SUMMARY 

June 14, 2018 

2018COA85 

No. 15CA0867, People v. Sabell — Criminal Law — Jury 

Instructions — Defenses — Involuntary Intoxication 

A division of the court of appeals considers whether a jury 

instruction improperly lessened the People’s burden of disproving a 

defendant’s affirmative defense of involuntary intoxication. An 

instruction directed the jury to answer an initial question — “Was 

the defendant’s intoxication self-induced?” — either “yes” or “no.” 

The jury was further instructed to consider the remainder of the 

intoxication instruction only if it answered that preliminary 

question in the negative. The division concludes that the 

instruction was erroneous because it effectively told the jury not to 

consider the People’s burden of proof until after it first decided 

whether the defendant’s intoxication was voluntary. However, 

because the error was not plain, it does not require reversal. 

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. 
Additionally, the division rejects the defendant’s contentions 

that (1) reversal is required due to an erroneous limiting instruction 

and (2) his sentence under section 18-1.3-1004, C.R.S. 2017, of the 

Colorado Sex Offender Lifetime Supervision Act of 1998 is 

unconstitutional. However, the division concludes that (1) the 

defendant’s conviction for unlawful sexual contact should merge 

into his conviction for sexual assault and (2) a $500 crime against a 

child surcharge was erroneously imposed. 

Accordingly, the division vacates the unlawful sexual contact 

conviction and the $500 surcharge, and remands for the trial court 

to correct the mittimus. In all other respects, the division affirms 

the judgment and sentence. 
COLORADO COURT OF APPEALS 2018COA85

Court of Appeals No. 15CA0867 

Jefferson County District Court No. 14CR379 

Honorable Tamara S. Russell, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Sean Michael Sabell, 

Defendant-Appellant. 

JUDGMENT AFFIRMED IN PART AND VACATED IN PART, SENTENCE 

AFFIRMED IN PART AND VACATED IN PART, AND CASE 

REMANDED WITH DIRECTIONS 

Division I 

Opinion by JUDGE TAUBMAN 

Bernard and Welling, JJ., concur 

Announced June 14, 2018 

Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee 

Douglas K. Wilson, Colorado State Public Defender, Meghan M. Morris, Deputy 

State Public Defender, Denver, Colorado, for Defendant-Appellant
1 

¶ 1 Defendant, Sean Michael Sabell, appeals his judgment of 

conviction entered on a jury verdict finding him guilty of sexual 

assault, unlawful sexual contact, third degree assault, and criminal 

mischief. He also appeals his sentence under section 18-1.3-1004, 

C.R.S. 2017, of the Colorado Sex Offender Lifetime Supervision Act 

of 1998 (SOLSA). We vacate the conviction for unlawful sexual 

contact and a $500 crime against a child surcharge, and we 

remand with directions to correct the mittimus. In all other 

respects, we affirm the judgment and sentence. 

I. Background 

¶ 2 Sabell and his girlfriend, the victim, got into an argument on 

the night of December 14, 2013. When the victim returned to the 

couple’s home that evening after running errands, Sabell accused 

her of cheating on him and physically assaulted her. After the fight, 

the victim began audio recording the altercation on her cell phone 

because she intended to play the recording later to Sabell to 

demonstrate to him his abusive behavior. Sabell had smoked 

marijuana earlier in the day and was drinking alcohol throughout 

the evening, so the victim feared he would not remember his 

behavior that evening. Sabell then forced the victim to perform oral 
2 

sex on him and later broke down her bedroom door after she had 

locked herself inside. 

¶ 3 A few days later, Sabell called the police and alleged that the 

victim was attempting to poison him. During the investigation of 

Sabell’s report, the victim played part of the December 14, 2013 

audio recording for a police officer. Based on the content of the 

recording, the police arrested Sabell. He was eventually charged 

with one count of sexual assault, one count of unlawful sexual 

contact, one count of third degree assault, one count of criminal 

mischief, and one count of harassment. The People dismissed the 

harassment charge prior to trial. The jury convicted Sabell of all 

remaining charges, and he was sentenced to an indeterminate term 

of six years to life in prison on the sexual assault and unlawful 

sexual contact counts.1 

¶ 4 On appeal, Sabell raises five arguments: (1) an improper jury 

instruction on intoxication requires reversal; (2) an improper 

limiting instruction regarding other acts evidence requires reversal; 

