v. Pellegrin , 2021 COA 118 ( 2021 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
September 2, 2021
2021COA118
No. 18CA1847, People v. Pellegrin — Crimes — Posting a
Private Image for Harassment — Stalking — Harassment;
Criminal Law — Prosecution of Multiple Counts for Same Act —
Lesser Included Offenses
In this “revenge porn” case, a division of the court of appeals
decides two novel issues. First, does the term “breast of a female,”
in section 18-7-107, C.R.S. 2020 (posting a private image for
harassment), require the image to display the whole breast or only a
portion of the breast? The division holds that an image posted for
harassment need only display a portion of the female breast.
Second, is harassment, § 18-9-111(1)(e), C.R.S. 2020, a lesser
included offense of stalking, § 18-3-602(1)(c), C.R.S. 2020, under
section 18-1-408(5)(c), C.R.S. 2020? The division concludes that it
is not because the harassment and stalking statutes fail the single
distinction test required by section 18-1-408(5)(c).
COLORADO COURT OF APPEALS 2021COA118
Court of Appeals No. 18CA1487
El Paso County District Court No. 17CR4220
Honorable William B. Bain, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Trevor A. Pellegrin,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE FREYRE
Yun and Graham*, JJ., concur
Announced September 2, 2021
Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Emily C. Hessler, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 In this “revenge porn” case, we are asked to decide two novel
issues. First, we are asked to interpret the term “breast of a female”
under the posting a private image for harassment statute, § 18-7-
107, C.R.S. 2020. Section 18-7-107(1)(a) criminalizes the posting
or distribution of an image displaying the private intimate parts of
an identified or identifiable person on social media or any website.
“Private intimate parts” is defined as “external genitalia or the
perineum or the anus or the pubes of any person or the breast of a
female.” § 18-7-107(6)(c). The statute, however, does not define
“breast of a female.”
¶2 We first conclude that “breast of a female” is ambiguous and
can reasonably be interpreted to mean either the whole breast or
simply a portion of the breast. We next conclude, consistent with
the legislative history, that “breast of a female” means any portion
of the female breast. Finally, we conclude that the statute is not
unconstitutionally vague or overbroad.
¶3 We are also asked to decide whether harassment, § 18-9-
111(1)(e), C.R.S. 2020, is a lesser included offense of stalking, § 18-
3-602(1)(c), C.R.S. 2020, under section 18-1-408(5)(c), C.R.S. 2020.
We conclude that the statutes fail the single distinction test set
1
forth in section 18-1-408(5)(c) because they differ in more than one
respect and, therefore, affirm the convictions for stalking, posting a
private image for harassment, and harassment.
I. Background
¶4 Defendant, Trevor A. Pellegrin, and the victim began dating in
2016, and they moved in together shortly thereafter. They were
later engaged. During their relationship, the victim allowed
Pellegrin to take private, intimate photos of her in various stages of
undress. The victim ended the relationship in April 2017 and
moved into an apartment with her sister.
¶5 After the breakup, the victim had limited contact with Pellegrin
until July 2017. Although the victim was in a new relationship with
another man, she and Pellegrin spent time together between July
16 and July 19, 2017. Unbeknownst to Pellegrin, the victim had
plans to see the other man on the evening of July 19.
¶6 After learning the victim was seeing someone else, Pellegrin
repeatedly called and texted the victim from July 19 into July 20.
He called the victim lewd names and sent nude photos he had
taken of her during their relationship. Pellegrin threatened to post
the nude photos online and to send them to her twelve-year-old
2
brother. Distraught by Pellegrin’s texts, the victim left work early
on July 20 and reported the texts to the police. The police viewed
the text messages, but they told the victim they could do nothing
until Pellegrin posted the photos online. Pellegrin continued
repeatedly texting the victim until July 23, 2017.
¶7 Between July 20 and July 23, 2017, multiple family members
told the victim that her Facebook profile had been altered. She
looked at her Facebook profile page and saw that her cover and
profile photos had been changed to nude photos of her on a bed.
The cover photo was of her nude buttocks, legs, and back, while her
profile page displayed a nude photo of her lying on her stomach
propped up by her elbows with the side of her right breast exposed.
She recognized these as photos Pellegrin had taken while they were
dating. Her profile biography had also been changed to say the
victim was an “awful” person, a “cheater,” and a “slut.”
¶8 Additionally, on July 23, 2017, the victim received numerous
text messages and photos from strangers responding to a Craigslist
advertisement. They included messages saying unknown people
were driving by her home and random, unknown photos of male
3
genitalia. She learned that a Craigslist ad had been posted on the
“casual encounters” board stating,
So my name’s [victim’s name] I live in the
springs I’m looking for a few guys to come
show me a good time I’ve never tried this but
I’m willing to try it you can find me on
Facebook just search my name [victim’s name]
my phone number is [victim’s phone number]
please call me with what your interested in
and maybe we can get together tonight I stay
off [directions to the victim’s home]. Surprise
me [emojis] text me a nude photo of yourself to
get mines [emoji][.]
The ad also showed four photos of her — the two photos posted on
Facebook, a photo of her clothed lying on a bed, and an additional
photo showing the side of her nude breast.
¶9 A second Craigslist advertisement was posted on the “free
stuff” board titled “Free engagement ring.” The ad included the
same photos as the “casual encounters” ad and it said, “Text or call
for a free good time [the victim’s phone number].”
¶ 10 The victim again contacted the police and provided a
statement and her cell phone. The police arrested Pellegrin at his
home. He admitted to posting “some photos that he considered
butt shots, and that he had posted them for approximately an hour
and then they were pulled down.”
4
¶ 11 The State charged Pellegrin with one count of stalking, two
counts of posting a private image for harassment (one for Facebook
and one for Craigslist), and one count of harassment. At trial,
defense counsel argued that the victim posted nude photos of
herself and then blamed Pellegrin because she wanted to get him in
trouble. A jury convicted Pellegrin of stalking, posting a private
image for harassment (Craigslist), and harassment, but it acquitted
him of the other charge of posting a private image for harassment
(Facebook).
¶ 12 The court sentenced Pellegrin to three years of supervised
probation and ninety days in jail. It also made a domestic violence
finding and ordered Pellegrin to participate in a domestic violence
evaluation and comply with its recommendations.
