Hotsenpiller v. Morris

COLORADO COURT OF APPEALS 2017COA95
Court of Appeals No. 16CA1337
Montrose County District Court No. 16CV30022
Honorable J. Steven Patrick, Judge
Dan W. Hotsenpiller, District Attorney, Seventh Judicial District,
Plaintiff-Appellant,
v.
Honorable Bennet A. Morris, a Judge of the County Court for the County of
Montrose,
Defendant-Appellee.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division A
Opinion by CHIEF JUDGE LOEB
Plank* and Márquez*, JJ., concur
Announced July 13, 2017
Dan W. Hotsenpiller, District Attorney, Barbara J. Sanford, Assistant District
Attorney, Montrose, Colorado, for Plaintiff-Appellant
Cynthia H. Coffman, Attorney General, Grant T. Sullivan, Assistant Solicitor
General, Denver, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 In this C.R.C.P. 106(a)(4) action, the District Attorney of
Montrose County, Dan W. Hotsenpiller (District Attorney), appeals
the district court’s order upholding the ruling of Montrose County
Court Judge Bennet A. Morris (county court), which concluded that
the affirmative defense of consent was available to John Hartsuff in
his criminal case on the charge of violation of a civil protection
order (CPO).
¶2 The sole issue on appeal is whether the affirmative defense of
consent, as defined in the consent statute, section 18-1-505, C.R.S.
2016, is available to a defendant who is criminally charged with
violating a protection order, pursuant to section 18-6-803.5, C.R.S.
2016. As a matter of first impression, we conclude that the county
court abused its discretion by ruling that Hartsuff could assert the
affirmative defense of consent, because the court misinterpreted the
law regarding CPOs and language in the consent statute that allows
the defense when the alleged assent of the victim “precludes the
infliction of the harm or evil sought to be prevented by the law
defining the offense,” § 18-1-505(1). Accordingly, we reverse the
district court’s order upholding the county court’s ruling and
1
remand with directions for the district court to remand the case to
the county court with instructions to proceed with Hartsuff’s trial
and to preclude the affirmative defense of consent on the charge of
violation of a protection order.
I. Background and Procedural History
A. Alleged Violation of a CPO
¶3 J.C. obtained a temporary CPO against her ex-boyfriend,
Hartsuff. The county court made the CPO “permanent” in May
2015. § 13-14-106, C.R.S. 2016.
¶4 The CPO issued in this case was on JDF Form 399. JDF 399,
Permanent Civil Protection Order Issued Pursuant to § 13-14-106,
C.R.S. (revised Sept. 2013), https://perma.cc/CUR5-9HP8. The
form order lists Hartsuff as the restrained person and J.C. as the
protected person. The order states that the restrained person
constitutes a credible threat to the life and health of the protected
person and that sufficient cause exists for the issuance of the CPO.
A warning then appears, in a box and in large print, stating as
follows: “This Protection Order DOES NOT EXPIRE and only the Court
can change this Order. A violation of a Protection Order is a crime
and may be prosecuted . . . pursuant to § 18-6-803.5, C.R.S.” (Here
2
and for all subsequent quotes to JDF 399, original bold emphasis
has been changed to italics.)
¶5 The CPO declares that “[i]t is ordered that you, the Restrained
Person, shall have no contact of any kind with the Protected
Person[]” and explicitly states that there are no exceptions to
contact. The CPO further orders Hartsuff to stay at least one
hundred yards away from J.C.’s home and work.
¶6 The final page of the CPO informs the parties of “IMPORTANT
INFORMATION ABOUT PROTECTION ORDERS.” As relevant here,
this page includes a notice to the protected person that he or she
“cannot give the Restrained Person permission to change or ignore
this Order in any way. Only the Court can change this order.”
Similarly, the restrained person is notified that if he or she
“violate[s] this Order thinking that the other party or anyone else
has given you permission, you are wrong, and can be arrested and
prosecuted. The terms of this Order cannot be changed by
agreement of the parties. Only the Court can change this Order.”
3
¶7 In July 2015, J.C. called police and stated that Hartsuff was
on her front porch1 threatening her. She told the dispatcher that
there was a CPO in place prohibiting Hartsuff from contacting her.
Before police arrived, Hartsuff left the premises on foot. In addition
to reporting the contact at her home, J.C. showed the responding
officer text messages and logs of phone calls from Hartsuff over the
previous two days. In the affidavit for Hartsuff’s warrantless arrest,
the responding officer noted that J.C. had texted Hartsuff several
times, asking him to leave her alone, and that Hartsuff called J.C.’s
phone while police were on the way to her home. Dispatch
confirmed the existence of the CPO, and Hartsuff was arrested at a
nearby intersection by officers patrolling the area.
¶8 Hartsuff was charged with harassment and violation of a
protection order, both as acts of domestic violence.
1The address listed for J.C.’s home in the CPO is the address to
which police responded for the incident that gave rise to the charges
here.
