County District Court No. 15CR794 Honorable Francis C.
Cynthia H. Coffman, Attorney General, Ellen M. Neel,
Assistant Attorney General, Denver, Colorado, for
A. Ring, Colorado State Public Defender, Katherine Brien,
Deputy State Public Defender, Denver, Colorado, for
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
2 The sole issue presented is whether the statutes defining
SAOC criminalize Ramirez's reprehensible
conduct. 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
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
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.
Prosecution Did Not Prove Either that Ramirez Touched the
Victim's "Intimate Part"or that the Victim
Touched Ramirez's "Intimate Part"
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., 26 P.3d 1134');">226 P.3d 1134, 1138
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.
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.
"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.
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.
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