Opinion by
§1 Defendant, Gejuan Levar Lancaster, appeals the judgment of conviction and sentence on a jury verdict finding him guilty of kidnapping, two counts of sexual assault, menacing, and third degree assault. We conclude that the trial court.did not err in (1) denying Lancaster's motion to suppress a DNA profile that he contends resulted from a violation of his rights under the United States and Colorado Constitutions and (2) denying without 'an evidentiary hearing his motion to allow evidence that the victim had a history of making false allegations of sexual assault, We further conclude that the record is not sufficiently developed for us to determine whether the trial court misperceived the applicable sentencing range for Lancaster's sexual assault counts, Accordingly, we
I. Background
T2 Late one evening in November 2009, a man approached the victim on a street after the victim had left a friend's apartment. After following her for a time, the man walked up to the victim, wrapped his arm around her neck, and said, "Come here girl." She screamed, and he told her that he had a gun and that if she did not stop screaming, he would shoot her in the head. He then forced her into a field and sexually assaulted her. During the assault, she felt what she thought was a gun in the man's Jacket pocket. After the man left, the victim went to a nearby home, and the residents let her in and called 911, A DNA swab was subsequently taken from the victim, and the resulting DNA profile was uploaded to both a Colorado database and the Combined DNA Index System (CODIS) national DNA database.
113 As a result of the above-described assault, the People charged Lancaster with numerous counts of kidnapping, sexual assault, menacing, and third degree assault. The case proceeded to trial, where Lancaster presented a misidentification defense,. The jury convicted him as charged, and the trial court sentenced him, as pertinent here, to an indeterminate prison term of twenty-five years to life on the sexual assault counts, both of which were class two felonies.
1 4 Lancaster now appeals.‘
II. DNA Evidence
T5 Lancaster contends that the trial court erred in denying his motion to suppress DNA evidence that he asserts was developed as a result of violations of his federal and state constitutional rights We perceive no basis for reversal.
A. Pertinent Facts
T6 Although the record is not entirely clear, it appears that in October 2010, approximately one year after the sexual assault at issue, Lancaster was arrested on a warrant for the revocation of his deferred sentence on a prior misdemeanor harassment charge, That deferred sentence had been imposed as part of a plea bargain in a case in which Lancaster was initially facing felony charges. - Apparently because Lancaster's criminal history erroneously indicated that he had been convicted of a felony in that case, the police took a buccal swab of Laneas-ter's mouth.
T7 Several months later, Lancaster was again arrested, this time in connection with apparent traffic violations. The police took another buccal swab at that time.
18 Two days after the police took this swab, Lancaster was arrested on a felony robbery charge.
« 9 Subsequently, the above-described buecal swabs were tested, and the analysis of at least the first sample resulted in a match with the DNA profile of the man who had sexually assaulted the victim in this case, Based on this initial match, the police obtained an order pursuant to Crim. P. 41.1 to collect another DNA sample from Lancaster. They did so, and the analysis of this sample also resulted in a match with the DNA profile of the man who had sexually assaulted the victim.
¶ 10 Prior to trial, Lancaster filed a motion to suppress the DNA profile developed after the police had obtained the Crim. P. 41.1 order and collected the third DNA sample from him. He asserted that the ultimate match resulted from a DNA sample taken in violation of (1) Katie's Law, §§ 16-28-101 to -105, C.R.8.2014; (2) the Fourth Amendment of the United States Constitution; and (8) article II, section 7 of the Colorado Constitution.
I 11 After a hearing, the trial court denied this motion. Although the court found that the police had violated Katie's Law when they took the first two samples, it found no evidence of bad faith or malice and further concluded that the warrantless collection of Lancaster's DNA fell within the "special needs" exception to the warrant requirements of the United States and Colorado Constitutions.
B. Discussion
112 When reviewing a trial court's order on a motion to suppress, we defer to
13 Section 16-28-108(1)(a) provides that an arresting law enforcement agency shall, as part of its booking process, collect a biological sample from any adult arrested on or after September 80, 2010 for a felony offense or for the investigation of a felony offense.
114 In addition, "(tlhe Fourth Amendment to the United States Constitution and article II, § 7 of the Colorado Constitution - protect - against - unreasonable searches and seizures." People v. Rossman,
115 The so-called "special needs" exception is one such exception. Rossman,
Under that exception, a warrant, probable cause, or even individualized suspicion of wrongdoing need not be shown where "special needs, beyond the normal need for law enforcement" exist, and the search or seizure is found to be "reasonable" after balancing the government's special need against the individual's asserted privacy interests. j
Id. (quoting People v. Shreck,
{16 DNA databases serve a number of special needs beyond the need of law enforcement officials to secure evidence of wrongdoing against a particular suspect. Shreck,
{17 Weighed against the government's special need is the individual's asserted privacy interests, See Rossman,
118 As pertinent here, the privacy expectations of a suspect who is taken into custody are diminished. See Maryland v. King, — U.S, —,
DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.