4
B. County Court Criminal Proceedings
¶9 In his preliminary notice of endorsements, Hartsuff raised the
affirmative defense of consent.2 At a pretrial hearing, the
prosecution objected to Hartsuff’s endorsed consent defense as
applied to the charge of violation of a protection order. At the
hearing, defense counsel argued that, under section 18-1-505,
J.C.’s alleged assent3 to contact precluded the infliction of the harm
the violation of a protection order statute was attempting to prevent
— namely, contact between the restrained person and the protected
person. Counsel argued that the purpose of the violation of a
protection order statute was not to protect the court’s order, but
only to protect the protected person. He also asserted that
precluding the defense of consent would create an untenable
situation where the protected person could approach the restrained
2 Neither the preliminary endorsement nor the transcript of the later
pretrial conference lists any specific evidence of J.C.’s alleged
consent. The endorsement also does not state to which charge
Hartsuff asserted the defense of consent.
3 In this opinion, the term “consent” refers only to the statutory
definition of the consent defense. “Assent” refers to the alleged
conduct of the victim that purportedly renders the consent defense
applicable. Here, Hartsuff alleged that J.C. assented to the contact
with which he was charged under the violation of a protection order
statute.
5
person and initiate contact, and the restrained person then could
be charged with a violation of the protection order.
¶ 10 The prosecution responded that a protected person cannot
consent to allow another person — even the restrained person — to
violate a court order.
¶ 11 The county court ruled that the affirmative defense of consent
was available to Hartsuff because J.C.’s alleged assent “preclude[d]
the infliction of the harm or evil sought to be prevented” by the
violation of the protection order statute — specifically, unwanted
contact. § 18-1-505(1). In its written order, the court quoted the
consent statute and then reasoned as follows:
The [CPO] was put into place . . . at the
request of the protected person – now the
alleged victim in this case. That person did
not desire contact or proximity with [Hartsuff].
The Court finds that the affirmative defense of
consent of the alleged victim to contact or
proximity with [Hartsuff], would preclude the
infliction of the harm sought to be prevented
by a protection order originally put in place at
the request of the victim/protected person, at
least in part, to prevent such contact or
proximity.
Consequently, the court concluded that the affirmative defense of
consent was available to Hartsuff and that the prosecution was,
6
therefore, required to disprove J.C.’s consent beyond a reasonable
doubt in addition to proving the statutory elements of violation of a
protection order.
C. C.R.C.P. 106(a)(4) Review in the District Court
¶ 12 The District Attorney then sought judicial review of the county
court’s order in the district court pursuant to C.R.C.P. 106(a)(4).
¶ 13 On review, the district court framed the question as “whether
or not the [county] court’s determination to permit the affirmative
defense of consent to the violation of a civil protection order at trial
is an abuse of discretion.” The district court reasoned that neither
the consent statute nor the statute regarding the charged offense of
violation of a protection order expressly prohibited consent as an
affirmative defense. It concluded that the District Attorney had
failed to show that the county court abused its discretion and, thus,
remanded the case to the county court to proceed with trial.
¶ 14 The District Attorney now appeals the district court’s order
affirming the county court’s decision to allow Hartsuff to assert the
7
affirmative defense of consent to the charge of violation of a
protection order.4
II. Standard of Review
¶ 15 Under C.R.C.P. 106(a)(4), our review is “limited to a
determination of whether the [governmental] body or officer has
exceeded its jurisdiction or abused its discretion, based on the
evidence in the record before the defendant body or officer.”
C.R.C.P. 106(a)(4)(I).
¶ 16 A reviewing court may reverse the decision of a lower judicial
body for an abuse of discretion if the reviewing court finds that the
lower body acted “arbitrarily or capriciously, made a decision that is
unsupported by the record, erroneously interpreted the law, or
exceeded its authority.” Nixon v. City & Cty. of Denver, 2014 COA
172, ¶ 12 (citing Lawley v. Dep’t of Higher Educ., 36 P.3d 1239,
1245 (Colo. 2001)). In an appeal involving a C.R.C.P. 106 action,
the appellate court sits in the same position as the district court in
reviewing the county court’s decision. Shupe v. Boulder Cty., 230
P.3d 1269, 1272 (Colo. App. 2010). We are, therefore, limited to
4In this appeal, the Attorney General represents Judge Morris and
defends the county court’s order.
8
reviewing whether the county court abused its discretion in ruling
that the consent defense was available to Hartsuff. Id.; see also
Alpenhof, LLC v. City of Ouray, 2013 COA 9, ¶ 9.
¶ 17 In addition, we review a governmental officer’s interpretation of
the law de novo. Treece, Alfrey, Musat & Bosworth, PC v. Dep’t of
Fin., 298 P.3d 993, 996 (Colo. App. 2011) (citing Van Sickle v.
Boyes, 797 P.2d 1267, 1274 (Colo. 1990)). Here, we are reviewing
de novo a judicial body’s interpretation and application of Colorado
statutes and, thus, we do not owe the county court deference in our
application of the ordinary rules of statutory construction. See
Alpenhof, LLC, ¶ 10.
¶ 18 Our primary task in interpreting a statute is to give effect to
the General Assembly’s intent by first examining the statute’s plain
language. E.g., Stanley v. Dist. Attorney, 2017 COA 33, ¶ 10. “To
discern the General Assembly’s intent, we look to the plain
language of the statute, and where that language is clear and
unambiguous, we engage in no further statutory analysis.” People
v. Rice, 2015 COA 168, ¶ 11.
