People v. Mena

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.

A. Standard of Review and Applicable Law

¶ 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.

B. Analysis

¶ 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.

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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)).

B. Analysis

¶ 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.

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¶ 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”).

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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.

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