Peo v. Marlow

22CA2025 Peo v Marlow 10-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2025
Pitkin County District Court No. 21CR47
Honorable Christopher G. Seldin, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Robert Lee Marlow,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE DUNN
Navarro and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 3, 2024

Philip J. Weiser, Attorney General, Abigail M. Armstrong, Assistant Attorney
General Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Katherine Brien, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A jury convicted defendant, Robert Lee Marlow, of attempted

sexual assault with a use of force enhancer, indecent exposure, and

false imprisonment. Marlow appeals only his attempted sexual

assault conviction and sentence. We affirm the conviction for

attempted sexual assault, reverse the sentence, and remand for

resentencing.

I. Background

¶2 Just after midnight one summer evening, an exceptionally

intoxicated Marlow entered an Aspen bar. Not long after, Marlow

walked downstairs toward the bathrooms. Around the same time,

the victim and a friend also entered the bar. Once there, the victim

went downstairs to use the bathroom.

¶3 As the victim entered the women’s bathroom, she saw a man

inside — later identified as Marlow — with his pants unbuttoned.

She quickly left the women’s bathroom and went into the men’s

bathroom. But after realizing that the bathroom didn’t lock, the

victim turned to leave. At this point, Marlow followed her in,

blocked the exit, pulled down his pants and underwear, and

exposed his penis. The victim screamed and begged Marlow to

“please don’t do this to me” and to let her out. Marlow responded,

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“[Y]ou’re not going anywhere.” The victim, however, ducked under

Marlow’s arm and escaped up the stairs. Hearing screams,

employees assisted the victim and ultimately removed Marlow from

the bar.

¶4 The prosecution charged Marlow with attempted sexual

assault with a use of force sentence enhancer (which elevated the

attempted sexual assault from a class 5 felony to a class 4 felony),

indecent exposure, and false imprisonment.

¶5 At trial, Marlow defended on the theory that he was “blacked-

out intoxicated” and “likely committed a crime,” but “that crime

[wasn’t] attempted sexual assault with force.”

¶6 The jury convicted Marlow as charged. The trial court

sentenced Marlow to a controlling indeterminate prison sentence of

four years to life for attempted sexual assault.

II. Sufficiency of the Evidence — Attempted Sexual Assault

¶7 Marlow challenges the sufficiency of the evidence supporting

his attempted sexual assault conviction. He argues that the

evidence wasn’t sufficient to support the jury’s finding that he took

a substantial step corroborative of his purpose to knowingly cause

sexual intrusion or penetration against the victim’s will.

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A. Standard of Review

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

Donald, 2020 CO 24, ¶ 18. To determine whether the prosecution

presented sufficient evidence to support a conviction, we analyze

“whether the relevant evidence, both direct and circumstantial,

when viewed as a whole and in the light most favorable to the

prosecution, is substantial and sufficient to support a conclusion

by a reasonable mind that the defendant is guilty of the charge

beyond a reasonable doubt.” Id. (quoting Clark v. People, 232 P.3d

1287, 1291 (Colo. 2010)).

¶9 Our inquiry is guided by five well-established principles: (1) we

give the prosecution the benefit of every reasonable inference that

might fairly be drawn from the evidence; (2) the determination of

witness credibility is solely within the province of the jury; (3) we

may not serve as a thirteenth juror by weighing the evidence or

resolving evidentiary conflicts; (4) a modicum of relevant evidence

will not rationally support a conviction beyond a reasonable doubt;

and (5) verdicts in criminal cases may not be based on guessing,

speculation, or conjecture. People v. Procasky, 2019 COA 181,

¶ 18; see also People v. Perez, 2016 CO 12, ¶ 31 (“The question is

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not whether it is possible to disagree with the inferences, but

rather, whether the inferences are reasonable when the evidence is

viewed as a whole in the light most favorable to the prosecution.”).

B. Sufficient Evidence Supports the Jury’s Finding that
Marlow Attempted to Sexually Assault the Victim

¶ 10 A person commits sexual assault if he “knowingly inflicts

sexual intrusion or sexual penetration” on a victim and “causes

submission of the victim by means of sufficient consequence

reasonably calculated to cause submission against the victim’s

will.” § 18-3-402(1)(a), C.R.S. 2021;1 see People v. Martinez, 36 P.3d

154, 163 (Colo. App. 2001) (“The conduct prohibited by the second

degree sexual assault statute is knowing sexual penetration of or

intrusion upon a nonconsenting victim.”).

