November 22, 2017

Colorado Court of Appeals: Defendant Lacked Fixed Address and was Charged with Failure to Register as Sex Offender Under Incorrect Statute

The Colorado Court of Appeals issued its opinion in People v. Jones on Thursday, September 7, 2017.

Sex Offender—Failure to Register—Evidence—Address—C.R.S. § 16-22-108(3)(i)—C.R.S. § 18-3-412.5(1)(g).

Jones was required to register as a sex offender. In 2011, he registered as a sex offender with the Aurora Police Department (Aurora P.D.) in Colorado. In August 2012, Jones was released from prison onto parole in an unrelated case, and he was given a voucher to stay at a particular motel in Aurora (and in Adams County). On August 12, 2012, Jones updated his sex offender registration with the Aurora P.D., listing the motel’s address as his new residence. On August 20, 2012, when the voucher expired, Jones left the motel and did not return. He did not report a change of address with the Aurora P.D. and did not register as a sex offender with any other local law enforcement agency in Adams County or in any other jurisdiction in Colorado until 2013. The People charged him with failure to register as a sex offender between August 26, 2012 and November 28, 2012.

At the close of evidence of his trial, Jones moved for a judgment of acquittal, arguing that (1) the prosecution presented no evidence of where he resided during the relevant time period, and (2) ceasing to reside at an address and thereafter lacking a fixed residence does not fall within the meaning of “changing an address” under C.R.S. 18-3-412.5(10(g). The trial court denied the motion, and Jones was convicted of the charge.

On appeal, Jones contended that the evidence at trial was insufficient to prove that he failed to register “upon changing an address” under C.R.S. § 18-3-412.5(1)(g). The Colorado Sex Offender Registration Act (Act), C.R.S. §§ 16-22-101 to -115, requires sex offenders to register with the local law enforcement agency where the person resides. C.R.S. § 16-22-108(3)(i) criminalizes the failure to register upon “ceasing to reside at an address and [thereafter] lacking a fixed residence.” A violation of this section must be charged under the catchall provision in C.R.S. § 18-3-412.5(1). Here, the prosecution elected to charge Jones only under C.R.S. § 18-3-412.5(1)(g), which criminalizes the “[f]ailure to register with the local law enforcement agency in each jurisdiction in which the person resides upon changing an address, establishing an additional residence, or legally changing names.” Although Jones was required to register as a sex offender in each jurisdiction where he resided, there was no evidence that Jones had a fixed residence during any portion of the relevant time period. Because the evidence at trial did not establish a violation of C.R.S. § 18-3-412.5(1)(g), he was wrongfully convicted under that statutory provision.

The judgment was vacated.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: California Resident Required to Register as Sex Offender for Extended Visits in Colorado

The Colorado Court of Appeals issued its opinion in In re Stanley v. District Attorney for the 18th Judicial District on Thursday, March 9, 2017.

Sex Offender Registration—California Conviction.

In 2001, Stanley was convicted and sentenced in California of “unlawful sexual intercourse with [a] person under 18.” Stanley successfully completed his California probation and his conviction was eventually reduced to a misdemeanor.

In 2014, the California Department of Justice notified Stanley that his statutory requirement to register as a sex offender under the California Penal Code had been terminated. In 2015, Stanley filed a petition to discontinue his sex offender registration in the Arapahoe County District Court for a non-Colorado conviction under C.R.S. § 16-22-113. Stanley, who resided in California but had family in Colorado that he wanted to visit with in Colorado for potentially long periods of time, recognized that travel would result in him being considered a temporary resident of Colorado for purposes of sex offender registration.

The district court denied the petition, concluding as a matter of law that Stanley was ineligible for relief under C.R.S. § 16-22-113(3) because his crime, if committed in Colorado, would have been a violation of C.R.S. § 18-3-402 and consequently required lifetime sex offender registration.

On appeal, Stanley argued that the district court erred as a matter of law in interpreting C.R.S. § 16-22-113(3). He conceded that if committed in Colorado, his offense would have been a violation of C.R.S. § 18-3-402(1)(e), which is a class 1 misdemeanor and an extraordinary risk crime. The Colorado Court of Appeals concluded that the plain language of C.R.S. § 16-22-113(3) precludes Stanley, as a matter of law, from discontinuing his sex offender registration in Colorado.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Sex Offender Registration Not Punishment so No Eighth Amendment Violation for Juvenile Offender Registration Requirement

The Colorado Court of Appeals issued its opinion in People in Interest of J.O. on Thursday, August 27, 2015.

