v. Williamson

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

June 3, 2021

2021COA77

No. 19CA0879, People v. Williamson — Crimes — Unlawful Sexual Behavior — Sexually Violent Predators — Sexually Violent Predator Assessment Screening Instrument

A division of the court of appeals considers whether, when deciding to designate a defendant a sexually violent predator, a district court errs by deferring to an evaluator’s assessment that, based on the results of Section 3A of the 2018 Sexually Violent Predator Assessment Screening Instrument (SVPASI), a defendant is likely to recidivate. See § 18-3-414.5(1)(a)(IV), (2), C.R.S. 2020. The division concludes that a district court may properly rely on such an assessment because, before approving Section 3A, the Sex Offender Management Board considered current research and established standards that are evidence based. Thus, inclusion of Section 3A in the SVPASI does not violate the requirements of the enabling statutes. See §§ 16-11.7-101(2), -103(4)(d), C.R.S. 2020.

COLORADO COURT OF APPEALS 2021COA77

Court of Appeals No. 19CA0879 Jefferson County District Court No. 18CR3429 Honorable Diego G. Hunt, Judge

The People of the State of Colorado, Plaintiff-Appellee, v.

Todd Louis Williamson, Defendant-Appellant.

ORDER AFFIRMED

Division VI Opinion by JUDGE RICHMAN Berger and Welling, JJ., concur

Announced June 3, 2021

Philip J. Weiser, Attorney General, Erin K. Grundy, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Katherine C. Steefel, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Todd Louis Williamson, appeals his designation as a sexually violent predator (SVP) in connection with a judgment of conviction for attempted sexual assault on a child. We reject his challenges to the SVP designation and affirm the district court’s order designating him an SVP.

I. Background

¶2 The following facts are drawn from the presentence report and supporting documents, as well as the affidavit supporting the arrest warrant. Williamson has agreed to the facts stated in the affidavit.

¶3 In 2016, a woman Williamson was dating reviewed the contents of one of his social media accounts. The account contained multiple videos depicting sexual assaults of children.

Upon further investigation, police discovered that Williamson possessed hundreds of videos and images of child pornography.

The People charged Williamson with, among other things, sexual exploitation of a child, a class 4 felony. § 18-6-403(3)(b.5), (5)(b)(II), C.R.S. 2020. He pleaded guilty to that charge and was given a fiveyear probationary sentence.

¶4 In 2018, while on probation, Williamson communicated in a sexually explicit manner, via social media, with a girl who told him she was fourteen years old. Unbeknownst to him, he was actually communicating with an undercover police detective. Based on these conversations, and an explicit photo he sent to the purported victim, Williamson was charged with internet sexual exploitation and internet luring of a child. §§ 18-3-306(1), (3), 18-3-405.4(1), C.R.S. 2020. He ultimately pleaded guilty to an added count, attempted sexual assault on a child, a class 5 felony. §§ 18-2-101, 18-3-405(1), C.R.S. 2020. The prosecution dismissed the remaining charges pursuant to a plea agreement.

¶5 Because Williamson was convicted of a sexual offense, Colorado’s SVP statute, § 18-3-414.5, C.R.S. 2020, required the district court to determine at sentencing whether he should be designated an SVP. As relevant here, under the statute, a defendant is an SVP if he (1) is eighteen years of age or older as of the date of the offense; (2) has been convicted of certain enumerated sexual offenses; (3) has committed an enumerated offense against a stranger or a person with whom he “established or promoted a relationship primarily for the purpose of sexual victimization”; and (4) according to the results of a “risk assessment screening instrument . . . approved by the sex offender management board established pursuant to section 16-11.7-103(1), [C.R.S. 2020,] is likely to subsequently commit one or more of the [enumerated sexual offenses]” against a similarly situated victim.

§ 18-3-414.5(1)(a)(I)-(IV).

¶6 In evaluating whether Williamson should be designated an SVP, the district court considered, among other items, the results of a Sexually Violent Predator Assessment Screening Instrument (SVPASI) that was administered by a trained evaluator and approved by the Sex Offender Management Board (SOMB). The SVPASI contained three parts. If a defendant met the criteria under any part, SVP designation was recommended.

