March 24, 2011
People v. Griffin – Failure to Register / Sufficiency of the Evidence
Facts: Mr. Griffin told the folks in Denver he intended to reside in Adams County at a specific residence. However, Mr. Griffin’s housing arrangements fell through, and he never moved to Adams County. The prosecution brought this charge based upon his statement to Denver that he intended to reside in Adams (and wasted umpteen dollars extraditing him from another state, and trying this garbage).
Issue: Whether ‘an intent to reside’ provides a sufficient basis to convict for failure to register when the person never actually resides at the intended residence?
Held: Thank the sweet baby Jesus, No. That is not a sufficient basis to convict.
Reasoning: The prosecution pulls out the statutory language that illustrates how to prove someone’s residence. The CofA stated, “But the People argue that ‘establish a residence’ has a special meaning under the registration act. Relying on sections 16-22-102(5 .7) and -105(3), C.R.S.2010, they argue that a sex offender may ‘establish a residence’ merely by intending to live in a place.”
Thankfully, the CofA wisely goes through the statute and opines the prosecution mistakes the legislature’s guidance. The CofA wrote:
Section 16-22-105(3) states that an offender must register where he “establishes a residence,” and it provides information about how that intent may be proven: For purposes of this article, any person who is required to register pursuant to section 16-22-103 shall register in all jurisdictions in which he or she establishes a residence. A person establishes a residence through an intent to make any place or dwelling his or her residence. The prosecution may prove intent to establish residence by reference to hotel or motel receipts or a lease of real property, ownership of real property, proof the person accepted responsibility for utility bills, proof the person established a mailing address, or any other action demonstrating such intent. *3 Notwithstanding the existence of any other evidence of intent, occupying or inhabiting any dwelling for more than fourteen days in any thirty-day period shall constitute the establishment of residence. (Emphasis added.) We conclude that this provision does not obviate the need for physical presence or occupancy. Rather, it distinguishes the kind of occupancy that requires registration from the kind that does not. 2 Thus, contrary to the People's view, we conclude that the emphasized language does not require a sex offender to register where he merely intends to live.
People v. Kiniston Definition of ‘Conviction’ for purposes of the 2-prior felony rule.
Facts: Mr. Kiniston pled to an F4 theft, and the court approved a deferred sentence. Unfortunately, Mr. Kiniston picked up two felony convictions after the court placed him on the deferred. Upon revocation, Mr. Kiniston argued for probation. The trial court found because at the time of his sentencing that Mr. Kiniston had twice been convicted of a felony, the court could not grant probation.
Issue: Whether the term conviction applies to when Mr. Kiniston pled or whether conviction applies to when the court actually imposes a sentence?
Held: The term conviction applies to when Mr. Kiniston pled originally – not when the court revoked the deferred and entered judgment on that conviction.
Reasoning: The CofA went through other statutes and other decisions which defined ‘conviction’, and almost every instance penalized the defendant one way or another. Thus, the State wanted to disregard all of that law of which it benefitted mightily to win on this relatively meaningless issue.
The CofA reasoned:
If the term “conviction” were read to mean “judgment of conviction,” subsection (2)(a.5) would read as follows: A person who has twice or more received a judgment of conviction of a felony ... prior to the judgment of conviction on which his or her application for probation is based shall not be eligible for probation. Because a “judgment of conviction” includes the sentence imposed, such a reading is nonsensical, as it discusses the availability (or lack thereof) of probation for a defendant who has already been sentenced. Cf. Nance, 221 P.3d at 433 (in a probation revocation case under section 18-1.3-201(2), the division noted that a defendant's application for probation is made after “conviction,” in a context clearly indicating that “conviction” does not mean “judgment of conviction”).
People v. Blue Specific Statute vs. General Statute - Attempting to Influence a Public Servant vs. False Reporting to Authorities
Synopsis: According to the police, they got a call from a Crime Stoppers snitch who told the police Mr. Blue was in the Colorado Springs library. The police stopped and interrogated Mr. Blue. Mr. Blue initially denies he is Tony Blue – the fellow wanted on Crime Stoppers. However, the police searched him after the stop, and unfortunately, they found an ID, which identified him as Tony Blue. No word on what Mr. Blue was wanted for on Crime Stoppers, but the petulant and ultra petty prosecutors in the Springs charged Mr. Blue with Attempting to Influence a Public Servant – not False Reporting (giving a fake name to a cop subsection). The defense filed a motion to dismiss, the trial court heroically granted the motion, and reduced the charge to False Reporting.
Issue: Whether the trial court exceeded its authority by dismissing the felony charge of Attempting to Influence a Public Servant?
Reasoning: We all could see this coming. Perhaps the defense should have waited until half-time, after jeopardy attached, and rolled all these arguments into a motion for judgment of acquittal. No doubt, after this reversal, the trial judge will be too gun shy to grant an MJOA.
Rule - Specific v. General Statute: “Enactment of a specific criminal statute does not preclude prosecution under a general criminal statute, unless statutory language indicates that the legislature intended to limit prosecution to the specific statute. To determine whether the General Assembly intended that a specific statute would preclude prosecution under a general statute, we address (1) whether the specific statute invokes the full extent of the state's police powers; (2) whether the specific statute is part of an act creating a comprehensive and thorough regulatory scheme to control all aspects of a substantive area; and (3) whether the act carefully defines different types of offenses in detail. (citations omitted).” The CofA reasoned False Reporting, unlike liquor laws or gaming statutes, is not included in some regulatory scheme; and nothing in the statutes limits prosecutions under this statute alone.
Equal Protection – “The United States Constitution and the Due Process Clause of the Colorado Constitution guarantee a defendant equal protection under the law. The context of criminal law, equal protection prohibits punishing identical criminal conduct with disparate penalties. The corollary to this rule is that if a criminal statute proscribes different penalties for identical conduct, and a defendant is convicted under the statute imposing the harsher penalty, then the defendant's right to equal protection is violated unless there are reasonable differences or distinctions between the statutes at issue.” False Reporting and Attempting to Influence a Public Servant require different mental states and punish different conduct. Thus, the government did not violate the Equal Protection clause by charged Mr. Blue with Attempting to Influence
People v. Sowell Applicability of Sex Offender Registration
Facts: In 1995, Mr. Sowell pled to sexual assault on a child – position of trust. At the time of his plea, the statute required Mr. Sowell to register until a court granted his petition to cease registering – an indefinite term. In 2001 and 2002, the legislature changed the registration requirements from indefinite to life-long registration. The trial court, bless its heart, granted Mr. Sowell’s motion to cease all registration. The prosecution appealed.
Issue: Whether the trial court exceeded its authority to grant Mr. Sowell’s petition to cease all registration requirements?
Reasoning: Essentially, Ex Post Facto clauses do not apply to registration requirements. Mr. Sowell argued detrimental reliance upon the statutory scheme at the time of his plea, and upon a notice he received prior to a plea. The CofA found the handwritten notice insufficient to rely upon. Further, regarding the statutory scheme, the CofA interpreted this argument as an Ex Post Facto argument – sealing Mr. Sowell’s fate. “Ex Post Facto Clauses forbid states from enacting laws which impose additional punishment to that which was prescribed at the time an act was committed.” See also, Gasper v. Gunter, 851 P.2d 912, 913 (Colo. 1993). Previously, the CofA found statutes requiring registration do mete out punishment, and thus, none violate Ex Post Facto. See People v. Stead, 66 P .3d 117, 120 (Colo.App.2002); People v. Tuffo, 209 P.3d 1226, 1230 (Colo.App.2009).