Opinion by
{1 Defendant, Dennis Floyd Foster, appeals the judgment entered on a jury verdict finding him guilty of one count for failure to register as a sex offender under section 18-3-412.5(1)(a), C.R.98.2012. He also appeals the proportionality of the twelve-year sentence imposed under the habitual eriminal statute, section 18-1.3-801(2)(a), C.R.8.2012. We affirm both the judgment and the sentence.
I. Background
12 While on parole as a registered sex offender, defendant told the Department of Corrections (DOC) "that he had changed his residence" and provided DOC with the address of his new "home" for purposes of parole. That same day, defendant's parole officer went to the new address to ensure that it complied with the terms of his parole. After meeting defendant there and "veri-fyling] that all his clothing and belongings" seemed to be at the new address, the officer approved the residence.
T3 Between two and three weeks later, a detective performed a compliance check at defendant's old address, which was the last address where he had registered as a sex offender under section 16-22-105(@8), C.R.S. 2012. Defendant was not there. The detective spoke to defendant's nieces, who provided conflicting information about where defendant was living. That same day, defendant telephoned the detective and went to the police station, where he was arrested for failure to "register in all jurisdictions in which he ... establishe[d] a residence." Id.
T4 The parties stipulated that defendant "was required to register as a sex offender." The prosecution introduced testimony from defendant's parole officer regarding his conversation with defendant and his inspection
(5 The jury found defendant guilty of having failed to register as a sex offender at the new address. The court held a habitual criminal trial and found that defendant previously had been convicted of failing to register, which elevated his conviction to a class five felony, § 18-8-412.5(@)(a). The court also found that defendant had previously been convicted of two other felonies: aggravated incest and possession of a schedule IV controlled substance with intent to distribute.
T6 Based on these felonies, the court sentenced defendant to twelve years imprisonment under the habitual criminal statutе. He requested a proportionality review of this sentence. The court concluded that the sentence was not so "grossly disproportionate" as to require an extended proportionality review, and determined the sentence was "appropriate."
IL - Admissibility of Defendant's Previous Failure to Register
(17 Defendant first contends the trial court erred by admitting under CRE 404(b) evidence of his previous failure to register as a sex offender. Because this evidence was relevant independent of any inference about defendant's character and was not unfairly prejudicial, the trial court did not abuse its discretion.
A. Standard of Review
18 A trial court may admit CRE 404(b) evidence in its discretion. Yusem v. People,
B. Law
T9 Admitting evidence of other crimes exposes a defendant to the risk of being convictеd based on bad character. People v. Garner,
1. The evidence relates to a material fact;
2. It is "logically relevant ... [by tending] to make the existence of [the material fact] more probable or less probable";
"[Thhe logical relevance is independent of the intermediate inference ... that the defendant has a bad character, which would then be employed to suggest the probability that the defendant committed the crime charged because of the likelihood that he acted in conformity with his bad character"; and
Any prejudicial impact does not. "substantially outweigh[ |" its probative value.
