     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
                                                               June 11, 2020

                                2020COA90

No. 17CA0354, People v. Market — Crimes — Sexual Assault on
a Child; Criminal Law — Limitation for Commencing Criminal
Proceedings

     A division of the court of appeals considers which of two

conflicting statutes — section 16-5-401, C.R.S. 1996 (specifically,

subsections (1)(a) and (6)), or section 18-3-411(2), C.R.S. 1996 —

provided the statute of limitations for the charge of sexual assault

on a child against the defendant. The legislative history behind

these statutes demonstrates that the General Assembly intended for

the limitations period contained within section 16-5-401(1)(a) and

(6) to apply over that of section 18-3-411(2) when the statutes

conflict. The division concludes that section 16-5-401(1)(a) and (6)

governed the limitations period for the charged offense.
     Also applying section 16-5-401(2), C.R.S. 1996, the division

concludes that the limitations period was tolled for five years due to

defendant’s absence from Colorado during that time.

     Because the limitations period in section 16-5-401(1)(a) and

(6), C.R.S. 1996, applies, and section 16-5-401(2) tolled the statute

for five years, the statutory limitations period had not expired as of

July 1, 2006, and section 16-5-401(1)(a), (b), C.R.S. 2019, and

section 18-3-411(2), C.R.S. 2019, were then activated to eliminate

any statute of limitations for the prosecution of the offense. As a

result, the defendant was timely prosecuted for his June 1996

sexual assault on a child.

     The division also concludes that there was sufficient evidence

to support the defendant’s conviction for sexual assault on a child

by force. Accordingly, the division affirms the conviction. However,

the division also remands for the trial court to make corrections to

the mittimus.
COLORADO COURT OF APPEALS                                         2020COA90


Court of Appeals No. 17CA0354
El Paso County District Court No. 16CR470
Honorable Gregory R. Werner, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joel Market,

Defendant-Appellant.


                       JUDGMENT AFFIRMED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division IV
                           Opinion by JUDGE TERRY
                        Freyre and Lipinsky, JJ., concur

                          Announced June 11, 2020


Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John Plimpton, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    As a matter of first impression, we must decide which of two

 conflicting statutes, section 16-5-401, C.R.S. 1996, or section 18-3-

 411(2), C.R.S. 1996, provided the applicable statute of limitations

 for the crime of sexual assault on a child committed on June 16,

 1996, by defendant, Joel Market. We conclude that the General

 Assembly intended section 16-5-401, C.R.S. 1996, to define the

 limitations period for such offenses, so that — under that statute

 and without taking into consideration other statutory provisions —

 the charge was to be brought by June 16, 2006.

¶2    But five years were then added to the applicable limitations

 period because defendant was absent from Colorado for at least five

 years. See § 16-5-401(2), C.R.S. 1996. And so the statute of

 limitations had not yet expired by July 1, 2006.

¶3    Because the statute of limitations had not expired by that

 date, we next conclude that section 16-5-401(1)(a), (b), C.R.S. 2019,

 and section 18-3-411(2), C.R.S. 2019, were activated to eliminate

 any statute of limitations for the charged crimes. See § 16-5-

 401(1.5)(b) (specifying that unlimited limitations period provided in

 section 16-5-401(1)(a) applies to any sex offense against a child

 “committed before July 1, 1996, if the applicable statute of


                                   1
 limitations, as it existed prior to July 1, 2006, has not yet run on July

 1, 2006”); § 18-3-411(2) (“The limitation for commencing criminal

 proceedings . . . concerning unlawful sexual offenses that are

 felonies shall be governed by section 16-5-401(1)(a), C.R.S.”).

¶4    Given that no statute of limitations ultimately applied to the

 crimes of which defendant was accused, we determine that he was

 timely prosecuted in this 2016 case for his 1996 sexual assault on

 a child by force. And because we conclude that sufficient evidence

 supports the conviction, we affirm. But we remand for the trial

 court to correct the mittimus.

                            I.    Background

¶5    On June 16, 1996, four-year-old A.R. was sexually assaulted

 by a man she did not know. The man entered her bedroom through

 a window, took off her underwear, and penetrated her vagina with

 his hand. When she was touched, A.R. screamed, causing the man

 to flee and alerting the child’s mother. After A.R. told her mother

 that a man had entered the bedroom and hurt her, the mother

 called the police.

