People v. Dunton

881 P.2d 390, 1994 WL 57815
CourtColorado Court of Appeals
DecidedOctober 11, 1994
Docket92CA0210
StatusPublished
Cited by4 cases

This text of 881 P.2d 390 (People v. Dunton) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Dunton, 881 P.2d 390, 1994 WL 57815 (Colo. Ct. App. 1994).

Opinions

Opinion by

Judge RULAND.

Defendant, Willie Dunton, appeals from a judgment of conviction entered upon a jury verdict finding him guilty of first degree sexual assault. We affirm.

If the evidence is viewed in a light most favorable to the jury’s verdict, the record reflects that the victim, 15 years of age, met defendant at a swimming pool in an apartment complex. The following day, the victim was again at the swimming pool with a 5-year-old cousin. The cousin ran away from the pool and toward the apartments.

The victim walked by defendant’s apartment in search of her cousin and encountered defendant in the apartment doorway. Defendant grabbed the victim and pulled her into the apartment and locked the door. The victim unlocked the door and opened it, but defendant again closed and locked the door.

Defendant then pushed the victim down on the couch and, with one of his hands, forcefully held the victim’s hands above her head. The victim was crying and indicated to defendant that she did not consent to his conduct. However, he proceeded to have sexual intercourse with her. Other than verbally indicating non-consent, the victim did not resist.

Following the assault, the victim returned to her aunt’s apartment and ultimately reported the incident.

At the time of his arrest, defendant stated to the investigating officers that the victim had indicated “no” prior to the assault but that her body language indicated that she did wish to have intercourse with him.

With reference to the elements of the crime of first degree sexual assault, and consistent with § 18-3^102(1), C.R.S. (1986 Repl.Vol. 8B), the jury was instructed:

(1) That the Defendant ... (3) knowingly, (4) inflicted sexual penetration on a person, and (5) caused submission of that person, (6) through the actual application of physical force or physical violence....

Relative to the term “knowingly,” the jury was further instructed:

A crime is committed when the defendant has committed a voluntary act prohibited by law accompanied by a culpable mental state. Voluntary act means an act performed consciously as a result of effort or determination. Culpable mental state means ‘knowingly, as explained in this instruction. Proof of the commission of the act alone is not sufficient to prove that the defendant had the required culpable mental state. The culpable mental state is as much an element of the crime as the act itself and must be proven beyond a reasonable doubt, either by direct or circumstantial evidence.
A person acts ‘knowingly’ with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or [392]*392that such circumstance exists. A person acts ‘knowingly’ with respect to a result of his conduct when he is aware that his conduct is practically certain to cause the result.

I.

Relying upon Chambers v. People, 682 P.2d 1173 (Colo.1984), defendant contends that the trial court erred in ruling prior to closing argument that the prosecution was not required to prove that defendant was aware of the victim’s non-consent. Defendant further asserts that the error was compounded by the court’s additional ruling that defense counsel could not argue to the jury that defendant was unaware that the victim had not consented.

Relying upon People v. Smith, 638 P.2d 1 (Colo.1981) and People v. Shields, 822 P.2d 15 (Colo.1991), however, the prosecution responds that the trial court’s ruling was correct. We agree with the prosecution.

In addressing the constitutionality of the second degree sexual assault statute in Smith, our supreme court stated:

As with first-degree sexual assault, the core conduct prohibited by the second-degree sexual assault statute is knowing sexual penetration on a non-consenting victim. The first-degree sexual assault statute prohibits conduct which by its very nature negates the existence of the victim’s consent. In order to constitute first-degree sexual assault, a victim’s submission to sexual penetration must be caused by a defendant’s use of ‘physical forcef].... The victim’s submission under such circumstances hardly can be deemed consensual.

People v. Smith, supra, 638 P.2d at 4 (emphasis supplied).

Again, in footnote 7 of the opinion, the court noted:

Although, as with the crime of first-degree sexual assault, the actor need not know that the victim in fact submits nonconsen-sually ... the actor must be aware that his or her conduct is sufficient in character and degree to be likely to cause noncon-sensual submission.

On the other hand, in Chambers, in addressing the sufficiency of an incomplete instruction defining “knowingly” for purposes of defendant’s conviction of first degree sexual assault, the court observed:

The offense of first degree sexual assault requires that the actor have an awareness of his conduct and of the circumstance of the nonconsent of his victim....
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However, the technical deficiency resulting from failure to advise the jury specifically that the actor must be aware of the victim’s nonconsent did not affect the defendant’s substantial rights. The incomplete instruction merely directed the jury’s attention to the resulting nonconsensual submission of the victim to sexual penetration rather than to the separate circumstance of nonconsent.

Chambers v. People, supra, 682 P.2d at 1178-79.

Viewed in isolation, the opinions in Smith and Chambers appear to be in conflict. In reconciling that conflict, we look first to People v. Derrera, 667 P.2d 1363 (Colo.1983) which was quoted with approval in Chambers.

There, the supreme court addressed the term “knowingly” as that term was then defined in the Colorado Criminal Code. See Colo.Sess.Laws 1971, ch. 121, § 40-1-601(7). In the course of its discussion, the court held that there were three components to the concept of “knowingly,” namely, conduct, circumstance, and result. With reference to the crime of second degree sexual assault, the court stated:

Similarly, a second-degree sexual assault involves all three components of ‘knowingly: conduct (the physical act of causing submission), circumstance (using means of sufficient consequence reasonably calculated to cause submission), and result (sexual penetration or intrusion).

People v. Derrera, supra, 667 P.2d at 1368.

Later in People v. Shields, supra, the court approved the type of elements instruction given in this ease which did not include proof [393]*393by the prosecution of defendant’s awareness of the victim’s non-consent.

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Related

People v. Dunlap
124 P.3d 780 (Colorado Court of Appeals, 2004)
People v. Rivera
968 P.2d 1061 (Colorado Court of Appeals, 1998)
Dunton v. People
898 P.2d 571 (Supreme Court of Colorado, 1995)
People v. Dunton
881 P.2d 390 (Colorado Court of Appeals, 1994)

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Bluebook (online)
881 P.2d 390, 1994 WL 57815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dunton-coloctapp-1994.