People v. Heisler ( 2017 )

COLORADO COURT OF APPEALS 2017COA58
Court of Appeals No. 16CA0104
Douglas County District Court No. 14CR754
Honorable Paul A. King, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Steven Thomas Heisler,
Defendant-Appellant.
JUDGMENT AND SENTENCE AFFIRMED
Division V
Opinion by CHIEF JUDGE LOEB
Rothenberg* and Casebolt*, JJ., concur
Announced May 4, 2017
Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Law Office of Daniel Kyser, L.L.C., Daniel H. Kyser, Englewood, 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. 2016.
¶1 Defendant, Steven Thomas Heisler, appeals the judgment of
conviction entered on a jury verdict finding him guilty of one count
of harassment. Heisler also appeals his sentence. We affirm.
I. Background and Procedural History
¶2 The victim and Heisler began dating in 2010 and carried on
their relationship for three years. After they broke up in 2013, they
remained in touch. In March 2014, however, the victim told Heisler
that she was beginning a new relationship and no longer wished to
communicate with him.
¶3 Heisler ignored the victim’s request and sent her numerous
text messages and letters, although the victim remained relatively
unresponsive to these communications. Eventually, in December
2014, Heisler traveled from Florida, where he lived, to Colorado to
talk to the victim in person — uninvited and unannounced. When
the victim saw Heisler outside of her home, she called the police.
Heisler was arrested and charged with one count of felony stalking
and one count of harassment. The charging instrument alleged
that both charges were acts of “domestic violence.” After a jury
1
trial, Heisler was acquitted of the stalking charge but was found
guilty of harassment.
¶4 At Heisler’s sentencing hearing, the trial court sentenced him
to thirty days in county jail and three years of supervised probation,
which Heisler could serve in Florida. Pursuant to applicable
statutes, the trial court also found that his conduct underlying his
conviction included an act of domestic violence. Therefore, the
court ordered Heisler to complete mandatory domestic violence
treatment as a condition of his probation.
¶5 Heisler now appeals.
II. Authentication of Text Messages
¶6 Heisler contends that the trial court erred by admitting into
evidence the text messages he sent to the victim because they were
not properly authenticated under CRE 901(a). We disagree.
A. Applicable Law and Standard of Review
¶7 Before evidence may be admitted, CRE 901(a) requires that the
evidence be sufficiently authenticated by the proponent.
Authentication “is satisfied by evidence sufficient to support a
finding that the [evidence] in question is what its proponent claims
[it to be].” CRE 901(a); see also People v. Glover, 2015 COA 16,
2
¶ 12. “The burden to authenticate ‘is not high — only a prima facie
showing is required . . . .’” Glover, ¶ 13 (quoting United States v.
Hassan, 742 F.3d 104, 133 (4th Cir. 2014)).
¶8 The showing required to authenticate text messages under
CRE 901(a) is a matter of first impression in Colorado. In setting
this standard, we find the reasoning of the divisions in People v.
Bernard, 2013 COA 79, ¶¶ 7-13, and Glover, ¶¶ 20-34, both of
which concern the authentication of other forms of electronic
communications, instructive.
¶9 In Bernard, a division of this court concluded that an e-mail
may be authenticated (1) through the testimony of a witness with
personal knowledge that the e-mail is what it is claimed to be or (2)
“through consideration of distinctive characteristics shown by an
examination of [the] contents and substance” of the e-mail under
the circumstances of the case. Bernard, ¶ 10 (citing CRE 901(b)(1),
(4)). The witness in Bernard testified that (1) a printout of the
contested e-mail was a true and accurate copy of the message she
had personally received from the purported sender; (2) she
recognized the e-mail address as belonging to the purported sender;
3
and (3) the contents of the e-mail indicated that it came from the
purported sender. Id. at ¶ 11. In light of this testimony, the
division concluded that the prosecution sufficiently authenticated
the e-mail as being from the purported sender and, therefore, the
trial court did not abuse its discretion in admitting it. Id. at ¶ 13.
¶ 10 More recently, in Glover, a division of this court expanded the
Bernard standard, concluding that printouts of a social networking
site require two levels of authentication. Glover, ¶ 23; see also
Bernard, ¶ 10.
¶ 11 First, the proponent must authenticate the printouts of a
social networking site as actual depictions of the site. Glover, ¶ 23.
