Peo v. Maupin

23CA0765 Peo v Maupin 11-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0765
Adams County District Court No. 21CR1200
Honorable Jeffrey Smith, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Richard Allen Maupin,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE MOULTRIE
J. Jones and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 6, 2025

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Richard Allen Maupin, appeals the conviction and

sentence entered on a jury verdict finding him guilty of sexual

assault. We affirm the conviction but reverse the sentence as to the

court’s sexually violent predator (SVP) finding and remand with

instructions.

I. Background

¶2 The People charged Maupin with one count of sexual assault

(victim incapable of appraising the nature of her conduct), a class 4

felony. § 18-3-402(1)(b), (2), C.R.S. 2025.

¶3 The following factual background reflects the evidence that the

jury heard at trial.

¶4 Maupin and the victim met for the first time at a bar one

evening. They lived in the same apartment complex, which was

within walking distance of the bar. The victim arrived alone around

8 p.m. While at the bar, the victim played pool with Maupin and a

group of his friends. The victim left the bar alone around 1 a.m.

after a bartender cut her off due to her level of intoxication. After

leaving the bar, the victim fell onto her face outside. She then drove

home, where Maupin saw her crying in the parking lot as he was

walking home from the bar. Having recognized the victim from

1
hanging out with her at the bar, Maupin asked the victim if she was

okay and whether she needed help. He then walked the victim to

her apartment.

¶5 According to the victim, once inside her apartment, she iced

her face with frozen fruit and then “passed out” on her bed — in her

clothes and face down on the frozen fruit — while Maupin remained

in her living room. She next remembered waking up with someone

having vaginal sex with her. She realized that it was Maupin, and

she told him “no.” But Maupin repositioned her body on the bed

and placed his penis in her anus, at which point she began

screaming for him to stop. Maupin removed his penis and left the

victim’s apartment, and the victim “passed out” again.

¶6 The next day, the victim went to the hospital, where a nurse

examined her, including taking swabs of her vagina and anus. DNA

testing later indicated that Maupin’s DNA profile matched the

samples taken from the victim’s genitals.

¶7 In a recorded phone call with a detective, which was later

admitted as an exhibit during trial, Maupin first denied having

sexual contact with the victim and later asserted that he had

2
consensual sex with the victim. At trial, Maupin’s theory of defense

was consent.

¶8 A jury convicted Maupin as charged. The court designated

Maupin an SVP and sentenced him to six years in the custody of

the Department of Corrections (DOC).

II. Discussion

¶9 Maupin contends his conviction and sentence should be

reversed because (1) the prosecutor committed misconduct during

voir dire and closing argument; (2) the district court abused its

discretion in sentencing him; and (3) the district court misapplied

the law by designating him an SVP. We reject these contentions.

A. Prosecutorial Misconduct

¶ 10 Maupin argues that there were five instances of prosecutorial

misconduct — four during voir dire and one during closing

argument — that either individually or collectively require reversal.

We address each alleged instance and conclude that reversal isn’t

warranted.

1. Standard of Review and Preservation

¶ 11 We review claims of prosecutorial misconduct using a two-step

analysis. People v. Robinson, 2019 CO 102, ¶ 18. First, we

3
“determine whether the prosecutor’s conduct was improper ‘based

on the totality of the circumstances.’” Id. (quoting Wend v. People,

235 P.3d 1089, 1096 (Colo. 2010)). We evaluate the alleged

misconduct by examining the context of the argument as a whole

and in light of the evidence before the jury. People v. Strock, 252

P.3d 1148, 1153 (Colo. App. 2010).

¶ 12 Second, if we conclude that the prosecutor’s conduct was

improper, we decide whether the misconduct warrants reversal

under the applicable standard of reversal. Robinson, ¶ 18.

¶ 13 We review the one instance of alleged misconduct to which

Maupin’s attorney objected for nonconstitutional harmless error.

Hagos v. People, 2012 CO 63, ¶ 12. Under this standard, we will

reverse only when an error substantially influenced the verdict or

affected the fairness of the trial proceedings. Id.