 

1 Sabell was also sentenced to six months in jail on the two 

misdemeanor convictions for third degree assault and criminal 

mischief. He does not appeal that aspect of his sentence. 
3 

(3) his sentence must be vacated because SOLSA is 

unconstitutional; (4) the sexual assault and unlawful sexual contact 

convictions must merge; and (5) a crime against a child surcharge 

imposed by the trial court at sentencing must be vacated. We agree 

with the fourth and fifth contentions and therefore vacate the 

unlawful sexual contact conviction and the $500 crime against a 

child surcharge, and remand for correction of the mittimus. We 

affirm in all other respects. 

II. Involuntary Intoxication Instruction 

¶ 5 Sabell contends that the trial court erroneously instructed the 

jury on his affirmative defense of involuntary intoxication. He 

contends that this error requires reversal of the sexual assault, 

unlawful sexual contact, and criminal mischief convictions. We 

perceive no basis for reversal. 

A. Additional Facts 

¶ 6 Before trial, the victim admitted that she had put Seroquel, a 

drug she had been prescribed, in Sabell’s wine in an attempt to 

sedate him on the night of December 14, 2013. According to the 

victim, she put the drug in Sabell’s drink after the sexual assault. 

However, Sabell testified at trial that the victim had put the 
4 

Seroquel in his drink before the recording began and that he had no 

memory of any of the recorded events.2 

¶ 7 The defense raised the affirmative defense of involuntary 

intoxication. During a jury instruction conference on the second 

day of trial, defense counsel stated that “there should be an 

addendum” to the standard presumption of innocence instruction 

to address the People’s burden of proof on the affirmative defense. 

The trial court invited defense counsel to prepare an alternative 

instruction. The People then tendered a jury instruction on 

involuntary intoxication. Defense counsel objected to the wording 

of the instruction, but did not assert that it impermissibly lessened 

the prosecution’s burden of proof. 

¶ 8 The next day, the trial court and both parties reviewed a 

packet of instructions submitted by the People. The prosecutor 

stated that she had prepared the intoxication instruction according 

to the pattern jury instructions. Specifically, the prosecutor 

explained that she had referred to COLJI-Crim. H:34 (2017) 

 

2 Both Sabell and the victim testified that the victim did not put 

Seroquel in Sabell’s drink until after the physical assault. Thus, 

the affirmative involuntary intoxication defense was not applicable 

to the third degree assault charge. 
5 

(voluntary intoxication) and COLJI-Crim. H:35 (2017) (involuntary 

intoxication) in drafting the instruction. The trial court asked if 

defense counsel objected to “the instructions that [the prosecutor] 

crafted,” and defense counsel replied that he did not. Later, the 

trial court asked whether defense counsel renewed his objection to 

the standard burden of proof instruction, and defense counsel 

withdrew his previous objection. 

¶ 9 In relevant part, the intoxication instruction given to the jury 

read: 

The evidence presented in this case has raised 

a question as to the voluntariness of the 

defendant’s intoxication. In this case you 

must answer the question: Was the 

defendant’s intoxication self-induced? (yes or 

no) 

. . . . 

If you answer “yes” to this question you may 

not consider evidence of self-induced 

intoxication for purposes of deciding whether 

the prosecution has proved the elements of the 

crimes charged in this case. 

If you answer “no” to this question and find 

the defendant’s intoxication was not selfinduced you should apply the following 

instruction: 

The evidence presented in this case has raised 

the affirmative defense of “involuntary 
6 

intoxication,” as a defense to Sexual Assault, 

Criminal Mischief, and Unlawful Sexual 

Contact. 

The defendant’s conduct was legally authorized 

if: 

1. he lacked the capacity to conform his 

conduct to the requirements of law, because 

of his intoxication, and 

2. the intoxication was not self-induced. 

The prosecution has the burden to prove, 

beyond a reasonable doubt, that the 

defendant’s conduct was not legally authorized 

by this defense. In order to meet this burden 

of proof, the prosecution must disprove, 

beyond a reasonable doubt, at least one of the 

above numbered conditions. 

¶ 10 Additionally, each of the relevant elemental instructions listed 

as an element that “the defendant’s conduct was not legally 

authorized by the affirmative defense of Involuntary Intoxication.” 

