People v. Dorsey

Opinion

SUMMARY

October 21, 2021

2021COA126

No. 18CA2333, People v. Dorsey — Crimes — Failure to Register

as a Sex Offender — Prior Convictions

As a matter of first impression, a division of the court of

appeals considers whether the Colorado General Assembly intended

to make prior convictions for failure to register as sex offender

under section 18-3-412.5, C.R.S. 2020, an element of the offense

for a subsequent violation or a sentence enhancer. Following the

analytical framework in Linnebur v. People, 2020 CO 79M, and

People v. Caswell, 2021 COA 111, the division holds that because a

prior conviction for failure to register as a sex offender in section

18-3-412.5 is a sentence enhancer, the defendant’s judgment of

conviction is affirmed.

The summaries of the Colorado Court of Appeals published opinions

constitute no part of the opinion of the division but have been prepared by

the division for the convenience of the reader. The summaries may not be

cited or relied upon as they are not the official language of the division.

Any discrepancy between the language in the summary and in the opinion

should be resolved in favor of the language in the opinion.

COLORADO COURT OF APPEALS 2021COA126

Court of Appeals No. 18CA2333

City and County of Denver District Court No. 17CR6132

Honorable A. Bruce Jones, Judge

Honorable Shelley I. Gilman, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Charles K. Dorsey,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI

Opinion by JUDGE JOHNSON

Fox and Welling, JJ., concur

Announced October 21, 2021

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith E. O’Harris, Deputy

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

1

¶ 1

Recently, in People v. Caswell, 2021 COA 111, ¶ 20, a division

of this court held that, notwithstanding the supreme court’s holding

in Linnebur v. People, 2020 CO 79M, a prior conviction under the

cruelty to animals statute is a sentence enhancer, not an element

required to be proven to a jury beyond a reasonable doubt. The

sentence enhancer elevates an animal cruelty conviction for a

subsequent offense from a misdemeanor to a felony. We are

presented with a similar issue in the context of the offense of failure

to register as a sex offender. Relying on the analytical framework

from Caswell, we determine for the first time that a prior conviction

for failure to register as a sex offender in section 18-3-412.5, C.R.S.

2020, is not an element of the offense for a subsequent violation of

that offense but instead a sentence enhancer.

¶ 2

As a result, we conclude that the district court properly found

that Charles K. Dorsey (Dorsey) had a prior conviction for failure to

register as a sex offender and thus correctly sentenced him for his

subsequent failure to register conviction as a class 5 felony. We

also address and reject Dorsey’s contention that the district court

improperly admitted information from a national crime database

and, therefore, affirm the judgment of conviction.

2

I. Background

¶ 3

In 1997, Dorsey pled guilty to criminal attempt to commit

sexual assault in the second degree — a class 5 felony — in

Arapahoe County case number 96CR2866. The court sentenced

Dorsey to two years in the custody of the Department of Corrections

(DOC) and required him to register as a sex offender under section

16-22-103(2), C.R.S. 2020. The sentence also required that he

re-register as a sex offender annually within five business days

before or after his July 31 birthday.

¶ 4

In 2010, Dorsey was charged with a class 6 felony in Denver

County case number 10CR2436 for failing to re-register as a sex

offender in violation of section 18-3-412.5. He pled guilty to the

offense as a class 1 misdemeanor under section 18-3-412.5(3)(a).

¶ 5

Dorsey next failed to re-register as a sex offender in 2017.

Dorsey had re-registered as a sex offender in 2016, and around that

time, received notice that his next registration would be due within

five business days before or after July 31, 2017.

¶ 6

When the Denver Police Department’s sex offender tracking

and registration database flagged Dorsey’s failure to re-register in

the jurisdiction where he had registered in 2016, Detective David

3

Bourgeois (Detective Bourgeois) conducted further investigation to

determine whether Dorsey had re-registered in a different

jurisdiction or had been arrested between July 26 and August 5,

2017, and therefore was unable to re-register. Following Detective

Bourgeois’s determination that Dorsey did not register in other

jurisdictions or was not arrested during the window mentioned,

Dorsey was charged with failure to register as a sex offender

(second offense), a class 5 felony.

¶ 7

On appeal, Dorsey argues that (1) the evidence before the jury

was insufficient to support his conviction for failure to register

(second offense) beyond a reasonable doubt because it did not

include his prior conviction; and (2) the district court erred by

admitting Exhibit 7 — a report from a national crime database —

into evidence.