¶6    For nearly two decades, the assault remained unsolved. But

 in 2014, the police ran fingerprints from old cases through a


                                     2
 national fingerprint database and learned that defendant’s prints

 from an unrelated burglary matched those found on a screen that

 was removed from A.R.’s window on the date of the assault.

¶7    When A.R. was assaulted, defendant was stationed at Fort

 Carson in Colorado Springs. He moved to Texas in 1998 and was

 still living there in 2014 when he was identified as a potential

 suspect in A.R.’s assault. In 2016, while being interrogated by

 Texas police, defendant made several incriminating statements

 about that assault. The People then charged him with several sex

 offenses in this case and asserted that the statute of limitations for

 each count was tolled by defendant’s absence from Colorado under

 section 16-5-401(2).

¶8    After the jury found defendant guilty of sexual assault on a

 child by use of force, he was sentenced to a twenty-four-year term

 of imprisonment.

              II.   Which Statute of Limitations Applies?

¶9    Defendant contends that he could not be prosecuted for A.R.’s

 1996 sexual assault because the applicable statute of limitations for

 the crime expired in June 2006. We disagree.




                                    3
                             A.   Preservation

¶ 10   The parties agree that defendant did not preserve in the trial

  court the issue he now presents, namely, which statute governs the

  limitation period for prosecuting the offense.

¶ 11   According to the Attorney General, we cannot consider

  defendant’s statute of limitations claim for the first time on appeal

  because the claim does not present an issue of subject matter

  jurisdiction, and instead the claim is “properly viewed as a defense

  that may be waived or forfeited.” The Attorney General bases this

  argument on the premise that Bustamante v. District Court, 138

  Colo. 97, 107, 329 P.2d 1013, 1018 (1958), overruled in part on

  other grounds by County Court v. Ruth, 194 Colo. 352, 575 P.2d 1

  (1977), should no longer be relied on to support the proposition that

  violation of a criminal statute of limitations divests the trial court of

  subject matter jurisdiction.

¶ 12   We understand the Attorney General to be preserving this

  argument for further review by our supreme court, given that we

  are bound by Bustamante, see People v. Gladney, 250 P.3d 762,

  768 n.3 (Colo. App. 2010) (the court of appeals is bound by




                                      4
  supreme court precedent), and we, of course, must reject the

  argument.

¶ 13   In Bustamante, our supreme court held that a statute of

  limitations challenge is jurisdictional in criminal cases. 138 Colo.

  at 107, 329 P.2d at 1018 (“[T]he statute of limitations in a criminal

  case is not merely a defense that may be asserted at the trial as in

  civil matters, but denies jurisdiction to prosecute an offense not

  committed within the period limited.”). Indeed, several divisions of

  this court have also ruled that a statute of limitations claim in

  criminal cases involves subject matter jurisdiction. See, e.g., People

  v. Butler, 2017 COA 117, ¶ 16. Issues of subject matter jurisdiction

  can be raised for the first time on appeal. Herr v. People, 198 P.3d

  108, 111 (Colo. 2008).

¶ 14   We therefore proceed to consider defendant’s statute of

  limitations claim.

                         B.   Standard of Review

¶ 15   Determining which of multiple, apparently conflicting statutes

  applies is a question of statutory interpretation, see Frazier v.

  People, 90 P.3d 807, 810 (Colo. 2004), and we review such

  interpretation questions de novo, People v. Perez, 2016 CO 12, ¶ 8.


                                     5
¶ 16   In construing a statute, our primary purposes are to ascertain

  and give effect to the legislature’s intent. McCoy v. People, 2019 CO

  44, ¶ 37. To do this, we first look to the language of the statute,

  seeking to give its words and phrases their plain and ordinary

  meanings. Id. In doing so, we consider “the statute as a whole,

  construing each provision consistently and in harmony with the

  overall statutory design.” Whitaker v. People, 48 P.3d 555, 558

  (Colo. 2002).

¶ 17   If a statute is clear and unambiguous, we need look no further

  than the plain language to determine the statute’s meaning. Id.

  But if the statute is ambiguous, we may consider other factors,

  including canons of statutory construction and legislative history.

  Id.; Hotsenpiller v. Morris, 2017 COA 95, ¶ 2.