The elemental instructions also stated that the prosecution bore the 

burden of proving each element beyond a reasonable doubt. 

Finally, there was a standard instruction on the burden of proof, 

which read, “The burden of proof is upon the prosecution to prove 

to the satisfaction of the jury beyond a reasonable doubt the 

existence of all of the elements necessary to constitute the crime 

charged.” 
7 

B. Standard of Review 

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

governing law. People v. Pahl, 169 P.3d 169, 183 (Colo. App. 2006). 

We review jury instructions de novo to determine whether they 

accurately informed the jury of the governing law, but we review 

questions of form and style for an abuse of discretion. Townsend v. 

People, 252 P.3d 1108, 1111 (Colo. 2011). Instructional error 

occurs when an instruction misleads or confuses the jury. Williams 

v. Chrysler Ins. Co., 928 P.2d 1375, 1377 (Colo. App. 1996); see also 

Lybarger v. People, 807 P.2d 570, 582-83 (Colo. 1991). 

¶ 12 As a general matter, a failure to object to a jury instruction 

results in review for plain error. People v. Garcia, 28 P.3d 340, 344 

(Colo. 2001) (“If a defendant lodges no objection to a trial court’s 

jury instruction, a plain error standard should be applied in 

reviewing the instruction.”). Plain errors are “obvious and 

substantial,” Hagos v. People, 2012 CO 63, ¶ 14, 288 P.3d 116, 

120, and “cast serious doubt on the reliability of the judgment of 

conviction,” id. (quoting People v. Miller, 113 P.3d 743, 750 (Colo. 

2005)).
8 

C. Applicable Law 

¶ 13 “In Colorado, involuntary intoxication is an affirmative defense 

to a criminal charge.” Miller, 113 P.3d at 750. Under that defense, 

“[a] person is not criminally responsible for his conduct if, by reason 

of intoxication that is not self-induced at the time he acts, he lacks 

capacity to conform his conduct to the requirements of the law.” 

§ 18-1-804(3), C.R.S. 2017. “To submit the affirmative defense of 

involuntary intoxication to the jury, a defendant must offer proof 

which constitutes ‘some credible evidence’ of the condition.” People 

v. Garcia, 113 P.3d 775, 783 (Colo. 2005). Once a defendant meets 

that burden, the prosecution bears the burden of disproving the 

affirmative defense beyond a reasonable doubt. Id. at 784 (“[A] 

properly raised affirmative defense is treated as though it were 

another element of th[e] offense.”). 

¶ 14 The Model Criminal Jury Instructions Committee’s notes on 

the pattern voluntary intoxication instruction state: 

If there is question as to the voluntariness of 

the defendant’s intoxication, draft an 

instruction explaining that: (1) the jurors are 

to decide, as a threshold matter, whether the 

defendant’s intoxication was “self-induced” (as 

defined in Instruction F:330); and (2) 

depending on the outcome of that 
9 

determination, they should then apply either 

this instruction, or Instruction H:35 

(involuntary intoxication). 

COLJI-Crim. H:34 cmt. 7; see also COLJI-Crim. H:35 cmt. 3 (“In 

cases where there is a factual dispute concerning whether the 

defendant’s intoxication was self-induced, refer to Comment 7 of 

Instruction H:34 (intoxication (voluntary)).”). 

D. Analysis 

1. Waiver 

¶ 15 At the outset, we note that the parties disagree on whether we 

should review this claim. Sabell admits that he did not object to 

the intoxication instruction in the trial court on the basis that it 

lessened the prosecution’s burden of proof. However, he urges us 

to consider the issue on appeal. In contrast, the People urge us to 

conclude that Sabell waived this contention. 

¶ 16 We recognize that the Colorado Supreme Court recently held 

that “mere acquiescence to a jury instruction does not constitute a 

waiver without some record evidence that the defendant 

intentionally relinquished a known right.” People v. Rediger, 2018 

CO 32, ¶ 3, ___ P.3d ___, ___; see also People v. Smith, 2018 CO 33, 

___ P.3d ___. In Rediger, the court held that the defendant’s 
10 

“purported acquiescence” in an erroneous instruction tendered by 

the People constituted, “at most,” forfeiture. Rediger, ¶ 3, ___ P.3d 

at ___. As a result, the Rediger court reviewed for plain error. Id. 

