Peo v. Young

22CA1247 Peo v Young 06-26-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1247
Mesa County District Court No. 21CR1028
Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Ellis Young,

Defendant-Appellant.

SENTENCE AND ORDER REVERSED,
AND CASE REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE LIPINSKY
Pawar and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 26, 2025

Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mackenzie R. Shields, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 James Ellis Young appeals the district court’s mandatory

protection order (the MPO) and the sentence imposed upon his

guilty pleas to sexual assault on a child by one in a position of

trust – victim less than fifteen years of age, first degree assault, and

attempted sexual assault on a child. He contends that the

conditions of the MPO and his sex offender intensive supervision

probation (SOISP) prohibiting him from having any contact with his

biological children violate his constitutional right to familial

association.

¶2 Because we conclude that the conditions infringe on Young’s

right to familial association and that the court plainly erred by

failing to make the requisite findings to justify the imposition of

such conditions, we reverse the MPO’s no-contact condition as to

his biological children, reverse the SOISP component of Young’s

sentence, and remand for further proceedings. The portions of the

MPO and the sentence not challenged in this appeal remain

undisturbed.

I. Background

¶3 The charges against Young arose from his sexual assaults of

N.F., his stepdaughter at the time. When she was eleven, N.F.

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reported that Young had sexually assaulted her for two and a half

years, beginning when she was seven. At the time of the assaults,

Young lived with his then wife, A.F.; their two biological children,

M.Y. and B.Y.; and N.F.

¶4 Young was charged with two counts of sexual assault on a

child (pattern of abuse), two counts of sexual assault on a child by

one in a position of trust (pattern of abuse and victim less than

fifteen years of age), and an aggravated sex offense count.

¶5 The court included in the MPO a condition prohibiting Young

from contacting A.F. or N.F. The prosecution subsequently moved

to amend the MPO to add M.Y. (age five) and B.Y. (age one) as

protected parties. At the next hearing, defense counsel “t[ook] no

position” on the motion to amend the MPO, and the court granted

it.

¶6 Young later pleaded guilty to an amended count of sexual

assault on a child by one in a position of trust (victim less than

fifteen years of age), an added count of first degree assault, and an

added count of attempted sexual assault on a child. In exchange,

the prosecution agreed to dismiss the remaining charges and

stipulated to an aggregate sentence of twelve years in the custody of

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the Department of Corrections on the first degree assault and

attempted sexual assault on a child counts and to an ensuing,

consecutive sentence of twenty years to life on SOISP for the sexual

assault on a child by one in a position of trust count. The plea

agreement specified that “[a]ll terms not specified by this agreement

shall be open to the [c]ourt.”

¶7 The court imposed the stipulated sentences and ordered, as a

condition of SOISP, that Young was prohibited from having contact

with any children, including his biological children. The court also

ordered that the MPO would remain in place until Young discharged

his sentence.

II. Legal Authority and Standard of Review

¶8 A court has the discretion to grant probation subject to

conditions that it deems reasonably necessary to ensure that the

defendant will lead a law-abiding life and to assist the defendant in

doing so. § 18-1.3-204(1)(a), C.R.S. 2024. Probation conditions

may include a restriction on a sex offender’s ability to contact or live

with a minor family member. People v. Cooley, 2020 COA 101, ¶ 1,

469 P.3d 1219, 1221. Similarly, an MPO issued in a sexual assault

on a child case may bar the defendant from contact or direct or

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indirect communication with the alleged victim or a witness.

§ 18-1-1001(1), (3)(a)(II), C.R.S. 2024; see also § 24-4.1-302(1)(q)-(r),

C.R.S. 2024.

¶9 Parents have a fundamental right to rear their children. In re

Parental Responsibilities of M.J.K., 200 P.3d 1106, 1112 (Colo. App.

2008); In re Custody of C.M., 74 P.3d 342, 344 (Colo. App. 2002).

