COLORADO COURT OF APPEALS                                          2017COA58


Court of Appeals No. 16CA0104
Douglas County District Court No. 14CR754
Honorable Paul A. King, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Steven Thomas Heisler,

Defendant-Appellant.


                      JUDGMENT AND SENTENCE AFFIRMED

                                    Division V
                         Opinion by CHIEF JUDGE LOEB
                      Rothenberg* and Casebolt*, JJ., concur

                             Announced May 4, 2017


Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Law Office of Daniel Kyser, L.L.C., Daniel H. Kyser, Englewood, Colorado, for
Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1    Defendant, Steven Thomas Heisler, appeals the judgment of

 conviction entered on a jury verdict finding him guilty of one count

 of harassment. Heisler also appeals his sentence. We affirm.

              I.    Background and Procedural History

¶2    The victim and Heisler began dating in 2010 and carried on

 their relationship for three years. After they broke up in 2013, they

 remained in touch. In March 2014, however, the victim told Heisler

 that she was beginning a new relationship and no longer wished to

 communicate with him.

¶3    Heisler ignored the victim’s request and sent her numerous

 text messages and letters, although the victim remained relatively

 unresponsive to these communications. Eventually, in December

 2014, Heisler traveled from Florida, where he lived, to Colorado to

 talk to the victim in person — uninvited and unannounced. When

 the victim saw Heisler outside of her home, she called the police.

 Heisler was arrested and charged with one count of felony stalking

 and one count of harassment. The charging instrument alleged

 that both charges were acts of “domestic violence.” After a jury




                                   1
 trial, Heisler was acquitted of the stalking charge but was found

 guilty of harassment.

¶4    At Heisler’s sentencing hearing, the trial court sentenced him

 to thirty days in county jail and three years of supervised probation,

 which Heisler could serve in Florida. Pursuant to applicable

 statutes, the trial court also found that his conduct underlying his

 conviction included an act of domestic violence. Therefore, the

 court ordered Heisler to complete mandatory domestic violence

 treatment as a condition of his probation.

¶5    Heisler now appeals.

                  II.   Authentication of Text Messages

¶6    Heisler contends that the trial court erred by admitting into

 evidence the text messages he sent to the victim because they were

 not properly authenticated under CRE 901(a). We disagree.

             A.     Applicable Law and Standard of Review

¶7    Before evidence may be admitted, CRE 901(a) requires that the

 evidence be sufficiently authenticated by the proponent.

 Authentication “is satisfied by evidence sufficient to support a

 finding that the [evidence] in question is what its proponent claims

 [it to be].” CRE 901(a); see also People v. Glover, 2015 COA 16,
                                    2
 ¶ 12. “The burden to authenticate ‘is not high — only a prima facie

 showing is required . . . .’” Glover, ¶ 13 (quoting United States v.

 Hassan, 742 F.3d 104, 133 (4th Cir. 2014)).

¶8    The showing required to authenticate text messages under

 CRE 901(a) is a matter of first impression in Colorado. In setting

 this standard, we find the reasoning of the divisions in People v.

 Bernard, 2013 COA 79, ¶¶ 7-13, and Glover, ¶¶ 20-34, both of

 which concern the authentication of other forms of electronic

 communications, instructive.

¶9    In Bernard, a division of this court concluded that an e-mail

 may be authenticated (1) through the testimony of a witness with

 personal knowledge that the e-mail is what it is claimed to be or (2)

 “through consideration of distinctive characteristics shown by an

 examination of [the] contents and substance” of the e-mail under

 the circumstances of the case. Bernard, ¶ 10 (citing CRE 901(b)(1),

 (4)). The witness in Bernard testified that (1) a printout of the

 contested e-mail was a true and accurate copy of the message she

 had personally received from the purported sender; (2) she

 recognized the e-mail address as belonging to the purported sender;


                                    3
  and (3) the contents of the e-mail indicated that it came from the

  purported sender. Id. at ¶ 11. In light of this testimony, the

  division concluded that the prosecution sufficiently authenticated

  the e-mail as being from the purported sender and, therefore, the

  trial court did not abuse its discretion in admitting it. Id. at ¶ 13.