¶ 18   When it appears that two statutes conflict, we strive to

  “construe the statutes in harmony [to] give effect to each.”

  DeCordova v. State, 878 P.2d 73, 75 (Colo. App. 1994). If two

  conflicting statutes can be construed to avoid inconsistency, we are

  obligated to interpret the statutes in that way. Id. But if we cannot

  give meaning to both statutes, we must determine which controls.

  People v. Summers, 208 P.3d 251, 254 (Colo. 2009). To do this, we


                                     6
  may rely on legislative history, prior law, the consequences of a

  given construction of the statute, and the end to be achieved by

  the statute. City of Florence v. Pepper, 145 P.3d 654, 657 (Colo.

  2006). Finally, if these or other canons do not resolve the question,

  we turn as a last resort to the rule of lenity. Summers, 208 P.3d at

  258. Under the rule of lenity, ambiguity in a criminal statute must

  be interpreted in favor of the defendant. Id.

       C.     Potential Limitations Periods for Sexual Assault on a Child

¶ 19        Because defendant committed the charged offense in 1996,

  the statutes then in effect are controlling, People v. Orr, 39 Colo.

  App. 289, 293, 566 P.2d 1361, 1364 (1977), and we focus our

  discussion solely on the 1996 versions of those statutes.

¶ 20        We begin by determining which of two conflicting statutes of

  limitations applies to defendant’s criminal offense: section 16-5-

  401(1)(a), (6), or section 18-3-411(2). Section 18-3-411(2) imposed

  a ten-year limitations period for sexual offenses against children

  and did not contain any tolling provisions.

¶ 21        Section 16-5-401 also imposed a ten-year limitations period

  for sexual offenses. § 16-5-401, C.R.S. 1996 (three-year limitation

  under section 16-5-401(1)(a) is extended by seven years under


                                        7
  section 16-5-401(6)). But in contrast to the limitations period in

  title 18, section 16-5-401(2) included a tolling provision that would

  apply if a defendant had been absent from Colorado. § 16-5-401(2)

  (“The time limitations imposed by this section shall be tolled if the

  offender is absent from the state of Colorado, and the duration of

  such absence, not to exceed five years, shall be excluded from the

  computation of the [limitations period].”). In cases where a

  defendant was absent from Colorado for more than five years,

  section 16-5-401(2) effectively imposed a fifteen-year limitations

  period on sexual offenses. See id.

¶ 22   Both sections 16-5-401 and 18-3-411 were amended in 2006

  to eliminate a statute of limitations for felony sexual offenses

  against a child. § 16-5-401(1)(a), C.R.S. 2006; § 18-3-411(2), C.R.S.

  2006. Those amendments eliminating limitations periods apply

  retroactively to sex crimes against children for which the statute of

  limitations had not yet expired as of July 1, 2006. § 16-5-

  401(1.5)(b), C.R.S. 2006.

¶ 23   Therefore, for defendant to be lawfully prosecuted in this case,

  the originally applicable statute of limitations must not have




                                     8
  expired as of July 1, 2006. If that is the case, then no statute of

  limitations would bar his prosecution.

¶ 24   Because we conclude that the originally applicable statute of

  limitations had not expired by that date, we also conclude that the

  amendments eliminating a statute of limitations for crimes against

  children are effective against defendant, and he was properly

  subject to prosecution for the charged offenses.

                    D.    Analysis of 1996 Provisions

¶ 25   Defendant contends that section 18-3-411(2) provides the

  applicable limitations period for the crime of sexual assault on a

  child. He maintains that the ten-year limitation period under that

  statute expired in June 2006, and that the prosecution begun in

  2016 for A.R.’s sexual assault is therefore time barred.

¶ 26   The Attorney General counters that expiration of the

  limitations period is governed by the combination of section 16-5-

  401(1)(a) and (6), which together extended the limitations period to

  ten years. And because defendant was absent from Colorado for

  more than five years, the Attorney General maintains — based on

  section 16-5-401(2) — that the statute of limitations had not yet




                                     9
  expired when defendant was charged. We agree with the Attorney

  General.

¶ 27   In the context of defendant’s case, subsections (1)(a) and (6) of

  section 16-5-401 conflict with the provisions of section 18-3-411(2),

  because they would provide different limitations periods for the

  charge against him. It is simply impossible to construe the statutes

  to give effect to both of them.

