23CA2198 Peo v Martinez 08-29-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2198

La Plata County District Court No. 23CR239

Honorable Suzanne F. Carlson, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Anthony Rudolfo Martinez,

Defendant-Appellee.

ORDER AFFIRMED

Division VI

Opinion by JUDGE YUN

Graham, J., concurs

Welling, J., dissents

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 29, 2024

Christian Champagne, District Attorney, Justin Howard Pierce, Deputy District

Attorney, Durango, Colorado, for Plaintiff-Appellant

Adrienne R. Teodorovic, Alternate Defense Counsel, Windsor, Colorado, for

Defendant-Appellee

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¶ 1 The People appeal the district court’s order dismissing the

charge of internet luring of a child against defendant, Anthony

Rudolfo Martinez, following a preliminary hearing on probable

cause. We affirm.

I. Background

¶ 2 The People charged Martinez with offenses including internet

luring of a child, a class 4 felony in violation of section 18-3-306(1),

C.R.S. 2024. As relevant here, one of the elements of internet

luring of a child is that the actor “describes explicit sexual conduct

as defined in section 18-6-403(2)(e),” C.R.S. 2024, to a person the

actor believes to be under fifteen years of age. § 18-3-306(1).

Section 18-6-403(2)(e) defines explicit sexual conduct as “sexual

intercourse, sexual intrusion, erotic fondling, erotic nudity,

masturbation, sadomasochism, or sexual excitement.”

¶ 3 The district court conducted a preliminary hearing in

Martinez’s case. A detective, the only witness called at the hearing,

testified that he was involved in a multi-agency operation to catch

child sex predators. As part of that operation, he explained, a

police officer, who was twenty-five or twenty-six years old, used

photographs of herself to create a Facebook profile for a fictitious

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fourteen-year-old girl named Maddison Taylor. Martinez messaged

the profile and began corresponding with the officer, and eventually,

he suggested that they meet up. When Martinez arrived at the

meeting point, an arrest team including the detective took him into

custody.

¶ 4 A transcript of the Facebook messages between Martinez and

the officer was admitted into evidence, and it included the following

exchanges:

Maddison Taylor: What do you wanna do when

we hang out [hand-over-mouth blushing

smiling emoji]

Martinez: We can get something to eat we can

chill at the park we can listen to music in my

truck.

Maddison Taylor: What do u want to do

[winking emoji] hehe [hearts around smiling

face emoji] you tell me

Martinez: I got tinted windows [hearts around

smiling face emoji] [winking emoji]

Madison Taylor: hehe yea? what would u

wanna do [winking emoji]

Martinez: I’m down for whatever let’s get

something to eat or if your not hungry we can

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get drinks at Sonic and go to the [park

1

] and

chill in my truck

. . . .

Maddison Taylor: What did you mean by the

tinted windows hehe [smiling tongue out emoji]

I had to ask [monkey covering eyes emoji]

Martinez: LOL I mean we can do whatever cuz

I have tinted windows lol

. . . .

Maddison Taylor: Is there any chance I would

get pregnant

Martinez: No I have protection

Maddison Taylor: Is it going to hurt I’ve never

done it before

Martinez: Idk lol

¶ 5 On cross-examination, the detective testified that Martinez

“never used any explicit sexual language in any communication

with” the officer, “never initiated any sexual communication at all,”

and “did not describe a sex act.” He further testified that Martinez

did not describe sexual intercourse, sexual intrusion, erotic

fondling, erotic nudity, masturbation, sadomasochism, or sexual

1

appeal, but the detective testified at the preliminary hearing that

Martinez “suggested they . . . go to the park.”

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excitement, as those terms are defined by statute. See

§ 18-6-403(2).

¶ 6 After the hearing, the district court issued a written order

finding that

[t]he statements of the officer appear to

reference sexual intercourse, but Defendant

did not describe sexual intercourse. . . . Even

viewing the evidence in the light most favorable

to the District Attorney, he did not establish

probable cause that Defendant described

explicit sexual conduct as required to commit

the offense of Internet Luring of a Child.