“[A] parent’s desire for and right to ‘the companionship, care,

custody and management of his or her children’ is an important

interest that ‘undeniably warrants deference and, absent a powerful

countervailing interest, protection.’” Lassiter v. Dep’t of Soc. Servs.,

452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 645,

651 (1972)); see Troxel v. Granville, 530 U.S. 57, 65 (2000) (Parents’

“interest . . . in the care, custody, and control of their children . . .

is perhaps the oldest of the fundamental liberty interests recognized

by this Court.”). The Cooley division acknowledged that “the

constitutional importance of a person’s right to maintain familial

relationships” requires district courts to affirmatively demonstrate

that defendants are a danger to their children before restricting

familial contact as a condition of probation. Cooley, ¶ 36, 469 P.3d

at 1226 (quoting Simants v. State, 329 P.3d 1033, 1039 (Alaska Ct.

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App. 2014)). The Cooley division also cited as “persuasive” United

States v. Burns, 775 F.3d 1221 (10th Cir. 2014). Cooley, ¶¶ 31-32,

469 P.3d at 1225. In Burns, the Tenth Circuit held that, because

fathers have a fundamental liberty interest in maintaining their

familial relationships with their children, the district court could

only restrict the defendant’s contact with his child upon a finding of

compelling circumstances. Burns, 775 F.3d at 1223.

¶ 10 Consistent with Burns, the Cooley division said that “a

condition of probation that infringes upon a constitutionally

protected right must be tailored to accomplish the probation’s

legitimate purpose.” Cooley, ¶ 31, 469 P.3d at 1225. To evaluate

the validity of such restrictions, a court must consider

(1) whether the restriction is reasonably
related to the underlying offense; (2) whether
the restriction is punitive to the point of being
unrelated to rehabilitation; (3) whether the
restriction is unduly severe and restrictive;
(4) whether the defendant may petition the
court to lift the restriction temporarily when
necessary; and (5) whether less restrictive
means are available.

Id. (citing People v. Brockelman, 933 P.2d 1315, 1319 (Colo. 1997)).

¶ 11 Thus, “in situations where the need for [a contact restriction]

is not self-evident, conditions of probation that infringe on a

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defendant’s fundamental constitutional rights must be supported

by a specific finding that (1) compelling circumstances require their

imposition and (2) less restrictive means are not available.” Id. at

¶ 36, 469 P.3d at 1226 (footnote omitted).

¶ 12 We review de novo whether the no-contact conditions are

constitutional. See id. at ¶ 26, 469 P.3d at 1224.

¶ 13 The plain error standard of review applies to this case because

Young did not object to the imposition of the no-contact conditions.

See Hagos v. People, 2012 CO 63, ¶ 14, 288 P.3d 116, 120 (“[W]e

review all . . . errors, constitutional and nonconstitutional, that

were not preserved by objection for plain error.”). “An error is plain

when it is obvious, substantial, and ‘so undermines the

fundamental fairness of the trial itself as to cast serious doubt on

the reliability of the judgment of conviction.’” Johnson v. People,

2023 CO 7, ¶ 29, 524 P.3d 36, 42 (quoting People v. Rediger, 2018

CO 32, ¶ 48, 416 P.3d 893, 903).

¶ 14 “An error is obvious if it is ‘so clear-cut’ that ‘a trial judge

should be able to avoid it without benefit of objection.’” People v.

Ramcharan, 2024 COA 110, ¶ 63, 562 P.3d 425, 436 (quoting

People v. Crabtree, 2024 CO 40M, ¶ 42, 550 P.3d 656, 667); see

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Campbell v. People, 2020 CO 49, ¶ 25, 464 P.3d 759, 765 (“Plain

errors must be so obvious that trial judges should be able to avoid

them without the benefit of an objection.”). A substantial error is

one that “substantially influenced the verdict or affected the

fairness of the trial proceedings.” Hagos, ¶ 12, 288 P.3d at 119

(quoting Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)).