¶ 28   As we will explain, we conclude that subsections (1)(a) and (6)

  of section 16-5-401 together provide the governing limitations

  period for felony sexual assault on a child given the facts of this

  case: three years under subsection (1)(a), increased by seven years

  under subsection (6), for a total of ten years. Bear in mind, this is

  before considering other provisions, discussed below, which

  completely eliminate any limitations period.

                         E.    Legislative History

¶ 29   Because there is an apparent conflict between the limitations

  periods in sections 16-5-401(1)(a), (6) and 18-3-411(2), and because

  the plain language of those statutes sheds no light on which statute

  provides the applicable limitations period for felony sexual assault




                                    10
  on a child, we turn to legislative history to help resolve the conflict.

  See Summers, 208 P.3d at 254.

¶ 30    The legislative history behind these laws, specifically the

  historical development of the statutory scheme, demonstrates that

  the General Assembly intended for the limitations provisions in

  subsections (1)(a) and (6) of section 16-5-401 to apply to felony

  sexual assault on a child. See People v. Jones, 2015 CO 20, ¶ 10

  (the historical development of a statutory scheme can shed light on

  the purposes behind related statutory provisions).

   1.   The General Assembly Intended for Section 18-3-411 to Align
                With, and Not Supplant, Section 16-5-401

¶ 31    Section 16-5-401 was enacted in 1963. See § 39-5-401,

  C.R.S. 1963 (providing the statute’s year of enactment). When

  enacted, section 16-5-401 provided a three-year limitations period

  for sexual offenses. See § 39-5-401.

¶ 32    Nineteen years later, in 1982, section 18-3-411 was enacted

  and provided for a ten-year limitations period for sexual offenses.

  § 18-3-411, C.R.S. 1982. When enacting the later statute, the

  General Assembly did not include any language eliminating the

  limitations provisions of section 16-5-401(1)(a) or indicating that



                                     11
  the limitations period provided by section 18-3-411(2) should

  supersede that of section 16-5-401(1)(a). To the contrary, the same

  bill that created section 18-3-411 amended section 16-5-401 so

  that it would also provide a ten-year limitations period for sexual

  offenses. See Ch. 75, sec. 1, § 18-3-411, 1982 Colo. Sess. Laws

  313; Ch. 75, sec. 2, § 16-5-401, 1982 Colo. Sess. Laws 314.

¶ 33   But unlike section 18-3-411, section 16-5-401(2) included a

  provision that tolled the ten-year limitations period for up to five

  years when a defendant was absent from Colorado. § 16-5-401(2),

  C.R.S. 1982.

¶ 34   Based on the legislature’s enactment of section 18-3-411 in

  conjunction with the substantive amendments that it made at the

  same time to section 16-5-401, it is evident that the legislature

  intended for the provisions of section 18-3-411, including its

  limitations period for sexual offenses, to align with — and not

  supplant — the provisions of section 16-5-401 that addressed the

  same subject: the limitations period for sexual offenses against

  children. See Senior Corp. v. Bd. of Assessment Appeals, 702 P.2d

  732, 742 (Colo. 1985) (“In construing different statutory provisions

  addressing the same topic, this court must make every effort to give


                                    12
  full effect to the legislative purpose of all such provisions.”); see also

  Union Pac. R.R. Co. v. Martin, 209 P.3d 185, 189 (Colo. 2003) (“[I]t is

  a well-accepted tenet of statutory construction that in the absence

  of a contrary indication, statutes should be construed to assume

  the existence of other parts of the same statutory scheme and

  create a single, harmonious whole.”).

¶ 35   The General Assembly’s intent to have section 18-3-411(2)

  align with, and not supplant, subsections (1)(a) and (6) of section

  16-5-401 is reinforced by the fact that there have been other

  consistent amendments made to both laws since 1982. In 2002,

  both statutes were amended to include a provision allowing their

  limitations periods for sexual offenses against children to be tolled

  until a child victim reached the age of eighteen. § 16-5-401(8)(a.3),

  C.R.S. 2002; § 18-3-411(2)(b), C.R.S. 2002. And in 2006, both

  statutes were amended to eliminate a statute of limitations for

  felony sexual offenses against children. § 16-5-401(1)(a), C.R.S.

