[Copyrighted Material Omitted]
This Opinion is subject to revision upon final publication.
Court of Appeals No. 10CA2445. Douglas County District Court No. 09CR661. Honorable Paul A. King, Judge.
John W. Suthers, Attorney General, Wendy J. Ritz, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Kimberly K. Caster, Littleton, Colorado, for Defendant-Appellant.
Hawthorne and Richman,
[¶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.S. 2012. He also appeals the proportionality of the twelve-year sentence imposed under the habitual criminal statute, section 18-1.3-801(2)(a), C.R.S. 2012. We affirm both the judgment and the sentence.
[¶2] 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 " verify[ing] that all his clothing and belongings" seemed to be at the new address, the officer approved the residence.
[¶3] 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(3), 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.
[¶4] 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
of defendant's new address, as well as a recording of defendant's phone call with the detective. The prosecution also offered testimony that defendant had previously failed to register as a sex offender and was told by police that he needed to report each residence at which he resided. However, the jury did not hear evidence of defendant's prior guilty plea to this offense, in part because the parties asked the court to make this finding in the habitual criminal phase.
[¶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. § 18-3-412.5(2)(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.
[¶6] Based on these felonies, the court sentenced defendant to twelve years imprisonment under the habitual criminal statute. 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."
II. Admissibility of Defendant's Previous Failure to Register
[¶7] 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
[¶8] A trial court may admit CRE 404(b) evidence in its discretion. Yusem v. People, 210 P.3d 458, 463 (Colo. 2009). This discretion will be disturbed only if the court's ruling was manifestly arbitrary, unreasonable, unfair, or misapplied the law. People v. Casias, 2012 COA 117, ¶ 29.
[¶9] Admitting evidence of other crimes exposes a defendant to the risk of being convicted based on bad character. People v. Garner, 806 P.2d 366, 369 (Colo. 1991). To reduce this risk, CRE 404(b) restricts the admissibility of " evidence of other crimes, wrongs or acts" to circumstances where:
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" ;
3. " [T]he 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
4. Any prejudicial impact does not " substantially outweigh" its probative value.
People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990).
[¶10] Before trial, the prosecution moved to admit evidence of defendant's prior conviction 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 requirements 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 knowledge was an element of the offense, the probative value of the evidence substantially outweighed any unfair prejudice.
1. Material Fact
[¶11] The first prong of the Spoto test " considers not the substance of the prior
act evidence, but the fact in the case for which the evidence is offered to prove." Yusem, 210 P.3d at 464. If evidence relates to an element of the charged offense, it satisfies this part of the test. Id. The mental state of " knowingly" is an element of failure to register as a sex offender. People v. Lopez, 140 P.3d 106, 110 (Colo.App. 2005).
[¶12] 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." § 16-22-105(3); see People v. Rath, 44 P.3d 1033, 1040 (Colo. 2002) (concluding that the first prong of Spoto is satisfied when facts are " closely related to" and " well-accepted methods of proving" elements of the offense, while not elements of the offense themselves). Thus, the first prong of Spoto is satisfied.
2. Logical Relevance
[¶13] " 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, 210 P.3d at 464-65 (emphasis in original).
[¶14] Here, the prior act evidence indicated that, before defendant's conviction for the first offense, a police officer had told him that he needed to register wherever he resided, even if he maintained multiple residences. Because both cases involved registration at multiple residences, the officer's warning would make it more probable that he knew his obligation to register here. Thus, the evidence is logically relevant.
3. Inference Independent of Bad Character
[¶15] The relevance of prior act evidence must not depend on the inference that the defendant committed the crime charged because he acted in conformity with his demonstrated bad character. Spoto, 795 P.2d at 1318. " However, almost by definition, [prior acts] evidence will suggest bad character and action in conformity therewith." People v. Snyder, 874 P.2d 1076, 1080 (Colo. 1994). Hence, Spoto's third prong does not require " the absence of the [prohibited] inference but merely . . . that the proffered evidence [is] logically relevant independent of that inference." Id.; see Rath, 44 P.3d at 1041 (finding prior act evidence admissible because the " chain of logical inferences" did not rely on the " inference that he must have committed a sexual assault in this case because he is a person of criminal character" ).
[¶16] Here, independent of propensity, the evidence supports the inference that defendant knowingly violated section 16-22-105(3) when he failed to register at his new address. See supra Part II.D.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 satisfies the third prong of Spoto.
4. Probative Value Not Substantially Outweighed by Unfair Prejudice
[¶17] The final prong of Spoto, which applies CRE 403, 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 circumstances. Yusem, 210 P.3d at 467. Prejudice is not unfair if it " results from the legitimate probative force of the evidence." Rath, 44 P.3d at 1043.
[¶18] Here, the evidence was highly probative. The prosecution bore the burden of proving each element of the crime beyond a reasonable doubt, People v. McKnight, 200 Colo. 486, 498, 617 P.2d 1178, 1187 (1980), including defendant's knowledge. See Lopez, 140 P.3d at 110 (holding that the mental state of " knowingly" is an element of failing to register as a sex offender under § 18-3-412.5). And because " [d]irect proof of knowledge . . . is seldom obtainable," Goodfellow v. People, 75 Colo. 243, 245, 224 P. 1051, 1052 (1924), evidence of prior acts is often the best, if not the only, proof of a defendant's knowledge. See, e.g., People v. Romero, 197 P.3d 302, 307-09 (Colo.App. 2008) (concluding that evidence of a defendant's prior acts of
leaving jail for work release was admissible under CRE 404(b) to rebut the defendant's claim that " he didn't knowingly escape," but rather misunderstood the procedures for leaving jail).
[¶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 ...