Dan W. Hotsenpiller, District Attorney, Seventh Judicial District, Plaintiff-Appellant, v. Honorable Bennet A. Morris, a Judge of the County Court for the County of Montrose, Defendant-Appellee.
Court of Appeals No. 16CA1337
COLORADO COURT OF APPEALS
Announced July 13, 2017
2017COA95
Opinion by CHIEF JUDGE LOEB; Plank* and Márquez*, JJ., concur
Montrose County District Court No. 16CV30022; Honorable J. Steven Patrick, Judge
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division A
Dan W. Hotsenpiller, District Attorney, Barbara J. Sanford, Assistant District Attorney, Montrose, Colorado, for Plaintiff-Appellant
Cynthia H. Coffman, Attorney General, Grant T. Sullivan, Assistant Solicitor General, Denver, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of
¶ 2 The sole issue on appeal is whether the affirmative defense of consent, as defined in the consent statute,
I. Background and Procedural History
A. Alleged Violation of a CPO
¶ 3 J.C. obtained a temporary CPO against her ex-boyfriend, Hartsuff. The county court made the CPO “permanent” in May 2015.
¶ 4 The CPO issued in this case was on JDF Form 399. JDF 399, Permanent Civil Protection Order Issued Pursuant to
¶ 5 The CPO declares that “[i]t is ordered that you, the Restrained Person, shall have no contact of any kind with the Protected Person[]” and explicitly states that there are no exceptions to contact. The CPO further orders Hartsuff to stay at least one hundred yards away from J.C.‘s home and work.
¶ 6 The final page of the CPO informs the parties of “IMPORTANT INFORMATION ABOUT PROTECTION ORDERS.” As relevant here, this page includes a notice to the protected person that he or she “cannot give the Restrained Person permission to change or ignore this Order in any way. Only the Court can change this order.” Similarly, the restrained person is notified that if he or she “violate[s] this Order thinking that the other party or anyone else has given you permission, you are wrong, and can be arrested and prosecuted. The terms of this Order cannot be changed by agreement of the parties. Only the Court can change this Order.”
¶ 7 In July 2015, J.C. called police and stated that Hartsuff was on her front porch1 threatening her. She told the dispatcher that there was a CPO in place prohibiting Hartsuff from contacting her. Before police arrived, Hartsuff left the premises on foot. In addition to reporting the contact at her home, J.C. showed the responding officer text messages and logs of phone calls from Hartsuff over the previous two days. In the affidavit for Hartsuff‘s warrantless arrest, the responding officer noted that J.C. had texted Hartsuff several times, asking him to leave her alone, and that Hartsuff called J.C.‘s phone while police were on the way to her home. Dispatch confirmed the existence of the CPO, and Hartsuff was arrested at a nearby intersection by officers patrolling the area.
¶ 8 Hartsuff was charged with harassment and violation of a protection order, both as acts of domestic violence.
B. County Court Criminal Proceedings
¶ 9 In his preliminary notice of endorsements, Hartsuff raised the affirmative defense of consent.2 At a pretrial hearing, the prosecution objected to Hartsuff‘s endorsed consent defense as applied to the charge of violation of a protection order. At the hearing, defense counsel argued that, under
person and initiate contact, and the restrained person then could be charged with a violation of the protection order.
¶ 10 The prosecution responded that a protected person cannot consent to allow another person — even the restrained person — to violate a court order.
¶ 11 The county court ruled that the affirmative defense of consent was available to Hartsuff because J.C.‘s alleged assent “preclude[d] the infliction of the harm or evil sought to be prevented” by the violation of the protection order statute — specifically, unwanted contact.
The [CPO] was put into place . . . at the request of the protected person – now the alleged victim in this case. That person did not desire contact or proximity with [Hartsuff]. The Court finds that the affirmative defense of consent of the alleged victim to contact or proximity with [Hartsuff], would preclude the infliction of the harm sought to be prevented by a protection order originally put in place at the request of the victim/protected person, at least in part, to prevent such contact or proximity.
Consequently, the court concluded that the affirmative defense of consent was available to Hartsuff and that the prosecution was, therefore, required to disprove J.C.‘s consent beyond a reasonable doubt in addition to proving the statutory elements of violation of a protection order.
C. C.R.C.P. 106(a)(4) Review in the District Court
¶ 12 The District Attorney then sought judicial review of the county court‘s order in the district court pursuant to C.R.C.P. 106(a)(4).