People v. Spoto,
C. Facts
[ 10 Before trial, the prosecution moved to admit evidence of defendant's prior convietion for failure to register as a sex offender ("first offense"). Defendant objected. At the hearing, the prosecution urged admission to show defendant's knowledge of the reporting requlrements and to negate mistake. The trial court concluded that evidence of defendant's plea and conviction was inadmissible under CRE 404(b), but permitted the prosecution to introduce evidence of the facts underlying this conviction. It reasoned that these facts were relevant to show defendant's knowledge of the "nuances of the registration law," and that because khowledge was an element of the offense, the probative value of the evidence substantially outwelghed any unfair prejudice. °
D. Analysis
1. Material Fact
T11 The first prong of the Spoto test "considers not the substance of the prior
112 Here, defendant's knowledge of the registration requirements relates to whether he knowingly failed to register as a sex offender "in all jurisdictions in which he ... establishe[d] a residence." § 16-22-1058) see People v. Rath,
2. Logical Relevance
'T[18 "To satisfy the second prong of the Spoto analysis, the offering party need only show logical relevance-that the prior act evidence has any tendency to make the existence of the material fact more or less probable than without the evidence." Yusem,
1 14 Here, the prior act evidence 1nd1cated that, before defendant's conviction for the first offense, a police officer had told him that he needed to register wherever he 1es1d-ed, even if he maintained multiple res1dences Because both cases involved registration at multiple residences, the officer's warning would imake it more probable that he knew his obligation to register here. Thus, the evidence is Togically relevant. | -
8. Inference Independent: 'of "Bad Character
(15 The relevance of prior act evidence must not depend on, the inference that the defendant commltted the crime charged because he acted in conformity with his demonstrated bad character. Spoto,
{16 Here, independent of propensity, the evidence supports the inference that defendant knowingly violated section 16-22-105(8) when he failed to register at his new address. See supra Part ILD.1-2. This inference arises because the evidence explains how defendant learned of the reporting requirements concerning multiple residences, which some defendants may not know. Since evidence of prior acts is "admissible for other purposes, such as proof of ... knowledge," CRE 404(b), the evidence satlsfies the third prong of Spoto.
4. Probative Value Not Substantially Outweighed by Unfair Prejudice
T17 The final prong of Spoto, which аpplies CRE 408, assesses the value that the evidence in question adds to the prosecution's case, affording it the maximum probative value and the minimum unfair prejudice under the cireumstances. Yusem,
I 18 Here, the evidence was highly probative. The prosecution bore the burden of proving each element of the erime beyond a reasonable doubt, People v. McKnight,
19 Nevertheless, defendant argues that the prosecution's evidence lacked probative value because he "stipulated that [he] was required to register as a sex offender," which purportedly removed his knowledge as an issue in this case. This argument fails because defendant's acknowledging his duty to register is not the same as conceding that he knowingly failed to register. As defense counsel indicated by suggesting in closing argument that defendant would not have failed to register "if that's what he really knew that he was supposed to do," defendant did not stipulate that he had knowingly failed to register.
[ 20 In contrast to this high probative value of the evidence, any unfair prejudice because the jury was told that he had previously offended was minimal. The fury had to consider defendant's knowledge of the registration requirements. < See supro Part II. D.1-2. Thus, any prejudice suffered to defendant's case on this basis was not unfair. See People v. Dist. Court,
T21 Thus, because any unfair prejudice suggested by the prosecution's prior act evi-deneе did not "substantially outweigh[ |" its high probative value, the evidence satisfied the fourth Spoto prong.
122 Accordingly, the trial court did not abuse its «discretion by admitting this evidence.
III,. Prior Conviction Enhancer
123 Defendant next contends the trial court erred in deciding that the prior offense sentence enhancer had been proven, rather than submitting a special interrogatory on this issue to the jury. The Attorney General responds that the invited error doe-trine precludes review, and we agree.
A. +~Standard of Review
«24 The standard of review for invited error has not been addressed by Colorado appellate courts, probably because invited error arises for the first time on appeal, The related doctrine of waiver in criminal cases presents "a mixed question of fact and law that we review de novo." People v. Alengi,
B. Law
125 "The doctrine of invited error captures the 'principle that 'a party may not complain on appeal of an error that he has invited or injected into the case; he must abide by the consequences of his acts.'" Horton v. Suthers,
$26 Invited error most often arises in holding a defendant responsible for tendering or agreeing to a jury instruction later challenged on appeal. See, e.g., Zapata,
T27 Yet, several divisions of this court have declined to apply invited error when the record does not show that defense counsel acted "as a matter of trial strategy." People v. Arzabale,
Where it appears that an error or omission in jury instructions is due to inadvertence or attorney incompetence, the reviewing court should apply the doctrine of plain error. Where, however, the omission is strategic, the invited error doctrine should be invoked.