¶ 17 However, we need not discuss the applicability of Rediger and 

Smith here because we assume without deciding that Sabell did not 

waive this claim, and we will therefore review it on appeal. Cf.

People v. McMinn, 2013 COA 94, ¶ 17, 412 P.3d 551, 557 (assuming 

without deciding that double jeopardy claim had been preserved). 

2. Intoxication Instruction 

¶ 18 Sabell contends that the involuntary intoxication instruction 

impermissibly lessened the prosecution’s burden of proof. He 

argues that the first paragraph of the instruction allowed the jury to 

make a preliminary factual determination as to the voluntariness of 

his intoxication without requiring that the People disprove that 

element of the affirmative defense beyond a reasonable doubt. We 

agree that the instruction was erroneous. 

¶ 19 The first paragraph of the intoxication instruction directed the 

jury to answer the initial question — “Was the defendant’s 

intoxication self-induced?” — without clarifying that the People bore 

the burden of disproving involuntary intoxication beyond a 
11 

reasonable doubt. The instruction did not mention the 

prosecution’s burden of proof until after the initial paragraphs 

addressing the preliminary “yes or no” determination. Further, the 

instruction told the jury to apply the entirety of the instruction, 

including the portion correctly stating that the People bore the 

burden of disproving the affirmative defense, only if the jury 

answered the initial question in the negative. 

¶ 20 Thus, the involuntary intoxication instruction in effect told the 

jury not to consider the People’s burden of proof until after it first 

decided whether Sabell’s intoxication was self-induced. The 

instruction therefore erroneously created the possibility that the 

affirmative defense of involuntary intoxication — and the 

prosecution’s burden with respect thereto — would not be given due 

consideration by the jury. 

3. Plain Error Review 

¶ 21 In light of our conclusion that the instruction was erroneous, 

we turn to whether that error requires reversal. The parties 

disagree on the appropriate standard of review. Sabell urges us to 

consider this a structural error requiring automatic reversal. In 
12 

contrast, the People contend that plain error review is appropriate. 

We agree with the People and review for plain error. 

¶ 22 Where, as here, the trial court erroneously instructs the jury 

in a manner that lessens the prosecution’s burden of proof with 

respect to an affirmative defense, constitutional error has been 

committed. See People v. Pickering, 276 P.3d 553, 555 (Colo. 2011); 

Garcia, 113 P.3d at 784 (“[A] defendant’s constitutional right to due 

process is violated by an improper lessening of the prosecution’s 

burden of proof . . . .”). Indeed, the Colorado Supreme Court has 

rejected the argument that such instructional errors are structural 

in nature and has instead concluded that such errors are subject to 

constitutional harmless or plain error review. Griego v. People, 19 

P.3d 1, 8 (Colo. 2001), as modified on denial of reh’g (Mar. 12, 2001) 

(“[A] jury instruction that is erroneous, either because the 

instruction omits or misdescribes an element of the offense, is not 

subject to structural error analysis.”). Thus, we reject Sabell’s 

argument that this error is structural. See Hagos, ¶ 10, 288 P.3d 

at 119 (listing as examples of structural error “complete deprivation 

of counsel, trial before a biased judge, unlawful exclusion of 

members of the defendant’s race from a grand jury, denial of the 
13 

right to self-representation, and denial of the right to a public 

trial”); see also Neder v. United States, 527 U.S. 1, 8-12 (1999) 

(concluding that a jury instruction omitting an element is not 

structural error); Miller, 113 P.3d at 751 (reviewing erroneous jury 

instruction on voluntary intoxication for plain error). 

¶ 23 We review instructional errors, “constitutional and 

nonconstitutional, that were not preserved by objection for plain 

error.” Hagos, ¶ 14, 288 P.3d at 120. 

¶ 24 We conclude that the instructional error here was not plain. 

First, we determine that the error was not obvious. “To qualify as 

‘plain’ error, an error must be so clear-cut, so obvious, that a trial 

judge should be able to avoid it without benefit of objection.” People 

v. Pollard, 2013 COA 31M, ¶ 39, 307 P.3d 1124, 1133. 