¶ 19 If we determine that the relevant statute is unambiguous, we
give effect to the statute’s plain and ordinary meaning without
9
resorting to other rules of statutory construction. See, e.g., St.
Vrain Valley Sch. Dist. RE-1J v. A.R.L., 2014 CO 33, ¶ 11. If,
however, the statutory language lends itself to alternative
constructions and its intended scope is ambiguous or unclear, we
then look to the statute’s context, legislative history, prior law, the
consequences of a given construction, and the goal of the statutory
scheme. Suncor Energy (USA), Inc. v. Aspen Petroleum Prods., Inc.,
178 P.3d 1263, 1266 (Colo. App. 2007).
¶ 20 Statutes should not be read in isolation, but together with all
other statutes relating to the same subject or having the same
general purpose, to the end that a statute’s intent may be
ascertained and absurd consequences avoided. Huddleston v. Bd.
of Equalization, 31 P.3d 155, 159 (Colo. 2001). “This is especially
true where a statute intimates by its plain language an intent to
incorporate other statutory provisions.” Id.
¶ 21 If we determine that a statute is ambiguous, we may also
consider legislative declarations in determining the General
Assembly’s intent. § 2-4-203(1)(g), C.R.S. 2016. Legislative
declarations included with the statutory scheme at issue may be
relevant in determining the intent of the General Assembly and the
10
problems it was attempting to address. See Lester v. Career Bldg.
Acad., 2014 COA 88, ¶¶ 25-27. Indeed, “[o]ften the best guides to
legislative intent are the context in which the statutory provisions
appear and any accompanying statements of legislative policy, such
as a legislative declaration.” A.R.L., ¶ 11.
¶ 22 Specific to this case, “[t]he question of whether consent can
constitute a defense to a crime is best analyzed in the context of
particular offenses and particular conduct.” Model Penal Code §
2.11 note 1 on General Principles (Am. Law Inst., Official Draft and
Revised Comments 1985) (hereinafter MPC).5
III. Relevant Statutes
¶ 23 This case hinges on the county court’s interpretation of the
consent statute and the violation of a protection order statute,
5 Colorado’s consent statute is based largely on the Model Penal
Code. Model Penal Code § 2.11 note 12 (Am. Law Inst., Official
Draft and Revised Comments 1985) (listing Colorado’s section 18-1-
505, C.R.S. 2016, as one of the provisions similar to Model Penal
Code § 2.11) (hereinafter MPC). Additionally, the MPC definition of
consent is located in the “General Principles of Liability” article,
similar to the Colorado statute’s location in the “Provisions
Applicable to Offenses Generally” article. § 18-1-505; MPC § 2.11.
Significantly, the language in section 18-1-505 regarding “precludes
the infliction of the harm or evil sought to be prevented” by the
criminal offense is identical to MPC section 2.11. Thus, we refer to
the MPC and its commentary for guidance on the meaning of the
consent statute.
11
sections 18-1-505 and 18-6-803.5, respectively. In addition to
these statutes, we must also consider the CPO statutes because the
violation of a protection order statute specifically references and
incorporates title 13, article 14 in the definition for “protection
order,” and Hartsuff’s charge is based on a CPO issued pursuant to
section 13-14-106. § 18-6-803.5(1.5)(a.5)(I)(A).
A. The Consent Statute
¶ 24 Under section 18-1-505, the defense of consent of the victim is
not available to any crime unless “the consent negatives an element
of the offense or precludes the infliction of the harm or evil sought
to be prevented by the law defining the offense.” § 18-1-505(1). The
statute also lists certain situations in which the victim’s assent
does not constitute a consent unless the criminal code or the law
defining the offense specifically provides otherwise. § 18-1-505(3).
These situations include, for example, where assent is given by a
person whose consent is sought to be prevented by the law defining
the offense. § 18-1-505(3)(c). The General Assembly has
12
characterized the defense of consent as an affirmative defense.6
§ 18-1-505(4).
¶ 25 Colorado case law interpreting the consent statute and its
applicability is very sparse and limited in scope. All appellate
Colorado cases regarding consent concern the language of the
statute relating to negating an element of the offense or, in one
case, lack of legal authority to consent, and almost all deal with
consent in the context of sexual assault. See, e.g., Oram v. People,
255 P.3d 1032 (Colo. 2011) (stating consent negates elements of
burglary, but instruction not warranted because party consenting
to entry did not have authority to consent); People v. Martinez, 36
P.3d 154 (Colo. App. 2001) (finding that in sexual assault context,
affirmative defense of consent instruction not warranted because
elements of sexual assault only allow conviction if victim did not
consent); People v. Bush, 948 P.2d 16 (Colo. App. 1997) (negating
elements of theft); People v. Williams, 899 P.2d 306 (Colo. App.
6 An affirmative defense admits the defendant’s commission of the
elements of the crime charged, but seeks to justify the act. People
v. Nelson, 2014 COA 165, ¶ 48. Availability of an affirmative
defense means that the defense becomes an element of the offense
and the court must instruct the jury that the prosecution has the
burden of disproving the affirmative defense beyond a reasonable
doubt. Id. at ¶ 49.
