Darkhanbayar Tumentsereg v. the People of the State of Colorado — Bender, J., Dissenting

Summary

The dissent concludes that the omission of the word "physically" from the sexual-assault-enhancer interrogatory, together with the lack of an instruction defining the enhancer, created a reasonable possibility that the jury reached a different sentencing-related finding than it otherwise would have. Because the evidence supported multiple competing accounts of the events and the jury acquitted the defendant of several weapon-related charges, the dissent would find plain error and reverse the class-two felony sexual-assault conviction for resentencing.