A recent case decided by the Colorado Court of Appeals – sheds light on the analysis of out of state alleged sex offender convictions on in state sex offender registration requirements. The analysis of whether registration is required – is discussed in the opinion outlined below. The Case is People v. Brooks. Here are the facts.
The Defendant, Lorenzo Brooks, appealed his conviction for failure to register as a sex offender. The Court decided that he was not required to register as a sex offender in Colorado, we reverse the judgment of conviction.
In 1994, defendant pleaded guilty in Harris County, Texas, to indecency with a child by exposure, Tex. Penal Code Ann. § 21.11(a)(2) (West 1994). He was sentenced to ten years in the Texas Department of Corrections.
Later – simply put, the Defendant was paroled in Colorado after a Colorado prison sentence that was unrelated to the Texas case. In October 2007, defendant was paroled in Colorado. At the time of his parole, defendant was advised that he must register as a sex offender under the Colorado Sex Offender Registration Act, §§ 16-22-101 to -115, C.R.S. 2011, based upon his Texas conviction.
Failure to RegisterDefendant was later charged with two felony counts of failing to register as a sex offender.
The DA alleged that the defendant’s conviction in Texas, if committed in Colorado, would have been for indecent exposure, and thus, he was required to register as a sex offender.
The Defendant then filed a motion to dismiss, arguing that because his Texas conviction did not equate to indecent exposure, he was not required to register under the Colorado Sex Offender Registration Act.
The AnalysisIn determining whether an out of state conviction mandates registration as a sex offender in Colorado – the analysis requires a comparison of the out of state conviction to a Colorado sex crimes.
Colorado Sex Offender Registration RequirementsTo be guilty of the criminal offense of failing to register as a sex offender, the defendant must be “[a] person who is required to register pursuant to article 22 of title 16, C.R.S [the sex offender registration statute].” § 18-3-412.5(1), C.R.S. 2011. “The purpose of sex offender registration is not to inflict additional punishment on a person convicted of a sexual offense, but rather to aid law enforcement officials in investigating future sex crimes and to protect the public safety.”
In this case does the Texas conviction for “indecency with a child by exposure” requires a person to register as a sex offender in Colorado?
The LawThe Court of Appeals Judges compared the elements of the indecent exposure statute in Colorado with the statute under which Texas convicted Mr. Brooks and found that Colorado’s laws require an additional element in their indecent exposure statute, … that is “under circumstances in which such conduct is likely to cause affront or alarm to another person.”
The Court of Appeals held the offense under which Texas convicted Mr. Brooks did not amount to indecent exposure in Colorado, contrary to what the prosecution argued. Thus, Mr. Brooks never needed to register as a sex offender. Therefore, the Court of Appeals reversed Mr. Brooks’ convictions. A colleague, Deputy Public Defender Rory Taylor, wrote the brief and argued the case on appeal after co-PD Kelly Moss raised, argued, tried the case in District Court. Nice work all around.
The Law More SpecificallyAny person who was convicted on or after July 1, 1991, in another state or jurisdiction . . . of an offense that, if committed in Colorado, would constitute an unlawful sexual offense, as defined in section 18-3-411(1), C.R.S.” is required to register under the Colorado Sex Offender Registration Act. § 16-22-103(1)(b), C.R.S. 2011.
In Colorado, Section 18-3-411(1), C.R.S. 2011, states that an unlawful sexual offense includes “indecent exposure, as described in section 18-7-302.” a person committed the crime of indecent exposure “[i]f he knowingly expose[d] his genitals to the view of any person under ircumstances in which such conduct is likely to cause affront or alarm to the other person.” § 18-7-302(1)(a), 1977
The Key IssueThe question was – simply – whether defendant’s crime in Texas, if committed in Colorado, would constitute the unlawful sexual offense of indecent exposure.
Because the crime of indecent exposure contains an element missing from Texas’s indecency with a child statute, the court concluded that this defendant was not subject to registration in Colorado.
No Such Colorado Sex CrimeWhen the two offenses were contrasted, it was clear that Colorado requires an additional element that the crime be “under circumstances in which such conduct is likely to cause affront or alarm to another person.” The Texas statute lacks this additional element. Thus, defendant’s Texas conviction for indecency with a child by exposure did not satisfy all the elements of the crime of indecent exposure in Colorado.