COLORADO COURT OF APPEALS                                       2017COA89


Court of Appeals No. 14CA1447
Jefferson County District Court No. 13CR2831
Honorable Margie L. Enquist, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Gregory James Wilson,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division V
                           Opinion by JUDGE DUNN
                       Hawthorne and Navarro, JJ., concur

             Prior Opinion Announced May 18, 2017, WITHDRAWN

     OPINION PREVIOUSLY ANNOUNCED AS “NOT PUBLISHED PURSUANT TO
     C.A.R. 35(e)” ON May 18, 2017, IS NOW DESIGNATED FOR PUBLICATION

                           Announced June 29, 2017


Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Lisa Weisz, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Gregory James Wilson is required to register as a sex offender.

 After he was released from custody, he did not do so. He was then

 charged with — and convicted of — failure to register as a sex

 offender. Wilson now appeals that conviction. We affirm.

                   I.    Sufficiency of the Evidence

¶2    Wilson contends that the evidence was insufficient to show

 that he knowingly failed to register as a sex offender. We disagree.

                            A.   Governing Law

¶3    We review de novo whether the evidence is sufficient to

 support a conviction. Dempsey v. People, 117 P.3d 800, 807 (Colo.

 2005). In doing so, we evaluate the evidence as a whole and in the

 light most favorable to the prosecution to determine whether it is

 substantial and sufficient to support a conclusion that the

 defendant is guilty beyond a reasonable doubt. People v. Johnson,

 2016 COA 15, ¶ 16. All reasonable inferences are drawn in the

 prosecution’s favor. Id.

¶4    A defendant is guilty of failing to register as a sex offender

 when, as relevant here, he does not register with his local law

 enforcement agency within five business days after being released




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 from incarceration. § 18-3-412.5(1)(a), C.R.S. 2016; see also § 16-

 22-108(1)(a)(II), C.R.S. 2016.

¶5    Although the statute does not include any specific mental

 state, a division of this court has concluded that “the failure to

 register as a sex offender is not a strict liability offense but includes

 the mental state of ‘knowingly.’” People v. Lopez, 140 P.3d 106, 113

 (Colo. App. 2005). Knowledge requires only that the defendant

 knew the factual circumstances that made his conduct illegal, not

 the “technical understanding of the relevant statutes.” People v.

 Allman, 2012 COA 212, ¶ 36.

¶6    Despite the fact that the prosecution argued at trial that

 Wilson acted knowingly, the People now argue that failure to

 register is a strict liability offense and that People v. Lopez, 140 P.3d

 106, was wrongly decided. Because we conclude that sufficient

 evidence supports the trial court’s finding that Wilson acted

 knowingly, we decline to revisit Lopez.

                              B.    Analysis

¶7    Viewed in the light most favorable to the prosecution, the

 evidence at trial showed the following:




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 upon being discharged from custody on September 23,

  2013, Wilson met with his parole officer;

 his parole officer told Wilson to register as a sex offender

  on or before September 30;

 his parole officer gave Wilson a four-page “notice to

  register as sex offender” (offender notice);

 the offender notice states: “You must register during

  business hours within 5 business days of being released

  into the community or receiving this notice”;

 Wilson initialed every page of the offender notice,

  including right below the five-day registration

  requirement;

 Wilson signed the offender notice, acknowledging that

  “[he] ha[d] received a copy of this [offender] notice, and

  [he understood] that [he] is required to register as a sex

  offender”;

 Wilson admitted at trial that he understood the provision

  requiring him to register within five days;

 Wilson violated his parole and an officer arrested him

  days after his deadline to register had passed; and

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            at the time of his arrest, Wilson had not registered as a

             sex offender.

¶8    We conclude that this evidence is sufficient to support

 Wilson’s conviction for knowingly failing to register as a sex offender

 within five days of being released. See § 16-22-108(1)(a)(II); § 18-3-

 412.5(1)(a).

¶9    Still, Wilson argues that because he was evicted from the

 motel where he was staying on the last day of the five-day

 registration period, he “reasonably believed” he had “an additional

 five days” to register. In support of his argument, Wilson relies

 upon a provision of the offender notice and the registration statute

 that relate to registration requirements for offenders who move.

 Specifically, Wilson points to the section of the offender notice that

 states,

             [i]f you move in state, you must register with
             the law enforcement agency in the jurisdiction
             to which you move within 5 business days
             after moving. You must notify the local law
             enforcement agency where you live if you
             change residences within that agency’s
             jurisdiction or establish additional residences
             in that jurisdiction.




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  See also § 16-22-108(1)(a)(II) (setting forth required registration

  process after a move). Wilson correspondingly testified at trial that

  he believed that once he was evicted and became homeless, he had

  an additional five days to register.

¶ 10   But the offender notice provision and the registration statute

  setting forth an offender’s separate registration requirements upon

  moving do not negate the requirement that an offender “must

  register . . . within 5 business days of being released into the

  community.” See § 18-3-412.5(1)(a); see also § 16-22-108(1)(a)(II)

  (describing five-day registration requirement after release from

  custody). The requirement to register after release is plain, and it is

  tethered to the release from custody — not any particular residence

  upon the offender’s release. See § 16-22-108(1)(a)(II).