II. Jury Poll
¶ 13 Pellegrin first contends that the trial court abused its
discretion by not granting a mistrial after polling revealed that the
verdicts were not unanimous. He asserts that the manner in which
the court conducted the jury poll was coercive. We disagree.
5
A. Additional Facts
¶ 14 After deliberations, the jury returned guilty verdicts on all
counts. The trial court polled the jury at defense counsel’s request,
asking each juror “if these are indeed your verdicts.” Juror 8
responded, “No”; and when the court asked, “These are not your
verdicts,” Juror 8 said, “Nope.” The court ceased polling and
provided the following instruction:
Well, members of the jury, I’m going to send
you back for continuing deliberations. It is a
requirement of the law that all verdicts be
unanimous. And it sounds like . . . we have
not reached unanimity. So it’s about 4:35. I’ll
have you head back into the jury deliberation
room. Again, I plan to let you go at 4:50. So
we’ll come back and get you at 4:50. All right.
¶ 15 Defense counsel moved for a mistrial. He was concerned
about potential juror misconduct or the “jury bullying with Juror 8”
to return a guilty verdict. The prosecutor argued that these
concerns were “purely speculative.” In the alternative, defense
counsel asked the trial court to individually question Juror 8 about
the nonunanimous verdict. The court denied the motion for a
mistrial and denied the request to question Juror 8. It reasoned
that there was
6
no evidence on which to base a conclusion that
the other jurors are back there right now
improperly coercing Juror Number 8 to reach a
guilty verdict. As I mentioned earlier when I
asked Number 8 if these were her verdicts, she
very assertively . . . said no, these are not her
verdicts. So at least by appearances, she
[does] not present as somebody [who] was
meek and to be bullied into reaching a
decision. I’ll add that she said these are not
her verdicts almost with a tone of defiance.
And the court found it lacked the authority to question Juror 8
about deliberations under CRE 606(b).
¶ 16 Later, and immediately following the court’s evening recess
instruction, Juror 8 stated, “[T]hey cleared it up for me what’s I was
confused about, so now I agree.” The prosecutor asked the court to
allow the jury to deliberate a “bit longer . . . because it sounds like
they’re close.” The court declined the request and again instructed
the jury to return the next day.
¶ 17 The following day, the jury deliberated two more hours before
returning new verdict forms finding Pellegrin guilty of stalking,
posting a private image for harassment (Craigslist), and
harassment, and acquitting him of posting a private image for
harassment (Facebook). Subsequent polling confirmed a
unanimous verdict.
7
B. Standard of Review and Applicable Law
¶ 18 We review a trial court’s denial of a motion for a mistrial for an
abuse of discretion. People v. Johnson, 2017 COA 11, ¶ 39. A trial
court abuses its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair, or when it misapplies the law. Id. Under
this standard, the test is not “whether we would have reached a
different result but, rather, whether the trial court’s decision fell
within a range of reasonable options.” People v. Salazar, 2012 CO
20, ¶ 32 (Bender, C.J., dissenting) (quoting E-470 Pub. Highway
Auth. v. Revenig, 140 P.3d 227, 230-31 (Colo. App. 2006)).
¶ 19 A trial court is responsible for ensuring that a conviction is the
result of a unanimous verdict. People v. Rivera, 56 P.3d 1155,
1160-61 (Colo. App. 2002); see also § 16-10-108, C.R.S. 2020;
Crim. P. 23(a)(8), 31(a)(3). “Unanimity requires a deliberative
process that expresses the conscientious conviction of each
individual juror.” People v. Phillips, 91 P.3d 476, 479 (Colo. App.
2004).
¶ 20 Under Crim. P. 31(d),
[w]hen a verdict is returned and before it is
recorded, the jury shall be polled at the
request of any party or upon the court’s own
8
motion. If upon the poll there is not
unanimous concurrence, the jury may be
directed to retire for further deliberations or
may be discharged.
¶ 21 The right to a jury poll, however, is not absolute. Phillips, 91
P.3d at 479. The manner of conducting a jury poll is within the
trial court’s discretion. Id.C. Analysis
¶ 22 Relying on several factors considered in Harris v. United
States, 622 A.2d 697, 705 (D.C. 1993), Pellegrin argues that after
Juror 8 identified herself as a dissenting juror, the court should
have inquired into whether the jury was deadlocked and provided
further instructions to alleviate any coercive effect. However, we
decline to adopt the Harris factors as the exclusive means of
analyzing this issue and, instead, apply a general abuse of
discretion standard consistent with our case law and the jury poll
rule. See People v. Barnard, 12 P.3d 290, 295 (Colo. App. 2000)
(“We review the court’s consideration of a juror’s doubt as to his or
her verdict under an abuse of discretion standard.”); see also
Phillips, 91 P.3d at 479. Under this standard, we conclude, for
three reasons, that the trial court acted within its discretion by
9
declining to declare a mistrial after instructing the jury to continue
deliberations.
¶ 23 First, the trial court’s instruction to continue deliberations
was not coercive. The court did not set a deadline to return
verdicts. Nor did it tell the jury that unless its deliberations
resulted in a unanimous verdict, a mistrial would be declared. Cf.
Allen v. People, 660 P.2d 896, 898 (Colo. 1983) (“[T]he court’s
arbitrary fifteen minute deadline [to return a verdict or a have a
mistrial declared] may have prevented the jury from reaching a well-
considered verdict.”). It told the jury to continue deliberations until
4:50 p.m., the time at which the court had previously instructed the
jury it would be excused. And, when the jury returned, the court
declined to take a verdict, and instead told the jurors to “take a
break from the case” for the evening and resume deliberations the
following morning. Indeed, the jury deliberated for an additional
two hours the following morning and returned a different verdict.
¶ 24 Second, though Pellegrin relies on People v. Black, 2020 COA
136, for the proposition that the trial court should have inquired
into whether the jury was deadlocked, that reliance is misplaced.
In Black, a deliberating juror asked the court, “What happens if we
10
can’t come to a unanimous decision on only one charge?” Id. at ¶
8. The court instructed the jury to continue deliberations without
first determining whether it was deadlocked and, if so, how
intractably. Id. The division found error in the trial court’s failure
to inquire about whether the jury was deadlocked and thus, it could
not determine whether the court’s instruction to continue
deliberating was coercive. Id. at ¶¶ 24, 31.
¶ 25 In contrast, the court here learned only that the verdict was
not unanimous, not that the jury was deadlocked. Cf. People v.