  2006; § 18-3-411(2), C.R.S. 2006. As with the 1982 legislation, the

  2002 and 2006 amendments gave no indication that the legislature

  intended the limitations provision in section 18-3-411(2) to

  supplant the limitations period in subsections (1)(a) and (6) of


                                     13
  section 16-5-401. Instead, these consistent amendments

  demonstrate the legislature’s continued intent for section 18-3-

  411(2) to align with the provisions of section 16-5-401, including

  subsections (1)(a) and (6).

   2.    Section 16-5-401 Provides the Governing Limitations Period
             When that Statute Conflicts with Section 18-3-411

¶ 36    Additional legislative history shows that, in the event of a

  conflict between the two statutes, subsections (1)(a) and (6) of

  section 16-5-401 are intended to supply the governing limitations

  period. In 2006, when the legislature amended both statutes to

  eliminate a limitations period for felony sexual offenses against

  children, the legislature also amended section 18-3-411 to explicitly

  state that section 16-5-401(1)(a) provided the governing statute of

  limitations for such crimes. See § 18-3-411(2), C.R.S. 2006 (“The

  limitation for commencing criminal proceedings . . . concerning

  unlawful sexual offenses that are felonies shall be governed

  by section 16-5-401(1)(a), C.R.S.”).

¶ 37    While it is true that amendments to statutes are generally

  presumed to effectuate a change in the law, amendments can also

  show the legislature’s intent to clarify a statute’s meaning. Acad. of



                                     14
  Charter Sch. v. Adams Cty. Sch. Dist. No. 12, 32 P.3d 456, 464

  (Colo. 2001) (“Amendments to a statute either clarify the law or

  change it, and there exists a presumption that, by amending the

  law, the legislature intends to change it. This presumption can be

  rebutted, however, by a showing that the legislature only meant

  to clarify an ambiguity in the statute by amending it.”) (citations

  omitted). We are convinced that the legislature’s 2006 amendment

  to section 18-3-411, stating that section 16-5-401(1)(a) provides the

  applicable statute of limitations for felony sexual offenses against

  children, clarified the law rather than changed it.

¶ 38   First, ambiguity as to which provision — section 16-5-

  401(1)(a) and (6), on the one hand, or section 18-3-411(2), on the

  other — governs the limitation period for sexual assault on a child

  has existed since 1982, when the legislature enacted section 18-3-

  411 with a conflicting limitation period. Thus, when the General

  Assembly amended section 18-3-411 in 2006, there was something

  that needed clarification.

¶ 39   Second, the legislative history and development of both

  statutes indicates that this amendment was intended to clarify the

  law. Section 16-5-401 existed for nearly two decades before section


                                    15
  18-3-411 was enacted; when section 18-3-411 was enacted, it was

  drafted so that it would align with the already existing limitations

  period in subsections (1)(a) and (6) of section 16-5-401; sections 16-

  5-401 and 18-3-411 have always been amended in tandem; and the

  General Assembly has never evinced an intent for the statute of

  limitations in section 18-3-411(2) to supersede the limitations

  period provided in section 16-5-401(1)(a) and (6). Thus, for the

  crime of sexual assault on a child, this legislative history all weighs

  in favor of applying subsections (1)(a) and (6) of section 16-5-401

  over the conflicting part of section 18-3-411(2).

¶ 40   Our conclusion is reinforced by the fact that the General

  Assembly has never indicated that section 16-5-401’s tolling

  provision does not apply to a limitations period imposed for sexual

  offenses against children. “Just as important as what the statute

  says is what the statute does not say.” Auman v. People, 109 P.3d

  647, 656-57 (Colo. 2005). Had the General Assembly intended that

  section 16-5-401’s tolling provision would not apply to sexual

  offenses against children, it could have said so. People v. Griffin,

  397 P.3d 1086, 1089 (Colo. App. 2011) (If the legislature intends a

  certain interpretation, “it certainly [knows] how to say so.”). But it


                                    16
  did not. Id. (omissions in statutes should be construed as

  intentional).

  3.   Section 18-1-103, C.R.S. 1996, Does Not Change Our Analysis

¶ 41   Defendant contends that section 18-3-411(2) applies instead

  of section 16-5-401(1)(a) and (6) because section 18-1-103(1),

  C.R.S. 1996, states that the provisions of title 18, including section

  18-3-411, “govern the construction of and punishment for any

  offense defined in any statute of this state, whether in this title or

  elsewhere.” We are not persuaded.

