However, in response to a separate unanimity interrogatory, the jury indicated that these same incidents of sexual contact (excluding one that appeared only on the pattern of abuse interrogatory) were "[n]ot [p]roved." Rail argues that, under Sanchez v. People , 2014 CO 29, 325 P.3d 553, this inconsistency requires reversal of his conviction for sexual assault on a child as part of a pattern of abuse. ¶2 We disagree.
¶6 As a matter of constitutional limitation, a criminal verdict may not be directed for the State nor a criminal conviction entered for an offense not authorized by the jury's verdict, no matter how overwhelming the evidence. See Sanchez v. People , 2014 CO 29, ¶ 13, 325 P.3d 553, 558 (directly relying on Sullivan v. Louisiana , 508 U.S. 275, 277, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) ); see also Medina v. People , 163 P.3d 1136, 1140 (Colo. 2007) (finding that the district court erred "when it entered its own conviction and sentence ... instead of determining the punishment warranted by the jury's guilty verdict").
We do not consider the affidavits in our analysis CRE 606(b).I also disagree with the majority that Sanchez v People, 2014 CO 29, 325 P.3d 553, precludes reversing for a new trial in this case. In Sanchez, the jury returned a not guilty verdict as to the substantive offense of sexual assault but found that the sentence enhancer was proved.
Colorado courts have often grappled with jury instructions and verdict forms for the offense of sexual assault on a child committed as a part of a pattern of sexual abuse. See, e.g., Sanchez v. People, 325 P.3d 553, 560 (Colo. 2014) (considering the constitutional protections of the Sixth Amendment and Due Process Clause and concluding: "Because the verdict form by which the jury found the defendant 'Guilty' of 'Sexual Assault on a Child—Pattern of Abuse' never offered the jury an opportunity to find that he committed the elements of sexual assault on a child, and instead reflected at most the jury's factual finding of two different incidents of sexual contact, the trial court erred in entering judgment of conviction . . . ."); People v. Day, 230 P.3d 1194, 1199 (Colo. 2010) (holding the instructions and verdict forms erroneously permitted the jury to find the defendant guilty of a pattern of abuse based only on attempted incidents of sexual contact); People v. Brown, 70 P.3d 489, 492 (Colo. App. 2002) (explaining that the title for the jury verdict form—"SEXUAL ASSAULT ON A CHILD—PATTERN"—should not include the word "pattern," "because pattern is a sentence enhancement, not a separate offense.").
Moreover, the instructional error here also means the jury's verdict simply does not support the judgment of conviction for second degree forgery. Hoggard's conviction for second degree forgery must be reversed because the error here was plain, Rediger , ¶ 54, 416 P.3d at 904, and resulted in entry of a judgment of conviction for an offense not supported by the jury's verdict, Sanchez v. People , 2014 CO 29, ¶ 19, 325 P.3d 553, 560 ("[T]he entry of a judgment of conviction for a crime not supported by a unanimous verdict beyond a reasonable doubt rises to the level of structural error, requiring reversal regardless of a sufficiently specific objection."). Accordingly, I respectfully dissent.
It is to say that its rationale — ultimately applied by Linnebur to a different type of error — is arguably untenable under Supreme Court case law post-dating Sullivan . ¶ 69 One other case — Sanchez v. People , 2014 CO 29, 325 P.3d 553 — merits discussion. In that case, the jury actually returned a verdict of not guilty on a charge of sexual assault as part of a pattern of abuse, but the jury indicated on a verdict form that the prosecution had proved two of the six incidents of alleged abuse.
¶ 11 Further, and contrary to the Attorney General’s argument for plain error review, entry of a judgment of conviction absent a jury verdict of guilty is structural error that cannot be rendered harmless, despite the weight of the evidence. See, e.g. , Sanchez v. People , 2014 CO 29, ¶ 18, 325 P.3d 553 ("[T]he entry of a judgment of conviction for a crime not supported by a unanimous verdict beyond a reasonable doubt rises to the level of structural error."); Medina v. People , 163 P.3d 1136, 1141 (Colo. 2007) ("Instead of receiving an impartial jury verdict convicting her of all elements beyond a reasonable doubt, the trial court essentially judged Medina guilty of a new and different crime.").
The jury cannot decide a charge on which it was not instructed. See Sanchez v. People , 2014 CO 29, ¶ 14, 325 P.3d 553, 558 ("While the precise format and wording chosen for an elemental instruction and accompanying verdict form have never been mandated as a matter of positive law, the model instructions and verdict forms were developed for the specific purpose of evidencing not only unanimous jury agreement concerning the elements of the criminal offense in question, as a factual matter, but also a unanimous decision to find the defendant guilty of that particular offense.").¶ 39 As a result, when the second phase of the second trial repeated the same special interrogatory procedure, Wambolt was again tried for DARP. Once again, the jury was instructed on the elements of DARP, not ADARP. Because Wambolt stood convicted of DARP at the time of the second trial, the second prosecution for that same offense violated his rights under the Double Jeopardy Clauses.
¶ 13 We note that Delgado's reliance on a number of cases for the proposition that inconsistent verdicts are structural errors is misplaced because none addressed inconsistent jury verdicts. See Sullivan v. Louisiana , 508 U.S. 275, 277, 281, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (concluding that it is structural error for a court to give an incorrect definition of "reasonable doubt"); Sanchez v. People , 2014 CO 29, ¶¶ 14, 20, 325 P.3d 553 (concluding that it is structural error for a court to convict a defendant for a crime for which the jury did not find him guilty of every element); Medina v. People , 163 P.3d 1136, 1138, 1141 (Colo. 2007) (concluding that it is structural error for a court to sentence a defendant for a crime for which he was not convicted).
¶ 1 A jury convicted Paul Lacey Rail of sexual assault on a child (SAOC) and answered a special interrogatory finding a pattern of abuse, but acquitted him of sexual assault on a child-position of trust (SAOC–POT). Rail appeals, primarily contending that under Sanchez v. People, 2014 CO 29, 325 P.3d 553, inconsistencies between the jury's answers to the special interrogatory on pattern and the special interrogatory on unanimity constitute structural error mandating reversal.¶ 2 Because we conclude that Sanchez is distinguishable and other precedent does not support applying structural error, we reject this contention.