People of The State of Colo. v. BUERGE

240 P.3d 363

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Gregory Alan BUERGE, Defendant-Appellant.

No. 07CA2393.

Colorado Court of Appeals,Div. II.

Nov. 12, 2009.

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John W. Suthers, Attorney General, Rhonda L. White, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Stephen Arvin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

The main issue in this criminal case is whether a fictional fourteen-year-old girl, created by two police officers conducting an Internet sting operation, can be a “victim” within the meaning of the sexually violent predator statute, section 18-3-414.5, C.R.S.2009 (SVP statute). Because we conclude that the term means “intended victim” in the context of a conviction for attempted sexual assault, we answer the question affirmatively and therefore affirm the trial court's order determining defendant, Gregory Alan Buerge, to be a sexually violent predator.

I. Background

Defendant made contact with a purported fourteen-year-old female, “Kelly,” in an Internet chat room. “Kelly,” however, was a fictional person created by two undercover police officers investigating Internet crimes against children. After defendant proposed to meet with Kelly and one of her friends to perform oral sex and use drugs, one of the investigators, posing as Kelly, personally spoke with defendant on the telephone and arranged a meeting. When defendant arrived at the designated meeting area, police officers arrested him and found drugs and sexual paraphernalia in his possession.

The prosecution charged defendant with possession with intent to distribute a schedule II controlled substance; enticement of a child; Internet luring of a child with intent to exploit; attempted sexual assault on a child-victim less than fifteen; and promotion of obscenity to a minor. Following a plea agreement, defendant pleaded guilty to attempted sexual assault on a child-victim less than fifteen, and an added count of possession of a schedule II controlled substance-more than one gram. The prosecution dismissed the remaining charges.

When sentencing defendant, the trial court granted his request to hold a separate hearing on the sexually violent predator determination. At the conclusion of that hearing, the trial court determined that defendant qualified as a sexually violent predator. This appeal followed.

II. No Victim

Defendant contends that the trial court erred in classifying him as a sexually violent predator. Specifically, he argues that the SVP statute requires the existence of an actual victim. We reject this contention.

A. General Law and Standard of Review

A sexually violent predator is an offender (1) who is eighteen years of age or older as of the date of the offense; (2) who has been convicted of one of the offenses enumerated in the SVP statute, including sexual assault on a child, or of an attempt, solicitation, or conspiracy to commit one of the enumerated offenses; (3) whose victim was a stranger to the offender or a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization; and (4) who is likely to subsequently commit another enumerated sexual offense, based on the results of a risk assessment screening instrument. § 18-3-414.5(1)(a), C.R.S.2009.

The trial court must make specific findings of fact, based upon the results of the assessment, and enter an order determining whether a defendant is a sexually violent predator. Id.; People v. Cook, 197 P.3d 269, 281 (Colo.App.2008). This determination involves a mixed question of law and fact. Cook, 197 P.3d at 280. We therefore defer to the trial court's findings of fact and will disturb them only where there is clear error. People v. Gallegos, 240 P.3d 882, 885 (Colo.App. No. 07CA2373, Sept. 17, 2009). But we review de novo the meaning of section 18-3-414.5(1)(a) because it presents a question of law, and we also review de novo whether the court's findings of fact are sufficient to support the court's determination that an offender is a sexually violent predator. Id.; People v. Tixier, 207 P.3d 844, 849 (Colo.App.2008).

In interpreting a statute, we must ascertain and effectuate the intent of the legislature. People v. Weiss, 133 P.3d 1180, 1184 (Colo.2006). Whenever possible, we must determine the General Assembly's intent from the plain and ordinary meaning of the statutory language. Woellhaf v. People, 105 P.3d 209, 215 (Colo.2005). We discern the clarity or ambiguity of the statutory language by reference to the language itself, the specific context in which the language is used, and the broader context of the statute as a whole. Tixier, 207 P.3d at 847. We must read and consider the statute as a whole “to give consistent, harmonious, and sensible effect to all of its parts.” People v. Hernandez, 160 P.3d 263, 264 (Colo.App.2007) (quoting Farmers Reservoir & Irrigation Co. v. City of Golden, 113 P.3d 119, 130 (Colo.2005)), aff'd, 176 P.3d 746 (Colo.2008). We presume that the legislature intended the entire statute to be effective. Tixier, 207 P.3d at 847. We will not follow a statutory interpretation that leads to an illogical or absurd result. Frazier v. People, 90 P.3d 807, 811 (Colo.2004).

