     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.


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  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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