Martinez, 987 P.2d 884, 888 (Colo. App. 1999) (holding that if a
juror gives an equivocal response to a jury poll, a trial court may
make additional inquiries to determine if the verdict is unanimous).
Without some indication that the jury could not reach a unanimous
verdict, any extensive questioning about the deliberative process or
about why the verdict was not unanimous would have been
improper. Gibbons v. People, 2014 CO 67, ¶ 32 (“Absent some
affirmative indication from the jury that it harbors this concern, the
trial court should not interfere with the jury’s deliberative
process.”); see also People v. Juarez, 271 P.3d 537, 544 (Colo. App.
2011); Martinez, 987 P.2d at 888.
11
¶ 26 Third, the trial court did not abuse its discretion by finding,
based on her response to the poll and her demeanor, that Juror 8
was unlikely to be bullied into a guilty verdict. See Barnard, 12
P.3d at 295. And Pellegrin’s counsel presented no evidence, beyond
mere speculation, that the remaining jurors bullied Juror 8 into
finding him guilty. Indeed, the jury returned a different and more
favorable (to Pellegrin) verdict after further deliberations.
¶ 27 Accordingly, we discern no error.
III. Constitutionality of Stalking Statute
¶ 28 Pellegrin next contends that the stalking statute, § 18-3-602,
is unconstitutional on its face because the statute is overbroad.
Because we are bound by the supreme court’s contrary holding in
People v. Cross, 127 P.3d 71 (Colo. 2006), we reject his assertion
and conclude the statute is facially constitutional.
A. Standard of Review and Applicable Law
¶ 29 We review the constitutionality of a statute de novo, but
presume that statute is constitutional. People v. Folsom, 2017 COA
146M, ¶ 70.
¶ 30 Section 18-3-602(1)(c) provides as follows:
12
(1) A person commits stalking if directly, or
indirectly through another person, the person
knowingly:
....
(c) Repeatedly follows, approaches, contacts,
places under surveillance, or makes any form
of communication with another person, a
member of that person’s immediate family, or
someone with whom that person has or has
had a continuing relationship in a manner that
would cause a reasonable person to suffer
serious emotional distress and does cause that
person, a member of that person’s immediate
family, or someone with whom that person has
or has had a continuing relationship to suffer
serious emotional distress. For purposes of
this paragraph (c), a victim need not show that
he or she received professional treatment or
counseling to show that he or she suffered
serious emotional distress.
¶ 31 In Cross, our supreme court concluded that a substantially
similar stalking statute is not unconstitutionally overbroad. The
court noted that the statute criminalizes only conduct that involves
a “severe intrusion upon the victim’s personal privacy and
autonomy, with an immediate and long-lasting impact on quality of
life as well as risks to security and safety of the victim and persons
close to the victim.” Cross, 127 P.3d at 79 (quoting former § 18-9-
111(4)(a), C.R.S. 2005, repealed, amended, and relocated, §§ 18-3-
13
601 to -602, C.R.S. 2011 (effective Aug. 11, 2010)). It held that the
sweep of the statute does not include a substantial amount of
constitutionally protected speech because the statute criminalizes
only acts of a particular nature — acts involving inappropriate
intensity, persistence, and possessiveness, and severe intrusions on
a victim’s personal privacy and autonomy — and that had a
particular effect — objectively and subjectively causing serious
emotional distress. Id.
B. Analysis
¶ 32 We reject Pellegrin’s contention that the stalking statute is
unconstitutionally overbroad and reject his reliance on the Illinois
Supreme Court’s decision in People v. Relerford, 104 N.E.3d 341 (Ill.
2017). In doing so, we follow our supreme court’s desicion in Cross,
127 P.3d at 78-79, as we must. People v. Richardson, 181 P.3d
340, 343-45 (Colo. App. 2007); see also People v. Smith, 183 P.3d
726, 729 (Colo. App. 2008) (rejecting defendant’s argument that
supreme court precedent was wrongly decided because we are
bound by Colorado Supreme Court decisions).
¶ 33 We also reject Pellegrin’s contention that Reed v. Town of
Gilbert, 576 U.S. 155 (2015), compels a different result. In Reed,
14
the Supreme Court held that the Town of Gilbert’s exemption of
categories of signs including “ideological” and “political” signs from
its prohibition on the display of outdoor signs without a permit was
unconstitutional. Id. at 159-60. The Court reasoned that content-
based laws — those that target speech based on the “topic
discussed or the idea or message expressed” — are presumptively
unconstitutional. Id. at 163. Content-based laws include laws that
appear facially neutral but cannot be justified without reference to
the content of the regulated speech or were adopted because of a
disagreement with the message that the speech conveys. Id. at
163-64. The Court went on to conclude that the laws in that case
imposed content-based restrictions because the laws applied more
stringent restrictions on various types of signs, which compelled an
analysis of the content of the signs. Id. at 159, 171-72.
¶ 34 Colorado’s stalking statute, on the other hand, targets
repeated conduct that would “cause a reasonable person to suffer
serious emotional distress.” § 18-3-602(1)(c). Thus, whether
speech is permitted under the stalking statute is not based on the
content of that speech but, rather, on whether that speech is part of
a series of conduct in which a defendant “[r]epeatedly follows,
15
approaches, contacts, places under surveillance, or makes any form
of communication with another person . . . .” Id. Indeed, “the
statute does not criminalize innocuous behavior,” but criminalizes a
series of conduct without a significant impact on constitutionally
protected speech. Cross, 127 P.3d at 78-79; see also Dugan v.
State, 2019 WY 112, ¶ 22, 451 P.3d 731, 739 (The fact that the
criminal stalking statute “identifies ‘lewd or obscene statements’ in
the definition of harass does not make it a content-based regulation
on speech rather than a regulation of conduct without a significant
impact on protected speech.”).
IV. Sufficiency of the Evidence
¶ 35 Pellegrin next contends that the photos posted in the
Craigslist ads insufficiently established the element of “private
intimate parts” required for his conviction of posting a private image
for harassment. He asserts that the photo showing the side of the
victim’s exposed breast is not a photo depicting the “breast of a
female” under the definition of “private intimate parts” because the
“entire breast” was not displayed. See § 18-7-107(1)(a), (6)(c).
Alternatively, he argues that the statute is vague and overbroad if
16
“breast of a female” is interpreted to include less than the entire
breast. We address each argument in turn.