Juvenile—Unlawful Sexual Contact—Indecent Exposure—Sex Offender Registration—Evidence—Eighth Amendment.

J.O., who was 15 years old at the time of the charged offenses, was adjudicated delinquent for acts that, if committed by an adult, would constitute misdemeanor unlawful sexual contact, attempted misdemeanor unlawful sexual contact, and two counts of indecent exposure. As part of adjudication, J.O. was required to register as a sex offender.

On appeal, J.O. argued that the trial court erred in ordering him to register as a sex offender because (1) he met the criterion for the magistrate to exempt him from registration, (2) the registration violated his rights under the Eighth Amendment, and (3) (1) the evidence was not sufficient to support the adjudication. Because J.O. was simultaneously adjudicated for unlawful sexual contact and indecent exposure, he did not meet the first offense criterion in CRS § 16-22-103(5)(a)(III) for exemption from sex offender registration. Additionally, because sex offender registration is not punishment, requiring him to register did not violate his constitutional rights. Finally, there was sufficient evidence showing that J.O. possessed the requisite intent for unlawful sexual contact and indecent exposure.Therefore, the evidence was sufficient to support his adjudication. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Sex Offender Must Keep Registration Current Even When Residing in Non-SORNA Jurisdiction

The Tenth Circuit Court of Appeals issued its opinion in United States v. Nichols on Tuesday, December 30, 2014.

Lester Nichols is a convicted sex offender who moved from the United States to Manila, Philippines, without updating his information on the federal sex offender registry. He was arrested in the Philippines one month later and deported to the United States, where he was charged with and indicted for failure to update his registration information in violation of the Sex Offender Notification and Registration Act (SORNA). Mr. Nichols moved to dismiss the indictment, arguing that SORNA did not require him to register in a non-SORNA jurisdiction, and also contesting as unconstitutional SORNA’s delegation to the Attorney General to determine its application to sex offenders whose predicate offense occurred prior to SORNA’s enactment.

The district court relied on Tenth Circuit precedent in United States v. Murphy, 664 F.3d 798 (10th Cir. 2011), and rejected Nichols’ first argument. The district court also rejected Nichols’ nondelegation argument, noting that despite the lack of binding Tenth Circuit precedent, dicta from the Tenth Circuit and precedent from other circuits has upheld SORNA’s delegation of authority. Nichols appealed on both points.

The Tenth Circuit first addressed the requirement for sex offenders to register in non-SORNA jurisdictions. In Murphy, the defendant was released from prison in Utah and moved to Belize. The Tenth Circuit analyzed SORNA’s registration requirements and decided that leaving Utah triggered the requirement for the offender to register, even though he moved to a non-SORNA jurisdiction. Nichols contended that the dissent in Murphy should guide the Tenth Circuit in his case, but the court could not overturn its prior precedent without an intervening Supreme Court decision or en banc consideration, and affirmed the district court’s determination on this issue.

Nichols next argued that Congress’s delegation of authority to the Attorney General to determine its preenactment application was unconstitutional, and the Tenth Circuit should apply a heightened “meaningful constraint” standard in evaluating the constitutionality. The Tenth Circuit first determined that Congress clearly delineated the general policy on which SORNA is based, and the policy conveyed to the Attorney General intelligible guiding principles. Congress also clearly delineated the boundaries of the Attorney General’s authority, and the Tenth Circuit found that the delegation satisfied the Supreme Court’s “intelligible principles” test. As to Nichols’ argument that the court should apply the more stringent “meaningful constraint” test, since the delegation contemplated criminal sanctions, the Tenth Circuit disagreed. The meaningful constraint test has only been referenced in a handful of cases, and no specific factors or substantive analytical framework has been developed, making application nearly impossible, whereas the intelligible principles test is well established.

The Tenth Circuit affirmed Nichols’ conviction.

Tenth Circuit: Parental Privilege is Constitutionally Protected Interest and Restrictions on Parenting Require Heightened Justification

The Tenth Circuit Court of Appeal issued its opinion in United States v. Bear on Friday, October 31, 2014.