¶ 11 Sexual intrusion includes, as relevant here, “any intrusion,

however slight, by any object or any part of a person’s body, except

the mouth, tongue, or penis, into the genital or anal opening of

another person’s body.” § 18-3-401(5), C.R.S. 2024. And sexual

1 We cite the sexual assault statute in effect at the time of the

charged events. Section 18-3-402(1)(a), C.R.S. 2021, has since
been amended. Ch. 41, sec. 1, § 18-3-402(1)(a), 2022 Colo. Sess.
Laws 214; see also § 18-3-402(1)(a), C.R.S. 2024.

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penetration means, in relevant part, “sexual intercourse,

cunnilingus, fellatio, anilingus, or anal intercourse.” § 18-3-401(6).

¶ 12 A person commits criminal attempt “if, acting with the kind of

culpability otherwise required for commission of an offense, he

engages in conduct constituting a substantial step toward the

commission of the offense.” § 18-2-101(1), C.R.S. 2024. A

“substantial step” is “any conduct, whether act, omission, or

possession, which is strongly corroborative of the firmness of the

actor’s purpose to complete the commission of the offense.” Id.; see

also People v. Lehnert, 163 P.3d 1111, 1115 (Colo. 2007)

(recognizing that any conduct strongly corroborative of the firmness

of the defendant’s criminal purpose “is sufficient in itself” for a jury

to reasonably find the defendant guilty of criminal attempt).

¶ 13 To be sure, this case is close. But viewed in the light most

favorable to the prosecution, a juror could reasonably conclude

from the following evidence that Marlow took a substantial step

toward sexually assaulting the victim against her will — either

through sexual penetration or sexual intrusion:

• Marlow followed the victim into the men’s bathroom.

• Marlow blocked the bathroom’s exit with his arm.

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• Marlow backed the victim into the sink.

• Marlow pushed the victim back against the sink.2

• Marlow pulled down his pants and underwear to his

knees, exposing his penis.

• The victim was “screaming at the top of [her] lungs” and

trying to kick and punch Marlow.

• The victim “begged” Marlow, “[P]lease, don’t do this,” and

to “let her leave.”

• Marlow responded that she wasn’t “going anywhere.”

• As Marlow “finished getting undressed,” he started to

“come towards” the victim.

• The victim testified that Marlow looked “determined” and

had no regard for her fear.

• As he “approach[ed]” her, the victim managed to duck

under his arm and escape.

2 We recognize that the victim made some inconsistent statements

about whether Marlow pushed her. But in a sufficiency challenge,
we must construe the evidence in the light most favorable to the
prosecution. People v. Donald, 2020 CO 24, ¶ 18.

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• When reporting the encounter to police the day after, the

victim said that Marlow’s penis was “between hard and

soft.”

¶ 14 We are not persuaded otherwise by Marlow’s focus on acts

that Marlow didn’t take. That Marlow could have taken other acts

corroborative of his purpose to sexually assault the victim doesn’t

diminish the quantity or quality of the evidence presented. And

“the question is not whether it is possible to disagree with the

inferences” that could be drawn from the evidence. Perez, ¶ 31. To

the extent different inferences could be drawn, it’s for the jury to

perform that function, not this court. See id. From the evidence

presented, we conclude that a jury could fairly and reasonably infer

that Marlow took a substantial step corroborative of his purpose to

knowingly cause sexual intrusion or penetration against the

victim’s will. See id. (“A court must not invade the province of the

jury by second-guessing its conclusion when the record supports

the jury’s findings.”).

¶ 15 Nor does People v. Derrera, 667 P.2d 1363, 1371 (Colo.

1983) — where the supreme court concluded insufficient evidence

supported the attempted sexual assault conviction — change our

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mind. In Derrera, the defendant offered the victim a ride home. Id.

at 1365. Inside the car, the defendant reached under the victim’s

dress, touched the inside of her mid-thigh, and invited her to his

apartment. Id. After the victim said, “Please don’t do this to me,”

the defendant removed his hand. Id. But the unrequited sexual

advance in Derrera is very different from the facts here where

Marlow had partially undressed, exposed his penis, blocked the

victim’s escape, showed some signs of arousal, refused the victim’s

plea “not to do this,” and advanced on the trapped and screaming

victim when she escaped.

¶ 16 Given all this, we conclude that the prosecution presented

sufficient evidence to sustain the attempted sexual assault

conviction. Having so concluded, we needn’t consider Marlow’s

anticipatory argument that insufficient evidence supported the

lesser included offense of attempted unlawful sexual contact. See

Halaseh v. People, 2020 CO 35M, ¶ 8 (noting a lesser included

offense “is always implied in the conviction of its greater offense”).