A. Standard of Review and Applicable Law
¶ 36 In assessing the sufficiency of the evidence to support a
conviction, we review the record de novo to determine whether the
evidence, viewed in the light most favorable to the prosecution, was
substantial and sufficient to support a conclusion by a reasonable
mind that the defendant was guilty beyond a reasonable doubt.
People v. Perez, 2016 CO 12, ¶ 8.
¶ 37 We also review questions of statutory interpretation de novo.
Id. When construing a statute, our primary task is to ascertain and
give effect to the General Assembly’s intent. Turbyne v. People, 151
P.3d 563, 567 (Colo. 2007). We begin with the statute’s plain
language. People v. Huckabay, 2020 CO 42, ¶ 13. “If the language
is clear and unambiguous on its face, we simply apply it as written
and will not resort to other interpretive aids.” Id. We “respect the
legislature’s choice of language,” and we “do not add words to the
statute or subtract words from it.” Turbyne, 151 P.3d at 567-68.
¶ 38 If, however, the language is susceptible of more than one
reasonable meaning, it is ambiguous. Marquez v. People, 2013 CO
1758, ¶ 7. “In that event, a number of intrinsic and extrinsic aids to
construction have [been] developed to assist in resolving the
ambiguity and determining which of the various reasonable
interpretations is the appropriate one.” Id.¶ 39 As relevant here, a person who is eighteen years or older
commits the offense of posting a private image for harassment if
he or she posts or distributes through the use
of social media or any website any photograph,
video, or other image displaying the private
intimate parts of an identified or identifiable
person eighteen years of age or older or an
image displaying sexual acts of an identified or
identifiable person:
(I) With the intent to harass, intimidate, or
coerce the depicted person;
(II)(A) Without the depicted person’s consent;
or
(B) When the actor knew or should have
known that the depicted person had a
reasonable expectation that the image would
remain private; and
(III) The conduct results in serious emotional
distress of the depicted person.
§ 18-7-107(1)(a). The term “‘[p]rivate intimate parts’ means external
genitalia or the perineum or the anus or the pubes of any person or
the breast of a female.” § 18-7-107(6)(c) (emphasis added).
18
B. Breast of a Female
¶ 40 The General Assembly did not define “breast of a female” when
defining “private intimate parts.” Pellegrin argues that the term
“breast of a female” is unambiguous and plainly means the “entire
breast.” He reasons that because the photo here depicted only the
right side of the victim’s exposed breast, not her entire breast or the
nipple, insufficient evidence supports the jury’s verdict. We are not
convinced and conclude instead that the term “breast of a female” is
susceptible of more than one reasonable interpretation (i.e., the
entire female breast, any portion of the female breast from the top
of the areola down, the female nipple, etc.) and is therefore
ambiguous as applied to this case. Accordingly, we turn to
interpretative aids to resolve the ambiguity.
¶ 41 In People v. Gagnon, 997 P.2d 1278 (Colo. App. 1999), a
division of this court considered whether a photo depicting a
portion of a child’s breast was sufficient to support a conviction of
sexual exploitation of a child, § 18-6-403, C.R.S. 2020. We find the
Gagnon division’s analysis of the statutory definition of “erotic
nudity” analogous here.
19
¶ 42 A person commits sexual exploitation of a child by knowingly
causing a child to engage in the making of any “sexually exploitative
material.” § 18-6-403(3)(a). “Sexually exploitative material”
includes “erotic nudity.” § 18-6-403(2)(e), (j). Similar to the
inclusion of “breast of a female” in the definition of “private intimate
parts” under section 18-7-107(6)(c), the definition of “erotic nudity”
includes the display of “the human breasts, or the undeveloped or
developing breast area of the human child.” § 18-6-403(2)(d). The
division rejected the defendant’s contention that the statute did not
apply to his conduct because the photos did not display the child’s
whole breast or include the nipple. Gagnon, 997 P.2d at 1281. It
reasoned that this argument ignored the requirement that “erotic
nudity” — a display or picture of the human breasts or undeveloped
or developing breast area of a child — “must be for the purpose of
real or simulated overt sexual gratification or stimulation of one or
more of the persons involved.” Id. at 1281-82. In doing so, the
defendant had not considered the harm the statute was intended to
address. Id. at 1282.
¶ 43 Similarly, Pellegrin’s argument emphasizes the term “breast of
a female” in the definition of “private intimate parts” to the
20
exclusion of the statute’s purpose and the harm it was intended to
address.
¶ 44 The General Assembly sought to protect victims of “revenge
porn” by enacting the posting of a private image for harassment
statute. H.B. 14-1378, 69th Gen. Assemb., 2d Reg. Sess. (Colo.
2014). Testimony leading to the statute’s enactment focused on the
harm caused to victims by posting images displaying “private
intimate parts” on social media or any website — including job loss,
humiliation with family and friends, unwanted sexual requests and
comments, stalking, threats by intimate partners and strangers,
and even suicide — and the inadequate protections for them. See
Hearings on H.B. 14-1378 before the H. Judiciary Comm., 69th
Gen. Assemb., 2d Reg. Sess. (Apr. 24, 2014); Hearings on H.B. 14-
1378 before the S. Judiciary Comm., 69th Gen. Assemb., 2d Reg.
Sess. (Apr. 30, 2014); 2d Reading on H.B. 14-1378 before the S.,
69th Gen. Assemb., 2d Reg. Sess. (May 2, 2014).
¶ 45 In 2018, the statute was amended in multiple ways, most
notably to include the posting of “an image displaying sexual acts of
an identified or identifiable person.” Ch. 192, sec. 1, § 18-7-107,
2018 Colo. Sess. Laws 1276-77. “Displaying sexual acts” is defined
21
as “any display of sexual acts even if the private intimate parts are
not visible in the image.” Id. (emphasis added). This amendment
closed a loophole that had allowed persons to avoid liability by
posting images of sexual acts that did not depict private intimate
parts. See Hearings on H.B. 18-1264 before the H. Judiciary
Comm., 71st Gen. Assemb., 2d Reg. Sess. (Mar. 20, 2018). The
testimony supporting this amendment focused on the trauma and
psychological harm victims suffered even when their private parts
were not shown in the image displaying a sexual act and described
the need to strengthen safeguards for victims. Id.¶ 46 Pellegrin does not argue that a female victim somehow suffers
less harm when only a portion of her breast is exposed, as opposed
to the entire breast. Instead, he argues that the limited discussion
about “private intimate parts” during the legislative hearings favors
his argument that “breast of a female” is limited to the display of
the entire breast. And he contends that if the General Assembly
had intended to include any portion of the female breast within the
definition, it could have done so. See, e.g., § 18-7-501(7), C.R.S.
