People v. Hunter

Justice MARQUEZ,

dissenting.

1121 I respectfully dissent. The majority concludes in this case that the "context" of the interaction between an offender and victim during an assault is not only relevant, but dispositive to determining whether the offender was a "stranger" for purposes of designating the offender a sexually violent predator ("SVP"). I disagree. The term "stranger" in section 18-8-414.5(1)(a)(IID), C.R.S. (2012), looks strictly to the existing relationship (or lack thereof) between the offender and victim. Importantly, the nature of this relationship does not vary with a victim's ability to identify the offender during an assault. In my view, the majority's context-driven approach misconstrues the purpose of the relationship criterion of the SVP designation under section 18-8-414.5(1)(a)(III) and leads to absurd results.

I.

122 As I note in my concurrence in Allen v. People, the relationship criterion of the SVP designation focuses on the "predatory" nature of the offense. Allen v. People, 2013 CO 44, ¶ 30, 307 P.3d 1102 (Marquez, J., concurring in the judgment). (Given that the SVP designation seeks to identify that subset of high risk predators who warrant community notification, see § 16-13-901, C.R.S. (2012), the relationship criterion in section 18-8-414.5(1)(a)(II1) looks to the pool of vie-tims targeted by sexually violent offenders. The criteria in section 18-8-414.5(1)(a)(III) represent a legislative judgment that an offender poses a higher risk to the broader community where the offender targets "stranger(s]" or seeks to "establish[ ] or promote[ ] a relationship" with individuals "primarily for the purpose of sexual victimization." The general assembly has concluded that the risk posed by such a predatory offender (that is, an offender who demonstrates a propensity to target a broader pool of potential victims) justifies alerting the greater community to the presence of that offender. Thus, the focal point of the relationship criterion is the type of victim targeted; accordingly, section 18-8~414.5(1)(a)(II1) is concerned with the existing relationship (or lack thereof) between the offender and the victim. Importantly, the egregiousness of the offender's conduct during the commission of the sexual assault (although highly relevant to sentencing) has no bearing on this particular aspect of the SVP designation.

123 A "stranger" is "a person not known or familiar to one," maj. op. 110, or "a person or thing that is unknown or with whom one is unacquainted," Webster's Third New International Dictionary 2256 (2002). Thus, a person is a "stranger" if one lacks a general familiarity or acquaintance with that person. Importantly, whether a person is a "stranger" does not depend on the circumstances of a particular interaction; rather, the term reflects the general lack of a relationship between two people. An existing relationship is not altered simply because a person's perception is impaired in some way during an encounter. In other words, a person's temporary inability to recognize a friend or relative under 'certain cireum-stances (because it is dark, or the person's vision is obscured, for example) does not render that friend or relative a "stranger."

*1089IL.

24 The majority holds that "stranger" in the relationship criterion of the SVP statute means "either the victim is not known to the offender or the offender is not known to the victim." Maj. op. 112. I have no quarrel with this narrow definition per se; it is consistent with my view that section 18-3-414.5(1)(a)(III) is focused on the existing relationship between the offender and the vie-tim. My disagreement stems from the majority's application of this definition in this case-in particular, the majority's reliance on the cireumstances of the assault to conclude that a "stranger" relationship existed between the offender and his victims; specifically, cireunmstances that impaired the vie tims' ability to identify their attacker. For example, the majority emphasizes that the assault occurred in the "dead of night," while the mother was "half-asleep"; that Hunter further disoriented the mother and "ob-secured her vision" by placing a blanket over her head and making "confusing statements"; and that he "was wearing a mask," and forced alcohol down the daughter's throat such that she was "likely unconscious" during most of the assault. Maj. op. 1913-16. These cireumstances unquestionably depict the terror Hunter caused his victims during this horrific assault. And, to the extent that the cireumstances of an assault are evidence of whether the offender and victim had an existing relationship, they may be relevant4 However, to the extent such cireumstances merely reflect the vietim's inability to identify an otherwise known assailant, they are irrelevant to the determination of the relationship - criterion - in - section - 18-3-

125 An offender who hinders his victim's efforts to identify him is not necessarily the equivalent of an offender who targets actual strangers or seeks to establish or promote a relationship primarily for the purpose of sexual victimization. The SVP designation contemplates only the latter category of high risk offenders. For example, a jealous ex-boyfriend might attack his former girlfriend in the dark or blindfold her during an assault to avoid being identified. Or, an uncle might drug his niece before sexually assaulting her so that she is too disoriented to resist or recognize her attacker. In these scenarios, the offender has targeted a vietim with whom he has a known relationship-indeed, a vie-tim within his family or cirele of known friends. But under the majority's approach, the victim's inability to identify the offender during the assault becomes dispositive-ren-dering these hypothetical victims "strangers" for purposes of the relationship criterion of the SVP designation. In my view, this approach leads to absurd results and contravenes clear legislative intent to designate as sexually violent predators only those offenders who present a sufficiently high risk to the broader community to warrant affirmative notification. Finally, as I noted in my concurrence in Allen, the majority's reliance on cireumstances suggesting that Hunter conducted his attack to avoid being identified illustrates my concern that courts "may be tempted to allow the horrific cireumstances of a particular crime (appropriately considered for purposes of sentencing) to influence their determination of the separate, statutory SVP designation." Allen, 1838 (Marquez, J., concurring in the judgment).

126 I agree with the court of appeals' conclusion that the trial court applied the wrong legal standard to determine whether Allen qualified as an SVP; however, I would remand the case for further proceedings to determine whether Hunter and the victims were "strangers" within the meaning of seetion 18-8-414.5(1)(a)(III). Regardless, I cannot join the majority in reversing the court of appeals and affirming the trial court's order. Therefore, I respectfully dissent.

I am authorized to state that Justice BOATRIGHT joins in this dissent.

. Indeed, the court of appeals noted that the prosecution argued in closing that Hunter wore a mask during the assault precisely because the victims knew him. People v. Hunter, 240 P.3d 424, 426 (Colo.App.2009).