Opinion by JUDGE FREYRE
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 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. ¶ 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 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.
"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.
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
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
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. ¶ 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).
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. --------
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.