January 18, 2018

Archives for March 18, 2013

Colorado Court of Appeals: Other Bad Act Evidence Admissible to Show Knowledge But Conviction Reversed on Fourth Amendment Grounds

The Colorado Court of Appeals issued its opinion in People v. Pollard on Thursday, March 14, 2013.

Possession of More Than One Gram of Cocaine—Habitual Offender for Sentencing—Other Bad Acts Evidence—Fourth Amendment Refusal to Consent to Search.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of possession of more than one gram of cocaine. He also appealed his adjudication as a habitual offender, for sentencing purposes. The judgment was reversed and the case was remanded for a new trial.

The police spotted defendant’s unoccupied car at 3:00 a.m. in an otherwise vacant parking lot in a park. An officer, looking inside the car, noticed on the center console a plastic bag he believed to be crack cocaine. When defendant returned to his vehicle with a female friend, he told the police that the car was his and the substance was probably bubble gum.

Defendant refused to give the police consent to search his car. He was arrested, and the bag—containing 2.66 grams of cocaine—was seized from the vehicle. Drug paraphernalia (a crack pipe, a glass vial, and two re-sealable cloth bags) were found only in his female friend’s purse.

At trial, defendant asserted the cocaine belonged to his friend and that he did not know it was in his car. The friend testified that the cocaine belonged to her, she had brought it with her in her purse, defendant didn’t know she had it, and she had put it on the car console only after defendant had gotten out of the car. Defendant argued he was charged and prosecuted due to racial stereotyping—that because he is black and his friend is a white woman, he was using the cocaine to obtain sex from her.

For purposes of showing motive, knowledge, identity and absence of mistake or accident, the prosecution presented evidence of a drug transaction that occurred fourteen months after the charges arose in this case. In that case, defendant sold crack cocaine to a woman in a grocery store parking lot. He was apprehended shortly thereafter and crack cocaine was recovered from the center console of his car.

The jury convicted defendant as charged. The trial court adjudicated him as a habitual offender and sentenced him to twenty-four years’ incarceration.

On appeal, defendant argued it was error to admit evidence of his subsequent drug transaction with the woman in the grocery store parking lot. The Court of Appeals disagreed. Defendant objected that the evidence was inadmissible under CRE 404(b). An abuse of discretion by a trial court will be found only on a showing that the court misconstrued or misapplied the law or otherwise reached a manifestly arbitrary, unreasonable, or unfair result. Evidence of other bad acts is inadmissible if its relevance depends only on an inference that the person has a bad character and acted in conformity therewith. Under CRE 410, 403, and 404(b), a trial court may admit evidence of a defendant’s other bad acts if (1) the evidence is offered for a proper purpose; (2) the evidence is logically relevant to a material issue in the case; (3) its relevance is independent of the intermediate inference that the defendant has a bad character; and (4) its probative value is not substantially outweighed by the danger of unfair prejudice. The Court concluded that the trial court acted within the scope of its discretion in admitting evidence of defendant’s subsequent possession and distribution of crack cocaine, particularly for the purpose of establishing his knowing possession in this case.

Defendant also argued that reversal was required because the prosecution improperly elicited evidence of, and commented on, his refusal to consent to a search of his car. The Court agreed. The prosecution repeatedly elicited evidence from the officer on the scene that when asked to consent to search of his car, defendant responded by saying, “Nobody searches my car.” Because defendant did not object to this and related statements, reversal was warranted only if it constituted plain error. The Court found it did. The Fourth Amendment gives a defendant a constitutional right to refuse to consent to entry and search. Evidence of a person’s refusal to consent to a warrantless search may not be used to support an inference of guilt. It is even more egregious to argue to the jury that such evidence is probative of guilt. The error in admitting this type of evidence in this case was so clear cut that the trial judge should have been able to avoid it without benefit of objection. Moreover, this was a substantial error because it was seriously prejudicial. Accordingly, the Court reversed defendant’s conviction and the case was remanded for a new trial.

Summary and full case available here.

More than 600 Attendees Celebrate 32nd Annual CU Law Alumni Awards

cu-wolf-law-bldgOn Wednesday, March 13, 2013, the University of Colorado School of Law celebrated its 32nd annual Law Alumni Award Banquet with more than 600 attendees gathering at the Denver Center for the Performing Arts. Dean Phil Weiser served as master of ceremonies as six distinguished award recipients were honored.

