dissenting.
141 Although I would reach the same result in some of the five "Sexually Violent Predator" cases decided by the court today, I do not join the majority opinion in any of the five, largely because of our fundamentally different understandings of both the nature and constitutional limits of the statutory scheme. As there would be little point at this stage in developing my interpretation in detail, I content myself with describing my perspective, in the hope that even this may inspire caution with respect to the implementation of today's holdings and any future modification of the statutory scheme.
1 42 Initially, it must be emphasized that the constitutionality of the scheme as a whole rests entirely on the proposition that the sexually-violent-predator designation, and all it entails, does not constitute a criminal penalty. Were it otherwise, there can be no question that the scheme would fail, for a host of constitutional, process-related reasons. However, none of today's defendants challenge this proposition, notwithstanding the significant differences between our statutory scheme and the registration scheme upheld by the United States Supreme Court in *1114Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), including, for example, our legislature's choice to locate the scheme entirely in the Criminal and Criminal Procedure Codes; to assign to a criminal sentencing court the task of determining sexually-violent-predatory status and include that determination on the defendant's mitti-mus alongside his sentence; and to impose criminal sanctions for failure to comply with the burdens accompanying this status, which sanctions vary in severity with the classification of the defendant's underlying conviction. In the absence of such a challenge and the analysis it would necessarily engender, I believe the majority, as the court of appeals before it, fails to adequately account for the fact that imposing the burdens of sexually-violent-predator status can be constitutional only to the extent the court is performing some function other than criminal sentence-ing. While the absence of a constitutional challenge may justify a presumption, for purposes of these cases alone, that the designation is not a eriminal penalty, it most certainly does not justify actually endorsing the intermediate appellate court's resolution of that question or ignoring the constitutional limitations inherent in our construction of the statutory scheme.
1 43 Against this backdrop, nothing in seetion 18-38-414.5, C.R.S. (2012), allocates more than a factfinding role to the criminal sentencing court. Except in the most extraordinary circumstances, the defendant's age and the crime of which he stands convicted will be straightforward matters of record. Although the precise meaning of the third factor in the definition may require some statutory interpretation, as others of the cases before the court today demonstrate, whether the victim was a stranger or someone with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization is nevertheless clearly a matter of historical fact. Finally, the fourth factor, although ostensibly calling for the determination of a likelihood or prediction of future conduct, in the nature of a finding we have in other contexts characterized as a mixed question of fact and law, see, e.g., People v. Matheny, 46 P.3d 453, 459-61 (Colo.2002) (discussing findings of custody, probable cause, and reasonable suspicion), actually assigns to the court no more than the task of factoring-in the results of a predetermined screening instrument.
44 In this regard, I agree largely with Justice Marquez that by requiring any prediction of future conduct to be based upon the results of the sereening instrument, the legislature has assigned the responsibility, and authority, for determining predictability to a different entity altogether. While I may be less enamored than the majority or Justice Marquez with the so-called evidenced-based-practices approach, which seems to connote a non-analytic but nevertheless anee-dotal, rather than formally empirical, approach; and while I would be more cireum-spect about using the terms "expert" and "expertise" where neither the validity of the instrument itself nor the credentials of the evaluator have been tested according to the rules of evidence, nevertheless, in the absence of a violation of due process, I consider those decisions to rest with the legislature. Rather than granting the court the authority to make a prediction about the likelihood of recidivism, I believe the clear language of the statute simply mandates that the court factor into its findings the results of the sereening instrument.
145 While I therefore would not consider the court authorized to deviate from the methodology of the sereening instrument, as does the majority, I believe (much like Justice Marquez) the statute permits the fact finder to assess the evidence relied on by the evaluator to produce a particular score. By indicating that the determination must be "based upon the results" of the sereening instrument, the statute might actually be understood to require the court to merely accept the score determined by the designated evaluator. See § 18-3-414.5(1)(a)(IV). Because, however, the court is clearly made the finder of fact, I believe the better reading of the statute leaves to the court, just as with the other three sexually-violent-predator factors, the evaluations of weight and credibility, as would be the case even with regard to actual expert testimony. As the trier of fact, the court's ultimate finding remains, of course, subject to review for clear error.
