People v. Jones

COLORADO COURT OF APPEALS 2017COA116

Court of Appeals No. 14CA2476
Adams County District Court No. 12CR3553
Honorable Mark D. Warner, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kristopher Ray Jones,

Defendant-Appellant.

JUDGMENT VACATED

Division VII
Opinion by JUDGE RICHMAN
Lichtenstein and Harris, JJ., concur

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
¶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

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 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.

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  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

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 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

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 “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.

¶ 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.”

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¶ 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).

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 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

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 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.)

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 The parties agree that Jones did not “establish an additional

residence” or “legally change names.” The only question is whether

the evidence at trial was sufficient to show that Jones failed to

register with the local law enforcement agency in each jurisdiction

in which he resided “upon changing an address” under section 18-

3-412.5(1)(g).

¶ 19 The People argue that “ceasing to reside at an address and

[thereafter] lacking a fixed residence” under section 16-22-108(3)(i)

can be charged as “changing an address” under section 18-3-

412.5(1)(g). Jones argues “[c]hanges such person’s address” under

section 16-22-108(3)(a) corresponds directly with “changing an

address” under section 18-3-412.5(1)(g), and that “[c]eases to reside

at an address and [thereafter] lacks a fixed residence” under section

16-22-108(3)(i) does not fall within section 18-3-412.5(1)(g).

Instead, Jones argues, a violation of section 16-22-108(3)(i) must be

charged under the catchall provision in section 18-3-412.5(1). We

agree with Jones.

¶ 20 “Our task [in interpreting a statute] is to ascertain and give

effect to the General Assembly’s intent.” Nowak v. Suthers, 2014

CO 14, ¶ 20. In interpreting the phrase “changing an address”

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 under section 18-3-412.5(1)(g), we note that the relevant statutes

do not define that phrase or the word “address.”

¶ 21 So we turn to the plain and ordinary meaning of “changing an

address.” Nowak, ¶ 20. The word “address” is defined as, among

other things, “the designation of a place (as a residence or place of

business) where a person or organization may be found or

communicated with.” Webster’s Third New International Dictionary

25 (2002). Given this definition, the most reasonable interpretation

of the phrase “changing an address” is moving from a fixed

residence at one place to a fixed residence at another place.

¶ 22 However, the People argue that “changing an address”

includes any situation where a person leaves a fixed residence at an

address (even if he or she becomes homeless or transient), in which

case a “change” has occurred. However, even if we assume, without

deciding, that the phrase “changing an address” is ambiguous, the

People’s arguments fail nonetheless.

¶ 23 “Although a term [in a statutory provision] may have a number

of different meanings in the abstract, or standing alone, its intended

meaning in a specific context will often become apparent from the

context, or the greater statutory scheme, in which it is used.”

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 People v. White, 242 P.3d 1121, 1124 (Colo. 2010). We must also

read and consider the statutory scheme as a whole to give

consistent, harmonious, and sensible effect to all its parts. Nowak,

¶ 21. Furthermore, “the historical development of . . . a statutory

scheme can often shed light on the purposes behind its various

component parts.” People v. Jones, 2015 CO 20, ¶ 10.

¶ 24 The historical development of section 18-3-412.5(1)(g) and

section 16-22-108(3) aids our analysis. There are three scenarios

chargeable under section 18-3-412.5(1)(g): failure to register upon

“changing an address,” “establishing an additional residence,” or

“legally changing names.” These three scenarios have remained

unchanged since the legislature repealed and reenacted the statute

in 2002. See Ch. 297, sec. 2, § 18-3-412.5(1)(g), 2002 Colo. Sess.

Laws 1179.

¶ 25 Also in 2002, the legislature enacted the corresponding duties

in section 16-22-108(3). Notably, at that time, there were exactly

three duties listed in section 16-22-108(3), requiring a sex offender

to register within five business days before or after each time the

person,

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 (a) Changes such person’s address, regardless
of whether such person has moved to a new
address within the jurisdiction of the law
enforcement agency with which such person
previously registered;

(b) Legally changes such person’s name; or

(c) Establishes an additional residence in
another jurisdiction or an additional residence
in the same jurisdiction.

Ch. 297, sec. 1, § 16-22-108(3), 2002 Colo. Sess. Laws 1168-69

(emphasis added).

¶ 26 We have no difficulty concluding that, in 2002, the three

scenarios in section 18-3-412.5(1)(g) corresponded precisely with

the three duties listed in section 16-22-108(3)(a) through (3)(c). See

Halbert, ¶ 29 (interpreting the then-existing statutory scheme and

concluding that “changing an address” under section

18-3-412.5(1)(g) corresponded to the duty in section

16-22-108(3)(a)).

¶ 27 In 2012, the General Assembly amended the statutory scheme

to account for the scenario of a sex offender who “lacks a fixed

residence,” in other words, who is homeless or transient. The

General Assembly did so by, among other things, adding

subsections (h) and (i) to section 16-22-108(3). See Ch. 220, sec. 4,

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 § 16-22-108(3)(h), (i), 2012 Colo. Sess. Laws 943. Those

subsections require a sex offender to register within five business

days before or after each time the person,

(h) Ceases to lack a fixed residence and
establishes a residence; or

(i) Ceases to reside at an address and lacks a
fixed residence.

§ 16-22-108(3)(h), (i).

¶ 28 The trial court ruled that the meaning of “changing an

address” under section 18-3-412.5(1)(g) broadened in 2012 when

the General Assembly added subsection (i) to section 16-22-108(3).

