People v. Ramirez , 2018 COA 129 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
September 6, 2018
2018COA129
No. 16CA1298, People v. Ramirez — Crimes — Unlawful Sexual
Behavior — Sexual Assault on a Child — Sexual Assault on a
Child by One in a Position of Trust
In this sexual assault on a child case, a division of the court of
appeals holds that semen is not an intimate part as defined by
section 18-3-401(2), C.R.S. 2017. Because the evidence presented
at trial did not prove that the defendant touched an intimate part of
the victim or that the victim touched the defendant’s intimate part,
the division concludes that there was insufficient evidence to
support the defendant’s convictions for sexual assault on a child
and sexual assault on a child by one in a position of trust. The
division therefore vacates those convictions. The division affirms
the defendant’s convictions for indecent exposure.
The dissent disagrees, and would hold that, under the
particular circumstances of the case, semen is part of the external
genitalia as included in the statutory definition of intimate parts.
§ 18-3-401(2). Accordingly, the dissent would conclude that the
evidence was sufficient to support defendant’s convictions for
sexual assault on a child.
COLORADO COURT OF APPEALS 2018COA129
Court of Appeals No. 16CA1298
Adams County District Court No. 15CR794
Honorable Francis C. Wasserman, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Senon Louis Ramirez,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND VACATED IN PART
Division IV
Opinion by JUDGE BERGER
Kapelke*, J., concurs
Davidson*, J., dissents
Announced September 6, 2018
Cynthia H. Coffman, Attorney General, Ellen M. Neel, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Katherine Brien, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 A jury convicted defendant Senon Louis Ramirez of sexual
assault on a child (SAOC), sexual assault on a child by one in a
position of trust (SAOC-POT), and indecent exposure, based on
testimony that he ejaculated into the hands of his foster child and
then required the child to swallow the semen. Ramirez claims that
there was insufficient evidence to support his convictions for SAOC
and SAOC-POT. He does not challenge his conviction for violating
the indecent exposure statute.
¶2 The sole issue presented is whether the statutes defining
SAOC criminalize Ramirez’s reprehensible conduct.1 Applying the
plain language of these statutes, we conclude that Ramirez’s
convictions for SAOC and SAOC-POT cannot stand. We decline the
Attorney General’s invitation to rewrite the statute to criminalize
this conduct because we do not have the authority to do so.
I. Relevant Facts and Procedural History
¶3 Ramirez was convicted of SAOC and SAOC-POT based on the
following evidence.
1In view of our disposition we do not address Ramirez’s separate
contention that the trial court erred in answering two jury
questions.
1
¶4 When the victim was four years old, Ramirez, her foster father,
ordered her and her sister to approach him. He placed their hands
in front of him, pulled down his pants and underwear, and
masturbated. Ramirez ejaculated into their hands and made them
drink the semen. The victim testified that Ramirez never touched
any of her “private parts” and that she never touched his “private
parts.”
¶5 The children were later adopted by another family and some
years later the victim disclosed the incident to her adoptive mother,
who notified the police.
¶6 Ramirez was charged with two counts of SAOC (one count as
to the victim and one count as to her sister); two counts of SAOC-
POT) (again, one count as to each child); and two counts of indecent
exposure (one count for each child). The jury convicted him of one
count of SAOC and one count of SAOC-POT as to the victim, and
two counts of indecent exposure (one count for each child). The
jury acquitted Ramirez of one count of SAOC and one count of
SAOC-POT as to the sister.
2
II. The Prosecution Did Not Prove Either that Ramirez Touched
the Victim’s “Intimate Part[]”or that the Victim Touched Ramirez’s
“Intimate Part[]”
A. Standard of Review and Preservation
¶7 “We review the record de novo to determine whether the
evidence before the jury was sufficient both in quantity and quality
to sustain the convictions.” Dempsey v. People, 117 P.3d 800, 807
(Colo. 2005). We must determine “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.” People v. Bennett,
183 Colo. 125, 130, 515 P.2d 466, 469 (1973). When the
prosecution fails to present sufficient evidence to support a finding
of guilt on every element of the offense, the constitutional
prohibitions against double jeopardy usually prohibit a retrial. U.S.
