People v. Hodge , 2018 COA 155 ( 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
November 1, 2018
2018COA155
No. 18CA0710 People v. Hodge — Crimes — Unlawful Sexual
Behavior — Sexual Assault on a Child
In this interlocutory appeal, a division of the court of appeals
interprets section 18-3-405(1) and (2)(a), C.R.S. 2018, to hold that a
child sexual assault victim cannot legally consent to the use of force
during an unlawful sexual act. The division reverses the district
court’s order dismissing the use of force aggravator after a
preliminary hearing and remands the case for reinstatement of the
original charges as class 3 felony sexual assault on a child.
COLORADO COURT OF APPEALS 2018COA155
Court of Appeals No. 18CA0710
El Paso County District Court No. 18CR287
Honorable Theresa M. Cisneros, Judge
The People of the State of Colorado,
Plaintiff-Appellant,
v.
Travis Hodge,
Defendant-Appellee.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE FREYRE
Furman and Dunn, JJ., concur
Announced November 1, 2018
Daniel H. May, District Attorney, Doyle J. Baker, Senior Deputy District
Attorney, Oliver A. Robinson, Deputy District Attorney, Stephanie J. Redfield,
Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellant
Megan A. Ring, Colorado State Public Defender, Megan M. Morris, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellee
¶1 The prosecution charged Travis Hodge with three counts of
sexual assault on a child and alleged that he “applied force against
the victim to accomplish or facilitate the sexual contact,” rendering
each a class 3 felony under section 18-3-405(1) and (2)(a).
¶2 The People appeal the district court’s order dismissing three
force aggravators for three sexual assault on a child charges against
defendant, Hodge, based on its finding that because the victim had
consented to the force used (restraints), the prosecution did not
establish probable cause for the use of force at the preliminary
hearing. We resolve a novel question in Colorado by concluding
that a child victim cannot consent to the use of force. Therefore, we
reverse the order and remand the case for reinstatement of three
sexual assault on a child charges as class 3 felonies.
I. Background
¶3 At the preliminary hearing, the prosecution presented
testimony from a police officer and a forensic interviewer. The
officer testified that Hodge, who lived out of state, met the fourteen-
year-old victim in an online chat room. Hodge and the victim
discussed, among other things, sexual fantasies, which included
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bondage and dominant and submissive sexual acts (BDSM).1 The
victim told the officer that they had arranged to meet in person and
had devised a plan whereby Hodge would pose as the father of one
of the victim’s friends and then pick him up for a purported
overnight at the friend’s house.
¶4 Hodge flew to Colorado and retrieved the victim from his home
in Boulder. He drove the victim to a vacation rental home in
Colorado Springs. When they arrived, Hodge asked the victim to
undress to his level of comfort — the victim removed all of his
clothing except his underwear. Hodge then placed a padlocked
collar around the victim’s neck, handcuffed the victim’s hands
behind his back, and placed a ball gag in the victim’s mouth.
According to the forensic interviewer, Hodge then sodomized the
victim with his fingers, a dildo, and his penis. Hodge and the victim
also performed fellatio on one other. The victim remained
handcuffed throughout these acts.
1 “BDSM” is a common initialism for “sexual activity involving such
practices as the use of physical restraints, the granting and
relinquishing of control, and the infliction of pain.” Merriam-
Webster Dictionary, https://perma.cc/UVM9-FSVN.
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¶5 Eventually, the victim realized the events had become “real”
and wanted to end the encounter. He told Hodge he felt sick and
needed to throw up. Hodge removed the restraints, and the victim
suggested that they take a nap. When Hodge fell asleep, the victim
left the house and contacted the police.
¶6 At the end of the hearing, the court concluded that the
evidence supported probable cause for the sexual assault on a child
charges as class 4 felonies. However, the court requested
additional briefing on whether it could bind over the same charges
as class 3 felonies when the undisputed evidence showed that the
victim had consented to the use of the restraints.
¶7 After considering the parties’ arguments and briefs, the court
issued a written order in which it found that the handcuffs and ball
gag were “part of the sexual activity that the [victim] and the
defendant agreed to, and they were not used as force in order to
accomplish or facilitate the sexual contact.” The court concluded
there was “insufficient evidence to establish that force was used to
accomplish or facilitate the sexual contact,” and it bound over the
relevant sexual assault charges as class 4 felonies. Thus, it was the
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consensual use of the restraints rather than the restraints
themselves, that rendered the evidence of force insufficient.
¶8 The People contend that the preliminary hearing evidence was
sufficient for the court to infer that Hodge facilitated sexual contact
with the victim by the use of the restraints, and that the court
legally erred in finding that a fourteen-year-old victim could consent
to the use of restraints as part of a sexual act. We agree.
