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Colorado’s Sexually Violent Predator Finding Applies in Misdemeanor Sexual Assault Cases

Colorado Misdemeanor Sex Crimes Defense Lawyer: H. Michael Steinberg

In 2009, the Colorado Court of Appeals applied the finding of Sexually Violent Predator in a misdemeanor case. Prior to the point, it was “understood” as a result of language in the Sex Offender Management Board Manual – that the finding only applied to Colorado Felony Sex Crimes.

In People v. Tuffo, the defendant, Jason Tuffo, had pled guilty to misdemeanor sexual assault. The district court found he was a “sexually violent predator” (SVP), subject to lifetime registration and community notification requirements. Tuffo argued:

  • (1) the SVP statute does not cover misdemeanors and
  • (2) the court’s findings were insufficient.

The Defendant was thirty-four years old when he established a sexual relationship with a sixteen-year-old girl who had moved into his house. He thus was guilty of sexual assault under section 18-3-402(1)(e), which makes it a class one misdemeanor to have sexual relations with a fifteen- or sixteen-year-old where the defendant is at least ten years older than and not married to the victim.

Defendant’s guilty plea to misdemeanor sexual assault was part of a global disposition including a guilty plea in another case. The court sentenced defendant to a total of two years in jail.

One issue at sentencing was whether defendant was a “sexually violent predator” within the meaning of § 18-3-414.5(1)(a), C.R.S. 2008. If so, he would be subject to lifetime registration and community notification requirements. See § 18-3-414.5(2).

The Applicability to Misdemeanor Sexual Assault

The Defendant contended an SVP designation can apply only to felony sex offenses, not to his misdemeanor sexual assault offense. He relied not on the statutory text of the law or even its legislative history, but on a 2003 “Handbook” prepared in consultation with the Colorado Sex Offender Management Board (SOMB). Colorado SOMB, Handbook: Sexually Violent Predator Assessment Screening Instrument for Felons: Background and Instruction (June 2003), available at:

http://dcj.state.co.us/ors/pdf/docs/Final%20SVP.pdf  (last visited Apr. 28, 2009).

This handbook stated an SVP assessment screening form “should be completed only on

individuals convicted of felonies.”The 2008 handbook eliminated this statement. Colorado SOMB, Handbook: Sexually Violent Predator Assessment Screening Instrument: Background and Instruction (Jan. 2008) (“2008 SOMB Handbook”), available at

http://dcj.state.co.us/ors/pdf/docs/Final-1-30-2008-SVP%20Handbook.pdf

The Court found that the SVP statute plainly covers misdemeanor sexual assault, we need not consider any agency views.

Background

The applicability of Sexually Violent Predator requirements to adult offenders convicted of an enumerated offense turns on whether:

(1) the “victim was a stranger to the offender or a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization”;

and

(2) “based upon the results of a risk assessment screening instrument” the offender “is likely to subsequently commit” another such offense under those circumstances.

§18-3-414.5(1)(a)(III)-(IV). The trial “court shall make specific findings of fact and enter an order concerning whether the defendant is a sexually violent predator.” § 18-3-414.5(2).

The risk assessment form concluded defendant was an SVP because he:

(1) established or promoted the relationship primarily for the purpose of sexual victimization;

and

(2) met four of ten items on the SOMB “Sex Offender Risk Scale.” Defendant disputed both points. As to the latter, he concededly met three items (a juvenile felony adjudication, a prior adult felony conviction, and less than full-time employment) but denied the requisite fourth item. The fourth item checked on the form was that defendant “failed first or second grade” (with a circle indicating he had failed first grade).

Whether defendant was an SVP thus turned on whether he failed first grade. Nothing in the record explains why this can make someone a “sexually violent predator”; apparently, the item was created based on studies suggesting that early school failures are “very strong predictors of future criminality.” See 2008 SOMB Handbook at 66. The form states: “Whatever the reason, if the offender failed [either of] these grades in elementary school, and was held back or repeated the grade, this item scores ‘yes.’ Probation Officers may need to work closely with the SOMB evaluator and polygraph examiner to obtain this information.”

Nothing in the form or the presentence report states a factual basis for concluding defendant failed first grade. At the final hearing, defense counsel stated defendant’s parents denied defendant had failed first grade. According to defense counsel, defendant was tested in first grade and then moved to a “special education sort of classroom,” but successfully completed the grade in the special class. Counsel added he had attempted to obtain defendant’s school records from Massachusetts but learned the records no longer existed.

The prosecutor did not dispute defense counsel’s contention regarding defendant’s timely completion of first grade. Instead, she stated (incorrectly, as the People now concede on appeal) that the issue did not matter because the SVP finding could be based on three rather than four of the ten items.

The court never discussed whether defendant had failed or passed first grade. At the final hearing, it simply re-adopted the original findings on the SVP issue. Those original findings contained no detail; instead, the court had simply stated it was “going to make a finding of sexual violent predator at this time.”

Colorado’s Sexually Violent Predator – the Law and Due Process Requirements

The SVP statute requires trial courts to make “specific findings of fact” on whether a defendant is a sexually violent predator. § 18-3-414.5(2). Apart from requiring the probation department to coordinate with a psychological evaluator to complete an SVP risk assessment, id., the statute does not mandate specific procedures that must precede the requisite findings.

It simply requires that the judicial findings be “[b]ased on results of the assessment.” Id. More general “statutory and rule provisions require a defendant to be given a reasonable opportunity prior to the imposition of sentence to correct or supplement the information contained [in a presentence report] and to rebut sentencing recommendations based thereon.

Uultimate limits on SVP evidence, like other issues decided at sentencing, are those imposed by due process. Due process precludes sentencing a defendant based on “misinformation of constitutional magnitude.” …due process requires that sentencing determinations be based on reliable evidence, not speculation or unfounded allegations.”

Colorado Experienced Sex Crimes Defense Lawyer


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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