¶ 25 Here, the trial court and prosecutor relied on the pattern jury 

instructions, and the committee’s comments on their use, in an 

attempt to draft a proper intoxication instruction. Comment 7 on 

COLJI-Crim. H:34 states that, if there is a question as to the 

voluntariness of the defendant’s intoxication, a separate instruction 

should be drafted “explaining that: (1) the jurors are to decide, as a 

threshold matter, whether the defendant’s intoxication was ‘self-
14 

induced’ . . . ; and (2) depending on the outcome of that 

determination, they should then apply either” the involuntary 

intoxication instruction or the voluntary intoxication instruction.3 

There was a question as to the voluntariness of Sabell’s intoxication 

because he had smoked marijuana and drunk alcohol on December 

14, 2013. Accordingly, although the prosecutor did not draft a 

separate instruction on the issue, the preliminary paragraphs 

added to the intoxication instruction attempted to comply with 

comment 7 on COLJI-Crim. H:34.4 Cf. People v. Laurson, 15 P.3d 

791, 796 (Colo. App. 2000) (noting that a jury instruction 

 

3 We disagree with Sabell’s argument that comment 7 on COLJICrim. H:34 (2017) is implicated only when the jury is instructed on 

both voluntary and involuntary intoxication. Rather, as the People 

assert, that comment becomes relevant when there is a factual 

question as to the voluntariness of the defendant’s intoxication, 

regardless of whether the jury is instructed on a voluntary 

intoxication defense. 

4 We express no opinion as to whether COLJI-Crim. H:34, COLJICrim. H:35 (2017), and the accompanying comments on those 

pattern instructions are proper. However, we note that comment 7 

on COLJI-Crim. H:34 recommends the use of a separate instruction 

“explaining that . . . the jurors are to decide, as a threshold matter, 

whether the defendant’s intoxication was ‘self-induced.’” That 

comment does not specify that such an instruction should also 

explain the People’s burden of proof in the event that a defendant 

raises involuntary intoxication as an affirmative defense. See also 

COLJI-Crim. H:35 cmt. 3.
15 

“track[ing]” the pattern instruction and conforming to the language 

of relevant statutes is generally sufficient). 

¶ 26 Further, we determine that the instructional error was not 

substantial. Looking at the instructions as a whole, we note the 

jury was adequately informed of the prosecution’s burden of proof 

as to the affirmative defense. See People v. Garcia, 2012 COA 79, 

¶ 51, 296 P.3d 285, 292 (considering as part of plain error review 

the jury instructions as a whole). First, a presumption of innocence 

instruction explained that the prosecution had to prove beyond a 

reasonable doubt the existence of all the elements necessary to 

constitute the crimes charged. Second, all the pertinent elemental 

instructions included, as the final element of each offense, that “the 

defendant’s conduct was not legally authorized by the affirmative 

defense of Involuntary Intoxication in [the intoxication instruction].” 

The elemental instructions also stated that the prosecution had to 

prove “each of the elements beyond a reasonable doubt.” See Miller, 

113 P.3d at 750 (“[T]he court’s failure to instruct the jury properly 

does not constitute plain error if the relevant instruction, read in 

conjunction with other instructions, adequately informs the jury of 

the law.”). Finally, the intoxication instruction itself included 
16 

language properly explaining the People’s burden of disproving the 

two elements of the affirmative defense, albeit after the improper 

preliminary paragraphs. 

¶ 27 Moreover, even if the jury would have found that Sabell was 

involuntarily intoxicated had it been properly instructed, we 

conclude there was no reasonable possibility that the jury would 

have found the other component of the involuntary intoxication 

defense — namely, that Sabell lacked the capacity to conform his 

conduct to the requirements of the law. The jury heard significant 

portions of the approximately three-hour audio recording in which 

Sabell was coherent and responsive to the victim. Aside from his 

testimony that he did not remember the events recorded by the 

victim, Sabell presented no evidence that the dose of Seroquel the 

victim put in his drink resulted in his inability to conform his 

conduct to law. 

¶ 28 Thus, we cannot conclude that the error “so undermined the 

fundamental fairness of the trial itself so as to cast serious doubt 

on the reliability of the judgment of conviction.” Hagos, ¶ 14, 288 

P.3d at 120 (quoting Miller, 113 P.3d at 750). In sum, although the 
17 

involuntary intoxication jury instruction here was erroneous, we 

perceive no basis for reversal. 