13
1995) (negating an element of offense in sexual assault). The
parties have not cited any Colorado case, and we have found none,
concerning the applicability of the consent defense when the alleged
assent “precludes the infliction of the harm or evil sought to be
prevented by the law defining the offense.”7 § 18-1-505(1).
¶ 26 For the reasons below, we conclude that the clause at issue in
this case (“precludes the infliction of the harm or evil sought to be
prevented by the law defining the offense”) is ambiguous because it
is unclear and subject to alternative constructions. The Attorney
General argues that the phrase means only the harm to the alleged
victim, here, J.C. As a result, the Attorney General contends that
the county court was correct in defining the harm or evil sought to
be prevented by the violation of a protection order statute as simply
contact between the protected and restrained persons. On the
other hand, the District Attorney asserts that the crime at issue
here is designed to enforce a court order and that, in determining
7 The model jury instruction and its comments regarding consent
are equally silent on the meaning of this language. COLJI-Crim.
H:03 (2016). The comments to the instruction address only the
situation where assent of the victim negates an element of the
offense charged; the language of the instruction seems to leave
defining the harm sought to be prevented by the law defining the
offense to the parties and the court in drafting the instructions. Id.
14
the harm sought to be prevented, we must both consider the
context of the violation of a protection order statute and the General
Assembly’s intent with regard to crimes of domestic violence.
According to the District Attorney, then, the harm or evil sought to
be prevented by the violation of a protection order statute is broader
than simply contact between the protected and restrained persons
and includes preserving the integrity of a court order and
preventing domestic violence.
¶ 27 In our view, the language at issue thus lends itself to
alternative constructions, and the intended scope of the consent
statute is unclear with respect to the “harm or evil” language.
Suncor Energy (USA), Inc., 178 P.3d at 1266. Indeed, the consent
statute explicitly requires us to consider other statutes in
determining the potential applicability of the defense. Huddleston,
31 P.3d at 159.
¶ 28 Thus, we disagree with the county court to the extent it
determined that the phrase “precludes the infliction of the harm or
evil sought to be prevented by the law defining the offense” is
unambiguous. Because we determine that the phrase is
ambiguous, id.; Suncor Energy (USA), Inc., 178 P.3d at 1266, we
15
must look to the legislative history, consequences of a given
construction, and goals of the relevant statutes. Suncor Energy
(USA), Inc., 178 P.3d at 1266. We must also consider the entire
statutory scheme relating to the offense of violation of a protection
order to give effect and meaning to all its parts. Wolford v. Pinnacol
Assurance, 107 P.3d 947, 951 (Colo. 2005).
B. Criminal Statutes Regarding Violation of a Protection Order
¶ 29 A person commits the crime of violation of a protection order
if, after the person has been personally served
with a protection order that identifies the
person as a restrained person . . . , the person:
(a) Contacts, harasses, injures, intimidates,
molests, threatens, or touches the protected
person or protected property . . . identified in
the protection order or enters or remains on
premises or comes within a specified distance
of the protected person, protected property . . .
or premises . . . .
§ 18-6-803.5(1)(a).
¶ 30 The definition of “protection order” is central to this offense
and includes all protection orders issued pursuant to article 14 of
title 13 of the Colorado Revised Statutes, the statutes governing
CPOs. § 18-6-803.5(1.5)(a.5)(I)(A). The statute also includes
16
protection orders issued in domestic relations and criminal cases.8
§ 18-6-803.5(1.5)(a.5)(I)(A), (B).
¶ 31 Putting the offense into its statutory context, violation of a
protection order appears in article 6 of the Criminal Code, “Offenses
Involving the Family Relations,” specifically, in part 8, titled
“Domestic Violence.”
¶ 32 The Attorney General asserts that, because the violation of a
protection order statute does not specifically preclude the
affirmative defense of consent, the defense should apply since the
consent statute is “applicable to offenses generally.” See § 18-1-505
(article 1 of the Criminal Code is titled “Provisions Applicable to
Offenses Generally”). This reasoning does not comport with the
plain language of the consent statute or the structure of the
Criminal Code in general.
8 We reject the Attorney General’s argument that, because the order
here was a CPO and not a mandatory protection order issued in a
criminal case, assertion of the consent defense is somehow more
appropriate because the CPO was sought by a private individual as
opposed to the government. The offense statute makes no such
distinction. The only difference between a protection order issued
in a criminal proceeding and a CPO is that violation of a criminal
protection order is a class 1 misdemeanor as opposed to a class 2
misdemeanor. § 18-6-803.5(2)(a), C.R.S. 2016. This difference is
irrelevant to the question whether the affirmative defense of consent
is available for the crime of violation of a protection order.
17
¶ 33 The premise of the consent statute is that consent is not an
available defense; the only exceptions are when consent would
negate an element or when consent would preclude the infliction of
the harm or evil sought to be prevented by the law defining the
criminal offense. § 18-1-505(1); Williams, 899 P.2d at 309 (“[T]he
statutory definition of consent expresses the clear legislative
decision to make the defense inapplicable unless the consent either
‘negatives’ an element of the charged offense or precludes the
infliction of the harm sought to be prevented by the law defining the
offense.”). Thus, the starting point for Colorado criminal offenses is
that consent is not available as a defense.9
¶ 34 Additionally, the structure and language of statutes defining
criminal offenses belie the Attorney General’s argument. For
offenses where consent of the victim is a defense, such as sexual
assault, the statute does not explicitly state consent is a defense.
