Hotsenpiller v. Morris

• Decision Date: 13 July 2017
• Docket Number: Court of Appeals No. 16CA1337
• Citation: 488 P.3d 219
• Court: Colorado Court of Appeals
• Parties: 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.

488 P.3d 219

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, Colorado.

Announced July 13, 2017

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.

Opinion by CHIEF JUDGE LOEB

¶ 1 In this C.R.C.P. 106(a)(4) action, the District Attorney of Montrose County, Dan W. Hotsenpiller (District Attorney), appeals the district court's order upholding the ruling of Montrose County Court Judge Bennet A. Morris (county court), which concluded that the affirmative defense of consent was available to John Hartsuff in his criminal case on the charge of violation of a civil protection order (CPO).

¶ 2 The sole issue on appeal is whether the affirmative defense of consent, as defined in the consent statute, section 18-1-505, C.R.S. 2016, is available to a defendant who is criminally charged with violating a protection order, pursuant to section 18-6-803.5, C.R.S. 2016. As a matter of first impression, we conclude that the county court abused its discretion by ruling that Hartsuff could assert the affirmative defense of consent, because the court misinterpreted the law regarding CPOs and language in the consent statute that allows the defense when the alleged assent of the victim "precludes the infliction of the harm or evil sought to be prevented by the law defining the offense," § 18-1-505(1). Accordingly, we reverse the district court's order upholding the county court's ruling and remand with directions for the district court to remand the case to the county court with instructions to proceed with Hartsuff's trial and to preclude the affirmative defense of consent on the charge of violation of a protection order.

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. § 13-14-106, C.R.S. 2016.

¶ 4 The CPO issued in this case was on JDF Form 399. JDF 399, Permanent Civil Protection Order Issued Pursuant to § 13-14-106, C.R.S. (revised Sept. 2013), https://perma.cc/CUR5-9HP8. The form order lists Hartsuff as the restrained person and J.C. as the protected person. The order states that the restrained person constitutes a credible threat to the life and health of the protected person and that sufficient cause exists for the issuance of the CPO. A warning then appears, in a box and in large print, stating as follows: "This Protection Order DOES NOT EXPIRE and only the Court can change this Order. A violation of a Protection Order is a crime and may be prosecuted ... pursuant to § 18-6-803.5, C.R.S." (Here and for all subsequent quotes to JDF 399, original bold emphasis has been changed to italics.)

¶ 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 section 18-1-505, J.C.'s alleged assent³ to contact precluded the infliction of the harm the violation of a protection order statute was attempting to prevent—namely, contact between the restrained person and the protected person. Counsel argued that the purpose of the violation of a protection order statute was not to protect the court's order, but only to protect the protected person. He also asserted that precluding the defense of consent would create an untenable situation where the protected person could approach the restrained 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. § 18-1-505(1). In its written order, the court quoted the consent statute and then reasoned as follows:

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, 343 P.3d 1051 (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, 297 P.3d 1052.

¶ 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...