¶ 14 Because Maupin’s counsel didn’t object to the remainder of

the prosecutor’s statements, we review any error in allowing those

statements for plain error. Wend, 235 P.3d at 1097. Only

misconduct that is “flagrantly, glaringly, or tremendously improper”

warrants reversal under the plain error standard. Domingo-Gomez

4
v. People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People v. Avila,

944 P.2d 673, 676 (Colo. App. 1997)).

2. Analysis

a. The Prosecutor Didn’t Improperly Elicit the Potential Jurors’
Opinions on Consent and Intoxication

¶ 15 Maupin contends that the prosecutor improperly elicited juror

opinions about consent and intoxication. We disagree.

i. Additional Facts

¶ 16 During voir dire, the prosecutor began her line of questioning

by asking the jurors what consent looked like to them. One juror

responded that consent to sexual encounters should be verbalized

by the parties involved. The prosecutor then asked jurors if they

could “think of other ways that you can determine if two people

have consented even though they didn’t tell you,” and she also

asked them about body language, actions, and unspoken conduct

that might inform whether a person has consented to sexual

activity.

¶ 17 The prosecutor then moved on to discuss consent when

intoxication is involved. She first asked jurors whether any of them

thought that “you cannot consent to a sexual act if you are

5
inebriated.” She next asked if “the level of intoxication” mattered.

Then, she asked the jurors how a person could tell if another

person — including a stranger — had reached a level of intoxication

where consent was not possible.

¶ 18 One juror said that he believed that “[i]f you’re too drunk, you

can’t consent.” The prosecutor asked the juror, “What level do you

have to be at if you’re drunk?” The juror responded, “falling down

or passed out.” The prosecutor then posed the following

hypothetical:

I’ll use a female as an example. If you’re at a
bar and you see a female and she’s been
drinking. You don’t how much. You don’t
know her. And she appears to be drunk and
then she is falling down . . . and not hearing
anything else about her, would you think that
girl might be too drunk to consent to have sex,
not necessarily with you, but just in general?
But she might be too drunk to consent to
anything really?

The juror responded in the affirmative, based on his own experience

of being drunk.

¶ 19 Defense counsel didn’t object at any point during this line of

questioning.

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ii. Application

¶ 20 The purpose of voir dire is to allow the parties to reveal and

address the beliefs of potential jurors that could cause them to be

biased in a manner that prevents one of the parties from receiving a

fair trial. People v. Garcia, 2022 COA 144, ¶ 18. However, counsel

isn’t permitted to educate potential jurors on a particular theory of

the case, Edwards v. People, 418 P.2d 174, 177 (Colo. 1966), and

because it’s presumed that the court will adequately inform jurors

of the applicable law in its jury instructions, the court can exercise

its discretion to limit voir dire that attempts to educate the jury

about legal concepts, People v. Collins, 730 P.2d 293, 301 (Colo.

1986).

¶ 21 Maupin asserts that the prosecutor’s questions sought to

“indoctrinate the jury on the key area of dispute at trial in a manner

favorable to the prosecution’s theory of guilt.” We disagree.

¶ 22 The questions that Maupin challenges were proper methods of

determining whether jurors would be biased for or against either

party’s theory of the case: Maupin’s theory that the victim

consented while intoxicated, or the People’s theory that she didn’t.

Indeed, defense counsel also asked the potential jurors to elaborate

7
on the views they expressed on consent and intoxication. Defense

counsel asked one prospective juror whether she could set aside her

bias based on her answers about consent and asked another juror

whether it was “easier for a sober person” to judge the intoxication

of another. We thus conclude that the prosecutor’s questions were

simply an attempt to find out the jurors’ views about consent and

intoxication. The prosecutor therefore didn’t engage in misconduct

by asking those questions.

¶ 23 We also conclude that the prosecutor’s hypothetical wasn’t

improper. The prosecutor didn’t tell jurors that the hypothetical

related to the parties or specific facts in the case. See People v.

Brewer, 720 P.2d 583, 588 (Colo. App. 1985) (approving

prosecution’s use of nonspecific hypotheticals during voir dire).

While the prosecutor generally discussed in her hypothetical a

woman who appeared to be drunk at a bar, she didn’t tie the

example to the specific facts in this case by describing, for example,

a woman falling or sliding off a barstool or a woman falling down

outside and injuring herself. There is no indication that the

prosecutor otherwise argued the People’s case through the

hypothetical. Notably, it was the potential juror who first indicated

8
that it was his opinion that someone who was falling down was too

drunk to consent. The prosecutor’s hypothetical thus permissibly

investigated the juror’s views about issues central to Maupin’s case.