2020 (“‘Sexually explicit nudity’ means . . . the showing of the
female breast with less than a fully opaque covering of any portion
22
thereof below the top of the areola . . . .”); § 13-21-1402(7)(a), C.R.S.
2020 (“‘Intimate image’ means a photograph, film, video recording,
or other similar medium that shows . . . female postpubescent
nipple of a depicted individual . . . .”).
¶ 47 In our view, however, the General Assembly did not
communicate a clear intent to limit the term “breast of a female” to
the entire female breast. Rather, the legislative history reveals a
clear purpose to protect victims from the harm caused by the
posting of private intimate parts images online and to strengthen
protections from those harms. It does not follow that the harm is
avoided or even lessened by posting a photo of only a portion of an
identifiable person’s exposed breast. If the General Assembly had
intended to limit the term “breast of a female” to the entire breast, it
could have done so, and we may not add words to or subtract words
from the statute. See Turbyne, 151 P.3d at 567.
¶ 48 Construing the statute as a whole, we conclude that the term
“breast of a female” includes any display of an identifiable female’s
exposed breast. To conclude otherwise would frustrate the statute’s
purpose. See AviComm, Inc. v. Colo. Pub. Utils. Comm’n, 955 P.2d
1023, 1031 (Colo. 1998) (“[T]he intention of the legislature will
23
prevail over a literal interpretation of the statute that leads to an
absurd result.”); State v. Nieto, 993 P.2d 493, 501 (Colo. 2000) (“In
any event, the ultimate goal is to determine and give effect to the
intent of the General Assembly; in doing so, a reviewing court must
follow the statutory construction that best effectuates the intent of
the General Assembly and the purposes of the legislative scheme.”).
C. Constitutionality
¶ 49 Pellegrin next contends that interpreting “breast of a female” to
include any portion of the breast renders the statute
unconstitutionally vague and overbroad on its face. We disagree.
¶ 50 Under the posting a private image for harassment statute,
§ 18-7-107(1)(a), the prosecution must prove beyond a reasonable
doubt that the defendant intended to harass, intimidate, or coerce
the victim when the defendant posted or distributed an image
displaying the identifiable victim’s private intimate parts online
without the victim’s consent, or if the defendant knew or should
have known the victim had a reasonable expectation that the image
would remain private. And the victim must suffer serious emotional
distress. Id.
24
¶ 51 The vagueness doctrine is rooted in principles of due process.
People v. Shell, 148 P.3d 162, 172 (Colo. 2006). Due process
requires that a law give fair warning of the prohibited conduct. Id.A law offends due process if “it does not provide fair warning of the
conduct prohibited or if its standards are so ill-defined as to create
a danger of arbitrary and capricious enforcement.” Id. (quoting
Parrish v. Lamm, 758 P.2d 1356, 1367 (Colo. 1988)). Thus, a
statute “is not void for vagueness if it fairly describes the conduct
forbidden, and persons of common intelligence can readily
understand its meaning and application.” Parrish, 758 P.2d at
1367. To prevail on a facial challenge for vagueness, the challenger
must show that the statute is incomprehensible in all its
applications. People v. McCoy, 2015 COA 76M, ¶ 65, aff’d on other
grounds, 2019 CO 44.1
¶ 52 Pellegrin argues that interpreting “breast of a female” to mean
any portion of the female breast is unconstitutionally vague
because it fails to give notice of how much of the breast must be
1 Whether this principle remains valid “in all its applications” is
questionable. See People v. Graves, 2016 CO 15, ¶ 25 n. 8; People
v. Plemmons, 2021 COA 10, ¶¶ 18-19.
25
depicted and what conduct the statute criminalizes. However,
Pellegrin focuses on one portion of the statute without considering
the other elements of the offense.
¶ 53 In the context of the statute as a whole, our interpretation of
“breast of a female” is specific enough to provide a person of
common intelligence with notice that posting an image of any
portion of the exposed female breast online is prohibited if such
person posts the image with the requisite intent and without the
victim’s consent, or with knowledge that the victim had a
reasonable expectation that the image would remain private. Thus,
Pellegrin has not established that the statute is incomprehensible in
all of its applications. See Shell, 148 P.3d at 172.
¶ 54 Regarding overbreadth, a statute is not unconstitutionally
overbroad simply because it could possibly be applied in some
unconstitutional manner. People v. Baer, 973 P.2d 1225, 1231
(Colo. 1999). “A statute is overbroad if it sweeps so
comprehensively as to include within its proscriptions a substantial
amount of constitutionally protected speech.” Id.¶ 55 Pellegrin does not argue that the statute sweeps so
comprehensively as to include a substantial amount of
26
constitutionally protected speech. Indeed, the posting a private
image for harassment statute requires proof of (1) an identifiable
victim; (2) intent; (3) lack of consent (or knowledge that the victim
had a reasonable expectation that the image would remain private);
and (4) serious emotional distress of the victim. These elements, in
addition to displaying the private intimate parts, narrow the
statute’s potential reach so as not to criminalize harmless behavior.
See Cross, 127 P.3d at 78-79.
¶ 56 In this case, without the victim’s consent, Pellegrin posted on
Craigslist a private photo showing the side of the victim’s exposed
breast. The Craigslist ad invited strangers to contact the victim for
a “good time” and included the victim’s name, photos showing her
face, her phone number, and directions to her home. The victim
then received numerous text messages requesting sexual
encounters and photos of male genitalia. As a result, the victim
contacted the police, moved from her home, and quit her job. She
testified that seeing private photos of herself online made her feel
“violated” and “humiliated.” This is precisely the type of harm
section 18-7-107(1)(a) was intended to address.
27
¶ 57 Viewing this evidence in the light most favorable to the
prosecution, we conclude there was sufficient evidence to convict
Pellegrin of posting a private image for harassment on Craigslist.
See People v. Harrison, 2020 CO 57, ¶ 32 (“Under Bennett’s
substantial evidence test, we inquire whether the evidence, ‘viewed
as a whole and in the light most favorable to the prosecution, is
substantial and sufficient to support a conclusion by a reasonable
mind that the defendant is guilty of the charge beyond a reasonable
doubt.’” (quoting People v. Bennett, 183 Colo. 125, 130, 515 P.2d
466, 469 (1973))).
