23CA1662 Peo v Westerfield 12-04-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1662 Arapahoe County District Court No. 16CR2483 Honorable Eric B. White, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Brett Russell Westerfield,
Defendant-Appellant.
ORDER AND SENTENCE AFFIRMED
Division VI Opinion by JUDGE WELLING Kuhn and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 4, 2025
Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney General, Yaried A. Hailu, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee
The Noble Law Firm, Tara Jorfald, Lakewood, Colorado, for Defendant- Appellant ¶1 Defendant, Brett Russell Westerfield, appeals the trial court’s
order revoking his probation and resentencing him to Sex Offender
Intensive Supervision Probation (SOISP). We affirm.
I. Background
¶2 In 2016, police found over 55,000 photos and over 300 videos
of child sexual exploitation on Westerfield’s computer. He was
charged with three counts of third degree felony child exploitation
and one count of fourth degree felony child exploitation. Westerfield
rejected a plea deal that would have required him to serve four
years in prison. But he went on to plead guilty to all the charges,
and the court sentenced him to twelve years on SOISP.
¶3 Upon being placed on SOISP, Westerfield was advised of and
acknowledged that he understood the various terms of his
probation sentence. Among those terms, was compliance with a
“Computer Use Agreement for Sex Offenders” (computer use
agreement). As relevant to the issues before us, the computer use
agreement contained the following provisions, each of which
Westerfield acknowledged with his initials:
1 ¶4 In order to monitor Westerfield’s compliance with the
computer use agreement, AJ Monitoring (the monitoring service)
installed monitoring software on his electronic devices, including
his personal computer. The monitoring service would send
probation periodic reports regarding Westerfield’s computer use.
¶5 By all accounts, Westerfield’s progress in SOISP was a
success. Based on this progress, Westerfield was granted
permission to have and use a personal computer, an external hard
drive, and USB devices (all still subject to the computer use
agreement). After over four years on SOISP, his probation officer
recommended the discontinuation of SOISP and that he be placed
on regular probation. The trial court granted the motion. Even
after transitioning from SOISP to regular probation, the court
required Westerfield’s compliance with the computer use
agreement, including the terms excerpted above.
2 ¶6 About four months after he was transitioned from SOISP to
regular probation, the probation department received a report from
the monitoring service indicating that Westerfield had accessed a
folder on his computer named “Boys” and that the “Boys” folder
contained images of children. The report also indicated that the
monitoring service had detected in the “Boys” folder a picture of a
young boy pulling up a young girl’s skirt.
¶7 Three days after the department received the report from the
monitoring service, Westerfield told his probation officer that he was
in possession of pictures of minors in a folder named “Boys” and
said that the folder contained “a series of odd things boys do.”
Three days later, Westerfield’s probation officer requested that
Westerfield bring his computer to the probation office so that it
could be inspected. Westerfield complied with this request. When
Westerfield brought his computer into the probation department,
the probation officers were unable to locate the “Boys” folder,
3 leading probation to believe that Westerfield had deleted it.1 Eleven
days later, two probation officers viewed Westerfield’s laptop, and
they found pictures of children in various folders on Westerfield’s
laptop.
¶8 Based on this series of events, the department filed a
complaint to revoke Westerfield’s probation. The complaint
referenced finding “multiple pictures of minor-aged children . . .
within multiple folders” and alleged that Westerfield “was not given
permission to possess or store any pictures of minor-aged children.”
The complaint further alleged that, by possessing pictures of minors
on his computer, Westerfield had violated the terms of his probation
as set forth in the computer use agreement. About seven months
after filing the initial probation revocation complaint, the
1 After the probation department filed the initial complaint,
Westerfield brought his laptop to the department again, and this time the probation officer was able to locate the folder labeled “Boys.” The folder contained numerous photos of minors (including the one depicting a young boy pulling up a young girl’s skirt). Based on this second inspection, the probation department determined that — contrary to earlier suspicion — Westerfield hadn’t deleted the “Boys” folder or any of the files contained in the folder. To the extent that the probation complaint contained an allegation or inference that Westerfield violated probation by deleting files or a folder, the allegation was abandoned by the time the complaint proceeded to a hearing.