¶7 Under Part 3A, the evaluator was instructed to recommend SVP designation if a defendant had previously been convicted of at least one felony or two misdemeanor “sex offenses” as that term is defined in section 16-11.7-102(3), C.R.S. 2020. Part 3B contained a Sex Offender Risk Scale (SORS), an actuarial risk assessment scale to be completed by the evaluator. The SORS placed certain risk factors into an equation — namely, the defendant’s age at the time of his earliest sex offense and the number of prior criminal cases and probation revocations on his record. These factors were weighted and then the equation was solved, yielding a numeric score. The evaluator was to recommend SVP designation only if a defendant scored 22 or above on the SORS. Part 3C measured whether a defendant met certain criteria indicating he suffered from psychopathy or a personality disorder, factors that also triggered an SVP recommendation.1

¶8 Due to Williamson’s prior sex offense conviction, he met the criteria for designation under Part 3A of the SVPASI, and the evaluator recommended that the court designate him an SVP on this basis. Although the screening form instructed the evaluator not to fill out Part 3B if a defendant met the criteria of Part 3A, the evaluator did so. Williamson scored only a -3.060 on Part 3B, well below the threshold for designation. Further, Williamson did not meet the criteria for designation under Part 3C.

¶9 Deferring in part to the evaluator’s recommendation under Part 3A, the district court designated Williamson an SVP.

Williamson objected to the designation, and the court invited him to

1 Williamson was evaluated under the 2018 SVPASI. The current SVPASI retains this format, and categorizes prior sex offenses as a standalone factor that may trigger SVP designation.

file a motion for reconsideration. Several months later, he did so.

In his motion, he challenged the court’s deference to the evaluator’s

recommendation in Part 3A of the SVPASI, arguing that his single

prior conviction for a sex offense is an unreliable measure of his

tendency to recidivate, especially where he received a low score on

Part 3B of the SVPASI. The court denied the motion, noting that “it

is not within the purview of this court to determine the validity of

the methodology of the risk assessment . . . .”

¶ 10 On appeal, Williamson renews the arguments he made below.

He asserts that the district court erred, and violated his right to due

process, by relying on Part 3A of the SVPASI. He further argues

that even if the district court’s designation was proper, SVP

designation violates constitutional prohibitions on the imposition of

cruel and unusual punishments. See U.S. Const. amend. VIII;

Colo. Const. art II, § 20.

II. The Court Did Not Err By Relying on the Evaluator’s

Recommendation in Part 3A of the SVPASI

A. The SVP Statute

¶ 11 Williamson’s challenge to the statutory validity of Part 3A of

the SVPASI requires that we construe the SVP statute. The proper interpretation of a statute is a legal question that we review de

novo. Allen v. People, 2013 CO 44, ¶ 4.

¶ 12 When we construe a statute, we focus on its plain language.

People v. Gallegos, 2013 CO 45, ¶ 7. We attempt to discern and

give effect to the General Assembly’s intent. Id. In doing so, we

must be careful not to impute new meaning to the language. People

v. Gholston, 26 P.3d 1, 7 (Colo. App. 2000). Whenever possible, we

must give all the language in the statute “consistent, harmonious,

and sensible effect.” Gallegos, ¶ 7 (quoting People v. Banks, 9 P.3d

1125, 1127 (Colo. 2000 . Accordingly, we read statutory words and

phrases in their full context and afford them their common

meaning. Id. We avoid statutory constructions that conflict with

the legislative intent. People v. Brosh, 251 P.3d 456, 459 (Colo.

App. 2010).

¶ 13 The SVP statute is part of an enactment by which the General

Assembly sought to “create a program that establishes evidence-based standards for the evaluation, identification, treatment,

management, and monitoring” of sex offenders to prevent them

from reoffending and to protect current and potential victims.

§ 16-11.7-101(2), C.R.S. 2020 (emphasis added). To that end, the General Assembly created the SOMB and tasked it with consulting

on, approving, and, as necessary, revising a “risk assessment

screening instrument” to “assist the sentencing court in

determining the likelihood that an adult sex offender will”

recidivate. § 16-11.7-103(4)(d). When carrying out its duties, the

SOMB is statutorily required to “consider research on adult sex

offender risk assessment” and the risk posed by defendants that

suffer from psychopathy or a personality disorder. Id. (emphasis

added); Allen, ¶ 32 (Márquez, J., concurring in the judgment). The

incorporation of evidence-based standards into the recidivism prong

of the SVP designation standard demonstrates the General

Assembly’s intent to limit SVP designations only to those

defendants that pose a high level of risk to the community. Allen,

¶ 32 (Márquez, J., concurring in the judgment).

¶ 14 The statute instructs courts considering an SVP designation to

“make specific findings of fact and enter an order concerning”

whether a defendant is an SVP based on the results of the SOMB

assessment instrument. § 18-3-414.5(2). While the district court

makes the ultimate SVP designation, our supreme court has stated

that the results of the assessment instrument “should serve as the primary aid” to the district court and has instructed courts to give

substantial deference to the recommendation in the SVPASI. Allen,

¶ 15. If a court chooses to deviate from the SVPASI, it must make

specific findings to justify its deviation. Id. It should not re-score

the instrument. Id. at ¶ 16. Moreover, even if the court does not

deviate from the SVPASI’s recommendation, it should make findings

concerning each of the four criteria set forth in section

18-3-414.5(1)(a), which lays out the standard for SVP designation.

