People v. Wilson

2017 COA 89

• Court: Colorado Court of Appeals
• Decided: June 29, 2017
• Docket: 14CA1447
• Status: Published

Opinion

COLORADO COURT OF APPEALS 2017COA89

Court of Appeals No. 14CA1447 Jefferson County District Court No. 13CR2831 Honorable Margie L. Enquist, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Gregory James Wilson,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V Opinion by JUDGE DUNN Hawthorne and Navarro, JJ., concur

Prior Opinion Announced May 18, 2017, WITHDRAWN

OPINION PREVIOUSLY ANNOUNCED AS “NOT PUBLISHED PURSUANT TO C.A.R. 35(e)” ON May 18, 2017, IS NOW DESIGNATED FOR PUBLICATION

Announced June 29, 2017

Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Lisa Weisz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Gregory James Wilson is required to register as a sex offender.

After he was released from custody, he did not do so. He was then

charged with — and convicted of — failure to register as a sex

offender. Wilson now appeals that conviction. We affirm.

I. Sufficiency of the Evidence

¶2 Wilson contends that the evidence was insufficient to show

that he knowingly failed to register as a sex offender. We disagree.

A. Governing Law

¶3 We review de novo whether the evidence is sufficient to

support a conviction. Dempsey v. People, 117 P.3d 800, 807 (Colo.

2005). In doing so, we evaluate the evidence as a whole and in the

light most favorable to the prosecution to determine whether it is

substantial and sufficient to support a conclusion that the

defendant is guilty beyond a reasonable doubt. People v. Johnson,

2016 COA 15, ¶ 16. All reasonable inferences are drawn in the

prosecution’s favor. Id.

¶4 A defendant is guilty of failing to register as a sex offender

when, as relevant here, he does not register with his local law

enforcement agency within five business days after being released

1 from incarceration. § 18-3-412.5(1)(a), C.R.S. 2016; see also § 16-

22-108(1)(a)(II), C.R.S. 2016.

¶5 Although the statute does not include any specific mental

state, a division of this court has concluded that “the failure to

register as a sex offender is not a strict liability offense but includes

the mental state of ‘knowingly.’” People v. Lopez, 140 P.3d 106, 113

(Colo. App. 2005). Knowledge requires only that the defendant

knew the factual circumstances that made his conduct illegal, not

the “technical understanding of the relevant statutes.” People v.

Allman, 2012 COA 212, ¶ 36.

¶6 Despite the fact that the prosecution argued at trial that

Wilson acted knowingly, the People now argue that failure to

register is a strict liability offense and that People v. Lopez, 140 P.3d

106, was wrongly decided. Because we conclude that sufficient

evidence supports the trial court’s finding that Wilson acted

knowingly, we decline to revisit Lopez.

B. Analysis

¶7 Viewed in the light most favorable to the prosecution, the

evidence at trial showed the following:

2  upon being discharged from custody on September 23,

2013, Wilson met with his parole officer;

 his parole officer told Wilson to register as a sex offender

on or before September 30;

 his parole officer gave Wilson a four-page “notice to

register as sex offender” (offender notice);

 the offender notice states: “You must register during

business hours within 5 business days of being released

into the community or receiving this notice”;

 Wilson initialed every page of the offender notice,

including right below the five-day registration

requirement;

 Wilson signed the offender notice, acknowledging that

“[he] ha[d] received a copy of this [offender] notice, and

[he understood] that [he] is required to register as a sex

offender”;

 Wilson admitted at trial that he understood the provision

requiring him to register within five days;

 Wilson violated his parole and an officer arrested him

days after his deadline to register had passed; and

3  at the time of his arrest, Wilson had not registered as a

sex offender.

¶8 We conclude that this evidence is sufficient to support

Wilson’s conviction for knowingly failing to register as a sex offender

within five days of being released. See § 16-22-108(1)(a)(II); § 18-3-

412.5(1)(a).

¶9 Still, Wilson argues that because he was evicted from the

motel where he was staying on the last day of the five-day

registration period, he “reasonably believed” he had “an additional

five days” to register. In support of his argument, Wilson relies

upon a provision of the offender notice and the registration statute

that relate to registration requirements for offenders who move.

Specifically, Wilson points to the section of the offender notice that

states,

[i]f you move in state, you must register with the law enforcement agency in the jurisdiction to which you move within 5 business days after moving. You must notify the local law enforcement agency where you live if you change residences within that agency’s jurisdiction or establish additional residences in that jurisdiction.

4 See also § 16-22-108(1)(a)(II) (setting forth required registration

process after a move). Wilson correspondingly testified at trial that

he believed that once he was evicted and became homeless, he had

an additional five days to register.

¶ 10 But the offender notice provision and the registration statute

setting forth an offender’s separate registration requirements upon

moving do not negate the requirement that an offender “must

register . . . within 5 business days of being released into the

community.” See § 18-3-412.5(1)(a); see also § 16-22-108(1)(a)(II)

(describing five-day registration requirement after release from

custody). The requirement to register after release is plain, and it is

tethered to the release from custody — not any particular residence

upon the offender’s release. See § 16-22-108(1)(a)(II).