¶ 42   Section 18-1-103(1) plainly states that title 18 governs the

  construction of and punishment for any offense defined in any

  statute of this state, “unless the context otherwise requires.” But

  statutes of limitations do not pertain to the “construction of” any

  offense. Rather, the “construction of . . . any offense” language

  refers to interpretation of the elements of a criminal offense. See id.

  Nor do limitations provisions pertain to the punishment to be

  applied for any criminal offense, which is specified in the sentencing

  statutes. Thus, the plain language of section 18-1-103 does not

  indicate that section 18-3-411(2) applies over subsections (1)(a) or

  (6) of section 16-5-401.


                                     17
   4.    Because Section 16-5-401 Provides the Applicable Statute of
          Limitations, Defendant’s Prosecution Was Not Time Barred

¶ 43    We conclude that subsections (1)(a) and (6) of section 16-5-

  401 govern the limitations period applicable to defendant’s charged

  offense of sexual assault on a child. This conclusion also means

  that the limitations period for defendant’s offense had not expired

  as of July 1, 2006. See § 16-5-401(1.5)(b), C.R.S. 2019 (specifying

  that unlimited limitations period provided in section 16-5-401(1)(a)

  applies to any sex offense against a child “committed before July 1,

  1996, if the applicable statute of limitations as it existed prior to July

  1, 2006, has not yet run on July 1, 2006”) (emphasis added).

¶ 44    Defendant does not dispute that he was absent from Colorado

  for more than five years. Therefore, based on section 16-5-401’s

  ten-year limitations period, as well as its five-year tolling provision

  for a defendant’s absence from the state, the statute of limitations

  in defendant’s case did not expire until June 16, 2011, well past the

  July 1, 2006, deadline established by the General Assembly. See

  § 16-5-401(1)(a), (1)(b), (6), C.R.S. 1996; see also § 16-5-401(1.5)(b),

  C.R.S. 2006 (eliminating a statute of limitations for sexual offenses




                                      18
  against children as long as the original statute of limitations for the

  offense had not expired as of July 1, 2006).

¶ 45   As a result, defendant’s 2016 prosecution for sexual assault

  on a child was timely.

                     III.   Sufficiency of the Evidence

¶ 46   Defendant asserts that there was insufficient evidence to

  support his conviction for sexual assault on a child by force. We

  conclude that the evidence was sufficient.

¶ 47   We review challenges to the sufficiency of the evidence de

  novo. Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005). We must

  determine whether the evidence, both direct and circumstantial,

  when viewed as a whole and in the light most favorable to the

  prosecution, is sufficient to support a conclusion by a rational jury

  that the defendant is guilty beyond a reasonable doubt. Id.; People

  v. Davis, 2012 COA 56, ¶ 12. In making this determination, we give

  the prosecution the benefit of every reasonable inference that might

  fairly be drawn from the evidence. People v. Poe, 2012 COA 166,

  ¶ 14. It is the fact finder, not the reviewing court, that determines

  the credibility of witnesses, weighs the evidence, and resolves

  conflicts, inconsistencies, and disputes in the evidence. Id.


                                     19
¶ 48   “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), C.R.S. 2019.

  Sexual assault on a child is a class 4 felony. § 18-3-405(2)(a). But

  sexual assault on a child rises to the level of a class 3 felony if “the

  actor applies force against the victim in order to accomplish or

  facilitate sexual contact.” Id. (emphasis added).

                    A.   No Additional Force Required

¶ 49   Relying on the words “in order to” in the statute, defendant

  asserts that, for the force enhancer under section 18-3-405(2)(a) to

  apply, the force used must be distinct from the sexual contact. He

  also contends that the People did not present any evidence showing

  that he applied such distinct force in assaulting A.R. Defendant

  does not cite, and our research has not found, any case law that

  supports his interpretation of section 18-3-405(2)(a)’s force

  enhancer.

