The PEOPLE of the State of Colorado, Plaintiff-Appellee, IN the INTEREST OF J.O., Juvenile-Appellant.
No. 14CA0622
Colorado Court of Appeals, Div. IV.
Announced August 27, 2015
383 P.3d 69, 2015 COA 119
Opinion by JUDGE WEBB
Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Kathryn Crampton, Deputy State Public Defender, Greeley, Colorado, for Juvenile-Appellant
¶ 1 This case might lead one to ponder burdening a juvenile offender about to start adult life with sex offender registration for an indeterminate period of time.
¶ 2 J.O. was adjudicated delinquent for acts that, if committed by an adult, would constitute misdemeanor unlawful sexual contact, attempted misdemeanor unlawful sexual contact, and two counts of indecent exposure. He was fifteen years old at the time of the charged offenses. As part of the adjudication, the magistrate ordered J.O. to register as a sex offender and “comply with all duties and obligations for registration.” On review under C.R.M. 7(a)(10), the district court adopted the magistrate‘s ruling.
On appeal, J.O. raises three questions:
- Was the evidence sufficient to support the adjudication?
- Did he meet the first offense criterion for the magistrate to exercise discretion under section
16-22-103(5), C.R.S. 2014 , and exempt him from sex offender registration? - Did the requirement to register as a sex offender violate his rights under the
Eighth Amendment ?
The third question echoes recent judicial recognition that juvenile offenders “are different from adults in their diminished culpability and greater prospects for reform ... [and] are therefore less deserving of the most severe punishments.” People v. Tate, 2015 CO 42, ¶ 28, 352 P.3d 959 (internal quotation marks omitted).
¶ 3 As matters of first impression in Colorado, we conclude that
- Because J.O. was simultaneously adjudicated for unlawful sexual contact and indecent exposure, he did not meet the first offense criterion in section
16-22-103(5)(a)(III) for exemption from sex offender registration. - Because sex offender registration is not punishment, requiring him to register did not violate his constitutional rights.
And because the evidence was sufficient to support the adjudication, we affirm.
¶ 4 We begin with the two novel issues.
I. J.O. Did Not Meet the First Offense Criterion in Section 16-22-103(5) for Exemption from Sex Offender Registration
¶ 5 Under section
determines that the registration requirement ... would be unfairly punitive and that exempting the person from the registration requirement would not pose a significant risk to the community, the court, upon consideration of the totality of the circumstances, may exempt the person from the registration requirements imposed pursuant to this section.
But a court can exercise this discretion only if all of the following criteria have been satisfied:
- The person was younger than eighteen years of age at the time of the commission of the offense; and
- The person has not been previously charged with unlawful sexual behavior; and
- The offense, as charged in the first petition filed with the court, is a first offense of either misdemeanor unlawful sexual contact, as described in section
18-3-404, C.R.S. , or indecent exposure, as described in section18-7-302, C.R.S. ; and - The person has received a sex offender evaluation that conforms with the standards developed pursuant to section
16-11.7-103(4)(i) , from an evaluator who meets the standards established by the sex offender management board, and the evaluator recommends exempting the person from the registration requirements based upon the best interests of that person and the community; and - The court makes written findings of fact specifying the grounds for granting such exemption.
Id. Otherwise, juveniles who have been adjudicated on the basis of unlawful sexual behavior must comply with sex offender registration requirements. §
¶ 6 J.O. and the prosecutor agreed, as did the magistrate and the district court, that the only criterion in dispute was whether “the offense, as charged in the first petition filed with the court, is a first offense of either misdemeanor unlawful sexual contact ... or indecent exposure.” §
I don‘t believe I can come to any other conclusion that he does not qualify under [section 16-22-103(5)(a)(III) ], and that [he] does not meet within the qualifications as created by the legislature to be able to be exempt from registration.... I believe that he cannot be exempt based upon the convictions of four counts of unlawful sexual behavior.... And, unfortunately, I don‘t believe I have any other choice than what‘s being made, the choice presented to me by the legislature and it is, I believe, clear that I have to order then, [J.O.], that you will have to register as part of your sentence in this case.
The district court agreed.