Const. amend. V; Colo. Const. art. II, § 18; People in Interest of
H.W., 226 P.3d 1134, 1138 (Colo. App. 2009).
¶8 Ramirez’s sufficiency of the evidence contention turns on the
meaning of sections 18-3-401(2) and (4), C.R.S. 2017, the statutes
that define the critical terms contained in the statutes that
3
criminalize SAOC and SAOC-POT. We review questions of statutory
interpretation de novo. People v. Vecellio, 2012 COA 40, ¶ 13.
¶9 “When interpreting a statute, we must give effect to the intent
of the General Assembly, which is vested with the power to define
criminal conduct and to establish the legal components of criminal
liability.” Id. at ¶ 14. We begin with the plain language of the
statute, reading the words and phrases in context and construing
them according to their common usage. Id. If the statutory
language is clear and unambiguous, we apply it as written without
resort to further statutory analysis. Id. We “respect the
legislature’s choice of language,” Turbyne v. People, 151 P.3d 563,
568 (Colo. 2007), and “do not add words to the statute or subtract
words from it,” id. at 567.
¶ 10 Ramirez moved for judgment of acquittal on the same grounds
he asserts on appeal. Therefore, he has preserved his insufficiency
of the evidence claim.
B. “Intimate Parts” Does Not Include Semen
¶ 11 To commit the crimes of SAOC and SAOC-POT the defendant
must have “sexual contact” with a child. § 18-3-405(1), C.R.S.
2017; § 18-3-405.3(1), C.R.S. 2017.
4
¶ 12 Section 18-3-401(4) defines “sexual contact” as
the knowing touching of the victim’s intimate
parts by the actor, or of the actor’s intimate
parts by the victim, or the knowing touching of
the clothing covering the immediate area of the
victim’s or actor’s intimate parts if that sexual
contact is for the purposes of sexual arousal,
gratification, or abuse.
(Emphasis added.)
¶ 13 The statutory definition of “intimate parts” is:
the external genitalia or the perineum or the
anus or the buttocks or the pubes or the
breast of any person.
§ 18-3-401(2).
¶ 14 Combining these two statutory definitions, to prove the crimes
of SAOC and SAOC-POT the prosecution must prove, beyond a
reasonable doubt, that “for the purposes of sexual arousal,
gratification, or abuse” the defendant knowingly touched the
victim’s “intimate parts” (directly or through the victim’s clothing) or
that the victim touched the defendant’s “intimate parts.” §§ 18-3-
401, -405, -405.3. The touching must be of the “external genitalia
or the perineum or the anus or the buttocks or the pubes of the
breast of any person.” § 18-3-401(2).
5
¶ 15 Ramirez argues that because there was no evidence that he
touched the victim’s “intimate parts” or that the victim touched his
“intimate parts” he cannot be convicted of either SAOC or SAOC-
POT.
¶ 16 In response, the Attorney General first contends that when
Ramirez’s semen touched the victim’s hands, a “touching” occurred
within the meaning of section 18-3-401(4). That argument is
supported by a division of this court’s decision in People v. Vinson,
42 P.3d 86, 87-88 (Colo. App. 2002). There the division concluded
that the defendant’s act of ejaculating onto the victim’s buttocks
was a “touching” of the victim’s “intimate parts.” Id. at 87. We
agree with Vinson; ejaculating onto the intimate parts of the victim
constitutes sexual contact within the meaning of section 18-3-
401(4).
¶ 17 But the prosecution must also prove that the touching was of
an “intimate part[],” as defined by section 18-3-401(2). Here,
Vinson does not help the Attorney General because in Vinson the
touching was of the victim’s buttocks, one of the body parts defined
by section 18-3-401(2) as an “intimate part.” Vinson, 42 P.3d at 87.
6
In contrast, here, the touching was of the victim’s hands, which are
not “intimate parts” as defined in the statute.
¶ 18 To avoid this rather significant problem, the Attorney General
posits that Ramirez’s semen was his “intimate part[]” with which he
touched the victim. (In this context it makes no difference if
Ramirez’s “intimate part[]” touches a part of the victim’s body which
is not an “intimate part[].”) However, section 18-3-401(2) does not
mention semen. Thus, unless semen somehow is encompassed
within the items included in the definition of “intimate parts,” it
cannot constitute an “intimate part[]” of Ramirez.
