dissenting:
I respectfully dissent. Criminal statutes must inform the public of the standards of conduct they impose and give warning of the acts they forbid. § 18-1-102(1)(a), C.R.S. (2008); People v. Longoria, 862 P.2d 266, 270 (Colo.1993); People v. Gross, 670 P.2d 799, 800 (Colo.1983). This requirement is rooted in the right to due process of law. People v. Shell, 148 P.3d 162, 172 (Colo.2006).
The broader consequences of the majority's holding are troubling, and surely do not comport with the General Assembly's intent. See § 2-4-203(1)(a), (e), C.R.S. (2008) (if statutory language is ambiguous, we may consider the consequences of a given interpretation and the goals the General Assembly sought to achieve); People v. Rockwell, 125 P.3d 410, 417 (Colo.2005). The majority's construction of the statutory provision under which Platt was convicted permits a jury to convict a person of a class IV felony, even though the sexual contact was consensual, because the person giving consent was not fully awake. This construction is an absurd result that is contrary to the General Assembly's intent, in *551light of the General Assembly's provision of a separate statutory offense applicable to the sexual assault of a sleeping victim. See City of Commerce City v. Enclave West, Inc., 185 P.3d 174, 179 (Colo.2008) (we eschew absurd results in statutory interpretation).
The two statutory subsections at issue in this case are subsection 18-3-402(1)(b), C.R.S. (2008), and subsection 18-8-402(1)(h), CRS. (2008). The fact that Platt was charged under subsection (b) rather than subsection (h) affected Platt's trial in three significant ways: (1) the prosecutor was not required to prove the statutory elements that the victim did not consent and that Platt knew the victim did not consent; (2) Platt was not permitted to raise consent as an affirmative defense pursuant to section 18-1-505(1), C.R.S. (2008); and (8) Platt was not permitted to include the issue of consent in his theory of the case jury instruction.1
Subsection (b) provides: "(1) Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if: ... (b) The actor knows that the victim is incapable of appraising the nature of the victim's conduct."
Subsection (h) provides: "(1) Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if: ... (h) The victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented." Section 18-8-401(8), CRS. (2008), defines "physically helpless" as "unconscious, asleep, or otherwise unable to indicate willingness to act." (Emphasis added).
The prosecutor initially charged Platt under subsection (b), then moved to amend the charge to subsection (h). The prosecutor then withdrew this motion on the first day of trial and went forward on subsection (b). The net effect of the prosecutor's decision to charge Platt under subsection (b) was to remove the issue of consent from the case, causing significant prejudice to Platt's ability to defend himself and contradicting the General Assembly's intent in adopting the two subsections that contain differing elements the prosecution must prove. Plainly, the facts of the case are critical to which statutory provision applies.
1.
Removal of the Consent Element from this Case
The primary goal in statutory interpretation is to ascertain and effectuate the General Assembly's intent, and we begin this task by examining the plain meaning of the statutory language. People v. Flippo, 159 P.3d 100, 104 (Colo.2007); People v. Yascavage, 101 P.3d 1090, 1093 (Colo.2004). In addition to considering the plain meaning of a statutory provision, we attempt to construe a statute so as to give consistent, harmonious, and sensible effect to all of its parts, resolving ambiguity in the legislature's intended operation of potentially conflicting statutes. See People v. Thompson, 181 P.3d 1143, 1145 (Colo.2008).
The language of subsection (b), read in conjunction with subsection (h), suggests that the General Assembly did not intend for subsection (b) to be used to charge a sexual assault of a sleeping or partially asleep victim who is not otherwise impaired so as to be incapable of appraising his or her conduct.2 Subsection (h) directly proseribes the sexual assault of a sleeping victim, because subsection (h) (referencing section 18-3-401(8)) defines "physically helpless" to include being "asleep." This explicit reference to sleep *552stands in stark contrast to the ambiguous language used in subsection (b) referring to the victim's capability of appraising his or her conduct.3 Subsection (b) makes no direct or even oblique reference to sleep. Instead, the majority improperly attempts to read the word "asleep" into a provision where it cannot be found. See Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 47:38 ed. 2008) (missing words should not be supplied by courts to clarify ambiguous or missing language).
