Dan W. Hotsenpiller, District Attorney, Seventh Judicial District, Plaintiff-Appellant,
Honorable Bennet A. Morris, a Judge of the County Court for the County of Montrose, Defendant-Appellee.
County District Court No. 16CV30022 Honorable J. Steven
Hotsenpiller, District Attorney, Barbara J. Sanford,
Assistant District Attorney, Montrose, Colorado, for
Cynthia H. Coffman, Attorney General, Grant T. Sullivan,
Assistant Solicitor General, Denver, Colorado, for
1 In this C.R.C.P. 106(a)(4) action, the District Attorney of
Montrose County, Dan W. Hotsenpiller (District Attorney),
appeals the district court's order upholding the ruling
of Montrose County Court Judge Bennet A. Morris (county
court), which concluded that the affirmative defense of
consent was available to John Hartsuff in his criminal case
on the charge of violation of a civil protection order (CPO).
2 The sole issue on appeal is whether the affirmative defense
of consent, as defined in the consent statute, section
18-1-505, C.R.S. 2016, is available to a defendant who is
criminally charged with violating a protection order,
pursuant to section 18-6-803.5, C.R.S. 2016. As a matter of
first impression, we conclude that the county court abused
its discretion by ruling that Hartsuff could assert the
affirmative defense of consent, because the court
misinterpreted the law regarding CPOs and language in the
consent statute that allows the defense when the alleged
assent of the victim "precludes the infliction of the
harm or evil sought to be prevented by the law defining the
offense, " § 18-1-505(1). Accordingly, we reverse
the district court's order upholding the county
court's ruling and remand with directions for the
district court to remand the case to the county court with
instructions to proceed with Hartsuff's trial and to
preclude the affirmative defense of consent on the charge of
violation of a protection order.
Background and Procedural History
Alleged Violation of a CPO
3 J.C. obtained a temporary CPO against her ex-boyfriend,
Hartsuff. The county court made the CPO "permanent"
in May 2015. § 13-14-106, C.R.S. 2016.
4 The CPO issued in this case was on JDF Form 399. JDF 399,
Permanent Civil Protection Order Issued Pursuant to §
13-14-106, C.R.S. (revised Sept. 2013),
https://perma.cc/CUR5-9HP8. The form order lists Hartsuff as
the restrained person and J.C. as the protected person. The
order states that the restrained person constitutes a
credible threat to the life and health of the protected
person and that sufficient cause exists for the issuance of
the CPO. A warning then appears, in a box and in large print,
stating as follows: "This Protection Order DOES NOT
EXPIRE and only the Court can change this Order. A
violation of a Protection Order is a crime and may be
prosecuted . . . pursuant to § 18-6-803.5, C.R.S."
(Here and for all subsequent quotes to JDF 399, original bold
emphasis has been changed to italics.)
5 The CPO declares that "[i]t is ordered that you, the
Restrained Person, shall have no contact of any kind
with the Protected Person" and explicitly states that
there are no exceptions to contact. The CPO further orders
Hartsuff to stay at least one hundred yards away from
J.C.'s home and work.
6 The final page of the CPO informs the parties of
"IMPORTANT INFORMATION ABOUT PROTECTION ORDERS." As
relevant here, this page includes a notice to the protected
person that he or she "cannot give the Restrained Person
permission to change or ignore this Order in any way.
Only the Court can change this order."
Similarly, the restrained person is notified that if he or
she "violate[s] this Order thinking that the other party
or anyone else has given you permission, you are
wrong, and can be arrested and prosecuted. The terms of
this Order cannot be changed by agreement of the parties.
Only the Court can change this Order."
7 In July 2015, J.C. called police and stated that Hartsuff
was on her front porch threatening her. She told the dispatcher
that there was a CPO in place prohibiting Hartsuff from
contacting her. Before police arrived, Hartsuff left the
premises on foot. In addition to reporting the contact at her
home, J.C. showed the responding officer text messages and
logs of phone calls from Hartsuff over the previous two days.
In the affidavit for Hartsuff's warrantless arrest, the
responding officer noted that J.C. had texted Hartsuff
several times, asking him to leave her alone, and that
Hartsuff called J.C.'s phone while police were on the way
to her home. Dispatch confirmed the existence of the CPO, and
Hartsuff was arrested at a nearby intersection by officers
patrolling the area.
8 Hartsuff was charged with harassment and violation of a
protection order, both as acts of domestic violence.
