People v. Jones, Court of Appeals No. 14CA2476

• Decision Date: 07 September 2017
• Docket Number: Court of Appeals No. 14CA2476
• Citation: 405 P.3d 504
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kristopher Ray JONES, Defendant-Appellant.
• Court: Colorado Court of Appeals

405 P.3d 504

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

v.Kristopher Ray JONES, Defendant-Appellant.

Court of Appeals No. 14CA2476

Colorado Court of Appeals, Div. VII.

Announced September 7, 2017

Cynthia H. Coffman, Attorney General, Rebecca A. Adams, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Meghan M. Morris, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE RICHMAN

¶ 1 Defendant, Kristopher Ray Jones, appeals his conviction for failure to register as a sex offender under section 18-3-412.5(1)(g), C.R.S. 2016. He contends that the evidence at trial was insufficient to prove that he failed to register "upon changing an address" under subsection (1)(g). He also contends that the prosecution elected, but failed, to prove that he had a duty to register in Adams County during the relevant time period. Because we agree with his first contention, we vacate the judgment of conviction and need not address his second contention.

I. Background

¶ 2 Jones was required to register as a sex offender based on a 1994 conviction. In 2011, he registered as a sex offender with the Aurora Police Department (Aurora P.D.) in Colorado.

¶ 3 In August 2012, Jones was released from prison onto parole in an unrelated case, and he was given a voucher to stay at a particular motel in Aurora (and in Adams County). On August 12, 2012, Jones updated his sex offender registration with the Aurora P.D., listing the motel's address as his new residence.

¶ 4 On August 20, 2012, when the voucher expired, Jones left the motel and did not return. His whereabouts during the months after he left the motel are not clear. What is clear is that he did not report a change of address with the Aurora P.D., and he did not register as a sex offender with any other local law enforcement agency in Adams County or in any other jurisdiction in Colorado until 2013. The People charged him in this case with failure to register as a sex offender between August 26, 2012, and November 28, 2012, covering a three-month period soon after he moved out of the motel (hereinafter, "the relevant time period").

¶ 5 There is no evidence that Jones had a fixed residence during any portion of the relevant time period. However, there is some circumstantial evidence of Jones's whereabouts early on during that period. Between August 27, 2012, and September 4, 2012, Jones telephoned an automated check-in system numerous times as a requirement of his parole. He reported that he was calling from a variety of different locations in Adams County and Denver County, mostly from truck stops or pay phones:

• On August 27, he reported as calling from a pay phone at 56th Avenue and I-25 in Denver.

• On August 28, he reported as calling from a truck stop at I-225 and Quebec Street in Commerce City.

• On August 30, he reported as calling from another truck stop at I-225 and Quebec in Commerce City. In another call he reported as calling from a truck stop near I-270 and Quebec in Commerce City.

• On September 1, he reported as calling from a gas station on South Broadway in Denver.

• On September 2, he reported as calling from a pay phone at a 7-11 store at 70th and Greenwood in Thornton. In another call he reported as calling from 64th Avenue and Holly Street in Commerce City.

• On September 3, he reported as calling from a pay phone at 36th Avenue and Federal Boulevard in Westminster.

• On September 4, he reported as calling from Willow Court in Thornton. In another call, he reported as calling from a pay phone near I-270 and Quebec in Commerce City.

The evidence indicates that Jones did not call into the automated check-in system after September 4, 2012.

¶ 6 Jones also met with his parole officer at least once after he left the motel. The parole officer asked Jones where he was residing or sleeping, but Jones did not say. Because of that, the parole officer categorized Jones as "AWOL, abscond."

¶ 7 The prosecution charged Jones with failure to register as a sex offender (second offense), alleging that he "failed to register with the local law enforcement agency in each jurisdiction in which he resided upon changing an address" in violation of section 18-3-412.5(1)(g). (Emphasis added.) The prosecution filed the complaint and information in Adams County, alleging that the offense was "committed, or triable, in the county of Adams."

¶ 8 At the close of evidence at the bench trial, Jones moved for a judgment of acquittal. He argued, among other things, that (1) the prosecution presented no evidence of where he resided during the relevant time period, including whether he had resided in Adams County; and (2) ceasing to reside at an address and thereafter lacking a fixed residence does not fall within the meaning of "changing an address" under section 18-3-412.5(1)(g).