¶ 19 The Attorney General contends, however, that semen is part of
Ramirez’s “external genitalia.” The statute does not define “external
genitalia”; therefore, we consult the dictionary to determine its
meaning. See People v. Fioco, 2014 COA 22, ¶ 19. Genitalia are
“the organs of the reproductive system; especially: the external
genital organs.” Webster’s Third New International Dictionary 946
(2002).
¶ 20 Nor is semen defined in the statute (indeed semen is not
mentioned in the statute at all). Semen is a “fluid produced in the
male reproductive tract.” Id. at 2062.
7
¶ 21 These dictionary definitions permit only one, inexorable
conclusion: semen is not part of the male genitalia; it is a fluid
produced by the male body and emitted by male genitalia.
¶ 22 The Attorney General next argues that the supreme court in
Woellhaf v. People, 105 P.3d 209, 212-13 (Colo. 2005), held that
ejaculation onto a victim’s body part constitutes “sexual contact”
even if the touching was not of an “intimate part[].” But, Woellhaf
did not analyze whether the ejaculation in that case constituted
sexual contact within the meaning of section 18-3-401, and
Woellhaf certainly did not purport to rewrite section 18-3-401(2).
So far as the opinion discloses, no party raised the issue that is
determinative here; instead, the supreme court addressed questions
of multiplicity and double jeopardy. See id. at 220. Woellhaf,
therefore, does not support the Attorney General’s argument.
¶ 23 Because we must construe the statutory language according to
its plain and ordinary meaning, we conclude that semen is not an
“intimate part[]” within the meaning of section 18-3-401(2). In the
end, for whatever reason, the General Assembly did not include
semen in the definition of “intimate parts.” “[I]n interpreting a
statute, we must accept the General Assembly’s choice of language
8
and not add or imply words that simply are not there.” People v.
Benavidez, 222 P.3d 391, 393-94 (Colo. App. 2009).
¶ 24 Courts in other jurisdictions also have rejected the theory that
semen constitutes an “intimate part[]” under statutes similar to
Colorado’s. For example, in State v. Stephen G., the Connecticut
intermediate appellate court concluded that where the legislature
had defined “intimate parts” as “the genital area, groin, anus, inner
thighs, buttocks or breasts,” the prosecution had to prove that the
defendant subjected the victim to contact with one of the listed
“intimate parts.” 967 A.2d 586, 593 (Conn. App. Ct. 2009) (citation
omitted). When the evidence established that the defendant
ejaculated on the victim’s face and mouth, the court held that “the
element of contact with an intimate part was not proven beyond a
reasonable doubt.” Id. at 593-94.
¶ 25 A similar argument was rejected by the Wisconsin Court of
Appeals in a case decided before Wisconsin’s legislature expanded
the definition of “sexual contact” to include the “[i]ntentional penile
ejaculation . . . by the defendant,” see Wis. Stat. 948.01(5)(a)(2)(b)
(2017). The court held that the legislature “simply failed to include
semen ejaculation under the definition of sexual contact” and,
9
therefore, the ejaculation by the defendant onto the victim’s
stomach did not constitute sexual contact within the meaning of
Wisconsin’s statute. State v. J.G., 588 N.W.2d 927, *3-4 (Wis. Ct.
App. 1998) (unpublished opinion).
¶ 26 The Attorney General has not cited, and we have not found, a
single decision by any court that accepts the theory that semen is
an “intimate part[]” under a statute that is substantially similar to
Colorado’s.