This may be done through testimony from someone with personal
knowledge of how the printouts were obtained, or through an
examination of distinctive characteristics in the printouts’ content
or substance. Id. at ¶¶ 23-24.
¶ 12 Second, the proponent must sufficiently authenticate the
identity of the purported sender by showing that “the
communications [sent through the social networking site] were
made by [the] defendant.” Id. at ¶¶ 23, 28. As in Bernard, the
4
Glover division concluded that the identity of the purported sender
must be proved “beyond confirmation that the social networking
account [was] registered to the party purporting to create [the]
messages.” Glover, ¶ 30; see also Bernard, ¶ 10. However, a
witness with personal knowledge who testifies to any combination
of at least two of the following elements would sufficiently
authenticate the identity of the purported sender: (1) the account
was registered to the purported sender; (2) corroborative evidence
showed that the account was used by the purported sender; (3) the
substance of the communications was recognizable as being from
the purported sender; (4) the sender “responded to an exchange in
such a way as to indicate circumstantially that he or she was in fact
the author of the communication”; and (5) any other confirming
evidence under the circumstances. Glover, ¶¶ 30-34.
¶ 13 We review a trial court’s evidentiary rulings for an abuse of
discretion. Davis v. People, 2013 CO 57, ¶ 13. A court abuses its
discretion when its ruling is (1) based on an erroneous
understanding or application of the law; or (2) manifestly arbitrary,
5
unreasonable, or unfair. People v. Esparza-Treto, 282 P.3d 471,
480 (Colo. App. 2011).
B. Analysis
¶ 14 For the following reasons, we conclude that the text messages
in this case were properly authenticated and, accordingly, we
perceive no error by the trial court in admitting them into evidence.
¶ 15 In light of Glover and Bernard, we conclude that
authentication of text messages has two components. First, a
witness with personal knowledge must testify that printouts of text
message(s) accurately reflect the content of the message(s). Second,
a witness with personal knowledge must provide testimony
establishing the identity of the purported sender of the text
message(s). Identity may be established through a combination of
at least two of the following: (1) the phone number was assigned to
or associated with the purported sender; (2) the substance of the
text message(s) was recognizable as being from the purported
sender; (3) the purported sender “responded to an exchange in such
a way as to indicate circumstantially that he or she was in fact the
author of the communication”; or (4) any other corroborative
6
evidence under the circumstances. Glover, ¶¶ 30-34. Again, “[t]he
burden to authenticate ‘is not high.’” Id. at ¶ 13 (quoting Hassan,
742 F.3d at 133). If such evidence has been presented,
authentication of the text messages has been established under
CRE 901.
¶ 16 Applying that test here, the record shows that, at trial, the
prosecution introduced printouts of numerous text messages that
Heisler had sent to the victim. The victim authenticated this
evidence in the following ways:
 The victim testified that she recognized the pictures of
the text messages and that they were a fair and accurate
depiction of the texts she personally received.
 The victim testified that she recognized the phone
number as Heisler’s, and that she would use that
number to communicate with him.
 The victim testified that she recognized the content of the
text messages as being from Heisler.
¶ 17 Based on this testimony, the prosecution moved to admit the
evidence. Defense counsel objected and requested voir dire.
7
¶ 18 During voir dire, the victim admitted that she had deleted the
text messages she sent to Heisler in response. The defense then
objected to admission of the printouts because they were not a “true
and accurate depiction of the conversations” between the victim and
Heisler. The trial court overruled this objection and admitted the
texts into evidence.
¶ 19 As a threshold matter, we note that Heisler does not argue
that the printouts of the text messages were not accurate
representations of the text messages the victim received. Nor does
he contest that he was the author of the text messages. Instead,
Heisler contends that the text messages were not properly
authenticated because the victim deleted her responses. We are not
persuaded.
¶ 20 First, the record reflects that the prosecution presented
sufficient evidence that (1) the printouts of the text messages
accurately reflected the content of the messages the victim received
and (2) Heisler authored the text messages. The victim testified
that the printouts accurately reflected the texts she received, she
recognized the number as being Heisler’s and she would use that
8
number to communicate with him, she recognized the content of
the text messages as being from Heisler, and the content of the text
messages included corroborative evidence that they came from
Heisler. See Glover, ¶ 13 (noting that the proponent’s burden to
authenticate the evidence is not high).