¶ 10   More recently, in Glover, a division of this court expanded the

  Bernard standard, concluding that printouts of a social networking

  site require two levels of authentication. Glover, ¶ 23; see also

  Bernard, ¶ 10.

¶ 11   First, the proponent must authenticate the printouts of a

  social networking site as actual depictions of the site. Glover, ¶ 23.

  This may be done through testimony from someone with personal

  knowledge of how the printouts were obtained, or through an

  examination of distinctive characteristics in the printouts’ content

  or substance. Id. at ¶¶ 23-24.

¶ 12   Second, the proponent must sufficiently authenticate the

  identity of the purported sender by showing that “the

  communications [sent through the social networking site] were

  made by [the] defendant.” Id. at ¶¶ 23, 28. As in Bernard, the


                                     4
  Glover division concluded that the identity of the purported sender

  must be proved “beyond confirmation that the social networking

  account [was] registered to the party purporting to create [the]

  messages.” Glover, ¶ 30; see also Bernard, ¶ 10. However, a

  witness with personal knowledge who testifies to any combination

  of at least two of the following elements would sufficiently

  authenticate the identity of the purported sender: (1) the account

  was registered to the purported sender; (2) corroborative evidence

  showed that the account was used by the purported sender; (3) the

  substance of the communications was recognizable as being from

  the purported sender; (4) the sender “responded to an exchange in

  such a way as to indicate circumstantially that he or she was in fact

  the author of the communication”; and (5) any other confirming

  evidence under the circumstances. Glover, ¶¶ 30-34.

¶ 13   We review a trial court’s evidentiary rulings for an abuse of

  discretion. Davis v. People, 2013 CO 57, ¶ 13. A court abuses its

  discretion when its ruling is (1) based on an erroneous

  understanding or application of the law; or (2) manifestly arbitrary,




                                     5
  unreasonable, or unfair. People v. Esparza-Treto, 282 P.3d 471,

  480 (Colo. App. 2011).

                              B.   Analysis

¶ 14   For the following reasons, we conclude that the text messages

  in this case were properly authenticated and, accordingly, we

  perceive no error by the trial court in admitting them into evidence.

¶ 15   In light of Glover and Bernard, we conclude that

  authentication of text messages has two components. First, a

  witness with personal knowledge must testify that printouts of text

  message(s) accurately reflect the content of the message(s). Second,

  a witness with personal knowledge must provide testimony

  establishing the identity of the purported sender of the text

  message(s). Identity may be established through a combination of

  at least two of the following: (1) the phone number was assigned to

  or associated with the purported sender; (2) the substance of the

  text message(s) was recognizable as being from the purported

  sender; (3) the purported sender “responded to an exchange in such

  a way as to indicate circumstantially that he or she was in fact the

  author of the communication”; or (4) any other corroborative


                                    6
  evidence under the circumstances. Glover, ¶¶ 30-34. Again, “[t]he

  burden to authenticate ‘is not high.’” Id. at ¶ 13 (quoting Hassan,

  742 F.3d at 133). If such evidence has been presented,

  authentication of the text messages has been established under

  CRE 901.

¶ 16   Applying that test here, the record shows that, at trial, the

  prosecution introduced printouts of numerous text messages that

  Heisler had sent to the victim. The victim authenticated this

  evidence in the following ways:

          The victim testified that she recognized the pictures of

             the text messages and that they were a fair and accurate

             depiction of the texts she personally received.

          The victim testified that she recognized the phone

             number as Heisler’s, and that she would use that

             number to communicate with him.

          The victim testified that she recognized the content of the

             text messages as being from Heisler.

¶ 17   Based on this testimony, the prosecution moved to admit the

  evidence. Defense counsel objected and requested voir dire.

                                    7
¶ 18   During voir dire, the victim admitted that she had deleted the

  text messages she sent to Heisler in response. The defense then

  objected to admission of the printouts because they were not a “true

  and accurate depiction of the conversations” between the victim and

  Heisler. The trial court overruled this objection and admitted the

  texts into evidence.