128 Our supreme court applied invited error most recently in People v. Gross,
then trial courts would be required to evaluate the propriety of counsel's trial strategy to determine whether to give a requested instruction. Such a result would be an untenable burden because assessing coun-set's strategy does not fall within the purview of the trial court. Instead, where counsel's trial strategy is arguably incompetent, it should be challenged on grounds of ineffective assistance of counsel under Crim. P. 85(c). .
Id. at T11. No division of this court has addressed Gross in a published opinion.
C. Facts
$29 At the motions hearing discussed in Part II. C, supra, the parties and the court discussed how to handle defendant's prior conviction for failure to register as a sex offender, given the court's CRE 404(b) ruling. On the first day of trial, the following colloquy ocсurred:
Court: And it looks like a portion of that count talks about the act being committed subsequent to a prior conviction. Am I to read that to the jury? I guess I need to have clarification from counsel with respect to that.
Prosecutor: Your Honor, I did speak to [defense counsel] about that. It's both of our belief [sic] that that is an issue that goes to the [clourt, not to the jury.
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Defense counsel: We agree, [YJ]our Honor.
Based on this exchange, the court observed, "I believe that the parties have agreed that this is a sentence enhancement to be determined by the [clourt," and then read the charge to the prospective jurors without mentioning the prior offense,.
T30 Following jury selection, defense counsel made a further record by acknowledging that defendant was stipulating "there was a felony before that requires him to
still asking the Court to make the determination as to whether or not there was a prior failure to register, which makes this a Class 5 felony. I believe the evidence will show that, but we would still ask the Court to make that finding.
The prosecutor agreed. During trial, the prosecutor did not present evidence of a pri- or conviction for failure to register. And the prior conviction was not addressed in either the elemental instruction or a special interrogatory.
At the habitual criminal trial, the court observed that it had to "determine in Count 1 if the defendant suffered a prior conviction for failure to register, as that could potentially serve as an aggravator." After reviewing evidence of the prior convietion, the court concluded that the prosecutor had proven, beyond a reasonable doubt, that defendant "suffered the felony conviction in Jefferson County for failure to register as alleged in Count 1."
D. -Application
182 Defendant's assertion that he pre-, served the issue of a jury determination on the second offense enhanсer is unpersuasive. He relies on some pretrial statements of the court and the parties that conflate the aggravated incest conviction, which obligated defendant to register, with his later conviction for having failed to register, which would enhance the charged offense to a class 5 felony. However, defense counsel's only unequivocal statements to the court on the enhancer were on the morning of trial, as set forth above. Defense counsel's final statement, in which the prosecutor expressly concurred, leaves no reasoned doubt that counsel chose to have the court, not the jury, decide the enhancer.
€33 Because defendant did not preserve the issue, only plain error review is available. See People v. Chavez,
134 Nevertheless, we consider in the interest of judicial economy whether error invited by affirmative conduct of a defendant precludes plain error review. See People v. Houser,
1 35G@ross, 19, emphasizes that the error in Stewart "resulted from counsel's oversight," and courts may review "inadvertent errors or omissions" for plain error. Following this reasoning, the Gross court reviewed the trial court's failure to give a self-defense instruction for plain error, as defense counsel did not request such an instruction. Id. at T1 16-17. But, the court declined to review a defense-tendered initial aggressor instruction because "defense counsel argued affirmatively for the ... instruction despite opposition by the prosecution." Id. at T 11.
136 Contrasting these holdings, we read Gross to distinguish errors based on trial counsel's omission from those of commission in limiting appellate review, While appellate courts may review the former for plain error, the latter generally will be unreviewable.