In the first award of the night, Regina Rodriguez received the Distinguished Achievement Award for private practice. Ms. Rodriguez is a 1988 graduate of CU Law. She is now a partner with the Denver office of Faegre Baker Daniels. Prior to joining Faegre Baker Daniels, Ms. Rodriguez was an assistant U.S. attorney. She supports numerous pro bono causes and is a founding member of Colorado Youth at Risk and a board member at Open Door and Family Star Montessori.

The Honorable Timothy Tymkovich of the Tenth Circuit Court of Appeals was honored for the judiciary. Judge Tymkovich is a 1982 graduate of CU Law. After clerking for Chief Justice William Erickson of the Colorado Supreme Court, Judge Tymkovich was in private practice with Davis Graham & Stubbs. He served as solicitor general and founded the firm of Hale Hackstaff Tymkovich Friesen before being nominated to the Tenth Circuit by President George W. Bush.

Carole Yaley was recognized for distinguished achievement in industry. She received her J.D. from CU Law in 1980 and is recently retired from Exxon Mobil Corporation after a distinguished 33-year career. Ms. Yaley was Chief Attorney for Exxon Mobile, managing more than 70 attorneys around the world. She handled such various legal issues as antitrust, real estate, construction, cybersecurity, data privacy, and much more.

This year’s Dean Edward C. King “Pay it Forward” Award went to John Schultz, who is a 1953 graduate of CU Law. He practiced in the oil and gas field for 37 years. Mr. Schultz and his late wife founded the John and Cynthia Schultz Law Scholarship. As the school’s largest scholarship fund, it is awarded each year to a second- or third-year student. Mr. Schultz also supported the construction of the Wolf Law Building and generously contributed to the Loan Repayment Assistance Program. In accepting his award, Mr. Schultz thanked the person who would receive next year’s award for all he or she will do for CU Law in the coming year.

The Richard Schaden “Adopted Alumnus” Award was presented to Jason Mendelson. Mr. Mendelson co-founded the Foundry Group and is managing director and general counsel at Mobius Venture Capital. Prior to this, he practiced corporate and securities law with Cooley Godward Kronish. Mr. Mendelson currently teaches the VC 360 course as an adjunct professor at CU Law. He was instrumental in securing $1 million to establish a permanent professorship for the Entrepreneurial Law Clinic.

The final award of the night went to Colorado Supreme Court Chief Justice Michael Bender as he accepted the William Lee Knous Award, the law school’s highest award. Justice Bender graduated from CU Law in 1967. He was appointed to the Colorado Supreme Court by Governor Roy Romer in 1997 and selected as Chief Justice in 2010. Attendees enjoyed a video with tributes from Justice Bender’s friends, family, and colleagues. All of the justices of the Colorado Supreme Court were present to celebrate Justice Bender’s award with him. As Justice Bender thanked his family, colleagues on the bench, law clerks, and many others who had impacted his career, he asked them to remain standing to emphasize that it takes the support of a village of people to achieve success is one’s career.

Civil Unions Bill Awaits Governor’s Signature

On Tuesday, March 12, 2013, the Colorado Legislature gave its approval to SB 13-011, “Concerning the Authorization of Civil Unions, and, in Connection Therewith, Making an Appropriation.” The bill was introduced by Sens. Pat Steadman and Lucia Guzman, and Reps. Mark Ferrandino and Sue Schafer.

Senator Pat Steadman, who sponsored this year’s bill and also last year’s civil unions bill (SB 12-002) and the 2011 version (SB 11-172), issued the following statement on his website.

On Tuesday, March 12, 2013, the House of Representatives voted to pass SB 13-011 by a margin of 39 to 26.  All Democratic members of the House and Senate voted to support the extension of basic legal rights that SB 11 offers to couples in our state, as did a handful of Republican members.  The bill will soon be delivered to the desk of Governor John Hickenlooper for signature.

I’m incredibly proud of our state and this historic accomplishment.  We’ve come a long way from the dark days of 1992, when voters added a controversial and discriminatory provision to the Colorado Constitution that sought to exclude gays and lesbians from the equal protection of the law in our state.  The United States Supreme Court struck down “Amendment 2,” as it was known, in a 6 to 3 decision in 1996.  I sat in the courtroom the October day in 1995 when they heard oral arguments in the Romer v. Evans case.  Looking back on this chapter of our history puts today’s victory in perspective.