¶ 27 Nevertheless, the Attorney General relies on cases which
construed statutes very different from the controlling statute in
Colorado. For example, in the statute at issue in State v. Jackson,
“sexual contact” was defined as “any touching of the sexual or other
intimate parts of a person done for the purpose of gratifying sexual
desire.” 187 P.3d 321, 323 (Wash. Ct. App. 2008) (emphasis added)
(citation omitted). Under that statute, contact was “intimate” when
“the conduct is of such a nature that a person of common
intelligence could fairly be expected to know that, under the
circumstances, the parts touched were intimate and therefore the
touching was improper.” Id. And, “[w]hich anatomical areas, apart
from genitalia and breast, are ‘intimate’ [was] a question for the
10
trier of fact.” Id. This definition of an intimate part is vastly
different from Colorado’s definitional statute, which specifically and
exclusively defines “intimate parts.”2
¶ 28 The Attorney General also relies on State v. Dawson where the
Missouri Court of Appeals held that placing semen in a person’s
drinking mug, and requiring the victim to drink it, constituted
physical contact sufficient to sustain a conviction for non-sexual
assault. 985 S.W.2d 941, 952 (Mo. Ct. App. 1999). The applicable
statute in that case defined “physical contact” as “the touching of
the person of another or something so intimately associated with, or
attached to his person to be regarded as a part thereof.” Id. at 951
(citation omitted). That language is much broader than the
language chosen by the Colorado General Assembly, and easily
encompasses ejaculated semen.
2 In addition, the defendant in Jackson did not argue that his
semen was not an “intimate part[]” but instead argued that
ejaculating on another was not a “touching” for the purposes of
proving a sexual contact. State v. Jackson, 187 P.3d 321, 323
(Wash. Ct. App. 2008). As noted above, a division of this court has
resolved that question in favor of the Attorney General, a decision
we follow in this case. People v. Vinson, 42 P.3d 86, 88 (Colo. App.
2002).
11
¶ 29 It is worth noting that a number of states have avoided the
problem presented by this case because their SAOC statutes
expressly criminalize the behavior engaged in by Ramirez. In Idaho,
“sexual contact” includes “human masturbation” as well as the
touching of intimate parts. Idaho Code § 18-1506(4) (2017).
California proscribes the “intentional masturbation of the
perpetrator’s genitals in the presence of a child.” Cal. Penal Code
§ 11165.1(b)(5) (2017); see also Ga. Code. Ann. § 16-12-100(a)(4)(C)
(2017) (defining masturbation as “sexually explicit conduct”); N.J.
Stat. Ann. § 2C:24-4 (West 2017) (listing masturbation as a
“prohibited sexual act”).
¶ 30 The Attorney General’s final arguments are, in effect, pleas for
us to rewrite the statute to punish Ramirez for his disgusting
behavior.
¶ 31 The Attorney General argues, and the dissent would hold, that
excluding semen from the definition of “intimate parts” defeats the
legislative intent to prohibit a broad range of “sexual contact.” We
reject this argument because we discern the legislative intent from
the plain words of the statute if, as here, the statute is
unambiguous. See People v. G.S., 2018 CO 31, ¶ 15. “[I]f the
12
statutory language is clear and unambiguous, we look no further.”
Am. Family Mut. Ins. Co. v. Barriga, 2018 CO 42, ¶ 8.
¶ 32 The Attorney General next contends, and the dissent again
agrees, that it is “absurd” to think that the General Assembly did
not intend to include this conduct within the sexual assault on a
child statute (even though his conduct is criminalized by the
indecent exposure statute, section 18-7-302, C.R.S. 2017). While
the result mandated by the statutory language likely is undesirable
to almost everyone, that does not give us a license to improve or
rewrite the statute. Dep’t of Transp. v. City of Idaho Springs, 192
P.3d 490, 494 (Colo. App. 2008).
¶ 33 The Attorney General also argues that we should follow other
divisions of this court that have rejected a narrow reading of the
SAOC and SAOC-POT statutes. For this argument, the Attorney
General relies on People v. Sparks, 2018 COA 1; People v. Pifer,
2014 COA 93; and People v. Cook, 197 P.3d 269 (Colo. App. 2008).
¶ 34 But we are not “narrow[ly] reading” the statute. We are simply
applying the plain words of the statute. Unlike this case, in the
cases relied on by the Attorney General the divisions addressed
terms which were not statutorily defined. In Sparks, ¶¶ 10-14, the
13
division addressed the meaning of “subjects another” as used in
section 18-3-405(1). Pifer, ¶ 11, concluded that the touching of a
victim through a sheet and her clothes was a touching within the
meaning of the statute. Finally, in Cook, the division held that
forcing the victim to self-touch was “constructive touching” under
the statute. 197 P.3d at 278. In each of these cases, the divisions
construed undefined statutory terms.