137 The doctrine of waiver supports this reading of Gross. Here, although the Attorney General argues only invited error, "(invited error is akin to waived error." People v. Greer, - 262 - P.3d - 920, 937 n.7(Colo.App.2011); see People v. Verbrugge,
138 Whether viewed as waiver or invited error, this distinction between reviewable omission and unreviewable commission highlights the difficulty of testing the latter for attorney incompetence. Imposing on a trial court the "untenable burden" of "assessing counsel's strategy[, which] does not fall within the purview of the trial court." Gross, T11. Such assessment would involve several imponderables, including:
e How should the court decide when to inquire into possible inadvertence, rather than taking dеfense counsel at his or her word? Cf. People v. Gladney,194 Colo. 68 , 71-72,570 P.2d 231 , 233 (1977) (observing that defense counsel often chooses not to request a limiting instruction for strategic or tactical reasons, and therefore holding that a trial court's failure to give such an instruction on its own motion is not reversible error).
eIf the court so "inquires and defense counsel responds only that the strategic implications had been considered, need the court inquire further to preclude the . attorney incompetence exception from . being raised on direct appeal? Cf. People v. Chavez,2012 COA 61 , ¶ 51,318 P.3d 22 (examining a trial court ruling that preceded defendant's eross-examination before concluding that the "decision was presumably trial strategy, not oversight").
e Even if eliciting only such an affirmative answer sufficiently preserves invited error, could that limited colloquy favor the prosecution, which now has a reason to recоnsider the strategic implications and, perhaps as a result, act differently? Cf. People v. Ullery,984 P.2d 586 , 590 (Colo.1999) (interpreting statute to avoid "fore-ing defense counsel to reveal her thoughts, opinions and strategies of the case").
e Finally, would such a dialogue with defense counsel, albeit outside the jury's presence, erode the appearance of impartiality in the eyes of spectators such as victims or their families? Cf. People ex rel. A.G.,262 P.3d 646 , 652 (Colo.2011) (recognizing "the importance of disqualifying a judge whose impartiality might reasonably be questioned"); Nordloh v. Packard,45 Colo. 515 , 521,101 P. 787 , 790 (1909) (stating that the impartial administration of justice is necessary "to retain public respect and secure willing and ready obedience to [courts'] judgments"). <
T39 Probing the attorney incompetence exception when defense counsel has acted affirmatively similarly burdens appellate courts, Those courts must intuit the stratеgic basis for counsel's action, if any. Cf. People v. Rector,
{40 For these reasons, we conclude that, under Gross, where defense counsel has acted affirmatively, the invited error doctrine is not subject to the attorney incompetence exception recognized in Stewart.
IV. Sufficiency of the Evidence '
{41 Defendant next contends record evidence was insufficient to support the conclusion that he "establishe[d] a residence" at his new address, which is required before a jury can find a violation of section 16-22-105(8). While defendant introduced evidence to the contrary, the record contains sufficient evidence to support the jury's verdict. ,
A. - Standard of Review
142 The sufficiency of evidence is reviewed de novo. People v. Robb,
B. Law
T 43 "The sufficiency of the evidence test is constitutionally mandated to ensure that the prosecution proves every element of an offense beyond a reasonable doubt." People v. LaRosa,
C. - Discussion
. 44 "A person establishes a residence through an intent to make any place or dwelling his or her residence." § 16-22-105(3) A division of this court has held that a person must also be physmally present at a location before it can be established as a residence under the statute. People v. Griffin, - P.3d -, -,
1. Intent
1145 A defendant's intent "is usually discerned from the cireumstances surrounding the occurrence [of a crime]l." Baker v. People,
546 According to defendant's parole officer, defendant told DOC more than two weeks before his arrest "that he had changed his residence" and provided DOC with his new address, which he referred to as his "home." 'The parole officer further testified that, when he visited defendant at the new address that same day, defendant said that the new residence "was going to be his permanent residence; that's the only place he was going to be living."
From this testimony, a jury could infer that defendant intended to reside at the new address at least two weeks before he was arrested, When viewed in the light most favorable to the jury's verdict, defendant's use of the word "home" implies acceptance of the new address as his residence, And defendant's telling DOC of. his new address supports this inference.