4 department filed an amended complaint; no additional allegations
were made in the amended complaint.2
¶9 After the court advised him concerning the complaint,
Westerfield entered a denial and requested a hearing. After a two-
day revocation hearing, the trial court found that the pictures in the
“Boys” folder weren’t “deviant” or “sexually explicit or exploitive.”
Still the court found that by possessing pictures of minors — even
ones that were “arguably innocent” — Westerfield violated the terms
and conditions of his probation. Based on this finding, the trial
court revoked Westerfield’s probation and sentenced him to eight
years of SOISP with a thirty-day jail sentence as a condition of
probation.
II. Issues on Appeal
¶ 10 Westerfield advances three contentions on appeal. He
contends that the trial court erred by (1) finding that he violated the
terms of his probation because the evidence was insufficient to
2 The complaints are substantially similar to each other except that
the amended complaint doesn’t contain language from the computer use agreement forbidding Westerfield from deleting “records of computer use” without authorization from probation. The amended complaint also removed probation’s request that the court issue a warrant for Westerfield’s arrest.
5 sustain the violation as alleged in the amended complaint; (2) failing
to make sufficient findings when it revoked and reinstated his
probation sentence; and (3) violating his due process rights by
permitting the probation department to arbitrarily apply the Sex
Offender Management Board (SOMB) guidelines in determining
whether to file the complaint to revoke his probation without
consulting his former therapist and treatment provider. We
address, and reject, his contentions in turn.
A. The Record Supports the Trial Court’s Finding that Westerfield Violated Probation
¶ 11 Westerfield argues that the prosecution didn’t offer sufficient
evidence to prove that he violated his probation by using his
computer to possess material that is sexual in nature or part of the
grooming cycle for his crimes. Alternatively, he argues that because
the trial court found that he violated his probation by virtue of the
terms of the safety plan requests, the department never gave him
sufficient notice of that alleged violation. We disagree that the trial
court erred.
6 1. Standard of Review
¶ 12 To sustain a probation revocation petition, the prosecution
must prove by a preponderance of the evidence that a probationer
violated a condition of probation. People v. Howell, 64 P.3d 894,
896 (Colo. 2002). We review sufficiency of the evidence claims de
novo. McCoy v. People, 2019 CO 44, ¶ 2. In doing so, we review the
record to determine whether the evidence offered at the revocation
hearing, when viewed in the light most favorable to the prosecution,
was substantial and sufficient to sustain the probation violation.
People v. Perez, 2016 CO 12, ¶ 8.
¶ 13 Notice in the context of a probation revocation proceeding is
critical in two respects. First, “[a] defendant must be given written
notice of the conditions of his probation.” People v. Calderon, 2014
COA 144, ¶ 24; see § 18-1.3-204(3), C.R.S. 2025. After all, “a
criminal defendant is presumed to know that the violation of any
term of his probation may result in revocation.” People v.
Zimmerman, 616 P.2d 997, 999 (Colo. App. 1980). And for that
principle to operate, a probationer must be given notice of the terms
and conditions of probation so that the probationer can comply with
them. Id.
7 ¶ 14 Second, a defendant facing revocation is entitled to written
notice of the alleged violations. Finney v. People, 2014 CO 38, ¶ 28;
see § 16-11-205(5), C.R.S. 2025. Under section 16-11-205(5), a
complaint alleging that a probationer has violated a condition of
probation must “identify the violation charged and the condition of
probation alleged to have been violated,” among other things.
Whether a complaint gives the notice required by section 16-11-
205(5) is a mixed question of law and fact, so we review the trial
court’s conclusions of law de novo but defer to its findings of fact.
Calderon, ¶ 32.
2. Additional Facts
¶ 15 The amended complaint contains a single count, containing
both the probation terms the department alleges Westerfield
violated and the conduct it alleges violated those terms. The count
begins by setting forth the following terms of the computer use
agreement:
On December 28, 2018, the defendant signed a Computer Use Agreement for Sex Offenders acknowledging the following:
“Client shall not use the computer for any purpose which might further sexual activity. Such use includes, but is not limited to,
8 possession or viewing of material that is sexual in nature”, and,
“Client shall be prohibited from possessing or viewing certain materials related to, or part of, the grooming cycle for his/her crime. Such materials include, but are not limited to, the following: Stories or images related to your crime or similar crimes and [i]mages which depict individuals similar to your victims”.