¶ 21 Second, the record shows that the text messages were
admitted as evidence of texts the victim received from Heisler, not
as evidence of a conversation between the victim and Heisler.
Therefore, because the victim’s testimony was sufficient to support
a finding that the text messages were from Heisler (which he did not
dispute), we conclude that the printouts were properly
authenticated.
¶ 22 To the extent that Heisler takes issue with the victim’s deletion
of her responses, that issue goes to the weight of the evidence, not
its authenticity. Bernard, ¶ 12.
¶ 23 For these reasons, we discern no error by the trial court in
concluding that the text message evidence was properly
authenticated.
9
III. Facial Challenge to Domestic Violence Statute
¶ 24 Heisler also contends that the domestic violence sentencing
statute, section 18-6-801(1)(a), C.R.S. 2016, is facially violative of
his constitutional right to a jury trial under the Sixth Amendment
to the United States Constitution. In that regard, he contends that
section 18-6-801(1)(a) improperly authorizes a trial court to make a
factual determination that the underlying crime of conviction
included an act of domestic violence and that, if found by the court,
such a finding mandates domestic violence treatment in addition to
any other sentence imposed. Heisler thus argues that section 18-6-
801(1)(a) unconstitutionally imposes a mandatory penalty above the
minimum of the presumptive sentencing range (here, a $50 fine) in
violation of Alleyne v. United States, 570 U.S. __, __, 133 S. Ct.
2151, 2155 (2013). As a corollary to this contention, Heisler also
contends that the trial court should have instructed the jury to
determine whether Heisler’s offense included an act of domestic
violence and that the court erred in denying his request for that
instruction.
10
¶ 25 The People argue that section 18-6-801(1)(a) does not impose a
penalty that increases the presumptive sentencing range, and
therefore no Sixth Amendment violation occurred.
¶ 26 For the reasons below, we agree with the People.
A. Applicable Law and Standard of Review
¶ 27 In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the
Supreme Court announced the following rule:
The Sixth and Fourteenth Amendments to the
United States Constitution require that any
fact that increases the penalty for a crime
beyond the statutory maximum, except the
fact of a prior conviction, must be submitted to
a jury and proven beyond a reasonable doubt.
People v. Montour, 157 P.3d 489, 495 (Colo. 2007). Under Apprendi,
the Sixth Amendment “does not permit a defendant to be ‘expose[d]
. . . to a penalty exceeding the maximum he would receive if
punished according to the facts reflected in the jury verdict alone.’”
Ring v. Arizona, 536 U.S. 584, 588-89 (2002) (alteration in original)
(quoting Apprendi, 530 U.S. at 483).
¶ 28 In Blakely v. Washington, 542 U.S. 296, 306-12 (2004), the
Supreme Court applied Apprendi and further held that, except for
the fact of a prior conviction, facts supporting the increase of a
11
sentence beyond the “statutory maximum” must be admitted by the
defendant or tried to a jury and proved beyond a reasonable doubt,
unless the defendant has specifically stipulated to judicial
factfinding. See Lopez v. People, 113 P.3d 713, 720 (Colo. 2005).
¶ 29 In Alleyne, 570 U.S. at __, 133 S. Ct. at 2155, the Court
extended Apprendi and held that, with certain exceptions not
relevant here, any fact that increases a defendant’s mandatory
minimum sentence must also be found by a jury under the Sixth
and Fourteenth Amendments.
¶ 30 Together, Apprendi, 530 U.S. at 490, and Alleyne, 570 U.S. at
__, 133 S. Ct. at 2155, prohibit the legislature from requiring
“judges to impose enhanced sentences based on constitutionally
impermissible judicial fact-finding [under Blakely, 542 U.S. at 306-
12]” that raises the floor or ceiling of the mandatory sentencing
range. Lopez, 113 P.3d at 731.
¶ 31 Under Colorado law, a person is guilty of harassment where he
or she directly communicates with a person by text message “in a
manner intended to harass or threaten bodily injury or property
12
damage.” § 18-9-111(1)(e), C.R.S. 2016.1 A conviction of
harassment is a class 3 misdemeanor, § 18-9-111(2), and the
presumptive sentencing range is a minimum fine of $50 and no jail
time, and a maximum fine of $750 and/or six months in jail, § 18-
1.3-501(1), C.R.S. 2016.