¶ 13 On review, the district court framed the question as “whether or not the [county] court‘s determination to permit the affirmative defense of consent to the violation of a civil protection order at trial is an abuse of discretion.” The district court reasoned that neither the consent statute nor the statute regarding the charged offense of violation of a protection order expressly prohibited consent as an affirmative defense. It concluded that the District Attorney had failed to show that the county court abused its discretion and, thus, remanded the case to the county court to proceed with trial.
¶ 14 The District Attorney now appeals the district court‘s order affirming the county court‘s decision to allow Hartsuff to assert the affirmative defense of consent to the charge of violation of a protection order.4
II. Standard of Review
¶ 15 Under C.R.C.P. 106(a)(4), our review is “limited to a determination of whether the [governmental] body or officer has exceeded its jurisdiction or abused its discretion, based on the evidence in the record before the defendant body or officer.” C.R.C.P. 106(a)(4)(I).
¶ 16 A reviewing court may reverse the decision of a lower judicial body for an abuse of discretion if the reviewing court finds that the lower body acted “arbitrarily or capriciously, made a decision that is unsupported by the record, erroneously interpreted the law, or exceeded its authority.” Nixon v. City & Cty. of Denver, 2014 COA 172, ¶ 12 (citing Lawley v. Dep‘t of Higher Educ., 36 P.3d 1239, 1245 (Colo. 2001)). In an appeal involving a C.R.C.P. 106 action, the appellate court sits in the same position as the district court in reviewing the county court‘s decision. Shupe v. Boulder Cty., 230 P.3d 1269, 1272 (Colo. App. 2010). We are, therefore, limited to
reviewing whether the county court abused its discretion in ruling that the consent defense was available to Hartsuff. Id.; see also Alpenhof, LLC v. City of Ouray, 2013 COA 9, ¶ 9.
¶ 17 In addition, we review a governmental officer‘s interpretation of the law de novo. Treece, Alfrey, Musat & Bosworth, PC v. Dep‘t of Fin., 298 P.3d 993, 996 (Colo. App. 2011) (citing Van Sickle v. Boyes, 797 P.2d 1267, 1274 (Colo. 1990)). Here, we are reviewing de novo a judicial body‘s interpretation and application of Colorado statutes and, thus, we do not owe the county court deference in our application of the ordinary rules of statutory construction. See Alpenhof, LLC, ¶ 10.
¶ 18 Our primary task in interpreting a statute is to give effect to the General Assembly‘s intent by first examining the statute‘s plain language. E.g., Stanley v. Dist. Attorney, 2017 COA 33, ¶ 10. “To discern the General Assembly‘s intent, we look to the plain language of the statute, and where that language is clear and unambiguous, we engage in no further statutory analysis.” People v. Rice, 2015 COA 168, ¶ 11.
¶ 19 If we determine that the relevant statute is unambiguous, we give effect to the statute‘s plain and ordinary meaning without resorting to other rules of statutory construction. See, e.g., St. Vrain Valley Sch. Dist. RE-1J v. A.R.L., 2014 CO 33, ¶ 11. If, however, the statutory language lends itself to alternative constructions and its intended scope is ambiguous or unclear, we then look to the statute‘s context, legislative history, prior law, the consequences of a given construction, and the goal of the statutory scheme. Suncor Energy (USA), Inc. v. Aspen Petroleum Prods., Inc., 178 P.3d 1263, 1266 (Colo. App. 2007).
¶ 20 Statutes should not be read in isolation, but together with all other statutes relating to the same subject or having the same general purpose, to the end that a statute‘s intent may be ascertained and absurd consequences avoided. Huddleston v. Bd. of Equalization, 31 P.3d 155, 159 (Colo. 2001). “This is especially true where a statute intimates by its plain language an intent to incorporate other statutory provisions.” Id.
¶ 21 If we determine that a statute is ambiguous, we may also consider legislative declarations in determining the General Assembly‘s intent.
¶ 22 Specific to this case, “[t]he question of whether consent can constitute a defense to a crime is best analyzed in the context of particular offenses and particular conduct.” Model Penal Code § 2.11 note 1 on General Principles (Am. Law Inst., Official Draft and Revised Comments 1985) (hereinafter MPC).5
III. Relevant Statutes
¶ 23 This case hinges on the county court‘s interpretation of the consent statute and the violation of a protection order statute,
sections
A. The Consent Statute
¶ 24 Under
¶ 25 Colorado case law interpreting the consent statute and its applicability is very sparse and limited in scope. All appellate Colorado cases regarding consent concern the language of the statute relating to negating an element of the offense or, in one case, lack of legal authority to consent, and almost all deal with consent in the context of sexual assault. See, e.g., Oram v. People, 255 P.3d 1032 (Colo. 2011) (stating consent negates elements of burglary, but instruction not warranted because party consenting to entry did not have authority to consent); People v. Martinez, 36 P.3d 154 (Colo. App. 2001) (finding that in sexual assault context, affirmative defense of consent instruction not warranted because elements of sexual assault only allow conviction if victim did not consent); People v. Bush, 948 P.2d 16 (Colo. App. 1997) (negating elements of theft); People v. Williams, 899 P.2d 306 (Colo. App.