¶ 58 Accordingly, we discern no error.
V. Merger
¶ 59 Pellegrin next contends that harassment, § 18-9-111(1)(e), is a
lesser included offense of stalking, § 18-3-602(1)(c), under section
18-1-408(5)(c) and, thus, the convictions must merge. For the
reasons explained below, we disagree.
A. Standard of Review and Applicable Law
¶ 60 “Whether an offense is a lesser included offense of another
requires statutory interpretation and therefore poses a legal
question that we review de novo.” People v. Zweygardt, 2012 COA
28119, ¶ 10. As well, we review de novo double jeopardy contentions.
People v. Frye, 2014 COA 141, ¶ 30. But because this issue was
not preserved, we review it for plain error. Reyna-Abarca v. People,
2017 CO 15, ¶ 47.
¶ 61 As set forth above in Part IV, we review questions of statutory
interpretation de novo, and when construing a statute, our primary
task is to ascertain and give effect to the General Assembly’s intent.
See Turbyne, 151 P.3d at 567.
¶ 62 The Double Jeopardy Clauses of the United States and
Colorado Constitutions protect criminal defendants from multiple
punishments for the same offense. U.S. Const. amends. V, XIV;
Colo. Const. art. II, § 18; see also Reyna-Abarca, ¶ 49. Double
jeopardy principles preclude the imposition of multiple
punishments for the same offense unless the legislature has
specifically authorized multiple punishments. Reyna-Abarca, ¶ 50.
¶ 63 Under section 18-1-408(1)(a), a court may not enter
convictions for two offenses arising from the same conduct if “[o]ne
offense is included in the other.” An offense is included in another,
under section 18-1-408(1)(a), if “the elements of the lesser offense
are a subset of the elements of the greater offense, such that the
29
lesser contains only elements that are also included in the elements
of the greater offense.” Reyna-Abarca, ¶ 64.
¶ 64 Section 18-1-408(5) defines when an offense is included in a
charged offense, and that definition is “substantially broader” that
that in section 18-1-408(5)(a). People v. Raymer, 662 P.2d 1066,
1069 (Colo. 1983). Under section 18-1-408(5)(c), an offense is an
included one if “[i]t differs from the offense charged only in the
respect that a less serious injury or risk of injury to the same
person, property, or public interest or a lesser kind of culpability
suffices to establish its commission.” (Emphasis added.) In other
words, a lesser offense is included in the greater offense “if proof of
the facts required to prove the statutory elements of the greater
offense necessarily establishes all of the elements of the lesser
offense except that the offenses require proof of a different mens rea
element or degree of injury or risk of injury.” People v. Leske, 957
P.2d 1030, 1040 (Colo. 1998) (emphasis added).
¶ 65 As relevant here, a person commits harassment if,
with intent to harass, annoy, or alarm another
person, he or she:
....
30
(e) Directly or indirectly initiates
communication with a person or directs
language toward another person, anonymously
or otherwise, by telephone, telephone network,
data network, text message, instant message,
computer, computer network, computer
system, or other interactive electronic medium
in a manner intended to harass or threaten
bodily injury or property damage, or makes
any comment, request, suggestion, or proposal
by telephone, computer, computer network,
computer system, or other interactive
electronic medium that is obscene.
§ 18-9-111(1)(e).
¶ 66 A person commits stalking if
directly, or indirectly through another person,
the person knowingly:
....
(c) Repeatedly follows, approaches, contacts,
places under surveillance, or makes any form
of communication with another person, a
member of that person’s immediate family, or
someone with whom that person has or has
had a continuing relationship in a manner that
would cause a reasonable person to suffer
serious emotional distress and does cause that
person, a member of that person’s immediate
family, or someone with whom that person has
or has had a continuing relationship to suffer
serious emotional distress.
§ 18-3-602(1)(c).
31
B. Analysis
¶ 67 Pellegrin does not argue that harassment is a lesser included
offense of stalking under the strict elements test set forth in section
18-1-408(5)(a). Instead, he argues that harassment is a lesser
included offense under the broader test in section 18-1-408(5)(c).
¶ 68 The parties agree that harassment differs from stalking both in
the degree of injury or risk of injury and the kind of culpability
required. Indeed, harassment requires proof of intentional conduct
while stalking requires proof of knowing conduct. As well,
harassment is accomplished “in a manner intended to harass or
threaten bodily injury,” § 18-9-111(1)(e), while stalking is
accomplished “in a manner that would cause a reasonable person
to suffer serious emotional distress and does cause . . . serious
emotional distress,” § 18-3-602(1)(c). But the parties disagree
about the meaning of the word “or” separating the mens rea
language from the risk of harm language in section 18-1-408(5)(c).
Pellegrin contends that “or” is not exclusive and means “and/or.”
See In re Estate of Dodge, 685 P.2d 260, 265-66 (Colo. App. 1984)
(explaining the difference between the “inclusive ‘or,’” “meaning A or
B, or both,” and the “exclusive ‘or,’” “meaning A or B, but not both”).
32
The People, on the other hand, argue that “or” is limited by the
word only and that only one distinction between the two offenses
may exist for them to merge — either the mens rea or the risk of
harm. They reason that because the statutes reflect two
distinctions, they do not satisfy the single distinction test and
cannot merge under section 18-1-408(5)(c). We agree with the
People and conclude, for two reasons, that the word “or” in
subsection (5)(c) is exclusive and that an offense is a lesser included
one only where the lesser offense differs in the degree of injury or
risk of injury or in the kind of culpability, but not both.
¶ 69 First, “when the word ‘or’ is used in a statute, it is presumed
to be used in the disjunctive sense, unless legislative intent is
clearly to the contrary.” Armintrout v. People, 864 P.2d 576, 581
(Colo. 1993); see also People v. Valenzuela, 216 P.3d 588, 592 (Colo.
2009) (“Use of the word ‘or’ is ordinarily ‘assumed to demarcate
different categories.’” (quoting Garcia v. United States, 469 U.S. 70,
73 (1984))); 1A Norman J. Singer & Shambie Singer, Sutherland
Statutory Construction § 21:14, Westlaw (7th ed. database updated
Nov. 2020) (“The literal meaning of [‘and’ and ‘or’] should be
followed unless it renders the statute inoperable or the meaning
33
becomes questionable.”). A reviewing court may substitute the
word “or” for “and” to avoid an absurd or unreasonable result. See
Smith v. Colo. Dep’t of Hum. Servs., 916 P.2d 1199, 1201 (Colo. App.