III. Analysis

¶ 15 As a threshold matter, the People argue that the court was not

required to make the Cooley findings because, “[u]nder the[]

circumstances[] in which Young sexually assaulted his custodial

child, the need for a no-contact order prohibiting Young from

contacting N[.]F[.], the victim of his crimes, as well as his two

biological, minor-aged daughters . . . was ‘self-evident’ and

‘obvious.’”

¶ 16 We decline to address whether the need for the no-contact

conditions as to Young’s biological children was self-evident or

obvious for two reasons. First, the court made findings — albeit

insufficient ones — in support of the no-contact condition of SOISP

and, therefore, apparently did not believe the need for the condition

was self-evident. Second, the prosecutor did not argue in the

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district court that barring Young from any contact with his

biological children was so self-evident that findings were

unnecessary, and the People raised the issue for the first time on

appeal. See People v. Spomer, 2025 COA 39M, ¶ 43, ___ P.3d ___,

___; see also LTCPRO, LLC v. Johnson, 2024 COA 123, ¶¶ 46-47,

564 P.3d 663, 671-72 (The division declined to address an issue for

the first time on appeal because the district court did not make the

requisite factual findings and, “[a]lthough we have discretion to

affirm on any ground supported by the record, ‘we are a court of

review, not of first view.’” (quoting Doe v. Wellbridge Club Mgmt. LLC,

2022 COA 137, ¶ 31, 525 P.3d 682, 689)).

¶ 17 Thus, we turn to the sufficiency of the court’s findings

supporting its decision to bar Young from contacting his children.

¶ 18 As the division explained in Cooley, a court cannot impose

SOISP conditions barring the defendant from contact with the

defendant’s children absent “a specific finding that (1) compelling

circumstances require . . . imposition [of the contact restriction] and

(2) less restrictive means are not available,” Cooley, ¶ 36, 469 P.3d

at 1226.

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¶ 19 When setting the conditions of Young’s SOISP, the court said

it was “not allowing contact with any children,” even though the

court recognized that the evaluation determined that Young was

“low risk[] in many areas” and that he was an overall low risk for

sexual re-offense. Nonetheless, the court found that restricting

Young’s contact with all children, including his biological children,

was “appropriate” because the evaluation deemed Young to be a

high risk with respect to his ability to recognize thoughts or

attitudes that support sexual offending and a moderate-high risk

with respect to his commitment to addressing his sexual problems

through treatment. The court further found that Young’s apparent

unwillingness to participate in offense-specific treatment made him

an “extremely high [risk] to any children.”

¶ 20 After imposing the no-contact restriction, the court clarified

that it encompassed Young’s “own children.” The court said that

the restriction on contact with children generally, and with Young’s

own children specifically, was “based on the tender years of N.F.,

the age that she was at the time [of the sexual assaults], and all of

the attendant circumstances.”

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¶ 21 (The section of the evaluation addressing “Contact with

Children/Own Children/Others” only recommended restricting

Young’s contact with his current girlfriend’s daughter. It made no

reference to N.F. or to Young’s biological children, possibly because,

as the evaluation indicated, he “does not have any contact with his

biological children or other non-related children.” Further, as in

Cooley, the record does not indicate whether a child contact

assessment was performed. See id. at ¶¶ 4, 32, 469 P.3d at 1221,

1225.)

¶ 22 Significantly, the court made no findings as to whether

compelling circumstances required barring Young from any contact

with his biological children or whether “less restrictive means” than

an unconditional bar were “not available.” Id. at ¶ 36, 469 P.3d at

1226. And the court made no findings whatsoever when it

amended the MPO to add Young’s biological children as protected

persons covered by the no-contact condition.