¶ 32 Under section 18-1.3-104(1)(a), C.R.S. 2016, a court may
alternatively order probation:
When it appears to the satisfaction of the court
that the ends of justice and the best interest of
the public, as well as the defendant, will be
served thereby, the court may grant the
defendant probation for such period and upon
such terms and conditions as it deems best.
1 The full text of section 18-9-111(1)(e), C.R.S. 2016, states that a
person is guilty of harassment where he or she
[d]irectly 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.
13
The length of probation shall be subject to the
discretion of the court and may exceed the
maximum period of incarceration authorized
for the classification of the offense of which the
defendant is convicted but shall not exceed five
years for any misdemeanor or petty offense.
§ 18-1.3-202, C.R.S. 2016.
¶ 33 As pertinent here,
[i]n addition to any sentence that is imposed
upon a person for violation of any criminal law
under this title, any person who is convicted of
any crime, the underlying factual basis of
which has been found by the court on the
record to include an act of domestic violence, as
defined in section 18-6-800.3(1)[, C.R.S. 2016],
. . . shall be ordered to complete a treatment
program and a treatment evaluation that
conform with the standards adopted by the
domestic violence offender management board
as required by section 16-11.8-103(4), C.R.S.
[2016].
§ 18-6-801(1)(a) (emphasis added).
¶ 34 “Domestic violence” includes any crime, “when used as a
method of coercion, control, punishment, intimidation, or revenge
[and] directed against a person with whom the actor is or has been
involved in an intimate relationship.” § 18-6-800.3(1). An “intimate
relationship” includes a former relationship between a past
unmarried couple. See § 18-6-800.3(2).
14
¶ 35 “‘A trial court has broad discretion over sentencing decisions.’
However, we review constitutional challenges to sentencing
determinations de novo.” People v. Jaso, 2014 COA 131, ¶ 8
(citations omitted). Further, “[o]ut of respect to the legislative and
executive branches, we begin with the presumption that a statute is
constitutional.” Montour, 157 P.3d at 499.
¶ 36 “A statute is facially unconstitutional only if no conceivable set
of circumstances exist under which it may be applied in a
constitutionally permissible manner.” Id. Thus, “[t]he party
challenging the facial constitutionality of a statute has the burden
of showing the statute is unconstitutional beyond a reasonable
doubt.” Hinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo. 2007).
B. Preservation
¶ 37 The People initially argue that Heisler failed to adequately
preserve his constitutional contention. We disagree.
¶ 38 After the close of the evidence at trial, defense counsel
requested a jury instruction on the domestic violence finding.
Specifically, defense counsel stated:
DEFENSE: Your Honor, I would be asking
that [a] special interrogatory be given. I think
15
in a case like this, something like domestic
violence is a factual decision. It’s a decision to
be decided from the facts. So I would ask the
Court to give the jury . . . [a] domestic violence
special interrogatory . . . [a]long with the
definition of domestic violence.
¶ 39 It is clear from the record that the prosecution understood
Heisler’s objection to be based on the Sixth Amendment, because it
objected to defense counsel’s request and engaged in the following
colloquy with the court:
PROSECUTION: . . . [W]hat triggers Apprendi
[is] not what we have in this case. There is no
greater sentence that the Court would be
imposing. The Court could sentence the
defendant to domestic violence treatment
regardless of the jury finding. . . .
COURT: I want to make sure I understand
your argument. You’re saying that the
domestic violence designation in this case . . .
cannot increase the sentence beyond the
prescribed statutory maximum in this matter;
is that correct?
PROSECUTION: That is correct, Your Honor.
¶ 40 Ultimately, the trial court denied Heisler’s request, concluding
that Apprendi, 530 U.S. at 490, and Blakely, 542 U.S. at 306-12,
did not require the jury to determine whether the underlying
conviction included an act of domestic violence.
16
¶ 41 Further, based on our review of the record, Heisler reasserted
a Sixth Amendment argument at the sentencing hearing.
¶ 42 Although we recognize that Heisler did not precisely raise a
facial Sixth Amendment challenge to section 18-6-801(1)(a) under
Alleyne, 570 U.S. at __, 133 S. Ct. at 2155, “[w]e do not require that
parties use ‘talismanic language’ to preserve particular arguments
for appeal, but the trial court must be presented with an adequate
opportunity to make findings of fact and conclusions of law on any
issue before we will review it.” People v. Melendez, 102 P.3d 315,
322 (Colo. 2004).
