County District Court No. 13CR3655 Honorable Gregory R.
Cynthia H. Coffman, Attorney General, Nicole D. Wiggins,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Anne T.
Amicarella, Deputy State Public Defender, Denver, Colorado,
1 In appealing the judgment of conviction entered on a jury
verdict finding him guilty of sexual assault on a child,
defendant, Allen Michael Sparks, raises an issue of first
impression in Colorado: When a child victim is alleged to
have initiated the sexual contact with an adult defendant,
does the phrase "subjects another . . . to any sexual
contact" in section 18-3-405(1), C.R.S. 2017, the sexual
assault on a child statute, require the People to prove that
the defendant caused the victim to become "subservient
or subordinate" or to prove that the child victim
initiated the sexual contact at the defendant's order,
request, or directive? We answer that question
"no." For that reason and because we reject the
other issues raised on appeal, we affirm the judgment of
Facts and Procedural History
2 Sparks attended a party at his wife's cousin's
house. Months later, the cousin's daughter (A.M.)
reported that while she was at the party and Skyping on her
computer, Sparks touched her breast over her clothing. She
also reported that as she was Skyping, her friend S.F. (the
victim) and Sparks were behind her, and that through her
computer's camera she saw the victim grabbing
Sparks's groin area and making other movements. She also
reported hearing heavy breathing and gasping. At the time,
A.M. was fourteen and the victim was thirteen. The police
later interviewed Sparks, and he admitted to what A.M.
reported, as well as to touching the victim's groin,
breast, and bottom area. Sparks was charged with two counts
of sexual assault on a child and two counts of contributing
to the delinquency of a minor, one count of each for the
victim and A.M. He was convicted of one count of sexual
assault on a child as to the victim.
The Issue of First Impression is Raised in the Context of
3 Sparks contends that the prosecutor engaged in misconduct
by misstating the law and evidence during closing argument.
Standard of Review
4 We review a claim of prosecutorial misconduct by engaging
in a two-step analysis. Wend v. People, 235 P.3d
1089, 1096 (Colo. 2010). First, we review whether the
prosecutor's conduct was improper considering the
totality of the circumstances. Second, we determine whether
the conduct warrants reversal under the applicable standard
of review. Id. Sparks did not object, so we review
for plain error. People v. McMinn, 2013 COA 94,
¶ 58. Prosecutorial misconduct constitutes plain error
where it (1) is flagrant or glaringly or tremendously
improper and (2) so undermines the trial's fundamental
fairness as to cast serious doubt on the judgment of
conviction's reliability. Prosecutorial misconduct in
closing argument rarely constitutes plain error. Id.
The Prosecutor Did Not Misstate the Law
5 Sparks contends that the prosecutor misstated the law by
telling the jury in closing argument that it did not matter
that the victim initiated the sexual contact, because, he
argues, if the victim subjected him to sexual contact, the
acts did not fall under the sexual assault statute.
Specifically, Sparks argues that the words "subjects
another . . . to" in the statute required the
prosecution to prove that he caused the victim to become
"subservient or subordinate" or that the child
victim initiated the sexual contact at his "order,
request, or directive." We disagree.
6 Because Sparks was charged with sexual assault on a child,
the prosecution was required to prove that he
2.subjected another person who was not his spouse to any
sexual contact, and
3.that person was less than fifteen years of age, and
4.the defendant was at least four years older than that
person at the time of the commission of the act.
See § 18-3-405(1); see also
COLJI-Crim. 3-4:31 (2016).
7 Sexual contact "means the knowing touching of the
victim's intimate parts by the actor, or of the
actor's intimate parts by the victim, "
including over the clothing, "for the purposes of sexual
arousal, gratification, or abuse." § 18-3-401(4),
C.R.S. 2017 (emphasis added). It is not a defense that a
defendant does not know the age of a child victim. §
18-1-503.5(3), C.R.S. 2017.
8 We read these statutes together to give effect to the
entire statutory scheme and give consistent and sensible
effect to all its parts. See People v. Steen, 2014
CO 9, ¶ 9. The sexual assault statute's plain
language requires the prosecution to prove that a defendant
knowingly subjected another to any sexual contact. Sexual
contact includes the touching of the defendant's intimate
parts by the victim. § 18-3-401(4).
9 Sparks asserts that the words "subjects another"
are understood as causing another to become subservient or
subordinate. But we conclude that in the context of the
statutory scheme prohibiting sexual assault on a child, the
General Assembly has given "subjects another" a
broader meaning. That meaning encompasses an adult defendant
allowing a child to touch the defendant's intimate parts.