The road to equality is long and rocky.  We’ve overcome some major obstacles along the way, but there is more work still to do.  Another provision of the Colorado Constitution continues to discriminate against gay men and lesbians and prevent their equal inclusion in the fabric of our society.  Some day soon it too must be overturned.  As Justice Anthony Kennedy wrote in the Romer v. Evans opinion, “A state cannot so deem a class of persons a stranger to its laws.”  Passage of SB 11 helps remedy the inequality enshrined in our state constitution and ends the status of “strangers to our laws,” but we still have far to go before the promise of liberty and justice for all is fulfilled.

Governor Hickenlooper promised support of the bill in January’s State of the State address, where he urged the legislature to pass a bill allowing civil unions — “Some of us tried very hard, but it didn’t get done last year. This year, let’s do it. Let’s pass civil unions!”

The Colorado Bar Association has supported the civil unions bill for the second year in a row. The legislation has far-reaching effects, impacting not only domestic relations law but also estate planning, employment law, and other areas. We will continue to post about civil unions, including its effects on specific practice areas, using the civil unions tag. Stay tuned.

Colorado Court of Appeals: Defendant Who Insisted on Proceeding at Hearing to Preserve Speedy Trial Rights, Despite Counsel’s Request for Continuance, Made Voluntary Waiver of Better-Prepared Counsel

The Colorado Court of Appeals issued its opinion in People v. Bryant on Thursday, March 14, 2013.

Unlawful Sexual Contact by Use of Force—Constitutionality of Sexually Violent Predator Designation—Effective Assistance of Counsel—Use of Force Evidence.

Defendant Joseph Bryant appealed the judgment of conviction entered on a jury verdict finding him guilty of two counts of unlawful sexual contact by use of force. He also appealed his designation as a sexually violent predator (SVP). The judgment was affirmed.

Evidence at trial showed that as 17-year-old A.M. and her friend were about to walk into a Starbucks, Bryant attacked A.M. by wrapping a hand around her neck and grabbing her vaginal area with his other hand. He held her for about eighteen seconds and tried to pull her away from the entrance. She screamed and struggled and then jammed her elbow into his stomach. He released her and ran away.

That evening, Bryant approached D.P. at a bus stop. He “bumped” into her, stared at her, asked her age, and then followed her onto the bus. When D.P. got off the bus, Bryant followed her off the bus. She decided to wait at the bus stop, because it was well-lit and there were stores nearby. Bryant waited with her for thirty minutes. He offered several times to pay her $300 if she would accompany him to a motel room, and she declined. He then grabbed her breasts four to six times and her vagina once. D.P. asked him to stop and tried pushing him away. He grabbed her hand and put it on his crotch.

Bryant followed her onto a second bus and off that bus. D.P. asked him to stop following her. He grabbed her breasts twice, and she pushed him away. Bryant walked away and was arrested later that evening.

Bryant was charged with two counts of unlawful sexual contact by force and was found guilty by a jury. The trial court made a preliminary finding that he was an SVP and sentenced him to five years to life in the Department of Corrections on each conviction, to run consecutively. The court, after a hearing, made a final determination that Bryant was an SVP.

On appeal, Bryant argued he was deprived of his right to effective assistance of counsel when the court denied his counsel’s motion to continue the trial two weeks beyond the Uniform Mandatory Disposition of Detainers Act (UMDDA). The Court of Appeals found he waived that right. On November 27, 2009, Bryant’s counsel learned his trial had been rescheduled from December 15 to December 1 to comply with Bryant’s speedy trial rights under the UMDDA. Counsel objected to the earlier trial date, but Bryant insisted on a speedy trial despite the judge’s warnings against proceeding pro se. Bryant decided to proceed pro se, and counsel assumed she had been removed from the case.

On December 1, counsel appeared with Bryant and explained that Bryant did not want to proceed pro se. She requested a two-week continuance because she was not prepared for trial. The court found the request reasonable, but then engaged in a colloquy with Bryant wherein Bryant ultimately chose to proceed with unprepared counsel rather than waive his UMDDA rights. The Court found the record reflected that Bryant made a voluntary, knowing, and intelligent waiver of better-prepared counsel in favor of his right to a speedy trial under the UMDDA. Therefore, there was no error.

Bryant also argued there was insufficient evidence to show he caused each victim’s submission by force because there was no evidence that he used force apart from the unlawful contact, and the victims were able to escape. The Court disagreed. The statute requires evidence of physical force, which is “force applied to the body.” The fact that the victims were able to escape does not render insufficient the evidence that showed Bryant used physical force.

