Peo v. Hunter

Opinion

22CA2024 Peo v Hunter 07-25-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2024

Garfield County District Court No. 21CR228

Honorable John F. Neiley, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Aubrey James Hunter,

Defendant-Appellant.

ORDER AFFIRMED

Division IV

Opinion by JUDGE PAWAR

Navarro and Johnson, JJ., concur

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

Announced July 25, 2024

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mackenzie R. Shields, Deputy

State Public Defender, Denver, Colorado, for Defendant-Appellant

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¶ 1 Defendant, Aubrey James Hunter, pleaded guilty to attempted

sexual assault and child abuse resulting in serious bodily injury.

The district court sentenced Hunter to twenty-five years in prison.

At the sentencing hearing, the court found that Hunter met the

statutory requirements of and designated him as a sexually violent

predator (SVP). Hunter appeals that designation. We affirm.

I. Contentions on Appeal

¶ 2 Hunter contends that the district court erred by failing to

make findings of fact regarding his risk of recidivism before

designating him an SVP. He specifically challenges the Sex

Offender Risk Scale (SORS) score he received on the SVP risk

assessment screening instrument (SVPASI), arguing that the district

court erred (1) by deferring to the SORS score without making

factual findings because the score was based on insufficient and

disputed evidence and (2) because the score does not accurately

predict recidivism as contemplated by the SVP statute. We disagree

with Hunter’s contentions.

II. Applicable Law and Standard of Review

¶ 3 Pursuant to sections 16-11.7-101 and -103, C.R.S. 2023, the

General Assembly created the Sex Offender Management Board

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(SOMB) to create and implement a program that establishes

evidence-based standards to evaluate, identify, treat, manage, and

monitor sex offenders. See Allen v. People, 2013 CO 44, ¶ 8.

Among other duties, the SOMB is tasked with developing the

SVPASI to assist district courts in determining the likelihood that

an adult sex offender will recidivate. See § 16-11.7-103(4)(d); Allen,

¶ 8.

¶ 4 Under the SVP statute, a district court may designate an

offender an SVP when the offender (1) was eighteen years of age or

older as of the date of the offense; (2) was convicted of an

enumerated sexual offense (one of which is attempted sexual

assault); (3) committed the offense against a victim who was a

stranger or was a person with whom the offender established or

promoted a relationship primarily for the purpose of sexual

victimization; and (4) is likely to recidivate by committing an

enumerated sexual offense based on the results of the SVPASI.

§ 18-3-414.5(1)(a)(I)-(IV), C.R.S. 2023; see also Allen, ¶ 6. The

district court must make findings of fact and enter an order as to

whether an offender is an SVP. § 18-3-414.5(2).

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¶ 5 Part 3B of the SVPASI is the SORS, which is the actuarial risk

assessment scale a district court is required to consider in making

its findings regarding the offender’s risk to recidivate. See § 18-3-

414.5(1)(a)(IV); People v. Williamson, 2021 COA 77, ¶ 7. According

to the SORS form, the score is calculated using this formula:

(number of adult cases x 2.1) + (number of juvenile cases x 3.1) +

(number of cases with a revocation x 2.2) – (earliest sex offense

filing age x .23). The form indicates that a score of 22 or more

“reflects that the individual falls into a risk category with a 50-60%

likelihood of a new sex or violent crime court filing within 8 years.”

¶ 6 The district court “should give substantial deference” to the

SVPASI. Allen, ¶ 5. The court “should not re-score the [SVPASI],”

Allen, ¶ 16, and may adopt its findings without going through it line

by line, People v. Lopez, 2020 COA 41, ¶ 7. General findings by the

court may suffice, or the lack of specific findings might be harmless,

if the findings are clearly supported by ample evidence. Id.

However, where a finding in the SVPASI “is ‘unexplained,

unsourced, . . . disputed,’ and unsupported by ample evidence, due

process and section 18-3-414.5(2) require the [district] court to

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make further factual findings before adopting the assessment.” Id.

at ¶ 8 (quoting People v. Torrez, 2013 COA 37, ¶ 84).

¶ 7 A district court’s SVP designation presents a mixed question of

law and fact. Allen, ¶ 4. We defer to the court’s factual findings but

review de novo whether those factual findings support an SVP

designation. Id.

III. Sufficient Evidence Supported the SORS Score

A. The District Court’s Findings and the SORS Score

¶ 8 The district court made the following findings regarding

Hunter’s SVP designation:

Pursuant to statute, the Court is required to go

through a number of considerations and

factors to decide whether the defendant meets

the sexually violent predator assessment. The

first is whether he is 18 years of age or older,

tried as an adult; and certainly we don’t have

any issue with that. The conviction occurred

on or after July 1st, 1999, no dispute about

that. And then whether the person’s score is

22 or more on the sex offender risk scale.