Id. at —,
119 Similarly, courts have recognized that people under the supervision of the probation department may have diminished privacy interests. See Casillas, ¶¶ 25, 27-34, — P.3d at — (considering the privacy interests of a juvenile on a deferred adjudication); Rossman,
4 20 And in considering an individual's privacy interests, the Supreme Court has noted that "the intrusion of a cheek swab to obtain a DNA sample is a minimal one." King, - U.S. at -,
{21 Here, DNA samples were taken from Lancaster after he was arrested on a warrant for the revocation of a deferred sentence on a misdemeanor harassment charge and also when he was arrested for misdemeanor traf
122 First, evidence seized as a result of a statutory violation does not ordinarily require suppression, unless the seizure was willfol and recurrent. Casillas, ¶ 19, - P.3d at -. Lancaster does not argue, nor would the record support a conclusion, that the violation of Katie's Law was willful and recurrent.
1283 Second, the record and the above-cited case law demonstrate that the government's interest in the DNA sample was not outweighed by Lancaster's privacy interests, This is particularly true in this case, where (1) Lancaster was a suspect taken into custody, see King, — U.S. at —,
124 Third, notwithstanding Lancaster's assertion to the contrary, the state constitution provides the same, not greater, protection in this area than the Fourth Amendment. See Rossman,
T 25 Accordingly, we conclude that the trial court did not err in denying Lancaster's motion to suppress the DNA profile that was allegedly developed as a result of the prior warrantless collections of DNA evidence from him. .
€26 We are not persuaded otherwise by Lancaster's argument that the search here was unconstitutional because Lancaster was only in custody for misdemeanor offenses. Although in King, — U.S. at —,
¶ 27 Nor are we persuaded by Lancaster's argument that the search here was unreasonable because Katie's Law has. the express purpose of solving and preventing crime, while the King Court stated that the Maryland statute at issue in that case was concerned with processing and identifying people taken into custody, See King, - U.S. at -,
{28 And we see nothing in People v. Williams,
{ 29 Finally, we acknowledge that in Casillas, ¶ 27, - P.3d at -, the division concluded that a juvenile on a deferred adjudication has a greater expectation of privacy with respect to DNA collection than a juvenile probationer. This conclusion, however, does not assist Lancaster, who had been arrested on a warrant for revocation of his prior deferred sentence when the first DNA sample was taken from him. In Casillas, "there [was] no evidence that Cagillas' juvenile probation officer had reasonable suspicion to believe that Casillas violated any terms of his juvenile probation while on the deferred adjudication." Casillas, ¶ 31, - P.3d at -. This fact, when read together with the juvenile DNA collection statute there at issue, led the division to conclude that the state's interest did not outweigh the juvenile's privacy interest, Id. at ¶¶ 4 27-34, - P.3d at -. In this case, in contrast, it was undisputed that Lancaster had violated the terms of his deferred sentence.
III. Rape Shield Evidence
1 80 Lancaster next contends that the trial court abused its discretion and violated his constitutional right to present a defense when it denied without an evidentiary hearing his motion to allow him to introduce evidence that the victim had. a history of making false allegations of sexual assault. We are not persuaded.
A. Pertinent Facts
- 81 Prior to trial, Lancaster filed a motion pursuant to Colorado's rape shield statute, § 18-3-407, C.R,.§.2014, seeking to permit him to introduce evidence that the vietim had a history of making false allegations of sexual assault. Specifically, in an affidavit attached to the motion, defense counsel attested that years prior to the sexual assault at issue, the victim made two. separate reports of sexual assault, each one alleging a different perpetrator. - ©
1 32 In the first report, the victim alleged that she had been sexually assaulted by GP. That case was closed after the victim refused to cooperate in the investigation of her allegations,
1 33 In the second report, counsel asserted that the victim had made allegations of sexual assault against J VR and that
[dJuring the investigation of this case, police received information from an unnamed witness suggesting the allegations made by [the victim] against [J.V.R.] were false. The charges against [J.V.R.] were subsequently dismissed by the court.
4 34 The trial court denied Lancaster's motion, concluding that as a matter of law, the motion did not merit an evidentiary hearing.
