People v. Poage, No. 09CA1400.

Docket NºNo. 09CA1400.
Citation272 P.3d 1113
Case DateJanuary 26, 2012
CourtCourt of Appeals of Colorado

272 P.3d 1113

The PEOPLE of the State of Colorado, Plaintiff–Appellee,
v.
Donald Jay POAGE, Defendant–Appellant.

No. 09CA1400.

Colorado Court of Appeals, Div. I.

Dec. 8, 2011.As Modified on Denial of Rehearing Jan. 26, 2012.


[272 P.3d 1114]

John W. Suthers, Attorney General, Ryan A. Crane, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Adam Mueller, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge ROMÁN.

Defendant, Donald Jay Poage, appeals the judgment of conviction entered following a bench trial finding him guilty of two counts of failure to register as a sex offender, second offense. We vacate the judgment of conviction.

[272 P.3d 1115]

I. Background

Defendant was required to register as a sex offender pursuant to section 16–22–103, C.R.S.2011. On January 10, 2008, defendant completed an annual registration form with Adams County listing 410 Washington Avenue as his “current home address.” On January 23, 2008, a deputy attempted to verify defendant's residence and found the home vacant.

On February 8, 2008, defendant was charged with two counts of failure to register as a sex offender, and two counts of failure to register as a sex offender, second offense. The information charged defendant under section 18–3–412.5(1)(a), (2), C.R.S.2011 (failure to register), and section 18–3–412.5(1)(i), (2), C.R.S.2011 (failure to complete a cancellation of registration form).

Counts one and three were charged under section 18–3–412.5(1)(a). Because subsection (a) broadly references “article 22 of title 16,” defense counsel filed a motion requesting the prosecution to elect the crimes allegedly committed to enable defendant to prepare a defense. At a September 19, 2008, motions hearing, defense counsel pointed out that section 16–22–108, C.R.S.2011 1, enumerates several requirements, including those listed in section 18–3–412.5. The prosecutor elected to proceed under section 18–3–412.5(1)(g) and (i), stating, “I think [subsection (g) ] is a little more specific to what we're looking at here. And then obviously [subsection (i) ], which deals with the de-registration.”

During a bench trial, defendant testified that he had been living with his mother at the address listed on his annual registration form but that the property had been foreclosed. Defendant testified that he slept at friends' houses and in his car and that his belongings were in storage. He stated that he did not complete a new form with Adams County because he had no address.

Following the People's presentation of evidence, defendant moved for a judgment of acquittal. The trial court determined that the prosecution had failed to meet its burden under section 18–3–412.5(1)(g). The trial court stated:

The problem we have with (a) or (g), [prosecutor], is you have not established the address is within the Adams County jurisdiction, and he had the duty to register with the sheriff under either of those sections.

[The People] have established [defendant] has failed to deregister under subsection (i). And so the real problem with the (a) or (g) allegation is that—that it is incumbent upon the People to establish that the Defendant resided within the jurisdiction, and failed to register with that jurisdiction. That is clearly what the statute requires.

However, the trial court allowed the trial to continue with the charges under section 18–3–412.5(1)(i):

[U]nder (i), deregistration provisions of the statute, the Court notes that the People have established their burden in showing that the Defendant vacated the premises, had not lived within the premises within the period of time as established in the information. And that is from January 15th, 2008, to February 8th, 2008, within that period of time.

The Court finds that the People have established a prima facie case regarding that issue. The Defendant had an obligation to deregister if, in fact, he moved out of that residence and changed addresses. So they have met their burden. And at this point in time the motion to dismiss the remaining two counts under that subsection is denied.

At the conclusion of the trial, the trial court found defendant guilty of failure to register for failing to provide cancellation of registration as required under section 18–3–412.5(1)(i). The trial court also determined that, based on a 2005 conviction for failure to register, the current failure to register conviction was his second offense. Defendant was sentenced to thirty months in the Department of Corrections.

[272 P.3d 1116]

II. People's Election

At the outset, we reject the People's contention that section 18–3–412.5(1) incorporates the entirety of title 16, article 22, and therefore, defendant's actions must be analyzed under section 16–22–108(4)(a), C.R.S.2011. With this argument, the People overlook their election to proceed under section 18–3–412.5(1)(g) and (i). When the People elected to proceed under section 18–3–412.5(1)(g) and (i), they abandoned their arguments under section 18–3–412.5(1)(a). See Crane v. People, 91 Colo. 21, 27, 11 P.2d 567, 569 (1932) (“When the people's evidence is in, an election between the counts is equivalent to a dismissal or abandonment of those not selected.”); see also People v. Thompson, 187 Colo. 252, 255, 529 P.2d 1314, 1316 (1975) (prosecutor's decision to proceed only on one count of the information and to withdraw count two may be considered an acquittal of count two).