I do understand [defense counsel’s] argument

about how that is calculated, it’s sort of an

arcane formula in some respects. It’s a factor

that’s numerically calculated based on the

total number of adult cases, which in this case

they’ve indicated is 15. Total number of

juvenile cases is two, total number of cases

containing a revocation from probation or

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Community Corrections is one. The earliest

sex offense filing age is 27.

When you run the numbers on that, the total

score comes out to be 33.69 and that is the

sex offender risk scale criteria. The note in

that is less than 5 percent of the individuals

assessed for this assessment score 22 or

higher.

The other factors to consider are one that

again is undisputed that in this case the victim

was a stranger. We don’t have findings that

there was an establishment of a relationship or

anything like that. I understand the

imperfections in scoring instruments like this.

They are based at least in theory on evidence

and reports and studies that have been done

to determine these calculations. I’m not in a

position, I’m not a scientist to second guess

those.

. . . .

Based on the information that I have, I do

think that the defendant meets the definition

of a sexually violent predatory [sic] and the

Court will make that finding and will [include]

that as part of its judgment today.

¶ 9 According to the record, Hunter’s SORS score, on which the

district court relied, was determined to be 33.69, which placed him

above a score of 22 and qualified him as likely to recidivate. The

evaluator calculated Hunter’s score, in part, by finding that he had

fifteen qualifying adult cases in his criminal history. Hunter

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challenges this score, arguing that the evidence supporting the

score was insufficient and disputed because “neither the [SVPASI]

form itself nor the presentence report support a factual basis for

concluding that [he] . . . had 15 qualifying adult case filings.” He

further asserts that, under Lopez, the court was required to make

additional factual findings because the facts supporting the SORS

score were disputed.

B. Preservation

¶ 10 The People argue that Hunter failed to preserve this argument

for appeal and that we should therefore review for plain error. See

Hagos v. People, 2012 CO 63, ¶ 14 (we review unpreserved

arguments for plain error). We disagree.

¶ 11 At sentencing, defense counsel objected to the use of the SORS

instrument “as a whole,” calling it “off the wall” and “all over the

place.” Counsel more specifically objected to the number of

qualifying adult cases included in Hunter’s SORS calculation:

I started to do some math, and I think of note,

what puts Mr. Hunter over the edge of that 22

number that puts it above that scale is a

number of adult cases he has had. That does

not take into account the number of cases that

have been dismissed, it does not take into

account the level of offenses, it barely takes

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into account the age of which those offenses

happened. But when you look closely at Mr.

Hunter’s history, two of those offenses are

underaged alcohol offenses that count in that

scale, one is a reckless driving. There [are]

multiple Class 3 misdemeanor offenses and

drug possession offenses.

I started just to play with the math a little bit.

If you take away I think it’s six, six total cases

from those adult numbers, that drops them

down below that 22 threshold. When you

consider some of these cases were dismissed,

or not even petty offenses there, minor in

possession cases, that drops him below that

threshold and I think that’s wrong.

¶ 12 Ultimately, the district court accepted the SORS score and

found that Hunter met the recidivism criterion. Based on this

record, the court was presented with an adequate opportunity to

address whether Hunter had fifteen qualifying adult cases for the

SORS formula, and it did so by accepting the SORS score as

calculated. See Martinez v. People, 2015 CO 16, ¶ 14 (“An adequate

objection allows the [district] court a meaningful chance to prevent

or correct the error and creates a record for appellate review.”).

Therefore, this issue is adequately preserved.

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C. Analysis

¶ 13 Per the SOMB’s handbook for the SVPASI, the total number of

adult cases filed in the SORS formula includes “district and county

cases (including Denver County) filed in Colorado or another state

in which the age at offense was 18 or older, or less than 18 and

filed as an adult,” including “cases with any misdemeanor or felony

charge, including traffic, regardless of conviction, excluding [the

current] case.” Colorado Sex Offender Management Board, 2021

SVPASI Handbook: Sexually Violent Predator Assessment Screening

Instrument (SVPASI) 13 (Jan. 2021), https://perma.cc/2V8E-7L7R

(SVPASI Handbook).

¶ 14 Hunter’s criminal history listed in his presentence

investigation report (PSI) shows seventeen total adult cases — ten

from Colorado and seven from California.

¶ 15 Of the Colorado cases, he claims that three should not have

been included in the SORS calculation. First, he challenges the

inclusion of a traffic offense from 2019. However, that traffic

offense was for careless driving resulting in injury, which is, and

was at the time, a class 1 misdemeanor traffic offense. See

§ 42-4-1402, C.R.S. 2023. The SVPASI Handbook specifically

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includes misdemeanor traffic offenses as qualifying adult cases.

Therefore, Hunter’s 2019 traffic offense was properly included in

the SORS score.