1996).
¶ 70 The word “only” is restrictive and is synonymous with
exclusively. Webster’s Third New International Dictionary 1577
(2002); see also Pauma Band of Luiseno Mission Indians of Pauma
& Yuima Rsrv. v. California, 813 F.3d 1155, 1175 (9th Cir. 2015)
(“The use of the word ‘only’ is routinely defined to mean alone,
solely or exclusively.”). Here, the General Assembly’s inclusion of
the word “only” before the disjunctive “or” evidences its intent to
limit “or” to a single distinction between the offenses, rather than
the “and/or” meaning Pellegrin suggests. See 3 Shambie Singer,
Sutherland Statutory Construction § 57:8, Westlaw (8th ed. database
updated Nov. 2020) (“Legislatures may signal such an intent by
using the word “only,” or by including a limiting clause after an
affirmative direction.”) (footnote omitted); Bryan A. Garner, Garner’s
Dictionary of Legal Usage 635 (3d ed. 2011) (the best placement for
the word “only” is “before the words intended to be limited”); see
also Stanley v. Cottrell, Inc., 784 F.3d 454, 466 (8th Cir. 2015)
34
(finding the use of limiting words or phrases helpful in a disjunctive
reading of the word “or”); People in Interest of J.O., 2015 COA 119,
¶ 14 (“[T]he General Assembly’s use of ‘or’ is limited by the word
‘either.’”), overruled on other grounds by People in Interest of T.B.,
2021 CO 59.
¶ 71 Second, our supreme court’s holdings in Leske and Raymer
further counsel that the word “or” cannot be substituted with
“and/or.” In Raymer, the court held that aggravated robbery is a
lesser included offense of felony murder (based on robbery) by
concluding, under 18-1-408(5)(c), that the only difference between
aggravated robbery and felony murder is the victim’s death (risk of
harm). Raymer, 662 P.2d at 1070 (“Where . . . the robbery victim is
actually killed during the course of a robbery, then the crime of
aggravated robbery differs from the charge of felony murder only in
the sense contemplated by section 18-1-408(5)(c), namely, that an
injury less serious than death suffices to establish its commission.”)
(emphasis added).
¶ 72 Similarly, in Leske, the supreme court held that sexual assault
on a child is not a lesser included offense of sexual assault on a
child by one in a position of trust, under 18-1-408(5)(c). Leske, 957
35
P.2d at 1041. It noted that the two offenses do not differ in
culpability or risk of injury but, instead, differed in several other
respects. Id. It concluded that “[b]ecause the offenses differ in
ways other than those contemplated by subsection (5)(c), that
subsection is inapplicable.” Id.; see also People v. Chapman, 192
Colo. 322, 325, 557 P.2d 1211, 1213-14 (1977) (holding that “one
who commits reckless driving necessarily has been guilty of careless
driving” because the offenses differ only in the degree of negligence);
Gatrell v. Kurtz, 207 P.3d 916, 918 (Colo. App. 2009) (“[T]he
commas, which separate several distinct actions, the last of which
is preceded by the disjunctive ‘or,’ demarcate different categories.”).
¶ 73 As well, most of the divisions of this court that have applied
subsection (5)(c) have applied a single distinction test. See People v.
Oliver, 2020 COA 97, ¶ 63 (holding that second degree possession of
contraband is a lesser included offense of first degree possession of
contraband under section 18-1-408(5)(c) because the offenses differ
“only as to the severity or risk of injury posed by the type of
contraband each proscribe”) (emphasis added); People v. Hoggard,
2017 COA 88, ¶¶ 32-33 (concluding second degree forgery is a
lesser included offense of felony forgery because the “offenses differ
36
only with the respect to the type of document involved in the crime”)
(emphasis added), aff’d on other grounds, 2020 CO 54; People v.
Duran, 272 P.3d 1084, 1096 (Colo. App. 2011) (“[R]eckless
manslaughter is a lesser included offense of first degree extreme
indifference murder because the offenses differ only as to degree of
culpability.”) (emphasis added); People v. Horton, 683 P.2d 358, 361
(Colo. App. 1984) (holding that, where a first degree sexual assault
victim is killed during the assault, first degree sexual assault is a
lesser included offense of felony murder under section 18-1-
408(5)(c) because the offenses differ only in the degree of injury);
see also People v. Palmer, 944 P.2d 634, 639 (Colo. App. 1997)
(“[B]ecause the offenses differ with respect to both the culpability
required and the injury or risk of injury required, we conclude that,
even under the provisions of [section] 18-1-408(5)(c), menacing is
not a lesser included offense of second degree assault.”), rev’d on
other grounds, 964 P.2d 524 (Colo. 1998).
¶ 74 Nevertheless, even if we accepted Pellegrin’s interpretation, the
outcome would not change. Not only do stalking and harrassment
differ in the degree of injury or risk of injury and the degree of
culpability, but they also differ in the class of victims to which they
37
apply. The class of victims under the stalking statute includes not
only another person but “a member of that person’s immediate
family[] or someone with whom that person has or has had a
continuing relationship.” § 18-3-602(1)(c); see Leske, 957 P.2d at
1040 (holding that because the offenses addressed different classes
of victims, section 18-1-408(5)(c) was inapplicable); see also
Zweygardt, ¶ 26 (“Because this distinction is not one of the two
ways that a lesser included offense can differ from the greater
offense under section 18-1-408(5)(c), careless driving is not a lesser
included offense of vehicular assault (reckless) under that
subsection.”).
¶ 75 Accordingly, we conclude harassment is not a lesser included
offense of stalking under section 18-1-408(5)(c).
VI. Domestic Violence Finding
¶ 76 Pellegrin last contends that under Apprendi v. New Jersey,
530 U.S. 466 (2000), he had a Sixth Amendment right to have a
jury, not the trial court, determine whether the crime for which he
was convicted included an act of domestic violence. We disagree
and conclude a domestic violence finding under section 18-6-
38
801(1)(a), C.R.S. 2020, does not impose a “penalty” as contemplated
by Apprendi.
A. Standard of Review and Applicable Law
¶ 77 Trial courts have broad discretion over sentencing decisions.