¶ 9 The trial court denied the motion. It concluded, among other things, that Jones was in Colorado during the relevant time period, and that although it is unclear whether he had a fixed residence or lacked a fixed residence after he moved out of the motel, the phrase "changing an address" under section 18-3-412.5(1)(g) is broad enough to cover both scenarios. The court later found Jones guilty of violating section 18-3-412.5(1)(g).

II. Standard of Review

¶ 10 For a sufficiency of the evidence claim, we review the record de novo to determine whether the direct and circumstantial evidence, when viewed in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt. People v. Perez, 2016 CO 12, ¶ 8, 367 P.3d 695.

¶ 11 The proper interpretation of a statute is a question of law that we also review de novo. Id.

III. "Changing an Address" Under Section 18-3-412.5(1)(g)

¶ 12 The Colorado Sex Offender Registration Act (Registration Act), sections 16-22-101 to - 115, C.R.S. 2016, requires sex offenders to, among other things, "register with the local law enforcement agency in each jurisdiction in which the person resides." § 16-22-108(1)(a)(I), C.R.S. 2016. Thus, Jones was required to register as a sex offender in each jurisdiction in which he "resided."

¶ 13 Under the Registration Act, the term "resides" includes both having a fixed residence and lacking a fixed residence. See § 16-22-102(5.8), C.R.S. 2016. The parties appear to agree that Jones lacked a fixed residence during the relevant time period (and there is no evidence that he had a fixed residence during that period). Based on the circumstantial evidence that Jones telephoned from a variety of locations—mostly truck stops and pay phones—between August 27, 2012, and September 4, 2012, we conclude that the evidence was sufficient to show that Jones was in Colorado but lacked a fixed residence during that initial portion of the relevant time period. See Perez, ¶ 25 (on a challenge to the sufficiency of the evidence, we give the prosecution the benefit of every reasonable inference that might be fairly drawn from the evidence).

¶ 14 As pertinent here, the Registration Act requires that a sex offender register within five business days before or after each time the person does the following:

• "Changes such person's address," § 16-22-108(3)(a) ; or

• "Ceases to reside at an address and [thereafter] lacks a fixed residence," § 16-22-108(3)(i).

Because Jones ceased to reside at the motel on August 20, 2012, and was in Colorado but lacked a fixed residence between August 27, 2012, and September 4, 2012, he had a duty to register under section 16-22-108(3)(i). See People v. Lopez, 140 P.3d 106, 108-09 (Colo. App. 2005) (failure to register as a sex offender is a continuing offense: "A defendant does not commit the crime only at the particular moment the obligation arises, but every day it remains unsatisfied.") (citation omitted).

¶ 15 So, although Jones violated his duty to register under section 16-22-108(3)(i), what corresponding crime, if any, did he commit under section 18-3-412.5 ?

¶ 16 Section 18-3-412.5 criminalizes the failure to register as a sex offender. Subsections (1)(a) through (1)(k) of that statute delineate particular, distinct crimes of failure to register as a sex offender. See People v. Halbert, 2013 COA 95, ¶¶ 18-19. Each of those crimes corresponds to a particular duty imposed on sex offenders by the Registration Act. See id. at ¶¶ 20-22.

¶ 17 However, additional registration duties under the Registration Act are not specifically enumerated as crimes in subsections 412.5(1)(a) through (1)(k). See Halbert, ¶¶ 1, 35-36. For any of those additional registration duties that a sex offender fails to fulfill, the prosecution must charge the offender with violating section 18-3-412.5(1) —the catchall provision accounting for any failure to register that is not specifically enumerated in subsections 412.5(1)(a) through (1)(k). See § 18-3-412.5(1) ("A person who is required to register pursuant to [the Registration Act] and who fails to comply with any of the requirements placed on registrants by said [Registration Act], including but not limited to committing any of the acts specified in this subsection (1), commits the offense of failure to register as a sex offender [.]") (emphasis added); see also Halbert, ¶ 35 ("[I]n addition to the list of acts described in subsections 412.5(1)(a) through (k), [the catchall provision in] subsection 412.5(1) allows the prosecution to file charges against defendants who fail to comply with any other registration duties imposed on sex offenders by [the Registration Act].").

¶ 18 Here, the prosecution elected to charge Jones only under section 18-3-412.5(1)(g), which criminalizes the "[f]ailure to register with the local law enforcement agency in each jurisdiction in which the person resides upon changing an address, establishing an additional residence, or legally changing names." (Emphasis added.) The...