Virus Outbreak Courts (copy)

FILE - This Jan. 14, 2013, file photo shows a gavel sits on a desk inside the Court of Appeals at the Ralph L. Carr Colorado Judicial Center in Denver. (AP Photo/Brennan Linsley, File)

Prosecutors wrongly tried a man in Jefferson County for failing to register as a sex offender, the Court of Appeals ruled on Thursday, agreeing that the offense he pleaded guilty to in Kansas did not trigger a registration requirement in Colorado.

The defendant Raymond Donald Clark served a 32-month sentence in Kansas for an attempted sex offense against a child, and was required to register as a sex offender for 10 years following his 2009 parole. He subsequently moved to Colorado and was charged in 2017 with a felony for failing to register as a sex offender. A jury convicted him in 2018.

District Court Judge Laura A. Tighe rejected the defendant's argument that he had not committed a crime because "there had to be registration here in Colorado because of the Kansas offense."

A three-member panel of the Court of Appeals disagreed. State law requires residents who committed a sexual crime in another state to register as sex offenders, but only if their conduct was also a crime in Colorado. In Clark's case, the crime he pleaded guilty to in Kansas did not align with the corresponding offense in Colorado.

Specifically, Kansas outlawed "lewd fondling or touching" that is intended for sexual arousal. By contrast, Colorado's law prohibits the "touching of the victim's intimate parts" for sexual arousal. The Kansas law is not the same as Colorado's, the appeals court found, because someone may be guilty in Kansas even if they do not touch a victim's intimate areas.

"The Kansas offense in which [the defendant] pled guilty is simply broader in scope than the Colorado offense, meaning it encompasses conduct that would not qualify as sex assault on a child under Colorado law," wrote Judge Sueanna P. Johnson in the appellate court's Oct. 14 opinion. "Because Colorado’s sex assault on a child statute does not encompass all elements of the Kansas statute, we conclude, as a matter of law, that [the defendant] cannot be tried for the failure to register as a sex offender."

The panel declined to review the circumstances of Clark's original offense to determine if it would be illegal in Colorado. Instead, it overturned Clark's conviction and ordered the trial court to dismiss the criminal charge against him. Colorado Politics has not named the defendant because he committed no crime in Colorado.

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