     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




                                    1
 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.

                                    2
¶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




                                    3
  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


                                        4
              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


                                     5
  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.


                                       6
¶ 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).




                                     7
¶ 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


                                    8
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


                                  9
  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.


                                     10
¶ 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.

                                    11
¶ 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.




                                      12
