People v. Allman

• Decision Date: 06 December 2012
• Docket Number: No. 09CA1347.,09CA1347.
• Citation: 321 P.3d 557
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Allen Paul ALLMAN, Defendant–Appellant.
• Court: Colorado Court of Appeals

321 P.3d 557

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Allen Paul ALLMAN, Defendant–Appellant.

No. 09CA1347.

Colorado Court of Appeals, Div. V.

Dec. 6, 2012.

John W. Suthers, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Shann Jeffery, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge MILLER.

¶ 1 Defendant, Allen Paul Allman, appeals his judgment of conviction entered on a jury verdict finding him guilty of failing to register as a sex offender under the Colorado Sex Offender Registration Act, §§ 16–22–101 to –115, C.R.S.2012 (Registration Act).

¶ 2 Defendant attacks his conviction on several constitutional, statutory, and procedural grounds, but we affirm for the following reasons:

• First, we decline to review defendant's constitutional challenge that the Registration Act is overbroad, and we reject his claim that the Act is unconstitutionally vague as applied to his conduct.

• Second, we hold as a matter of first impression that the term “residence” does not require a residential or mailing address, and we conclude that the evidence was sufficient to support the jury's verdict that defendant had established a residence in Garfield County and that defendant knowingly failed to register in Garfield County.

• Third, we conclude that no special unanimity instruction was required.

• Fourth, we hold that defendant was not in custody for purposes of Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966), prior to his arrest and therefore that the trial court did not err in failing to suppress his pre-arrest statements.

I. Background

¶ 3 Defendant, a convicted sex offender, is required to register with certain law enforcement authorities under the Registration Act.

¶ 4 In 2007, defendant lived in Colorado Springs with his father and was registered in El Paso County. That year, he went to Garfield County to look for work and found a job in Rifle upon his arrival. The job paid less than he had anticipated, and he therefore opted to sleep in his car during the work week. At night, he parked in various locations, including his work site, rest stops, and parking lots mostly in and around the adjacent towns of Parachute and Battlement Mesa, but never in the same location two nights in a row. He drove back to Colorado Springs every weekend. Defendant joined the Battlement Mesa recreation center (rec center) with a coworker and frequently exercised, swam, and showered there.

¶ 5 Defendant was present and working in Garfield County for approximately two and one-half months. He never established a residential or mailing address in Garfield County, and at trial he testified that he did not believe that sleeping in his car constituted “living” there.

¶ 6 Sheriff's deputies found defendant in his sleeping bag in his car in the rec center parking lot one evening. Defendant initially told the deputies he was staying in a nearby trailer but later admitted he was staying in his car. The deputies arrested him, and he was charged with one felony count of failure to register in violation of section 18–3–412.5(1)(a), (2), C.R.S.2012, and proceeded to trial. At the close of the prosecution's evidence, defendant moved for a judgment of acquittal, arguing that the prosecution had not presented sufficient evidence to support a conviction. The trial court denied the motion. The jury found defendant guilty.

II. Constitutional Challenges to the Registration Act

¶ 7 The constitutionality of a statute is a legal question that we review de novo. People v. Hicks, 262 P.3d 916, 919 (Colo.App.2011) (citing Hinojos–Mendoza v. People, 169 P.3d 662, 668 (Colo.2007)). In doing so, we begin with the presumption that the statute is constitutional. People v. Baer, 973 P.2d 1225, 1230 (Colo.1999). The challenging party must establish its unconstitutionality beyond a reasonable doubt. People v. Shell, 148 P.3d 162, 172 (Colo.2006); People v. Rowerdink, 756 P.2d 986, 990 (Colo.1988).

A. Overbreadth

¶ 8 Defendant first contends that the Registration Act is unconstitutionally overbroad as applied to his conduct because it infringes on his fundamental right to travel. A statute may be unconstitutionally overbroad as applied if it threatens the challenger'sexercise of a fundamental or express constitutional right. See Rowerdink, 756 P.2d at 990 (citations omitted). The right to travel within the United States is a fundamental right. ¹E.g., United States v. Guest, 383 U.S. 745, 758, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966).

¶ 9 Here, however, defendant did not allege in the trial court an infringement on his right to travel. He merely raised a general contention that the Registration Act is “overly broad as applied to the facts of this case.” As a result of defendant's silence on the claimed right to travel, the trial court did not make express findings on this issue, and the factual record is, at best, scant. See People v. Patrick, 772 P.2d 98, 100–01 (Colo.1989) (“[I]t is imperative that there be some factual record made by the trial court which states why ... the statute is unconstitutional as applied.”); People v. Torres, 224 P.3d 268, 272–73 (Colo.App.2009) (rejecting as-applied constitutional challenge due to incomplete record of relevant facts).

