The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY February 6, 2025
2025COA14
No. 22CA0563, People v. Mena — Constitutional Law — Colorado Constitution — Equal Protection; Crimes — Sexual Assault on a Child — Unlawful Sexual Conduct — Inducement or Coercion of a Child; Evidence — Admissibility — Victim Impact Evidence
A division of the court of appeals holds, for the first time in a
published case, that an alleged sexual assault victim’s emotional
and psychological reaction to a sexual assault may be relevant to
the victim’s credibility and to whether the sexual assault actually
happened. In addition, the division addresses for the first time
whether the age difference between a child sexual assault victim
and the alleged perpetrator is a “means” by which the victim may be
induced or coerced under section 18-3-404(1.5), C.R.S. 2024.
Finally, addressing a matter of first impression, the division
concludes that the defendant’s conviction for unlawful sexual contact (coerce child), pursuant to section 18-3-404(1.5), violates
Colorado’s unique equal protection doctrine because, as charged
and prosecuted in this case, that statute proscribes the same or
lesser conduct as the offense of sexual assault on a child, pursuant
to section 18-3-405(1), C.R.S. 2024, but the former statute carries a
harsher penalty than the latter. COLORADO COURT OF APPEALS 2025COA14
Court of Appeals No. 22CA0563 Arapahoe County District Court No. 18CR3501 Honorable Joseph Whitfield, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Lucas Bienvenido Mena,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE TOW Pawar and Schutz, JJ., concur
Announced February 6, 2025
Philip J. Weiser, Attorney General, Sonia Raichur Russo, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Andrea R. Gammell, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Lucas Bienvenido Mena, appeals the judgment of
conviction entered on jury verdicts finding him guilty of several
sexual offenses. This appeal presents several issues not previously
resolved in any published appellate case in Colorado.
¶2 First, we must decide whether evidence of the psychological
and emotional impact the crime had on an alleged sexual assault
victim may be relevant to whether that victim’s allegations are
credible. We also address section 18-3-404(1.5), C.R.S. 2024 —
which prohibits coercing or inducing a child to engage in sexual
contact or expose intimate parts “by any of the means set forth in
section 18-3-402[, C.R.S. 2024]” — and must decide whether those
“means” include each of the eight different ways of accomplishing
sexual assault set forth in the latter statute. Finally, we must
consider Mena’s as-applied equal protection challenge to his
mandatory prison sentence for unlawful sexual contact (coerce
child) in light of the fact that, as he was charged and prosecuted,
his conviction for sexual assault on a child addresses the same
conduct but carries the possibility of a sentence to probation.
¶3 Taking these issues in turn, we conclude that (1) evidence of
the psychological and emotional impact of the assault on the victim
1 was relevant to the victim’s credibility; (2) section 18-3-402(1)
provides eight “means” by which a child may be induced or coerced
under section 18-3-404(1.5); and (3) as charged here, Mena’s
disparate punishments for unlawful sexual contact (coerce child)
and sexual assault on a child were a violation of his constitutional
rights. Accordingly, we affirm in part and vacate in part, and we
remand the case to the district court with directions for
resentencing.
I. Background
¶4 At trial, the jury heard evidence that would support the
following findings.
¶5 While at her grandmother’s apartment, then-twelve-year-old
K.B. went downstairs with Mena (K.B.’s step-grandfather) to get the
mail. On the way back to the apartment, Mena pushed K.B. into
the bathroom at the apartment complex pool, where he lifted her
shirt, pulled down her pants, and touched and licked her breasts
and vagina. Mena took photos of K.B. while she was undressed and
then masturbated in front of her.
¶6 K.B. and Mena returned to the apartment, and soon after
leaving, K.B. told her mother about the incident. K.B. underwent a
2 sexual assault nurse examiner (SANE) examination and recounted
the assault to a physician’s assistant. She also completed
interviews with an Arapahoe County District Attorney investigator
and a forensic investigator.
¶7 During the investigation, Mena admitted to masturbating in
the bathroom and “grazing” K.B.’s vagina. Mena said he took
photos of K.B. but only while she was clothed. He denied all other
allegations.
