People ex rel. J.O.

• Decision Date: 27 August 2015
• Docket Number: Court of Appeals No. 14CA0622
• Citation: 383 P.3d 69,2015 COA 119
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, IN the INTEREST OF J.O., Juvenile–Appellant.
• Court: Colorado Court of Appeals

383 P.3d 69

2015 COA 119

The PEOPLE of the State of Colorado, Plaintiff–Appellee, IN the INTEREST OF J.O., Juvenile–Appellant.

Court of Appeals No. 14CA0622

Colorado Court of Appeals, Div. IV.

Announced August 27, 2015

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

Douglas K. Wilson, Colorado State Public Defender, Kathryn Crampton, Deputy State Public Defender, Greeley, Colorado, for Juvenile–Appellant

Opinion by JUDGE WEBB

¶ 1 This case might lead one to ponder burdening a juvenile offender about to start adult life with sex offender registration for an indeterminate period of time.

¶ 2 J.O. 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. He was fifteen years old at the time of the charged offenses. As part of the adjudication, the magistrate ordered J.O. to register as a sex offender and “comply with all duties and obligations for registration.” On review under C.R.M. 7(a)(10)

, the district court adopted the magistrate's ruling.

On appeal, J.O. raises three questions:

• Was the evidence sufficient to support the adjudication?

• Did he meet the first offense criterion for the magistrate to exercise discretion under section 16–22–103(5), C.R.S. 2014

, and exempt him from sex offender registration?

• Did the requirement to register as a sex offender violate his rights under the Eighth Amendment?

The third question echoes recent judicial recognition that juvenile offenders “are different from adults in their diminished culpability and greater prospects for reform ... [and] are therefore less deserving of the most severe punishments.” People v. Tate, 2015 CO 42, ¶ 28, 352 P.3d 959

(internal quotation marks omitted).

¶ 3 As matters of first impression in Colorado, we conclude that

• Because J.O. was simultaneously adjudicated for unlawful sexual contact and indecent exposure, he did not meet the first offense criterion in section 16–22–103(5)(a)(III)

for exemption from sex offender registration.

• Because sex offender registration is not punishment, requiring him to register did not violate his constitutional rights.

And because the evidence was sufficient to support the adjudication, we affirm.

¶ 4 We begin with the two novel issues.

I. J.O. Did Not Meet the First Offense Criterion in Section 16–22–103(5)

for Exemption from Sex Offender Registration

¶ 5 Under section 16–22–103(5)(a)

, if the trial court

determines that the registration requirement ... would be unfairly punitive and that exempting the person from the registration requirement would not pose a significant risk to the community, the court, upon consideration of the totality of the circumstances, may exempt the person from the registration requirements imposed pursuant to this section.

But a court can exercise this discretion only if all of the following criteria have been satisfied:

(I) The person was younger than eighteen years of age at the time of the commission of the offense; and

(II) The person has not been previously charged with unlawful sexual behavior; and

(III) The offense, as charged in the first petition filed with the court, is a first offense of either misdemeanor unlawful sexual contact, as described in section 18–3–404, C.R.S

., or indecent exposure, as described in section 18–7–302, C.R.S.; and

(IV) The person has received a sex offender evaluation that conforms with the standards developed pursuant to section 16–11.7–103(4)(i), from an evaluator who meets the standards established by the sex offender management board, and the evaluator recommends exempting the person from the registration requirements based upon the best interests of that person and the community; and

(V) The court makes written findings of fact specifying the grounds for granting such exemption.

Id. Otherwise, juveniles who have been adjudicated on the basis of unlawful sexual behavior must comply with sex offender registration requirements. § 16–22–103(4)

(“The provisions of this article shall apply to any person who receives a disposition or is adjudicated a juvenile delinquent based on the commission of any act that may constitute unlawful sexual behavior or who receives a deferred adjudication based on commission of any act that may constitute unlawful sexual behavior.”).

¶ 6 J.O. and the prosecutor agreed, as did the magistrate and the district court, that the only criterion in dispute was whether “the offense, as charged in the first petition filed with the court, is a first offense of either misdemeanor unlawful sexual contact ... or indecent exposure.” § 16–22–103(5)(a)(III)

(emphasis added). The magistrate found:

I don't believe I can come to any other conclusion that he does not qualify under [section 16–22–103(5)(a)(III)

], and that [he] does not meet within the qualifications as created by the legislature to be able to be exempt from registration.... I believe that he cannot be exempt based upon the convictions of four counts of unlawful sexual behavior.... And, unfortunately, I don't believe I have any other choice than what's being made, the choice presented to me by the legislature and it is, I believe, clear that I have to order then, [J.O.], that you will have to register as part of your sentence in this case.