Accordingly, the court dismissed the charge.

¶ 7 Pursuant to section 16-12-102(1), C.R.S. 2024, the People

appeal the dismissal.

II. Analysis

¶ 8 The People contend that the district court erred by finding that

Martinez did not describe sexual intercourse during his

communications with the officer. We disagree.

A. Standard of Review

¶ 9 A preliminary hearing is “a screening device, designed to

determine whether probable cause exists to support charges that an

accused person committed a particular crime or crimes.” People v.

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Treat, 568 P.2d 473, 474 (Colo. 1977). To establish probable cause,

the prosecution must introduce evidence sufficient to “permit a

person of ordinary prudence and caution to form a reasonable belief

that the accused committed the offense or offenses charged.”

People v. Walker, 675 P.2d 304, 306 (Colo. 1984). The district court

“must view all evidence and draw all inferences in favor of the

prosecution.” People v. Hall, 999 P.2d 207, 221 (Colo. 2000).

¶ 10 We review a district court’s probable cause ruling at a

preliminary hearing for an abuse of discretion, and we will not

overturn such a ruling absent a showing that it is manifestly

arbitrary, unreasonable, or unfair, or based on an erroneous view of

the law. People v. Rieger, 2019 COA 14, ¶ 7.

2

¶ 11 Furthermore, to the extent that the district court’s ruling

turns on its interpretation of the internet luring of a child statute,

we review the court’s statutory interpretation de novo. Id. at ¶ 8.

2

Only if we determine that the district court applied an erroneous

construction of law at the preliminary hearing will we review the

record de novo to determine whether the facts, when viewed in the

light most favorable to the prosecution, would induce a reasonably

prudent and cautious person to entertain the belief that the

defendant committed the crime charged. People v. Hall, 999 P.2d

207, 221 (Colo. 2000).

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We aim to effectuate the legislature’s intent and, in doing so, “we

look first to the language of the statute itself, reading words and

phrases in context and construing them according to rules of

grammar and common usage.” Id. at ¶ 9 (quoting People v. Butler,

2017 COA 117, ¶ 24). If the statute’s language is clear, we must

apply it as written and need look no further. Id. at ¶ 10.

B. Law and Discussion

¶ 12 The People argue that the district court erred by finding that

Martinez did not “describe” sexual intercourse in his messages to

the officer. Specifically, they argue that, because the court was

required to “draw all inferences in favor of the prosecution,” Hall,

999 P.2d at 221, the court erred by failing to draw “the inference

that [Martinez] was describing” sexual intercourse when he said

that (1) “we can do whatever” because his truck had tinted

windows; (2) he had “protection” against pregnancy; and (3) he did

not know if “it” would hurt. We are not persuaded.

¶ 13 An actor commits internet luring of a child if the actor

knowingly communicates over a computer or

computer network, telephone network, or data

network or by a text message or instant

message to a person who the actor knows or

believes to be under fifteen years of age and, in

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that communication or in any subsequent

communication by computer, computer

network, telephone network, data network,

text message, or instant message, describes

explicit sexual conduct as defined in section

18-6-403(2)(e), and, in connection with that

description, makes a statement persuading or

inviting the person to meet the actor for any

purpose, and the actor is more than four years

older than the person or than the age the actor

believes the person to be.

§ 18-3-306(1) (emphasis added). While the statute does not define

the word “describes,” it defines “explicit sexual conduct” to include

“sexual intercourse.” § 18-6-403(2)(e).

¶ 14 As an initial matter, the People’s argument that the district

court erred by drawing “an inference in [Martinez’s] favor” regarding

the meaning of the word “describes” in section 18-3-306(1)

misunderstands the law. The court’s obligation to draw inferences

in favor of the prosecution applies to evidentiary matters, not to the

interpretation of statutes. See Miller v. Dist. Ct., 641 P.2d 966, 968

(Colo. 1982) (At a preliminary hearing, “[i]f the testimony conflicts,

the trial court must draw an inference for the prosecution.”). On

the contrary, “[t]he cardinal rule of statutory construction is that

criminal statutes are to be strictly construed in favor of the

accused.” People v. Hrapski, 658 P.2d 1367, 1369 (Colo. 1983).

