Peo v. Snodgress

19CA1239 Peo v Snodgress 11-24-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA1239

El Paso County District Court No. 18CR2675

Honorable Laura A. Tighe, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joseph Benjamin Snodgress,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I

Opinion by JUDGE DUNN

Dailey and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced November 24, 2021

Philip J. Weiser, Attorney General, Hannah Bustillo, Assistant Attorney

General Fellow, Denver, Colorado, for Plaintiff-Appellee

The Noble Law Firm, Antony Noble, Heidi Tripp, Lakewood, Colorado; Pickard

Law, P.C., Joe Pickard, Jay Pickard, Kevin Massaro, Littleton, Colorado, for

Defendant-Appellant

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¶ 1 Defendant, Joseph Benjamin Snodgress, directly appeals his

convictions for child abuse and sexual assault on a child by one in

a position of trust (child sex assault). We affirm.

I. Background

¶ 2 One day in 2018, Snodgress was caring for the victim (his

fifteen-month-old stepdaughter) while his wife was at work. Early

that evening, Snodgress called his wife to report the victim was

“bleeding in her diaper,” and his wife told him to take the victim to

Children’s Hospital. When they arrived at the hospital, the victim

“was screaming” and “bleeding pretty profusely.” Upon

examination, doctors discovered a “gaping laceration” from the

victim’s hymen, through her perineum, and into her rectum.

Pediatric gynecological surgery was required to repair the injury.

¶ 3 When asked what happened, Snodgress reported that he was

changing the victim and that she had a “tar-like” stool after being

constipated. He said that, when he wiped her, he noticed blood on

the victim’s vagina. He later added that he “forcefully” wiped the

victim.

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¶ 4 Because the victim’s injuries were consistent with “penetrating

trauma” and “without an adequate explanation,” hospital staff

reported the injuries to the Jefferson County Sheriff’s Office.

¶ 5 The prosecution later charged Snodgress with, as relevant

here, (1) child abuse and (2) child sex assault. A jury found

Snodgress guilty of both counts, and the court sentenced him to an

indeterminate prison term of nine years to life.

¶ 6 On appeal, Snodgress contends we must reverse his child sex

assault conviction because (1) the trial court committed reversible

instructional error and (2) insufficient evidence supports the

conviction.

II. Jury Instructions

¶ 7 Snodgress first contends the trial court committed

instructional error by “giving the prosecution’s” instruction on

“sexual abuse” and declining his proposed “sexual abuse”

instruction. We disagree.

A. Child Sex Assault

¶ 8 A person is guilty of child sex assault when he “knowingly

subjects another not his . . . spouse to any sexual contact . . . if the

victim is a child less than eighteen years of age and the actor

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committing the offense is one in a position of trust with respect to

the victim.” § 18-3-405.3(1), C.R.S. 2021 (emphasis added).

¶ 9 The statute defines “sexual contact” as “[t]he knowing

touching of the victim’s intimate parts by the actor . . . for the

purposes of sexual arousal, gratification, or abuse.” § 18-3-

401(4)(a), C.R.S. 2021. The statute, however, doesn’t define “abuse”

(as it is used within the “sexual contact” definition), so a division of

our court considered the meaning of that term in People v. Lovato,

2014 COA 113, ¶¶ 20, 26.

¶ 10 In Lovato, the defendant physically beat the child-victim and,

as part of that abuse, stomped on the victim’s testicles. For the

latter conduct, the jury found the defendant guilty of child sex

assault. Id. at ¶¶ 7, 10. On appeal, the defendant argued that

insufficient evidence supported his child sex assault conviction

because there was no evidence that he had a sexual motive — i.e.,

that he stomped on the victim’s testicles for sexual arousal or

sexual gratification. Id. at ¶ 19.

¶ 11 The Lovato division rejected the defendant’s argument. In

doing so, it first construed the statutory definition of “sexual

contact,” concluding that “sexual” modifies “abuse” as well as

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“gratification” and “arousal.” Id. at ¶ 26. Thus, it concluded that

“sexual contact” must be for the purpose of “sexual gratification,”

“sexual arousal,” or “sexual abuse.” Id. at ¶ 27.