The majority holds that prosecutors properly charged Platt under subsection (b) for the alleged sexual assault of a partially sleeping victim. The majority reasons that "[slubsection (b) addresses the situation in which a victim is cognitively unable to appreciate her conduct" and that "Platt's conduct falls squarely within the language of subsection (b), because a victim who is asleep may be cognitively 'incapable of appraising the nature of [her] conduct."" Maj. op. at 547-48.
In my view, the only proper charge in this case is the violation of subsection (h), not subsection (b). The General Assembly clearly set forth subsection (h) as the appropriate provision for charging a defendant with sexual assault of a person in various states of sleep. In doing so, the General Assembly required prosecutors, in cireumstances involving sleep, to prove that the victim did not consent and that the defendant knew the victim did not consent. The General Assembly also made consent available as an affirmative defense under subsection (h). See § 18-1-505(1).
By holding that prosecutors may charge defendants in this type of case using subsection (b), under which consent is irrelevant, the majority effectively holds that a person cannot consent to sexual contact before falling asleep, while partially asleep, or before fully awakening. The meaning of the phrase "incapable of appraising the nature of [one's] conduct" in subsection (b) particularly ill-fits the situation where a victim is between being fully asleep or fully awake, the facts of Platt's case.
The victim here was not impaired by any disease or defect rendering her "incapable" of consenting within the meaning of subsection (b); instead, she was mistaken about who was touching her, as she had her eyes closed during the touching. Subsection (h) consent is therefore the issue, rather than subsection (b) incapability. The victim's testimony indicated that sexual touching by her boyfriend while she was partially asleep would have been acceptable. When she opened her eyes, she discovered not her boyfriend but Platt, and kicked him away.
The majority's decision disregards our duty to avoid a statutory construction that would render other statutory provisions meaningless. See People v. Terry, 791 P.2d 374, 376 (Colo.1990). The legislature meant what it said when it fashioned subsection (h) to address cireumstances in which a state of sleep is at issue. Subsection (b) should be used where a victim suffers from an impairment rendering a person incapable of consenting, for example, a mental impairment. In Gross, we held:
If a victim is incapable of understanding how her sexual conduct will be regarded within the framework of the societal environment of which she is a part, or is not capable of understanding the physiological implications of sexual conduct, then she is incapable of 'appraising the nature of [her] conduct under the language of the statute.4
670 P.2d at 801 (emphasis added).5
*553In the past, sexual assaults of sleeping or partially asleep victims not otherwise incapable of appraising their conduct within the meaning of subsection (b) appear to have been consistently charged under subsection (h). See, e.g., People v. Garcia, 169 P.3d 223, 225, 229 (Colo.App.2007) (the defendant was charged under subsection (h) for sexually assaulting a woman who awoke to find the defendant having sexual intercourse with her, but mistakenly thought the defendant was her boyfriend; the guilty verdict was reversed on grounds related to improper admission of evidence); People v. Hoskay, 87 P.3d 194, 196, 199 (Colo.App.2003) (the defendant was charged and convicted under subsection (h) for sexually assaulting another man who was asleep); People v. Watson, 53 P.3d 707, 710, 712 (Colo.App.2001) (the defendant was charged and convicted under subsection (h) for sexually assaulting a woman who awoke to find the defendant attempting to have anal intercourse with her and who did not fully realize what was happening when the defendant began to have vaginal intercourse with her).
In my view, it is not necessary to consult legislative history here because it is apparent under the facts of this case that prosecutors should have charged Platt under subsection (h) and the case could properly go to the jury under this subsection only, not under subsection (b).
However, I note that my reading of legislative history does not support the majority's conclusion that "by specifically removing the mental impairment language from the statute, the General Assembly intended to broaden the section's applicability beyond situations involving mental impairment." Maj. op. at 549. The other change to section 18-3-402 the General Assembly made in 1975 was the addition of gender-neutral language. It is possible that, in the same theme, the General Assembly merely intended to remove potentially offensive terminology concerning mental impairments by removing the phrase "mental disease or defect." Alternatively, the General Assembly may have decided that this phrase was too narrow, or it may have intended to extend subsection (b) to temporary impairment caused by consumption of aleohol or drugs.