III. Other Acts Instruction 

¶ 29 Sabell also contends that the trial court gave an erroneous 

instruction limiting the jury’s consideration of other acts evidence. 

We perceive no error. 

A. Additional Facts 

¶ 30 At trial, the victim testified about four other incidents in which 

Sabell had been violent toward her or had forced her to have sex. 

Other witnesses, including the victim’s friend and police officers, 

also testified about these other acts. 

¶ 31 Two of these incidents were described as the South Yank 

Court incidents because they occurred in Sabell and the victim’s 

house on that street. The first incident took place in the kitchen, 

when Sabell “got in [the victim’s] face and headbutted [her]” during 

an argument. The second South Yank Court incident took place in 

the victim’s bedroom, when Sabell kicked a hole in her locked door 

around 3 a.m. because he wanted to have sex with her. 

¶ 32 The victim also testified about a 2011 incident during which 

Sabell grabbed her arm, forced her to the floor, and threatened to 
18 

kill her while holding a knife. Finally, the victim testified that, on 

Thanksgiving in 2013, Sabell forced her to have sex with him and 

attempted to force her to perform oral sex on him. 

¶ 33 Before each witness testified about these incidents, the trial 

court gave an oral limiting instruction. As to the first three 

incidents, the trial court instructed the jury that it could consider 

the evidence for the limited purpose of proving absence of mistake 

and intent. With regard to the Thanksgiving incident, the trial 

court instructed the jury it could consider the evidence for the 

purpose of proving absence of mistake, intent, and motive. 

¶ 34 During the instruction conference on the second day of trial, 

the trial court asked defense counsel if he objected to having the 

prosecutor draft a written limiting instruction that mirrored the oral 

instructions given during testimony. Defense counsel stated that 

he had no objection. 

¶ 35 The final limiting instruction read: 

The court admitted evidence of events at the 

South Yank Court address for the limited 

purpose of proving absence of mistake and 

intent only. You may not consider it for any 

other reason. 
19 

The court admitted evidence of events in 2011 

for the limited purpose of proving absence of 

mistake and intent only. You may not 

consider it for any other reason. 

The court admitted evidence of events around 

Thanksgiving 2013 for the limited purpose of 

proving absence of mistake, intent and motive. 

You may not consider it for any other reason. 

B. Standard of Review 

¶ 36 As noted, we review jury instructions de novo to determine 

whether they accurately informed the jury of the governing law, but 

we review questions of form and style for an abuse of discretion. 

Townsend, 252 P.3d at 1111. 

C. Applicable Law 

¶ 37 CRE 404 governs the admission of evidence of “other crimes, 

wrongs, or acts.” Such evidence “is not admissible to prove the 

character of a person in order to show that he acted in conformity 

therewith.” CRE 404(b). However, evidence of other crimes is 

admissible “for other purposes, such as proof of motive, . . . intent, 

. . . or absence of mistake or accident.” Id. 

¶ 38 When evidence is admitted for a certain purpose, but is 

inadmissible for another purpose, the trial court “shall restrict the 

evidence to its proper scope and instruct the jury accordingly” if a 
20 

party so requests. CRE 105. In People v. Garner, the supreme 

court stated that when evidence of other acts is admitted under 

CRE 404(b), “the court should instruct the jury, pursuant to CRE 

105, on the limited purpose for which such evidence is admitted at 

the time of admission,” as well as at the close of the trial. 806 P.2d 

366, 374 (Colo. 1991); see also Yusem v. People, 210 P.3d 458, 469 

(Colo. 2009) (“[T]he trial court should take care to admit [other acts] 

evidence for specific purposes and to properly instruct the jury as to 

those purposes.”). 

¶ 39 In the context of sexual assault prosecutions, evidence of other 

sexual assaults by a defendant will often be admissible under CRE 

404(b). See People v. Martinez, 36 P.3d 154, 159-60 (Colo. App. 