II. Prior Conviction for Failure to Register as a Sex Offender

¶ 8

Dorsey argues that the prosecution failed to carry its burden

of proving to a jury, beyond a reasonable doubt, the prior conviction

element of the class 5 felony for failure to register (second offense).

We disagree.

4

A. Additional Facts

¶ 9

Dorsey’s counsel initially requested that the issue of whether

Dorsey had been previously convicted of failure to register be

bifurcated from the determination of whether he had failed to

register in 2017. Although the court originally agreed to bifurcate

the trial, it sua sponte reconsidered its decision. Instead, the court

determined that the prior offense was a sentence enhancer to be

tried to the court, relying on People v. Schreiber, 226 P.3d 1221

(Colo. App. 2009), and People v. Vigil, 2013 COA 102.

¶ 10

Following the jury trial, the prosecution introduced two

exhibits to prove Dorsey’s prior conviction: (1) a certified impact

summary from the DOC for “Charles Kevin Dorsey,” which

contained three photographs and three sets of fingerprints, tied to

three mittimi; and (2) a document showing a 2010 misdemeanor

conviction of “Charles Kevin Dorsey” for failure to register as a sex

offender. After reviewing these documents, the court found that

Dorsey’s prior conviction had been proven beyond a reasonable

doubt.

5

B. Standard of Review and Applicable Law

¶ 11

“Whether a statutory provision constitutes a sentence

enhancer or a substantive element of an offense presents a question

of law that we review de novo.” Linnebur, ¶ 9. “The General

Assembly has plenary authority to define criminal conduct and to

establish the elements of criminal liability.” Id. The elements of a

crime are those aspects “necessary to establish criminal liability.”

People v. Hopkins, 2013 COA 74, ¶ 8.

¶ 12

When interpreting a statute, we “interpret its plain language to

give full effect to the intent of the General Assembly.” People v.

Moore, 2021 CO 26, ¶ 25. In so doing, we look to the plain and

ordinary meanings of words and phrases. Id. “If the plain language

of the statute demonstrates a clear legislative intent, we look no

further in conducting our analysis.” Linnebur, ¶ 9 (quoting Springer

v. City & Cnty. of Denver, 13 P.3d 794, 799 (Colo. 2000)).

¶ 13

When a statute is ambiguous regarding whether a fact is an

element of the crime or a sentence enhancer, we look to the “(1)

language and structure, (2) tradition, (3) risk of unfairness, (4)

severity of the sentence, and (5) legislative history” to make that

6

determination. Id. at ¶ 10 (quoting United States v. O’Brien, 560

U.S. 218, 225 (2010)).

C. Analysis

¶ 14

Section 18-3-412.5(2)(a) indicates that a second or subsequent

offense for failure to register is a class 5 felony. The relevant

statutory provisions state in full:

(1) A person who is required to register

pursuant to article 22 of title 16 and who fails

to comply with any of the requirements placed

on registrants by said article 22, including but

not limited to committing any of the acts

specified in this subsection (1), commits the

offense of failure to register as a sex offender[.]

. . . .

(2)(a) Failure to register as a sex offender is a

class 6 felony if the person was convicted of

felony unlawful sexual behavior, or of another

offense, the underlying factual basis of which

includes felony unlawful sexual behavior, or if

the person received a disposition or was

adjudicated for an offense that would

constitute felony unlawful sexual behavior if

committed by an adult, or for another offense,

the underlying factual basis of which involves

felony unlawful sexual behavior; except that

any second or subsequent offense of failure to

register as a sex offender by such person is a

class 5 felony.

§ 18-3-412.5 (emphasis added).

7

¶ 15

Dorsey argues that the fact of his prior conviction for failure to

register is part of the sex offender statute’s definition of the offense.

Although the statute does not explicitly state whether prior

convictions are an element of the offense or a sentence enhancer,

we conclude that the General Assembly intended to make prior

convictions for this particular offense a sentence enhancer.

¶ 16

True, “the General Assembly can make and has made proof of

prior convictions an element of crimes.” Hopkins, ¶ 15 n.1; see also

People v. Dist. Ct., 953 P.2d 184, 189 (Colo. 1998) (prior conviction

is an element of the possession of weapons by a previous offender

statute, § 18-12-108, C.R.S. 2020). Indeed, recently, in Linnebur,

our supreme court held that the three prior convictions for driving

under the influence (DUI) are an element of felony DUI that must be

charged in the indictment or information and presented to a jury.

Hopkins, ¶¶ 18-31.

