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People v. Sparks

Court of Appeals of Colorado, Second Division

January 11, 2018

The People of the State of Colorado, Plaintiff-Appellee,
Allen Michael Sparks, Defendant-Appellant.

         El Paso County District Court No. 13CR3655 Honorable Gregory R. Werner, Judge

          Cynthia H. Coffman, Attorney General, Nicole D. Wiggins, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Anne T. Amicarella, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant



         ¶ 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 conviction.

         I. 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.

         II. The Issue of First Impression is Raised in the Context of Prosecutorial Misconduct

         ¶ 3 Sparks contends that the prosecutor engaged in misconduct by misstating the law and evidence during closing argument. We disagree.

         A. 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.

         B. Analysis

         1. 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

1. knowingly,
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 § 18-3-405(2)(a)-(c).

         ¶ 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 ...

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