2001). See generally § 16-10-301(1), C.R.S. 2017 (This legislative 

declaration states that, in a prosecution for sexual assault, 

“evidence of other sexual acts is typically relevant and highly 

probative.”). Similarly, in criminal prosecutions involving domestic 

violence, “evidence of similar transactions can be helpful and is 

necessary in some situations.” § 18-6-801.5(1), C.R.S. 2017. 
21 

D. Analysis 

¶ 40 The People again urge us to conclude that Sabell waived this 

claim because defense counsel acquiesced in the prosecutor’s 

tendered instruction. Again, without discussing the applicability of 

the supreme court’s recent decisions in Rediger, 2018 CO 32, ___ 

P.3d ___, and Smith, 2018 CO 33, ___ P.3d ___, we assume without 

deciding that Sabell did not waive this claim, and we therefore 

review it on the merits. Cf. McMinn, ¶ 17, 412 P.3d at 557. 

¶ 41 Sabell asserts that the limiting instruction was erroneous for 

two reasons. First, he contends that the instruction did not prevent 

the jury from engaging in impermissible propensity inferences. 

Second, he contends that the instruction allowed the jury to use the 

evidence improperly because it was not relevant to intent, motive, or 

absence of mistake. We disagree with both arguments. 

¶ 42 Contrary to Sabell’s first contention, we conclude that the 

instruction properly informed the jury of the permissible use of the 

other acts evidence. In fact, the instruction expressly stated that 

the jury could not consider the evidence for any purpose other than 

those specifically enumerated. When a trial court admits other acts 

evidence for specific purposes, it “should . . . properly instruct the 
22 

jury as to those purposes.” Yusem, 210 P.3d at 469. The trial 

court did so here. “We presume that the jury followed the court’s 

instructions, absent evidence to the contrary.” Garcia, ¶ 20, 296 

P.3d at 289. 

¶ 43 We similarly reject Sabell’s contention that the instruction 

improperly directed the jury to consider the evidence for purposes of 

intent, absence of mistake, and — with regard to the Thanksgiving 

2013 incident — motive. During a motions hearing on the other 

acts evidence, the trial court ruled that evidence of the four 

incidents was relevant because they all involved the victim in this 

case and “assaultive behavior while Sabell was allegedly 

intoxicated.” We agree that, in the circumstances here, the 

evidence of prior incidents involving the victim were relevant to the 

purposes identified by the trial court. Sabell put his motive, intent, 

and the possibility of mistake at issue by raising the affirmative 

involuntary intoxication defense. As Sabell acknowledges, whether 

he acted knowingly and voluntarily was the primary issue at trial. 

The other acts evidence was relevant to that issue. 

¶ 44 Thus, we reject Sabell’s contention that the other acts 

instruction was inaccurate. 
23 

IV. Constitutionality of SOLSA 

¶ 45 Sabell was sentenced under SOLSA to six years to life in the 

custody of the Department of Corrections as a result of his sex 

offense convictions. See § 18-1.3-1004(1)(a). He contends that 

SOLSA is unconstitutional on its face and as applied to him. 

¶ 46 The constitutionality of SOLSA is an issue of law we review de 

novo. See Hinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo. 

2007). Sabell did not challenge the constitutionality of his sentence 

under SOLSA in the trial court. Nevertheless, we will exercise our 

discretion to review an unpreserved constitutional challenge for the 

first time on appeal. Id. at 667-68. We review unpreserved 

constitutional challenges for plain error. Hagos, ¶ 14, 288 P.3d at 

120. 

¶ 47 Sabell argues that SOLSA violates his privilege against selfincrimination, procedural and substantive due process, the right to 

trial by a jury, the Equal Protection Clause, and the prohibition 

against cruel and unusual punishment. As Sabell acknowledges, 

numerous divisions of this court have considered the 

constitutionality of SOLSA and have rejected all such challenges. 

See, e.g., People v. Collins, 250 P.3d 668, 679 (Colo. App. 2010); 
24 

People v. Firth, 205 P.3d 445, 452 (Colo. App. 2008); People v. 

Lehmkuhl, 117 P.3d 98, 108 (Colo. App. 2004); People v. Dash, 104 

P.3d 286, 290 (Colo. App. 2004); People v. Oglethorpe, 87 P.3d 129, 

133 (Colo. App. 2003); People v. Strean, 74 P.3d 387, 393 (Colo. 

App. 2002). We are not persuaded to depart from these decisions, 

and therefore we reject Sabell’s contentions for the reasons stated 

therein. Thus, we perceive no error, let alone plain error. 

V. Merger 

¶ 48 Sabell contends, the People concede,5 and we agree that 

the unlawful sexual contact conviction should have merged with the 

sexual assault conviction at sentencing. 