B. Sufficiency of the Offer of Proof
185 We review a trial court's evi-dentiary rulings, including its determination of evidence's admissibility under the rape shield statute, for an abuse of discretion. People v. Cook,
136 Colorado's rape shield statute "deems the prior or subsequent sexual conduct of any alleged victim to be presumptively irrelevant to the eriminal trial," People v. Weiss,
€38 If the court finds that the offer of proof is sufficient, the court must notify the other parties of this finding. § 18-3-407(2)(c). If the prosecution stipulates to the facts in the offer of proof, then the court must rule on the motion without a hearing. Id. Otherwise, the court must set an in camera hearing prior to trial. Id.
$89 Accordingly,
[tlo invoke a rape shield hearing to pierce the statute, defendant's motion must be accompanied by an offer of proof under section 18-8-407(2)(b) sufficient to demonstrate, by a preponderance of the evidence, at the in camera evidentiary hearing that the alleged victim made multiple reports of prior or subsequent sexual assault that were in fact false Because a prosecutor may decline to bring charges for any number of reasons, the fact that sexual assault reports by the victim did not result in charges being brought is not a sufficient offer of proof upon which a trial court may order an evidentiary hearing pursuant to section 18-8-407(2).
Prosecutorial discretion to bring or not bring charges is extraordinarily wide. Many considerations go into deciding whether to file a case and, if filed, whether to continue pursuing it. In sexual assault cases, victims must consider the emotional price they will have to pay in placing their most intimate personal experiences before the public, and prosecutors may be called upon to abandon the case at the victim's insistence or for other strategic reasons.
Weiss,
140 Here, Lancaster's offer of proof was insufficient to demonstrate, by a preponderance of the evidence, the falsity of the vie-tim's second report. Specifically, although counsel alleged that the second report resulted in charges that were dismissed, as noted above, such an allegation is insufficient, in and of itself, to establish the falsity of the report, See id. Moreover, although Lancaster alleged that the police received information from an unnamed witness suggesting that the victim's report was false, this information would have been inadmissible hearsay. See id. at 1186-87 ("An 'offer of proof typically states ... all the facts necessary to establish the testimony's admissibility.").
« 41 Accordingly, Lancaster's offer of proof demonstrated, at most, only one prior false report of sexual assault. The offer was thus insufficient to warrant a hearing under the rape shield statute. See id. at 1188.
C. Right to Present a Complete Defense
$42 Because Lancaster did not argue to the trial court that its ruling regarding the rape shield evidence violated his right to present a complete defense, we review that contention for plain error. See People v. Clark,
An erroneous evidentiary ruling may rise to the level of constitutional error if it deprived the defendant of any meaningful opportunity to present a complete defense,. A defendant's right to present a defense is violated only where the defendant was denied virtually his only means of effectively testing significant prosecution evidence.
People v. Conyac,
T48 Although Lancaster argues that the rape shield evidence would have been material to a consent defense, he never advanced such a defense at trial, In fact, Lancaster consistently maintained, from his first statements to the police through trial, that he did not even know the vietim,
{44 In addition, Lancaster does not explain, nor do we perceive, how the court's ruling on the rape shield evidence denied him
145 Accordingly, we perceive no error, much less plain error, regarding Lancaster's right to present a complete defense.
IV. Sentencing
$46 Finally, Lancaster contends that the trial court misapprehended the sentencing range for sexual assault and erroneously sentenced him outside the presumptive range. Because the record is not sufficiently developed for us to determine this issue, we vacate the sentences on the sexual assault counts and remand for resentencing on those counts.
A. Pertinent Facts
47 Lancaster was convicted of sexual assaults as class two felonies. In connection with its verdicts on those counts, the jury expressly found that Lancaster
was armed with a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article was a deadly weapon or represented verbally or otherwise that the defendant was armed with a deadly weapon, and used the deadly weapon, article or representation to cause submission of the victim.
48 Moreover, at the sentencing hearing, the prosecutor conceded that Lancaster "did not actually have a weapon or produce a weapon, he just threatened the use of it. . .." Similarly, the prosecutor said that Lancaster "was armed or verbally represented that he was armed with a deadly weapon" (emphasis added).
1 49 The prosecutor then represented that the sentencing range for the sexual assault counts at issue here was an indeterminate sentence, with the lower end of the range being sixteen to forty-eight years.
¶ 50 When sentencing Lancaster, the court did not offer its view of the proper sentencing range on the sexual assault counts. Nor did it expressly reference "extraordinary aggravating cireumstances." The court observed, however, that the victim was raped "in a horrible way," that the crime had an impact "on the entire community," and that the victim was "psychologically damaged for who knows how long."