§ 18-3-402, C.R.S. 2016. Instead, the statutory elements of those
crimes necessarily “negate[] the existence of the victim’s
consent. . . . The[] acts of the defendant cause the victim to be
9 This is a notable difference between the Colorado statute and MPC
§ 2.11.
18
unable to consent.” Dunton v. People, 898 P.2d 571, 573 (Colo.
1995) (regarding § 18-3-402). Similarly, the homicide and sex
assault on a child statutes, the quintessential offenses where assent
of the victim is not a defense, do not specifically preclude consent as
a defense. §§ 18-3-101 to 18-3-107, 18-3-405, C.R.S. 2016. In
short, Colorado criminal statutes do not routinely include or
exclude available defenses, and the omission here of a reference to
consent is irrelevant.
¶ 35 What is relevant to determining whether consent is an
available defense is the context of the offense charged and the
particular conduct prohibited. MPC § 2.11 note 1 on General
Principles. Thus, we next consider the statutory framework
regarding CPOs.
C. Statutes on CPOs
¶ 36 The type of protection order Hartsuff is accused of violating is
a CPO governed by title 13, article 14 of the Colorado Revised
Statutes. § 18-6-803.5(1.5)(a.5)(I)(A). Title 13 governs the
administration, organization, and procedures of Colorado courts.
§§ 13-1-101 to 13-92-104, C.R.S. 2016 (titled “Courts and Court
19
Procedure”). Article 14 outlines the procedures for obtaining a CPO.
§§ 13-14-100.2 to 13-14-110, C.R.S. 2016.
¶ 37 The county court issued a permanent CPO restraining
Hartsuff pursuant to section 13-14-106. Once a court determines
that the restrained person “has committed acts constituting
grounds for issuance of a [CPO] and that unless restrained will
continue to commit such acts or acts designed to intimidate or
retaliate against the protected person, the judge or magistrate shall”
enter a permanent CPO. § 13-14-106(1)(a). The issuing court must
inform the restrained person that violation of the CPO constitutes a
criminal offense pursuant to section 18-6-803.5 or contempt of
court. Id.
¶ 38 The court issuing the CPO “retains jurisdiction to enforce,
modify, or dismiss” the CPO. § 13-14-108(4), C.R.S. 2016. A
protected person can apply to the court at any time for modification
or dismissal of a CPO. § 13-14-108(2)(a). In addition, the
restrained person may also apply for modification or dismissal
under limited circumstances. § 13-14-108(2)(b). The court is
required to hear any motion for modification filed under subsection
(2), and it must consider numerous factors in deciding whether to
20
modify or dismiss the CPO. § 13-14-108(5), (6). The sole means
prescribed in the statute for modifying or dismissing a CPO are
through the court.
IV. A Protected Person’s Alleged Assent does not Constitute
Consent Under Section 18-1-505
¶ 39 The parties agree that the issue whether consent can be an
affirmative defense to violation of a protection order is an issue of
first impression in Colorado. Moreover, as previously mentioned,
Colorado appellate courts have considered the consent defense in
very few contexts, and there is little case law interpreting the
language of the consent statute. But, because Colorado’s consent
statute is based on MPC section 2.11, the MPC commentaries and
annotations are instructive. We also find persuasive cases from
other states that have considered whether the affirmative defense of
consent may be asserted in the context of a criminal charge for
violation of a protection order.
¶ 40 For the reasons below, we conclude that the county court
erred as a matter of law in allowing the affirmative defense of
consent for the crime of violation of a protection order.
21
A. A CPO is an Order of the Court
¶ 41 We first conclude that, because the CPO is an order of the
court and not an order issued by the protected person, the
protected person’s alleged assent to contact cannot, as a matter of
law, constitute a restrained party’s defense to the crime for violation
of a protection order.
¶ 42 In Colorado, a court has the power to “compel obedience to its
lawful . . . orders.” § 13-1-114(1)(c), C.R.S. 2016. Court orders are
crucial to the administration of justice. Indeed, “[t]he orderly and
expeditious administration of justice by the courts requires that ‘an
order issued by a court with jurisdiction over the subject matter
and person must be obeyed by the parties until it is reversed by
orderly and proper proceedings.’” Maness v. Meyers, 419 U.S. 449,
459 (1975) (emphasis added) (quoting United States v. United Mine
Workers, 330 U.S. 258, 293 (1947)) (in the context of contempt
proceedings). The CPO at issue here specifically stated that the
court had jurisdiction over the parties and the subject matter.
Thus, it must be obeyed by Hartsuff until it expired or was changed
“by orderly and proper proceedings.” Id.