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The prosecution is not entitled to an inference in its favor regarding

the construction of statutory terms.

¶ 15 Turning to the statute, we cannot conclude, based on the plain

meaning of the word “describes,” that Martinez described sexual

intercourse in any of the three statements highlighted by the People

or, indeed, at any point during his correspondence with the officer

posing as Maddison Taylor. See Websters Third New International

Dictionary 610 (2002) (defining “describe” as “to represent by words

written or spoken for the knowledge or understanding of others”);

Webster’s Encyclopedic Unabridged Dictionary of the English

Language 538 (2001) (defining “describe” as “to tell or depict in

written or spoken words; give an account of”); Oxford Dictionary of

English 474 (2010) (defining “describe” as to “give a detailed

account in words of”); New Oxford American Dictionary 470 (3d ed.

2010) (defining “describe” as to “give an account in words of

(someone or something), including all the relevant characteristics,

qualities, or events”). As the detective confirmed at the preliminary

hearing, Martinez did not represent sexual intercourse in words; he

did not talk about or depict it; and he did not give an account of it,

much less a detailed account including relevant characteristics.

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And as the district court correctly noted, it is “[t]he statements of

the officer” that “appear to reference sexual intercourse,” not

Martinez’s own statements. At most, Martinez arguably alluded or

indirectly referred to sexual intercourse when he gave terse answers

to the officer’s suggestive questions. But as the definitions above

make clear, he did not “describe” it in his communications with the

officer.

¶ 16 We are not persuaded otherwise by the People’s argument that

in People v. Boles, 280 P.3d 55, 61 (Colo. App. 2011), a division of

this court suggested in dicta that sending a child “information on

birth control” could satisfy the “describes explicit sexual conduct”

element of the internet luring of a child statute, and Martinez

therefore described explicit sexual conduct when he referred to

“protection.” Far from engaging in the “serious discussion[] about

birth control practices” contemplated by the Boles court, id.,

Martinez did not explain “protection” to the officer or provide any

information on how it might be used. So his one reference to

“protection” did not constitute a description of explicit sexual

conduct.

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¶ 17 For all these reasons, we conclude that the district court did

not abuse its discretion by finding that Martinez did not describe

explicit sexual conduct and, accordingly, by dismissing the charge

of internet luring of a child.

III. Disposition

¶ 18 The order is affirmed.

JUDGE GRAHAM concurs.

JUDGE WELLING dissents.

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JUDGE WELLING dissenting.

¶ 19 I agree with the majority’s recitation of the evidence presented

at the preliminary hearing, as well as the legal standard that

governs our review of the district court’s decision to dismiss the

internet luring of a child charge. I also agree with the majority that

our obligation to draw all inferences from the evidence in favor of

the prosecution doesn’t extend to our interpretation of the statute;

in other words, we interpret the statute de novo, as we would in any

other context. Where I part ways with the majority is whether the

prosecution’s evidence presented at the preliminary hearing, “taken

alone and in a light most favorable to the prosecution, is sufficient

to induce a reasonable belief that the defendant committed the

crime with which []he has been charged.” People v. Fisher, 759 P.2d

33, 36 (Colo. 1988); see also People v. Hall, 999 P.2d 207, 221

(Colo. 2000) (“The court must view all evidence and draw all

inferences in favor of the prosecution, and the court must not

accept the defendant’s version of the facts over the legitimate

inferences that can be drawn from the prosecution’s evidence.”). I

conclude that it was.

