People v. Lopez
| Decision Date | 01 December 2005 |
| Docket Number | No. 03CA0241.,03CA0241. |
| Citation | 140 P.3d 106 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jonathan W. LOPEZ, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Matthew S. Holman, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David S. Kaplan, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Defendant, Jonathan W. Lopez, appeals from the judgment entered upon the eighteen-month sentence imposed following a jury verdict finding him guilty of failure to register as a sex offender, second offense. He also appeals the eighteen-month sentence imposed. We reverse and remand for a new trial.
The salient facts are undisputed. In July 2001, Lopez registered as a sex offender with the Montrose County Sheriff's Office. He was informed he would need to register again on or about October 18, 2001, pursuant to the registration statute then in effect.
From August 23 to November 19, 2001, Lopez was serving a ninety-day jail term. While he was incarcerated, he attempted to register as a sex offender, but was informed by agents of the Montrose County Sheriff's Office that they did not allow anyone to register as a sex offender while incarcerated because "it is just . . . extra paperwork." He also did not register upon his release, although he claimed he attempted to do so.
Lopez first contends § 18-3-412.5, C.R.S.2005, which requires him to register quarterly as a sex offender, is unconstitutional on its face and as applied because it violates the constitutional prohibition against ex post facto legislation. The People maintain that he failed to raise this issue in the trial court, and in any event, his argument has been rejected by the United States Supreme Court, by other divisions of this court, and by numerous federal and state courts presented with the issue. See Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); People v. Stead, 66 P.3d 117 (Colo.App.2002); Jamison v. People, 988 P.2d 177 (Colo.App. 1999); see also Kellar v. Fayetteville Police Dep't, 339 Ark. 274, 281-82, 5 S.W.3d 402, 406 (1999)( that "the vast number of federal and state courts confronted with the issue of the validity of sex-offender registration statutes have found the laws constitutional," and listing cases).
We conclude the issue was not properly raised and therefore do not address it.
Lopez contends he is entitled to a judgment of acquittal because he was incarcerated on the date charged in the information and could not register, but the jury was permitted to find him guilty of failure to register as a sex offender based on conduct occurring on a day other than that charged in the information. The People admit Lopez was incarcerated and unable to register on or about the date charged in the information. However, they contend that the offense of failure to register as a sex offender is a "continuing offense," and because there was evidence Lopez failed to register upon his release from jail, the evidence was sufficient to sustain his conviction. We agree with the People that failure to register as a sex offender is a continuing offense and that Lopez is not entitled to acquittal. However, for the reasons discussed below, we order a new trial.
In assessing the sufficiency of the evidence supporting a guilty verdict, a reviewing court must determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt. In applying this standard, we must give the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence. Kogan v. People, 756 P.2d 945 (Colo.1988).
In Toussie v. United States, 397 U.S. 112, 134-35, 90 S.Ct. 858, 870-71, 25 L.Ed.2d 156 (1970), Justice White explained the continuing offense doctrine:
The "continuing offense" is hardly a stranger to American jurisprudence. The concept has been extended to embrace such crimes as embezzlement, conspiracy, bigamy, nuisance, failure to provide support, repeated failure to file reports, failure to register under the Alien Registration Act, failure to notify the local [draft] board of a change in address, and, until [the announcement of this decision], failure to register for the draft. Since the continuing-offense concept too freely applied can lead to tension with the purposes of a statute of limitations, we should undoubtedly approach the task of statutory interpretation with "a presumption against a finding that an offense is a continuing one."
See United States v. Martinez, 890 F.2d 1088, 1091 (10th Cir.1989)(concluding offense of failure to appear under 18 U.S.C. § 3146 is a continuing one based on "the nature of the failure to appear offense and the legislative history").
Determining whether a particular violation of law constitutes a continuing offense is primarily a question of statutory interpretation. Toussie v. United States, supra, 397 U.S. at 134-35, 90 S.Ct. at 870-71.
All six jurisdictions we have found that have addressed the issue whether the failure to register as a sex offender is a continuing offense have held that it is. See State v. Goldberg, 819 So.2d 123 (Ala.Crim.App.2001); State v. Hawkins, 39 P.3d 1126 (Alaska Ct. App.2002); State v. Helmer, 203 Ariz. 309, 53 P.3d 1153 (Ariz.Ct.App.2002); Wright v. Superior Court, 15 Cal.4th 521, 63 Cal.Rptr.2d 322, 936 P.2d 101 (1997); State v. Morse, 54 N.J. 32, 35, 252 A.2d 723, 725 (1969)(clarifying that "only one conviction may be had with respect to one continuous failure to comply with [the statute]").
The rationale in these cases is very similar. As the court explained in State v. Goldberg, supra, 819 So.2d at 127:
Clearly, the Legislature has concluded that sex offenders pose a continuous threat to society. It has also concluded that a registry is necessary to continually monitor their whereabouts for the protection of the public. Therefore, it must have intended for a violation of [Alabama's sex offender registration statute] to constitute a continuing offense.
