              Opinions of the Colorado Supreme Court are available to the
         public and can be accessed through the Judicial Branch’s homepage at
           http://www.courts.state.co.us. Opinions are also posted on the
           Colorado Bar Association’s homepage at http://www.cobar.org.


                                                          ADVANCE SHEET HEADNOTE
                                                                        June 24, 2019

                                        2019 CO 64

No. 17SC147, Garcia v. People—Plain Error—Statutory Interpretation—Sentence
Enhancers.

       In this case, the supreme court considers an alleged instructional error where the

jury instruction at issue tracked the language of the model jury instruction that existed at

the time of trial. The supreme court holds that simply following model jury instructions

doesn’t avoid plain error.     However, the supreme court concludes that any error

regarding the instruction at issue here doesn’t require reversal because the defendant

failed to show that any error so undermined the fundamental fairness of the trial itself as

to cast serious doubt on the reliability of the defendant’s convictions.

       The supreme court also holds that the force sentence enhancer in section

18-3-402(4)(a), C.R.S. (2018), that elevates sexual assault from a class 4 felony to a class 3

felony, doesn’t require proof of a mens rea.
                    The Supreme Court of the State of Colorado
                    2 East 14th Avenue • Denver, Colorado 80203

                                      2019 CO 64

                         Supreme Court Case No. 17SC147
                       Certiorari to the Colorado Court of Appeals
                        Court of Appeals Case No. 13CA2117

                                      Petitioner:

                                 Juvenal Onel Garcia,

                                           v.

                                     Respondent:

                         The People of the State of Colorado.

                                 Judgment Affirmed
                                       en banc
                                    June 24, 2019


Attorneys for Petitioner:
Megan A. Ring, Public Defender
Ned R. Jaeckle, Deputy Public Defender
      Denver, Colorado

Attorneys for Respondent:
Philip J. Weiser, Attorney General
William G. Kozeliski, Assistant Attorney General
       Denver, Colorado




JUSTICE HOOD delivered the Opinion of the Court.
¶1     A restraining order prohibited defendant Juvenal Onel Garcia from contacting

C.G. Almost two years after the issuance of the restraining order, Garcia allegedly

attempted to sexually assault C.G. Based on events related to that criminal episode, a

jury convicted Garcia of first degree burglary, attempted sexual assault, unlawful sexual

contact, third degree assault, violation of a protection order, and obstruction of telephone

service.

¶2     Garcia appealed, raising two unpreserved claims: (1) the trial court improperly

instructed the jury regarding the sexual assault charge; and (2) the trial court improperly

instructed the jury regarding the force sentence enhancer related to his attempted sexual

assault conviction.

¶3     Because the alleged errors weren’t preserved at trial, they are subject to plain error

review. See Tumentsereg v. People, 247 P.3d 1015, 1019 (Colo. 2011). This means that

Garcia’s convictions won’t be overturned unless at least one error was “both obvious and

substantial.” See People v. Miller, 113 P.3d 743, 750 (Colo. 2005). To constitute a basis for

reversal, any such error must have “so undermined the fundamental fairness of the trial

itself as to cast serious doubt on the reliability of the judgment of conviction.” Hagos v.

People, 2012 CO 63, ¶ 18, 288 P.3d 116, 121 (quoting Wilson v. People, 743 P.2d 415, 420

(Colo. 1987)).

¶4     A division of the court of appeals affirmed Garcia’s convictions. First, it concluded

that any error regarding the sexual assault instruction wasn’t obvious because the

instruction matched “the Model Jury Instructions that existed at th[e] time” of trial. People

v. Garcia, 2017 COA 1, ¶ 10, __ P.3d __. Next, the division concluded that because a

                                             2
published court of appeals opinion refuted Garcia’s contention regarding the sentence

enhancer, any instructional error wasn’t obvious, and thus wasn’t plain. Id. at ¶ 26.

¶5     Having agreed to review the judgment of the division, we consider: (1) whether

the division incorrectly held that an instructional error is not plain if it tracks the model

jury instruction existing at the time of trial; (2) whether plain error should be assessed at

the time of trial or the time of direct appeal; and (3) whether the sentence enhancer

requires proof of the mens rea “knowingly.”