¶8 In November 2021, a jury found Mena guilty of four felonies:
sexual exploitation of a child, sexual assault on a child, unlawful
sexual contact (coerce child), and enticement of a child. Mena was
also convicted of misdemeanor indecent exposure. The trial court
sentenced Mena to six years in the custody of the Department of
Corrections (DOC) on the exploitation charge and indeterminate
prison terms of six years to life on the remaining felony charges.
The indeterminate sentences were imposed to run concurrently with
each other but consecutively to the six-year term on the exploitation
charge. In addition, the court imposed a concurrent six-month
sentence on the indecent exposure charge, to be served in the DOC.
3 II. Victim Impact Evidence
¶9 Mena contends the trial court erred by admitting K.B.’s
testimony about two different topics: how the assault affected her
and her family emotionally and how her trust in others and her
behavior changed after the assault. In particular, Mena challenges
the admission of the following testimony.
¶ 10 The prosecutor inquired as to K.B.’s state of mind when, while
at the hospital a few hours after the incident, she told her sister
about the sexual assault. K.B. responded that she “was really like
sad” because of what happened and because of her family’s
reaction. The prosecutor then asked K.B. “how it made [her] feel
that [she] had kind of told [her] family something that made them
sad?” K.B. said she “felt like it was [her] fault,” and that she “didn’t
want to tell them.”
¶ 11 On redirect, the prosecutor returned to the topic of K.B.’s
emotional state after the assault, asking K.B. whether parts of what
happened to her were more embarrassing to talk about than others.
She said she was embarrassed to talk about her body parts and,
specifically, to talk about Mena licking her.
4 ¶ 12 The prosecutor also inquired about how K.B.’s behavior
changed after the assault. She testified that she felt “[l]ike [she]
couldn’t trust people.” K.B.’s wariness of others extended to anyone
outside of her immediate family, including the doctor who
performed her SANE exam, which K.B. testified she was not
comfortable with because she “didn’t feel like [she] could trust even
the doctors.” She also testified that for two years after the incident,
she “started behaving really badly” and faked sickness to avoid
going to school.
A. Standard of Review and Applicable Law
¶ 13 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Martinez, 2020 COA 141, ¶ 25. “A trial court
abuses its discretion when its ruling is manifestly arbitrary,
unreasonable, or unfair, or when it misapplies the law.” Id.
(quoting People v. Williams, 2019 COA 32, ¶ 21).
¶ 14 “Victim impact evidence is evidence that relates to ‘the victim’s
personal characteristics and to the physical, emotional, or social
impact of a crime on its victim and the victim’s family.’” Id. at ¶ 29
(quoting Schreibvogel v. State, 228 P.3d 874, 883 (Wyo. 2010)).
“Because ‘the effect of a crime on a [victim or the] victim’s family
5 often has no tendency to prove whether a particular defendant
committed a particular criminal act against a particular victim,’
such evidence is generally irrelevant during the guilt/innocence
phase of a trial.” Id. at ¶ 33 (quoting State v. Graham, 650 S.E.2d
639, 645 (N.C. Ct. App. 2007)).
¶ 15 Thus, the admissibility of victim impact evidence during this
phase of the trial “turns on whether the evidence is relevant to
determining whether the defendant committed the crime” for which
they were charged. Id. “In criminal cases, evidence is relevant if
the evidence makes it more or less probable that a criminal act
occurred, the defendant was the perpetrator, or the defendant acted
with the necessary criminal intent.” People v. Clark, 2015 COA 44,
¶ 17; see CRE 401.
B. Analysis
¶ 16 We discern no error in the admission of the victim impact
evidence.
1. The Testimony Was Relevant to K.B.’s Credibility
¶ 17 Mena argues the challenged testimony was irrelevant because
it did not impact K.B.’s credibility or “establish any of the elements
of the charged offenses.” The People counter that these statements
6 were relevant to K.B.’s credibility because her emotional and
behavioral responses (including a newfound lack of trust in others)
“are consistent with what a victim of sexual abuse can sometimes
go through.” We agree with the People.
¶ 18 K.B.’s credibility was a central issue in the defense’s case.
During opening statements, defense counsel said that K.B.’s
“accusations [were] untrue,” and what actually happened was that
K.B. saw Mena masturbate in the pool bathroom, which upset her.
The cross-examination of K.B. then relied on attacking her
recollection of the assault and questioning whether the alleged
events actually occurred.