Bryant further contended that SVP evaluation procedures violate one’s right to remain silent, because offenders who do not participate in the SVP assessment interview are evaluated using an alternative scale that increases the likelihood they will be designated SVPs. This argument presumes the Fifth Amendment applies to the SVP evaluation procedures, but it does not. The Fifth Amendment privileges apply during sentencing, but the SVP designation is not part of a defendant’s sentence. Its purpose is not to punish the defendant, but to protect the public and aid law enforcement.

The Court also rejected Bryant’s equal protection argument. Equal protection challenges require that the people allegedly subject to disparate treatment be similarly situated. Bryant’s argument didn’t meet this threshold test because offenders who participate in the interview are not similarly situated to offenders who do not participate.

Summary and full case available here.

Colorado Court of Appeals: Emails Sent from Boston and Received in Baltimore Caused Threats for Safety of People in Colorado

The Colorado Court of Appeals issued its opinion in People v. Chase on Thursday, March 14, 2013.

Felony Stalking—Subject Matter Jurisdiction—Sufficiency of Evidence a Question of Law.

Defendant Jerry Chase appealed the judgment of conviction entered on jury verdicts finding him guilty of three felony counts of stalking and three misdemeanor counts of harassment. He also appealed the sentences imposed. The judgment was affirmed.

From 2002 to 2008, Chase resided in Wapiti Meadows, a low-income housing complex in Grand County, where he met the three named victims: G.B., D.D., and M.G. M.G. and D.D. were husband and wife. D.D. was the former property manager and M.G. was the maintenance supervisor. During his tenancy, Chase frequently complained to all three about his neighbors, the B. family, whom he alleged made noises that disturbed him. In 2008, Mr. B. accused Chase of putting sugar in his gas tank. Chase was charged with criminal mischief, and a restraining order was entered against him. Chase violated the order by banging on the B. family’s well and yelling an ethnic threat at them.

The Wapiti management evicted Chase on October 1, 2008. On the evening of October 6, 2008, Chase (who was in Boston) sent an e-mail to twenty-three recipients, including G.B., M.G., and D.D. The e-mail was obscenity-laced and contained overt threats against the park residents. The following morning, Chase sent a second obscenity-laced e-mail to thirty-four recipients, including G.B., M.G., and D.D. The e-mail contained direct threats against G.B., M.G., D.D., and others. He then sent another threatening e-mail that contained a photo of a man pointing a gun at a judge, followed by three more e-mails containing similar vile language and violent threats. M.G. and D.D. were in Baltimore when they received the e-mails. They returned to Colorado a few days later and were under the impression that Chase was in Colorado, as well.

Chase was charged with three felony counts of stalking under former CRS § 18-9-111(4)(b)(II). The court also instructed the jury on the lesser non-included offense of misdemeanor harassment by computer. The jury convicted Chase of three counts of felony stalking—one for each victim. He also was convicted of three misdemeanor counts of harassment by computer. Chase was sentenced to four years on each of the felony counts, to run consecutively.

On appeal, Chase argued his convictions of felony stalking of M.G. and D.D. must be vacated. He argued there was insufficient evidence to establish that Colorado had subject matter jurisdiction because no part of the offenses against them was committed in Colorado. The Court of Appeals disagreed.

The Court looked to CRS § 18-1-201 (state jurisdiction over criminal offenses) in relation to the felony stalking statute. The Court found that under the plain language of CRS § 18-9-111(4)(b)(II) and (c)(II), the elemental conduct of making a credible threat is defined by its result of causing a reasonable person to be in fear for his or her safety or the safety of his or her family or intimates. The question under CRS § 18-1-201 was whether Chase committed at least part of the conduct in Colorado.

Chase argued that because he wrote and sent the e-mails in Boston, and because M.G. and D.D. opened the e-mails in Baltimore, none of the conduct occurred in Colorado. The Court held that the proper question was whether the result of Chase’s conduct (causing a reasonable person to be in fear for his or her safety) occurred, at least in part, in Colorado. This is a question of fact for the jury, and the Court found sufficient support in the record to support the jury’s finding that the threats made by Chase in the e-mails would have caused a reasonable person to be in fear for his or her own safety and the safety of other persons in Colorado.

Chase made a related argument concerning whether, in response to a question from the jury, the trial court should have elaborated on the element of the offense regarding its occurrence in Colorado. The Court found no error in the trial court not elaborating on the elemental instruction, but found its response well within the trial court’s sound discretion. Specifically, the Court found that (1) the jury’s question did not reflect a fundamental misunderstanding of a legal element of the offense; (2) the original instructions properly stated the applicable law and adequately answered the question; and (3) the response of the trial court was essentially as defense counsel requested.

