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Prior Opinion Announced May 18, 2017, WITHDRAWN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
1
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:
2
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
3
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.
4
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
5
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).
7
¶ 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
8
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.
9
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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