¶ 19 Mena’s argument that K.B.’s testimony was improper relies
largely on Martinez, in which a division of this court held that victim
impact evidence about the victim’s depression and suicidal ideation
after the sexual assault was not relevant to any material fact.
Martinez, ¶ 40. Notably, the underlying factual issue in Martinez
was whether the victim was too intoxicated to consent to sex. Id. at
¶ 5. The division observed that the testimony regarding the victim’s
mental state after the fact did not address her lack of recall for
several hours on the night of the assault, nor did it “tend to prove
7 that [the defendant] possessed or lacked the criminal intent to be
found guilty of sexual assault.”1 Id. at ¶ 40. The division concluded
“the victim impact evidence was irrelevant and, thus, inadmissible.”
Id. at ¶ 32.
¶ 20 Martinez is distinguishable. Notably, in that case, the division
explicitly left unresolved whether such evidence would ever be
admissible. Id. This case is meaningfully different from Martinez
because Mena’s defense hinged not on whether he knew the victim
was incapable of consenting but, rather, on whether the events K.B.
had described occurred at all. In other words, whether K.B.’s
description of the events was credible was the linchpin of the case.
See Venalonzo v. People, 2017 CO 9, ¶ 33 (noting that child sex
assault cases often turn on the victim’s credibility, making the
child’s testimony the most significant evidence in such cases).
1 Though the Martinez division spoke in terms of “criminal intent,”
we note for clarity’s sake that the offense in that case was not a specific intent crime but, rather, sexual assault on a victim incapable of appraising the nature of her conduct, pursuant to section 18-3-402(1)(b), C.R.S. 2024, which requires the defendant to have knowledge of the victim’s incapacity. People v. Martinez, 2020 COA 141, ¶ 10. We thus read Martinez’s reference to “criminal intent” to be a colloquial reference to “mens rea.”
8 ¶ 21 Moreover, unlike in Martinez — where the victim’s emotional
and behavioral changes did not shed light on any factual dispute
regarding the night of the assault — K.B.’s newly developed distrust
of others and severe behavioral changes in the aftermath of the
alleged sexual assault are indicative of her having suffered a
traumatic event, which relates directly to whether the events she
described even occurred.2 See King v. State, 2023 WY 36, ¶ 42
(holding that the victims’ mother’s testimony regarding behavioral
changes in her daughters before and after the start of the alleged
sexual abuse was probative of whether and when the alleged
incidents occurred); Simmons v. State, 504 N.E.2d 575, 581 (Ind.
1987) (testimony that the victim developed a fear of going outside by
herself and stayed at home more often was probative of the fact that
she had been raped); State v. Dube, 598 A.2d 742, 746 (Me. 1991)
(“Evidence of changes in the victim’s personality and behavior
2 While the fact that, in the wake of the assault, K.B. began avoiding
going to school is relevant, we note that her statement that she “didn’t go to school for I think 2-1/2 years” is likely too attenuated to be of much relevance. However, even assuming permitting that comment was erroneous, we discern no basis for reversal. The comment was fleeting, no one mentioned the two-and-a-half-year duration of this behavior again, and it was generally cumulative of the permissible evidence regarding K.B.’s behavioral changes.
9 immediately after the time of the reported assault tends to prove
that something of a traumatic nature had in fact occurred and thus
was clearly relevant . . . .”); State v. Cosey, 873 P.2d 1177, 1182
(Utah Ct. App. 1994) (“Evidence of a drastic change in the victim’s
behavior is relevant circumstantial evidence that a traumatic
experience such as rape has occurred.”). To put it in terms the
Martinez division used, because this evidence has some tendency to
show that K.B. experienced the trauma she described, the evidence
“tends to show the context or circumstances of the crime itself.”
Martinez, ¶ 34.
¶ 22 In light of Mena’s characterization of the events, K.B.’s feelings
when recounting her trauma are relevant to whether her
accusations were true or fabricated. See Dickerson v.
Commonwealth, 174 S.W.3d 451, 472 (Ky. 2005) (“[E]vidence of a
victim’s emotional state following a sexual assault [is permissible]
as proof that the assault, in fact, occurred.”). K.B.’s testimony
makes it more likely that the allegations were not fabricated
because she (1) persisted with her allegations despite her own
feelings of guilt and sadness at prompting a negative reaction from
her family and (2) was willing to undergo an uncomfortable medical
10 examination. See People v. Myers, 714 P.2d 513, 514 (Colo. App.