(Emphasis added.)
¶ 16 The complaint goes on to allege that Westerfield violated the
terms of his probation, as follows:
On May 10, 2022, the probation officer reviewed a computer monitoring report from AJ Monitoring. The report indicated that between March 28, 2022 and April 27, 2022, the defendant accessed a folder on his laptop named, “Boys”, which was located in a “My Pictures” folder. A picture of a young boy pulling up a young girl’s skirt was caught during the monitoring search under the file name, “Curious”. . . .
On May 13, 2022, the defendant advised the probation officer he was in possession of pictures of minors in the folder “Boys” and that the folder contained “a series of pictures depicting odd things boys do”.
On May 24, 2022, [two] probation officer[s] . . . viewed the defendant’s laptop. Multiple pictures of minor-aged children were located within multiple folders. The defendant was not given permission to possess or store any pictures of minor-aged children.
9 ¶ 17 At the revocation hearing, four witnesses testified: (1) Rachelle
Boespflug, Westerfield’s probation officer; (2) Michelle Kellond, a
private investigator retained by the defense; (3) Jacque Sumida,
Westerfield’s therapist and former SOISP treatment provider; and
(4) Linda Westerfield, Westerfield’s wife.
¶ 18 Based on the evidence presented at the hearing, the trial court
found that Westerfield violated the two conditions of probation set
forth in the amended complaint by possessing images of children on
his computer, as follows:
With respect to these complaints, what it comes down to is the allegation of the defendant while on probation inappropriately was in possession of[,] on a computer[,] a number of files containing children. . . .
There are two relevant conditions alleged in the [complaints] . . . . [C]lient shall not use the computer for any purposes which might further sexual activity. Such uses includes but is not limited to possession or viewing of material that is sexual in nature and the next condition immediately underneath it, client shall be prohibited from possessing or viewing certain materials related to or a part of the grooming cycle for his or her crime. Such materials include but are not limited to — the actual agreement here says image — images of your victims, stories or images related to your crime or similar crimes, images which depict individuals similar to your victims, stories
10 written about or for individuals similar to your victim, materials focused on the culture of your victim.
....
So what we’ve got here is the defendant having pled guilty to offenses regarding [sexual exploitation of children] and now we have pictures that are showing up with children, albeit arguably innocent pictures of children that he knew he couldn’t possess and that he, himself, indicated in his safety plan that were dangerous for him to possess.
So the Court does find that the People have proven by a preponderance of the evidence that the defendant violated his probation as alleged in [the complaints] for the reasons I’ve just indicated.
3. Analysis
a. Sufficiency of the Evidence
¶ 19 Westerfield first argues that simply possessing pictures of
minors — which is all that was proved at the hearing — on its own,
is insufficient to establish that he violated the terms of his
probation. Instead, he argues that in order to establish a violation
of the provisions of the computer use agreement cited in the
probation revocation complaint, the prosecution had to prove that
11 the images he possessed were sexual in nature. We disagree for
several reasons.
¶ 20 To begin, we disagree with Westerfield’s constrained reading of
the computer use agreement and its restrictions. The materials he
is prohibited from possessing under the computer use agreement
aren’t limited to sexually explicit material. To be sure, the
computer use agreement does prohibit Westerfield from
“possessi[ng] or viewing . . . material that is sexual in nature,” but
that is not the full extent of the limitations the agreement imposes.
The computer use agreement also prohibits Westerfield from
possessing material related to or part of “the grooming cycle” for his
crime. Those “grooming cycle” materials are explicitly defined to
include “[i]mages which depict individuals similar to your victims.”
This definition expressly captures images of children as part of
Westerfield’s grooming cycle. And this prohibition is in no way tied
to the materials being sexual in nature — just that they “depict
individuals” similar to his victims, that is, children.