In 2001, Wesley A. Bear was convicted in Iowa state court of two counts of committing lascivious acts on a child following offenses involving two children under 12 years of age. As a result of these convictions, Mr. Bear is required to register for life as a sex offender under the Sex Offender Registration and Notification Act (SORNA). In 2010, Mr. Bear was convicted of a SORNA violation in a different part of Iowa. He subsequently purchased a trailer home and registered at the trailer’s address, but he and his wife and children moved to Oklahoma City and Mr. Bear failed to update his registration. He was arrested and charged with failure to comply with SORNA. He pled guilty, and was sentenced to 23 months imprisonment followed by 5 years’ supervised release with sex offender conditions, including requirements that he submit to sex offender mental health assessment and treatment, a prohibition on being at any residence where children under age 18 are residing, and a prohibition on associating with children under the age of 18 unless in the presence of a responsible adult who is aware of his criminal background. He objected to the imposition of the special conditions, arguing they were too remote in time to be reasonably related as conditions of his supervised release, that they prevented him from parenting his own children, and that he previously underwent sex offender mental health treatment around the time of his previous conviction. The district court overruled Mr. Bear’s objections and imposed the special conditions, and Mr. Bear appealed.

The Tenth Circuit, noting that district courts have broad authority to impose special conditions of supervised release, first addressed Mr. Bear’s contention that his prior convictions were too remote to be reasonably related to his supervised release. The Tenth Circuit found that, although his convictions were 12 years old and he had shown no further proclivity toward sexual deviance since his original conviction, the facts surrounding the original incidents were troubling, and the requirements of mental health assessment and treatment were appropriate. The Tenth Circuit also found no error in the district court’s reliance on the probation officer to determine when Mr. Bear was ready to be released from mental health treatment.

Next, the Tenth Circuit turned to Mr. Bear’s argument that the condition against being at any residence where minor children resided prevented him from associating with his own children. The Tenth Circuit found that the imposition of special conditions should not deprive a parent of his constitutionally protected parental privilege. Mr. Bear had not committed any sexual offense in the 12 years since his original offense, did not display continuing sexually deviant tendencies, and had never shown himself to be a danger to his own three children. The Tenth Circuit vacated the imposition of conditions that prevented Mr. Bear from parenting his own children. However, the Tenth Circuit found no error in the imposition of the special conditions as related to other children.

The district court’s sentence was affirmed as related to the mental health assessment and treatment, and also as to the restrictions involving unrelated children, vacated as to the restrictions regarding Mr. Bear parenting his own children, and remanded for further proceedings.

Tenth Circuit: Sex Offenders Have Continuing Duty to Keep Registration Information Up-to-Date

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lewis on Tuesday, September 30, 2014.

Marcus Lewis pleaded guilty to statutory rape in Missouri in 1996 and was sentenced to five years’ probation. He later served prison time because of a probation violation. Under the Sex Offender Registration and Notification Act (SORNA), Lewis was required for life to register as a sex offender. He last registered in Kansas in May 2011, and has not voluntarily registered in any state since then. SORNA requires sex offenders to register where they live, work, or attend school, and requires offenders to report any change in status to authorities.

In August 2011, a sheriff’s deputy in Kansas tried to locate Lewis for a warrant unrelated to his previous sex offense. The deputy used Lewis’s last known address from the sex offender registry, but learned that Lewis no longer lived there. Unable to find Lewis, the deputy alerted U.S. Marshals, who found a car associated with Lewis at the residence of his relatives in Missouri. Over a year later, Lewis was arrested in Atlanta on the Kansas warrant. In an interview with a U.S. Marshal, Lewis admitted that he had not registered because of the outstanding warrants. A federal grand jury indicted Lewis on one count of failing to register, and after a bench trial, Lewis was convicted. Following the conviction, Lewis filed a motion for judgment of acquittal, claiming improper venue and that the evidence was insufficient to support a conviction. His motion was denied, and Lewis appealed.

Lewis contended that venue in Kansas was improper, because he abandoned his home in Kansas, traveled through Missouri, and eventually settled in Georgia. Lewis argued that any SORNA violation occurred outside Kansas. The Tenth Circuit disagreed, finding that under SORNA, Lewis was required to report within three days that he had abandoned his Kansas residence or register in a new location within three days, so venue was proper in the departure district. Lewis also argued that he had abandoned his Kansas residence before the date listed on the indictment, but the Tenth Circuit found this argument flawed, as Lewis had a continuing requirement to update his information. Lewis next argued that his next registration date had not occurred at the time the sheriff discovered his abandonment of the Kansas residence, but the Tenth Circuit disagreed with his reasoning, as the purpose of SORNA is to keep registrations current regardless of where the offender resides, not to maintain one registration and allow the offender to be transitory as long as that one registration is maintained. Finally, Lewis argued that the government’s theory of the case was inherently flawed because it required a sex offender to notify the departure state of any change in location. The Tenth Circuit, however, determined that this was only partially true — sex offenders have a continuing requirement to update their registration, and if the offender does not re-register within three days of departure, the offender has the duty to notify the departing location of his departure.