¶ 19   As a threshold matter, we note that Heisler does not argue

  that the printouts of the text messages were not accurate

  representations of the text messages the victim received. Nor does

  he contest that he was the author of the text messages. Instead,

  Heisler contends that the text messages were not properly

  authenticated because the victim deleted her responses. We are not

  persuaded.

¶ 20   First, the record reflects that the prosecution presented

  sufficient evidence that (1) the printouts of the text messages

  accurately reflected the content of the messages the victim received

  and (2) Heisler authored the text messages. The victim testified

  that the printouts accurately reflected the texts she received, she

  recognized the number as being Heisler’s and she would use that


                                    8
  number to communicate with him, she recognized the content of

  the text messages as being from Heisler, and the content of the text

  messages included corroborative evidence that they came from

  Heisler. See Glover, ¶ 13 (noting that the proponent’s burden to

  authenticate the evidence is not high).

¶ 21   Second, the record shows that the text messages were

  admitted as evidence of texts the victim received from Heisler, not

  as evidence of a conversation between the victim and Heisler.

  Therefore, because the victim’s testimony was sufficient to support

  a finding that the text messages were from Heisler (which he did not

  dispute), we conclude that the printouts were properly

  authenticated.

¶ 22   To the extent that Heisler takes issue with the victim’s deletion

  of her responses, that issue goes to the weight of the evidence, not

  its authenticity. Bernard, ¶ 12.

¶ 23   For these reasons, we discern no error by the trial court in

  concluding that the text message evidence was properly

  authenticated.




                                     9
           III.   Facial Challenge to Domestic Violence Statute

¶ 24   Heisler also contends that the domestic violence sentencing

  statute, section 18-6-801(1)(a), C.R.S. 2016, is facially violative of

  his constitutional right to a jury trial under the Sixth Amendment

  to the United States Constitution. In that regard, he contends that

  section 18-6-801(1)(a) improperly authorizes a trial court to make a

  factual determination that the underlying crime of conviction

  included an act of domestic violence and that, if found by the court,

  such a finding mandates domestic violence treatment in addition to

  any other sentence imposed. Heisler thus argues that section 18-6-

  801(1)(a) unconstitutionally imposes a mandatory penalty above the

  minimum of the presumptive sentencing range (here, a $50 fine) in

  violation of Alleyne v. United States, 570 U.S. __, __, 133 S. Ct.

  2151, 2155 (2013). As a corollary to this contention, Heisler also

  contends that the trial court should have instructed the jury to

  determine whether Heisler’s offense included an act of domestic

  violence and that the court erred in denying his request for that

  instruction.




                                     10
¶ 25   The People argue that section 18-6-801(1)(a) does not impose a

  penalty that increases the presumptive sentencing range, and

  therefore no Sixth Amendment violation occurred.

¶ 26   For the reasons below, we agree with the People.

              A.   Applicable Law and Standard of Review

¶ 27   In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the

  Supreme Court announced the following rule:

             The Sixth and Fourteenth Amendments to the
             United States Constitution require that any
             fact that increases the penalty for a crime
             beyond the statutory maximum, except the
             fact of a prior conviction, must be submitted to
             a jury and proven beyond a reasonable doubt.

  People v. Montour, 157 P.3d 489, 495 (Colo. 2007). Under Apprendi,

  the Sixth Amendment “does not permit a defendant to be ‘expose[d]

  . . . to a penalty exceeding the maximum he would receive if

  punished according to the facts reflected in the jury verdict alone.’”

  Ring v. Arizona, 536 U.S. 584, 588-89 (2002) (alteration in original)

  (quoting Apprendi, 530 U.S. at 483).

¶ 28   In Blakely v. Washington, 542 U.S. 296, 306-12 (2004), the

  Supreme Court applied Apprendi and further held that, except for

  the fact of a prior conviction, facts supporting the increase of a

                                    11
  sentence beyond the “statutory maximum” must be admitted by the

  defendant or tried to a jury and proved beyond a reasonable doubt,

  unless the defendant has specifically stipulated to judicial

  factfinding. See Lopez v. People, 113 P.3d 713, 720 (Colo. 2005).

