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 ...