¶ 11 The statute in fact recognizes that an offender may not have a

“fixed residence,” § 16-22-108(1)(a)(I), but it still requires

registration within five days of “being released into the community.”

See § 16-22-108(1)(a)(II); see also § 16-22-102(4.3)(a), C.R.S. 2016

(defining lack of a “fixed residence” as including “temporary public

or private housing or temporary shelter facilities, residential

treatment facilities, or any other residential program or facility if the

5 person remains at the location for less than fourteen days”). The

statute therefore required Wilson to register within five days of his

release without regard to where he was living or whether his

location changed during that five-day period. § 16-22-108(1)(a)(II);

§ 18-3-412.5(1)(a). Wilson did not do so, and, as already discussed,

the prosecution presented evidence that he understood the

requirement that he had to do so.

¶ 12 Insofar as Wilson suggests that the registration requirement

that applies to an offender who changes residences somehow

trumps the five-day registration requirement upon release of the

offender, we can’t agree. Such a reading renders the latter

registration requirement essentially superfluous. This we won’t do.

See People v. Cito, 2012 COA 221, ¶ 15. And to the extent Wilson

argues he misunderstood the interplay of the two registration

requirements, such a misunderstanding is not a defense to his

failure to register. See People v. Mendro, 731 P.2d 704, 707 (Colo.

1987); cf. People v. Lesslie, 24 P.3d 22, 25 (Colo. App. 2000)

(identifying basis for asserting mistake of fact and mistake of law

defenses).

6 ¶ 13 Because sufficient evidence supports it, we affirm Wilson’s

conviction for failure to register as a sex offender.

II. Uncontrollable Circumstances

¶ 14 Wilson next contends that the trial court erred in “disallowing

the affirmative defense of uncontrollable circumstances.” We

disagree.

¶ 15 A defendant must present “some credible evidence” of an

affirmative defense to present it at trial. § 18-1-407(1), C.R.S. 2016;

O’Shaughnessy v. People, 2012 CO 9, ¶ 13. A trial court’s

determination of whether the defendant satisfied this burden is

reviewed de novo. O’Shaughnessy, ¶ 13.

¶ 16 Before trial, Wilson filed a notice of defense under section 18-

3-412.5(1.5). That section states that it is an affirmative defense to

failing to register as a sex offender when

(I) Uncontrollable circumstances prevented the person from complying;

(II) The person did not contribute to the creation of the circumstances in reckless disregard of the requirement to comply; and

(III) The person complied as soon as the circumstances ceased to exist.

§ 18-3-412.5(1.5)(a).

7 ¶ 17 As relevant here, Wilson’s notice of defense stated that

“[b]ecause of his homelessness,” he was given a temporary lodging

voucher and when the voucher expired, Wilson was evicted. And it

also stated that when Wilson was arrested “he still lacked a fixed

residence.” The notice did not say that Wilson ever complied with

the registration requirement.

¶ 18 The prosecution moved to strike the affirmative defense,

arguing that the legislature specifically contemplated the lack of a

fixed residence in crafting the registration requirements and thus it

was not an uncontrollable circumstance. During a pre-trial

hearing, Wilson again argued that when he was evicted, he was

“without a fixed place to register, and that becomes the

uncontrollable circumstance[] in this case.” Agreeing with the

prosecution that lack of a fixed residence was not an uncontrollable

circumstance, the trial court granted the motion to strike the

affirmative defense.

¶ 19 Because the registration statute plainly requires offenders

without a fixed residence to register, we agree with the trial court

that Wilson did not present credible evidence that uncontrollable

8 circumstances prevented him from registering. The court therefore

did not err when it struck the affirmative defense.

¶ 20 Even so, Wilson points to a statutory provision that states that

individuals sentenced after January 1, 2005, must “confirm [their]

registration within five business days after release from

incarceration.” § 16-22-108(1)(a).1 To the extent Wilson argues

that his homelessness was an uncontrollable circumstance that

prevented him from “confirming” his registration (as opposed to

initially registering), he did not make this argument before the trial

court. But in any event, it is a distinction without a difference.

That is, Wilson is still responsible for registering as a sex offender,

by confirming his initial registration. See § 16-22-108(1)(a)(I), (II);

see also People v. Halbert, 2013 COA 95, ¶ 26 (explaining the

various obligations a sex offender registrant must fulfill). And

because the registration statute contemplates registration of

offenders without fixed residences, Wilson’s homelessness was not

1 An offender must provide the Department of Corrections with his intended residence before being released from incarceration. See § 16-22-107, C.R.S. 2016. Then within five business days of release, the offender “shall . . . confirm his or her initial registration.” § 16-22-108(1)(a)(II), C.R.S. 2016.

9 an uncontrollable circumstance preventing him from confirming

that registration.

¶ 21 Because Wilson did not present any credible evidence that

uncontrollable circumstances existed that prevented him from

registering as a sex offender, we conclude the trial court did not err

in rejecting his affirmative defense.

III. Conclusion

¶ 22 The judgment of conviction is affirmed.

JUDGE HAWTHORNE and JUDGE NAVARRO concur.