In any event, whether for the reasons explored above or other reasons, the General Assembly appears to have intended that subsection (b) apply to impairment involving something other than a state of sleep. This legislative intent is evidenced by committee reference to subsection (b) as the "mental disease or defect" subsection and as the provision that would apply where "the victim suffers from a disease which renders the victim incapable of appraising the nature of the victim's conduct." See Hearing on H.B. 1042 Before the H. Judiciary Subcomm., 1975 Legis., 50th Gen. Assemb., Ist Reg. Sess. (Mar. 18, 1975); Hearing on H.B. 1042 Before the H. Judiciary Comm., 1975 Legis., 50th Gen. Assemb., ist Reg. Sess. (Mar. 18, 1975). In my view, the legislative history does not support the majority's holding.
II.
Prejudicial Effect
The most troubling implication of the majority's decision is that the state can charge a subsection (b) crime against a person who engages in consensual sexual touching with a partially asleep or sleeping partner.6 In charging such a crime, the state would be under no obligation to demonstrate noncon-sent as a predicate for the offense, and the affirmative defense of consent would not be available to the partner charged. There are numerous conceivable situations in which a person would not fully awaken during "sexual intrusion" or "sexual penetration," given the broad definitions of those terms.7 Under the *554majority's construction of the statute, any person who wants to initiate sex with a partner who is partially asleep will need to fully awaken that partner prior to sexual contact in order to avoid a possible charge and conviction under subsection (b)8 Given these ramifications, the legislature could not have contemplated vesting the jury with such authority to convict under subsection (b) in these circumstances.
The General Assembly's intent is evident in the statutory design, because subsection (h) requires a prosecutor to prove that the victim did not consent and that the defendant has reason to believe that the victim did not consent. See § 18-3-402(1)(h) ("The victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented.") (emphasis added); Dunton v. People, 898 P.2d 571, 573 n. 3 (Colo.1995) ("Subpart [h] ... does require the actor to be aware of the victim's physical helplessness and lack of consent. Because no affirmative acts are necessary to cause submission of a physically helpless victim, sub-part [h] requires proof of the victim's non-consent.") (emphasis added)9 In addition, section 18-1-505(1) provides that "consent of the victim" is an affirmative defense to conduct charged if "the consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense."
By including the element of noneconsent in subsection (h), the General Assembly demonstrated its sensible judgment that a person who is partially asleep or partially awake, or even fully asleep, can consent to sexual contact. In contrast, the General Assembly did not require prosecutors charging a defendant under subsection (b) to prove the victim did not consent, in order to protect persons incapable of consenting by reason of an impairment. Thus, we have previously observed that effective consent is impossible for sexual assaults covered by subsection (b), for instance, where a victim is mentally disabled. Cf. Wilkinson v. People, 86 Colo. 406, 412, 282 P. 257, 259 (1929).
The majority finds that Platt was not prejudiced by the prosecutor's decision to charge him under subsection (b), rather than subsection (h). The majority reasons that Platt presented evidence of the victim's alleged consent in arguing that the prosecution had not proven the victim was incapable of appraising the nature of her conduct. Maj. op. at 549-50. Such a construction of the statutory provisions at issue is inconsistent with the wording of the two subsections, which differentiate situations where a victim is impaired from situations where a victim is sleeping.
The elements of the crime are all-important to statutory construction and due process.
It is well established that a criminal conviction may only ensue upon proof beyond a reasonable doubt of every element constituting the crime charged. A corollary to this principle is that members of a jury must be adequately instructed to enable them to assess whether every element of an offense has been proved beyond a reasonable doubt.
Chambers v. People, 682 P.2d 1173, 1175 (Colo.1984) (internal citations omitted).
The record in this case demonstrates prejudice to Platt. The victim testified at trial that she enjoyed the touching, and that she reached out to pull Platt closer before she realized who he was.10 As we noted in our *555prior decision, People v. Platt, 81 P.3d 1060, 1063 (Colo.2004), Platt and the victim lived in the same house at the time. It is possible the jury could have found that the victim's reactions constituted consent, or that Platt reasonably believed that she was consenting; alternatively, the jury could have found that she did not consent. In any event, this is a jury question that was precluded in this case. After moving to amend the charge to properly charge Platt under subsection (h), the prosecution withdrew its motion on the first day of trial, thereby removing the consent element from the case. The trial judge proceeded, based upon the subsection (b) charge, to refuse Platt's theory of defense and affirmative defense instructions that included the consent element. This is a miscarriage of justice given the facts of this case.