¶ 35 Thus, having concluded that semen is not an “intimate part[]”
as defined by the General Assembly, we now turn to the evidence
presented at trial to determine if the prosecution presented
sufficient evidence to sustain Ramirez’s SAOC and SAOC-POT
convictions.
C. The Evidence Did Not Prove that Ramirez Touched an
“Intimate Part[]” of the Victim or that the Victim Touched an
“Intimate Part[]” of Ramirez
¶ 36 The victim testified at trial that she never touched Ramirez’s
“private part” and that he never touched hers. The prosecution also
offered, and the trial court admitted, a video recording of the
victim’s forensic interview in which the victim repeatedly stated that
she did not touch Ramirez’s “private part.”
14
¶ 37 Despite this, the Attorney General argues that the victim’s
testimony supports a finding by the jury that the victim could have
(or even must have) touched Ramirez’s penis when he ejaculated
into her hands. To support this argument, the Attorney General
speculates that in order to ejaculate on the victim’s hands,
Ramirez’s penis must have touched the victim’s hand.
¶ 38 The Attorney General also argues that some of the victim’s
testimony at trial was sufficiently vague that a reasonable juror
could have found that the victim did indeed touch Ramirez’s penis.
For this argument, the Attorney General relies on the following
testimony:
[Prosecutor]: Was there ever a time that he had
you touch his private?
[Victim]: No, there was not.
[Prosecutor]: Just this one time?
[Victim]: Yes.
¶ 39 Our response to both of these arguments is the same. While
we give great deference to a jury’s verdict, view the evidence in the
light most favorable to the prosecution, and draw all reasonable
inferences in favor of the prosecution, the evidence must still be
“substantial and sufficient” to support the conviction. Bennett, 183
15
Colo. at 130, 515 P.2d at 469. “[T]here must be a logical and
convincing connection between the facts established and the
conclusion inferred.” Clark v. People, 232 P.3d 1287, 1292 (Colo.
2010).
¶ 40 The Attorney General’s arguments are wholly speculative and
directly contradict the unrebutted testimony of the victim both at
trial and in her forensic interview. Permitting a criminal conviction
to rest on this type of speculation would eviscerate the
constitutional mandate that the evidence be “substantial and
sufficient to support a conclusion by a reasonable mind that the
defendant is guilty of the charge beyond a reasonable doubt.”
Bennett, 183 Colo. at 130, 515 P.2d at 469 (emphasis added).
¶ 41 Given our conclusion that semen does not constitute an
“intimate part[]” within the meaning of the statute — as well as the
fact that the Attorney General does not contend that the victim’s
hands or mouth were her “intimate parts” — it follows that the
evidence was insufficient to prove beyond a reasonable doubt that
Ramirez committed SAOC or SAOC-POT. Therefore, we vacate
Ramirez’s SAOC and SAOC-POT convictions.
16
III. Conclusion
¶ 42 Ramirez’s convictions for SAOC and SAOC-POT are vacated,
and the district court, on remand, is directed to dismiss those
charges with prejudice. Because Ramirez did not appeal his
convictions for indecent exposure, those convictions are affirmed.
JUDGE KAPELKE concurs.
JUDGE DAVIDSON dissents.
17
JUDGE DAVIDSON, dissenting.
¶ 43 Defendant forcibly placed a child’s hands near his penis,
ejaculated into them, and then forced the child to drink the semen.
According to the majority, this was not sexual assault on a child
because the child did not touch any of defendant’s intimate parts as
that term is defined in the sexual assault on a child statute.
¶ 44 I respectfully dissent for two related reasons: (1) under these
facts, defendant’s semen satisfies the statutory definition of
intimate parts; and (2) it is both contrary to legislative intent and
absurd that, for purposes of prohibiting sexual contact with
children, a grown man’s intimate parts includes his penis but not
the sexual excretions of his penis.
