     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


                                    1
 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.




                                    2
                          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


                                     3
 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


                                      5
  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.


                                    14
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.




                                        16