¶ 24 Accordingly, the prosecutor’s voir dire inquiries about consent

and intoxication weren’t improper.

b. The Prosecutor Didn’t Improperly Elicit Juror Opinions About
the Behavior of Sexual Assault Victims

¶ 25 Maupin contends that the prosecutor committed misconduct

by questioning prospective jurors about the behavior of alleged

sexual assault victims. We aren’t persuaded.

i. Additional Facts

¶ 26 During voir dire, the prosecutor questioned the potential

jurors about their understanding of the behavior of alleged sexual

assault victims.

¶ 27 The prosecutor first asked a potential juror what he might

“expect to see or hear about how the victim acts or things she does”

the day after an assault and whether the juror would “have any

feelings on that or thoughts on what the appropriate response [from

the victim] would be,” such as calling the police or not. The juror

responded that everyone responds differently to traumatic events.

9
¶ 28 The prosecutor next asked another juror if there was a “correct

response,” and that juror responded no, that a victim’s response

was “based on the person.” The prosecutor followed up by asking

what the prospective jurors would expect an alleged victim’s

demeanor to be when the victim testified, and several jurors

responded. Finally, the prosecutor asked jurors if it would be a “red

flag” or “less believable” if an alleged victim testified without

emotion. One juror responded no and said that “everybody handles

things differently.” Another juror responded that she would find it

more difficult to believe an alleged victim if there was “zero

emotion.”

¶ 29 Defense counsel didn’t object to this questioning.

ii. Application

¶ 30 Maupin asserts that the prosecutor’s questions were

“obviously improper” because the “prosecutor wanted the precise

manner of how the jurors would evaluate [the victim’s] demeanor.”

Not so.

¶ 31 The prosecutor asked open-ended questions designed to elicit

whether any jurors had preconceived notions about how an alleged

sexual assault victim is “supposed” to act in response to an assault

10
or while testifying about the assault. Nothing about the

prosecutor’s questions directed the jurors toward a certain answer

or suggested how they should evaluate the victim’s demeanor or

credibility. Accordingly, the prosecutor’s questions embodied the

purpose of voir dire — to determine if the jurors could be fair and

impartial in their decisions.

¶ 32 Moreover, the court correctly instructed the prospective jurors

before voir dire and before deliberations that it was the jury’s role to

consider each witness’s motive and demeanor and that the jury

could accept or reject, in whole or in part, each witness’s testimony.

c. The Prosecutor Didn’t Improperly Attempt to Engender
Sympathy for the Victim

¶ 33 Maupin also contends that the prosecutor committed

misconduct during voir dire by asking a prospective juror to

imagine himself in the victim’s shoes, which was an improper

attempt to have the jurors sympathize with the “difficulties [the

victim] would face while testifying” in a way that violated the

“golden rule.” We disagree.

11
i. Additional Facts

¶ 34 The prosecutor asked prospective jurors what demeanor they

would expect in the courtroom from an alleged victim of sexual

assault. She specifically asked juror C.A. what expectations he

might have about a testifying victim’s demeanor. Juror C.A.

responded that he “would have no expectations because everyone

would handle that differently.” After asking all of the potential

jurors if any of them had ever testified before, the following

exchange occurred with juror C.A.:

[PROSECUTOR]: [I]s this uncomfortable for
you even like me asking you questions and
you’re sitting here?

[JUROR]: It’s somewhat uncomfortable.

[PROSECUTOR]: A little bit, right? You don’t
know what I’m going to ask you.

[JUROR]: Right.

[PROSECUTOR]: Could you imagine what it
would feel like to come in and sit in that chair
and talk about, you know, a sexual encounter
that you had . . . with this room?

The juror responded that he thought “someone could be

overwhelmed, but different people handle that differently.” Defense

counsel didn’t object to this exchange.

12
ii. Application

¶ 35 We reject Maupin’s assertion that the prosecutor made an

improper “golden rule” argument. “A true ‘golden rule’ argument

invites jurors to put themselves in the place of the victim and

imagine that the defendant wronged them personally, thereby

inflaming passions and prejudice.” People v. Randell, 2012 COA

108, ¶ 92. The prosecutor didn’t ask the prospective jurors to place

themselves in the victim’s shoes as to the charged offense.