I. The Evidence and The Majority’s Conclusion
¶ 45 The victim was of pre-school age at the time of the incident. At
her forensic interview, she described what happened: “[H]e just
grabbed my hands and then he put it umm near his private part
and then, well I didn’t actually touch it, but I umm, I had, I had to
put it close to his private part, and then he let it go and then, and
then he squeezed his private part and then milk came out into my
hands.” (Emphasis added.)
18
¶ 46 Her testimony at trial was basically the same, although less
detailed, and a bit confusing:
[Prosecution]: Was there ever a time that he
had you touch his private?
[Vitim]: No, there was not.
[Prosecution]: Just this one time?
[Victim]: Yes.
(Emphasis added.) The victim also testified that she could not
remember whether she had kissed defendant’s penis.
¶ 47 The majority concludes that this evidence was not sufficient to
convict defendant of sexual assault on a child. That offense
requires sexual contact, which in turn requires, as relevant here,
that the victim touched the defendant’s intimate parts. § 18-3-
401(4), C.R.S. 2017 (sexual contact means the victim touching the
actor’s intimate parts); § 18-3-405(1), C.R.S. 2017 (sexual assault
on a child requires sexual contact). The majority concludes that
because the victim touched only defendant’s semen, not his penis,
the victim did not touch the defendant’s intimate parts. Therefore,
according to the majority, there was no sexual contact as defined by
the statute and no sexual assault. I disagree.
19
II. Defendant’s Semen Is an “Intimate Part”
¶ 48 The statutory definition of intimate parts includes “the
external genitalia.” § 18-3-401(2). While “external genitalia” is not
further defined, it is an accepted medical term describing the penis,
scrotum and urethra, as discrete structures of the male
reproductive system. My conclusion that “external genitalia” also
includes semen rests on basic physiology.
¶ 49 Semen is a fluid produced in the male genitalia, some
components of which are stored in the scrotum. See, e.g., Irvin H.
Hirsch, M.D., Structure of the Male Reproductive System, Merck
Manual Consumer Version (July 2017), https://perma.cc/L39G-
RSN5. Thus, prior to ejaculation, semen is part of the male
“external genitalia.”
¶ 50 At the time of ejaculation, the semen “travels through the
penile urethra out the end of the glans at the tip of the penis.” 70
Am. Jur. 3d Proof of Facts (2002). I see no reason why it ceases to
be part of the male external genitalia as soon as it is excreted —
necessarily by sexual arousal — at the moment of ejaculation.
There may be circumstances — for example, a considerable length
of time between ejaculation and the semen’s eventual contact with a
20
victim — in which semen may not qualify as part of the man’s
external genitalia and intimate parts. But those are not the facts in
this case. Here, defendant forced the victim to hold her hands
“close” to his penis and he ejaculated directly into them. Under
these circumstances, I would hold that defendant’s semen was part
of his external genitalia and therefore an intimate part.
¶ 51 Indeed, to interpret the statute to not include semen as an
intimate part under the circumstances here leads to an absurd
result that the legislature did not intend.
¶ 52 “We presume that the General Assembly intends a just and
reasonable result when it enacts a statute, and we will not follow a
statutory construction that defeats the legislative intent or leads to
an unreasonable or absurd result.” People v. Vinson, 42 P.3d 86,
87 (Colo. App. 2002) (citing People v. Gholston, 26 P.3d 1 (Colo. App.
2000)).
¶ 53 We may reject a narrow interpretation of a statute in the rare
circumstance when “the resultant absurdity is ‘so gross as to shock
the general moral or common sense.’” Dep’t of Transp. v. City of
Idaho Springs, 192 P.3d 490, 494 (Colo. App. 2006) (quoting Crooks
v. Harrelson, 282 U.S. 55, 60 (1930)); see People v. Kailey, 2014 CO
21
 50, ¶ 13 (“Although we must give effect to the statute’s plain and
ordinary meaning, the General Assembly’s intent and purpose must
prevail over a literalist interpretation that leads to an absurd
result.” (quoting Lagae v. Lackner, 996 P.2d 1281, 1284 (Colo.
2000))).