148 The inference arises from the facts described by the parole officer, regardless of why defendant was communicating with DOC. See Garcia v. People,
50 Therefore, although defendant introduced evidence to the contrary, a reasonable jury could have concluded that defendant intended to establish the new address his residence more than two weeks before his arrest. _
2. Presence
¶51 Defendant also contends that the evi-denee was insufficient to "show that [he] had a 'physical presence' at the [new] address beyond staying there a few nights." But the statute only require some physical presence at the property in which the defendant intends to reside, see Griffin, - P.3d at - (holding that evidence was insufficient to con-viet when it "d[id] not support a finding, beyond a reasonable doubt, that Griffin evеr lived in thle] house" (emphasis added)), which defendant does not dispute, In addition, the parole officer testified that, when he visited defendant at the new address more than two weeks before his arrest, "all [of] his clothing and belongings were there." Considering that defendant's niece also testified he last "stayed" at the old address two weeks before his arrest, sufficient evidence supports the inference that defendant was present at the new address for a period of time.
1 52 Accordingly, because the record contains evidence supporting the jury's findings that defendant both intended to establish a residence and was present at that residence, we may not disturb the jury's verdict for lack of evidence.
V. Proportionality of Defendant's Habitual Criminal Sentence
58 Defendant challenges his twelve-year habitual criminal sentence as "grossly disproportionate" under the Eighth Amendment, alleging that none of his priоr felonies is grave and serious. While defendant's triggering offense was not grave and serious under the cireumstances, we conclude that the felonies underlying the sentence collectively were grave and serious. Therefore, because defendant's sentence did not raise an inference of gross disproportionality, we affirm the sentence. j
A. - Standard of Review
$54 The proportionality of a sentence is reviewed de novo. People v. Strock,
B. Law
55 "[Nlo penalty is per se constitutional." Solem v. Helm,
156 When reviewing a sentence imposed 'under the habitual criminal statute, a court conducts an abbreviated proportionali
T57 Assessing the gravity and seriousness of a defendant's felonies "necessarily is somewhat imprecise." Gaskins,
1 58 "[IIn almost every case, the abbreviated proportionality review will result in a finding that the sentence is constitutionally proportionate." Deroulet,
C. Facts
59 Defendant was convicted of one count of failure to register as a sex offender, which is a class five felony because it was his second offense, § 18-3-412.5(@)(a), C.RS. 2012, The maximum presumptive penalty for a class five felony is three years imprisonment. - § 18-1.3-401(1)(a)(V)(A), (CRS. 2012. However, because the court found that defendant hаd committed three prior felonies, he was sentenced as a habitual erim-inal to twelve years imprisonment, Nee § 18-1.83-801(2)(a).
D. - Analysis
1. Triggering Offense-Failure to Register as a Sex Offender
$60 Our supreme court has not yet addressed whether failure to register as a sex offender is per se grave and serious, Hence, we evaluate the gravity of the offense based on the harm that defendant caused and his culpability. See Strock,
161 Sex offender registration is not intended "to inflict additional punishment, but rather to aid law enforcement officials in investigating future sex erimes and to protect the public safety." People v. Stead,
[ 62 Based on this reasoning, another division of this court held that failure to register as a sex offender is grave and serious "because it threatens harm to society by hinder
{63 Because defendant told DOC of his new address soon after he moved, law en-foreement was able to locate and supervise him, desplte his failure to update his sex offender registration. Further, defendant's parole officer testified that he visited defendant at his new address, searched for contraband, and investigated whether the residence was a safe distance from local schools. Based on this inspection, the officer approved the residence as suitable for a sex offender. This approval indicates that defendant's presence at his new residence posed little threat to his new community. 'And because defendant was unregistered for at most three weeks, any risk of harm from the public's inability to identify defendant as' a sex offender living at the new address was brief. Therefore, defendant's failure to register caused little harm to society.