1985) (finding testimony that a victim had undergone counseling
following the alleged sexual assault was relevant); see also
Dickerson, 174 S.W.3d at 472 (“[E]vidence that [the victim] visited a
rape crisis center for treatment was relevant to prove that she was
sexually assaulted.”).
¶ 23 Also, the fact that K.B. was more embarrassed to talk about
some things Mena did than others helps explain why her
disclosures were inconsistent at times — inconsistencies Mena’s
counsel focused on when cross-examining K.B. Indeed, as early as
opening statements, Mena’s counsel specifically attacked K.B.’s
allegation that Mena had touched and licked her breasts and
vagina. See People v. Krutsinger, 121 P.3d 318, 324 (Colo. App.
2005) (holding prosecutor did not improperly bolster victim’s
credibility in responding to defense counsel’s attack on the same).
¶ 24 Whether K.B.’s emotional and behavioral state was based on
Mena’s touching her intimate parts or, as Mena argued, simply a
response to K.B. seeing Mena masturbate in the bathroom was
ultimately for the jury to determine. And K.B.’s extreme behavioral
changes and new distrust of others after the assault are at least
11 arguably more corroborative of her description of the assault than
Mena’s. See King, ¶ 39 (“[V]ictim impact evidence is probative as to
whether the incident occurred at all because physical or
psychological trauma is the natural result of an assault.”).
2. K.B.’s Testimony Was Not More Prejudicial Than Probative
¶ 25 Mena argues that, even if these statements were relevant, they
were more prejudicial than probative. Relevant evidence may be
excluded “if its probative value is substantially outweighed by the
danger of unfair prejudice.” CRE 403. “[T]he district court is
accorded considerable discretion in balancing the probative value of
the evidence against the danger of unfair prejudice.” People v. Dist.
Ct., 869 P.2d 1281, 1285 (Colo. 1994). “Absent an abuse of
discretion, a trial court’s evidentiary ruling on the probative value
and the prejudicial impact of the evidence will not be disturbed on
review.” Id.
¶ 26 Mena once again relies on Martinez, arguing that the
admission of K.B.’s statements “had the potential to shift the jury’s
focus improperly from deciding whether the defendant, [Mena],
committed the crime to whether a guilty verdict would assuage the
trauma of . . . the victim.” Martinez, ¶ 2.
12 ¶ 27 But K.B.’s emotional and psychological responses to the
incident and its aftermath were highly probative of her credibility, a
central issue in the case. See King, ¶ 39. Any unfair prejudice from
the jury sympathizing with K.B. was not likely to substantially
outweigh this relevance. See People v. Rath, 44 P.3d 1033, 1041
(Colo. 2002) (requiring the court to exclude evidence under CRE
403 if its incremental probative value is substantially outweighed by
unfair prejudice). We thus discern no abuse of the trial court’s
discretion.
III. Sufficiency
¶ 28 Mena next argues the prosecution’s evidence was insufficient
to prove the required elements of unlawful sexual contact (coerce
child) under section 18-3-404(1.5). We disagree.
¶ 29 When reviewing a challenge to the sufficiency of the evidence,
“we review the record de novo to determine whether the evidence
before the jury was sufficient both in quantity and quality to
sustain the conviction[].” Dempsey v. People, 117 P.3d 800, 807
(Colo. 2005). We view the evidence in the light most favorable to the
prosecution to determine whether the evidence was “sufficient to
13 support the conclusion by a reasonable mind that the defendant
was guilty of the charge beyond a reasonable doubt.” People v.
Griego, 2018 CO 5, ¶ 24. “If there is evidence upon which the jury
may reasonably infer an element of the crime, the evidence is
sufficient to sustain that element.” People v. Phillips, 219 P.3d 798,
800 (Colo. App. 2009).
¶ 30 To the extent a sufficiency challenge requires us to interpret
statutory language, we do so de novo. People v. Perez, 2016 CO 12,
¶ 8. “When interpreting a statute, our task is to give effect to the
intent of the General Assembly.” McLaughlin v. Oxley, 2012 COA
114, ¶ 9. “To determine legislative intent, we look first to the plain
language of the statute.” Id. at ¶ 10. “We read words and phrases
in context and construe them literally according to common usage.”
Id.
