People of The State of Colo. v. HUNTER
| Decision Date | 02 February 2010 |
| Docket Number | No. 08CA0316.,08CA0316. |
| Citation | 240 P.3d 424 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James Henry HUNTER, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
OPINION TEXT STARTS HERE
John W. Suthers, Attorney General, Rhonda L. White, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.
Opinion by Judge RICHMAN.
Defendant, James Henry Hunter, appeals the trial court's order finding that he meets the criteria of a sexually violent predator (SVP) under section 18-3-414.5, C.R.S.2009. We reverse.
According to the prosecution's evidence at trial, defendant, while wearing a sock over his face to conceal his identity, broke into his neighbor's home and sexually assaulted her and her daughter. A jury convicted defendant of second degree burglary, sexual assault, sexual assault on a child, and a crime of violence. At sentencing, the court found that defendant met each of the criteria of an SVP as provided in section 18-3-414.5(1)(a), C.R.S.2009, and noted that classification on the mittimus.
On direct appeal, a division of this court affirmed defendant's conviction and sentence. People v. Hunter, 2007 WL 611882, (Colo.App. No. 04CA0699, Mar. 1, 2007) (not published pursuant to C.A.R. 35(f)) (Hunter I). With respect to the trial court's finding that defendant is an SVP, the division concluded that defendant met the age and offense criteria under the statute and that he had waived the requirement that he receive a presentence report, which would have included a risk assessment screening instrument (RASI) assessing the likelihood he would commit another sexual assault. However, the division remanded the case because the trial court had not made specific findings as to whether either victim was a stranger to defendant or whether defendant had established or promoted a relationship with either victim primarily for the purpose of sexual victimization as required by section 18-3-414.5(2), C.R.S.2009.
On remand, defendant contended that (1) based on the evidence at trial, he and the victims were not strangers and (2) in the absence of a RASI, there was no basis to conclude that he was likely to commit another sexual assault. The trial court did not further address the latter issue, noting that the Hunter I division had concluded that defendant waived his right to receive a presentence report, which would have included a RASI. It went on to find that for the purpose of sentencing under the SVP statute, defendant was a “stranger” to the victims because while the assaults were occurring neither victim was aware that the perpetrator was their neighbor. This appeal followed.
On appeal, defendant does not raise any claim regarding the absence of a RASI. Rather, he contends only that the trial court erred in finding that he fit the definition of an SVP because the victims knew him as their neighbor, and therefore he was not a stranger under the statutory definition. Under the circumstances of this case, we agree.
To be found an SVP, an offender must satisfy four criteria. § 18-3-414.5(1)(a). Only the third element is relevant to this appeal: “ ‘Sexually violent predator’ means an offender ... [w]hose victim was a stranger to the offender or a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization.” § 18-3-414.5(1)(a)(III), C.R.S.2009. The statute requires the court to make specific findings of fact and enter an order concerning whether the defendant is an SVP. § 18-3-414.5(2), C.R.S.2009. This determination involves a mixed question of law and fact. People v. Cook, 197 P.3d 269, 280 (Colo.App.2008). We defer to the trial court's findings of fact and will disturb them only where there is clear error. People v. Gallegos, 240 P.3d 882, 885 (Colo.App. No. 07CA2373, Sept. 17, 2009). We review de novo whether the court's findings of fact are sufficient to support the determination that an offender is an SVP, as well as the meaning of section 18-3-414.5(1)(a)(III) because it presents a question of law. Id.; People v. Tixier, 207 P.3d 844, 849 (Colo.App.2008).
Here, the Hunter I division specifically directed the trial court to determine “whether either victim was a stranger or whether or not defendant established or promoted a relationship with either victim primarily for the purpose of sexual victimization.”
On remand, the trial court found as follows:
I want it to be clear to counsel that the man that came in was a stranger to both of these victims. The fact that they may have known him, or may have met him, or may have been the person next door at the time that this took place and during this entire encounter, as far as they were aware, that was a stranger, that was not a known person.
