Colorado’s second-highest court on Wednesday ordered a new trial for a man convicted of failing to register as a sex offender, concluding the jury instruction did not correctly describe what was required to find him guilty.

El Paso County jurors convicted Clyde Douglas Phillips in 2023 of failing to register as a sex offender and he received a 2.5-year prison sentence. Colorado law contains a variety of conditions under which a person with a sex offense conviction can be guilty for failing to register. Phillips’ jury was instructed to find him guilty if he was “adjudicated for an offense, the underlying factual basis of which included felony unlawful sexual behavior.”

But having a prior conviction alone is not the standard for guilt, determined a three-judge Court of Appeals panel.

“The jury instruction didn’t accurately inform the jury of the law because it omitted — or at the very least, it drastically misdescribed — an element of the offense,” wrote Judge Katharine E. Lum in the June 18 opinion. “For the jury to convict Phillips of failing to register as a sex offender, it needed to find that he was required to register as a sex offender.”

Prosecutors alleged Phillips did not register as a sex offender within five days of his birthday in 2022. Phillips represented himself at trial and did not cross-examine witnesses, testify or provide any of his own evidence.

The district attorney’s office presented the jury with:

• A document labeled “criminal justice information” indicating a 1989 conviction in Illinois for aggravated sexual assault

• A 2021 “Notice to Register as a Sex Offender” form from the Colorado Springs Police Department with a signature from a Clyde Phillips

• A detective’s testimony that she spoke with Phillips and told him he would have to register

• The detective’s further testimony that she determined the Illinois conviction required Phillips to register in Colorado

• A completed sex offender registration form containing identifying characteristics for Phillips

On appeal, Phillips argued there were several holes in the prosecution’s case. Specifically, jurors did not hear evidence of what Illinois law Phillips was convicted under, there was not proof beyond a reasonable doubt that Phillips was the same person convicted of the Illinois offense and no witness had firsthand knowledge that Phillips was the one who signed the “Notice to Register” document.

Prior to oral arguments, the Court of Appeals panel posed a question to both sides: Assuming Phillips did have a 1989 sex offense conviction out of Illinois, what law required him to register in Colorado three decades later?

“We still don’t know what statute he allegedly violated,” said public defender Meredith K. Rose.

The Colorado Attorney General’s Office responded that it believed Phillips was obligated under the law mandating registration if an out-of-state offense would require registration in that state. However, Senior Assistant Attorney General Brittany Limes Zehner acknowledged the evidence did not indicate which specific Illinois law Phillips’ 1989 conviction fell under.

Lum said she was worried about relying on the signed “Notice to Register” document as proof Phillips knew about and disregarded his obligation to register.

“If that’s sort of sufficient by itself, that gives me a little bit of heartburn because it seems like the (prosecution) would be saying that there’s sufficient proof of your requirements to register because we said so,” she said. “Because the government said you’re required to register. It’s a little concerning.”

Ultimately, the panel agreed that the evidence could support a verdict finding Phillips had a prior conviction and knew he was required to register in Colorado as a sex offender.

However, Lum explained, the instructions neglected to actually ask jurors to find Phillips was required to register in Colorado.

The template jury instruction directs jurors to decide if someone was required to register as a sex offender. Instead, District Court Judge David Shakes appeared to give an instruction based on one legal provision requiring someone to register if their conviction involves “unlawful sexual behavior.”

Problematically, the law is applicable to convictions “on and after July 1, 1994” and “in the state of Colorado.” Neither of those conditions appeared in the jury instruction.

The appellate panel concluded the mistake cast doubt on the verdict because had jurors been asked to find whether Phillips was required to register, it was unclear they would have answered in the affirmative. The panel ordered a new trial, while offering no opinion about whether Phillips was, in fact, obligated to register.

The case is People v. Phillips.