III. The Sentence Enhancer

¶ 17 Marlow raises several challenges to the use of force sentence

enhancer (sentence enhancer). But we don’t address them all

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because we agree that the court committed instructional error by

directing the jury to determine whether Marlow attempted to cause

the victim’s submission through the application of “force or physical

violence” rather than “through the application of physical force or

physical violence,” as required by section 18-3-402(4)(a).

(Emphasis added.)

A. Additional Facts

¶ 18 Defense counsel tendered the following proposed instruction

on the sentence enhancer:

The defense-proposed instruction tracked both the use of force

statute and the pattern instruction. See § 18-3-402(4)(a); COLJI-

Crim. 3-4:10.INT (2023). But the court rejected it. Instead, over

defense counsel’s objection, the court instructed the jury, in

relevant part, as follows:

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Instruction 12

¶ 19 Additionally, the corresponding verdict form asked the jury to

answer “yes” or “no” to the question, “Did the defendant attempt to

cause submission through force or violence?”3

¶ 20 During deliberations, the jury sought clarification on the

language pertaining to the sentence enhancer, asking the court to

“please define ‘actual application of force or physical violence?’” The

court declined, simply responding, “No.”

3 We recognize that the focus of the instruction conference related

to the attempt charge and whether the instruction and verdict form
should be modified to address the attempt charge. Defense counsel
objected to the inclusion of the word “attempt” in the sentence
enhancer instruction as well as in the verdict form. And Marlow
persists in this objection on appeal. However, given our resolution,
we don’t reach Marlow’s additional challenges to the sentence
enhancer instruction or verdict form.

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B. Preservation and Standard of Review

¶ 21 The parties agree that Marlow preserved his objection to the

sentence enhancer instruction (Instruction 12) but dispute whether

we should review any error under the harmless error standard or

the constitutional harmless error standard. Compare Griego v.

People, 19 P.3d 1, 7 (Colo. 2001) (preserved allegation of

instructional error regarding an element of an offense is an “error of

constitutional magnitude” and is reviewed under the constitutional

harmless error standard), with People v. Garcia, 28 P.3d 340, 344

(Colo. 2001) (preserved allegations of instructional error that are not

errors of “constitutional dimension” are reviewed under the

harmless error standard (quoting Salcedo v. People, 999 P.2d 833,

841 (Colo. 2000))). Because the result is the same under either

standard, we will apply the “more difficult” (to obtain reversal)

harmless error standard. Hagos v. People, 2012 CO 63, ¶ 12.

Under this standard, we must reverse if there’s a reasonable

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probability that the error contributed to the conviction. Washington

v. People, 2024 CO 26, ¶ 25.4

¶ 22 A trial court must instruct the jury correctly on the law

applicable to the case. People v. Weinreich, 119 P.3d 1073, 1076

(Colo. 2005). Instructions that substantially track the statutory

language are generally sufficient. People v. Archuleta, 2017 COA 9,

¶ 52. We review de novo whether the jury instructions adequately

informed the jury of the governing law. Garcia v. People, 2022 CO

6, ¶ 16.

C. The Sentence Enhancer

¶ 23 Sexual assault is generally a class 4 felony. See § 18-3-402(2).

But if a defendant “causes submission of the victim through the

actual application of physical force or physical violence,” then it’s

elevated to a class 3 felony. § 18-3-402(4)(a). And “criminal

attempt to commit a class 3 felony is a class 4 felony.” § 18-2-

101(4). All this is to say that if the sentence enhancer applies to an

4 The People dispute preservation as to the verdict form and

specifically to the omission of the word “physical” in the verdict
form (which omits the word “physical” before both “force” and
“violence”). But because we conclude the instructional error
requires reversal regardless of the verdict form, we needn’t resolve
this dispute.

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attempted sexual assault, then a defendant commits a class 4

felony. See §§ 18-2-101(4), 18-3-402(4)(a); see also People v. King,

151 P.3d 594, 599 (Colo. App. 2006) (applying sentence enhancer to

attempted sexual assault). And a class 4 felony sex offense is

subject to indeterminate sentencing. See King, 151 P.3d at 599

(“[A] person who is charged with criminal attempt to commit a

sexual assault is subject to indeterminate sentencing under [the

Colorado Sex Offender Lifetime Supervision Act of 1998 (the Act)] if

the attempted assault constitutes a class two, three, or four

felony.”); see also § 18-1.3-1004, C.R.S. 2024 (setting out

Colorado’s indeterminate sentencing scheme under the Act); § 18-

1.3-1003(5)(b), C.R.S. 2024 (defining “[s]ex offense” as used in the

Act to include criminal attempt to commit sexual assault if such

criminal attempt would constitute a class 2, 3, or 4 felony).

