Background
Alfonso Cortez-Orta was convicted of numerous sex crimes involving his stepdaughters, N and C. On appeal, he challenged three convictions for first-degree rape and one conviction for first-degree sexual abuse, all of which required proof that the victim was subjected to forcible compulsion.
The jury instructions required findings that Cortez-Orta knowingly engaged in the charged sexual conduct and knowingly subjected the victim to forcible compulsion. They did not expressly state that the physical force must have caused the victim to submit to or engage in the sexual act. Although defense counsel briefly suggested that the forcible-compulsion language should link the force to the sexual contact, counsel later agreed to the instructions and raised no further objection.
The Court’s Holding
The Court of Appeals held that Cortez-Orta did not preserve his instructional challenge. His brief comment during the instruction conference did not adequately alert the trial court to the contention advanced on appeal, particularly because he did not object to the stated elements, propose a specific causation instruction, or renew the issue after reviewing the final instructions.
Assuming without deciding that omission of the causal-connection instruction was plain error, the court declined to exercise its discretion to correct it. Causation was not disputed at trial: Cortez-Orta maintained that no sexual touching occurred and that the victims were not credible, rather than arguing that any sexual acts occurred without being compelled by force. Given the instructions as a whole and the statutory language, the court found it highly unlikely that an express causation instruction would have changed the verdict and therefore concluded that any error was not sufficiently grave to warrant correction. The convictions were affirmed.
Key Takeaways
- A jury instruction for a forcible-compulsion sex offense should connect the force to the charged sexual act by requiring that the force compelled the victim to submit to or engage in that act.
- A passing comment during an instruction conference may not preserve an appellate claim when counsel does not clearly object, propose corrective language, or object to the final instructions.
- Even assuming an unpreserved instructional omission is plain error, an appellate court may decline correction when the omitted issue was not disputed at trial and was unlikely to affect the verdict.
Why It Matters
The decision underscores the need for defense counsel to make a precise, sustained objection to incomplete jury instructions and to ensure that the objection remains clear after the trial court circulates revised language. Agreement with the final instructions can weigh strongly against later plain-error relief.
The opinion also illustrates that plain-error review turns not only on whether an instruction omitted a required concept, but also on the parties’ trial theories and the practical likelihood that the omission affected the jury’s decision.