¶ 54 “The evident purpose of the [sexual assault on a child statute]
was to protect children under a certain age from those acts which
would tend to corrupt their morals . . . because its prime object is to
protect the morals of youth by punishing those committing acts
having a tendency to corrupt them.” Cross v. People, 122 Colo. 469,
472, 223 P.2d 202, 204 (1950). Clearly, the legislature intended the
sexual assault on a child statute to prohibit and punish all sexual
acts performed on children. See § 18-3-405(1); § 18-3-405.3(1),
C.R.S. 2017 (precluding any sexual contact).
¶ 55 There can be no dispute that what defendant did here,
ejaculating onto a child’s hands, is a sexual act that would corrupt
a child’s morals. But a narrow interpretation of “intimate parts”
renders this particular sexual act unpunishable as a sexual
assault. This seems contrary to the intent of the legislature.
22
¶ 56 It also leads to absurd results. If it is so that an “intimate
part[]” is defendant’s penis but not his ejaculated semen, the
difference between having committed a sexual assault on a child or
not in this case is reduced, literally, to a space described by a
preschool-age child as “close.” Had the victim’s hands, while close
enough to catch defendant’s semen as he ejaculated into them,
accidentally touched his penis for a split second, he would have
committed sexual assault on a child. But, under a narrow
definition of intimate parts, because that momentary contact did
not occur, defendant did not commit sexual assault on a child. In
my view, it just cannot be that the legislature intended to attach
such great consequence to such a relatively inconsequential part of
a sexual act on a child.
¶ 57 And the facts in this case are not the only ones under which a
narrow reading produces absurd results. For example, a man could
ejaculate directly onto any non-intimate part of a child, including
the mouth, and it would not be sexual assault as long as the child
did not touch his penis. “It strikes [me] as unlikely that the General
Assembly intended to draw such distinctions in enacting the sexual
assault statute.” People v. Pifer, 2014 COA 93, ¶ 12; cf. Woellhaf v.
23
People, 105 P.3d 209, 212, 213 (Colo. 2005) (in the context of
defining the unit of prosecution for four acts of sexual assault,
supreme court included ejaculating on the victim’s stomach as
sexual contact under the sexual assault on a child statute).
¶ 58 I am fully aware that we must give effect to the words that the
legislature chose. But importantly, as I noted above, the term
“external genitalia” — included by the legislature as an “intimate
part[]” — is not itself statutorily defined. And it is susceptible, as
this case illustrates, to more than one reasonable interpretation.
See, e.g., People in Interest of O.C., 2013 CO 56, ¶ 13-14 (stating
that when a statutory term is subject to reasonable alternative
interpretations, courts may consider legislative intent and other
interpretive tools.). Thus, I find support for my conclusion, that
under certain circumstances “intimate parts” can include semen,
from several Colorado cases which have rejected a literal reading of
undefined terms in the sexual assault on a child statute. See
People v. Sparks, 2018 COA 1, ¶ 14 (rejecting as absurd defendant’s
argument that if a child initiates the touching of the defendant’s
intimate parts the child is not “subjected to” sexual contact as
required by the sexual assault on a child statute); Pifer, ¶¶ 11-12
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(concluding that there was sufficient evidence of sexual contact
when there was a sheet between the defendant’s hand and the
victim’s clothed vaginal area; evincing that there is no requirement
that there be skin to skin contact to constitute a touching); People
v. Cook, 197 P.3d 269 (Colo. App. 2008) (holding that evidence that
the defendant intimidated the victims into touching themselves for
his own sexual gratification was sexual contact by “constructive
touching”); Vinson, 42 P.3d at 87 (holding that direct person-to-
person contact is not required to constitute touching under the
sexual assault on a child statute; defendant’s narrow construction
of the word “touch” is contrary to the legislative intent of the sexual
assault on a child statute); People v. Moore, 877 P.2d 840, 846-48
(Colo. 1994) (concluding that the defendant could be found guilty of
sexual assault on a child under a complicity theory when the
defendant ordered the mother to sexually assault the twelve-year-
old daughter).
¶ 59 For these reasons, because I would conclude that defendant’s
semen, under the circumstances here, is an “intimate part[],” I
would further conclude that the evidence was sufficient to support
defendant’s convictions for sexual assault on a child and affirm
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those convictions. I respectfully dissent from the result to the
contrary.
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