¶ 16 Hunter next challenges the inclusion of two offenses in

Colorado (occurring in 2012 and 2013) for underage possession and

consumption of alcohol, which is, and was at the time, an

unclassified petty offense. See § 18-13-122(3)(d), C.R.S. 2023.

True, the SVPASI Handbook indicates that only cases with a

misdemeanor or felony charge are to be included. But the record

suggests that these two petty offenses were not included in the

calculation, since the number of qualifying adult case filings was

fifteen out of a possible seventeen total cases.

¶ 17 Of the seven California cases, Hunter argues that “only one

included a case number, signifying a qualifying filing.” However,

the SVPASI Handbook directs evaluators to “only include cases that

have been verified through criminal history system checks.”

SVPASI Handbook 13. The record contains no evidence that this

verification did not occur here for purposes of collecting Hunter’s

criminal history for the PSI.

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¶ 18 Furthermore, at no point did Hunter dispute his criminal

history reflected in the PSI. In fact, before sentencing, defense

counsel gave notice of a correction to the PSI, which was unrelated

to Hunter’s criminal history. And counsel reiterated only that

single correction at sentencing.

¶ 19 Accordingly, the record supports the use of fifteen adult case

filings in the SORS formula. Furthermore, although the facts

supporting the SORS score were disputed, the district court did not

err by deferring to the SORS score to determine that Hunter met the

recidivism criterion because the score was supported by ample

evidence. See Lopez, ¶¶ 7-8.

IV. The SORS Score’s Prediction of Recidivism

¶ 20 Hunter also contends that the district court erred by deferring

to the SORS score without making additional factual findings

because the score does not accurately predict recidivism as

contemplated by the SVP statute. He specifically claims that the

SORS score does not “exclusively show the likelihood of someone to

commit a qualifying sex offense, as required by the [SVP] statute,”

but instead includes risk of recidivism for other violent, non-sex

related offenses. Following the reasoning adopted by two other

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divisions of this court, we reject this contention. Consequently, the

district court was not required to make additional factual findings.

A. Preservation

¶ 21 The People again argue that Hunter failed to preserve this

argument for appeal and that we should therefore review for plain

error. See Hagos, ¶ 14. However, we need not address that

argument because we conclude that there was no error, plain or

otherwise.

B. Analysis

¶ 22 In People v. Brosh, the defendant argued that “the SORS does

not meet the statutory requirement for a ‘risk assessment screening

instrument’ under section 18-3-414.5(1)(a)(IV)” because it “does not

determine whether a defendant is likely to reoffend by committing

any of the specifically enumerated offenses under the specified

circumstances.” People v. Brosh, 251 P.3d 456, 459-60 (Colo. App.

2010) (quoting § 18-3-414.5(1)(a)(IV)). The division rejected the

argument by, among other things, citing to the 2008 version of the

SVPASI Handbook outlining the factors that were considered when

creating the SORS, including the “risk of arrest for violent crimes as

a ‘reasonable proxy’ in measuring recidivism of sex offenders.” Id.

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at 460. The division concluded that, in light of those considerations

and the legislative scheme, the SOMB satisfied the objectives and

criteria in section 16–11.7–103(4)(d) for developing the SVPASI. Id.

The division in turn rejected the defendant’s contention that the

SORS was invalid because it failed to assess the requisite risk of

recidivism. Id.

¶ 23 Similarly, in People v. Mendoza, the defendant argued that,

“contrary to the dictates of section 16-11.7-103(4)(d), the SVPASI

does not predict likely future commission of an SVP offense but,

instead, only identifies offenders who are likely to fail treatment or

be rearrested for non-sexual violent crimes.” People v. Mendoza,

313 P.3d 637, 641 (Colo. App. 2011). The division rejected that

argument and, agreeing with Brosh, “conclude[d] that, based on the

[SOMB’s] research, the SVPASI was not invalid for lacking sufficient

bases upon which to predict the likelihood of committing a future

SVP offense.” Id. at 641-42.

¶ 24 Because we agree with the analysis in Brosh and Mendoza, we

likewise conclude that Hunter’s argument that the SORS does not

accurately predict recidivism fails. We acknowledge that the Brosh

and Mendoza divisions upheld the 2008 SORS instrument and that

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Hunter was evaluated under the 2018 version. But Hunter has not

presented any argument or evidence demonstrating that the version

of the SVPASI or the SORS instrument used to evaluate him were

meaningfully distinguishable from the versions analyzed in Brosh

and Mendoza. We see no legitimate reason to decline to follow the

holdings in those cases. See § 16-11.7-103(4)(d) (The SOMB shall

“revise, as necessary, the risk assessment screening instrument . . .

.”); Allen, ¶ 16 (“The SOMB develops the Screening Instrument

using the most up-to-date sex offender risk assessment research . .

. .”).

V. Disposition

¶ 25 The order is affirmed.

JUDGE NAVARRO and JUDGE JOHNSON concur.