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People v. Dorsey.

2021 COA 126. No. 18CA2333.  Failure to Register as a Sex Offender—Prior Convictions—CRS § 18-3-412.5.

October 21, 2021

Defendant pleaded guilty to attempt to commit criminal sexual assault in the second degree. He was sentenced to two years in the custody of the Department of Corrections and required to register as a sex offender and re-register annually. Defendant subsequently pleaded guilty to failing to re-register as a sex offender in violation of CRS § 18-3-412.5. He later again failed to re-register and was charged with failure to register as a sex offender (second offense). The trial court determined that the prior offense was a sentence enhancer to be tried to the court, and it found that defendant’s prior conviction had been proved beyond a reasonable doubt.

On appeal, defendant argued that the district court erred in treating his prior offense as a sentence enhancer because the fact of his prior conviction for failure to register is part of the sex offender statute’s definition of the offense, and the prosecution failed to prove the prior conviction to a jury beyond a reasonable doubt. However, the General Assembly intended to make prior convictions for this offense a sentence enhancer and not an element of the offense. Accordingly, the court did not err in deciding the prior conviction issue.

Defendant also argued that the district court erred in admitting a report from the National Crime Information Center (NCIC) database as a prosecution exhibit because it contained hearsay, was irrelevant, required expert testimony, and contained information that was more unfairly prejudicial than probative. As to hearsay, assuming without deciding that the NCIC report does not satisfy the requirements for admission as a business record under that hearsay exception, its admission was cumulative of other hearsay testimony to which defense counsel failed to object. Therefore, even if the court erred, any error was harmless. Defendant’s remaining contentions were unpreserved, and because admission of the exhibit was harmless, these alternative contentions did not rise to the level of plain error.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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