People v. Loyas, 259 P.3d 505, 512 (Colo. App. 2010), overruled in

part on other grounds by Page v. People, 2017 CO 88.

¶ 15 In light of this statutory language as it has been construed by

Colorado courts, Williamson argues that any valid SOMB risk

assessment screening instrument must (1) assist the sentencing

court to determine the likelihood that a defendant will recidivate; (2)

consider research on adult sex offender risk assessment; and (3)

establish evidence-based standards for evaluation and identification

of SVPs. However, according to Williamson, neither the SVPASI nor

the handbook used by evaluators to administer it asserts or even

strongly implies that the standard used in Part 3A is a researchand evidence-based metric that assists the court with its recidivism analysis. Accordingly, Williamson argues, Part 3A is a statutorily invalid method of assessing the likelihood of recidivism and the

court erred in relying on it instead of the actuarial assessment

contained in Part 3B.

¶ 16 Although this contention is not without some merit, and it

would have been preferable for the SOMB to explicitly set forth the

evidence it relied upon with respect to Part 3A, we decline

Williamson’s invitation to engraft the SVP statute with a

requirement that each part of the SVPASI, or the handbook

addressing that part, must specifically identify the research and

evidence upon which it is based. The plain language of the SVP

statute simply does not indicate that there is any such requirement.

Gholston, 26 P.3d at 7 (noting that we must not impute new

meaning to statutory language). The other relevant statutes require

only that the SOMB consider research regarding risk assessment

and that it establish standards that are evidence based before it

approves the SVPASI. §§ 16-11.7-101(2), -103(4)(d). Further,

nothing in section 18-3-414.5(1)(a) or sections 16-11.7-101(2)

and -103(4)(d) indicates that the legislature meant to require the SOMB to limit the screening instrument to a scored component like

the SORS.

¶ 17 Further, it is evident that the SOMB considered relevant

research and established standards based on that research when it

created and approved the SVPASI. Williamson was evaluated using

the SOMB’s 2018 SVPASI Handbook, https://perma.cc/6689-LUYA.

According to the handbook, the SVPASI administered to Williamson

“identifies those individuals most likely to commit a subsequent

sexual or violent offense.” Id. at 1. Logically, this pronouncement

includes Part 3A.

¶ 18 The handbook also describes the research study conducted in

connection with Part 3B, the SORS. It describes a study of 4,698

adults convicted or given a deferred judgment for an SVP-eligible

crime in Colorado during a certain period. It notes that “[e]xcluded

from [the study] were those individuals with one prior adult felony

sex offense conviction or two misdemeanor sex offense convictions

because these individuals will quality for SVP eligibility [under Part

3A].” Id. at 16-17. It further notes, however, that “actuarial

methods are limited because offenders in any study group may vary

on factors not measured” and “[t]he research literature is quite clear that criminal history,” among other factors, is a “relevant and

statistically powerful” indicator of risk. Id. at 19. While the

handbook discusses this evidence in support of the SORS, the

research nonetheless supports the SOMB’s decision to include prior

sexual offense criteria in the SVPASI. These statements show that

the SOMB considered research on the significance of criminal

history before deciding to place separate emphasis on prior sex

offenses.

¶ 19 Moreover, as Williamson points out, when the SOMB voted to

use the applicable version of the SVPASI, it extensively discussed

the wisdom of separating the assessment of defendants with prior

sex offenses from the assessment of those who may meet other risk

criteria under the SORS. According to the minutes of the first

meeting where the significance of Part 3A was discussed, SOMB

members explicitly considered whether keeping Part 3A would make

the SVPASI more empirically validated and would be a valid

indicator of risk. SOMB, Minutes of Meeting (Sept. 16, 2016),

https://perma.cc/TYB5-Y8NE. At the following meeting, several

board members stated that after further investigation, they

concluded that sex offense history “is one of the strongest risk factors there is” and is a “clear” or “key” indicator of risk. Another

board member noted that Part 3A is a policy component of the

SVPASI “based on research that will affect the actuarial scale” and

that if Part 3A was included in the actuarial assessment in Part 3B,

the SVPASI “will not capture the data in the same way as 3A.”

SOMB, Minutes of Meeting 3 (Oct. 21, 2016),

https://perma.cc/UE2Y-GQYJ. Thus, based on the handbook and

the SOMB meeting minutes, it is apparent that the SOMB

considered current research when creating and approving the

SVPASI, and that it used that research to craft evidence-based

standards.