¶ 24 Like the elements of an offense, a sentence enhancer must be

proved beyond a reasonable doubt. People v. Dunlap, 124 P.3d 780,

793 (Colo. App. 2004); see also Armintrout v. People, 864 P.2d 576,

580 (Colo. 1993) (“A sentence enhancer is similar to an essential

element of an offense in that a defendant may not be sentenced at

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the higher felony level unless the factor enhancing the sentence is

proved beyond a reasonable doubt.”).

D. The Court Committed Instructional Error

¶ 25 Marlow argues — and we agree — that Instruction 12 (and the

corresponding verdict form) failed to track the language of section

18-3-402(4)(a) by omitting the word “physical” before the word

“force.”

¶ 26 For a couple of reasons, we are unpersuaded by the People’s

response that the omission doesn’t matter and that “force” and

“physical force” mean the same thing because the instruction

required “the actual application of force.” First, it requires us to

disregard the plain language of the statute. Had the legislature

intended to allow for enhanced sentencing through the application

of “force” alone, it could have said so. The legislature instead chose

to modify the word “force” with the word “physical.” And we will not

construe a statute in a manner that renders any words or phrases

meaningless. See Pineda-Liberato v. People, 2017 CO 95, ¶ 22; see

also Turbyne v. People, 151 P.3d 563, 567-68 (Colo. 2007)

(explaining we will not add or subtract words from a statute).

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¶ 27 Second, while “physical force” means “force applied to the

body,” People v. Keene, 226 P.3d 1140, 1143 (Colo. App. 2009),

“force” has a broader meaning which could involve — but doesn’t

require — physical contact. See Webster’s Third New International

Dictionary 887 (2002) (defining force to include, among other

things, “power, violence, compulsion, or constraint” or “strength or

power of any degree”). A person can therefore apply “force” without

touching another’s body. For instance, purposeful and aggressive

movements towards someone or assertive commands directed at

someone could constitute an application of “force” without touching

another person. And, indeed, the evidence here shows as much.

Leaving aside the victim’s statements about whether Marlow

pushed her, the victim testified that Marlow (who is significantly

larger than the victim) barged into a small bathroom, blocked the

only exit, and “kind of backed [her] into the sink.” Thus, even if the

jury didn’t believe that Marlow pushed the victim, it could still

conclude that Marlow’s actions forced the victim back against the

sink without any physical contact.

¶ 28 That leaves only the question of whether the error was

harmless. While the People argue that it was, whether and to what

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extent Marlow used force — and specifically physical force against

the victim — was hotly contested at trial. The victim made

inconsistent statements as to whether Marlow pushed her back or

simply forced her back through his actions. Indeed, the officer who

spoke with the victim the day after the assault testified it was

unclear whether Marlow ever touched the victim. And as already

explained, the jury could’ve reasonably and unanimously concluded

that Marlow used force — but not physical force — against the

victim; if so, the jury would not have found him guilty of the

sentence enhancer but for the erroneous sentence enhancer

instruction. The error was therefore prejudicial.

¶ 29 And even beyond that, we know the jury was confused about

the “actual application of force or physical violence” because it

unsuccessfully asked the court for a definition of that phrase. See

Garcia v. People, 2022 CO 6, ¶ 16 (“We review not only whether the

jury instructions faithfully track the law but also whether the

instructions are confusing or may mislead the jury.”).

¶ 30 Given the evidence presented and the juror confusion, we can’t

conclude the omission of the word “physical” from Instruction 12

was harmless. See People v. Ferguson, 43 P.3d 705, 707-08 (Colo.

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App. 2001) (holding that the trial court’s instructional error wasn’t

harmless); cf. People v. Miller, 113 P.3d 743, 750 (Colo. 2005) (“[A]n

erroneous jury instruction does not normally constitute plain error

where the issue is not contested at trial or where the record

contains overwhelming evidence of the defendant’s guilt.”).

Accordingly, we must reverse Marlow’s class 4 felony conviction.

¶ 31 As to the remedy, Marlow asks us to “remand the case for

resentencing on a class [5] felony.” Having argued that the court

didn’t err, or alternatively that the error was harmless, the People

neither respond to the requested remedy nor propose an alternate

remedy. We therefore remand the case for resentencing on the

attempted sexual assault conviction as a class 5 felony.

IV. Disposition

¶ 32 We affirm the attempted sexual assault conviction, reverse the

sentence enhancement, and remand the case to the trial court for

resentencing on a class 5 felony.5

JUDGE NAVARRO and JUDGE GOMEZ concur.

5 Marlow doesn’t appeal the two misdemeanor convictions, so those

convictions remain undisturbed.

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