22
¶ 43 As to expiration, the CPO here is a “permanent” CPO issued
pursuant to section 13-14-106. The word “permanent” is not
defined in section 13-14-106 or in the definitions section of article
14, section 13-14-101, C.R.S. 2016; nor does the statute state a
duration for the permanent protection order. However, the CPO
here explicitly emphasized that the order did not expire. Moreover,
“where, as here, the statute does not define a term, the word at
issue is a term of common usage, and people of ordinary
intelligence need not guess at its meaning, we may refer to
dictionary definitions in determining the plain and ordinary
meaning.” Roalstad v. City of Lafayette, 2015 COA 146, ¶ 34
(quoting Mendoza v. Pioneer Gen. Ins. Co., 2014 COA 29, ¶ 24).
Giving the word “permanent” its plain and ordinary meaning, this
order was perpetual and intended to be continuing or enduring
without change. Webster’s Third New International Dictionary of
the English Language, Unabridged 1683 (1993). Thus, this CPO
was perpetual and remained in effect until the court modified or
dismissed it.
¶ 44 Section 13-14-108 lays out the only procedures for modifying
or dismissing a CPO. A protected person may petition the court to
23
modify or dismiss the order at any time; a restrained person can file
a motion after the protection order has been in place for two years.
§ 13-14-108(2)(a), (b). Importantly, no statutory mechanism exists
for the protected person or the restrained person to modify or
dismiss the order without the court’s approval or consideration.
Indeed, the issuing court retains jurisdiction to enforce, modify, or
dismiss a CPO, and it is required to consider a long list of factors
when determining whether to modify or dismiss the CPO. § 13-14-
108(4)-(6). Additionally, the CPO itself warned both Hartsuff and
J.C. multiple times in emphasized font that only the court could
modify or dismiss the order and the parties could not agree to
change the terms of the order.
¶ 45 We emphasize these avenues for modification because
Hartsuff’s defense, that J.C. consented to the contact and, thus, he
did not violate the order, would effectively modify — without court
approval — that part of the CPO that restrains Hartsuff from having
any contact whatsoever with J.C., no exceptions.
¶ 46 In our view, there are strong indications that a CPO is properly
characterized as an order and function of the court and not an
order issued by the victim — the importance to the administration
24
of justice of enforcing orders of the court, the very limited and
specific mechanisms for modifying or dismissing a permanent CPO,
the explicit warnings to Hartsuff and J.C. that they could not agree
to change the order without court approval, and the General
Assembly's placement of the statutes governing CPOs in the court
procedures title.
¶ 47 This reasoning is supported by several out-of-state cases. For
example, in State v. Kidder, 843 A.2d 312 (N.H. 2004), the New
Hampshire Supreme Court stated:
[W]e emphasize that protective orders are
orders of the court, not orders of the victim,
and neither the defendant, the victim, nor a
representative of either party has the authority
to approve exceptions to the order.
If the defendant has a legitimate reason to
contact the victim, he is not without remedy.
He can petition the court for an exception to or
modification of the restraining order.
Id. at 317 (citations omitted); see also In re Shirley, 28 A.3d 506,
511 (D.C. 2011) (protective order is an order of the court, not the
victim); People v. Townsend, 538 N.E.2d 1297, 1299 (Ill. App. Ct.
1989) (same).
25
¶ 48 A protected person simply cannot “consent,” under section 18-
1-505, to another person’s violation of a court order. Under the
plain language of the consent statute, assent by the victim does not
constitute consent if the assent is “given by a person whose consent
is sought to be prevented by the law defining the offense.” § 18-1-
505(3)(c). Here, the CPO statutes, particularly the provisions
regarding modification and dismissal, preclude the protected person
from modifying or dismissing the CPO without court involvement,
and the CPO itself explicitly says that the parties cannot agree to
change the order. See In re Shirley, 28 A.3d at 511 (considering
similar CPO language to conclude that purported consent of the
protected person for contact with the restrained person could not
modify the CPO to excuse the alleged contact).
¶ 49 Further, the Model Penal Code notes that subsection (3)(c) of
its consent section is intended to prevent “improvident consent”
that is “the very objective sought to be prevented by the law defining
the offense.” MPC § 2.11 note 3 on Ineffective Consent; see also
State v. Cardus, 949 P.2d 1047, 1056 (Haw. Ct. App. 1997)
(concluding that an inmate cannot consent to sexual penetration by
a prison guard, in part, because the statute criminalizing sexual
26
penetration between inmates and guards sought to prevent such
consent by the inmate). Here, the alleged assent to contact by a
protected person who allegedly experienced domestic abuse at the
hands of the restrained person is a prime example of “improvident
consent” that the CPO statutes seek to prevent. See also § 13-14-
100.2(1), (2) (reflecting the General Assembly’s goal to reduce
domestic abuse by effective provisions in protective orders).
B. The County Court Misinterpreted the Consent Statute
Phrase “Harm or Evil Sought to be Prevented” in the Context of
the Violation of a Protection Order Statute
¶ 50 The county court concluded that J.C.’s alleged assent
constituted consent under section 18-1-505 because it precluded
the infliction of the harm or evil sought to be prevented by the
violation of a protection order statute — “contact or proximity” with
the restrained person. As we have previously concluded, the county
court apparently did not recognize the inherent ambiguity of the
relevant language in section 18-1-505(1), in the context of a
criminal violation of a protection order. Accordingly, our analysis
below seeks to resolve that ambiguity and leads us to conclude
that, in this context, the affirmative defense of consent is not
27
applicable to a charge of violation of a protection order under
section 18-6-803.5(1)(a).