A. Standard of Review
¶ 7 Interpreting section
¶ 8 When interpreting a statute, our primary objective is to effectuate the intent of the General Assembly by looking at the plain meaning of the language used, considered within the context of the statute as a whole. Bly v. Story, 241 P.3d 529, 533 (Colo.2010). If the statutory language is clear and unambiguous, we do not resort to legislative history or other rules of statutory construction. Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1189 (Colo.2010). In examining a statute‘s wording, “[w]e do not presume that the legislature used language idly and with no intent that meaning should be given to its language.” Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 597 (Colo.2005) (internal quotation marks omitted). Rather, “we strive to interpret statutes in a manner that avoids rendering any provision superfluous.” Qwest Corp. v. Colo. Div. of Prop. Taxation, 2013 CO 39, ¶ 16, 304 P.3d 217.
B. Application
¶ 9 J.O. was adjudicated delinquent based on four separate offenses. Yet he argues—relying on only the plain language of section
¶ 10 To begin, we agree with J.O. and the Attorney General that section
¶ 11 At first blush, one might conclude—as have many courts—that “or” is simply a disjunctive which “reflects a choice of equally acceptable alternatives.” Willhite v. Rodriguez-Cera, 2012 CO 29, ¶ 18, 274 P.3d 1233; see, e.g., Rivera-Bottzeck v. Ortiz, 134 P.3d 517, 521 (Colo.App.2006) (“Ordinarily, the use of the word ‘or’ is assumed to demarcate different categories.“); §
¶ 12 We answer this question by considering whether the General Assembly‘s use of “or” is inclusive or exclusive. See Matter of Estate of Dodge, 685 P.2d 260, 265-66 (Colo.App.1984) (“[T]he English word ‘or’ has two counterparts in Latin: (1) ‘vel’ (often referred to as the ‘inclusive or‘), meaning A or B, or both; and (2) ‘aut’ (often referred to as the ‘exclusive or‘), meaning A or B, but not both.” (citing Reed Dickerson, The Fundamentals of Legal Drafting 76 (1965) (emphasis omitted))); compare id. (“Observation of legal usage suggests that in most cases ‘or’ is used in the inclusive, rather than the exclusive, sense.” (internal quotation marks omitted)), with Denver Horse Imp. Co. v. Schafer, 58 Colo. 376, 384, 147 P. 367, 370 (1915) (The term “or” is “[a] co-ordinating particle that marks an alternative; as you may read or may write—that is, you may do one of the things at your pleasure, but not both....“).2
¶ 13 For the following two reasons, we conclude that use of “or” in subsection
¶ 14 First, the General Assembly‘s use of “or” is limited by the word “either.” This “simple word ... means ‘either,‘—not ‘both.’ ” State v. Coloff, 125 Mont. 31, 231 P.2d 343, 346 (1951); see Stanley v. Cottrell, Inc., 784 F.3d 454, 466 (8th Cir.2015) (finding the term “or” ambiguous where “[t]he plain language of the statute contain[ed] no limiting words or phrases—such as ‘either‘....“); Webster‘s Third New International Dictionary 728 (2002) (The word “either” means “the one or the other of two.“).
¶ 15 Second, section
¶ 16 In the end, because J.O. was adjudicated of both misdemeanor unlawful sexual conduct and indecent exposure, albeit in the same proceeding, he did not meet the first offense criterion of section
II. Requiring J.O. to Register as a Sex Offender Did Not Violate His Constitutional Rights
¶ 17 The
¶ 18 The Supreme Court has recognized that “children are constitutionally different from adults for purposes of sentencing.” Id. at 2464. As a result, the Court has held that the
¶ 19 In J.O.‘s view, this line of authority also means that the
A. Standard of Review and Law
¶ 20 The constitutionality of a trial court‘s sentencing determination is subject to de novo review. People v. Wilder, 2015 COA 14, ¶ 10, ---P.3d ----.
