People v. Ramirez

488 P.3d 382

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Senon Louis RAMIREZ, Defendant-Appellant.

Court of Appeals No. 16CA1298

Colorado Court of Appeals, Division IV.

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

Opinion by JUDGE BERGER

¶ 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.

¶ 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.

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 criminalize SAOC and SAOC-POT. We review questions of statutory interpretation de novo. People v. Vecellio , 2012 COA 40, ¶ 13, 292 P.3d 1004.

¶ 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.

¶ 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).

¶ 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. 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, 342 P.3d 530. 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.

¶ 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 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,...