¶ 29   In Alleyne, 570 U.S. at __, 133 S. Ct. at 2155, the Court

  extended Apprendi and held that, with certain exceptions not

  relevant here, any fact that increases a defendant’s mandatory

  minimum sentence must also be found by a jury under the Sixth

  and Fourteenth Amendments.

¶ 30   Together, Apprendi, 530 U.S. at 490, and Alleyne, 570 U.S. at

  __, 133 S. Ct. at 2155, prohibit the legislature from requiring

  “judges to impose enhanced sentences based on constitutionally

  impermissible judicial fact-finding [under Blakely, 542 U.S. at 306-

  12]” that raises the floor or ceiling of the mandatory sentencing

  range. Lopez, 113 P.3d at 731.

¶ 31   Under Colorado law, a person is guilty of harassment where he

  or she directly communicates with a person by text message “in a

  manner intended to harass or threaten bodily injury or property




                                    12
  damage.” § 18-9-111(1)(e), C.R.S. 2016.1 A conviction of

  harassment is a class 3 misdemeanor, § 18-9-111(2), and the

  presumptive sentencing range is a minimum fine of $50 and no jail

  time, and a maximum fine of $750 and/or six months in jail, § 18-

  1.3-501(1), C.R.S. 2016.

¶ 32   Under section 18-1.3-104(1)(a), C.R.S. 2016, a court may

  alternatively order probation:

            When it appears to the satisfaction of the court
            that the ends of justice and the best interest of
            the public, as well as the defendant, will be
            served thereby, the court may grant the
            defendant probation for such period and upon
            such terms and conditions as it deems best.



  1 The full text of section 18-9-111(1)(e), C.R.S. 2016, states that a
  person is guilty of harassment where he or she

            [d]irectly or indirectly initiates communication
            with a person or directs language toward
            another person, anonymously or otherwise, by
            telephone, telephone network, data network,
            text message, instant message, computer,
            computer network, computer system, or other
            interactive electronic medium in a manner
            intended to harass or threaten bodily injury or
            property damage, or makes any comment,
            request, suggestion, or proposal by telephone,
            computer, computer network, computer
            system, or other interactive electronic medium
            that is obscene.
                                    13
            The length of probation shall be subject to the
            discretion of the court and may exceed the
            maximum period of incarceration authorized
            for the classification of the offense of which the
            defendant is convicted but shall not exceed five
            years for any misdemeanor or petty offense.

  § 18-1.3-202, C.R.S. 2016.

¶ 33   As pertinent here,

            [i]n addition to any sentence that is imposed
            upon a person for violation of any criminal law
            under this title, any person who is convicted of
            any crime, the underlying factual basis of
            which has been found by the court on the
            record to include an act of domestic violence, as
            defined in section 18-6-800.3(1)[, C.R.S. 2016],
            . . . shall be ordered to complete a treatment
            program and a treatment evaluation that
            conform with the standards adopted by the
            domestic violence offender management board
            as required by section 16-11.8-103(4), C.R.S.
            [2016].

  § 18-6-801(1)(a) (emphasis added).

¶ 34   “Domestic violence” includes any crime, “when used as a

  method of coercion, control, punishment, intimidation, or revenge

  [and] directed against a person with whom the actor is or has been

  involved in an intimate relationship.” § 18-6-800.3(1). An “intimate

  relationship” includes a former relationship between a past

  unmarried couple. See § 18-6-800.3(2).

                                   14
¶ 35   “‘A trial court has broad discretion over sentencing decisions.’

  However, we review constitutional challenges to sentencing

  determinations de novo.” People v. Jaso, 2014 COA 131, ¶ 8

  (citations omitted). Further, “[o]ut of respect to the legislative and

  executive branches, we begin with the presumption that a statute is

  constitutional.” Montour, 157 P.3d at 499.

¶ 36   “A statute is facially unconstitutional only if no conceivable set

  of circumstances exist under which it may be applied in a

  constitutionally permissible manner.” Id. Thus, “[t]he party

  challenging the facial constitutionality of a statute has the burden

  of showing the statute is unconstitutional beyond a reasonable

  doubt.” Hinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo. 2007).