¶ 20 We conclude that the SVPASI met the relevant statutory

requirements and the district court did not err by deferring to the

evaluator’s recommendation under Part 3A of the SVPASI.

B. Due Process

¶ 21 Williamson further contends that the district court’s reliance

on Part 3A of the SVPASI violated his right to due process.

Although the contours of Williamson’s due process argument are

not entirely clear, we understand his argument to be that an SVP

designation must be based on reliable, nonspeculative evidence, and no such evidence was presented here. People v. Tuffo, 209 P.3d

1226, 1231 (Colo. App. 2009). According to Williamson, the court’s

only finding with respect to his tendency to recidivate was that he

had a prior sex offense conviction. He asserts that this evidence

has only speculative value.

¶ 22 Whether the district court correctly applied the statute and

made the proper findings when it designated Williamson an SVP are

mixed questions of fact and law. Allen, ¶ 4. We defer to the court’s

factual findings if they are supported by the record but consider

any legal conclusions de novo. Id.; People v. Salas, 2017 COA 63,

¶ 48.

¶ 23 As we noted above, supra Part II.A, it is within the SOMB’s

purview to determine which risk factors will be included in the

SVPASI, and what weight each factor will be given, as long as the

SOMB has considered research and incorporated evidence-based

standards. § 16-11.7-103(4)(d). For that reason, we do not deem a

prior sex offense conviction to be too speculative to support the

district court’s findings and conclusions regarding potential

recidivism.

¶ 24 Further, the record does not support the assertion that the

district court found only that Williamson had a prior conviction for a sex offense. At the sentencing hearing, the judge made the following findings and conclusions based on the presentence report, which included both the results of the SVPASI and a Sex Offense Specific Evaluation: (1) the crime at issue included aggravated circumstances because it involved a “second felony for a second sex offense which [Williamson] committed while he was on the highest level of supervision” in his prior case; (2) consequently, he “was found to have a high degree of risk for sexual re-offense”; (3) given the “risk to the community and the risk of re-offense,” Williamson would not be given another probationary sentence; (4) Williamson met the SVP statute’s criteria because he was over age eighteen at the time he committed the enumerated offense, the victim was a stranger, and he had a prior sex offense conviction; and (5) he should be designated an SVP. Thus, in addition to finding that Williamson had a prior sex offense conviction, the court specifically found that he was a risk to the community and would likely reoffend.

¶ 25 A court does not violate due process principles when it adopts

the findings of the presentence report, including the

recommendations of the SVPASI. People v. Torrez, 2013 COA 37,

¶ 83; People v. Buerge, 240 P.3d 363, 370 (Colo. App. 2009). This is

particularly so where the facts relied on, including Williamson’s

prior conviction, are undisputed. Tuffo, 209 P.3d at 1231 (noting

that a sentencing court may rely on uncontroverted facts in the

presentence report). We discern no due process violation.

III. SVP Designation Is Not Cruel and Unusual Punishment ¶ 26 Finally, Williamson argues that his SVP designation

constitutes a cruel and unusual punishment, and it is therefore

prohibited under the United States and Colorado Constitutions. We

are not persuaded.

¶ 27 Because Williamson raises a question of constitutional law, we

review his challenge to the SVP statute de novo. People v.

McCulloch, 198 P.3d 1264, 1268 (Colo. App. 2008).

¶ 28 Our supreme court has stated that “[u]nlike a criminal

sentence, the SVP designation is not punishment.” Allen, ¶ 7.

Instead, its purpose is to protect the community through

notification and registration requirements. § 16-22-108(1)(b), (d)(I), C.R.S. 2020; §§ 16-13-901 to -906, C.R.S. 2020; Allen, ¶ 7; Tuffo, 209 P.3d at 1231 (noting that the “SVP statute is protective rather

than punitive”). Because an SVP designation is not a punishment,

constitutional provisions prohibiting cruel and unusual

punishments do not apply. See, e.g., People in Interest of J.O., 2015

COA 119, ¶¶ 21, 30; People v. Rowland, 207 P.3d 890, 892 (Colo.

App. 2009) (“Like numerous other courts, we conclude that, under

the [relevant] factors, [the defendant] has not been subjected to

additional punishment.”); People v. Stead, 66 P.3d 117, 120 (Colo.

App. 2002) (holding that because the lifetime registration and

internet posting requirements associated with SVP designation are

not punishments, the constitutional guarantee of trial by jury does

not apply to SVP designation), overruled in part on other grounds by

Candelaria v. People, 2013 CO 47. Accordingly, Williamson’s SVP

designation did not violate his constitutional right to be free from

cruel and unusual punishments.

IV. Conclusion

¶ 29 The district court’s order designating Williamson an SVP is

affirmed.

JUDGE BERGER and JUDGE WELLING concur.