¶6     We conclude that the division erred in holding that simply following the model

instructions avoids plain error. But, for different reasons, we agree that any error

regarding the sexual assault instruction doesn’t require reversal. We do so because

Garcia failed to show that any error so undermined the fundamental fairness of the trial

itself as to cast serious doubt on the reliability of Garcia’s convictions. Because we resolve

this issue based on lack of prejudice, we need not reach the question of whether the

obviousness of an error should be assessed at the time of trial or the time of direct appeal.

We also conclude that the force sentence enhancer doesn’t include a mens rea

requirement, and, therefore, there was no error with respect to that instruction.

¶7     Accordingly, we affirm the judgment of the court of appeals.

                            I. Facts and Procedural History

¶8     Garcia and C.G. met in middle school, married when C.G. turned 18, and have two

children together. In 2010, they separated, and in August 2010, a protection order was

issued prohibiting Garcia from contacting C.G. However, Garcia, C.G., and their children



                                              3
continued to participate in some family outings together, and Garcia would occasionally

babysit their children.

¶9     On the night of April 12, 2012, Garcia had agreed to babysit the children in C.G.’s

home. But he arrived hours late. C.G. testified that Garcia was drunk when he arrived,

so she told him to leave. Garcia left, taking C.G.’s car. He didn’t return for several hours,

prompting C.G. to report her car stolen to the police.

¶10    Around 4:00 a.m., Garcia returned and entered the apartment using a key he had

taken with him. Garcia and C.G. both testified that a physical altercation ensued.

¶11    C.G. testified that, when Garcia returned with the car, she told him to leave. But

Garcia didn’t leave. Instead, she testified, he pulled her pants, ripped her underwear,

held her down, and attempted to penetrate her. But she successfully fought him off.

¶12    Garcia argued consent. He testified that he fell asleep in C.G.’s home after

returning with the car and awoke to C.G. shaking him; she attacked him and then they

“both ended up on the bed,” where he believed they were going to have consensual sex;

they “both ended up naked” and made sexual contact, but he stopped the encounter

before any penetration occurred.

¶13    The jury found Garcia guilty of first degree burglary, attempted sexual assault,

unlawful sexual contact, third degree assault, violation of a protection order, and

obstruction of telephone service. The trial court sentenced him to concurrent terms of ten

years for first degree burglary, ten years to life for attempted sexual assault, and ten years

to life for unlawful sexual contact.



                                              4
¶14      Garcia appealed. As relevant here, he argued (1) that “the trial court erred by

failing to apply the ‘knowingly’ mens rea to the ‘caused submission’ element of the

offense[] of . . . attempted sexual assault” and (2) that the trial court erred in elevating his

attempted sexual assault conviction to a class 4 (as opposed to a class 5) felony “because

the jury did not find that he knowingly used force to cause submission.” Garcia, ¶ 4.

¶15      A division of the court of appeals unanimously affirmed Garcia’s convictions. Id.

at ¶ 48.     It concluded that any error with respect to the attempted sexual assault

instruction wasn’t obvious because the instruction matched “the Model Jury Instructions

that existed at th[e] time” of trial. Id. at ¶ 10. With respect to the sentence enhancer, the

division observed that a published court of appeals opinion, People v. Santana-Medrano,

165 P.3d 804, 807 (Colo. App. 2006), considered the same issue and held that the sentence

enhancer doesn’t require proof of a mens rea. Garcia, ¶ 25. Because a published opinion

explicitly rejected Garcia’s contention, the division concluded that any error wasn’t plain

error because it wasn’t obvious. Id. at ¶ 26.

¶16      Garcia petitioned this court for certiorari.1




1   We granted certiorari to address the following issues:
         1. [REFRAMED] Whether the court of appeals erred in holding than an
            instructional error is not plain under the plain error standard if the
            erroneous instruction tracks the model jury instruction existing at the
            time of trial.
         2. [REFRAMED] Whether the court of appeals erred in holding that an
            instructional error is not plain even though the error was plain at the
            time of direct appeal.

                                                5
                                         II. Analysis

¶17      First, we address Garcia’s contention that the trial court committed reversible

plain error when it gave the jury a sexual assault instruction that didn’t apply the

“knowingly” mens rea to the “caused submission” element.                Second, we examine

whether the “knowingly” mens rea applies to the force sentence enhancer. We conclude

that any error regarding the sexual assault instruction doesn’t require reversal and that

the force sentence enhancer doesn’t require proof of a mens rea.