The district court agreed.

A. Standard of Review

¶ 7 Interpreting section 16–22–103(5)(a)(III)

is a question of law subject to de novo review. Granite State Ins. Co. v. Ken Caryl Ranch Master Ass'n, 183 P.3d 563, 567 (Colo.2008). This review is informed by the following familiar principles.

¶ 8 When interpreting a statute, our primary objective is to effectuate the intent of the General Assembly by looking at the plain meaning of the language used, considered within the context of the statute as a whole. Bly v. Story, 241 P.3d 529, 533 (Colo.2010)

. If the statutory language is clear and unambiguous, we do not resort to legislative history or other rules of statutory construction. Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1189 (Colo.2010). In examining a statute's wording, “[w]e do not presume that the legislature used language idly and with no intent that meaning should be given to its language.” Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 597 (Colo.2005) (internal quotation marks omitted). Rather, “we strive to interpret statutes in a manner that avoids rendering any provision superfluous.” Qwest Corp. v. Colo. Div. of Prop. Taxation, 2013 CO 39, ¶ 16, 304 P.3d 217.

B. Application

¶ 9 J.O. was adjudicated delinquent based on four separate offenses. Yet he argues—relying on only the plain language of section 16–22–103(5)(a)(III)

—that because “each of the adjudications reached by the trial court were simultaneously rendered,” collectively they constituted a “first offense.” But because J.O. was adjudicated as to both misdemeanor unlawful sexual contact and indecent exposure, we conclude that he did not satisfy subsection 16–22–103(5)(a)(III).¹

¶ 10 To begin, we agree with J.O. and the Attorney General that section 16–22–103(5)(a)(III)

is unambiguous. See

Jefferson Cnty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo.2010) (“A statute is ambiguous when it ‘is capable of being understood by reasonably well-informed persons in two or more different senses.’ ” (quoting 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes & Statutory Construction § 45:2, at 13 (7th ed. 2007))). “[A] statute is not ambiguous merely because an astute mind can devise more than one interpretation of it.” Jayo Dev., Inc. v. Ada Cnty. Bd. of Equalization , 158 Idaho 148, 345 P.3d 207, 211 (2015).

¶ 11 At first blush, one might conclude—as have many courts—that “or” is simply a disjunctive which “reflects a choice of equally acceptable alternatives.” Willhite v. Rodriguez–Cera, 2012 CO 29, ¶ 18, 274 P.3d 1233

; see, e.g.,

Rivera–Bottzeck v. Ortiz, 134 P.3d 517, 521 (Colo.App.2006) (“Ordinarily, the use of the word ‘or’ is assumed to demarcate different categories.”); § 2–4–101, C.R.S.2014 (“Words and phrases shall be ... construed according to the rules of grammar and common usage.”); Webster's Third New International Dictionary 1585 (2002) (defining “or” as indicating “a choice between alternative things, states, or courses”). But a closer look at the etymology of “or” leaves open the question whether a juvenile who has been adjudicated—simultaneously but for the first time—of both misdemeanor unlawful sexual contact and indecent exposure could still meet the criteria of this section.

¶ 12 We answer this question by considering whether the General Assembly's use of “or” is inclusive or exclusive. See Matter of Estate of Dodge, 685 P.2d 260, 265–66 (Colo.App.1984)

(“[T]he English word ‘or’ has two counterparts in Latin: (1) ‘vel’ (often referred to as the ‘inclusive or’), meaning A or B, or both; and (2) ‘aut’ (often referred to as the ‘exclusive or’), meaning A or B, but not both.” (citing Reed Dickerson, The Fundamentals of Legal Drafting 76 (1965) (emphasis omitted))); compare id. (“[O]bservation of legal usage suggests that in most cases ‘or’ is used in the inclusive, rather than the exclusive, sense.” (internal quotation marks omitted)), with

Denver Horse Imp. Co. v. Schafer, 58 Colo. 376, 384, 147 P. 367, 370 (1915) (The term “or” is “[a] co-ordinating particle that marks an alternative; as you may read or may write—that is, you may do one of the things at your pleasure, but not both....” (internal quotation marks omitted)).²

¶ 13 For the following two reasons, we conclude that use of “or” in subsection 16–22–103(5)(a)(III) is exclusive.

¶ 14 First, the General Assembly's use of “or” is limited by the word “either.” This “simple word ... means ‘either,’—not ‘both.’ ” State v. Coloff, 125 Mont. 31, 231 P.2d 343, 346 (1951)

; see

Stanley v. Cottrell, Inc., 784 F.3d 454, 466 (8th Cir.2015)...