III.
Reversal of the Conviction and Dismissal of the Charge Should Occur
Accordingly, I conclude that reversal of the conviction and dismissal of the charge should occur in this case.11 Thus, I respectfully dissent.
I am authorized to state that Justice MARTINEZ and Justice BENDER join in this dissent.. Platt moved twice for acquittal on the grounds that the prosecutor charged him under the wrong statutory provision. The trial court denied both motions. The trial court submitted to the jury the following theory of the case instruction, which did not include the element of consent that Platt had requested: "It is Mr. Platt's theory of the case that [the victim] was awakened by his touching of her thigh. It is further Mr. Platt's contention that the touching of [the victim] was not for the purpose of sexual arousal, gratification, or abuse."
. The majority suggests that Platt's argument fails to acknowledge that in some cases a victim may be both mentally impaired and physically helpless. Maj. op. at 548. In my view, if a defendant allegedly sexually assaults a victim who is both physically helpless and incapable of appraising the nature of his or her conduct, the prosecutor may charge the defendant under either subsection (b) or subsection (b).
. The principle of statutory construction that a more specific statute trumps a general statute does not apply here. See maj. op. at 548-49 (citing Bd. of County Comm'rs of Douglas County v. Bainbridge, 929 P.2d 691, 698 (Colo.1996)). Our precedent makes clear that enactment of a specific criminal statute does not necessarily preclude prosecution under a general criminal statute if the defendant's conduct violates both statutes. See, e.g., People v. Smith, 938 P.2d 111, 115 (Colo.1997); People v. Bagby, 734 P.2d 1059, 1061 (Colo.1987). Instead, I would hold that Platt was improperly charged because his conduct did not violate subsection (b).
. We need not address in this case whether subsection (b) can extend to situations in which a victim is temporarily impaired, such as through the use of alcohol or drugs. Nevertheless, see Fletcher v. People, 179 P.3d 969, 971-72 (Colo.2007), where we affirmed a defendant's conviction under subsection (b) when the defendant had sexually assaulted a victim who was extremely intoxicated.
. The Gross opinion addressed the former section 18-3-403, C.R.S. (2001), which was codified in 2002 at section 18-3-402(1)(b), C.R.S. (2008).
. Indeed, the state conceded at oral argument that it could have prosecuted the victim's boyfriend under subsection (b) if he had initiated consensual sexual contact with the victim.
. "Sexual intrusion" is defined as "any intrusion, however slight, by any object or any part of a person's body, except the mouth, tongue, or penis, into the genital or anal opening of another person's body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification, or abuse." § 18-3-*554401(5), C.R.S. (2008). "Sexual penetration" is defined as "sexual intercourse, cunnilingus, fellatio, analingus, or anal intercourse.... Any penetration, however slight, is sufficient to complete the crime." § 18-3-401(6).
. - For example, if a person briefly inserts a finger into the vagina of a partially asleep partner, and the partner responds positively without fully awakening, the person could be found guilty of sexual assault under subsection (b) without having the opportunity to demonstrate that the partner consented.
. As the majority opinion notes, the current subsection (h) was referred to as subsection (e) when we decided Dunton. Maj. op. at n. 4.
. In this case, the victim's testimony demonstrated that, despite being less than fully awake, she was conscious enough to appraise the sexual contact as acceptable because she thought her boyfriend was touching her. As demonstrated by footnote 5 of its opinion, maj. op. at 550, the majority transforms this case of mistaken identity into a subsection (b) offense. The majority reasons that, had the victim known that Platt, rather *555than her boyfriend, was touching her, she would have been "incapable" of consenting. In my view, such a result-oriented construction of the statute simply ignores the plain fact that the General Assembly has addressed just such a situation in subsection (h).
. In my view, federal and state double jeopardy protections would prohibit a second prosecution of Platt. U.S. Const. amend. V; Colo. Const. art. II, § 18; see People v. Leske, 957 P.2d 1030, 1035 n. 5 (Colo.1998).