B. Application

Defendant's argument focuses upon the third prong of the SVP statute, which requires that a “victim” be “a stranger to the offender.” § 18-3-414.5(1)(a)(III), C.R.S.2009. He argues that the statute's use of the term “victim” and the definition of “victim” in section 18-3-401(7), C.R.S.2009, require the existence of “a person alleging to have been subjected to a criminal sexual assault,” and here, there is no such person because the victim is a fictional character. We reject this argument.

Section 18-3-401, C.R.S.2009, which defines “victim,” establishes the definition of words used in article 3 of title 18, part 4, “unless the context otherwise requires.” The first question, then, is what the context requires.

By its plain terms, the statutory definition of “victim” applies when a completed assault has occurred because it identifies someone who has actually been subjected to an assault. § 18-3-401(7). But the definition does not fit here because defendant pleaded guilty to an attempt crime. In attempt crimes, there may be no victim because the perpetrator has only taken a substantial step toward, but has not completed, the crime:

To commit an actual crime, there must be a victim of that crime. However, a person can have the mental state of intent to commit a crime without having an identified specific victim. For instance, a defendant may break into a home with the intent to commit sexual assault, but not have an identified victim in mind; may have a particular victim in mind and yet complete the intended crime against a different victim; or may intend to commit the crime, but never actually complete the crime.

People v. Palmer, 87 P.3d 137, 140 (Colo.App.2003) (discussing burglary).

Because the General Assembly included attempt crimes in the SVP statute, it must have intended the statute to apply to perpetrators convicted of such crimes. To conclude that an offender convicted of an attempted sexual assault on a child cannot be determined to be a sexually violent predator because circumstances beyond the offender's control prevented the completion of the crime, and no child was actually victimized, would lead to an illogical and absurd result. See Frazier, 90 P.3d at 811. Similarly, such a conclusion would not give consistent, harmonious, and sensible effect to all of the statute's parts, see Hernandez, 160 P.3d at 264, because it would allow offenders convicted of attempted sexual crimes to avoid designation as sexually violent predators based on the mere fortuity of not having completed the crime with a resulting actual victim.

In addition, a division of this court has held that a defendant who believed the nonexistent person with whom he arranged a meeting was under fifteen, in a similar sting operation, was guilty of criminal attempt. See People v. Grizzle, 140 P.3d 224, 226 (Colo.App.2006). Allowing a conviction for attempted sexual assault when the victim is fictional but holding that the same status precludes a finding that the convicted offender is a sexually violent predator is, again, inconsistent and leads to an absurd result.

We therefore conclude that, when the perpetrator has been convicted of an attempted sexual assault, the definition of “victim” in section 18-3-401(7), does not preclude a finding that defendant is a sexually violent predator.

What, then, does “victim” mean in the context of the SVP statute, when the perpetrator has been convicted of an attempt crime? We first look to the elements of criminal attempt. A person commits an attempt when,

acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense. A substantial step is any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense. Factual or legal impossibility of committing the offense is not a defense if the offense could have been committed had the attendant circumstances been as the actor believed them to be....

§ 18-2-101(1), C.R.S.2009.

Thus, a defendant may be convicted of an attempt even when it is factually or legally impossible to commit the offense, as long as the actor could have done so if the circumstances were as he or she believed them to be. See Grizzle, 140 P.3d at 226 (if defendant believed that the person with whom he had arranged a sexual liaison was under the age of fifteen, then he could be guilty of criminal attempt even where the victim was nonexistent).

Intent to commit...