¶ 12 The Lovato division then disagreed with the defendant that

“sexual abuse” requires a “sexual motivation.” See id. at ¶ 32

(discerning “no statutory requirement of a ‘sexual motivation’ on the

part of a perpetrator under this definition”). To hold otherwise, in

its view, would render the remaining terms (“sexual arousal” and

“sexual gratification”) redundant. Id. at ¶ 31; see also People v.

White, 224 Cal. Rptr. 467, 476 (1986) (interpreting a similar

California statute and concluding that “sexual abuse” doesn’t

require a sexual motivation or lewdness because then it would be

redundant to “sexual arousal” and “sexual gratification.”), cited with

approval in and adopted by Lovato. Instead, Lovato, ¶ 32, gave

“abuse” its plain meaning — to inflict pain, injury, or discomfort.

And it concluded that “sexual abuse” occurs when the actor

“abuses” (i.e. inflicts pain or injury to) the victim’s intimate parts.

Id.

¶ 13 Consistent with the child sex assault statute, the Colorado

model criminal jury instructions include a definitional instruction

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for “sexual contact.” See COLJI-Crim. F:337 (2020). And in 2017,

comment 3 was added to that instruction, which cites Lovato and

parenthetically recognizes its holding that “sexual abuse” “does not

require a ‘sexual motivation’ on the part of the perpetrator.” COLJI-

Crim. F:337 cmts. 3, 4 (2020).

B. The Proposed Jury Instructions

¶ 14 At the jury instruction conference, neither party objected to

the child sex assault elemental instruction or the instruction

defining “sexual contact.” But, citing Lovato and comment 3 to

model jury instruction F:337, the prosecution tendered an

additional instruction which stated, “[s]exual abuse does not

require a ‘sexual motivation’ on the part of the [a]ctor.”

¶ 15 Snodgress objected to the proposed “sexual abuse”

instruction, arguing that it was misleading because it suggested the

defendant didn’t need to intend “sexual contact” or have any intent,

in contravention of the statute. Snodgress instead proposed

instructing the jury that “[s]exual abuse requires knowingly

subjecting the victim to targeted sexual contact for the purposes of

abuse.”

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¶ 16 The court ultimately accepted the prosecution’s instruction,

agreeing it was consistent with the model jury instruction

committee’s comment and Lovato.

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But it declined to give

Snodgress’s proposed instruction because it was “not convinced”

that “there needs to be any language other than that which has

been stated” by the model jury instruction committee.

C. Standard of Review and Legal Principles

¶ 17 A trial court has a duty to correctly instruct the jury on all

matters of law. E.g., People v. Espinosa, 2020 COA 63, ¶ 8. We

review de novo whether the jury instructions adequately informed

the jury of the governing law. McDonald v. People, 2021 CO 64,

¶ 54. And if the jury instructions accurately inform the jury of the

relevant law, a trial court has broad discretion in deciding to give,

or not to give, a particular instruction. See id. A trial court abuses

its discretion only if its instructional ruling is manifestly arbitrary,

unreasonable, or unfair. Id. When determining whether the jury

was properly instructed, we consider the jury instructions as a

whole. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011).

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The prosecution’s “sexual abuse” instruction became part of

instruction 17.

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¶ 18 Because judicial opinions and jury instructions serve different

purposes, the use of an excerpt from an opinion in a jury

instruction is “generally an unwise practice.” Evans v. People, 706

P.2d 795, 800 (Colo. 1985). But an instruction excerpted from an

opinion that expands upon, and doesn’t contradict, the other jury

instructions may help explain the applicable law and isn’t

categorically improper. See, e.g., People v. Carter, 2015 COA

24M-2, ¶¶ 42-46; see also Espinosa, ¶¶ 14, 15 (concluding that

portions of a jury instruction that expanded on the definition of

“sexual abuse” based on Lovato didn’t constitute error because the

instruction correctly stated the law); People v. Benton, 829 P.2d

451, 453 (Colo. App. 1991) (holding that a jury instruction

incorporating an excerpt from an appellate opinion on an element of

a crime was appropriate and warranted by the evidence).

D. The Sexual Abuse Instruction

¶ 19 We are unpersuaded that the trial court abused its discretion

by instructing the jury that “sexual abuse” doesn’t require a “sexual

motivation.”