¶ 51 In our analysis, we are particularly concerned with the
“isolation of the societal objectives of the offense” so that we may
determine whether J.C.’s alleged assent to contact can constitute
consent as contemplated by section 18-1-505. MPC § 2.11 note 1
on General Principles. Because, in our view, the county court too
narrowly defined the “harm or evil sought to be prevented” by the
violation of a protection order, we conclude the court abused its
discretion in allowing the consent defense. Specifically, the county
court should have considered the violation of a protection order
statute in the context of the harm that the General Assembly
intended to prevent in the statutes defining and governing CPOs.
¶ 52 The violation of a protection order statute criminalizes any
contact a restrained party has with the protected person identified
in a protection order. § 18-6-803.5(1)(a). The statute does not
mention consent of the protected person or preventing harm to the
protected person; neither consent nor harm to the protected person
is an element of the crime. Therefore, as the county court noted at
the preliminary hearing, consent cannot be a defense to violation of
28
a protection order by way of negating an element of the crime
charged. See Dixon v. State, 869 N.E.2d 516, 520 (Ind. Ct. App.
2007) (considering MPC section 2.11 and concluding that the
protected person’s alleged assent to contact does not negate an
element of invasion of privacy when that crime does not have an
element of consent; defendant was charged with invasion of privacy
by “knowingly or intentionally violating a protective order”).
¶ 53 The statute provides several definitions of the term “protection
order,” including any order issued pursuant to title 13, article 14 of
the C.R.S., as is the case here. We, therefore, must consider title
13, article 14 and its “societal objectives” in our analysis.
Huddleston, 31 P.3d at 159; MPC § 2.11 note 1 on General
Principles.
¶ 54 Article 14 begins with a lengthy and specific legislative
declaration. § 13-14-100.2. The first part of the declaration is
general to all protection orders, criminal and civil, and states that
issuing and enforcing protection orders are of “paramount
importance” in Colorado because they “promote safety, reduce
violence and other types of abuse, and prevent serious harm and
death.” § 13-14-100.2(1). Notably, these goals are not limited to
29
the protected person, but address general harms sought to be
prevented. These are harms to society. Indeed, “reduc[ing] violence
and other types of abuse” is a “societal objective,” not a goal specific
to a single person. Id.; MPC § 2.11 note 1 on General Principles.
¶ 55 The declaration also addresses domestic abuse specifically
and, of relevance here, reflects the General Assembly’s
acknowledgment that domestic abuse can create a situation where
the abused person is more likely to return to an abuser and that
protection orders may still be appropriate even when reconciliation
occurs. § 13-14-100.2(2).
¶ 56 Given these legislative declarations regarding the importance
and purpose of enforcing CPOs, we conclude that the harm or evil
sought to be prevented by a CPO, including enforcing it through
criminal charges for a violation of such an order, is not mere
contact with the protected person as the county court concluded,
but preventing the societal harms of violence, domestic abuse, and
serious harm or death. Our conclusion is supported not only by
the legislative declaration in article 14, but also by the commentary
to the MPC that consent “is not a defense in . . . situations where
the law has objectives that go beyond the interests that may be
30
asserted by an identifiable victim.” Model Penal Code § 2.11 note 1
on General Principles. Here, the objectives of a CPO go beyond the
interests of protecting the named protected person and, as
indicated in the legislative declaration, include preventing domestic
abuse and eliminating circumstances that make it more likely that
an abused victim will return to his or her abuser. § 13-14-100.2(1),
(2).
¶ 57 Furthermore, a protected person’s alleged assent to contact
with the restrained person does not prevent the infliction of
violence, abuse, or death upon the protected person, nor does it
prevent violation of a court order. Other states have also concluded
that alleged assent to contact by a protected person does not
preclude the harm sought to be prevented by the issuance and
enforcement of protection orders. See In re Shirley, 28 A.3d at 511
(noting that the legislative body recognized that the public has an
interest in preventing the intrafamily violence that CPOs are
intended to prevent and consent of a protected person to contact
does not prevent intrafamily violence); Dixon, 869 N.E.2d at 520
(The court considered the MPC consent section and concluded the
protected person’s assent does not “preclude the infliction of
31
violence the statute seeks to prevent. Specifically, [the protected
person’s] alleged consent does not prevent violence nor does it
preclude the violation of a court order.”).
¶ 58 Indeed, as noted, the legislative declarations concerning CPOs
in the context of domestic abuse indicate the General Assembly’s
intent that CPOs may continue to be necessary even when the
parties choose to reconcile. § 13-14-100.2(2). Nothing in the
language of the CPO statute or the violation of a protection order
statute, both of which seek to prevent domestic violence, indicates
the General Assembly’s intent to provide an affirmative defense to a
restrained person who violates a CPO because the protected person
later allegedly assents to contact. See State v. Branson, 167 P.3d
370, 373 (Kan. Ct. App. 2007) (analyzing the domestic violence
context of the crime of violation of a protective order to determine
the legislature’s intent that the crime is one against society, and to
conclude that the defense of consent is not available); see also State
v. Dejarlais, 969 P.2d 90, 92-93 (Wash. 1998) (holding that the
purpose of the domestic violence statutes ruled out a consent
defense to a charge of violating a domestic violence protection
order).