¶ 50   The single case that defendant cites to support his argument,

  Uribe-Sanchez v. People, 2013 CO 46, is inapposite. It dealt with

  the criteria required to establish “promot[ing] a relationship


                                     20
  primarily for the purpose of sexual victimization” under Colorado’s

  sexually violent predator statute. Id. at ¶ 8. Defendant looks to the

  statutory provision at issue in that case, which “explicitly

  ‘exclud[es] the offender’s behavior during the commission of the

  sexual assault that led to his conviction,’” id. at ¶ 10 (quoting

  People v. Gallegos, 2013 CO 45, ¶ 17), when determining whether

  an offender “promoted [the sexual] relationship primarily for the

  purpose of sexual victimization,” see § 18-3-414.5(1)(a)(III), C.R.S.

  2019. He argues that section 18-3-405(2)(a) similarly requires

  separate force “to accomplish or facilitate sexual contact.” See §

  18-3-405(2)(a).

¶ 51   Defendant’s attempt to graft such a requirement onto the

  statute at issue here simply does not work. Uribe-Sanchez did not

  analyze the type of force necessary to convict a defendant of sexual

  assault on a child by force, and its holding — that the promotion of

  a relationship requires a separate act from the sexual contact —

  does not apply to this case. Uribe-Sanchez, ¶ 10.

¶ 52   Instead, we are guided by the many divisions of this court that

  have held that force in the sexual assault context need not be

  distinct from the sexual contact. See, e.g., People v. Hodge, 2018


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  COA 155, ¶ 14; People v. Keene, 226 P.3d 1140, 1143 (Colo. App.

  2009). Several divisions of this court have defined “physical force”

  in the adult sexual assault statute, § 18-3-402(4)(a), C.R.S. 2019,

  as any “force applied to the body,” see Keene, 226 P.3d at 1143; see

  also People v. Bryant, 2013 COA 28, ¶ 17; People v. Holwuttle, 155

  P.3d 447, 450 (Colo. App. 2006). It is also well established that

  “physical force” does not require any extra application of force. See

  Keene, 226 P.3d at 1143 (“These definitions of ‘physical force’ . . .

  do not require an ‘extra application’ of force other than any force

  applied to the body.”).

¶ 53   Further, in Hodge, 2018 COA 155, a division of this court

  concluded that the term “force” in the sexual assault on a child

  statute was defined the same way as in the adult sexual assault

  context. Id. at ¶ 16. Based on that definition, the court in Hodge

  concluded that, for the force enhancer under section 18-3-405 to

  apply, there only needs to be some exertion of force applied to the

  victim’s body; an extra application of force that is distinct from the

  sexual contact is not required. Id. We agree with that conclusion.




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                       B.   The Evidence Was Sufficient

¶ 54     The following evidence was sufficient to support the

  conviction:

        A.R. told the police that a stranger “had stuck his hand inside

         her body,” while gesturing to her vaginal area.

        A.R. suffered three tears inside her vagina and two lacerations

         in her rectum.

        A.R.’s internal injuries were so extensive that surgery was

         required to stop the bleeding.

        A.R. had significant bruising on the outside of her vaginal and

         rectal areas.

        The sexual assault nurse examiner who examined A.R.

         testified that the victim’s injuries resulted from “something

         that caused significant force,” that the injuries were consistent

         with a penetrating assault, and that A.R.’s injuries were

         “profound.”

¶ 55     Based on this evidence, the jury reasonably could have

  concluded that defendant used force to accomplish or facilitate

  sexual contact with A.R., and thus the evidence was sufficient to

  support the conviction for sexual assault on a child by force.

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                    IV.   Corrections to the Mittimus

¶ 56   Defendant contends, the Attorney General concedes, and we

  agree that the mittimus in this case incorrectly states that (1)

  defendant was convicted of and sentenced for two counts of sexual

  assault on a child when only one count went to the jury and (2)

  defendant pleaded guilty when he was convicted by a jury. Clerical

  mistakes in mittimuses “arising from oversight or omission may be

  corrected by the court at any time and after such notice, if any, as

  the court orders.” Crim. P. 36. Accordingly, we remand solely for

  the trial court to correct these mistakes.

                             V.   Conclusion

¶ 57   We affirm the judgment of conviction and remand this case to

  the trial court to correct the mittimus to reflect that defendant was

  convicted after a jury trial and sentenced for one count of sexual

  assault on a child.

       JUDGE FREYRE and JUDGE LIPINSKY concur.




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