1995) (negating an element of offense in sexual assault). The parties have not cited any Colorado case, and we have found none, concerning the applicability of the consent defense when the alleged assent “precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.”7
¶ 26 For the reasons below, we conclude that the clause at issue in this case (“precludes the infliction of the harm or evil sought to be prevented by the law defining the offense“) is ambiguous because it is unclear and subject to alternative constructions. The Attorney General argues that the phrase means only the harm to the alleged victim, here, J.C. As a result, the Attorney General contends that the county court was correct in defining the harm or evil sought to be prevented by the violation of a protection order statute as simply contact between the protected and restrained persons. On the other hand, the District Attorney asserts that the crime at issue here is designed to enforce a court order and that, in determining
the harm sought to be prevented, we must both consider the context of the violation of a protection order statute and the General Assembly‘s intent with regard to crimes of domestic violence. According to the District Attorney, then, the harm or evil sought to be prevented by the violation of a protection order statute is broader than simply contact between the protected and restrained persons and includes preserving the integrity of a court order and preventing domestic violence.
¶ 27 In our view, the language at issue thus lends itself to alternative constructions, and the intended scope of the consent statute
¶ 28 Thus, we disagree with the county court to the extent it determined that the phrase “precludes the infliction of the harm or evil sought to be prevented by the law defining the offense” is unambiguous. Because we determine that the phrase is ambiguous, id.; Suncor Energy (USA), Inc., 178 P.3d at 1266, we
must look to the legislative history, consequences of a given construction, and goals of the relevant statutes. Suncor Energy (USA), Inc., 178 P.3d at 1266. We must also consider the entire statutory scheme relating to the offense of violation of a protection order to give effect and meaning to all its parts. Wolford v. Pinnacol Assurance, 107 P.3d 947, 951 (Colo. 2005).
B. Criminal Statutes Regarding Violation of a Protection Order
¶ 29 A person commits the crime of violation of a protection order
if, after the person has been personally served with a protection order that identifies the person as a restrained person . . . , the person:
(a) Contacts, harasses, injures, intimidates, molests, threatens, or touches the protected person or protected property . . . identified in the protection order or enters or remains on premises or comes within a specified distance of the protected person, protected property . . . or premises . . . .
¶ 30 The definition of “protection order” is central to this offense and includes all protection orders issued pursuant to article 14 of title 13 of the Colorado Revised Statutes, the statutes governing CPOs.
protection orders issued in domestic relations and criminal cases.8
¶ 31 Putting the offense into its statutory context, violation of a protection order appears in article 6 of the Criminal Code, “Offenses Involving the Family Relations,” specifically, in part 8, titled “Domestic Violence.”
¶ 32 The Attorney General asserts that, because the violation of a protection order statute does not specifically preclude the affirmative defense of consent, the defense should apply since the consent statute is “applicable to offenses generally.” See
¶ 33 The premise of the consent statute is that consent is not an available defense; the only exceptions are when consent would negate an element or when consent would preclude the infliction of the harm or evil sought to be prevented by the law defining the criminal offense.
¶ 34 Additionally, the structure and language of statutes defining criminal offenses belie the Attorney General‘s argument. For offenses where consent of the victim is a defense, such as sexual assault, the statute
unable to consent.” Dunton v. People, 898 P.2d 571, 573 (Colo. 1995) (regarding
¶ 35 What is relevant to determining whether consent is an available defense is the context of the offense charged and the particular conduct prohibited. MPC § 2.11 note 1 on General Principles. Thus, we next consider the statutory framework regarding CPOs.
C. Statutes on CPOs
¶ 36 The type of protection order Hartsuff is accused of violating is a CPO governed by title 13, article 14 of the Colorado Revised Statutes.
Procedure”). Article 14 outlines the procedures for obtaining a CPO.
¶ 37 The county court issued a permanent CPO restraining Hartsuff pursuant to
¶ 38 The court issuing the CPO “retains jurisdiction to enforce, modify, or dismiss” the CPO.