¶ 36 Moreover, considered in context, the prosecutor’s statement

didn’t suggest that a testifying victim would have difficulty

testifying. Indeed, later in this line of questioning, the prosecutor

asked jurors what reaction they would have to a testifying victim

who expressed little or no emotion. Thus, the purpose of the

prosecutor’s question was to assess whether jurors might be biased

based on a victim’s demeanor — whatever that demeanor might be

— when testifying. Accordingly, the prosecutor’s question wasn’t

improper.

13
d. The Prosecutor Didn’t Improperly Elicit a Juror Opinion About
the Standard Response of Sexual Assault Victims

¶ 37 Maupin contends that the prosecutor committed misconduct

by asking a juror about the “standard” responses of victims of

sexual assault because it was an improper attempt “to educate the

venire about the expected behavior of sexual assault victims.” We

disagree.

i. Additional Facts

¶ 38 The prosecutor continued her voir dire by asking juror M.V. —

who was previously identified in camera as a former

court-appointed special advocate (CASA)1 — if she had prior

professional experience dealing with victims. M.V. responded yes.

The prosecutor then probed, “[D]o you see victims of sexual assault,

like a standard of response from them,” to which the juror

responded, “[a]bsolutely not.”

¶ 39 Defense counsel objected and asked to approach. At the

bench conference, defense counsel argued that juror M.V.’s

1 A court-appointed special advocate is a trained volunteer who

provides independent and objective information to the court about
children and youth in specified types of court cases. § 13-91-
103(3), C.R.S. 2025.

14
response to the prosecutor’s question “sound[ed] like expert

testimony” and he didn’t want the response “poison[ing] the jury.”

The court overruled the objection, finding that the prosecutor’s

question wasn’t problematic and that the court couldn’t tell a

prospective juror “what she can and cannot say.”

¶ 40 The prosecutor then asked juror M.V. why she didn’t expect a

standard response from victims. M.V. said,

I think trauma was mentioned, and there’s a
very unpredictable nature to trauma. And
even the same victim, I think, can experience a
similar situation and have a different reaction.
And then I think in a case where you’re faced
with — you’re in the same room potentially
with the person who violated you, you know,
don’t know how you’re going to react.

ii. Application

¶ 41 Based on the totality of the circumstances and the context of

the prosecutor’s questioning, we don’t agree with Maupin that the

question was improper. The prosecutor asked juror M.V. if she

expected a “standard” response from sexual assault victims, and

when M.V. said she didn’t, the prosecutor asked M.V. to further

explain her answer. To the extent that Maupin argues that these

15
questions were improper because of M.V.’s prior experience as a

CASA, we aren’t persuaded.

¶ 42 As noted, the parties discussed with juror M.V. her prior CASA

experience in camera, outside the presence of other jurors. Maupin

doesn’t direct us to, nor have we found, anything in the record

indicating that the other potential jurors knew she was a former

CASA. The prosecutor made only a brief, general reference to juror

M.V.’s prior professional experience working with victims before

defense counsel objected, she didn’t ask M.V. about it again when

she resumed her questioning of M.V. after the bench conference,

and she didn’t ask M.V. whether her answer was based on her prior

professional experience. The purpose of these questions was to

explore whether juror M.V. held particular attitudes or expectations

about how an alleged victim of sexual assault might behave.

Similar questions were asked of other potential jurors, who gave

similar answers. Thus, we reject Maupin’s assertion that the

prosecutor’s questions to juror M.V. amounted to misconduct.

16
e. The Prosecutor Didn’t Improperly “Inflame” Jurors’ Passions or
Denigrate Maupin, His Theory of Defense, or His Counsel

¶ 43 Maupin next contends that the prosecutor committed

misconduct during closing argument by denigrating him, his theory

of defense, and his counsel. We again disagree.

i. Additional Facts

¶ 44 In closing argument, the prosecutor argued as follows:

[The victim] was drinking heavily. Heavily
drinking. Shot after shot. She did cocaine.
You heard she did cocaine. That’s not good.
She’s a mother. The defense made a big point
to point that out to you. Does this make her a
bad mother? Oh, she was getting home alone.
She didn’t have anyone to help her or she
wasn’t there with a friend to walk her home or
anything like that. She let a stranger into her
apartment. That’s bad. She has a messy
house and it hadn’t been vacuumed. Again,
that was something that Mr. Maupin wanted
you to know.

Do these things mean that a man, Mr. Maupin,
can take advantage of her? No.