And by doing so, the defendant subjects the child to sexual
contact. We reach this conclusion for four reasons.
10 First, accepting Sparks's argument would result in
making some form of force or threat by a defendant an element
of the sexual assault on a child offense. But the use of
force or a threat cannot be considered an element of sexual
assault on a child because the General Assembly clearly
treats the use of force or threats by the defendant as a
sentence enhancer, not an element, of the crime. See
11 Second, "subjects another" cannot be reasonably
read to exclusively require that a defendant initiate or
cause the contact, because sexual contact is statutorily
defined to include the knowing touching of the
defendant's intimate parts by the victim. § 18-3-
401(4). And as to the victim touching the defendant, the
statute does not contain any mention of initiation, coercion,
or persuasion by the defendant. So construing the statute to
require that the prosecution show some sort of coercive or
persuasive act by the defendant to make the victim
subservient or subordinate is contrary to the statute's
plain language and would require us to add words to the
statute. This we cannot do. People v. Diaz, 2015 CO
28, ¶ 15.
12 And we note that in other contexts, courts have held that
"a person 'subjects' another . . . if he or she
affirmatively acts, participates in another's
affirmative act, or omits to perform an act
which he or she is legally required to do and causes the
complained-of deprivation." Santibanez v.
Holland, No. CV 10-09086-GAF (MAN), 2012 WL 933349, at
*6 (C.D. Cal. Jan. 24, 2012) (emphasis added) (citing
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978))
(construing 42 U.S.C. § 1983 (2012)).
13 Third, our General Assembly has made clear that in any
unlawful sexual contact or activity between a child and an
adult, the adult is the culpable actor. For example, in the
context of sexual exploitation of a child, a child under
eighteen years of age is incapable of giving informed consent
to the use of his or her body for a sexual purpose.
See § 18-6-403, C.R.S. 2017. Thus, the law will
not recognize the child as the initiator of unlawful sexual
contact or activity with an adult. See United States v.
De La Cruz-Garcia, 590 F.3d 1157, 1160 (10th Cir. 2010)
(construing sections 18-3-401(4) and 18-3-405(1) and
recognizing that legally nonconsensual sexual activity
between an adult and a minor victim "inherently involves
taking unfair or undue advantage of the victim");
Davis v. United States, 873 A.2d 1101, 1107 (D.C.
2005) ("As his eleven-year-old daughter was legally
incapable of consenting to [defendant's] sexual advance,
coercion was implicit and need not have been otherwise
shown."). So construing the phrase "subjects
another" as requiring the prosecution to prove conduct
by a defendant that coerced or persuaded a child victim into
touching the defendant's intimate parts would undermine
the sexual assault on a child statutory scheme.
14 Finally, Sparks's interpretation would lead to an
absurd result where a defendant could, without violating the
sexual assault on a child statute, knowingly allow, by
passive acceptance, a child victim to touch the
defendant's intimate parts because the defendant did not
coerce or persuade the victim, even if the defendant allowed
the touching to continue. We must avoid interpretations that
would lead to an absurd result. Doubleday v. People,
2016 CO 3, ¶ 20.
15 Our interpretation is consistent with other
jurisdictions' courts that have considered this issue.
16 In State v. Severy, the Maine Supreme Court
interpreted the phrase "subjects another" in an
unlawful sexual contact statute to include a defendant's
conduct of intentionally failing to stop a child from
initiating sexual contact. 8 A.3d 715, 716, 718 (Me. 2010)
(quoting Me. Rev. Stat. Ann. tit. 17-A, § 255-A(1)
(2016)) ("[A]n adult does 'subject' a child to
sexual contact by failing to stop the child from touching the
adult's genitals on multiple occasions and instead
allowing the child to continue this contact."). The
statute at issue in that case reads, in part: "A person
is guilty of unlawful sexual contact if the actor
intentionally subjects another person to any sexual contact
and . . . [t]he other person, not the actor's spouse, is
in fact less than 12 years of age and the actor is at least 3
years older." Id. at 718 (quoting Me. Rev.
Stat. Ann. tit. 17-A, § 255-A(1)(E-1)).
17 The Severy court noted that "[t]he verb
'subject' is not defined by statute, " and it
concluded that the trial court's instruction to the jury
that "'subject' could mean, among other things,
'to cause to experience, '" was consistent with
a common understanding of the term. Id. (citing
Webster's Third New International ...