IV. A Protected Person’s Alleged Assent does not Constitute Consent Under Section 18-1-505
¶ 39 The parties agree that the issue whether consent can be an affirmative defense to violation of a protection order is an issue of first impression in Colorado. Moreover, as previously mentioned, Colorado appellate courts have considered the consent defense in very few contexts, and there is little case law interpreting the language of the consent statute. But, because Colorado’s consent statute is based on MPC section 2.11, the MPC commentaries and annotations are instructive. We also find persuasive cases from other states that have considered whether the affirmative defense of consent may be asserted in the context of a criminal charge for violation of a protection order.
¶ 40 For the reasons below, we conclude that the county court erred as a matter of law in allowing the affirmative defense of consent for the crime of violation of a protection order.
A. A CPO is an Order of the Court
¶ 41 We first conclude that, because the CPO is an order of the court and not an order issued by the protected person, the protected person’s alleged assent to contact cannot, as a matter of law, constitute a restrained party’s defense to the crime for violation of a protection order.
¶ 42 In Colorado, a court has the power to “compel obedience to its lawful . . . orders.”
¶ 43 As to expiration, the CPO here is a “permanent” CPO issued pursuant to
¶ 44
¶ 45 We emphasize these avenues for modification because Hartsuff’s defense, that J.C. consented to the contact and, thus, he did not violate the order, would effectively modify — without court approval — that part of the CPO that restrains Hartsuff from having any contact whatsoever with J.C., no exceptions.
¶ 46 In our view, there are strong indications that a CPO is properly characterized as an order and function of the court and not an order issued by the victim — the importance to the administration of justice of enforcing orders of the court, the very limited and specific mechanisms for modifying or dismissing a permanent CPO, the explicit warnings to Hartsuff and J.C. that they could not agree to change the order without court approval, and the General Assembly‘s placement of the statutes governing CPOs in the court procedures title.
¶ 47 This reasoning is supported by several out-of-state cases. For example, in State v. Kidder, 843 A.2d 312 (N.H. 2004), the New Hampshire Supreme Court stated:
[W]e emphasize that protective orders are orders of the court, not orders of the victim, and neither the defendant, the victim, nor a representative of either party has the authority to approve exceptions to the order.
If the defendant has a legitimate reason to contact the victim, he is not without remedy. He can petition the court for an exception to or modification of the restraining order.
Id. at 317 (citations omitted); see also In re Shirley, 28 A.3d 506, 511 (D.C. 2011) (protective order is an order of the court, not the victim); People v. Townsend, 538 N.E.2d 1297, 1299 (Ill. App. Ct. 1989) (same).
¶
¶ 49 Further, the Model Penal Code notes that subsection (3)(c) of its consent section is intended to prevent “improvident consent” that is “the very objective sought to be prevented by the law defining the offense.” MPC § 2.11 note 3 on Ineffective Consent; see also State v. Cardus, 949 P.2d 1047, 1056 (Haw. Ct. App. 1997) (concluding that an inmate cannot consent to sexual penetration by a prison guard, in part, because the statute criminalizing sexual penetration between inmates and guards sought to prevent such consent by the inmate). Here, the alleged assent to contact by a protected person who allegedly experienced domestic abuse at the hands of the restrained person is a prime example of “improvident consent” that the CPO statutes seek to prevent. See also
B. The County Court Misinterpreted the Consent Statute Phrase “Harm or Evil Sought to be Prevented” in the Context of the Violation of a Protection Order Statute
¶ 50 The county court concluded that J.C.’s alleged assent constituted consent under
¶ 51 In our analysis, we are particularly concerned with the “isolation of the societal objectives of the offense” so that we may determine whether J.C.’s alleged assent to contact can constitute consent as contemplated by
¶ 52 The violation of a protection order statute criminalizes any contact a restrained party has with the protected person identified in a protection order.
¶ 54 Article 14 begins with a lengthy and specific legislative declaration.
¶ 55 The declaration also addresses domestic abuse specifically and, of relevance here, reflects the General Assembly’s acknowledgment that domestic abuse can create a situation where the abused person is more likely to return to an abuser and that protection orders may still be appropriate even when reconciliation occurs.
¶ 56 Given these legislative declarations regarding the importance and purpose of enforcing CPOs, we conclude that the harm or evil sought to be prevented by a CPO, including enforcing it through criminal charges for a violation of such an order, is not mere contact with the protected person as the county court concluded, but preventing the societal harms of violence, domestic abuse, and serious harm or death. Our conclusion is supported not only by the legislative declaration in article 14, but also by the commentary to the MPC that consent “is not a defense in . . . situations where the law has objectives that go beyond the interests that may be asserted by an identifiable victim.” Model Penal Code § 2.11 note 1 on General Principles. Here, the objectives of a CPO go beyond the interests of protecting the named protected person and, as indicated in the legislative declaration, include preventing domestic abuse and eliminating circumstances that make it more likely that an abused victim will return to his or her abuser.