¶ 20 First, the sexual abuse instruction is taken directly from the

model jury instruction comments. See COLJI-Crim. Preface (2020)

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(noting that the model jury instructions and comments are

approved by the supreme court and are intended as guidelines); see

also Galvan v. People, 2020 CO 82, ¶ 38 (recognizing that the model

instructions have been “approved in principle” to guide the trial

courts). As well, the instruction is directly rooted in Lovato, which

held that “sexual abuse” (as that term is used in the definition of

“sexual contact”) has “no statutory requirement of a ‘sexual

motivation’ on the part of a perpetrator.” Lovato, ¶ 32. Thus, the

jury instruction accurately summarized Lovato and correctly stated

the law. See Espinosa, ¶¶ 12, 14-15 (noting that portions of the

jury instruction defining “sexual abuse” with language “gleaned”

from Lovato “correctly stated the law”).

¶ 21 Second, the instruction neither contradicted nor conflicted

with the court’s other instructions. Compare Carter, ¶ 45 (including

an opinion excerpt in jury instructions didn’t amount to error where

the excerpt didn’t conflict with any other instruction and it

“accurately informed the jury of the applicable law”), with Evans,

706 P.2d at 799-800 (holding that an opinion excerpt shouldn’t

have been included with statutory definition because it directly

contradicted the statutory language). Indeed, when read together

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with the child sex assault elemental instruction and the definition

of “sexual contact,” the “sexual abuse” instruction did no more than

expand on the definition of “sexual contact” and accurately inform

the jury of the law.

2

¶ 22 Even so, Snodgress contends that the jury was confused about

the “sexual abuse” instruction because it asked the court to explain

the definitional difference between child abuse and sexual assault.

But the jury didn’t express confusion about the definition of “sexual

contact.” And it didn’t seek clarification about the meaning of

“sexual abuse” or “sexual contact.” We therefore can’t infer that the

jury was confused about the “sexual abuse” instruction simply

because it asked a question about the charged crimes.

¶ 23 And to the extent Snodgress contends that the prosecution’s

“sexual abuse” instruction eliminated the mens rea for child sex

assault or lowered the prosecution’s burden of proof, we disagree.

The elemental instruction for child sex assault plainly required the

jury to find that Snodgress “knowingly” subjected the victim to

2

Nor did the court provide the jury with any committee

commentary. Rather, the “sexual abuse” instruction used language

taken from Lovato that the committee cited in comment 3. COLJI-

Crim. F:337 cmt. 3 (2020).

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“sexual contact.” See § 18-3-405.3(1). And the “sexual contact”

instruction required the jury to find that Snodgress “knowingly”

touched the victim’s intimate parts “for the purpose” of “sexual

abuse.” See § 18-3-401(4). The “sexual abuse” instruction only

added that Snodgress wasn’t required to have a sexual motivation

for the purpose of “sexual abuse” — that is, the abuse didn’t require

sexual arousal or sexual gratification. Nothing in this instruction

eliminated the mens rea requirement or lowered the burden of

proof.

¶ 24 We also disagree that the Lovato division’s interpretation of

“sexual abuse” was unnecessary to the resolution of that case and

therefore was dicta. To the contrary, to resolve the defendant’s

contention that insufficient evidence supported his conviction, the

Lovato division was required to construe the child sex assault

statute and determine whether “sexual abuse” required a “sexual

motivation.” See Espinosa, ¶ 12 (rejecting similar argument that

Lovato’s statutory interpretation was “merely dicta”).

¶ 25 At bottom, Snodgress appears to simply disagree with Lovato

and essentially asks us to import a sexual motivation into the

definition of sexual abuse. But we agree with the Lovato division

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that doing so would render the two companion terms in the “sexual

contact” definition — “sexual arousal” and “sexual gratification” —

redundant. See Lovato, ¶¶ 31-32. We therefore see no reason to

depart from Lovato.

