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.

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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




                                   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.




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