II. Sufficient Evidence Established Probable Cause for the Force
Aggravator
A. Standard of Review and Law
¶9 A district court’s dismissal of one or more counts of a charging
document before trial is a final order reviewable on appeal.
§ 16-12-102(1), C.R.S. 2018; see also People v. Severin, 122 P.3d
1073, 1074 (Colo. App. 2005) (explaining that reducing a charge “in
effect dismisses the greater charge and substitutes a lesser one”
under C.A.R. 4(b)(3), and is properly appealed under C.A.R. 4.1).
¶ 10 A preliminary hearing is not a mini trial. People v. Jensen,
765 P.2d 1028, 1030 (Colo. 1988). Rather,
[a] preliminary hearing serves the limited
purpose of determining whether there is
probable cause to believe that an offense has
been committed and that the person charged
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committed the offense. The prosecution is not
required to produce evidence sufficient to
support a conviction; rather, it need only
present evidence sufficient to induce a person
of ordinary prudence and caution to entertain
a reasonable belief that the defendant
committed the crime.
People v. Collins, 32 P.3d 636, 639-40 (Colo. App. 2001); see People
v. Simpson, 2012 COA 156, ¶ 11. “The court must view all evidence
and draw all inferences in favor of the prosecution . . . .” People v.
Hall, 999 P.2d 207, 221 (Colo. 2000).
¶ 11 We will uphold the district court’s decision that probable
cause has not been established absent a showing that the court
abused its discretion. Id. Only when we determine that the district
court has “applied an erroneous construction of law at a
preliminary hearing” will we review the record to determine whether
the evidence, “when viewed in the light most favorable to the
prosecution, would induce a reasonably prudent and cautious
person to entertain the belief that the defendant committed the
crime charged.” Id. We review the court’s legal conclusions de
novo. Id.¶ 12 In addition, we review questions of statutory interpretation de
novo. Bostelman v. People, 162 P.3d 686, 689 (Colo. 2007). “In
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interpreting a statute, our primary goals are to discern and give
effect to the General Assembly’s intent.” Krol v. CF & I Steel, 2013
COA 32, ¶ 2. “We look first to the statutory language, giving the
words and phrases used therein their plain and ordinary
meanings.” Id. “When the statutory language is clear and
unambiguous, there is no need to resort to interpretive rules and
statutory construction.” People v. Rice, 198 P.3d 1241, 1244 (Colo.
App. 2008).
B. Analysis
¶ 13 Hodge contends that the use of restraints does not satisfy the
definition of “force” when a child victim consents to their use. “Any
actor who knowingly subjects another not his or her spouse to any
sexual contact commits sexual assault on a child if the victim is
less than fifteen years of age and the actor is at least four years
older than the victim.” § 18-3-405(1). “Sexual assault on a child is
a class 4 felony, but it is a class 3 felony if . . . [t]he actor applies
force against the victim in order to accomplish or facilitate sexual
contact . . . .” § 18-3-405(2)(a). These statutes contain no language
requiring the prosecution to prove that the defendant’s conduct was
against the victim’s will.
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¶ 14 The General Assembly has not defined “force,” and the People
contend that the plain and ordinary meaning of force is “violence,
compulsion or constraint exerted upon or against a person or
thing.” They argue that the restraints Hodge used were constraints
exerted upon the victim. Consistent with this argument, several
divisions of this court have defined “physical force” in the adult
sexual assault statute, § 18-3-402, C.R.S. 2018, as “force applied to
the body,” and they have defined “physical violence” as “unjust or
unwarranted exercise of physical force.” People v. Keene, 226 P.3d
1140, 1143 (Colo. App. 2009) (citation omitted); see also People v.
Bryant, 2013 COA 28, ¶ 17; People v. Holwuttle, 155 P.3d 447, 450
(Colo. App. 2006). “Physical force,” therefore, only requires that
some exertion of energy (force) be applied to the body and does not
require an “extra application” of force. Bryant, ¶ 17 (quoting Keene,
226 P.3d at 1143). Such force includes a defendant’s use of his
body weight to hold a victim down. See Keene, 226 P.3d at 1143.
And it includes evidence that a defendant grabbed a woman’s
breasts and held them tightly. People ex rel. VanMeveren v. Dist.
Court, 195 Colo. 1, 4-5, 575 P.2d 405, 407 (1978).
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¶ 15 Hodge contends that these readings are incorrect and involve a
“strained” definition. He relies on Black’s Law Dictionary, which
defines force as “[p]ower, violence, or pressure directed against a
person or thing,” Black’s Law Dictionary 760 (10th ed. 2014), and
on the definition cited by the People ― “violence, compulsion, or
constraint exerted upon or against a person or thing,” ― from
Webster’s Collegiate Dictionary 489 (11th ed. 2004). He argues that
these definitions necessarily connote coercion or compulsion, which
include a lack of consent, and that they foreclose any consensual
actions.