¶ 21 And the court found, with record support, that Westerfield did
possess images of children who were similar to his victims. Recall
that the charges that Westerfield pleaded guilty to were based on
12 Westerfield possessing over 55,000 photos and over 300 videos of
child sexual exploitation on his computer. Westerfield’s therapist
confirmed during her testimony that the images that Westerfield
admitted to possessing in connection with his criminal conviction
included “many photos and videos of prepubescent boys as well as
pubescent boys.” Each of these children depicted in the materials
Westerfield possessed was a “victim” of his criminal offense. Cf.
§ 18-6-403(1.5), C.R.S. 2025 (noting that each time child
exploitation “material is shown or viewed, the child [depicted] is
harmed”). Accordingly, the evidence presented at the hearing
supports the trial court’s finding that he violated the terms of his
probation by possessing the images contained in the “Boys” folder.
¶ 22 Still, Westerfield contends that the prosecution didn’t prove
that the pictures were part of his “grooming cycle.” His contention
in this regard may have had some purchase if what constituted
“materials related to, or part of, the grooming cycle for
[Westerfield’s] crime” was undefined. But it’s not. As discussed,
the computer use agreement goes on to provide that such materials
include, but are not limited to, “[i]mages which depict individuals
similar to your victims.” And this prohibition doesn’t require that
13 the images be sexual or exploitive in nature to fall within its scope.
Thus, the sufficiency question turns not on whether the images
were sexual but instead whether they depicted individuals similar
to Westerfield’s victims — and they did.
¶ 23 In short, the terms of the computer use agreement specifically
prohibited Westerfield from not only possessing images that are
sexual in nature but also images that “depict individuals similar to
[his] victims.” The evidence presented at the hearing established
that there were multiple pictures of minor-aged children located
within multiple folders on Westerfield’s laptop. Westerfield wasn’t
given permission to possess or store any pictures of minor-aged
children. Because all the prosecution had to prove was that
Westerfield possessed images of minors similar to his victims on his
computer, and it did, the evidence was sufficient and substantial
enough to prove Westerfield violated his probation by a
preponderance of the evidence.
b. Sufficiency of the Notice
¶ 24 Westerfield appears to also contend that if the terms of his
probation prohibited him from possessing any images of children,
that restriction came not from the computer use agreement but was
14 based on the terms of various safety plans, violations of which were
not alleged in the probation revocation complaint.
¶ 25 During the revocation hearing, the prosecution introduced into
evidence several “safety plans” that Westerfield signed as part of his
requests to use various electronic devices including a phone, a
computer, and an external hard drive. Each safety plan stated,
High Risk Factors can be Internal (thoughts and feelings), and external (people, places situations, sights, sounds, etc.) experiences that threaten your self-control and present a threat to you maintaining your abstinence from inappropriate or deviant thoughts, feelings, and behaviors.
List as many of your High Risk Factors you can think of that are connected with your request. Consider where you will be, who you may come in contact with, feelings and situations that may arise, etc. Be sure to consider all of the restrictions of probation and your Treatment Contracts.
¶ 26 The first high-risk factor that Westerfield identified in
connection with his use of electronic devices was “contact with
minors/pictures of minors.” As Westerfield’s response illustrates,
he knew that he was prohibited from possessing images of minors
and that the prohibition was intended to prevent him from falling
back into his grooming cycle.
15 ¶ 27 Westerfield’s argument appears to be that the only provision of
his probation that prohibited him from possessing nonsexual
images of minors was the safety plan, and the complaint didn’t
allege that he violated the safety plan. Thus, he argues, the
probation revocation complaint didn’t give him sufficient notice of
the alleged violation he was defending against. Where this
argument falls short, however, is that both the safety plans and the
computer use agreement prohibited him from possessing any
images of children. The fact that the safety plans are more specific
than the computer use agreement doesn’t make the latter
insufficient to put Westerfield on notice of the condition of
probation he was accused of violating — that is, the condition that
precluded him from viewing or possessing images that depicted
individuals similar to his victims. And, as previously explained,
Westerfield’s statements in the safety plan confirm that he
understood that he was prohibited from possessing images of
children, whether sexual or not.
