People v. Jones , 405 P.3d 504 ( 2017 )

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
1
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.
2
 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
3
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
4
“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.”
5
¶ 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).
6
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
7
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.)
8
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”
9
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.”
10
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,
11
(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,
12
§ 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.”).
13
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.
14
¶ 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
15
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
16
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.
17
¶ 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.
18