A Douglas County judge acted improperly by refusing to grant a defendant’s request to de-register as a sex offender a quarter-century after his offense because the man allegedly “smirked” at a hearing, Colorado’s second-highest court ruled on Thursday.

David Arthur Kosak pleaded guilty in 2001 to one felony and one misdemeanor count related to sexual assault on a child. After completing four years of sex offender probation, a judge dismissed the felony, leaving Kosak guilty of only a misdemeanor. He subsequently completed sex offender treatment in 2006.

Ten years later, without further incident, Kosak petitioned under Colorado law to discontinue registering as a sex offender. Because he only stood convicted of a misdemeanor, his name did not even appear in the state’s database.

After a 2017 hearing, a judge denied the request because Kosak failed to present evidence showing he posed no risk to the community. However, the judge noted Kosak was free to ask again in the future.

In 2023, Kosak once more petitioned to discontinue his registration. He since moved to Georgia and had successfully sought to de-register there. He presented a Georgia judge’s order and a state assessment classifying him at the lowest risk of recidivism.

At a hearing before Chief Judge Ryan Stuart, Kosak’s attorney argued the evidence showed Kosak no longer presented a risk of offending again. The victim, identified as M.P., read a statement opposing Kosak’s request.

Stuart acknowledged “all of those pieces” of evidence cut in favor of Kosak’s request. But no one else saw “what I saw” during M.P.’s statement.

“As (M.P.) was describing the effects of this horrific sexual abuse that she endured as a child at the hands of Mr. Kosak, the court observed Mr. Kosak passing notes to his attorney and smirking,” Stuart said. “And the court finds that lack of empathy is clear to me that he doesn’t understand the ramifications of his actions and that he has not shown that he is not likely to commit a subsequent offense of, or involving, unlawful sexual behavior.”

Kosak’s lawyer cut in to clarify that M.P.’s statement contained new allegations about Kosak that he disagreed with.

“And it’s his belief that this is being embellished to try to keep him on the registry. So, when he’s passing me a note, he’s saying, ‘That’s not true,’ ‘That never happened,'” the lawyer said.

“I’m not going to argue about what I saw,” responded Stuart. “It was the smirk. … Smirking throughout (M.P.’s) statements about the harm he had caused to her shows no empathy to me.”

Kosak spoke up to say he was not smirking.

“You can appeal my finding,” Stuart said, ending the hearing.

A three-judge Court of Appeals panel concluded Stuart’s handling of the petition was “manifestly arbitrary and unreasonable” in light of the actual evidence presented.

“The district court did not properly consider any of this evidence. Moreover, the prosecution introduced no evidence contradicting the evidence that Kosak did not present a significant risk to commit a new offense involving unlawful sexual behavior,” wrote Judge Timothy J. Schutz in the panel’s Aug. 21 opinion.

Further, nothing supported Stuart’s conclusion that smirking alone meant Kosak was likely to reoffend.

“Finally, the district court did not give Kosak a meaningful opportunity to explain the perceived smirk; instead, it curtly ended the hearing and told Kosak he could file an appeal,” Schutz wrote.

The panel ordered Stuart to grant Kosak’s petition to discontinue his registration.

The case is People v. Kosak.