¶ 31 A person commits unlawful sexual contact (coerce child) when
that actor “knowingly, with or without sexual contact, induces or
coerces a child by any of the means set forth in section 18-3-402 to
expose intimate parts . . . , for the purpose of the actor’s own sexual
gratification.” § 18-3-404(1.5). Mena contends that the prosecution
14 failed to prove he “induced or coerced” K.B. by any of the means set
forth in section 18-3-402, the sexual assault statute.
¶ 32 The crux of this issue turns on what the General Assembly
intended by the phrase “the means set forth in section 18-3-402.”
Section 18-3-402(1) identifies eight different ways of committing
sexual assault. At the time of the offense, those eight ways were as
follows:
(a) where the actor “causes submission of the victim by
means of sufficient consequence reasonably calculated to
cause submission against the victim’s will”;
(b) where the actor “knows that the victim is incapable of
appraising the nature of the victim’s conduct”;
(c) where the actor “knows that the victim submits
erroneously, believing the actor to be the victim’s
spouse”;
(d) where “the victim is less than fifteen years of age and the
actor is at least four years older than the victim and is
not the spouse of the victim”;
(e) where “the victim is at least fifteen years of age but less
than seventeen years of age and the actor is at least ten
15 years older than the victim and is not the spouse of the
victim”;
(f) where the victim “is in custody of law or detained in a
hospital or other institution” and the defendant uses
their “position of authority to coerce the victim to
submit”;
(g) where the defendant “while purporting to offer a medical
service, engages in treatment or examination of a victim
for other than a bona fide medical purpose or in a
manner substantially inconsistent with reasonable
medical practices”; and
(h) where the defendant knows that “the victim is physically
helpless and the victim has not consented.”
§ 18-3-402(1)(a)-(h), C.R.S. 2018. The People contend that each of
these subsections describes a “means” by which a victim may be
induced or coerced into engaging in sexual conduct with a
defendant. As relevant here, the People argue that Mena
accomplished the inducement or coercion of K.B. by the means set
forth in subsection (1)(d) — specifically, the combination of K.B.’s
16 being under fifteen and Mena being at least (and in this case
significantly more than) four years older than her.
¶ 33 Mena counters that section 18-3-402(1)(d) is not a “means”
but, rather, describes “pre-existing circumstances that make the
use of such means or methods unnecessary.” According to Mena,
section 18-3-404(1.5) only incorporates those categories of sexual
assault that set forth affirmative conduct by the defendant that
causes the victim’s submission or impairs the victim’s capacity.
Specifically, Mena argues that only one of the eight methods of
committing sexual assault under section 18-3-402(1) —
subsection (1)(a) — speaks in terms of means.
¶ 34 Because both of these interpretations are reasonable, the
statute is ambiguous. Pellegrin v. People, 2023 CO 37, ¶ 23 (“A
statute is ambiguous when it is reasonably susceptible of multiple
interpretations.”) However, the history of the statutory language —
both before and after Mena’s actions — provides insight into the
General Assembly’s intent. See Carrera v. People, 2019 CO 83, ¶ 18
(noting that statutory history is an appropriate aid in construing
ambiguous statutes); see also § 2-4-203(d), C.R.S. 2024
(authorizing the court to consider former statutory provisions and
17 laws upon the same or similar subjects when construing
ambiguous statutory language).
¶ 35 As an initial matter, we note that the language Mena invokes
was removed from section 18-3-402(1)(a) in 2022, when the General
Assembly eliminated the “means of sufficient consequence
reasonably calculated to cause submission against the victim’s will”
language and replaced it with “knowing the victim does not
consent.” Ch. 41, sec. 1, § 18-3-402(1)(a), 2022 Colo. Sess. Laws
214. The General Assembly did not amend section 18-3-404(1.5) at
that time.3
¶ 36 Beyond that now-repealed language, Mena contends that the
only relevant “means” intended by the General Assembly are found
in a different subsection of the sexual assault statute —
subsection (4) — which sets forth only those forms of sexual assault
that aggravate that crime from a class 4 felony to a class 3 felony.
§ 18-3-402(4)(a)-(d), C.R.S. 2018 (addressing circumstances where
the actor uses actual physical force or physical violence; threatens
3 We do not suggest that the 2022 statutory amendment applies to
Mena, whose offense occurred in 2018. We discuss the amendment because it helps inform what the language of the unlawful sexual contact statute meant in 2018.