¶ 23 Under these circumstances, we conclude that the no-contact

conditions as to Young’s biological children infringed on his right to

familial association and that the court did not make sufficient

findings to justify the imposition of such conditions. Further, we

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are not convinced that we can infer from the court’s findings that it

found the type of compelling circumstances that would justify

barring Young from any contact with his biological children. See id.

at ¶ 36, 469 P.3d at 1226; see also United States v. Bear, 769 F.3d

1221, 1229 (10th Cir. 2014) (“When a defendant has committed a

sex offense against children or other vulnerable victims, general

restrictions on contact with children ordinarily do not involve a

greater deprivation of liberty than reasonably necessary. But

restrictions on a defendant’s contact with his own children are

subject to stricter scrutiny.”) (citation omitted).

¶ 24 Moreover, even if the court’s findings could be interpreted to

encompass a specific finding of compelling circumstances to justify

the contact restriction, we are not convinced that they adequately

showed that the court considered, and found, that less restrictive

means were not available. See Cooley, ¶ 39, 469 P.3d at 1227. The

court did not refer to any alternative to the sweeping prohibition

barring Young from any form of contact with his biological children.

On remand, the court may determine that the conditions are

justified; we only hold that the court’s findings are insufficient

based on the current record.

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¶ 25 Accordingly, we conclude that the court erred by failing to

make the required findings before imposing the no-contact

conditions as to Young’s biological children.

¶ 26 We next turn to whether the error was plain because, as noted

above, Young did not object to the conditions in the district court.

¶ 27 “[T]o qualify as plain error, an error must generally be so

obvious at the time of trial that the judge should be able to avoid it

without the benefit of an objection.” Crabtree, ¶ 18, 550 P.3d at

663. Because Cooley was announced before the court entered the

MPO and imposed the SOISP conditions, we conclude that the

court’s error by failing to make the Cooley findings was obvious.

See Campbell, ¶ 25, 464 P.3d at 765 (An error is obvious if it

contravenes “clear statutory prescription, a well-settled legal

principle, or established Colorado case law.”). (More recent cases

have expanded on Cooley’s analysis of restrictions on a defendant’s

right to familial association. See, e.g., People v. Zoller, 2023 COA

117, ¶ 20, 544 P.3d 1251, 1256 (holding that a no-contact provision

in a mandatory protective order infringing on a defendant’s

fundamental right to parental association can only survive a

constitutional challenge if the court found the restriction was

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“justified by compelling circumstances” and “the purpose of the

order cannot be accomplished by less restrictive means”); People v.

Salah, 2022 COA 134M2, ¶ 22, 525 P.3d 298, 302 (concluding that

a parole condition barring the defendant from contact with his

nephew did not infringe on the defendant’s right to familial

association because the defendant “had no parental or custodial

role with his nephew, and he otherwise failed to demonstrate the

nature of his relationship with his sister and nephew”), aff’d, 2024

CO 54, 550 P.3d 698. But for purposes of our plain error review,

we do not consider cases announced after the court imposed the

restrictions at issue. See Crabtree, ¶ 18, 550 P.3d at 663.)

¶ 28 Because the no-contact conditions implicated Young’s

constitutional rights, we conclude that the error was also

substantial. “A plain error is one which deprives a litigant of

fundamental rights.” People v. Ramirez, 56 P.3d 89, 93 (Colo.

2002); see Burns, 775 F.3d at 1223 (holding that the district court

plainly erred by restricting the defendant’s right to familial

association because it had not made “the constitutionally required

findings”).

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¶ 29 On remand, the court may reconsider whether the no-contact

conditions as to Young’s biological children are warranted and

reimpose the conditions if they “pass[] statutory and constitutional

muster.” Cooley, ¶ 39, 469 P.3d at 1227. As part of that analysis,

the court must consider whether compelling circumstances require

imposition of the conditions and less restrictive means are not

available. Id. at ¶ 36, 469 P.3d at 1226. If not, “then the district

court should amend or eliminate” the conditions. Id. at ¶ 39, 469

P.3d at 1227.

IV. Disposition

¶ 30 The MPO and the sentence are reversed, and the case is

remanded for further proceedings consistent with this opinion. The

portions of the MPO and the sentence not challenged in this appeal

remain undisturbed.

JUDGE PAWAR and JUDGE LUM concur.

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