The court added:
A defendant does not commit the crime only at the particular moment the obligation arises, but every day it remains unsatisfied. Given the persistent and palpable threat to society sex offenders represent, "the nature of the crime involved is such that [the Legislature] must assuredly have intended that it be treated as a continuing one."
State v. Goldberg, supra, 819 So.2d at 129 (quoting Toussie, supra, 397 U.S. at 115, 90 S.Ct. at 860).
We agree with the analyses of these cases and reach the same result. In Colorado, as in the other states, offenders are under a continuing obligation to register. The statute applicable to Lopez requires that he register quarterly and notify authorities of any change of address. We therefore conclude the offense of failure to register as a sex offender, under which Lopez was charged, is a continuing offense and he is not entitled to acquittal.
Our holding is not inconsistent with People v. Duncan, 109 P.3d 1044 (Colo.App.2004). In Duncan, the division construed the version of the failure to register as a sex offender statute then in effect, and concluded its plain language required an offender to register "either on his or her birthday or within one business day thereafter." People v. Duncan, supra, 109 P.3d at 1047.
It was undisputed that the defendant in Duncan did not register on his birthday, but there was no evidence that he failed to register on the first business day following his birthday. Accordingly, the division concluded the evidence was insufficient to prove every element of the offense. The issue of whether failure to register as a sex offender was a continuing offense was not addressed in Duncan.
Although Lopez has characterized it as a question involving the sufficiency of the evidence, we conclude his contention that the prosecution failed to prove beyond a reasonable doubt he failed to register on or about October 23, 2001, is actually a variance argument. We further conclude he is entitled to a new trial on that ground.
As the court explained in Larkin v. State, 88 P.3d 153, 154 (Alaska Ct.App.2004):
Larkin seeks a judgment of acquittal, rather than a reversal of his conviction and a retrial, because he argues that the State took him to trial and then failed to prove its case. Specifically, Larkin claims that because of the difference between the date of the offense shown by the trial testimony and the date specified in the indictment, "reasonable people [would have to agree] that the evidence [presented at trial] was insufficient to establish [that] any crime was committed on or about February 1, 2001."
But this is not truly a "sufficiency of the evidence" argument. Rather, it is a variance argument. Larkin concedes that the evidence presented at his trial was sufficient to establish that he committed the crime of sexual abuse of a minor. The problem, according to Larkin, is that the evidence showed that the offense was committed . . . at least five weeks before the date specified in the indictment. Even though the indictment says "on or about" February 1, 2001, Larkin contends that the phrase "on or about" is not flexible enough to encompass a variance of five weeks.
(Emphasis added.)
We agree with that reasoning and next explain why the variance in Lopez's case requires reversal and remand for a new trial.
Generally, a variance does not require reversal. People v. Adler, 629 P.2d 569 (Colo.1981). However, a variance between the specific date of the offense as alleged in...
To continue reading
Request your trial
-
People v. Foster
...this part of the test.Id. The mental state of "knowingly" is an element of failure to register as a sex offender. People v. Lopez, 140 P.3d 106, 110 (Colo.App.2005).¶ 12 Here, defendant's knowledge of the registration requirements relates to whether he knowingly failed to register as a sex ......
-
People v. Allman
...has held that the prosecution must prove beyond a reasonable doubt that the defendant “knowingly” failed to register. People v. Lopez, 140 P.3d 106, 110 (Colo.App.2005). The division was split on this issue in that case, with well-reasoned opinions by both the majority and dissent. ¶ 34 Con......
-
People v. Rediger
...if we reach the merits of the issue and perceive a constructive amendment, then we should remand for a new trial. See People v. Lopez, 140 P.3d 106, 109 (Colo. App. 2005). Because we cannot say, as a matter of law, that the evidence did not support a conviction under section 18-9-109(2), we......
-
People of The State of Colo. v. PRICE
...variances between the date ranges in the original and amended charging documents “constitute variances to which the holdings [sic] of People v. Lopez ... apply,” and he also asserts that these charging documents include dates during which committing the offense was legally impossible. We ar......
-
ARTICLE 3
...necessary to continually monitor sex offenders, it follows that the failure to register offense is a continuing offense. People v. Lopez, 140 P.3d 106 (Colo. App. 2005). When the prosecution relies on the continuing offense doctrine to prosecute a failure to register offense, the prosecutio......
-
ARTICLE 3 OFFENSES AGAINST THE PERSON
...necessary to continually monitor sex offenders, it follows that the failure to register offense is a continuing offense. People v. Lopez, 140 P.3d 106 (Colo. App. 2005). When the prosecution relies on the continuing offense doctrine to prosecute a failure to register offense, the prosecutio......
-
Disciplinary Opinion
...law supports their assertion that Respondent, as a matter of law, knowingly failed to register as a sex offender. See People v. Lopez, 140 P.3d 106 (Colo.App. 2005) (mental state of "knowingly" is an element of the offense of failure to register as a sex offender).(fn5) Therefore, the Peopl......