Did these things mean that she deserved to be
sexually assaulted? No.

These are things that you can have opinions
on but you need to push those aside when
you’re deliberating because your job is to apply
the facts to the law. And the law, what needs
to be proven by [the prosecution], is whether
[the victim] was too drunk to appraise the

17
nature of her conduct, whether she knew what
was going on, and whether he knew it.

Not this stuff. This is victim blaming. This is
embarrassment for her. These are things that
do not matter when you’re looking at the
elements of the crime. And . . . you shouldn’t
be focusing on those because they don’t
change anything. Because she doesn’t deserve
to be sexually assaulted just because she went
out at night alone.

(Emphasis added.) Maupin didn’t object to this argument.

ii. Applicable Law and Standard of Review

¶ 45 A prosecutor has wide latitude during closing argument and

may refer to “the strength and significance of the evidence,

conflicting evidence, and reasonable inferences that may be drawn

from the evidence.” People v. Rhea, 2014 COA 60, ¶ 46 (quoting

People v. Walters, 148 P.3d 331, 334 (Colo. App. 2006)). However,

“[c]ounsel may not misstate or misinterpret the law in closing

arguments,” People v. Weinreich, 98 P.3d 920, 924 (Colo. App.

2004), aff’d, 119 P.3d 1073 (Colo. 2005), or use arguments

“calculated to inflame the passions and prejudices of the jury,

denigrate defense counsel, misstate the evidence, or assert a

personal opinion as to the credibility of witnesses,” People v.

Nardine, 2016 COA 85, ¶ 35.

18
¶ 46 Prosecutorial misconduct in closing argument that amounts to

plain error is rare; it results from flagrant, glaring, or tremendously

improper conduct that so “undermine[s] the fundamental fairness of

the trial as to cast serious doubt on the reliability of the judgment

of conviction.” People v. Smalley, 2015 COA 140, ¶ 37 (citation

omitted).

iii. Application

¶ 47 The prosecutor’s argument was rooted in the evidence and

attacked Maupin’s theory of defense, not him or his counsel. People

v. Herold, 2024 COA 53, ¶ 97. The victim acknowledged during

trial that she drank multiple shots and did cocaine the night of the

incident before letting Maupin into her apartment, which she

admitted was messy, but not because of Maupin’s actions. The

victim also testified that she was upset and embarrassed after she

fell down in the parking lot because she was supposed to pick up

her daughter the next day. The prosecutor thus properly

highlighted these facts because the victim’s intoxication level

related to the victim’s ability to consent. Illustrating the weakness

of the defendant’s defense, so long as it is tied to the evidence, isn’t

improper. See People v. Iversen, 2013 COA 40, ¶ 38.

19
¶ 48 The prosecutor, by using the term “bad mother,” used a

rhetorical embellishment to incorporate evidentiary facts such as

the victim’s messy apartment, cocaine use, and level of intoxication

— but she didn’t attribute that embellishment to defense counsel.

See People v. Allee, 77 P.3d 831, 837 (Colo. App. 2003) (noting that

a prosecutor may “employ rhetorical devices and engage in

oratorical embellishment and metaphorical nuance, so long as [the

argument] does not thereby induce the jury to determine guilt on

the basis of passion or prejudice”). Rather, the purpose of the

embellishment was to remind the jurors that it was their job to

apply the relevant evidence to the elements of the offense and not

focus on irrelevant evidence.

¶ 49 Viewed in the context of the argument as a whole, the

prosecutor’s comment that it would be “victim blaming” to consider

facts that embarrassed the victim but didn’t relate to the elements

of the crime was meant to draw the jury’s focus away from

irrelevant evidence; it wasn’t a comment intended to denigrate

opposing counsel or Maupin. See id. at 836 (concluding that the

prosecutor’s closing argument, which was intended to draw the

jury’s focus to relevant evidence rather than to denigrate defense

20
counsel, wasn’t improper). Likewise, the prosecutor’s statements

about the victim’s decisions impressed upon the jurors that they

shouldn’t use that evidence to make moral judgments about the

victim instead of applying the facts to the relevant law.

¶ 50 To the extent that the prosector engaged in minimal

embellishment with the statement that defense counsel made a “big

point” of highlighting the fact that the victim was a mother, we infer

the prosecutor’s argument wasn’t overly damaging in live argument

because defense counsel didn’t contemporaneously object to it,

Strock, 252 P.3d at 1153, and on its own that statement wasn’t so

flagrant as to deprive Maupin of a fair trial.