¶ 28 As discussed above, due process demands that a probationer
be given two types of notice when they are alleged to have violated
probation. First, a probationer must have been given notice of the
16 terms of their probation. Calderon, ¶ 24. The second type of
required notice is written notice of the alleged condition of
probation he is accused of violating. Finney, ¶ 28; see § 16-11-
205(5). Westerfield received both types of notice. The terms of the
computer use agreement restricted him from possessing or viewing
images that depicted individuals similar to his victims, and the
safety plans demonstrate that Westerfield understood that provision
to be a blanket ban on possessing or viewing images of minors —
deviant or otherwise.3 The amended probation revocation complaint
cited this provision of the computer use agreement and referenced
the fact that Westerfield had images of minors on his computer as
the offending conduct. Accordingly, we reject Westerfield’s
argument that he didn’t have notice of the terms of probation he
was accused of violating.
3 We note that, in finding the probation violation, the district court
stated that it wasn’t considering any “family photos” on Westerfield’s computer. Neither party raises issues concerning family pictures on appeal, so we need not address that issue further. See generally People v. Cooley, 2020 COA 101 (discussing constitutional limitations on prohibiting probationers from having contact with their children).
17 B. Revocation of Probation
¶ 29 Westerfield next argues that the trial court abused its
discretion by revoking and reinstating his probation because, even
if the prosecution presented sufficient evidence at the hearing to
prove a violation, the trial court failed to make the necessary
findings on why revoking Westerfield’s probation was necessary.
Again, we disagree.
1. Additional Facts
¶ 30 About two months after the revocation hearing, the trial court
held a sentencing hearing, at which the trial court heard arguments
from the prosecution that Westerfield hadn’t disclosed certain
information about his sexual history on his newest offense-specific
evaluation (OSE). The prosecution argued that Westerfield hadn’t
disclosed all his sexual history so that he could lower his risk
assessment.
¶ 31 The trial court agreed with the prosecution and inquired as to
whether a jail sentence was appropriate:
It seemed to me — in — in very brief review, and I didn’t have much time — that there are less robust disclosures made related to this more recent OSE. So what this comes down to is whether or not that means that I should
18 now sentence [Westerfield] to the penitentiary based upon the findings that I made related to his violations here. So that’s really what it’s going to come down to. That’s all we’re down to.
The Court heard — and I think that [defense counsel]’s right — it was two separate days of testimony related to these violations.
¶ 32 Ultimately, the trial court revoked Westerfield’s probation and
sentenced him to eight years of SOISP — one more year than what
he had left on his original sentence:
So what we’ve got then is: What price is [Westerfield] to pay for having done these things that by the People’s reckoning, I suppose, are indicative of his deceit, his sneakiness, his desire to fail to fully disclose the information that he should be disclosing in the course of treatment? What price is to be paid for that decision as it also relates then to this lack of additional full robust disclosure that the People argue should have been presented, at least by implication, to the current OSE evaluator?
The Court is comfortable that Probation can sort this out in the course of treatment and figure out what it is going wrong if Probation is right, if the People are right, with probation and how it is that [Westerfield] continues to deceive probation.
So here’s what I’m going to do. I’m going to sentence [Westerfield] to eight years of SOISP
19 probation. That gives [Westerfield] some credit for the time on the things he did right and the progress that he made and doesn’t overly punish him.
¶ 33 The trial court also sentenced Westerfield to thirty days in jail
as a condition of probation:
All right. Well, here’s the thing. At the end of the day, a jail sentence is punitive, right? And so the violations here, although characterized by the [d]efense as minor and characterized by the People as concerning, I suppose, for a lack of a better word, are violations nonetheless. So I think that there can and, in certain instances, should be a punitive part of a sentence. And that is where I’m at here. . . .
So I do believe a punitive sentence is appropriate. I think a [thirty]-day jail sentence is appropriate.
2. Standard of Review
¶ 34 The decision to revoke a defendant’s probation after a violation
has been found is within the trial court’s discretion. People v. Fair,
2013 COA 41, ¶ 12. After determining that a probationer has
violated a condition of their probation, if the trial court revokes
probation, it may impose any sentence or grant any probation
which “might originally have been imposed or granted.” § 16-11-
206(5), C.R.S. 2025.
20 ¶ 35 The trial court must “state on the record the basic reasons for
imposing the sentence.” People v. Fuller, 791 P.2d 702, 708 (Colo.