18 imminent death, serious bodily injury, extreme pain, or kidnapping;
threatens retaliation against the victim or other person; or employs
a drug, intoxicant, or other means to cause submission). But
Mena’s interpretation cannot be reconciled with the statutory
history of this provision.
¶ 37 When section 18-3-404(1.5) was enacted, the crime of sexual
assault was divided into three degrees: first degree sexual assault
was a class 3 felony and included the types of aggravated acts that
Mena references (along with what is now subsection (1)(h) —
knowing the victim is physically helpless), § 18-3-402(1), C.R.S.
1989, while second degree sexual assault was a class 4 felony and
included the categories now enumerated in subsections (1)(b)
through (1)(g) of the sexual assault statute (along with the recently
repealed “means . . . of sufficient consequence reasonably
calculated to cause submission against the victim’s will”),
19 § 18-3-403(1), C.R.S. 1989.4 Third degree sexual assault
encompassed what is now titled “unlawful sexual contact.”
§ 18-3-404, C.R.S. 1989.
¶ 38 Significantly, at that time the language of section
18-3-404(1.5) incorporated “any of the means set forth in sections
18-3-402 or 18-3-403, C.R.S.” § 18-3-404(1.5), C.R.S. 1989
(emphasis added). Thus, the General Assembly clearly did not
intend to limit the “means” that would constitute inducement or
coercion under subsection (1.5) to only those circumstances that
would aggravate a sexual assault to a class 3 felony.
¶ 39 But did the General Assembly intend “means” to be limited to
certain subsections under section 18-3-402 (or the former section
18-3-403), excluding those that could be said to be “circumstances”
rather than “means or methods”? We do not believe so.
4 Only one of these subsections has substantially changed since
then: section 18-3-403(1)(f), C.R.S. 1989, addressed a victim who was less than eighteen years old and a defendant who was the victim’s guardian or was otherwise responsible for the victim’s welfare, while the current similar provision addresses a victim who is fifteen, sixteen, or seventeen years old and a defendant who is at least ten years older than the victim. § 18-3-402(1)(e), C.R.S. 2024.
20 ¶ 40 Under Mena’s reading, five of the eight ways of committing
sexual assault under the statute as it existed in 2018 were phrased
in terms that Mena’s argument would classify as a circumstance
(coupled with the defendant’s knowledge of that circumstance):
incapacity to appraise the nature of the conduct, erroneous belief
that the defendant is the victim’s spouse, two different provisions
involving the age of a child victim compared to the age of the
defendant, and the victim’s physical helplessness. None of these
requires any conduct by the defendant to have created the
circumstance. Only the now-repealed provision regarding means
reasonably calculated to cause submission against the victim’s will
and the still-operative provisions addressing misuse of a
defendant’s authority over an incarcerated or detained victim and
using a medical procedure as a subterfuge can be said to be
“means” under Mena’s narrow definition. See § 18-3-402(1)(f), (g),
C.R.S. 2024.5
5 In light of the 2022 amendment, now only two of the eight ways of
committing sexual assault would fall under Mena’s narrow construction.
21 ¶ 41 Notably, at the time section 18-3-404(1.5) was enacted, both of
those provisions — as well as the recently eliminated language
regarding “means . . . of sufficient consequence reasonably
calculated to cause submission against the victim’s will” — were
found in section 18-3-403. § 18-3-403(1)(a), (g), (h), C.R.S. 1989. If
those were the only forms of sexual assault the General Assembly
intended to include in the term “means” in section 18-3-404(1.5)
when enacting that provision, it would not have needed to include a
reference to the first degree sexual assault statute (section
18-3-402). Yet the General Assembly chose to use the broad
language “any of the means” in either statute, as opposed to simply
cross-referencing those two or three provisions.
¶ 42 Second, Mena’s narrow construction is inconsistent with the
accepted definition of the term “means,” both at the time the
General Assembly originally used it and as it is presently
understood. At the time the General Assembly approved the
language, Black’s Law Dictionary defined “means” as “[t]hat through
which, or by the help of which, an end is attained; . . . intermediate
agency or measure; necessary condition or co-agent.” Black’s Law
22 Dictionary 884 (5th ed. 1979).6 The current edition of Black’s Law
Dictionary defines “means” as “[s]omething that helps to attain an
end; an instrument; a cause.” Black’s Law Dictionary 1171 (12th
ed. 2024). As the People contend, each of the eight ways of
committing sexual assault provides the “means” through which an
end (a child exposing intimate parts or engaging in sexual contact)
is attained.