¶ 49 The United States and Colorado Constitutions protect 

individuals from multiple punishments for the same offense. See 

U.S. Const. amends. V, XIV; Colo. Const. art. II, § 18; see also 

Woellhaf v. People, 105 P.3d 209, 214 (Colo. 2005). A defendant 

may not be convicted of two offenses for the same conduct if one 

offense is included in the other. § 18-1-408(1)(a), C.R.S. 2017. The 

supreme court recently concluded that “unlawful sexual contact is 

 

5 As the People note, we are not bound by their concessions. See 

People v. Corral, 174 P.3d 837, 839 (Colo. App. 2007). 
25 

a lesser included offense of sexual assault, and when a defendant is 

convicted of both offenses based on the same conduct the 

conviction for unlawful sexual contact merges into the conviction 

for sexual assault.” Page v. People, 2017 CO 88, ¶ 19, 402 P.3d 

468, 472; see also § 18-3-402(1)(a), C.R.S. 2017; § 18-3-404(1)(a), 

C.R.S. 2017. 

¶ 50 Here, the People concede that Sabell’s sexual assault and 

unlawful sexual contact convictions were based on the same 

conduct. Indeed, at the sentencing hearing the prosecutor and trial 

court both acknowledged that these convictions were based on the 

same set of facts. Sabell did not raise the issue of merger, however, 

so we review for plain error. See Reyna-Abarca v. People, 2017 CO 

15, ¶¶ 45-46, 390 P.3d 816, 823 (holding that an unpreserved 

double jeopardy claim is reviewable for plain error). 

¶ 51 We conclude that the trial court plainly erred in entering both 

the sexual assault and unlawful sexual contact convictions. See 

People v. Friend, 2014 COA 123M, ¶ 74, ___ P.3d ___, ___ (cert. 

granted in part Feb. 8, 2016). The protections against double 

jeopardy affect a substantial constitutional right. Id. at ¶ 75, ___ 

P.3d at ___. Further, we determine that the error was obvious. 
26 

Sabell points to several cases decided prior to his sentencing that 

recognized that unlawful sexual contact is a lesser included offense 

of sexual assault. See, e.g., People v. Rogers, 220 P.3d 931, 938 

(Colo. App. 2008). Moreover, an analysis of the sexual assault and 

unlawful sexual contact statutes under the test set forth in 

Blockburger v. United States, 284 U.S. 299, 304 (1932), would have 

led to the conclusion that unlawful sexual contact is a lesser 

included offense of sexual assault. 

¶ 52 Thus, we merge the sexual assault and unlawful sexual 

contact convictions by vacating the latter conviction. See Page, ¶ 

19, 402 P.3d at 472; see also People v. Rhea, 2014 COA 60, ¶¶ 16-

17, 349 P.3d 280, 287-88 (“Merger has the same effect as vacating 

one of the multiplicitous sentences.”). Because the prison terms 

imposed for these counts were ordered to run concurrently, merger 

will have no effect on the length of Sabell’s sentence. However, we 

remand for the trial court to correct the mittimus. 

VI. Crime Against a Child Surcharge 

¶ 53 Sabell contends, the People concede, and we agree that the 

trial court erred in imposing a crime against a child surcharge of 

$500. 
27 

¶ 54 Under section 18-24-102(1), C.R.S. 2017, anyone convicted of 

a crime against a child is required to pay a surcharge to the court. 

See also § 18-24-102(2)(c) (requiring $500 surcharge if a person is 

convicted of a class 4 felony crime against a child). Here, the 

sentencing minute order states that the trial court imposed a $500 

crime against a child surcharge on the unlawful sexual contact 

conviction. There was no discussion of this surcharge at the 

sentencing hearing. 

¶ 55 The victim here was not a child. The trial court therefore 

plainly erred in imposing the $500 crime against a child surcharge. 

Thus, we vacate that surcharge and remand for correction of the 

mittimus to the extent that the $500 sum is included in the 

$3248.50 assessed on the mittimus. 

VII. Conclusion 

¶ 56 We vacate the unlawful sexual contact conviction and the 

crime against a child surcharge, and remand for the trial court to 

correct the mittimus accordingly. In all other respects, the 

judgment and sentence are affirmed. 

JUDGE BERNARD and JUDGE WELLING concur.