Villanueva v. People, 199 P.3d 1228, 1231 (Colo. 2008). “However,
we review constitutional challenges to sentencing determinations de
novo.” People v. Jaso, 2014 COA 131, ¶ 8. Where an error of
constitutional dimension occurs, “the sentence must be vacated
unless the error was harmless beyond a reasonable doubt.” Id. at
¶ 9 (quoting Villanueva, 199 P.3d at 1231).
¶ 78 The Sixth Amendment requires that any fact, other than the
fact of a prior conviction, that increases the prescribed statutory
maximum penalty must be submitted to a jury and be proved
beyond a reasonable doubt. Apprendi, 530 U.S. at 490; see also
Alleyne v. Unites States, 570 U.S. 99, 102 (2013) (extending
Apprendi by holding that any fact that increases a defendant’s
mandatory minimum sentence must also be found by a jury under
the Sixth and Fourteenth Amendments); Blakely v. Washington, 542
U.S. 296, 303 (2004). But, “an essential prerequisite to the Sixth
Amendment inquiry under Apprendi and Alleyne is that the
39
sentence must be punitive in nature.” People v. Heisler, 2017 COA
58, ¶ 46; see also People v. Rowland, 207 P.3d 890, 895 (Colo. App.
2009) (concluding that where a sentence is not punitive, Apprendi is
inapplicable).
¶ 79 Section 18-6-801(1)(a) authorizes a trial court to make a
factual determination that the crime for which a defendant was
convicted included an act of domestic violence, as defined by
section 18-6-800.3(1), C.R.S. 2020. If the court makes such a
finding, domestic violence treatment is mandated in addition to any
sentence imposed on the person. § 18-6-801(1)(a).
¶ 80 In Heisler, ¶¶ 44-45, a division of this court held that section
18-6-801(1)(a) “does not run afoul of the Sixth Amendment” under
Alleyne because “court-ordered domestic violence treatment . . . is
not a form of punishment and, therefore, the statute does not
mandate a ‘penalty’ as contemplated by Apprendi.” Applying the
seven-factor test set forth in Kennedy v. Mendoza-Martinez, 372
U.S. 144, 168-69 (1963), the division concluded that domestic
violence treatment was not “punishment” because it (1) imposes no
affirmative disability or restraint; (2) was not historically regarded
as punishment; (3) requires no finding of scienter; (4) is
40
rehabilitative, not retributive, in nature; (5) has no alternative,
punitive purpose that undercuts its rehabilitative purpose; and (6)
does not impose excessive burdens on a defendant. Heisler, ¶¶ 49-
64.
B. Analysis
¶ 81 We find the reasoning in Heisler persuasive and apply it here.
In doing so, we reject Pellegrin’s contention that Heisler was
wrongly decided. Specifically, he argues the division in Heisler
applied the seven-factor test in Mendoza-Martinez without first
determining whether a domestic violence finding is a criminal or
civil punishment. See People in Interest of T.B., 2019 COA 89, ¶ 21
(“To decide whether a statute creates a punishment, a court must
first ‘ascertain whether the legislature meant the statute to
establish ‘civil’ proceedings.’”) (citations omitted), aff’d in part and
rev’d in part, 2021 CO 59. The Supreme Court, however,
established the seven-factor test to assist in determining the
punitive nature of a sanction. Mendoza-Martinez, 372 U.S. at 168;
see also United States v. Ward, 448 U.S. 242, 249 (1980) (noting
that the seven factors in Mendoza-Martinez are helpful
considerations in determining whether Congress provided for
41
sanctions so punitive as to transform a civil remedy into a criminal
penalty); People in Interest of T.B., ¶¶ 31-47 (applying the Mendoza-
Martinez factors in its analysis of whether a statute created a
punishment). And we agree that the Mendoza-Martinez factors were
the appropriate analytical framework to determine whether a
domestic violence finding is a penalty.
¶ 82 In addition, we reject Pellegrin’s reliance on People v. Jaso,
2014 COA 131. In Jaso, the trial court’s domestic violence finding
was used not only to mandate domestic violence treatment, but also
as part of a larger habitual domestic violence offender
determination. Id. at ¶ 1. Because the prosecution sought to
increase the defendant’s misdemeanor to a felony under the
habitual domestic violence statute, thereby increasing the penalty
for the crime, the defendant was entitled to have the jury make the
domestic violence finding. Id. at ¶ 23.
¶ 83 In contrast, the domestic violence finding here did not increase
the maximum or minimum punishment for the crime. Instead, the
finding added a condition to Pellegrin’s sentence — a domestic
violence evaluation and any recommended treatment. See § 18-6-
801(1)(a) (“In addition to any sentence that is imposed upon a
42
person for violation of any criminal law . . . .”) (emphasis added);
see, e.g., Christensen v. People, 869 P.2d 1256, 1259 (Colo. 1994)
(“[I]f the parole board determines an [incarcerated person] is in need
of further treatment, it can condition parole upon participation in a
sex offender treatment program.”).
¶ 84 Still, Pellegrin maintains that the court’s domestic violence
finding is a penalty because it restricted his access to firearms
pursuant to section 18-6-801(8)(a) and it could subject him to a
felony domestic violence conviction in the future. We do not agree.
First, when adding section 18-6-801(8), the General Assembly did
not intend for the firearm restrictions to be punitive. Rather, the
purpose of prohibiting domestic violence offenders from possessing
firearms is to protect the community. See S.B. 13-197, 69th Gen.
Assemb., 1st Reg. Sess. (Colo. 2013); see also Mayo v. People, 181
P.3d 1207, 1212 (Colo. App. 2008) (concluding that the sex offender
registration requirement is not punitive in nature, but, rather, is
designed to aid law enforcement officials and protect public safety);
People v. Milton, 732 P.2d 1199, 1203-04 (Colo. 1987) (holding that
a forfeiture sanction is not punitive, but remedial, in nature).
Second, any future conviction and sentence based on the court’s
43
domestic violence finding here is speculative and is therefore not
ripe for our review. See Stell v. Boulder Cnty. Dep’t of Soc. Servs., 92
P.3d 910, 914 (Colo. 2004) (“In the interest of judicial efficiency,
courts will not consider ‘uncertain or contingent future matters’
because the injury is speculative and may never occur.”) (citation
omitted).
VII. Conclusion
¶ 85 The judgment is affirmed.
JUDGE YUN and JUDGE GRAHAM concur.
44