¶ 43 Thus, Mena’s attempt to distinguish “pre-existing
circumstances” from the concept of “means” is unavailing. Each of
the enumerated ways to commit sexual assault in section 18-3-402,
C.R.S. 2018, provides possible means of committing unlawful
sexual contact (coerce child) under section 18-3-404(1.5).
¶ 44 Applying this interpretation, the prosecution needed to prove
that “[a]t the time of the commission of the act, the victim [was] less
than fifteen years of age and the actor [was] at least four years older
than the victim and [was] not the spouse of the victim,”
§ 18-3-402(1)(d), and the act resulted in the victim exposing
6 The next edition of Black’s Law Dictionary, published the year
after the General Assembly enacted section 18-3-404(1.5), C.R.S. 1989, contained the same definition. Black’s Law Dictionary 980 (6th ed. 1990).
23 intimate parts or engaging in unlawful sexual contact.
§ 18-3-404(1.5). The prosecution presented evidence that at the
time of the alleged assault (1) K.B. was twelve years old; (2) Mena
was fifty-one years old; and (3) Mena was married to K.B.’s
grandmother, not K.B. The prosecution also presented evidence
that during the alleged assault, Mena both uncovered K.B.’s breasts
and vagina, thereby exposing her intimate parts, and subjected her
to unlawful sexual contact. Based on these facts, the jury could
have reasonably found the essential elements of unlawful sexual
contact (coerce child) were satisfied beyond a reasonable doubt.
IV. Equal Protection Challenge
¶ 45 Finally, Mena contends that, as applied to him, his conviction
for unlawful sexual contact (coerce child) under section
18-3-404(1.5), C.R.S. 2024, violates his equal protection rights. We
agree.7
7 In the trial court, Mena asserted both a facial and an as-applied
challenge to the statute. On appeal, Mena pursues only the as- applied challenge.
24 A. Standard of Review and Applicable Law
¶ 46 We review de novo the constitutionality of a statute as applied
to a particular defendant. People v. Trujillo, 2015 COA 22, ¶ 15.
Because statutes are presumed to be constitutional, Mena must
establish beyond a reasonable doubt that the statute is
unconstitutional as applied to him. Id.
¶ 47 The Colorado Constitution, through its due process clause,
guarantees every person within Colorado’s jurisdiction the equal
protection of the laws. Dean v. People, 2016 CO 14, ¶ 11. That
protection is violated “where two criminal statutes proscribe
identical conduct, yet one punishes that conduct more harshly.” Id.
at ¶ 14. The same is true where statutes address different acts but
offer no rational explanation for disparate punishments. People v.
Wilhelm, 676 P.2d 702, 704 (Colo. 1984). And “Colorado’s
guarantee of equal protection is violated where two statutes
proscribe similar conduct, yet the scheme imposes the harsher
penalty . . . for actually causing[] a less grievous result.” Dean,
¶ 15.
¶ 48 In considering an equal protection challenge, we must
determine “whether — under the specific circumstances under
25 which [the defendant] acted — the relevant statutes, or specific
subsections of the statutes, punish identical conduct, and whether
a reasonable distinction can be drawn between the conduct
punished by the two statutes.” Trujillo, ¶ 21. “A reasonable
distinction is one that is ‘real in fact and reasonably related to the
general purposes of criminal legislation.’” People v. Maloy, 2020
COA 71, ¶ 14 (quoting People v. Marcy, 628 P.2d 69, 74 (Colo.
1981)).
¶ 49 Sexual assault on a child (SAOC) occurs when a defendant
“knowingly subjects another not his or her spouse to any sexual
contact . . . if the victim is less than fifteen years of age and the
actor is at least four years older than the victim.” § 18-3-405(1),
C.R.S. 2024. Under subsection (1), SAOC is a class 4 felony, § 18-
3-405(2), but does not require a mandatory sentence in the custody
of the DOC.8
8 If the SAOC is accomplished by the actual application of physical
force, physical violence, or a threat, it is a crime of violence that carries a mandatory prison sentence. § 18-3-405(2)(a)-(c), (3), C.R.S. 2024.
