People v. DeVorss

• Citation: 277 P.3d 829
• Decision Date: 31 March 2011
• Docket Number: No. 07CA1296.,07CA1296.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Daniel Lynn DEVORSS, Defendant–Appellant.
• Court: Court of Appeals of Colorado

277 P.3d 829

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

v.Daniel Lynn DEVORSS, Defendant–Appellant.

No. 07CA1296.

Colorado Court of Appeals,

Div. II.

March 31, 2011.

John W. Suthers, Attorney General, Susan E. Friedman, Assistant Attorney General, Denver, CO, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, CO, for Defendant–Appellant.

Opinion by Judge LOEB.

Defendant, Daniel L. Devorss, appeals the district court's order revoking his probation. We affirm.

I. Background and Procedural History

On September 25, 1998, the prosecution charged defendant with one count of sexual assault on a child, one count of sexual assault on a child by one in a position of trust, and one count of sexual assault on a child-pattern of sexual abuse, based upon allegations that defendant sexually assaulted his girlfriend's young daughter. The parties entered into a plea agreement, and on November 3, 1998, defendant pleaded guilty to one count of sexual assault on a child and one added count of sexual assault in the third degree (now, unlawful sexual contact). The district court sentenced defendant to a ninety-day jail term and eight years of probation for the first count and a concurrent one-year jail term for the second count.

In July 2001, approximately two and one-half years into defendant's probation period, a probation officer filed a complaint alleging that defendant violated a condition of his probation by failing to timely make a restitution payment. The complaint was withdrawn upon defendant's payment and pledge to remain current on subsequent payments.

In August 2002, a probation officer filed a second complaint against defendant. The officer alleged that defendant violated his probation by pleading guilty to one count of third degree assault in an unrelated case. The officer asked the court to revoke and reinstate defendant's probation and to sentence defendant to two days in county jail. After holding a hearing in which defendant admitted the probation violation, the court sentenced defendant in accordance with the officer's request.

Less than one year later, a third probation revocation complaint was filed against defendant. This time, the probation officer alleged multiple violations of probation by defendant, including failure to timely register as a sex offender, failure to make timely restitution payments, curfew violations, nightly call-in violations, and poor progress in his required sex offender treatment program. However, instead of seeking revocation of probation, the officer asked the court to modify defendant's probation sentence to include 120 days of electronic GPS monitoring. The court granted the request and left defendant's probation sentence in place.

In November 2004, a probation officer filed a fourth complaint against defendant, alleging that defendant violated his probation by testing positive for methamphetamine and by failing to abide by requirements of the sex offender treatment program. Defendant agreed to plead guilty to the drug test violation in exchange for the officer requesting revocation and reinstatement of probation, as opposed to revocation and a sentence to the Department of Corrections (DOC). At a hearing on April 19, 2005, the district court accepted defendant's plea. The court then sentenced him to five years of supervised probation, commencing that day. The court also required him to undergo substance abuse evaluation and treatment as recommended by the probation department.

In May 2006, approximately one year into defendant's renewed probation period of five years, defendant filed a motion for early termination of his probation. The prosecution objected, and at a hearing, the court denied the motion and continued defendant's five-year probationary term.

As pertinent to this appeal, a probation officer filed a fifth complaint against defendant on August 22, 2006. The officer alleged that defendant violated the following two sex offender conditions of his probation: (1) the condition prohibiting contact with children under the age of eighteen years; and (2) the condition requiring the successful completion of a sex offender treatment program. According to the complaint, defendant violated the no contact condition by sitting at a restaurant table with a young boy and by later admitting to his supervising officer that he knew that the boy was under the age of eighteen. The complaint alleged defendant violated the other condition when he was terminated from his sex offender treatment program.

The court conducted a revocation hearing on January 24, 2007. At the hearing, the facts surrounding the incident at the restaurant were largely undisputed. Defendant testified that he and a co-worker went to the restaurant for a weekday lunch break. The co-worker suggested the restaurant because he was celebrating his birthday and had planned to meet his mother at the restaurant for the occasion. Upon their arrival, the co-worker spotted his mother in the buffet line, and he and defendant immediately joined her. Defendant also ran into a probation officer (who was not defendant's supervising officer, but who was familiar with his case) while he was in the buffet line. Defendant spoke with the officer briefly while he filled his plate with food and headed to the booth selected by the co-worker's mother.

Defendant testified that he did not notice a child seated in the booth until he set his plate down. According to defendant, the child was the co-worker's nephew and appeared to be between thirteen and fifteen years old. Defendant testified that he knew immediately upon seeing the child that he “needed to make a decision on what [he] could do to ... be cordial and be polite and somehow remove [him]self from that table,” but that he felt uncomfortable leaving the restaurant given that it was the co-worker's birthday and that the mother was paying for the lunch. Therefore, defendant left his plate on the table and proceeded to ask the probation officer, who was at the restaurant by coincidence, for advice on how to handle the situation. The officer suggested that he switch seats with the co-worker, but that she could not advise him further because she was not his supervising officer. Defendant returned to the booth.

Upon his return, defendant chose to sit next to the child so as to avoid facing him across the table. He then left the table on a second occasion to call his support person because, according to his testimony, he continued to feel uncomfortable about the situation. The phone call lasted about thirteen minutes, and he returned to the table again.

Defendant testified that he did not look at the child, talk to the child, or physically touch the child at any time during the thirty-minute lunch. However, he sat next to the child in the booth for the remainder of the lunch. Defendant disclosed the entire incident to his supervising probation officer at their next meeting.

The court also heard testimony at the revocation hearing from defendant's direct supervising probation officer since 2004, a second probation officer assigned to defendant's case, the sex offender treatment provider working with defendant, and defendant's support person. Defendant's supervising officer testified that he personally reviewed all of the conditions of probation with defendant, including the no contact provision at issue here. After reviewing all of the testimony, the court found as follows:

Condition number four requires that you not have contact with any child under the age of 18, including your own children, not attempt contact except under circumstances approved in advance and in writing by the probation officer in consultation with the supervision team.

Contact includes correspondence, written or verbal, telephone contact, or any communication through a third party.

The contact that has been described by all of the witnesses, including the defendantin this case, was direct contact; basically sitting right next to the kid.

It was awkward. I understand why the defendant didn't want to appear to be rude, I understand why the defendant didn't want to tell this co-worker that he had only known a short period of time what was up, although after almost eight years, or almost nine years on probation, the defendant ought to be kind of getting used to having to do that in awkward situations, because it comes up now and then.

Other than that, the defendant appears to have done everything he should have, everything his treatment taught him to, everything his probation required of him....

Based on this finding of direct contact with a child less than eighteen years of age, the court concluded that defendant violated the no contact condition of his probation. The court concluded that he did not, however, violate the other condition alleged in the complaint pertaining to completion of the sex offender treatment program.

At a sentencing hearing held on May 23, 2007, the court revoked defendant's probation and sentenced him to eight years in the DOC and three years of mandatory parole. However, the court suspended the DOC sentence for five years on the condition that he serve six months in county jail and remain on supervised probation for the remainder of the five-year suspension. This appeal followed.

II. Analysis

Defendant contends the no contact condition of his probation is unconstitutionally vague as applied to him. Specifically, he contends the written condition proscribing “contact with any child under the age of eighteen” lacked sufficient clarity to notify him that he would violate the condition by merely sitting next to a child in a restaurant booth, when it is undisputed that he did not look at, talk to, or physically touch the child. Accordingly, he contends the court violated his constitutional right to due process by revoking his probation and imposing the suspended sentence. We disagree.

A. Mootness

Init...