€64 Considering defendant's culpability supports the conclusion that this offense was not grave and serious. While the jury found that defendant knowingly violated the statute, nothing indicates that he acted with malice. See Gaskins,
4] 65 The state has a valid interest in protecting the community through registration of. convicted sex offenders,. However, this interest does not make every failure to register a grave and serious offense, Because the cireumstances surrounding defendant's conviction here do not "implicate the direct safety of the public," People v. Patnode,
2. Underlying Offenses
1 66 Three other felonies supported defendant's habitual criminal sentence: aggravated incest, failure to register as a sex offender, and possession of a schedule IV controlled substance with intent to distribute. Because these felonies are the "underlying crimes upon which the habitual eriminal adjudication rests," Deroulet,
167 Aggravated incest is a gravе and serious crime, People v. Martinez,
$68 In addition, and notwithstanding our conclusion about defendant's triggering felony, defendant's first failure to register conviction was also grave and serious. Unlike the triggering offense, which was based on a failure to update, the registration with defendant's current address, the underlying failure to register was based on many years of failing to register at any address. According to an affidavit submitted to the court during the habitual criminal trial, defendant lived at "8 or 9 different locations" during this time, in both Colorado and another state. While defendant eventually provid-éd two addresses to police, he did not provide them all, As a result, authorities were "un able to locate him" and could not determine if
169 Defendant argues that his possession of a schedule IV controlled substance with intent to distribute is not grave and serious because the legislature has reclassified this crime as a misdemeanor, See Patnode,
170 Defendant fails to explain, and provides no statutory citation supporting, why this conviction is not still a felony. Thus, "[wle decline to consider a bald legal proposition presented without argument or development." People v. Simpson,
3. Harshness of the Penalty
171 Based on defendant's two grave and serious felony convictions (and likely three, considering defendant's previous narcotic-related felony conviction), the twelve-year sentence is not "so harsh as to give rise to an inference of gross disproportionality." Close,
172 Additionally, defendant's triggering felony conviction leaves him eligible for parole, see § 17-22.5-408(1), C.R.8.2012 ("Any person sentenced for a class 2, class 8, class 4, class 5, or class 6 felony, or any unclassified felony, shall be eligible for parole after such person has served fifty percent of the sentence imposed .. . ."), which also suggests that the sentence is not unduly harsh. See Gaskins,
T78 For these reasons, we conclude that defendant's habitual eriminal sentence, when compared to his tfiggerihg and underlying felonies, does not give rise to an inference of gross disproportionality. Therefore, we need not remand for an extended proportionality review, and we affirm the sentence.
VI. Right to a Speedy Appeal
174 Finally, defendant contends "the excessive and undue delay in the Attorney General's filing of the Answer Brief constituted a denial of due process. We disagree.
A. Standard of Review
T75 Excessive appellate delay may violate a defendant's constitutional right to due process. People v. Whittiker,
B. Discussion
176 When determining whether appellаte delay constitutes a constitutional violation, Colorado courts consider:;
*1164 e The length of the delay argued by defendant;
e The reason for said delay;
® Whether the defendant asserted the right; and
e The prejudice suffered to the defendant's appeal because of the delay.
People v. McGlotten,
177 Here, defendant argues that he was prejudiced by appellate delay only because his incarceration has caused physical and mental harm. However, by affirming the judgment and sentence, we have concluded that defendant is properly incarcerated. Defendant has not argued, nor do we discern, any reason why a more prompt resolution of his appeal "would have yielded a different outcome." - Whittiker, 181 P.8d at 271.
178 Accordingly, we conclude that, because defendant has not demonstrated preJudice, he is not entitled to relief.
VIL - Conclusion
T79 The judgment and sentence are affirmed,
Notes
. In so concluding, we are mindful that Stewart,