternative purposes of
sexual arousal or sexual gratification. Accordingly, whether
Espinosa acted for the purpose of “sexual abuse” may have been
13
crucial to the jury’s decision, and thus a proper instruction on the
phrase was of particular importance.3
¶ 25 Moreover, the defense largely rested on the theory that
Espinosa had what he asserted was a relatively innocent motivation
for grabbing his daughter’s breasts; by instructing that Espinosa’s
motivation was irrelevant to find the abuse to be sexual, the trial
court all but stripped Espinosa’s theory of any effect. Under these
circumstances, we cannot say that we are confident beyond a
reasonable doubt that the trial court’s misleading instruction did
not contribute to Espinosa’s guilty verdict. Therefore, we reverse
the judgment of conviction and remand for a new trial. Griego, 19
P.3d at 8-9.
E. The Jury Instruction on Remand
¶ 26 Having concluded that the instruction given was erroneous,
we nevertheless decline to provide specific language that should be
used, recognizing that our silence will likely be frustrating to the
3We do not suggest that a definition of “sexual abuse” must always
be provided to the jury. Nor do we suggest that it was error to
provide some additional guidance to the jury once it requested a
definition. We merely hold that the additional instruction provided
here was erroneous because it potentially misled the jury.
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trial court, the parties, and even future litigants. There are several
reasons for our reticence. First, we cannot know whether, upon
retrial, any instruction of sexual abuse will be needed. For
example, the jury may not ask for any clarification about the
definition. Second, the question before us was whether the
instruction given was erroneous; not what specific instruction
should have been given. Indeed, we take to heart the language from
the Colorado Supreme Court’s Model Criminal Jury Instructions
Committee (the Committee) that “courts should be cautious when
drafting definitional instructions based on extra-statutory sources.”
COLJI-Crim. ch. A, term definitions (2019). And third, we recognize
that, should we set forth with specificity an instruction to be given,
that instruction would essentially become the instruction to be
given in the future. Yet, there is not necessarily only one
instruction that would accurately state the law in this area. And
this body is not charged with crafting model jury instructions or
selecting which of several options would be the best instruction.
That is the Committee’s function.
15
¶ 27 For these reasons, we decline to craft a specific instruction
that should be used on remand should any such instruction
become necessary.
III. Espinosa’s Remaining Contentions
¶ 28 In light of our disposition of the jury instruction issue, and
because we cannot say if, how, or in what context Espinosa’s
remaining issues will arise on retrial, we decline to address them.
IV. Conclusion
¶ 29 The judgment is reversed and the case remanded for a new
trial.
JUDGE TERRY and JUDGE YUN concur.
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