¶ 43 We conclude that “defense counsel offered the trial court an
adequate opportunity to commence a sufficient inquiry into the
[Sixth Amendment] violation” under Apprendi, 530 U.S. at 490, and
its progeny. Melendez, 102 P.3d at 322. Therefore, this issue was
properly preserved for our review. Id.
C. Analysis
¶ 44 We hold, as a matter of first impression in Colorado, that
section 18-6-801(1)(a), which allows a trial court to make a factual
finding that the defendant’s underlying criminal conviction included
17
an act of domestic violence, does not run afoul of the Sixth
Amendment under Alleyne, 570 U.S. at __, 133 S. Ct. at 2155.
Accordingly, we discern no error in the trial court’s resolution of
this issue, although we reach our conclusion based on different
reasoning. Makeen v. Hailey, 2015 COA 181, ¶ 21 (“[W]e can affirm
on any grounds supported by the record.”).
¶ 45 For the reasons set forth below, we conclude that court-
ordered domestic violence treatment, imposed pursuant to section
18-6-801(1)(a), is not a form of punishment and, therefore, the
statute does not mandate a “penalty” as contemplated by Apprendi,
530 U.S. at 490, and its progeny. See, e.g., People v. Rowland, 207
P.3d 890, 895 (Colo. App. 2009) (concluding that the statutory
sexually violent predator community notification requirement did
not impose punishment and, therefore, did not violate the Sixth
Amendment under Apprendi); People v. Stead, 66 P.3d 117, 120-23
(Colo. App. 2002) (same), overruled on other grounds by Candelaria
v. People, 2013 CO 47, ¶ 8.
¶ 46 To begin, we note that an essential prerequisite to the Sixth
Amendment inquiry under Apprendi and Alleyne is that the
18
sentence must be punitive in nature. See Alleyne, 570 U.S. at __,
133 S. Ct. at 2158-60; Blakely, 542 U.S. at 306-12; Apprendi, 530
U.S. at 490-95; see also Rowland, 207 P.3d at 895 (concluding that
where a sentence is not punitive in nature, Apprendi is
inapplicable); Stead, 66 P.3d at 123 (same). Although not argued
by the parties, in our view, the seven-factor test set forth in
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), is the
proper analytical framework for determining whether a sentence
imposes a form of punishment. Based on our analysis of these
factors below, we conclude that the prerequisite of punishment is
not satisfied here.
¶ 47 In Mendoza-Martinez, the United States Supreme Court
adopted a seven-factor test to determine whether a sentence is
punitive in nature:
[1] [w]hether the sanction involves an
affirmative disability or restraint, [2] whether it
has historically been regarded as a
punishment, [3] whether it comes into play
only on a finding of scienter, [4] whether its
operation will promote the traditional aims of
punishment — retribution and deterrence, [5]
whether the behavior to which it applies is
already a crime, [6] whether an alternative
purpose to which it may rationally be
19
connected is assignable for it, [7] and whether
it appears excessive in relation to the
alternative purpose assigned are all relevant to
the inquiry, and may often point in differing
directions.
Id. (footnotes omitted). No one factor is controlling. Rowland, 207
P.3d at 893.
¶ 48 “Absent conclusive evidence of congressional intent as to the
penal nature of a statute, [the Mendoza-Martinez] factors must be
considered in relation to the statute on its face.” Mendoza-
Martinez, 372 U.S. at 169. Because section 18-6-801(1)(a) contains
no express legislative declaration regarding its purpose, we apply
the Mendoza-Martinez factors to determine whether section 18-6-
108(1)(a) imposes a form of punishment. Mendoza-Martinez, 372
U.S. at 169; see also Rowland, 207 P.3d at 892; Stead, 66 P.3d at
120-21.
1. No Affirmative Disability or Restraint
¶ 49 We first conclude that the domestic violence treatment
program does not impose an “affirmative disability or restraint,” let
alone restraint approaching “the infamous punishment of
imprisonment.” In re Cardwell, 50 P.3d 897, 904 (Colo. 2002)
(quoting Hudson v. United States, 522 U.S. 93, 104 (1997)).
20
Specifically, domestic violence treatment “does not, on its face,
restrict where an offender may live or work and does not alter either
the length of [probation or] incarceration.” Rowland, 207 P.3d at
893; see also Stead, 66 P.3d at 121.