                            B.    Preservation

¶ 37   The People initially argue that Heisler failed to adequately

  preserve his constitutional contention. We disagree.

¶ 38   After the close of the evidence at trial, defense counsel

  requested a jury instruction on the domestic violence finding.

  Specifically, defense counsel stated:

             DEFENSE: Your Honor, I would be asking
             that [a] special interrogatory be given. I think
                                     15
            in a case like this, something like domestic
            violence is a factual decision. It’s a decision to
            be decided from the facts. So I would ask the
            Court to give the jury . . . [a] domestic violence
            special interrogatory . . . [a]long with the
            definition of domestic violence.

¶ 39   It is clear from the record that the prosecution understood

  Heisler’s objection to be based on the Sixth Amendment, because it

  objected to defense counsel’s request and engaged in the following

  colloquy with the court:

            PROSECUTION: . . . [W]hat triggers Apprendi
            [is] not what we have in this case. There is no
            greater sentence that the Court would be
            imposing. The Court could sentence the
            defendant to domestic violence treatment
            regardless of the jury finding. . . .

            COURT: I want to make sure I understand
            your argument. You’re saying that the
            domestic violence designation in this case . . .
            cannot increase the sentence beyond the
            prescribed statutory maximum in this matter;
            is that correct?

            PROSECUTION: That is correct, Your Honor.

¶ 40   Ultimately, the trial court denied Heisler’s request, concluding

  that Apprendi, 530 U.S. at 490, and Blakely, 542 U.S. at 306-12,

  did not require the jury to determine whether the underlying

  conviction included an act of domestic violence.

                                    16
¶ 41   Further, based on our review of the record, Heisler reasserted

  a Sixth Amendment argument at the sentencing hearing.

¶ 42   Although we recognize that Heisler did not precisely raise a

  facial Sixth Amendment challenge to section 18-6-801(1)(a) under

  Alleyne, 570 U.S. at __, 133 S. Ct. at 2155, “[w]e do not require that

  parties use ‘talismanic language’ to preserve particular arguments

  for appeal, but the trial court must be presented with an adequate

  opportunity to make findings of fact and conclusions of law on any

  issue before we will review it.” People v. Melendez, 102 P.3d 315,

  322 (Colo. 2004).

¶ 43   We conclude that “defense counsel offered the trial court an

  adequate opportunity to commence a sufficient inquiry into the

  [Sixth Amendment] violation” under Apprendi, 530 U.S. at 490, and

  its progeny. Melendez, 102 P.3d at 322. Therefore, this issue was

  properly preserved for our review. Id.

                              C.   Analysis

¶ 44   We hold, as a matter of first impression in Colorado, that

  section 18-6-801(1)(a), which allows a trial court to make a factual

  finding that the defendant’s underlying criminal conviction included


                                    17
  an act of domestic violence, does not run afoul of the Sixth

  Amendment under Alleyne, 570 U.S. at __, 133 S. Ct. at 2155.

  Accordingly, we discern no error in the trial court’s resolution of

  this issue, although we reach our conclusion based on different

  reasoning. Makeen v. Hailey, 2015 COA 181, ¶ 21 (“[W]e can affirm

  on any grounds supported by the record.”).

¶ 45   For the reasons set forth below, we conclude that court-

  ordered domestic violence treatment, imposed pursuant to section

  18-6-801(1)(a), is not a form of punishment and, therefore, the

  statute does not mandate a “penalty” as contemplated by Apprendi,

  530 U.S. at 490, and its progeny. See, e.g., People v. Rowland, 207

  P.3d 890, 895 (Colo. App. 2009) (concluding that the statutory

  sexually violent predator community notification requirement did

  not impose punishment and, therefore, did not violate the Sixth

  Amendment under Apprendi); People v. Stead, 66 P.3d 117, 120-23

  (Colo. App. 2002) (same), overruled on other grounds by Candelaria

  v. People, 2013 CO 47, ¶ 8.