The Tenth Circuit affirmed the district court’s judgment.

Tenth Circuit: Sex Offender Registration Requirements are Necessary and Proper to Regulate Child Pornography

The Tenth Circuit Court of Appeals issued its opinion in United States v. Brune on Friday, September 19, 2014.

Gustave Wilhelm Brune pleaded guilty in 2001 to possession of child pornography. He served 27-months in federal prison, after which he was placed on supervised release. In 2004, he violated a condition of his release and was incarcerated for an additional 21 months. In 2006, he completed his sentence and was released without supervision but was required to register as a sex offender for life under the Kansas Offender Registration Act (KORA) and the national Sex Offender Registration and Notification Act (SORNA). He was required to keep his registration current under both Acts.

Between 2006 and 2011, Brune repeatedly failed to comply with the registration requirements. After an investigation, federal officials charged Brune with failure to register as a sex offender and obtained an arrest warrant. A search of his home incident to the arrest revealed child pornography images on Brune’s computer and that he had accessed a webpage containing child pornography. He was indicted for failing to register under SORNA and accessing with intent to view child pornography under 18 U.S.C. § 2252A(a)(5)(B). He lodged unsuccessful constitutional objections to the charges and eventually pleaded guilty, reserving the right to appeal. On appeal, he argued (1) the Necessary and Proper clause cannot sustain Congress’s decision to enact SORNA; and (2) the conduct prohibited under 18 U.S.C. § 2252A(a)(5)(A) is unconstitutionally overbroad.

Addressing the first argument, the Tenth Circuit analyzed the Supreme Court’s decision in United States v. Kebodeaux, 133 S. Ct. 2496 (2013). In Kebodeaux, the Supreme Court determined that sex offender registration requirements did not violate the Necessary and Proper clause because Congress has the authority to impose punishment for sex offenders and the sex offender registration is necessary and proper to carry out Congress’s power. Applying the Court’s rationale to Brune, the Tenth Circuit found that SORNA survives Brune’s challenge. Brune’s original statute of conviction “plainly withstands constitutional scrutiny as an exercise of congressional authority under the Commerce Clause to regulate the interstate trafficking of child pornography. . . . And because the constitutionality of the underlying statute cannot be reasonably questioned, SORNA’s registration requirements are a limited and rational extension of congressional power, as permitted by the Necessary and Proper Clause.”

As to the second argument, Brune asserted that 18 U.S.C. § 2252A(a)(5)(A) is overbroad because it contains the phrase “or any other material that contains an image of child pornography.” Brune argues that anyone who accesses the internet could be subject to prosecution under § 2252A(a)(5)(A) because there is child pornography on the internet. The Tenth Circuit rejected this argument. Read contextually, the meaning of the statute is easy to ascertain. And, even if there were some ambiguity in the meaning of the statute, the court’s preference is always to support the constitutionality of a statute.

The Tenth Circuit affirmed the district court’s denials of Brune’s motions to dismiss.

Colorado Court of Appeals: Statutory Language Precludes Discontinuation of Colorado Sex Offender Registration for Out of State Conviction

The Colorado Court of Appeals issued its opinion in People v. Curtiss on Thursday, August 14, 2014.

Sexual Assault on a Child—Sex Offender Registry—Petition to Discontinue Registration.

Curtiss pleaded guilty to the felony charge of first-degree sexual assault of a child in Oneida County, Wisconsin. He was required to register as a sex offender as a condition of his probation. Thereafter, Curtiss moved to Colorado and registered as a sex offender in this state. Curtiss later filed a petition in district court requesting to be removed from the Colorado sex offender registry, which was denied by the district court.

On appeal, Curtiss argued that the district court erred in denying his petition to discontinue registration. CRS §16-22-113(3) applies to persons whose convictions were obtained from out-of-state courts and prohibits removal from the registry for an offense comparable to sexual assault on a child in Colorado. Because Curtiss was convicted of an offense comparable to Colorado’s offense of sexual assault on a child, he was not eligible for discontinuation of sex offender registration. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.