Opinion
No. 77-477
Decided March 27, 1980. Opinion modified and as modified petition for rehearing denied April 24, 1980. Certiorari granted September 29, 1980.
Convicted of first degree sexual assault and first degree burglary, defendant appealed.
Affirmed
1. CRIMINAL LAW — First-degree Sexual Assault — First-degree Burglary — Jury Instructions — Elements — Statutory Language — And Intent Element — Correct Guideline — "Knowingly" — Not Necessary. In prosecution for first-degree sexual assault and first-degree burglary, where jury was instructed on the elements of first-degree sexual assault in the statutory language effective at the time of trial and on the necessary element of intent, the jury was provided an adequate and correct guideline on the law to be applied in the case; since "knowingly" was not a statutory element of first-degree sexual assault at the time of trial, it was not necessary to include that factor in the definition of the crime so long as general intent factor was covered elsewhere.
2. No Reasonable Possibility — Jury Instruction — Defense of Intoxication — Contributed to Conviction — Not Plain Error. In prosecution for first-degree sexual assault and first-degree burglary, since there was no reasonable possibility that instruction on the defense of intoxication contributed to defendant's conviction, there was no plain error in the giving of the instruction.
3. Photographs — Defendant's Ring — Distinctive Bruises — Victim Suffered — During Assault — Admission into Evidence — Not Error. In prosecution for first-degree sexual assault and first-degree burglary, since defendant did not contest victim's testimony that she received certain distinctive bruises when she was struck during the assault and did not contest the testimony of police officer that defendant was wearing a certain ring in question the morning after the assault, trial court did not err in admitting into evidence photographs which showed defendant's ring being held next to the bruises which had been suffered by victim during the assault.
Appeal from the District Court of El Paso County, Honorable William M. Calvert, Judge.
J.D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Maureen Phelan, Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Margaret L. O'Leary, Deputy State Public Defender, for defendant-appellant.
This is a bifurcated appeal. The only issues discussed in this opinion pertain to issues regarding the conviction of the defendant. The issues regarding his sentencing are still pending. Defendant appeals his conviction for first degree sexual assault and first degree burglary. We affirm.
Four of defendant's points of error are raised for the first time on appeal. To preserve issues for appeal, it is necessary that they be raised by objection during the trial and that they be included in the motion for new trial. People v. Sanchez, 180 Colo. 119, 503 P.2d 619 (1972). Since these issues were not properly preserved, they can serve as a basis for reversal only if they involve plain error. Crim. P. 52(b).
Two of these contentions relate to the instructions given to the jury. Defendant contends it was plain error for the trial court to fail to include the element of intent in the instruction on first degree sexual assault. He also contends that the trial court committed plain error in giving an instruction on the defense of intoxication because it was not requested and because it was inconsistent with defendant's theory of the case.
[1] The jury was instructed on the elements of first degree sexual assault in the statutory language effective at the time of trial, the word "knowingly" not having been added to the statute until July 1, 1977. See Colo. Sess. Laws 1977, ch. 224, 18-3-402 at 962. Such an instruction is ordinarily sufficient. People v. Crawford, 191 Colo. 504, 553 P.2d 827 (1976). The jury was also instructed on the necessary element of intent in a separate instruction. Therefore, the instructions considered as a whole provided the jury an adequate and correct guideline on the law to be applied in this case. People v. Pool, 185 Colo. 131, 522 P.2d 102 (1974).
People v. Hardin, 199 Colo. 229, 607 P.2d 1291 (1980), is not applicable here. The statute in effect at the time of the offense, and at the time the defendant was charged and tried, stated only a general intent crime. That is, before July 1, 1977, "knowingly" was not a statutory element of first degree sexual assault, and it was not necessary, therefore, to include that factor in the definition of the crime, so long as the general intent factor was covered elsewhere in the instructions. People v. Crawford, supra.
[2] With respect to the instruction on the defense of intoxication, we find no reasonable possibility that the instruction contributed to defendant's conviction. People v. Aragon, 186 Colo. 91, 525 P.2d 1134 (1974). We therefore find no plain error in the giving of the instructions.
Nor does our review of the record reveal plain error with respect to defendant's contentions that certain pubic hairs should not have been admitted into evidence, and that the victim's identification of defendant should have been suppressed. As a result, these contentions will not be considered on appeal. Sanchez, supra.
II.
Defendant also contends that the trial court erred in admitting into evidence photographs which showed defendant's ring being held next to distinctive bruises that had been suffered by the victim during the assault. We disagree.
The admissibility of photographs lies within the sound discretion of the trial court and will be reversed only if that discretion was abused. People v. Sexton, 192 Colo. 81, 555 P.2d 1151 (1976). Photographs may be introduced to show the scene of the crime, the appearance of the victim, and any other matters which a witness could describe in words. People v. Sepeda, 196 Colo. 13, 581 P.2d 723 (1978). Also, photographs may be admitted if it would be helpful to permit a witness to supplement his description by their use. Potts v. People, 114 Colo. 253, 158 P.2d 739 (1945).
Here, defendant did not contest the victim's testimony that she received the bruises when she was struck during the assault. Nor did he contest the testimony of a police officer that defendant was wearing the ring in question the morning after the assault. Under these circumstances, the admission into evidence of the photograph was not an abuse of discretion and any weight to be given to the pictorial comparison of the shape of the bruises to the shape of the ring was a matter for the jury.
III.
Because of our holdings on the above issues, we find no merit in defendant's additional contentions of error.
Judgment affirmed.
JUDGE BERMAN and JUDGE VAN CISE concur.