2. Not Historically Regarded as Punishment
¶ 50 We next conclude that domestic violence treatment, which
prioritizes rehabilitation as well as victim and public safety, is not
analogous to traditional forms of punishment.
¶ 51 The plain language of section 18-6-801(1)(a) mandates that a
court-ordered domestic violence treatment program and treatment
evaluation comport with the standards devised by the domestic
violence offender management board (the Board) under section 16-
11.8-103(4); see also Partners in Change, L.L.C. v. Philp, 197 P.3d
232, 235 (Colo. App. 2008) (“Section 18-6-801(1)(b) unambiguously
requires that, if treatment is recommended, the treatment program
must conform with the [Board] [s]tandards.”).
¶ 52 Under section 16-11.8-103(4), the Board shall
provide for the evaluation and recommend
behavior management, monitoring, and
treatment [of domestic violence offenders;] . . .
[and] develop and implement methods of
intervention for domestic violence offenders
21
that have as a priority the physical and
psychological safety of victims and potential
victims and that are appropriate to the needs
of the particular offender, so long as there is
no reduction in the level of safety of victims
and potential victims.
§ 16-11.8-103(4)(a)(I). Further, the treatment programs must
be as flexible as possible so that the programs
may be utilized by each offender to prevent the
offender from harming victims and potential
victims[;] . . . [and] shall be structured in such
a manner that they provide a continuing
monitoring process as well as a continuum of
treatment programs for each offender as that
offender proceeds through the criminal justice
system.
§ 16-11.8-103(4)(a)(II).
¶ 53 Lastly, “[i]f an intake evaluation conducted by an approved
treatment program provider discloses that sentencing to a
treatment program would be inappropriate” for the defendant, for
any of the concerns outlined in section 16-11.8-103(4)(a), “the
[defendant] shall be referred back to the court for alternative
disposition.” § 18-6-801(1)(a).
¶ 54 In our view, the rehabilitative nature of the domestic violence
treatment program is clearly set forth in the statutory scheme. We
further conclude that such treatment is not analogous to traditional
22
forms of punishment. See, e.g., Rowland, 207 P.3d at 892. Indeed,
domestic violence treatment is more akin to other sentences,
imposed through judicial factfinding, that Colorado courts have
concluded do not violate Apprendi or its progeny. Id. at 895
(concluding that the Sixth Amendment right to have certain facts
found by a jury beyond a reasonable doubt does not apply to the
sexually violent predator community notification requirement
because such notification is not punitive); see also People v. Smith,
181 P.3d 324, 326-27 (Colo. App. 2007) (holding that the Sixth
Amendment right to have certain facts found by a jury beyond a
reasonable doubt does not apply to restitution orders because, inter
alia, restitution is not punitive).
¶ 55 Other Colorado cases give further context to the nature of
punishment. See Allen v. People, 2013 CO 44, ¶ 7 (concluding that
a sexually violent predator determination is not punitive in nature);
In re Cardwell, 50 P.3d at 904 (concluding that attorney regulation
proceedings and sanctions are not punitive in nature, but are
designed to protect public safety); People v. Milton, 732 P.2d 1199,
1203-04 (Colo. 1987) (holding that a forfeiture sanction is not
23
punitive, but remedial, in nature); People In Interest of C.J.R., 2016
COA 133, ¶ 28 (noting that civil commitment for mental health
treatment is not punitive in nature); 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. Howell, 64 P.3d 894, 899 (Colo. App. 2002) (concluding
that imposition of costs is not punitive, but remedial, in nature).2
¶ 56 Thus, we conclude that sentencing a defendant to domestic
violence treatment is not a traditional form of punishment.
3. No Requirement of a Finding of Scienter
¶ 57 Under the plain language of section 18-6-801(1)(a), the trial
court does not need to make a scienter finding. See § 18-6-800.3(1)
(defining act of domestic violence); see also Candelaria, ¶¶ 8-17
(undertaking scienter analysis).
4. Deterrence and Retribution
2 Indeed, courts in other jurisdictions have addressed almost
identical arguments to Heisler’s contention here, and they have
concluded that the Sixth Amendment poses no barrier to court
findings of domestic violence. See, e.g., Hitch v. State, 51 N.E.3d
216, 219-20 (Ind. 2016).