1990) (quoting People v. Watkins, 613 P.2d 633, 637 (Colo. 1980)).
¶ 36 Westerfield argues that the trial court abused its discretion in
revoking and reinstating his probation because it didn’t make any
findings of fact for the sentence it imposed. See Fuller, 791 P.2d at
708. The record demonstrates otherwise.
¶ 37 First, the trial court found that Westerfield hadn’t fully
disclosed his sexual history to the OSE evaluator. Then the trial
court sentenced Westerfield to eight years of SOISP so that the
probation department could decide through treatment how to deal
with Westerfield’s lack of transparency as it related to the OSE.
¶ 38 But the trial court was clear that the jail sentence was
imposed to punish Westerfield for the probation violation — not the
lack of disclosure to the OSE evaluator. When imposing sentence,
the court explicitly said it was doing so “based upon the findings
that I made related to his violations here” and discussed the “two
separate days of testimony related to these violations” it had heard.
The “two separate days of testimony” the court referenced were
21 focused on Westerfield’s probation violation. During the revocation
hearing, the prosecution never alleged or offered evidence that
Westerfield hadn’t disclosed all his sexual history to the OSE
evaluator. That didn’t happen until the sentencing hearing. Thus,
it’s clear that the trial court extended Westerfield’s probation
because it found a lack of disclosure to the OSE evaluator but
sentenced him to thirty days in jail for the probation violation.
¶ 39 Because the court’s sentencing decisions were supported by
adequate factual findings, we discern no abuse of discretion.
C. SOMB Guidelines
¶ 40 Last, Westerfield argues that probation failed to follow the
SOMB guidelines because they didn’t (1) consult with the treatment
provider — Westerfield’s therapist Sumida — about the potential
violation; (2) conduct a full assessment before filing a revocation
complaint; or (3) work with the treatment provider to determine the
appropriate response to Westerfield’s probation violation.4
4 Westerfield also argues that the probation department violated his
due process rights by alleging in the complaint that a photo of an actress found on his computer was also grounds for revocation. But because the court ultimately revoked his probation solely based on the images in the “Boys” folder, his argument is irrelevant, and we decline to address it.
22 1. Standard of Review
¶ 41 We review whether a defendant’s due process rights were
violated de novo. Calderon, ¶ 23. When a sex offender is sentenced
to SOISP, their probation officer and their treatment provider must
make recommendations to the court that are based on “criteria
established by the [SOMB].” § 18-1.3-1010(2)(a), C.R.S. 2025.
2. Analysis
¶ 42 Westerfield argues that the probation department arbitrarily
chose which SOMB guidelines it applied to Westerfield’s probation
and revocation and that section 18-1.3-1010(2)(a) requires the
probation officer to make their recommendation on whether to
revoke probation based on the SOMB guidelines. We disagree for
three reasons.
¶ 43 First, section 18-1.3-1010(2)(a)’s applicability is predicated on
the probationer being sentenced to SOISP. While Westerfield was
initially sentenced to SOISP, he had been moved to regular
probation months earlier. Thus, any requirements for revoking
SOISP weren’t applicable to Westerfield at the time that probation
filed the probation revocation complaint.
23 ¶ 44 Second, Westerfield was no longer required to attend
treatment as a condition of regular probation. His continued
involvement with his therapist, while laudable, was voluntary.
Thus, Sumida wasn’t his SOMB treatment provider at the time
probation filed the revocation complaint.
¶ 45 Finally, Westerfield argues that section 16-11.7-106(8), C.R.S.
2025, requires probation to abide by the SOMB guidelines.
However, section 16-11.7-106(8) requires “supervising officers” to
follow the “guidelines and standards developed pursuant to this
section when working with sex offenders.” Section 16-11.7-106 is
concerned almost entirely with the statutory and educational
qualifications for treatment providers and doesn’t contemplate the
SOMB procedures that Westerfield claims the probation department
applied arbitrarily.
¶ 46 Since the SOMB guidelines in question aren’t mandatory for
probation generally, or for sex offenders not in SOISP specifically,
we discern no due process violations.
III. Disposition
¶ 47 The order and sentence are affirmed.
JUDGE KUHN and JUDGE SCHUTZ concur.