2018 COA 129
Colo. Ct. App.2018Background
- Defendant Senon Louis Ramirez, a foster father, masturbated, ejaculated into the hands of a four-year-old foster child (and her sister), and forced the child to swallow the semen.
- Defendant was charged with two counts each of sexual assault on a child (SAOC), sexual assault on a child by one in a position of trust (SAOC-POT), and indecent exposure.
- A jury convicted Ramirez of one count of SAOC and one count of SAOC-POT as to the victim, and two counts of indecent exposure; acquitted on corresponding counts as to the sister.
- On appeal Ramirez challenged sufficiency of the evidence for SAOC and SAOC-POT; he did not challenge indecent exposure convictions.
- The statutory question centered on whether semen qualifies as an "intimate part" under § 18-3-401(2), because SAOC/SAOC-POT require "sexual contact" defined as touching an "intimate part."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether semen is an "intimate part" under § 18-3-401(2) | Semen is part of the actor's external genitalia and thus an "intimate part," so ejaculation touching the child satisfies "sexual contact." | Semen is a fluid produced by but not part of the external genitalia; it is not listed in the statutory definition of "intimate parts." | Court held semen is not an "intimate part" under the statute. |
| Whether evidence proved required "touching" of an "intimate part" to sustain SAOC/SAOC-POT convictions | EJaculation onto the victim's hands equates to touching; jurors could infer the victim touched defendant's penis. | Victim consistently testified she did not touch defendant's private parts; speculation is insufficient. | Court held evidence insufficient to prove touching of an "intimate part" (vacated SAOC and SAOC-POT convictions). |
Key Cases Cited
- People v. Vinson, 42 P.3d 86 (Colo. App.) (ejaculation onto victim's buttocks held a "touching" of intimate parts)
- Woellhaf v. People, 105 P.3d 209 (Colo.) (addressed related issues of prosecution but did not decide whether semen is an "intimate part")
- People v. Bennett, 515 P.2d 466 (Colo.) (articulating the standard for sufficiency of the evidence)
- People v. Benavidez, 222 P.3d 391 (Colo. App.) (courts must not add or imply statutory words absent legislative language)
- State v. Dawson, 985 S.W.2d 941 (Mo. Ct. App.) (different statutory language; placed semen in a mug held to satisfy a broader "physical contact" definition)