¶ 10 Moreover, beyond the conclusory allegation in his opening brief, defendant provides no analysis regarding his right to travel. See People v. Durapau, 280 P.3d 42, 49 (Colo.App.2011) (declining to review constitutional challenge to statute where defendant's brief presented bare and conclusory statements); People v. Hill, 228 P.3d 171, 176 (Colo.App.2009) (same); People v. Simpson, 93 P.3d 551, 555 (Colo.App.2003) (same).² For example, defendant does not allege that the registration requirements penalize him for or restrict him from travel or ban him from certain areas. Cf. Johnson v. City of Cincinnati, 310 F.3d 484, 496–98 (6th Cir.2002) (finding that ordinance banning affected individuals from certain neighborhood impermissibly infringed on right to travel). Nor does it restrict him from driving on certain streets or roads. Cf. Lutz v. City of York, 899 F.2d 255, 268 (3d Cir.1990) (suggesting ordinance that restricts all freedom of movement on municipal streets would be impermissible).

¶ 11 Absent a developed record and specific allegations as to how the Registration Act infringes on his rights, we decline to review defendant's claim that the Registration Act is unconstitutionally overbroad as applied to his conduct.

B. Vagueness

¶ 12 We consider and reject defendant's contention that the Registration Act is unconstitutionally vague as applied to his conduct.

1. Preservation of Error

¶ 13 We agree with the People's threshold argument that defendant failed to preserve his constitutional vagueness challenge because he did not expressly present the challenge to the trial court. Constitutional arguments must be explicitly raised in the trial court; implicit claims are unpreserved. People v. McNeely, 68 P.3d 540, 545 (Colo.App.2002). Explicit arguments alert the trial court to the challenger's contentions and enable the trial court to make a factual record on the issue, which is imperative to appellate review. Patrick, 772 P.2d at 100;People v. Veren, 140 P.3d 131, 140 (Colo.App.2005).

¶ 14 Our conclusion that the error was not preserved raises the question of the extent to which defendant is entitled to appellate review of this issue. There are two lines of authority in Colorado on this question in criminal cases. The first line derives from People v. Cagle, 751 P.2d 614, 619 (Colo.1988), involving a facial challenge to the constitutionality of a statute, in which the supreme court stated in dictum ³ that “[i]t is axiomatic that this court will not consider constitutional issues raised for the first time on appeal.” The court provided no analysis for this proposition beyond citing to opinions in two civil cases declining to review unpreserved claims of statutory unconstitutionality. Id. However, numerous opinions by the supreme court and divisions of this court have relied on Cagle in declining to review various forms of unpreserved constitutional error. See, e.g., Martinez v. People, 244 P.3d 135, 139–40 (Colo.2010), and decisions cited in People v. Devorss, 277 P.3d 829, 834 (Colo.App.2011), and People v. Greer, 262 P.3d 920, 933–34 (Colo.App.2011) (J. Jones, J., specially concurring) (all citations to Greer in this opinion are to Judge Jones's special concurrence). A principal basis for this line of cases in the context of as-applied constitutionality challenges is the inability of the appellate court to decide the issue because of an insufficient record. See Patrick, 772 P.2d at 100 (incomplete record precluded determination of as-applied constitutionality challenge to a statute); Veren, 140 P.3d at 140 (to consider an as-applied claim, a factual record “is imperative”).

¶ 15 In the second line of cases, the supreme court and divisions of this court have frequently opted to review the merits of unpreserved constitutional claims. See, e.g., Hinojos–Mendoza v. People, 169 P.3d 662, 667–68 (Colo.2007) (challenge to constitutionality of statute both facially and as applied); Devorss, 277 P.3d at 834 (citing numerous cases involving unpreserved constitutional claims); Greer, 262 P.3d at 934 (same). Courts doing so state that, despite the sweeping language in Cagle, they have discretion to consider such claims. Hinojos–Mendoza, 169 P.3d at 667;Devorss, 277 P.3d at 834;Greer, 262 P.3d at 932–33.⁴ Just as the absence of a sufficient record is a common basis for refusing to review unpreserved constitutional error, courts that have exercised their discretion to review such error have relied on the presence of a sufficiently developed record as a basis for doing so. See Devorss, 277 P.3d at 834 (citing cases); see also Hi...