                              A. The Sexual Assault Instruction

¶18      The trial court gave the jury a sexual assault instruction that didn’t explicitly tell

the jury to apply the “knowingly” mens rea to the “caused submission” element of the

attempted sexual assault offense.2 See id. at ¶¶ 5–6. Garcia argues that this constitutes




         3. [REFRAMED] Whether by consolidating the first- and second-degree
            sexual assault statutes into a single statute in 2000, the General
            Assembly intended the circumstances specified in section 18-3-402(4),
            C.R.S. (2017) to no longer require proof of the mens rea “knowingly” in
            order to elevate sexual assault to a class three felony.
2   The instruction stated:
         The elements of the crime of sexual assault are:
                1. That the defendant,
                2. in the State of Colorado at or about the date and place charged,
                3. knowingly, inflicted sexual penetration, or sexual intrusion, on a
                   person, and
                4. caused submission of the person by means of sufficient
                   consequence reasonably calculated to cause submission against
                   the person’s will.

                                               6
reversible plain error. The division disagreed, concluding that any error wasn’t obvious

because the instruction matched “the Model Jury Instructions that existed at th[e] time”

of trial. Id. at ¶ 10.3

¶19     We conclude that following a model jury instruction doesn’t automatically avoid

plain error. However, we conclude that the sexual assault instruction here doesn’t




3After the trial, the model instruction changed to make it more clear that the mens rea
modifies each conduct element. It now states:
        The elements of the crime of sexual assault (submission against will) are:
                1. That the defendant,
                2. in the State of Colorado, at or about the date and place charged,
                3. knowingly
                4. inflicted sexual intrusion or penetration on a person, and
                5. caused submission of the person by means of sufficient
                   consequence reasonably calculated to cause submission against
                   the person’s will.
                [6. and that the defendant’s conduct was not legally authorized by
                    the affirmative defense[s] in Instruction[s] ___.]
               After considering all the evidence, if you decide the prosecution has
        proven each of the elements beyond a reasonable doubt, you should find
        the defendant guilty of sexual assault (submission against will).
               After considering all of the evidence, if you decide the prosecution
        has failed to prove any one or more of the elements beyond a reasonable
        doubt, you should find the defendant not guilty of sexual assault
        (submission against will).
COLJI-Crim. 3-4:01 (2018).

                                              7
require reversal because there is no reasonable possibility that any error contributed to

Garcia’s conviction.

                                      1. Plain Error

¶20    Because the two alleged errors are unpreserved, Garcia’s convictions will not be

overturned unless any error was plain. See Tumentsereg, 247 P.3d at 1019.

¶21    To constitute plain error, an error must be “both obvious and substantial.” Miller,

113 P.3d at 750. To require reversal, such error must “so undermine[] the fundamental

fairness of the trial itself as to cast serious doubt on the reliability of the judgment of

conviction.” Hagos, ¶ 18, 288 P.3d at 121 (quoting Wilson, 743 P.2d at 420). In other words,

we must “determine whether a reasonable possibility exists that [any] error contributed

to [the] conviction.” People v. Lozano-Ruiz, 2018 CO 86, ¶ 5, 429 P.3d 557, 578.

          2. Simply Following Model Instructions Doesn’t Avoid Plain
                                   Error

¶22    The division concluded that any error regarding the sexual assault instruction

wasn’t plain because the instruction matched “the Model Jury Instructions that existed at

th[e] time” of trial. Garcia, ¶ 10. We disagree. As the preamble of the model instructions

made clear at the time of Garcia’s trial, the model instructions weren’t “approved as

accurate reflections of the law” and were merely “intended as helpful resource material.”

Preface, COLJI-Crim. (2008). They are not a safe harbor that insulates instructional error

from reversal.

¶23    We demonstrated as much in Auman v. People, 109 P.3d 647 (Colo. 2005). In Auman,

we considered an instruction that failed to track the precise language of the felony-


                                             8
murder statute. Id. at 660. The division below concluded “that the trial court’s failure to

properly instruct the jury . . . did not constitute plain error because the instruction

followed the recommended language of the Colorado Criminal Jury Instruction.” Id. at

655. We agreed that the error wasn’t reversible, but on different grounds. See id. at 661.

Instead of relying on the language of the model instruction, we reasoned that, despite

any error, the instruction’s language “was well within the comprehension of the jury.”