¶ 16 We acknowledge that it is “not error to turn to Black’s Law
Dictionary to glean the most widely accepted legal meaning of” a
term. Holwuttle, 155 P.3d at 450. However, we disagree with
Hodge’s interpretation and find persuasive the authorities noted
above that require only the application of force to the body.
Moreover, our reading of “force” is consistent with the adult sexual
assault statute, which requires proof of nonconsent by defining
sexual assault as the knowing infliction of sexual intrusion or
sexual penetration, and stating that “[t]he actor causes submission
of the victim by means of sufficient consequence reasonably
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calculated to cause submission against the victim’s will.” § 18-3-
402(1)(a) (emphasis added). Unlike sexual crimes committed
against adults, in which the prosecution must prove nonconsent as
an element of the offense (or stated differently, where consent is a
defense to the crime), child sexual assault contains no such
element and recognizes that a child cannot legally consent to sexual
contact or to any conduct that facilitates that sexual contact. See
People v. Sparks, 2018 COA 1, ¶ 13 (explaining that the law does
not recognize the child as the initiator of unlawful sexual contact or
activity with an adult); see also § 18-1-505(1), C.R.S. 2018
(permitting consent as an affirmative defense only when it
“negatives an element of the offense”); United States v. De La
Cruz-Garcia, 590 F.3d 1157, 1160 (10th Cir. 2010) (construing
section 18-3-405(1) as recognizing that sexual activity between an
adult and a minor “inherently involves taking unfair or undue
advantage of the victim”). Hodge directs us to no authority, nor
have we found any, that would permit a defendant to assert the
defense of consent to the force aggravator in section 18-3-405(2)(a)
when it is not authorized as a defense to the crime itself under 18-
3-405(1). And we may not read a nonconsent element into the child
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sexual assault statute or the force aggravator that is not there. See
People v. Diaz, 2015 CO 28, ¶ 12 (“We do not add words to the
statute or subtract words from it.” (quoting Turbyne v. People, 151
P.3d 563, 567 (Colo. 2007))).
¶ 17 For the same reasons, we are not persuaded that the language
“against the victim,” § 18-3-405(2)(a), implies that the force must be
nonconsensual or that the child may consent to the force used. If
the General Assembly had intended the force to be against the
victim’s will, it would have said so, as it did in the adult sexual
assault statute, section 18-3-402(1)(a) (“The actor causes
submission of the victim by means of sufficient consequence
reasonably calculated to cause submission against the victim’s
will . . . .”).
¶ 18 Because we conclude that the court legally erred in finding
that the victim’s agreement to use the restraints did not constitute
the use of force, we review the record to determine whether the
evidence, “when viewed in the light most favorable to the
prosecution, would induce a reasonably prudent and cautious
person to entertain the belief that the defendant committed the
crime charged.” Hall, 999 P.2d at 221.
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¶ 19 The People presented evidence that Hodge and the victim
discussed BDSM and sexual fantasies at length before they met,
that Hodge applied the restraints in preparation for the sexual
contact, and that the restraints remained on the victim throughout
the sexual activities.2 Given the limited nature of a preliminary
hearing and the low standard for establishing probable cause, we
conclude that it is reasonable to infer from the evidence presented
that Hodge used force to facilitate the sexual contact under section
18-3-405(2)(a), and, therefore, we necessarily reject his contention
to the contrary. Accordingly, we agree with the People that a person
of ordinary prudence and caution could reasonably believe that the
restraints used here constituted force that facilitated the sexual
contact, and thereby established probable cause for sexual assault
on a child as a class 3 felony. Of course, whether the use of these
restraints constitutes force beyond a reasonable doubt is for a jury
to determine.
2 Because Hodge only contests the force aggravator and does not
contest the sufficiency of probable cause as to the remaining
elements of sexual assault on a child, we do not further discuss
those other elements.
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¶ 20 Finally, we decline to address Hodge’s constitutional
challenges to the sexual assault on a child statute on vagueness
and equal protection grounds. Hodge did not make these
challenges in his briefing to the district court, and, thus, they are
not properly before us in this interlocutory appeal. See People v.
Canton, 951 P.2d 907, 909 n.4 (Colo. 1998) (“We do not address
issues raised by the defendant and not resolved by the trial court in
an interlocutory appeal.”); People v. Bland, 884 P.2d 312, 322 (Colo.
1994) (declining review of the defendant’s strip search argument
“because it was not addressed by the trial court and in any event is
not appropriate for review under C.A.R. 4.1” because a defendant is
not entitled to interlocutory relief).
III. Conclusion
¶ 21 The order is reversed, and the case is remanded for
reinstatement of counts one through three as class 3 felony sexual
assault on a child.
JUDGE FURMAN and JUDGE DUNN concur.
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