This case turned on identification. They could not make an identification. The identification was made, I believe, to the satisfaction of this jury based on scientific evidence, and that was the DNA evidence....
... And it is clear that at this time they considered him, and he was not known to them, so he was there as a stranger when the assault started and throughout the assault.
....
So it is clear, could not be more clear to this Court that this Defendant is a sexually violent predator, and if he does not meet the criteria the criteria should be changed.
I find that the prong as required by the court of appeals as to whether the victims were strangers, or whether they established or promoted the relationship, it's clear the victims, both these victims in this case, were strangers and I so find.
Although the prosecution argued on remand that defendant could be found to be an SVP under either prong of the third element, the court found that defendant “was a stranger to both of these victims” during the offense, that “both these victims in this case[ ] were strangers” and that, as a result, the third element was satisfied. Though the evidence may have supported a finding that defendant established or promoted the relationship with either victim primarily for the purpose of sexual victimization, the court did not so find. However, because the record does not support a finding that the victims were strangers to the offender as the statute requires, we reverse the trial court's conclusion that defendant meets the statutory definition of an SVP.
The evidence at trial demonstrated that defendant was a neighbor of the victims, occupying a trailer adjacent to theirs for nearly three years while the victims lived there. Defendant helped the mother carry in groceries, and both victims had dinner with defendant in his trailer. Defendant had a nickname for the mother, and, shortly before the assault, defendant stopped by the victims' trailer to notify them that he and his wife were planning to move to Missouri.
Moreover, in closing argument, the prosecutor told the jury that defendant “knew the victims.” Specifically, the prosecutor argued that because defendant knew the victim, her daughter, and their dog, he knew what he would be getting into if he entered their trailer, whereas a stranger might worry about getting shot. In addition, the prosecution argued that the reason defendant wore a mask in the course of the offense was precisely because the victims knew him. Based on the evidence offered at trial and the arguments of the prosecution, we conclude, as suggested in People v. Tixier, 207 P.3d at 847, defendant and these victims had a “definable relationship” that precludes a finding that the victims were strangers to defendant.
In reaching its conclusion that defendant was a stranger to the victims because they could not identify him at the time of the attack, the trial court understandably relied on the fact that defendant wore a mask during the attack, thereby making himself a “stranger” to them during the attack, even if they otherwise knew him. Indeed, if we were to apply the common parlance meaning of a “sexual predator” to defendant, we might agree that the acts for which he was convicted were predatory.
However, as noted above, in drafting this statute the General Assembly supplied a precise definition of an SVP as one “[w]hose victim was a stranger to the offender.” 1 The dissent argues against a literal interpretation of the statute, contending that it must apply whether the victim was a stranger to the offender or the converse, the offender was a stranger to the victim. However, even if the statute were construed as the dissent suggests, nothing in the statute indicates that the criterion is met when the victim knows the offender, but is unable to identify him, as was the case here. The statute defines an SVP based on the relationship between the offender and the victim, not the manner in which the offense is committed. Under these circumstances, and based on the evidence adduced at trial, we must conclude that defendant does not meet the statutory definition of an SVP.
The court's order is reversed.
Because I disagree with the majority's interpretation of the SVP statute, I respectfully dissent.
According to the prosecution's evidence at trial, defendant, while wearing a mask or sock over his face to conceal his identity, broke into his neighbor's home, and, for over three hours, sexually assaulted her and her daughter (victims). After his conviction, the trial court found that, for purposes of this assault, defendant was a stranger to the victims because, while the assaults were occurring, neither victim was aware that defendant was the perpetrator.
On appeal, defendant contends that the trial court erred in finding that he fits the definition of a SVP. Specifically, he argues that because he knew the victims, they were not strangers. The majority agrees that the statutory...
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People v. Hunter
...Hunter during the assault. ¶ 5 Hunter appealed and the court of appeals reversed the trial court's SVP designation. SeePeople v. Hunter, 240 P.3d 424, 426 (Colo.App.2009) (selected for official publication) (Hunter II).It held that “nothing in the statute indicates that the [relationship] c......