See id. at 660. By departing from the reasoning of the division below, we implied that

tracking the model instruction wasn’t enough to avoid plain error. To the extent we have

never said as much explicitly, we do so now.

             3. Any Error Doesn’t Require Reversal Because It Didn’t
                Undermine the Fundamental Fairness of the Trial

¶24    While we disagree with the division’s reasoning, we still agree that the sexual

assault instruction didn’t constitute reversible plain error. We conclude instead that any

error didn’t undermine the fundamental fairness of the trial, see Hagos, ¶ 18, 288 P.3d at

121, because there’s no reasonable probability that any error contributed to Garcia’s

conviction, see Lozano-Ruiz, ¶ 5, 429 P.3d at 578.

¶25    The elemental instruction effectively communicated the “knowingly” mens rea to

the jury. “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 that such circumstance exists.” § 18-1-501(6), C.R.S. (2018). “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.” Id. The trial court instructed the jury that the


                                              9
defendant must have “caused submission of the person by means of sufficient

consequence reasonably calculated to cause submission against the person’s will.”

Garcia, ¶ 6. So, regardless of whether the trial court adequately instructed the jury that

the defendant must knowingly cause submission, it did instruct the jury that the

defendant must use means “reasonably calculated to cause submission.” And because

“calculated” means (as relevant here) “[u]ndertaken after close consideration of the

probable outcome” or “[p]lanned so as to achieve a specific purpose; deliberate,”

Calculated, Black’s Law Dictionary (10th ed. 2014), one can’t make a reasonably calculated

action unknowingly. See People v. Smith, 638 P.2d 1, 5 n.7 (Colo. 1981) (observing that “the

phrase ‘of sufficient consequence reasonably calculated’ [to cause submission against the

victim’s will] clearly implies that the actor must be aware that his or her conduct is

sufficient in character and degree to be likely to cause nonconsensual submission”); People

v. Komar, 2015 COA 171M, ¶ 42, 411 P.3d 978, 987 (“The reasonable calculation component

indicates that defendant must have actively considered that his conduct would overcome

[the victim’s] will not to engage in sexual intercourse with him.”).

¶26    Additionally, whether Garcia attempted to knowingly cause submission was never

directly called into question; Garcia put forward an unrelated consent defense. In

essence, he argued that he never acted to cause submission at all.             The record

demonstrates that the conviction resulted from a rejection of Garcia’s consent defense—

not from any confusion about whether Garcia needed to knowingly cause submission.

¶27    Given the similarity of the “reasonable calculation” element and the mens rea

requirement, and the fact that whether Garcia knowingly caused submission was never

                                            10
at issue, we conclude that there’s no reasonable possibility that any instructional error

contributed to Garcia’s conviction. See Lozano-Ruiz, ¶ 5, 429 P.3d at 578. Therefore, any

error didn’t undermine the fundamental fairness of the trial. See Hagos, ¶ 18, 288 P.3d at

121.

¶28    Because we conclude that any error doesn’t require reversal, we need not consider

whether it was “obvious.” See People v. Miller, 113 P.3d at 750. Thus, we don’t reach the

question of whether plain error should be assessed at the time of trial or the time of direct

appeal.

                              B. The Sentence Enhancer

¶29    Sexual assault is generally a class 4 felony.      See § 18-3-402(2), C.R.S. (2018).

However, if a defendant “causes submission of the victim through the actual application

of physical force or physical violence,” it’s elevated to a class 3 felony.              See

§ 18-3-402(4)(a). “[C]riminal attempt to commit a class 3 felony is a class 4 felony.”

§ 18-2-101(4), C.R.S. (2018). Thus, if in the course of attempting to commit sexual assault,

a defendant “causes submission of the victim through the actual application of physical

force or physical violence,” he commits a class 4 felony. See §§ 18-2-101(4), 18-3-402(4)(a).

¶30    The trial court instructed the jury that, if Garcia was found guilty of attempted

sexual assault, the jury “should determine whether he attempted ‘to cause submission of

the person through the actual application of physical force or physical violence.’” Garcia,

¶ 6. The jury found that he did, and Garcia was convicted of class 4 attempted sexual

assault.