¶ 26 That leaves us with Espinosa, which was decided after the trial

in this case and after Snodgress filed his opening brief. In Espinosa

— like here — the trial court instructed the jury on “sexual abuse,”

“drawing language from Lovato.” Espinosa, ¶ 7. The Espinosa

division concluded that much of the instruction challenged there

“correctly stated the law” and was not error. Id. at ¶ 15. But the

division took issue with the portion of the instruction stating, “it is

the nature of the act that renders the abuse ‘sexual’ and not the

motivation of the perpetrator.” Id. at ¶¶ 7, 16. The division

concluded that this statement “misconstrued the holding from

Lovato.” Id. at ¶ 17. But the “sexual abuse” instruction here did

not include similar language. And it didn’t tell the jury to disregard

the perpetrator’s motivation. Thus, Espinosa doesn’t lead us to

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conclude that the trial court’s “sexual abuse” instruction here was

beyond its discretion.”

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¶ 27 Given all this, we conclude the court acted within its

discretion when it instructed the jury on “sexual abuse.”

E. Snodgress’s Proposed Instruction

¶ 28 Snodgress also tendered an instruction on “sexual abuse.” His

stated, “[s]exual abuse requires knowingly subjecting the victim to

targeted sexual contact for the purposes of abuse.”

¶ 29 The prosecutor objected to Snodgress’s instruction, arguing

that it added a mens rea requirement (“knowingly subjecting”) and

increased the prosecution’s burden of proof. The trial court rejected

the tendered instruction.

¶ 30 We perceive no abuse of discretion. Snodgress’s proposed

instruction paraphrased the Lovato division’s conclusion that the

3

We recognize that People v. Espinosa went on to apparently

require the perpetrator to have some sort of sexual motivation.

2020 COA 63, ¶ 21 (“[T]he perpetrator must act for the purpose of

causing sexual humiliation, sexual degradation, or other physical or

emotional discomfort of a sexual nature.”). But Espinosa doesn’t

offer any analysis or authority for doing so and doesn’t meaningfully

distinguish Lovato. At any rate, to the extent Espinosa departed

from Lovato, we can’t conclude the trial court abused its discretion

by not anticipating that departure.

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evidence in that case was sufficient to support the defendant’s

conviction. It wasn’t based directly on the Lovato division’s

statutory interpretation.

¶ 31 And in any event, Snodgress’s proposed instruction was

confusing. It included an additional mens rea requirement —

“knowingly subjecting the victim to . . . contact.” (Emphasis added.)

And it included within its definition the words it intended to define

(like “sexual contact” and “abuse”).

¶ 32 We therefore conclude that rejecting the instruction was not

manifestly arbitrary, unreasonable, or unfair.

III. Sufficiency of the Evidence

¶ 33 Snodgress also contends that insufficient evidence supports

his child sex assault conviction. We disagree.

A. Standard of Review

¶ 34 We review sufficiency of the evidence claims de novo. People v.

Donald, 2020 CO 24, ¶ 18. In doing so, we must determine whether

the evidence, when viewed in the light most favorable to the

prosecution, is sufficient to support a conclusion by a rational jury

that the defendant is guilty beyond a reasonable doubt. Dempsey v.

People, 117 P.3d 800, 807 (Colo. 2005); People v. Market, 2020 COA

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90, ¶ 47. We give the prosecution the benefit of every reasonable

inference that might fairly be drawn from the evidence. Market,

¶ 47.

¶ 35 If there is evidence upon which the jury may reasonably infer

an element of the crime, sufficient evidence supports that element.

People v. Grant, 174 P.3d 798, 812 (Colo. App. 2007). It is for the

jury — not us — to determine witness credibility and what weight, if

any, to give evidence. See People v. Plancarte, 232 P.3d 186, 192

(Colo. App. 2009). So it doesn’t matter that we might have reached

a different conclusion had we sat on the jury. Clark v. People, 232

P.3d 1287, 1291 (Colo. 2010); see also People v. Arzabala, 2012

COA 99, ¶ 13 (stating that an appellate court may not act as a

thirteenth juror and set aside a verdict because it might have drawn

different conclusions from the evidence).

B. Discussion

¶ 36 As explained, the prosecution had to prove that Snodgress

touched the victim’s intimate parts “for the purposes of sexual . . .

abuse.”

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§§ 18-3-401(4)(a), 18-3-405.3(1). Snodgress contends that

4

The prosecution didn’t argue at trial that the “sexual contact” was

for either “sexual arousal or gratification.”