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¶ 20 The majority, like the district court, focuses its analysis on

whether there was evidence presented at the preliminary hearing

that in his Facebook chat messages Martinez “describe[d]” explicit

sexual conduct, as required by section 18-3-306(1), C.R.S. 2024. In

reaching its conclusion that the evidence on that issue was

insufficient, the majority understandably focuses on what Martinez

wrote (as opposed what the officer said to prompt his response).

Based on its reading of the chat log, the majority concludes that, at

most, Martinez alluded or indirectly referred to sexual intercourse,

but didn’t “describe” it, as the statute requires. The only

participant who did so, if anyone, was the officer. The majority

buttresses its conclusion with the testimony of the detective, who,

on cross-examination, conceded that Martinez himself “didn’t use

any explicit sexual language” or even mention sex or any sexual act

at all. Based on this, the majority concludes that the district court

didn’t abuse its discretion by dismissing the charge of internet

luring of a child.

¶ 21 I respectfully disagree with this view of the evidence. See Hall,

999 P.2d at 221 (“Because this case was dismissed at the

preliminary hearing, we must consider the facts in the light most

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favorable to the prosecution and we must draw all inferences

against the defendant.”). The Facebook chat logs admitted at the

preliminary hearing establish that in response to being asked by the

officer what he wanted to do when they met, Martinez told the

officer that he’s “got tinted windows” on his vehicle. When the

officer again asked Martinez what he wanted to do when they met,

Martinez respond that he’s “down for whatever,” and that “we can

do whatever cuz I have tinted windows.”

¶ 22 In my view, the issue of probable cause turns on whether

Martinez saying he’s “down for whatever” could constitute

“describ[ing] explicit sexual conduct.” In isolation, it likely doesn’t

(even applying the favorable evidentiary standard that governs a

preliminary hearing). But context matters. Here, not only did

Martinez twice reference “tinted windows” — supporting the

inference that his contemplated activity was in some way illicit or at

least needed to be shielded from public view — but he eliminated

any mystery about whether being “down for whatever” described

sexual conduct when he introduced the concept of “protection.”

Specifically, when the officer asked Martinez, “Is there any chance I

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would get pregnant,” he responded, “No I have protection.”

1

exchange supports the inference that when Martinez said that he

would be “down for whatever,” he was describing sexual

intercourse, which is “explicit sexual conduct as defined in section

18-6-403(2)(e),” C.R.S. 2024. § 18-3-306(1). Simply put, viewed in

context and drawing all inferences in favor of the prosecution,

Martinez’s explicit reference to “protection” sufficiently bridges the

gap between mere innuendo and a description of sexual

intercourse.

¶ 23 “Given the limited nature of a preliminary hearing and the low

standard for establishing probable cause,” People v. Hodge, 2018

COA 155, ¶ 19, in my view, a person of ordinary prudence and

caution could reasonably believe that, in his Facebook

communications with the officer, Martinez described explicit sexual

conduct — namely, sexual intercourse — and thereby the People

1

Martinez’s use of the word “protection” is plainly a reference to

contraception, and his lack of further explanation of what he meant

by protection doesn’t obfuscate its meaning — particularly given

how inferences must be drawn at this stage. See, e.g., People v.

Villapando, 984 P.2d 51, 55 (Colo. 1999) (“[W]hen making the

determination regarding the sufficiency of the evidence, the trial

court should view the evidence in the light most favorable to the

prosecution.”).

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established probable cause for internet luring of a child. Hall,

999 P.2d at 221–22 (At a preliminary hearing, the prosecution

doesn’t have to satisfy the much higher burden of proof beyond a

reasonable doubt; “[r]ather, it need only establish sufficient

evidence so that a reasonably prudent and cautious person could

entertain the belief that [the defendant] committed the crime.”);

People v. Villapando, 984 P.2d 51, 55 (Colo. 1999) (“While the

prosecution has the burden of establishing probable cause, it is not

necessary for the prosecution to present evidence sufficient to

support a conviction for the crime charged.”). Accordingly, I would

reverse the district court’s dismissal of the charge of internet luring

of a child.

¶ 24 For this reason, I respectfully dissent.