¶ 46   To begin, we note that an essential prerequisite to the Sixth

  Amendment inquiry under Apprendi and Alleyne is that the


                                    18
  sentence must be punitive in nature. See Alleyne, 570 U.S. at __,

  133 S. Ct. at 2158-60; Blakely, 542 U.S. at 306-12; Apprendi, 530

  U.S. at 490-95; see also Rowland, 207 P.3d at 895 (concluding that

  where a sentence is not punitive in nature, Apprendi is

  inapplicable); Stead, 66 P.3d at 123 (same). Although not argued

  by the parties, in our view, the seven-factor test set forth in

  Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), is the

  proper analytical framework for determining whether a sentence

  imposes a form of punishment. Based on our analysis of these

  factors below, we conclude that the prerequisite of punishment is

  not satisfied here.

¶ 47   In Mendoza-Martinez, the United States Supreme Court

  adopted a seven-factor test to determine whether a sentence is

  punitive in nature:

             [1] [w]hether the sanction involves an
             affirmative disability or restraint, [2] whether it
             has historically been regarded as a
             punishment, [3] whether it comes into play
             only on a finding of scienter, [4] whether its
             operation will promote the traditional aims of
             punishment — retribution and deterrence, [5]
             whether the behavior to which it applies is
             already a crime, [6] whether an alternative
             purpose to which it may rationally be
                                     19
            connected is assignable for it, [7] and whether
            it appears excessive in relation to the
            alternative purpose assigned are all relevant to
            the inquiry, and may often point in differing
            directions.

  Id. (footnotes omitted). No one factor is controlling. Rowland, 207

  P.3d at 893.

¶ 48   “Absent conclusive evidence of congressional intent as to the

  penal nature of a statute, [the Mendoza-Martinez] factors must be

  considered in relation to the statute on its face.” Mendoza-

  Martinez, 372 U.S. at 169. Because section 18-6-801(1)(a) contains

  no express legislative declaration regarding its purpose, we apply

  the Mendoza-Martinez factors to determine whether section 18-6-

  108(1)(a) imposes a form of punishment. Mendoza-Martinez, 372

  U.S. at 169; see also Rowland, 207 P.3d at 892; Stead, 66 P.3d at

  120-21.

                 1.   No Affirmative Disability or Restraint

¶ 49   We first conclude that the domestic violence treatment

  program does not impose an “affirmative disability or restraint,” let

  alone restraint approaching “the infamous punishment of

  imprisonment.” In re Cardwell, 50 P.3d 897, 904 (Colo. 2002)

  (quoting Hudson v. United States, 522 U.S. 93, 104 (1997)).
                                     20
  Specifically, domestic violence treatment “does not, on its face,

  restrict where an offender may live or work and does not alter either

  the length of [probation or] incarceration.” Rowland, 207 P.3d at

  893; see also Stead, 66 P.3d at 121.

             2.    Not Historically Regarded as Punishment

¶ 50   We next conclude that domestic violence treatment, which

  prioritizes rehabilitation as well as victim and public safety, is not

  analogous to traditional forms of punishment.

¶ 51   The plain language of section 18-6-801(1)(a) mandates that a

  court-ordered domestic violence treatment program and treatment

  evaluation comport with the standards devised by the domestic

  violence offender management board (the Board) under section 16-

  11.8-103(4); see also Partners in Change, L.L.C. v. Philp, 197 P.3d

  232, 235 (Colo. App. 2008) (“Section 18-6-801(1)(b) unambiguously

  requires that, if treatment is recommended, the treatment program

  must conform with the [Board] [s]tandards.”).

¶ 52   Under section 16-11.8-103(4), the Board shall

             provide for the evaluation and recommend
             behavior management, monitoring, and
             treatment [of domestic violence offenders;] . . .
             [and] develop and implement methods of
             intervention for domestic violence offenders
                                     21
             that have as a priority the physical and
             psychological safety of victims and potential
             victims and that are appropriate to the needs
             of the particular offender, so long as there is
             no reduction in the level of safety of victims
             and potential victims.