County Court Criminal Proceedings
9 In his preliminary notice of endorsements, Hartsuff raised
the affirmative defense of consent. At a pretrial hearing, the
prosecution objected to Hartsuff's endorsed consent
defense as applied to the charge of violation of a protection
order. At the hearing, defense counsel argued that, under
section 18-1-505, J.C.'s alleged assent to contact
precluded the infliction of the harm the violation of a
protection order statute was attempting to prevent - namely,
contact between the restrained person and the protected
person. Counsel argued that the purpose of the violation of a
protection order statute was not to protect the court's
order, but only to protect the protected person. He also
asserted that precluding the defense of consent would create
an untenable situation where the protected person could
approach the restrained person and initiate contact, and the
restrained person then could be charged with a violation of
the protection order.
10 The prosecution responded that a protected person cannot
consent to allow another person - even the restrained person
- to violate a court order.
11 The county court ruled that the affirmative defense of
consent was available to Hartsuff because J.C.'s alleged
assent "preclude[d] the infliction of the harm or evil
sought to be prevented" by the violation of the
protection order statute - specifically, unwanted contact.
§ 18-1-505(1). In its written order, the court quoted
the consent statute and then reasoned as follows:
The [CPO] was put into place . . . at the request of the
protected person - now the alleged victim in this case. That
person did not desire contact or proximity with [Hartsuff].
The Court finds that the affirmative defense of consent of
the alleged victim to contact or proximity with [Hartsuff],
would preclude the infliction of the harm sought to be
prevented by a protection order originally put in place at
the request of the victim/protected person, at least in part,
to prevent such contact or proximity.
the court concluded that the affirmative defense of consent
was available to Hartsuff and that the prosecution was,
therefore, required to disprove J.C.'s consent beyond a
reasonable doubt in addition to proving the statutory
elements of violation of a protection order.
C.R.C.P. 106(a)(4) Review in the District Court
12 The District Attorney then sought judicial review of the
county court's order in the district court pursuant to
13 On review, the district court framed the question as
"whether or not the [county] court's determination
to permit the affirmative defense of consent to the violation
of a civil protection order at trial is an abuse of
discretion." The district court reasoned that neither
the consent statute nor the statute regarding the charged
offense of violation of a protection order expressly
prohibited consent as an affirmative defense. It concluded
that the District Attorney had failed to show that the county
court abused its discretion and, thus, remanded the case to
the county court to proceed with trial.
14 The District Attorney now appeals the district court's
order affirming the county court's decision to allow
Hartsuff to assert the affirmative defense of consent to the
charge of violation of a protection order.
Standard of Review
15 Under C.R.C.P. 106(a)(4), our review is "limited to a
determination of whether the [governmental] body or officer
has exceeded its jurisdiction or abused its discretion, based
on the evidence in the record before the defendant body or
officer." C.R.C.P. 106(a)(4)(I).
16 A reviewing court may reverse the decision of a lower
judicial body for an abuse of discretion if the reviewing
court finds that the lower body acted "arbitrarily or
capriciously, made a decision that is unsupported by the
record, erroneously interpreted the law, or exceeded its
authority." Nixon v. City & Cty. of Denver,
2014 COA 172, ¶ 12 (citing Lawley v. Dep't of
Higher Educ., 36 P.3d 1239, 1245 (Colo. 2001)). In an
appeal involving a C.R.C.P. 106 action, the appellate court
sits in the same position as the district court in reviewing
the county court's decision. Shupe v. Boulder
Cty., 230 P.3d 1269, 1272 (Colo.App. 2010). We are,
therefore, limited to reviewing whether the county court
abused its discretion in ruling that the consent defense was
available to Hartsuff. Id.; see also Alpenhof,
LLC v. City of Ouray, 2013 COA 9, ¶ 9.
17 In addition, we review a governmental officer's
interpretation of the law de novo. Treece, Alfrey, Musat
& Bosworth, PC v. Dep't of Fin., 298 P.3d 993,
996 (Colo.App. 2011) (citing Van Sickle v. Boyes,
797 P.2d 1267, 1274 (Colo. 1990)). Here, we are reviewing de
novo a judicial body's interpretation and application of
Colorado statutes and, thus, we do not owe the county court
deference in our application of the ordinary rules of
statutory construction. See Alpenhof, LLC, ¶
18 Our primary task in interpreting a statute is to give
effect to the General Assembly's intent by first
examining the statute's plain language. E.g.,
Stanley v. Dist. Attorney, 2017 COA 33, ¶ 10.
"To discern the General Assembly's intent, we look
to the plain language of the statute, and where that language
is clear and unambiguous, we engage in no further statutory
analysis." People v. Rice, 2015 COA 168, ¶
19 If we determine that the relevant statute is unambiguous,
we give effect to the statute's plain and ordinary
meaning without resorting to other rules of statutory
construction. See, e.g., St. Vrain Valley Sch.
Dist. RE-1J v. A.R.L., 2014 CO 33, ¶ 11. If,
however, the statutory language lends itself to alternative
constructions and its intended scope is ambiguous or unclear,
we then look to the statute's context, legislative
history, prior law, the consequences of a given ...