¶ 17

But Caswell, ¶¶ 17-20, analyzed whether prior convictions are

an element of the offense or a penalty enhancer involving the

cruelty to animals statute, § 18-9-202, C.R.S. 2020. There, the

division concluded that the language and structure of the cruelty to

animals statute differs from the felony DUI statute, § 42-4-

8

1301(1)(a), C.R.S. 2020. Caswell, ¶ 17. Specifically, it reasoned

that “unlike the prior conviction penalty enhancer provisions of the

DUI statutory scheme, which omit the prior convictions required for

felony DUI, the prior conviction provision in the animal cruelty

statute is included in the subsection outlining penalty and

sentencing provisions.” Id. In that case the division also

determined that unlike the DUI statutory scheme, where the

General Assembly requires the prior convictions to be set forth in

the charging document, the cruelty to animals statute contains no

such requirement. Id.; see also § 42-4-1301(1)(j).

¶ 18

Our analysis leads us to reach a similar conclusion involving

the failure to register statute for three reasons.

¶ 19

First, similar to the statute at issue in Caswell, the structure

of the statutory scheme indicates that a prior conviction is a

sentence enhancer. Unlike the felony DUI statute or possession of

a weapon by a previous offender offense, as examples, the prior

conviction provision of the failure to register as a sex offender

statute is included in the subsection for penalties. Compare § 18-3-

412.5(1)-(2), with § 42-4-1301(1)(a), and § 18-12-108(1). While

subsection (1) of the failure to register as a sex offender statute

9

outlines the elements of the offense, subsection (2) is the sentencing

provision. And similar to the statute at issue in Caswell, ¶ 17,

there is no requirement that the prosecutor include in the charging

document for a subsequent offense the fact of the prior conviction

for failure to register. While the prosecutor in this case included

the prior conviction in the complaint, there was no statutory

requirement to do so. Thus, the language and structure of the

statute strongly suggest that the General Assembly intended to

differentiate between prior convictions and elements of the offense.

¶ 20

Second, treating a prior conviction as a sentence enhancer in

the failure to register context is consistent with how other divisions

have historically interpreted the statutory scheme. Linnebur, ¶ 10;

Caswell, ¶ 18. Other divisions of this court have concluded that

each of the subsections in section 18-3-412.5(1) establishes the

crime of failure to register as a sex offender. People v. Halbert, 2013

COA 95, ¶¶ 18-19 (noting that each of the subsections of section

18-3-412.5(1) “establishes a crime”); see also People v. Poage, 272

P.3d 1113, 1116 (Colo. App. 2011) (the subsections in section 18-3-

412.5(1) create and define separate crimes related to sex offenders).

In other words, a person can be convicted of failing to register as a

10

second offense without proof of the prior conviction — thus all

elements of the offense are substantively contained in subsection

412.5(1) — and the prior conviction simply elevates the punishment

in subsection 412.5(2)(a). See People v. Becker, 2014 COA 36, ¶ 13

(“knowing or reckless child abuse not resulting in injury” or

“criminally negligent child abuse not resulting in injury” are

substantive crimes, as proof of the prior conviction only serves to

enhance the sentence).

¶ 21

Dorsey, however, contends that the elements of the offense of

failure to register are in different statutes and different titles of the

Colorado Revised Statutes, and thus the structure of the statute is

not controlling or even instructive. True, the division in Halbert

concluded that section 18-3-412.5(1)(a) is not a “catchall” provision

for all the types of offenses contained in article 22 of title 16.

Halbert, ¶¶ 14-17. But we are unpersuaded that the mere presence

of elements for a variation of the offense for failure to register

existing in a different title — namely section 16-22-108(1), C.R.S.

2020 — compels us to conclude that the fact of a prior conviction is

also an element. Unlike section 18-3-412.5, section 16-22-108(1)

contains no sentencing or penalty provisions. Compare § 18-3-

11

412.5(2)(a), with § 16-22-108(1). Thus, the structure of the

statutory scheme is one in which the substantive offenses appear

separately defined from the sentencing or penalty provisions.

¶ 22

Third, the out-of-state authority Dorsey cites is inapposite. He

relies on State v. Warbelton, 2009 WI 6, ¶¶ 27-34, a case

interpreting the Wisconsin stalking statute, to argue that certain

states have held that a prior conviction is an element of the offense

instead of a sentence enhancer. The statutory scheme at issue in

Warbelton, however, required proof of more than just the fact of a

prior conviction in order to qualify as an aggravating prior. Id.