*1115€46 Depending on the specific configuration of the screening instrument at any point in time and the particular aspect of the evaluator's scoring with which the court disagrees, rejecting a score indicating a likelihood of recidivism will, for obvious reasons, be more likely to find record support than rejecting a score indicating no such likelihood. To the extent, however, the sereening instrument includes verifiable matters of ree-ord or matters involving the cireumstances of the defendant's underlying crime, rejection of an evaluator's scoring may well find support in the trial record or records otherwise cognizable by judicial notice. In this regard, however, while I agree with the majority that the interpretation of the third factor in the definition is a matter for the courts, see maj. op. TT 12-14, I find nothing in the statutory scheme precluding the Board from including its own methodology for evaluating "the circumstances described in subparagraph (III)" as an element of its instrument for predicting future predatory behavior, see § 18-3-414.5(1)(a)(IV).
{47 In this case, I believe the record demonstrates that the sentencing court merely disparaged the instrument itself and rescored it to produce positive rather than negative results of a likelihood of recidivism. Like Justice Marquez, I would reject the majority's reliance on factors not considered predictive by the body assigned the task of determining predictability generally, but unlike Justice Marquez, I would find the trial court's rescoring in this case to be without evidentiary support in the record. Because I believe the court's finding that the defendant is a sexually violent predator to therefore be clearly erroneous, I respectfully dissent from the majority's judgment in this case.
1148 As the trier of fact, the eriminal sentencing court's findings with regard to the other factors of the sexually-violent-predator definition should also be reviewed only for clear error, but the interpretation of the statutory terms themselves is not a matter as to which the court is entitled to deference. While the meanings of "stranger" and "established or promoted" are more the subject of other sexually-violent-predator cases decided today, in conjunction with giving my perspective on the scheme as a whole, I note my disagreement with the interpretations of both the majority and concurring opinions. I believe these terms appearing in subpara-graph (III) must be construed of a piece, giving consideration to the expressed purposes and dangers of registration and notification.
1 49 As a single part of the statutory four-part definition of "sexually violent predator," subparagraph (IIl) is clearly designed to narrow the classification by excluding those sex offenders not posing a high enough risk to the community at large to justify community notification. See § 16-18-901, C.R.S. (2012) (Community Notification Concerning Sexually Violent Predators-Legislative dee-laration). To that end, subparagraph (III) excludes those offenders whose designated sexual offenses arose out of, or were facilitated by, a relationship with the victim other than one promoted primarily for the purpose of sexual victimization. Rather than mechanically segregating the key terms and choosing among noncontextual dictionary definitions, I therefore believe the phrase "established or promoted a relationship primarily for the purpose of sexual victimization" should be understood to bring within the classification those sexual assaults resulting from attempts to develop a relationship primarily for the purpose of sexual victimization, however successful those attempts or however established those relationships may be; and the statute's use of the term "stranger" should be understood to comprehend all those sexual assaults not resulting from or facilitated by a relationship between the offender and victim. See § 18-8-414.5(1)(a)(II1).
1 50 Finally, I observe that the offenses for which one may be designated a sexually violent predator include, as exemplified by one of the five sexually-violent-predator cases decided today, see People v. Gallegos, 2013 CO 45, 307 P.3d 1096, 2013 WL 3822612 (involving sexually violent predator designation for conviction of class 5 felony attempted sexual assault on an child), inchoate offenses amounting to no more than misdemeanors or class 5 or 6 felonies, crimes for which sentencing pursuant to the "Colorado Sex Of*1116fender Lifetime Supervision Act of 1998" is not even authorized, compare § 18-1.3-1008(5)(b), with § 18-8-414.5(1)(a)(II). Were it not so, the registration and notification requirements of the scheme could presumably be implemented with greater flexibility as conditions of probation or parole. As presently configured, however, I believe the statutory scheme's constitutional validity to be contingent upon its maintaining a noncriminal nature, a matter I consider to have not yet been meaningfully decided by this court.
[ 51 For the foregoing reasons, I respectfully dissent.