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People v. Hodge

Court of Appeals of Colorado, Sixth Division

November 1, 2018

The People of the State of Colorado, Plaintiff-Appellant,
v.
Travis Hodge, Defendant-Appellee.

          El Paso County District Court No. 18CR287 Honorable Theresa M. Cisneros, Judge

          Daniel H. May, District Attorney, Doyle J. Baker, Senior Deputy District Attorney, Oliver A. Robinson, Deputy District Attorney, Stephanie J. Redfield, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellant

          Megan A. Ring, Colorado State Public Defender, Megan M. Morris, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee

          OPINION

          FREYRE JUDGE

         ¶ 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 bondage and dominant and submissive sexual acts (BDSM).[1] The victim told the officer that they had arranged to meet in person and had devised a plan whereby Hodge would pose as the father of one of the victim's friends and then pick him up for a purported overnight at the friend's house.

         ¶ 4 Hodge flew to Colorado and retrieved the victim from his home in Boulder. He drove the victim to a vacation rental home in Colorado Springs. When they arrived, Hodge asked the victim to undress to his level of comfort - the victim removed all of his clothing except his underwear. Hodge then placed a padlocked collar around the victim's neck, handcuffed the victim's hands behind his back, and placed a ball gag in the victim's mouth. According to the forensic interviewer, Hodge then sodomized the victim with his fingers, a dildo, and his penis. Hodge and the victim also performed fellatio on one other. The victim remained handcuffed throughout these acts.

         ¶ 5 Eventually, the victim realized the events had become "real" and wanted to end the encounter. He told Hodge he felt sick and needed to throw up. Hodge removed the restraints, and the victim suggested that they take a nap. When Hodge fell asleep, the victim left the house and contacted the police.

         ¶ 6 At the end of the hearing, the court concluded that the evidence supported probable cause for the sexual assault on a child charges as class 4 felonies. However, the court requested additional briefing on whether it could bind over the same charges as class 3 felonies when the undisputed evidence showed that the victim had consented to the use of the restraints.

         ¶ 7 After considering the parties' arguments and briefs, the court issued a written order in which it found that the handcuffs and ball gag were "part of the sexual activity that the [victim] and the defendant agreed to, and they were not used as force in order to accomplish or facilitate the sexual contact." The court concluded there was "insufficient evidence to establish that force was used to accomplish or facilitate the sexual contact," and it bound over the relevant sexual assault charges as class 4 felonies. Thus, it was the 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 ...


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