Specifically, that statute required proof of a

prior conviction for any offense against the

same victim within the past seven years, the

use of an electronic record in order to facilitate

the stalking violation, the interception and

disclosure of another person’s communication

in order to facilitate the stalking violation, and

a victim who is under the age of 18.

Id. at ¶ 33; see also Wis. Stat. § 940.32(2m)(b)-(e) (West 2021).

¶ 23

Here, on the other hand, the failure to register statute (second

or subsequent offense) has no other fact to be proven except for the

prior conviction itself. See Apprendi v. New Jersey, 530 U.S. 466,

490 (2000) (“Other than the fact of a prior conviction, any fact that

12

increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a

reasonable doubt.”). Dorsey’s reliance on State v. Reynolds, 51 P.3d

684, 687 (Or. Ct. App. 2002), is similarly misguided. That court

held that “[a]ssault in the fourth degree may be a misdemeanor or a

felony depending on whether there is proof of an additional fact, . . .

that a defendant previously has been convicted of assaulting the

same victim.” Id. (emphasis added).

¶ 24

His reliance on People v. Hicks, 518 N.E.2d 148, 149 (Ill.

1987), is closer to the mark but also unpersuasive. There, a prior

conviction of theft in Illinois elevated a subsequent such offense

from a misdemeanor to a felony. Id.; see also 38 Ill. Comp. Stat.

16-1(e)(1) (1983). Hicks held that when the state seeks to increase

an offender’s punishment from a misdemeanor to a felony, “proof of

the prior conviction must be presented to the jury.” Hicks, 518

N.E.2d at 149. Our supreme court in Linnebur, ¶ 31, was also

concerned about the collateral consequences for a fourth DUI

offense converting from a misdemeanor to a felony. But Hicks lacks

any discussion about the structure or tradition for analyzing a

statutory scheme found in Linnebur and Caswell. And, the

13

misdemeanor/felony distinction is not at issue here, as a failure to

register as a sex offender or a second such offense are both felonies

but simply different classes. Cf. People v. Viburg, 2020 COA 8M,

¶ 25 (analyzing the differences in collateral consequences for a

misdemeanor and felony and holding that a conviction of a felony

“alter[s] the ‘very nature of [the] crime’ itself” (quoting United States

v. Rodriguez-Gonzales, 358 F.3d 1156, 1160-61 (9th Cir. 2004))).

¶ 25

Dorsey finally argues that even if the General Assembly

designates the fact of the prior conviction as a sentence enhancer,

courts must apply a functional test under the Sixth Amendment to

determine whether the fact increases the punishment for the crime.

See United States v. Haymond, 588 U.S. ____, ____, 139 S. Ct. 2369,

2377 (2019). But because we conclude that the General Assembly

intended to make prior convictions penalty enhancers rather than

elements of the offense, we need not reach Dorsey’s Sixth

Amendment claim. Linnebur, ¶ 31 (declining to reach the Sixth

Amendment argument on grounds that “subject to constitutional

limitations, whether the fact of prior convictions constitutes an

element of the offense or a sentence enhancer depends on legislative

intent”).

14

III. Admission of Exhibit 7

¶ 26

Dorsey contends that the district court erred by admitting the

prosecution’s Exhibit 7 because it (1) contained hearsay; (2) was

irrelevant; (3) required expert testimony; and (4) contained

information that was significantly more unfairly prejudicial than

probative. We disagree.

A. Additional Facts

¶ 27

During the trial, the prosecutor introduced Exhibit 7, a report

from the National Crime Information Center (NCIC) database. The

database is affiliated with the Colorado Crime Information Center

through the Colorado Bureau of Investigation and is used by

Colorado law enforcement. Detective Bourgeois relied on the

database to determine whether Dorsey re-registered in a different

jurisdiction. Detective Bourgeois testified about the process he

used to investigate whether Dorsey had failed to re-register as a sex

offender and confirmed that the absence of a corresponding entry in

that database meant that Dorsey failed to re-register elsewhere.

¶ 28

Dorsey’s counsel objected to the exhibit as hearsay, and the

court overruled the objection, admitting it into evidence.

15

B. Standard of Review

¶ 29

District courts have considerable discretion in admitting

evidence. People v. McFee, 2016 COA 97, ¶ 17. We will not disturb

a district court’s evidentiary ruling absent an abuse of discretion.

Id. “A court abuses its discretion when its decision is manifestly

arbitrary, unreasonable, or unfair, or is based on an erroneous

understanding or application of the law.” Id. (citations omitted).