B, Discussion
{51 Sexual assault is a class two felony when, as pertinent here, an actor
is armed with a deadly weapon or an article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon or represents verbally or otherwise that the actor is armed with a deadly weapon and uses the deadly weapon, article, or representation to cause submission of the victim.
‘ § 18-8-402(5)(a)(II1), C.R.9.2014. Any person convicted of felony sexual assault on or after November 11, 1998, under the cireum-stances described in section 18-8-402, "shall be sentenced in accordance with the provi-gions of part 10 of article 1.3 of this title." § 18-8-402(6). (Section 18-8-402(6), not Section 18-8-402(5)(b) on which the People rely, applies here, because Lancaster's offense was committed on or after November 1, 1998.)
152 Part 10 of article 1.8 is part of the Colorado Sex Offender Lifetime Supervision Act of 1998 (the Act). As pertinent here, section 18-1.8-1004(1)(a), C.R.S.2014, provides that the defendant shall be sentenced to "an indeterminate term of at least the minimum of the presumptive range specified in section 18-1.8-401 for the level of offense committed and a maximum of the sex offender's natural life."
153 The Act requires that only the upper end of a sentence be indeterminate. See People v. Villa,
¶ 54 In addition, section 18-1.8-1004(1)(b) provides that when an offense subject to the Act is a crime of violence, the court shall sentence the defendant for an indeterminate term of at least the midpoint in the presumptive range for the level of offense committed and a maximum of the sex offender's natural life, As pertinent here, sexual assault is a crime of violence when the prosecution pleads and proves either that the defendant "Iulsed, or possessed and threatened the use of, a deadly weapon" 'or "[claused serious bodily injury cor death...." § 18-1.8-406@)(a)(I), (II)(E), C.R.S. 2014, (Although the People rely on section 18-1.8-406(2)(b)(I), that section applies only to certain sex offenses against children and is inapplicable here.) If the. defendant is convicted of sexual assault as a crime of violence, then the lower term cannot exeeed twice the maximum of the presumptive range authorized for the class of felony of which the defendant stands convicted, See People v. Hunsaker,
. 155 Here, as an initial matter, we reject the People's argument that the sexual assaults at issue constituted erimes of violence. The jury's verdict set forth a list of alternative findings, which included a finding that Lancaster had used or possessed and threatened the use of a deadly weapon. The verdict, however, did not clarify which of the listed alternatives the jury actually found. Thus, we cannot détermine whether the jury found that Lancaster had used or possessed and threatened the use of a deadly weapon, which finding was necessary to support a erime of violence determination, Indeed, at sentencing, the prosecutor effectively conceded that the evidence did not support such a finding, noting that (1) Lancaster did not actually use or produce a weapon, he just threatened the use of it; and (2) Lancaster was either armed or verbally represented that he was. *
T56 The question thus becomes whether the court's sentence of twenty-five years to life on each sexual assault count was nonetheless proper.
T57 Because the prosecutor incorrectly stated at the sentencing hearing that the lower term on the sexual assault counts was sixteen to forty-eight years, when in fact it was sixteen to twenty-four years, the court may have imposed a sentence of twenty-five years to life based on a misapprehension of the applicable sentencing range,. Because the record is insufficient to allow us to determine the court's understanding, and because a misapprehension of the applicable sentencing range requires a remand, we conclude that a remand for resentencing is necessary here. See People v. Linares-Guzman,
158 We are not persuaded otherwise by the People's argument that even if the presumptive sentencing range for the lower term of Lancaster's indeterminate sentence was no more than twenty-four years, we can still affirm the sentence because the trial court found extraordinary aggravating circumstances justifying an upward departure from the presumptive sentencing range. For the reasons set forth above, if the trial court misapprehended the presumptive sentencing range, then we cannot affirm on this ground because the court's misunderstanding alone requires a remand. See id. Moreover, although at the sentencing hearing, the court mentioned the crime's horrible nature and the harm to the victim, the record does not clearly indicate that the court, in fact, intended to find any extreme aggravating circumstances, let alone one that complied with or was exempt from the requirements of Blakely v. Washington,
"V. Conclusion and Remand Order
T59 For these reasons, the judgment is affirmed, the sentences on the sexual assault counts are vacated, and the case is remanded with directions that the court resentence Lancaster on the sexual assault counts in accordance with the sentencing range set forth above (ie., indeterminate sentencing with the lower term being in the range of sixteen to twenty-four years). If the court decides to sentence Lancaster outside the presumptive range pursuant to section 18-1.8-401(6), then the court must make specific findings on the record, consistent with Blakety, detailing the specific extraordinary aggravating cireamstances that constitute the reasons for varying from the presumptive range.