  § 16-11.8-103(4)(a)(I). Further, the treatment programs must

             be as flexible as possible so that the programs
             may be utilized by each offender to prevent the
             offender from harming victims and potential
             victims[;] . . . [and] shall be structured in such
             a manner that they provide a continuing
             monitoring process as well as a continuum of
             treatment programs for each offender as that
             offender proceeds through the criminal justice
             system.

  § 16-11.8-103(4)(a)(II).

¶ 53   Lastly, “[i]f an intake evaluation conducted by an approved

  treatment program provider discloses that sentencing to a

  treatment program would be inappropriate” for the defendant, for

  any of the concerns outlined in section 16-11.8-103(4)(a), “the

  [defendant] shall be referred back to the court for alternative

  disposition.” § 18-6-801(1)(a).

¶ 54   In our view, the rehabilitative nature of the domestic violence

  treatment program is clearly set forth in the statutory scheme. We

  further conclude that such treatment is not analogous to traditional

                                     22
  forms of punishment. See, e.g., Rowland, 207 P.3d at 892. Indeed,

  domestic violence treatment is more akin to other sentences,

  imposed through judicial factfinding, that Colorado courts have

  concluded do not violate Apprendi or its progeny. Id. at 895

  (concluding that the Sixth Amendment right to have certain facts

  found by a jury beyond a reasonable doubt does not apply to the

  sexually violent predator community notification requirement

  because such notification is not punitive); see also People v. Smith,

  181 P.3d 324, 326-27 (Colo. App. 2007) (holding that the Sixth

  Amendment right to have certain facts found by a jury beyond a

  reasonable doubt does not apply to restitution orders because, inter

  alia, restitution is not punitive).

¶ 55   Other Colorado cases give further context to the nature of

  punishment. See Allen v. People, 2013 CO 44, ¶ 7 (concluding that

  a sexually violent predator determination is not punitive in nature);

  In re Cardwell, 50 P.3d at 904 (concluding that attorney regulation

  proceedings and sanctions are not punitive in nature, but are

  designed to protect public safety); People v. Milton, 732 P.2d 1199,

  1203-04 (Colo. 1987) (holding that a forfeiture sanction is not


                                        23
  punitive, but remedial, in nature); People In Interest of C.J.R., 2016

  COA 133, ¶ 28 (noting that civil commitment for mental health

  treatment is not punitive in nature); Mayo v. People, 181 P.3d 1207,

  1212 (Colo. App. 2008) (concluding that the sex offender

  registration requirement is not punitive in nature, but, rather, is

  designed to aid law enforcement officials and protect public safety);

  People v. Howell, 64 P.3d 894, 899 (Colo. App. 2002) (concluding

  that imposition of costs is not punitive, but remedial, in nature).2

¶ 56   Thus, we conclude that sentencing a defendant to domestic

  violence treatment is not a traditional form of punishment.

              3.   No Requirement of a Finding of Scienter

¶ 57   Under the plain language of section 18-6-801(1)(a), the trial

  court does not need to make a scienter finding. See § 18-6-800.3(1)

  (defining act of domestic violence); see also Candelaria, ¶¶ 8-17

  (undertaking scienter analysis).

                    4.    Deterrence and Retribution



  2  Indeed, courts in other jurisdictions have addressed almost
  identical arguments to Heisler’s contention here, and they have
  concluded that the Sixth Amendment poses no barrier to court
  findings of domestic violence. See, e.g., Hitch v. State, 51 N.E.3d
  216, 219-20 (Ind. 2016).
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¶ 58   The domestic violence treatment program does have a goal of

  deterrence, because such treatment is specifically designed to

  reduce the occurrence of future acts of domestic violence. See § 16-

  11.8-103(4)(a)(II). However, because we have already concluded

  that the treatment program is not retributive in nature, see § 16-

  11.8-103(4)(a)(I)-(II), the weight of this factor is slight. See Rowland,

  207 P.3d at 894.

                         5.    Criminal Behavior

¶ 59   The behavior to which domestic violence treatment attaches is

  a crime. See § 18-6-801(1)(a); cf. Rowland, 207 P.3d at 894

  (“However, the Supreme Court has de-emphasized this factor,

  pointing out that ‘Congress may impose both a criminal and a civil

  sanction in respect to the same act or omission.’” (quoting United

  States v. Ward, 448 U.S. 242, 250 (1980))).