                                             11
¶31    Garcia argues that the jury should have been instructed that the mens rea of

“knowingly” applied to the sentence enhancer and that this omission constituted

reversible plain error. The division found no plain error, see Garcia, ¶ 26, noting that a

published court of appeals opinion, Santana-Medrano, 165 P.3d at 807, considered this

very issue and held that the sentence enhancer doesn’t require proof of a mens rea,

Garcia, ¶ 25.

¶32    We go one step further and conclude that Santana-Medrano was correct. In other

words, we conclude that the force sentence enhancer doesn’t include a mens rea

requirement, and, therefore, the trial court didn’t err.

                                1. Standard of Review

¶33    We review issues of statutory construction de novo. See Carousel Farms Metro. Dist.

v. Woodcrest Homes, Inc., 2019 CO 51, ¶ 40, __ P.3d __.

          2. The Force Sentence Enhancer Doesn’t Include a Mens Rea
                                  Requirement

¶34    In Santana-Medrano, a division of the court of appeals addressed an argument

identical to the one before us—that “the trial court erroneously instructed the jury on the

sexual assault [force enhancer] because the physical force or violence instruction did not

require the jury to determine that the mens rea ‘knowingly’ applied to that finding.”

Santana-Medrano, 165 P.3d at 806. The Santana-Medrano division found no error. See id.

¶35    First, the division noted that “[s]tatutory provisions that raise the felony level of

an offense are generally regarded as sentence enhancement provisions, not elements of




                                             12
the charged offense.” Id. at 806–07 (citing Vega v. People, 893 P.2d 107, 113 (Colo. 1995);

Armintrout v. People, 864 P.2d 576, 580 (Colo. 1993)).

¶36    Next, the division considered our opinion in Whitaker v. People, 48 P.3d 555 (Colo.

2002). In Whitaker, we considered whether the General Assembly intended the sentencing

provisions of section 18-18-405, C.R.S. (2006), to include mens rea requirements. See id.

Because the statute separated the elements of the offenses from the factors resulting in

differing levels of punishment, we concluded that the “statutory structure

demonstrate[d] the General Assembly’s intent to separate sentencing factors, such as

drug type and quantity, from the elements of the crime.” Id. at 558. Thus, we concluded,

unlike elements, the sentencing factors don’t require proof of a mens rea. Id. at 559.

¶37    The Santana-Medrano division concluded that the sexual assault sentence

enhancers are analogous to those in Whitaker. See Santana-Medrano, 165 P.3d at 807. The

division observed that the substantive elements of sexual assault are enumerated in

section 18-3-402(1)(a), whereas the force sentence enhancer is enumerated in section

18-3-402(4). See id. The division deduced that “[t]he provisions of [section] 18-3-402(4)

do not set forth separate offenses or define an additional substantive element of the crime

of sexual assault.” Id. Therefore, no proof of a mens rea is required to elevate the level

of a defendant’s conviction. Id. “Instead, the plain language of the statute, read as a

whole, demonstrates the General Assembly’s intent that those offenders who use

physical force or violence during a sexual assault should be punished more severely than

offenders who do not.” Id. at 807–08. Accordingly, the division concluded that the trial

court didn’t err in instructing the jury. Id. at 808.

                                              13
¶38    We agree with the Santana-Medrano division’s reasoning. We conclude on the

same basis that the force sentence enhancer doesn’t include a mens rea requirement.

Thus, we affirm the division’s judgment here. The trial court didn’t err with respect to

the sentence enhancer instruction.

                                     III. Conclusion

¶39    We conclude that the division erred in holding that simply following the model

instructions avoids plain error. But, for different reasons, we agree that any error

regarding the sexual assault instruction doesn’t require reversal. We do so because

Garcia failed to show that any error so undermined the fundamental fairness of the trial

itself as to cast serious doubt on the reliability of Garcia’s convictions. Because we resolve

this issue based on lack of prejudice, we need not reach the question of whether the

obviousness of an error should be assessed at the time of trial or the time of direct appeal.

We also conclude that the force sentence enhancer doesn’t include a mens rea

requirement, and, therefore, there was no error with respect to that instruction.

¶40    Accordingly, we affirm the judgment of the court of appeals.




                                             14