¶ 51 Accordingly, we see no misconduct during closing argument

amounting to plain error.

f. Cumulative Prosecutorial Misconduct

¶ 52 Maupin contends that the prosecutor’s alleged misconduct

constitutes cumulative error. Because we’ve identified at most one

instance of misconduct, we conclude that there was no cumulative

error. People v. Buckner, 2022 COA 14, ¶ 20 (“If we find multiple

instances of prosecutorial misconduct, we ‘must carefully review

whether the cumulative effect of the prosecutor’s statements so

21
prejudiced the jury’s verdict as to affect the fundamental fairness’ of

the trial.” (quoting Domingo-Gomez, 125 P.3d at 1053)).

B. Sentencing

¶ 53 Maupin next contends that the district court abused its

discretion by imposing the maximum sentence because the court

didn’t adequately explain its reasoning or properly consider his

mitigation evidence.

1. Additional Facts

¶ 54 At the sentencing hearing, the prosecutor requested that the

court sentence Maupin to a maximum term of six years in DOC

custody. The prosecutor argued that the proposed sentence was

appropriate given Maupin’s “inability to accept the crime he

committed,” his criminal history, his failure to comply with the

terms of probation related to a prior conviction for a sexual offense

(which included offender treatment), and his risk to the community.

¶ 55 Defense counsel asked the court to sentence Maupin to a

probationary sentence, with a two-year, work-release authorized jail

sentence as a condition. He argued that Maupin had admitted

making a “big mistake,” had cooperated with the police, and could

be placed under intensive supervision while being required to

22
attend treatment as part of a probation sentence. He also noted

that Maupin’s prior sex offense conviction was over thirteen years

old.

¶ 56 Maupin made a statement to the court, in which he said that

he was “unaware of just how intoxicated [the victim] was,”

apologized for his behavior, and asked for the opportunity to

participate in therapy.

¶ 57 In its ruling, the court said that it had “taken into

consideration all relevant factors as well as the purpose of

sentencing.” The court noted that it was familiar with the facts of

the case because it had presided over the trial, and that it had

reviewed the presentence investigation report (PSI), the offense

specific evaluation, and Maupin’s mitigation information. The court

found that probation wasn’t appropriate and sentenced Maupin to a

term of six years in DOC custody.

2. Standard of Review and Applicable Law

¶ 58 A district court has extremely broad discretion when it

imposes a sentence within the statutory range. People v. Rice, 2015

COA 168, ¶ 8. A court abuses its discretion when it imposes a

sentence that is manifestly arbitrary, unreasonable, or unfair, or is

23
based on a misapplication of the law. People v. Herrera, 2014 COA

20, ¶ 16.

¶ 59 In exercising its sentencing discretion, a district court “must

consider the nature and elements of the offense, the character and

rehabilitative potential of the offender, any aggravating or mitigating

circumstances, and the public interest in safety and deterrence.”

People v. Eurioste, 12 P.3d 847, 850 (Colo. App. 2000). A district

court isn’t required to discuss every factor relevant to its decision; it

only needs to provide a reasonable explanation for its decision.

People v. Torrez, 2013 COA 37, ¶ 74.

¶ 60 We will uphold a sentence that is (1) within the range required

by law; (2) based on appropriate considerations as reflected in the

record; and (3) factually supported by the circumstances of the

case. People v. Fuller, 791 P.2d 702, 708 (Colo. 1990).

3. Analysis

¶ 61 The mandatory sentencing range for a class 4 felony sexual

assault is two to six years to life in prison. § 18-3-402(6);

§ 18-1.3-401(1)(a)(V.5)(A), C.R.S. 2025; § 18-1.3-1004(1)(a), C.R.S.

2025 (“[T]he district court having jurisdiction shall sentence a sex

offender to the custody of the department for an indeterminate term

24
of at least the minimum of the presumptive range specified in

section 18-1.3-401 for the level of offense committed and a

maximum of the sex offender's natural life.”). Although the court

sentenced Maupin within the statutory range, Maupin contends

that the court abused its discretion by failing to explain why it

sentenced him to the maximum term.