¶ 30

Dorsey objected to the admission of Exhibit 7 on hearsay

grounds but failed to object to it on any of the other grounds

advanced on appeal — CRE 401, 403, 404(b), 701, or 702;

accordingly, only the hearsay issue is preserved. We review

preserved errors for harmless error and unpreserved errors for plain

error. Hagos v. People, 2012 CO 63, ¶¶ 12, 14. Reversal under the

harmless error standard is required only if the error “substantially

influenced the verdict or affected the fairness of the trial

proceedings.” Id. at ¶ 12 (quoting Tevlin v. People, 715 P.2d 338,

342 (Colo. 1986)). Reversal under plain error is required only if the

error was obvious and substantial, and “so undermined the

fundamental fairness of the trial itself so as to cast serious doubt

16

on the reliability of the judgment of conviction.” Id. at ¶ 14 (quoting

People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).

C. Analysis

1. Hearsay

¶ 31

Hearsay is an out-of-court statement made by someone other

than the declarant that is offered to prove the truth of the matter

asserted. CRE 801(c). Hearsay is presumptively inadmissible

unless it falls within a statutory or enumerated exception. People v.

Tran, 2020 COA 99, ¶¶ 18-19; CRE 802. One such exception is the

business records exception, CRE 803(6), which permits a court to

admit into evidence records of regularly conducted activity if

accompanied by an adequate foundation showing

(1) the document was made at or near the time

of the matters recorded in it; (2) the document

was prepared by, or from information

transmitted by, a person with knowledge of the

matters recorded; (3) the person who recorded

the document did so as part of a regularly

conducted business activity; (4) it was the

regular practice of that business activity to

make such documents; and (5) the document

was retained and kept in the course of a

regularly conducted business activity.

People v. Flores-Lozano, 2016 COA 149, ¶ 13.

17

¶ 32

In this case, the prosecutor asked Detective Bourgeois if

another detective had checked whether Dorsey had re-registered as

of August 8, 2017. Dorsey’s counsel objected on hearsay grounds

and the court sustained the objection. The prosecutor then

rephrased the question to ask if Detective Bourgeois himself had

confirmed whether Dorsey had re-registered as of August 8, 2017,

to which the detective responded that Dorsey “had not.” Before

moving for admission of Exhibit 7, the prosecutor questioned

Detective Bourgeois further on the process he had used to confirm

this information based on the absence of a person’s name from the

database. Dorsey’s counsel renewed her objection on hearsay

grounds. The court denied the objection and admitted the evidence.

¶ 33

True, the statements reflected in Exhibit 7 were made by

persons other than Detective Bourgeois, as the data was ostensibly

entered in the database by someone other than the detective. But

assuming without deciding that the NCIC report does not satisfy the

requirements for admission as a business record under that

hearsay exception, its admission was cumulative because of other

hearsay testimony to which Dorsey’s counsel failed to object.

18

¶ 34

For example, Detective Bourgeois testified that the document

was produced on August 8, 2017, around the time that Dorsey

failed to re-register. And the detective also testified that the

document indicated Dorsey had not registered as a sex offender on

August 8, 2017. In both instances, Dorsey’s counsel failed to object

to Detective Bourgeois’s testimony about Exhibit 7; she only

objected to the eventual admission of the exhibit itself.

¶ 35

Therefore, even assuming that the district court erred by

admitting the exhibit over defense counsel’s hearsay objection, any

error was harmless. That is, any error did not substantially

influence the verdict or affect the fairness of the trial proceedings.

Hagos, ¶ 12. To be sure, Exhibit 7 corroborated Detective

Bourgeois’s investigation into Dorsey’s failure to re-register as a sex

offender. But other testimony from the detective, as discussed

above, as well as another witness, confirmed that Dorsey failed to

re-register as a sex offender in July or August 2017 after receiving

notice of this requirement in August 2016. Additionally, Dorsey

stipulated to the fact that he was required to register as a sex

offender. See, e.g., Pernell v. People, 2018 CO 13, ¶¶ 24-26 (any

error in the admission of the testimony was harmless in light of “the

19

strength of the properly admitted evidence supporting the guilty

verdict”).

2. Other Contentions

¶ 36

Dorsey also raises unpreserved contentions that the admission

of Exhibit 7 was improper because it was (1) not relevant, (2)

unendorsed expert testimony, and (3) unduly prejudicial as it was

CRE 404(b) evidence. Because we already concluded that the

admission of Exhibit 7 was harmless, these alternative contentions

necessarily do not rise to the level of plain error.

IV. Conclusion

¶ 37

The district court’s judgment is affirmed.

JUDGE FOX and JUDGE WELLING concur.