26 ¶ 50 Unlawful sexual contact (coerce child) is a class 4 felony.
§ 18-3-404(2)(b). The statute provides that defendants convicted of
a class 4 felony under subsection (2)(b) are required to be sentenced
“in accordance with the provisions of section 18-1.3-406.”
§ 18-3-404(3). This language means the offense is a “per se” crime
of violence that carries a mandatory sentence to the DOC. See
People v. Austin, 2018 CO 47, ¶ 8.
¶ 51 Mena argues that, as applied to him, the difference in
penalties under these statutes — namely, the mandatory DOC
sentencing for one but not the other — is “not rationally related
to . . . [a] legislative objective” and therefore violates his equal
protection rights. People v. Suazo, 867 P.2d 161, 164 (Colo. App.
1993). We agree.
¶ 52 As Mena was charged, SAOC and unlawful sexual contact
(coerce child) both require a victim who is less than fifteen years
old, an actor who is at least four years older than the victim, and
the absence of a spousal relationship between the victim and the
actor. § 18-3-405(1); § 18-3-404(1.5); § 18-3-402(1)(d).
¶ 53 Although the People argue that there are material differences
between the statutes, they incorrectly assert that SAOC requires
27 proof of sexual penetration or intrusion. As noted, SAOC requires
proof of sexual contact, not penetration or intrusion. § 18-3-405(1).
¶ 54 The People also argue that unlawful sexual contact (coerce
child) requires proof of coercion or inducement, while SAOC does
not. That is true. But where, as here, the People elect to prove
coercion or inducement through nothing more than the existence of
a nonmarital relationship with the prohibited age difference,
unlawful sexual contact (coerce child) proscribes exactly the same
conduct that SAOC does.9
¶ 55 As applied to Mena, the only difference between the two crimes
is that SAOC requires sexual contact, while unlawful sexual contact
(coerce child) can be accomplished either with unlawful sexual
9 Notably, notwithstanding significant evidence that Mena
accomplished both the SAOC and the unlawful sexual contact by application of actual physical force (by pushing K.B. into the bathroom and pinning her against the wall), the prosecution did not charge this aggravator, nor was the jury instructed on this point, for either offense. Had the prosecution elected to proceed in this fashion, both crimes would have exposed Mena to identical mandatory, indeterminate prison sentences. Compare § 18-3- 405(2)(a), (3) (imposing mandatory, indeterminate prison sentence for SAOC where “actor applies force against the victim in order to accomplish . . . sexual contact”), with § 18-3-404(2)(b), C.R.S. 2024, and § 18-3-402(4)(a) (imposing mandatory, indeterminate prison sentence for unlawful sexual contact achieved through the “actual application of physical force”).
28 contact or upon the child exposing her intimate parts. Thus, the
latter offense prohibits either the exact same conduct or less
egregious conduct. Yet the offense that does not require contact
carries a mandatory prison sentence, while the crime with the more
egregious result does not. Colorado’s unique equal protection
doctrine prohibits either outcome. Dean, ¶¶ 14-15.
¶ 56 Mena’s conviction for unlawful sexual contact (coerce child)
cannot stand. See Maloy, ¶ 35. We therefore vacate Mena’s
conviction for that offense. We affirm the convictions on the
remaining counts. We note, however, that because Mena’s
remaining convictions are eligible for probation sentences, we
cannot tell whether the trial court would have considered a
probation sentence in the absence of the mandatory prison
sentence required by the vacated conviction. Thus, he is entitled to
a new sentencing hearing at which the court can consider a
probation sentence. See People v. Johnson, 2015 CO 70, ¶ 42
(holding that when reversal of one or more convictions in a
multi-count case causes the “sentencing scheme to unravel,” the
trial court should have the opportunity to “reassess [the] sentence
and exercise its sentencing discretion under new and different
29 circumstances”). We express no opinion on the appropriateness of
any particular sentence.
V. Disposition
¶ 57 The conviction for unlawful sexual contact (coerce child) is
vacated. The remaining convictions are affirmed. We remand the
case to the district court for a new sentencing hearing on all counts
other than unlawful sexual contact (coerce child).
JUDGE PAWAR and JUDGE SCHUTZ concur.