We disagree.

¶ 29 When the General Assembly added subsection (i) to section

16-22-108(3), it did not make any corresponding amendment to

section 18-3-412.5(1)(g). If the General Assembly had intended to

broaden the meaning of section 18-3-412.5(1)(g), it could have

amended that provision to explicitly include the situation of a sex

offender who lacks a fixed residence. See Deutsch v. Kalcevic, 140

P.3d 340, 342 (Colo. App. 2006) (“[W]hen the [General Assembly]

includes a provision in one statute, but omits that provision from

another similar statute, the omission is evidence of its intent.”).

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 Also, if ceasing to reside at an address and thereafter lacking a fixed

residence under section 16-22-108(3)(i) were meant to fall within

the meaning of “changing an address” under section 18-3-

412.5(1)(g), then section 16-22-108(3)(i) would be duplicative of

section 16-22-108(3)(a). See Johnson v. People, 2016 CO 59, ¶ 18

(“We must avoid constructions [of a statute] that would render any

words or phrases superfluous . . . .”). Thus, we conclude that the

three scenarios in section 18-3-412.5(1)(g) still correspond with the

three duties in section 16-22-108(3)(a) to (3)(c), and that a violation

of the duty to register in section 16-22-108(3)(i) must be charged

under the catchall provision in section 18-3-412.5(1).

¶ 30 The People nonetheless argue that a violation of the duty to

register in section 16-22-108(3)(i) corresponds to the crime

delineated in section 18-3-412.5(1)(g) because the Registration Act

contains an alternative definition of “lacks a fixed residence” that

includes the scenario of “a change of address.” As we explain

below, this definition by its own terms pertains only to the

Registration Act, and even then, it pertains only to the status of

lacking a fixed residence in that Act. It does not define any term in

the criminal statute.

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¶ 31 The People rely heavily on section 16-22-102(4.3)’s definition

of “lacks a fixed residence.” That section provides in whole,

(a) “Lacks a fixed residence” means that a
person does not have a living situation that
meets the definition of “residence” pursuant to
subsection (5.7) of this section. “Lacks a fixed
residence” may include, but need not be
limited to, outdoor sleeping locations or any
public or private locations not designed as
traditional living accommodations. “Lacks a
fixed residence” may also include temporary
public or private housing or temporary shelter
facilities, residential treatment facilities, or any
other residential program or facility if the
person remains at the location for less than
fourteen days.

(b) “Lacks a fixed residence” also includes a
person who is registered in any jurisdiction if
the person:

(I) Ceases to reside at an address in that
jurisdiction; and

(II) Fails to register:

(A) A change of address in the same
jurisdiction; or

(B) In a new jurisdiction pursuant to section
16-22-108(4); or

(C) Pursuant to section 16-22-108(3).

The People focus on subsection (4.3)(b), arguing that “lacks a fixed

residence” includes the situation of a person who “ceases to reside

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 at an address in that jurisdiction” and “fails to register a change of

address in the same jurisdiction.” (Emphasis added.) Thus, they

argue that if a person ceases to reside at an address and thereafter

“lacks a fixed residence” within the meaning of section 16-22-

108(3)(i), the person has “chang[ed] an address” within the meaning

of section 18-3-412.5(1)(g).

¶ 32 We do not read section 16-22-102(4.3)(b) this way. Section

16-22-102 defines terms used in the Registration Act. Thus, for

example, the definition for “lacks a fixed residence” in section 16-

22-102(4.3)(b) can be used in interpreting the registration

requirement contained in section 16-22-108(3)(i). But the term

“lacks a fixed residence” is not found in section 18-3-412.5(1)(g) or

anywhere else in section 18-3-412.5. Thus, we do not read the

definitional section 16-22-102(4.3)(b) as impacting the meaning of

the term “changing an address” under section 18-3-412.5(1)(g).

¶ 33 We conclude that a violation of the duty to register in section

16-22-108(3)(i) must be charged under the catchall provision in

section 18-3-412.5(1). But here, the prosecution elected to charge

Jones only under section 18-3-412.5(1)(g), and it is therefore bound

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 by that choice.1 See Halbert, ¶ 37 (“The prosecution elected to

charge [the] defendant only under subsection 412.5(1)(a). . . . [T]he

prosecution could have charged him under other subsections, such

as subsections 412.5(1)(g) and (i), or, if the conduct was not

otherwise covered by subsections 412.5(1)(b) through (k), under the

catchall of subsection 412.5(1), but it chose not to do so. . . . [T]he

prosecution did not prove a violation of subsection 412.5(1)(a).”);

see also People v. Carian, 2017 COA 106, ¶¶ 30-36 (finding

conviction not supported by sufficient evidence when proven

conduct is “akin” to a different and uncharged provision of criminal

statute).

¶ 34 Because the evidence at trial did not establish a violation 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).

1 The People have maintained their argument throughout this case
— in the charging instrument, in opposing Jones’s motion for
judgment of acquittal in the district court, and in their briefs and
oral argument on appeal — that the only charge prosecuted against
Jones is failing to register upon changing an address under section
18-3-412.5(1)(g), C.R.S. 2016.

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¶ 35 Because of this resolution, we need not address Jones’s other

contentions. See Halbert, ¶ 38; Poage, 272 P.3d at 1118.

IV. Conclusion

¶ 36 We vacate the judgment.

JUDGE LICHTENSTEIN and JUDGE HARRIS concur.

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