B. Sex Offender Registration is Not Punishment
¶ 21 Before addressing whether a punishment is cruel and unusual under the
¶ 22 In Colorado, “[s]ex offender registration is not an element of a defendant‘s sentence, and the purpose of registration is not to punish the defendant, but to protect the community and to aid law enforcement officials in investigating future sex crimes.” People v. Carbajal, 2012 COA 107, ¶ 37, 312 P.3d 1183; see People v. Montaine, 7 P.3d 1065, 1067 (Colo.App.1999) (The duty to register “does not enhance [a] defendant‘s punishment for the offense.” Rather, it “afford[s] the public with limited access to information concerning persons convicted of offenses involving sexual behavior as a public safety measure.” (internal quotation marks omitted)). These Colorado cases comport with the position of the Supreme Court. Smith v. Doe, 538 U.S. 84, 93, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (upholding Alaska Sex Offender Registration Act‘s constitutionality because statutory text‘s stated public safety objective was nonpunitive).
¶ 23 This public safety rationale has been applied to juveniles in Colorado. In People in Interest of J.T., 13 P.3d 321, 323 (Colo.App.2000), the division rejected the argument “that a juvenile is constitutionally entitled to a jury trial whenever the adjudication of delinquency will result in a requirement that the juvenile register as a sex offender.” It explained that because “[t]he statutory duty to register as a sex offender is not a criminal punishment, [it] does not give rise to [such] a constitutional right.” Id.5 But no Colorado court has addressed the ongoing viability of this rationale after Roper, Graham, and Miller.
¶ 24 Most jurisdictions to have addressed this issue continue to hold that sex offender registration for a juvenile is not punitive.
¶ 25 Consider United States v. Juvenile Male, 670 F.3d 999, 1005 (9th Cir.2012), where the court analyzed whether imposing sex offender registration on juveniles under the Sex Offender Registration and Notification Act (SORNA),
Although ... SORNA may have the effect of exposing juvenile defendants and their families to potential shame and humiliation for acts committed while still an adolescent, the statute does not meet the high standard of cruel and unusual punishment.... These juveniles do not face any risk of incarceration or threat of physical harm. In fact, at least two other circuits have held that SORNA‘s registration requirement is not even a punitive measure, let alone cruel and unusual punishment.
¶ 26 Similarly, in United States v. Under Seal, 709 F.3d 257, 266 (4th Cir.2013), the court held that “when [Congress] enacted SORNA, [it] did not intend to impose additional punishment for past sex offenses but instead wanted to put into place a non-punitive, civil regulatory scheme.” Thus, the court rejected a juvenile‘s assertion that sex offender registration requirements violated the
SORNA does not subject Appellant to an affirmative disability or restraint. It imposes no physical restraint, and so does not resemble the punishment of imprisonment.... SORNA does not restrain activities sex offenders may pursue but leaves them free to change jobs or residences, and registrants need not seek permission
to do so. SORNA does not prohibit changes, it only requires that changes be reported. Although Appellant is required under SORNA to appear periodically in person to verify his information and submit to a photograph, this is not an affirmative disability or restraint. Appearing in person may be more inconvenient, but requiring it is not punitive.
Id. at 265 (citations and internal quotation marks omitted).6
¶ 27 Undaunted, J.O. relies on In re C.P., 131 Ohio St.3d 513, 967 N.E.2d 729, 741 (2012), where the court concluded that a statute imposing an automatic, lifetime requirement of sex offender registration and notification on juveniles violated the
For a juvenile offender, the stigma of the label of sex offender attaches at the start of his adult life and cannot be shaken. With no other offense is the juvenile‘s wrongdoing announced to the world. Before a juvenile can even begin his adult life, before he has a chance to live on his own, the world will know of his offense. He will never have a chance to establish a good character in the community. He will be hampered in his education, in his relationships, and in his work life. His potential will be squelched before it has a chance to show itself.
Id.7 But for two reasons, this case is not persuasive in Colorado.
¶ 28 First, the C.P. court premised its analysis on sex offender registration in Ohio having been held to be generally punitive. See State v. Williams, 129 Ohio St.3d 344, 952 N.E.2d 1108, 1112 (2011) (“[A]ll doubt has been removed: [Ohio‘s sex offender registration statute] is punitive.“). Yet, as discussed above, Colorado courts have reached the opposite conclusion.