¶ 57 Furthermore, a protected person’s alleged assent to contact with the restrained person does not prevent the infliction of violence, abuse, or death upon the protected person, nor does it prevent violation of a court order. Other states have also concluded that alleged assent to contact by a protected person does not preclude the harm sought to be prevented by the issuance and enforcement of protection orders. See In re Shirley, 28 A.3d at 511 (noting that the legislative body recognized that the public has an interest in preventing the intrafamily violence that CPOs are intended to prevent and consent of a protected person to contact does not prevent intrafamily violence); Dixon, 869 N.E.2d at 520 (The court considered the MPC consent section and concluded the protected person’s assent does not “preclude the infliction of violence the statute seeks to prevent. Specifically, [the protected person’s] alleged consent does not prevent violence nor does it preclude the violation of a court order.”).
¶ 58 Indeed, as noted, the legislative declarations concerning CPOs in the context of domestic abuse indicate the General Assembly’s intent that CPOs may continue to be necessary even when the parties choose to reconcile.
¶ 59 It is telling that we have found no cases that conclude consent of the protected person is an available affirmative defense to the offense of violation of a protection order. The out-of-state cases the Attorney General cites in support of its arguments on appeal are inapposite. In Mohamed v. Mohamed, 557 A.2d 696, 697-98 (N.J. Super. Ct. App. Div. 1989), the civil court considered the validity of a custody provision in a protective order after the parties had reconciled; the court gave absolutely no consideration to the affirmative defense of consent because the case was not criminal in nature. Also, here, unlike in Mohamed, there are no children involved, there is no custody provision in the CPO, and the parties were never married or going through a reconciliation. Further, unlike the defendant in Mohamed, Hartsuff does not question the validity of the CPO. Id. at 698. The case is simply inapplicable.
¶ 60 In a second New Jersey case cited by the Attorney General, the court considered whether an alleged reconciliation prevented a temporary protective order from becoming permanent. Torres v. Lancellotti, 607 A.2d 1375, 1376 (N.J. Super. Ct. Ch. Div. 1992). This case, again, did not consider the affirmative defense of consent — the context there was a civil proceeding rather than a criminal trial.10 Id.
¶ 61 Nor does our conclusion mean that a protected person’s alleged assent to contact is wholly irrelevant, In re Shirley, 28 A.3d at 512-13, or that a protected person can, with impunity, approach the restrained person, initiate contact, and then later allege to the police that the restrained person violated the protection order. We recognize that evidence of assent can, potentially, be relevant to show that the restrained person did not have the necessary mens rea for violation of a protection order, or that “contact,” as that term is broadly defined, did not occur. However, contrary to the Attorney General’s argument, this is not the same as asserting consent as an affirmative defense. When consent is an affirmative defense, the prosecution is required to disprove that defense beyond a reasonable doubt in addition to proving the elements of the crime of violation of a protection order. People v. Nelson, 2014 COA 165, ¶ 49. When a defendant argues that assent by the protected person shows that the prosecution did not prove all the elements of a crime, it is a traverse defense and the prosecution does not need to prove an additional element and the defendant is not entitled to a consent defense instruction. See id. at ¶¶ 49, 52.
¶ 62 Further, we are not persuaded by the Attorney General’s concerns that protected persons may unfairly invite contact with a restrained person and then use that contact to claim that the restrained person violated the protection order. A defendant charged with violation of a protection order must knowingly contact a protected person in a way that violates the terms of a protection order. People v. Coleby, 34 P.3d 422, 424 (Colo. 2001) (stating that the mens rea of knowingly applies to the conduct prong of the violation of a protection order statute). In Colorado, the mens rea of “knowingly” is synonymous with “willfully,” the mens rea applicable to the crimes charged in Shirley and Dixon. With respect to conduct, a defendant acts knowingly or willfully when he or she is aware that his or her conduct is of the nature prohibited by the statute or is aware that the conduct is practically certain to cause the result.
V. Conclusion
¶ 63 The district court’s order is reversed, and the case is remanded with directions to remand to the county court for further proceedings and with instructions to preclude Hartsuff from asserting consent as an affirmative defense to the charge of violation of a protection order.
JUDGE PLANK and JUDGE MÁRQUEZ concur.