  6.   Alternative Purpose Rationally Connected to Domestic Violence
                              Treatment

¶ 60   We further conclude that a finding of domestic violence is

  rationally connected to court-ordered rehabilitative treatment. See

  Stead, 66 P.3d at 122. The domestic violence statute is narrowly

  drawn, because it limits the treatment program to only those

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  individuals who (1) have committed an act of domestic violence; (2)

  would benefit from such treatment; and (3) would not pose a risk to

  victims or potential victims. See id.; see also § 16-11.8-103(4)(a)(I);

  § 18-6-801(1)(a). Therefore, “the General Assembly has attempted

  to tailor the purpose of the [program] to its actual effect.” Stead, 66

  P.3d at 122.

¶ 61   Moreover, we discern no alternative, punitive purpose to the

  imposition of domestic violence treatment that undercuts its

  rehabilitative purpose. See Mendoza-Martinez, 372 U.S. at 168-69.

                        7.   No Excessive Burden

¶ 62   Finally, we conclude that, to the extent the domestic violence

  treatment program imposes burdens on a defendant, they are not

  excessive. We recognize that the domestic violence treatment

  program “is not without [some] burdensome consequences to the

  [defendant],” in terms of cost and duration, but “[treatment] is

  primarily directed toward achieving the salutary goal of preventing

  and terminating [domestic violence],” Milton, 732 P.2d at 1204, and

  therefore does not impose an excessive burden on defendants.

¶ 63   In conclusion, the Mendoza-Martinez analysis indicates that

  court-ordered domestic violence treatment, based on a trial court’s
                                     26
  finding of domestic violence under section 18-6-801(1)(a), does not

  impose a punishment as a matter of law. Therefore, we conclude

  that the statute is not facially unconstitutional under Alleyne, 570

  U.S. at __, 133 S. Ct. at 2155. See Rowland, 207 P.3d at 892;

  Stead, 66 P.3d at 123.3

¶ 64   In sum, we perceive no error by the trial court in making a

  finding of domestic violence under the domestic violence statute. In

  light of our resolution of this issue, we further perceive no error in




  3 Our resolution of this issue further comports with the more basic
  theme articulated in Apprendi v. New Jersey, 530 U.S. 466, 490
  (2000), and its progeny, that an unconstitutional aggravated
  sentence must aggravate the same kind of sentence. In this regard,
  a treatment program is materially different from the presumptive
  sentencing range at issue in this case, which involves jail time
  and/or punitive fines, and therefore cannot be viewed as
  aggravating either the minimum or maximum sentences in the
  applicable presumptive range. See Alleyne v. United States, 570
  U.S. __, __, 133 S. Ct. 2151, 2156 (2013) (aggravating prison term
  with additional prison time); S. Union Co. v. United States, 567 U.S.
  343, __ (2012) (aggravating punitive fine range with additional fine);
  United States v. O’Brien, 560 U.S. 218, 223 (2010) (aggravating
  prison term with additional prison time); United States v. Booker,
  543 U.S. 220, 226 (2005) (aggravating prison term with additional
  prison time); Blakely v. Washington, 542 U.S. 296, 306-12 (2004)
  (aggravating prison term with additional prison time); Ring v.
  Arizona, 536 U.S. 584, 588 (2002) (aggravating prison term with
  death sentence); Apprendi, 530 U.S. at 468 (aggravating prison term
  with additional prison time).
                                    27
  the court’s denial of Heisler’s request for a jury instruction under

  Blakely, 542 U.S. at 306-12, and we need not further consider that

  argument. See Club Matrix, LLC v. Nassi, 284 P.3d 93, 99 (Colo.

  App. 2011) (stating that we need not address additional arguments

  rendered moot by our ultimate disposition of an issue).

                             IV.   Conclusion

¶ 65   The judgment and sentence are affirmed.

       JUDGE ROTHENBERG and JUDGE CASEBOLT concur.




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