¶ 62 We see no abuse of discretion. The court indicated that it had

reviewed all of Maupin’s mitigation evidence and explicitly

acknowledged that the PSI also contained mitigating information.

Although the court didn’t recount that information in its oral

findings, it wasn’t required to. See Torrez, ¶ 74.

¶ 63 Moreover, the court provided a reasonable explanation for its

decision. The court specifically noted that the evidence was clear

that the victim was intoxicated — so intoxicated that it would be

“obvious to just about anyone that she was not in a condition to do

much of anything” given the injuries she suffered after falling on

her face. The court also noted that it was Maupin’s second felony

conviction for a sexual offense, his first one being for attempted

sexual assault on a child. The court also referenced the PSI’s

recommendation that Maupin be sentenced to DOC custody. “That

25
the trial court finds aggravating factors to be more compelling than

any arguably mitigating factors does not constitute an abuse of

discretion or indicate that the court failed to consider evidence of

mitigation.” People v. Linares-Guzman, 195 P.3d 1130, 1137 (Colo.

App. 2008).

¶ 64 Because we can understand the basis of the court’s order, and

because Maupin’s sentence is within the statutory range, was based

on appropriate considerations, and is supported by the

circumstances of the case, we won’t substitute our judgment for

that of the district court’s.

C. SVP Designation

¶ 65 Maupin contends that the district court erred by designating

him as an SVP because it misapplied the law and its determination

wasn’t supported by the evidence.

1. Additional Facts

¶ 66 Maupin completed an SVP assessment as part of the

presentence investigation process. The evaluator who completed

the assessment concluded that Maupin was a stranger to the victim

at the time of the offense and he established a relationship with her

primarily for the purpose of sexual victimization. The evaluator

26
didn’t conclude that Maupin promoted a relationship with the

victim primarily for the purpose of sexual victimization.

¶ 67 During sentencing, the district court asked whether either

party would like to be heard on the issue of whether Maupin should

be designated as an SVP under section 18-3-414.5, C.R.S. 2025.

The prosecutor simply asked the court to designate Maupin as an

SVP. Defense counsel acknowledged that the checklist of SVP

criteria submitted with the PSI “came out the way it came out” and

that he and Maupin both “understood that.” But defense counsel

also said he wasn’t sure whether he wanted to make an additional

record and asked the court, “[I]s there any specific question that

you need me to answer for you?” However, neither the prosecution

nor the defense made argument to the court regarding whether the

circumstances satisfied the statutory criteria as necessary to

designate Maupin as an SVP.

¶ 68 After giving the parties the opportunity to be heard, the court

found that the primary issue was “whether or not the victim was a

stranger or if the person with whom the defendant established a

relationship was done primarily with a purpose of sexual

victimization or that relationship was promoted for that purpose.”

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¶ 69 The court then said:

[T]he [c]ourt will ultimately find the factors
have been met on both the stranger factor in
the sense that there was no preexisting
relationship with [the victim]. [Maupin] had
just met her that night at the [local bar] for
several hours, but that was it. But even if that
pulls it outside of the stranger relationship,
alternatively the [c]ourt finds that the third
factor is satisfied on the relationship side in
the sense that at the very least this
relationship was promoted for the purpose
of sexual victimization. And again I go back to
what the evidence in this case was, is that . . .
he encountered her in a bar, and I think that
would have been obvious here. But then when
he came back across in their shared
apartment complex, would have known that
with her, and yet he remained in her house
and ultimately engaged in the acts the jury
found him guilty of. So for those reasons, the
[c]ourt will find that the sexually violent
predator criteria has been met.

2. Preservation

¶ 70 The People assert that Maupin waived his right to challenge

the court’s SVP designation. We disagree.

¶ 71 Waiver is the intentional relinquishment of a known right,

whereas a forfeiture is the failure to assert a right in a clear and

timely manner. People v. Rediger, 2018 CO 32, ¶¶ 39-40; United

States v. Olano, 507 U.S. 725, 733 (1993). “We ‘do not presume

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acquiescence in the loss of fundamental constitutional rights, and

therefore indulge every reasonable presumption against waiver.’”

Rediger, ¶ 39 (quoting People v. Curtis, 681 P.2d 504, 514 (Colo.