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the prosecution didn’t do this because it presented no evidence that

he “specifically targeted the victim’s intimate parts for the purpose

of causing harm or pain.”

¶ 37 Viewing the evidence in the light most favorable to the

prosecution — as we must — we conclude that the prosecution

presented sufficient and substantial evidence from which the jury

could infer that Snodgress touched the victim’s intimate parts for

the purpose of causing harm or pain (in other words “for the

purposes of sexual abuse”).

¶ 38 To start, the jury heard evidence that the victim’s intimate

part (her vagina) was bleeding profusely and she was in pain.

Indeed, the victim’s mother testified that, when they arrived at the

hospital, the victim was “screaming” and “crying like she was in

pain.” And an examining doctor testified that the victim was “quite

uncomfortable” and “crying.”

¶ 39 The jury also heard substantial medical expert testimony

about the severity of the victim’s vaginal injury and what could have

caused it.

¶ 40 Dr. Jill Keyes, a pediatric emergency room physician who

performed the initial examination of the victim, testified that the

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victim’s vaginal tear appeared to be a “non-accidental trauma.” Dr.

Keyes said the injury did not fit the story reported by Snodgress

because the laceration was so severe and the victim’s anus was

completely intact with no trauma to it — instead, the injury was

concentrated in the vagina to the perineum. Dr. Keyes testified that

she was therefore concerned the injury was a “penetrating injury” to

the vagina.

¶ 41 Dr. Antonia Chiesa, a member of the Child Protection Team at

the hospital, also testified. Based on her expertise in child abuse

pediatrics, Dr. Chiesa opined that the victim’s injury wasn’t the type

of injury that happens “with routine daily handling” or with

“normal, prudent wiping, or even aggressive wiping that gets a little

too rough.” Instead, Dr. Chiesa testified the victim’s injury was “the

type of injury [doctors] see when children have penetrating genital

trauma from either severe accidents, sexual assault, or physical

abuse.” However, the hospital social worker and investigating

officers testified that the family didn’t report any accident or any

other possible source of the injury beyond the “tar like” stool and

forceful wiping.

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¶ 42 Dr. Timothy Givens, an expert in pediatric medicine who also

examined the victim, testified that he diagnosed the victim with “a

laceration to her perineum and the vaginal area.” And he testified

that, although he had frequently treated children “for issues related

to bowel movement[s],” he had never seen an injury like the victim’s

result from a hard bowel movement.

¶ 43 And Dr. Veronica Alaniz, an expert in pediatric gynecology and

the doctor who surgically repaired the victim’s vaginal injury,

testified that the victim’s injury was consistent with “penetrating

genital trauma” — an injury caused by something from the outside

penetrating the vagina beyond the hymen. She also stated that,

based on her experience and expertise, the injury was “not

consistent with a bowel movement” or an accident. And she

explained the severity of the injury; she stated that the laceration

went to the level of the anal sphincter (the muscle complex that

controls fecal continence).

¶ 44 Finally, the jury saw photos showing the severity of the

victim’s vaginal injury and could draw its own reasonable inferences

— based on the evidence — about whether a bowel movement and

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wiping caused the depicted injury or whether Snodgress targeted

the victim’s intimate parts for the purpose of causing harm or pain.

¶ 45 This is so even though no one testified that Snodgress touched

the victim’s vagina for the purpose of causing harm or pain because

“[i]ntent can rarely be proven other than through circumstantial or

indirect evidence.” People v. Sena, 2016 COA 161, ¶ 16. And

although Snodgress provided an alternate explanation — that the

injury had “an unexplained, accidental cause” — it was for the jury

to determine witness credibility, weigh the evidence, and resolve

any evidentiary disputes. People v. Poe, 2012 COA 166, ¶ 14.

¶ 46 We therefore conclude that, based on the evidence presented,

a reasonable juror could infer that Snodgress knowingly touched

the victim’s vagina for the purpose of sexual abuse, i.e., to cause

her harm or pain (and that he did, in fact, cause both). Sufficient

evidence therefore supports the child sex assault conviction.

IV. Conclusion

¶ 47 We affirm the judgment of conviction.

JUDGE DAILEY and JUDGE KUHN concur.