24
¶ 58 The domestic violence treatment program does have a goal of
deterrence, because such treatment is specifically designed to
reduce the occurrence of future acts of domestic violence. See § 16-
11.8-103(4)(a)(II). However, because we have already concluded
that the treatment program is not retributive in nature, see § 16-
11.8-103(4)(a)(I)-(II), the weight of this factor is slight. See Rowland,
207 P.3d at 894.
5. Criminal Behavior
¶ 59 The behavior to which domestic violence treatment attaches is
a crime. See § 18-6-801(1)(a); cf. Rowland, 207 P.3d at 894
(“However, the Supreme Court has de-emphasized this factor,
pointing out that ‘Congress may impose both a criminal and a civil
sanction in respect to the same act or omission.’” (quoting United
States v. Ward, 448 U.S. 242, 250 (1980))).
6. Alternative Purpose Rationally Connected to Domestic Violence
Treatment
¶ 60 We further conclude that a finding of domestic violence is
rationally connected to court-ordered rehabilitative treatment. See
Stead, 66 P.3d at 122. The domestic violence statute is narrowly
drawn, because it limits the treatment program to only those
25
individuals who (1) have committed an act of domestic violence; (2)
would benefit from such treatment; and (3) would not pose a risk to
victims or potential victims. See id.; see also § 16-11.8-103(4)(a)(I);
§ 18-6-801(1)(a). Therefore, “the General Assembly has attempted
to tailor the purpose of the [program] to its actual effect.” Stead, 66
P.3d at 122.
¶ 61 Moreover, we discern no alternative, punitive purpose to the
imposition of domestic violence treatment that undercuts its
rehabilitative purpose. See Mendoza-Martinez, 372 U.S. at 168-69.
7. No Excessive Burden
¶ 62 Finally, we conclude that, to the extent the domestic violence
treatment program imposes burdens on a defendant, they are not
excessive. We recognize that the domestic violence treatment
program “is not without [some] burdensome consequences to the
[defendant],” in terms of cost and duration, but “[treatment] is
primarily directed toward achieving the salutary goal of preventing
and terminating [domestic violence],” Milton, 732 P.2d at 1204, and
therefore does not impose an excessive burden on defendants.
¶ 63 In conclusion, the Mendoza-Martinez analysis indicates that
court-ordered domestic violence treatment, based on a trial court’s
26
finding of domestic violence under section 18-6-801(1)(a), does not
impose a punishment as a matter of law. Therefore, we conclude
that the statute is not facially unconstitutional under Alleyne, 570
U.S. at __, 133 S. Ct. at 2155. See Rowland, 207 P.3d at 892;
Stead, 66 P.3d at 123.3
¶ 64 In sum, we perceive no error by the trial court in making a
finding of domestic violence under the domestic violence statute. In
light of our resolution of this issue, we further perceive no error in
3 Our resolution of this issue further comports with the more basic
theme articulated in Apprendi v. New Jersey, 530 U.S. 466, 490
(2000), and its progeny, that an unconstitutional aggravated
sentence must aggravate the same kind of sentence. In this regard,
a treatment program is materially different from the presumptive
sentencing range at issue in this case, which involves jail time
and/or punitive fines, and therefore cannot be viewed as
aggravating either the minimum or maximum sentences in the
applicable presumptive range. See Alleyne v. United States, 570
U.S. __, __, 133 S. Ct. 2151, 2156 (2013) (aggravating prison term
with additional prison time); S. Union Co. v. United States, 567 U.S.
343, __ (2012) (aggravating punitive fine range with additional fine);
United States v. O’Brien, 560 U.S. 218, 223 (2010) (aggravating
prison term with additional prison time); United States v. Booker,
543 U.S. 220, 226 (2005) (aggravating prison term with additional
prison time); Blakely v. Washington, 542 U.S. 296, 306-12 (2004)
(aggravating prison term with additional prison time); Ring v.
Arizona, 536 U.S. 584, 588 (2002) (aggravating prison term with
death sentence); Apprendi, 530 U.S. at 468 (aggravating prison term
with additional prison time).
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the court’s denial of Heisler’s request for a jury instruction under
Blakely, 542 U.S. at 306-12, and we need not further consider that
argument. See Club Matrix, LLC v. Nassi, 284 P.3d 93, 99 (Colo.
App. 2011) (stating that we need not address additional arguments
rendered moot by our ultimate disposition of an issue).
IV. Conclusion
¶ 65 The judgment and sentence are affirmed.
JUDGE ROTHENBERG and JUDGE CASEBOLT concur.
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