1984)). Maupin’s counsel’s exchange with the court regarding

whether Maupin should be designated as an SVP was indecisive,

but it wasn’t an acquiescence to the SVP designation. And because

we see no indication in the record that Maupin intended to

relinquish his right to object to the SVP designation, we conclude

that it was, at most, forfeited. We review a forfeited right under the

plain error standard. Id. at ¶ 40; see also People v. Salas, 2017

COA 63, ¶ 46 (reviewing the defendant’s unpreserved challenge to

his SVP designation for plain error).

3. Applicable Law and Standard of Review

¶ 72 An SVP is someone who (1) is eighteen years of age or older at

the time of the offense; (2) is convicted of a sex offense under

section 18-3-402; (3) committed the offense against a victim who

was a stranger or was a person with whom the offender established

or promoted a relationship primarily for the purpose of sexual

victimization; and (4) is likely to commit another listed offense

under the same or similar circumstances, based on the results of

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an SVP risk assessment screening instrument. § 18-3-414.5(1)(a);

Allen v. People, 2013 CO 44, ¶ 6.

¶ 73 Based on the assessment results, the district court must

“make specific findings of fact” and enter an order determining

whether the defendant is a sexually violent predator.

§ 18-3-414.5(2); People v. Lopez, 2020 COA 41, ¶ 6.

¶ 74 Whether an offender satisfies the statutory criteria to be

designated as an SVP is a determination for the district court.

People v. Hunter, 2013 CO 48, ¶ 7. “In making this ultimate

determination, the [district] court relies on both the statute itself,

and on the appellate courts’ interpretations of the language

employed by the General Assembly.” Candelaria v. People, 2013 CO

47, ¶ 9. We defer to the court’s record-supported factual findings,

but we review de novo the court’s legal conclusions regarding

whether a person should be designated as an SVP. Allen, ¶ 4.

4. Analysis

¶ 75 Maupin challenges only the court’s finding that the third

criterion of the SVP statute was satisfied. He argues that the

court’s alternative conclusions that the victim was a stranger to

Maupin or that he promoted a relationship with her primarily for

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sexual victimization purposes are contrary to the supreme court’s

holdings in Hunter and People v. Gallegos, 2013 CO 45.

¶ 76 We conclude that the record doesn’t support the court’s

determination that Maupin was a stranger to the victim and the

court’s findings are insufficient to support its determination that

Maupin promoted his relationship with the victim primarily for

sexual victimization purposes.

¶ 77 For purposes of the SVP statute, a victim is a stranger to the

offender when, at the time of the offense, the victim is not known to

the offender or the offender is not known to the victim. Hunter,

¶ 12. And an offender “promotes” a relationship with a victim for

purposes of the SVP statute “if, excluding the offender’s behavior

during the commission of the sexual assault that led to his

conviction, [they] otherwise encourage[] a person with whom [they]

had a limited relationship to enter into a broader relationship

primarily for the purpose of sexual victimization.” Gallegos, ¶ 14;

accord People v. Valencia, 257 P.3d 1203, 1207-08 (Colo. App.

2011).

¶ 78 General findings may suffice to support a court’s SVP

designation if the designation is otherwise supported by the record.

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See People v. Tuffo, 209 P.3d 1226, 1232 (Colo. App. 2009). The

court’s general findings in this instance, however, aren’t sufficient

to support its SVP designation.

¶ 79 The record demonstrates that Maupin and the victim were at

least minimally known to each other at the time of the offense. So

the court’s determination that Maupin should be designated an SVP

based on the “stranger” criterion of the statute is unsupported.

¶ 80 And the sum of the court’s findings supporting its

determination that Maupin promoted a relationship with the victim

for sexual victimization purposes was that he encountered the

victim in a bar, saw her again in their shared apartment complex,

and then remained in her house before assaulting her. These

findings are insufficient to explain how Maupin’s behaviors, other

than those constituting the assault itself, expanded his limited

relationship with the victim for the purpose of assaulting her. See

Gallegos, ¶ 14. Accordingly, the case is remanded for the district

court to make additional, specific findings regarding whether

Maupin meets the criteria to be designated as an SVP. See Tuffo,

209 P.3d at 1232.

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III. Disposition

¶ 81 The conviction is affirmed. The SVP designation is reversed

and the case is remanded for the district court to make specific

findings regarding whether Maupin should be designated as an SVP

under section 18-3-414.5(2). Maupin’s sentence is otherwise

affirmed.

JUDGE J. JONES and JUDGE KUHN concur.

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