¶ 11   The statute in fact recognizes that an offender may not have a

  “fixed residence,” § 16-22-108(1)(a)(I), but it still requires

  registration within five days of “being released into the community.”

  See § 16-22-108(1)(a)(II); see also § 16-22-102(4.3)(a), C.R.S. 2016

  (defining lack of a “fixed residence” as including “temporary public

  or private housing or temporary shelter facilities, residential

  treatment facilities, or any other residential program or facility if the


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  person remains at the location for less than fourteen days”). The

  statute therefore required Wilson to register within five days of his

  release without regard to where he was living or whether his

  location changed during that five-day period. § 16-22-108(1)(a)(II);

  § 18-3-412.5(1)(a). Wilson did not do so, and, as already discussed,

  the prosecution presented evidence that he understood the

  requirement that he had to do so.

¶ 12   Insofar as Wilson suggests that the registration requirement

  that applies to an offender who changes residences somehow

  trumps the five-day registration requirement upon release of the

  offender, we can’t agree. Such a reading renders the latter

  registration requirement essentially superfluous. This we won’t do.

  See People v. Cito, 2012 COA 221, ¶ 15. And to the extent Wilson

  argues he misunderstood the interplay of the two registration

  requirements, such a misunderstanding is not a defense to his

  failure to register. See People v. Mendro, 731 P.2d 704, 707 (Colo.

  1987); cf. People v. Lesslie, 24 P.3d 22, 25 (Colo. App. 2000)

  (identifying basis for asserting mistake of fact and mistake of law

  defenses).




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¶ 13   Because sufficient evidence supports it, we affirm Wilson’s

  conviction for failure to register as a sex offender.

                   II.    Uncontrollable Circumstances

¶ 14   Wilson next contends that the trial court erred in “disallowing

  the affirmative defense of uncontrollable circumstances.” We

  disagree.

¶ 15   A defendant must present “some credible evidence” of an

  affirmative defense to present it at trial. § 18-1-407(1), C.R.S. 2016;

  O’Shaughnessy v. People, 2012 CO 9, ¶ 13. A trial court’s

  determination of whether the defendant satisfied this burden is

  reviewed de novo. O’Shaughnessy, ¶ 13.

¶ 16   Before trial, Wilson filed a notice of defense under section 18-

  3-412.5(1.5). That section states that it is an affirmative defense to

  failing to register as a sex offender when

              (I) Uncontrollable circumstances prevented the
              person from complying;

              (II) The person did not contribute to the
              creation of the circumstances in reckless
              disregard of the requirement to comply; and

              (III) The person complied as soon as the
              circumstances ceased to exist.

  § 18-3-412.5(1.5)(a).


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¶ 17   As relevant here, Wilson’s notice of defense stated that

  “[b]ecause of his homelessness,” he was given a temporary lodging

  voucher and when the voucher expired, Wilson was evicted. And it

  also stated that when Wilson was arrested “he still lacked a fixed

  residence.” The notice did not say that Wilson ever complied with

  the registration requirement.

¶ 18   The prosecution moved to strike the affirmative defense,

  arguing that the legislature specifically contemplated the lack of a

  fixed residence in crafting the registration requirements and thus it

  was not an uncontrollable circumstance. During a pre-trial

  hearing, Wilson again argued that when he was evicted, he was

  “without a fixed place to register, and that becomes the

  uncontrollable circumstance[] in this case.” Agreeing with the

  prosecution that lack of a fixed residence was not an uncontrollable

  circumstance, the trial court granted the motion to strike the

  affirmative defense.

¶ 19   Because the registration statute plainly requires offenders

  without a fixed residence to register, we agree with the trial court

  that Wilson did not present credible evidence that uncontrollable




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  circumstances prevented him from registering. The court therefore

  did not err when it struck the affirmative defense.

¶ 20   Even so, Wilson points to a statutory provision that states that

  individuals sentenced after January 1, 2005, must “confirm [their]

  registration within five business days after release from

  incarceration.” § 16-22-108(1)(a).1 To the extent Wilson argues

  that his homelessness was an uncontrollable circumstance that

  prevented him from “confirming” his registration (as opposed to

  initially registering), he did not make this argument before the trial

  court. But in any event, it is a distinction without a difference.

  That is, Wilson is still responsible for registering as a sex offender,

  by confirming his initial registration. See § 16-22-108(1)(a)(I), (II);

  see also People v. Halbert, 2013 COA 95, ¶ 26 (explaining the

  various obligations a sex offender registrant must fulfill). And

  because the registration statute contemplates registration of

  offenders without fixed residences, Wilson’s homelessness was not



  1 An offender must provide the Department of Corrections with his
  intended residence before being released from incarceration. See
  § 16-22-107, C.R.S. 2016. Then within five business days of
  release, the offender “shall . . . confirm his or her initial
  registration.” § 16-22-108(1)(a)(II), C.R.S. 2016.

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  an uncontrollable circumstance preventing him from confirming

  that registration.

¶ 21   Because Wilson did not present any credible evidence that

  uncontrollable circumstances existed that prevented him from

  registering as a sex offender, we conclude the trial court did not err

  in rejecting his affirmative defense.

                             III.   Conclusion

¶ 22   The judgment of conviction is affirmed.

       JUDGE HAWTHORNE and JUDGE NAVARRO concur.




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