People v. Foster
2013 Colo. App. LEXIS 862
Colo. Ct. App.2013Background
- Defendant, a registered sex offender, moved to a new address and informed DOC; a parole officer approved the new address as compliant with parole terms.
- Two to three weeks later, a detective checked the old address; defendant was not there and his nieces provided conflicting information about residence.
- Defendant was arrested for failure to register in all jurisdictions; parties stipulated he had a duty to register as a sex offender.
- At trial, the prosecution offered testimony about his prior failure to register and knowledge of reporting requirements; prior guilty plea to this offense was not heard by the jury.
- The jury found him guilty of failing to register at the new address; the habitual criminal phase found prior convictions and enhanced the sentence to 12 years; defendant requested proportionality review.
- The court conducted an abbreviated proportionality review and affirmed the 12-year habitual sentence, concluding the underlying felonies were grave and serious overall; defendant challenged several evidentiary and procedural aspects, including admissibility of prior-acts evidence and the enhancer’s submission to the jury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of prior bad-act evidence | People contends CRE 404(b) admissible because relevant to knowledge and not unfairly prejudicial | Foster argues admission overly prejudicial and improper to prove knowledge | Admissible; evidence met Spoto requirements and probative value outweighed prejudice |
| Whether prior conviction enhancer must be submitted to the jury | State urged enhancer determined by court under invited-error framework | Foster contends jury should decide enhancement; invited error/plain-error issues | Invited error; enhancer not submitted to jury; reviewed for plain error due to invitation |
| Sufficiency of evidence to prove residence establishment | Prosecution showed intent and physical presence at new address | Defendant contends insufficient evidence of residency | Evidence sufficient for both intent and presence; jury verdict upheld |
| Proportionality of habitual-criminal sentence | 12-year sentence warranted by grave and serious underlying felonies | Sentence grossly disproportionate given triggering offense not grave | Abbreviated proportionality review not indicating gross disproportionality; affirmed sentence |
| Speedy appeal/right to timely appeal | Delay not prejudicial; no due process violation | Delay caused prejudice to appeal | No due-process violation; no demonstrated prejudice |
Key Cases Cited
- People v. Spoto, 795 P.2d 1314 (Colo. 1990) (evidentiary limits under CRE 404(b) and relevance balance under Spoto)
- Yusem v. People, 210 P.3d 458 (Colo. 2009) (standard for CRE 404(b) admissibility; independence from bad character inference)
- People v. Casias, 2012 COA 117, 312 P.3d 208 (Colo. Ct. App. 2012) (appellate review of CRE 404(b) rulings)
- People v. Rath, 44 P.3d 1033 (Colo. 2002) (logically relevant but independent of bad character inference)
- People v. Lopez, 140 P.3d 106 (Colo. App. 2005) (knowledge as an element in failure to register)
- People v. McKnight, 200 Colo. 486 (Colo. 1980) (standards for proving elements beyond reasonable doubt)
- People v. Dist. Court, 785 P.2d 141 (Colo. 1990) (limiting prejudice and admissibility context in CRE 404(b))
- People v. Gibbens, 905 P.2d 604 (Colo. 1995) (use of limiting instructions to mitigate prejudice)
- People v. Green, 2012 COA 68, 296 P.3d 260 (Colo. Ct. App. 2012) (grave and serious offenses under proportionality review; division’s stance)
- People v. Deroulet, 48 P.3d 520 (Colo. 2002) (abbreviated vs extended proportionality review for habitual crimes)
- People v. Close, 48 P.3d 528 (Colo. 2002) (per se grave and serious offenses for proportionality)
- People v. Anaya, 894 P.2d 28 (Colo. App. 1994) (framework for gravity/seriousness in habitual offenses)
- People v. Strock, 252 P.3d 1148 (Colo. App. 2010) (abbreviated proportionality review standard)
- Solem v. Helm, 463 U.S. 277 (1983) (no per se constitutional penalty; gross disproportionality analysis)
- Gross v. People, 2012 CO 60 (Colo. 2012) (invited error doctrine and limits on Stewart rule)
- Zapata v. People, 779 P.2d 1307 (Colo. 1989) (discussion of invited error and strategic trial conduct)