32
¶ 59 It is telling that we have found no cases that conclude consent
of the protected person is an available affirmative defense to the
offense of violation of a protection order. The out-of-state cases the
Attorney General cites in support of its arguments on appeal are
inapposite. In Mohamed v. Mohamed, 557 A.2d 696, 697-98 (N.J.
Super. Ct. App. Div. 1989), the civil court considered the validity of
a custody provision in a protective order after the parties had
reconciled; the court gave absolutely no consideration to the
affirmative defense of consent because the case was not criminal in
nature. Also, here, unlike in Mohamed, there are no children
involved, there is no custody provision in the CPO, and the parties
were never married or going through a reconciliation. Further,
unlike the defendant in Mohamed, Hartsuff does not question the
validity of the CPO. Id. at 698. The case is simply inapplicable.
¶ 60 In a second New Jersey case cited by the Attorney General, the
court considered whether an alleged reconciliation prevented a
temporary protective order from becoming permanent. Torres v.
Lancellotti, 607 A.2d 1375, 1376 (N.J. Super. Ct. Ch. Div. 1992).
This case, again, did not consider the affirmative defense of consent
33
— the context there was a civil proceeding rather than a criminal
trial.10 Id.
¶ 61 Nor does our conclusion mean that a protected person’s
alleged assent to contact is wholly irrelevant, In re Shirley, 28 A.3d
at 512-13, or that a protected person can, with impunity, approach
the restrained person, initiate contact, and then later allege to the
police that the restrained person violated the protection order. We
recognize that evidence of assent can, potentially, be relevant to
show that the restrained person did not have the necessary mens
rea for violation of a protection order, or that “contact,” as that term
is broadly defined, did not occur. However, contrary to the Attorney
General’s argument, this is not the same as asserting consent as an
affirmative defense. When consent is an affirmative defense, the
prosecution is required to disprove that defense beyond a
reasonable doubt in addition to proving the elements of the crime of
violation of a protection order. People v. Nelson, 2014 COA 165,
10Interestingly, the Torres court held that revisions to the state’s
Domestic Violence Prevention Act required that “no [protection]
order should be vacated upon a reconciliation or mutual violation
without an analysis of the necessity for continued protection and
restraints.” Torres v. Lancellotti, 607 A.2d 1375, 1377 (N.J. Super.
Ct. Ch. Div. 1992). If anything, this case supports our analysis and
conclusion here.
34
¶ 49. When a defendant argues that assent by the protected person
shows that the prosecution did not prove all the elements of a
crime, it is a traverse defense and the prosecution does not need to
prove an additional element and the defendant is not entitled to a
consent defense instruction. See id. at ¶¶ 49, 52.
¶ 62 Further, we are not persuaded by the Attorney General’s
concerns that protected persons may unfairly invite contact with a
restrained person and then use that contact to claim that the
restrained person violated the protection order. A defendant
charged with violation of a protection order must knowingly contact
a protected person in a way that violates the terms of a protection
order. People v. Coleby, 34 P.3d 422, 424 (Colo. 2001) (stating that
the mens rea of knowingly applies to the conduct prong of the
violation of a protection order statute). In Colorado, the mens rea of
“knowingly” is synonymous with “willfully,” the mens rea applicable
to the crimes charged in Shirley and Dixon. With respect to
conduct, a defendant acts knowingly or willfully when he or she is
aware that his or her conduct is of the nature prohibited by the
statute or is aware that the conduct is practically certain to cause
the result. § 18-1-501(6), C.R.S. 2016. To constitute a violation of
35
a “no contact” provision of a protection order, “the defendant’s
conduct must involve physical touching or some element of direct or
indirect communication, or attempted communication, with the
victim. Consequently, incidental contact that occurs unintentionally
and is unavoidable is not sufficient, by itself, to establish a
violation.” People v. Serra, 2015 COA 130, ¶ 34 (emphasis added).
Thus, where the only contact alleged is when the protected person
later decides to report contact that he or she initiated, evidence of
such contact could arguably be “incidental contact that occurs
unintentionally” or show that the defendant did not have the
requisite mens rea because he or she was not aware that his or her
conduct was of the type prohibited by statute. Id.; see § 18-1-
501(6). In other words, “if the evidence showed that the [protected
person] approached the [restrained person] without [the restrained
person’s] encouragement or consent . . . , the court might be unable
to find that the respondent willfully violated the CPO (and, indeed,
the government might hesitate to prosecute . . . ).” Shirley, 28 A.3d
at 512 (footnote omitted).
36
V. Conclusion
¶ 63 The district court’s order is reversed, and the case is
remanded with directions to remand to the county court for further
proceedings and with instructions to preclude Hartsuff from
asserting consent as an affirmative defense to the charge of
violation of a protection order.
JUDGE PLANK and JUDGE MÁRQUEZ concur.
37