¶ 29 Second, C.P. involved “automatic, lifelong registration and notification requirements on juvenile sex offenders tried within the juvenile system.” 967 N.E.2d at 759 (Cupp, J., dissenting) (internal quotation marks omitted). But under section
¶ 30 Without more, we decline to depart from Colorado cases holding that sex offender registration under section
III. The Evidence Was Sufficient to Support J.O.‘s Adjudication
¶ 31 J.O. challenges holdings of the magistrate and the district court that the evidence was sufficient.
A. Preservation and Standard of Review
¶ 32 After the prosecution rested, J.O.‘s counsel moved for judgment of acquittal arguing, as he does on appeal, that the evidence did not show J.O. possessed the requisite intent for unlawful sexual contact and indecent exposure. The motion and argument preserved the issue.
¶ 33 Whether sufficient evidence supports an adjudication is reviewed de novo. People v. Poe, 2012 COA 166, ¶ 13, 316 P.3d 13. In doing so, a reviewing court “may not substitute [its] judgment for that of the [trier of fact] and reweigh the evidence or the credibility of witnesses.” Id. at ¶ 14 (internal quotation marks omitted). Rather, review is
B. Application
1. Law
¶ 34 Under section
the knowing touching of the victim‘s intimate parts by the actor, or of the actor‘s intimate parts by the victim, or the knowing touching of the clothing covering the immediate area of the victim‘s or actor‘s intimate parts if that sexual contact is for the purposes of sexual arousal, gratification, or abuse.
§
¶ 35 Under section
- If he or she knowingly exposes his or her genitals to the view of any person under circumstances in which such conduct is likely to cause affront or alarm to the other person with the intent to arouse or to satisfy the sexual desire of any person;
- If he or she knowingly performs an act of masturbation in a manner which exposes the act to the view of any person under circumstances in which such conduct is likely to cause affront or alarm to the other person.
(Emphasis added.)
2. Analysis
¶ 36 J.O. asserts that sections
a. Attempted Unlawful Sexual Contact
¶ 37 In People v. Vigil, 127 P.3d 916, 931 (Colo.2006), the supreme court held that the phrase “for the purposes of” in section
¶ 38 Here, evidence that J.O. attempted to rub his genitals on the victims, tried to remove the pants of one victim to measure that victim‘s genitals, grabbed one of the victim‘s genitals through his clothing, and tried to hug one of the victims while J.O. was naked supported his adjudications under section
b. Indecent Exposure
¶ 39 In People v. Randall, 711 P.2d 689, 692 (Colo.1985), the supreme court explained that use of the word “likely” in section
Randall, 711 P.2d at 692 (emphasis added). See also Barrus, 232 P.3d at 272 (Insufficient evidence of indecent exposure where nothing showed “that [the] defendant knew the witness saw him or that he attempted to show, exhibit, or display his genitals to her.“).
¶ 40 After Randall and Barrus, section
¶ 41 As to section
requires that the exposure occurs with intent to arouse or gratify the sexual desire of any person. As stated above, intent may be inferred from acts, words, and conduct of the accused. Even in the absence of direct testimony that appellant intended to gratify his own sexual desires by masturbating, the jury was rationally justified in inferring his intent to gratify his sexual desire from his actions.
Shamam v. State, 280 S.W.3d 271, 278 (Tex.App.2007) (emphasis and citation omitted); see also People v. Miralda, 981 P.2d 676, 679 (Colo.App.1999) ( “Intent may, of course, be established from circumstantial evidence and from the inferences that may reasonably be drawn from those circumstances.“).
¶ 42 As to section
¶ 43 Therefore, we agree that the evidence was sufficient to sustain J.O.‘s adjudication.
IV. Conclusion
¶ 44 The judgment is affirmed.
JUDGE GRAHAM and JUDGE TERRY concur.
Notes
Compare the phrase, “if you are a husband or a father, you‘ll understand,” with, “you may eat an apple or an orange.” In the first example, the or is probably inclusive (people who are both husbands and fathers will probably understand, too), but in the second, it is probably exclusive (you are probably not allowed to eat both fruits).