Chase also argued that there was insufficient evidence to prove he made a credible threat as defined in CRS § 18-9-111(4)(c)(II) and to prove he made repeated communications in connection with the threat as required under CRS § 18-9-111(4)(b)(II). The Court disagreed, finding the evidence more than sufficient to find the e-mails, with their implicit and explicit threats, to cause a reasonable person to be in fear for his or her safety or the safety of other persons. It also found that reading the six e-mails in one sitting does not mean they were not repeated communications.

Chase contended that the trial court gave an incorrect mens rea instruction to the jury. The Court disagreed. Because no contemporaneous objection to the instruction was made, it was reviewed for plain error. The instruction tracked the language of CRS § 18-9-111(4)(b)(II) and the Court perceived no error.

Chase argued that CRS § 18-9-111(4)(b)(II) was unconstitutional as applied to him because it violated his First Amendment and Equal Protection Clause rights. The Court disagreed. Speech that contains “true threats” may be regulated by the government. The jury found that Chase’s e-mails were true threats and, based on the Court’s independent review of the record, it agreed.

Finally, Chase argued that because his conduct fell within the ambit of the misdemeanor harassment statute, convicting him as a felon violated his equal protection rights. The Court disagreed. Different statutes proscribing the same criminal conduct with disparate criminal sanctions violate equal protection principles. The two statutes here, however, proscribe different criminal conduct. Specifically the felony stalking statute requires repeated communications in connection with a credible threat, whereas the misdemeanor statute requires only one communication by use of a computer in a manner intended to harass or threaten bodily injury or property damage. The conduct is related, but not identical.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 3/14/13

On Thursday, March 14, 2013, the Tenth Circuit Court of Appeals issued no published opinions and five unpublished opinions.

Mills v. The Prudential Insurance Company of America

United States v. Johnson

Johnson v. Keith

United States v. Ailsworth

Brown v. Kochanowski

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

SB 13-180: Continuing the Regulation of the Practice of Occupational Therapy

On Friday, February 15, 2013, Sen. Irene Aguilar introduced SB 13-180 – Concerning the Continuation of the Regulation of the Practice of Occupational Therapy, and, in Connection Therewith, Requiring Occupational Therapists and Occupational Therapy Assistants to Obtain a License from the Department of Regulatory Agencies, Modifying Provisions Governing the Supervision of Occupational Therapy Assistants, Adding Grounds for Disciplining Licensees, Requiring Licensees to Maintain Professional Competency, and Authorizing Licensees to Enter into Agreements to Limit Practice when Suffering from a Physical or Mental Condition. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill implements the recommendations contained in the sunset review and report on the “Occupational Therapy Practice Act” (OTPA) by continuing the OTPA for five years and restoring provisions in the “Colorado Consumer Protection Act” (CCPA) that existed prior to the enactment of the OTPA. The provisions restored in the CCPA establish a deceptive trade practice, and thus trigger CCPA remedies, when a person claims to be an occupational therapist but has not earned the appropriate higher education degree, completed an internship, passed an examination given by a national organization, and obtained certification from a national organization. On March 7, the Health & Human Services Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact.

SB 13-182: Amending Provisions of the Colorado Consumer Protection Act Relating to Time Share Transactions

On Tuesday, February 19, 2013, Sen. Jeanne Nicholson introduced SB 13-182 – Concerning Deceptive Trade Practices Related to Time Share Resale Services. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill amends provisions of the “Colorado Consumer Protection Act” relating to time share transactions and, in particular, transactions involving resale time shares. The bill requires entities that provide time share resale services to disclose specified information about the services to the owner of the resale time share, and makes failure to disclose the information a deceptive trade practice. A time share resale entity is prohibited from knowingly transferring or offering to transfer, or receiving compensation in connection with a transfer of, a resale time share to a transferee who is unable or does not intend to fulfill the obligations of ownership. A person injured by a violation of the requirements relating to time share resale services may bring an action for damages within three years after discovering the violation.

The bill defines specified activities as deceptive trade practices in the advertisement or sale of a time share or the provision of a time share resale service.

The bill defines the following terms: “Resale time share,” “time share resale entity,” “time share resale service,” and “time share resale transfer agreement.” On March 8, the bill passed 2nd Reading in the Senate.

Since this summary, the bill passed the Senate on Third Reading and was introduced in the House. It is assigned to the Business, Labor, Economic, & Workforce Development Committee.