Next, we turn to defendant's argument that the evidence was insufficient to support his conviction under section 18–3–412.5(1)(i).

III. Sufficiency of the Evidence

Defendant contends the prosecution did not present sufficient evidence to support his conviction because it failed to establish that he no longer resided in the jurisdiction. We agree.

“The Due Process Clauses of the Colorado and United States Constitutions require the prosecution to prove the existence of every element of a charged offense beyond a reasonable doubt.” People v. Espinoza, 195 P.3d 1122, 1127–28 (Colo.App.2008). To assess the sufficiency of the evidence supporting a guilty verdict, a reviewing court must determine whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to support a rational conclusion that the defendant is guilty of the...

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6 practice notes
  • People v. Doubleday, No. 08CA2433.
    • United States
    • Colorado Court of Appeals of Colorado
    • August 30, 2012
    ...v. Nieto, 993 P.2d 493, 500 (Colo.2000) ("[I]t is presumed that the General Assembly meant what it clearly said."); People v. Poage, 272 P.3d 1113, 1116 (Colo.App.2011) ("We may not adopt a construction that renders any word superfluous."). Thus, it is important that the legislature chose t......
  • People v. Trujillo, Court of Appeals No. 14CA0144
    • United States
    • Colorado Court of Appeals of Colorado
    • February 8, 2018
    ...related to the prosecution of the ... counts of which [Trujillo] was convicted, to the extent an allocation is practicable." Palomo , 272 P.3d at 1113.VII. Amendment to Theft Statute¶ 67 Trujillo contends that he should have benefited from an amendment to the theft statute reclassifying the......
  • People v. Dorsey, Court of Appeals No. 18CA2333
    • United States
    • Colorado Court of Appeals of Colorado
    • October 21, 2021
    ...411 P.3d 47 (noting that each of the subsections of 503 P.3d 149 section 18-3-412.5(1) "establishes a crime"); see also People v. Poage , 272 P.3d 1113, 1116 (Colo. App. 2011) (the subsections in section 18-3-412.5(1) create and define separate crimes related to sex offenders). In other wor......
  • People v. Jones, Court of Appeals No. 14CA2476
    • United States
    • Colorado Court of Appeals of Colorado
    • September 7, 2017
    ...of section 18-3-412.5(1)(g), Jones's conviction under that statutory provision must be vacated. See Halbert, ¶¶ 37, 39 ; People v. Poage, 272 P.3d 1113, 1118 (Colo. App. 2011) ; People v. Griffin, 397 P.3d 1086, 1090 (Colo. App. 2011).¶ 35 Because of this resolution, we need not address Jon......
  • Request a trial to view additional results
6 cases
  • People v. Doubleday, No. 08CA2433.
    • United States
    • Colorado Court of Appeals of Colorado
    • August 30, 2012
    ...v. Nieto, 993 P.2d 493, 500 (Colo.2000) ("[I]t is presumed that the General Assembly meant what it clearly said."); People v. Poage, 272 P.3d 1113, 1116 (Colo.App.2011) ("We may not adopt a construction that renders any word superfluous."). Thus, it is important that the legislature chose t......
  • People v. Trujillo, Court of Appeals No. 14CA0144
    • United States
    • Colorado Court of Appeals of Colorado
    • February 8, 2018
    ...related to the prosecution of the ... counts of which [Trujillo] was convicted, to the extent an allocation is practicable." Palomo , 272 P.3d at 1113.VII. Amendment to Theft Statute¶ 67 Trujillo contends that he should have benefited from an amendment to the theft statute reclassifying the......
  • People v. Dorsey, Court of Appeals No. 18CA2333
    • United States
    • Colorado Court of Appeals of Colorado
    • October 21, 2021
    ...411 P.3d 47 (noting that each of the subsections of 503 P.3d 149 section 18-3-412.5(1) "establishes a crime"); see also People v. Poage , 272 P.3d 1113, 1116 (Colo. App. 2011) (the subsections in section 18-3-412.5(1) create and define separate crimes related to sex offenders). In other wor......
  • People v. Jones, Court of Appeals No. 14CA2476
    • United States
    • Colorado Court of Appeals of Colorado
    • September 7, 2017
    ...of section 18-3-412.5(1)(g), Jones's conviction under that statutory provision must be vacated. See Halbert, ¶¶ 37, 39 ; People v. Poage, 272 P.3d 1113, 1118 (Colo. App. 2011) ; People v. Griffin, 397 P.3d 1086, 1090 (Colo. App. 2011).¶ 35 Because of this resolution, we need not address Jon......
  • Request a trial to view additional results

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