April 22, 2018

Archives for March 2014

e-Legislative Report: March 31, 2014

CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

The LPC met on Friday, March 28, and voted to support HB 14-1032. Concerning the provision of defense counsel to juvenile offenders—with necessary amendments.

At the Capitol—Week of March 24

A scorecard of the committee and floor work follows.

In the House

Monday, March 24

Passed 3rd Reading:

  • SB 14-98. Concerning clarifications to statutory language on crimes against at-risk elders. Vote: 55 yes, 6 no, and 4 excused.
  • HB 14-1288. Concerning personal belief exemptions to immunization requirements for children prior to attending school. Vote: 42 yes, 19 no, and 4 excused.
  • SB 14-54. Concerning the ability of an alcohol beverage licensee to petition the licensing authority to pay a fine in lieu of a license suspension ordered by the licensing authority. Vote: 61 yes, 0 no, and 4 excused.
  • SB 14-28. Concerning an expansion of eligibility for the receipt of disbursements from the electric vehicle grant fund for the installation of electric vehicle charging stations. Vote: 38 yes, 23 no, and 4 excused.

Tuesday, March 25

Passed 3rd Reading:

  • HB 14-1295. Concerning residential mortgage foreclosures, and, in connection therewith, requiring a single point of contact and prohibiting dual tracking. Vote: 38 yes and 27 no.
  • HB 14-1312. Concerning efforts to reduce the number of foreclosures in Colorado, and, in connection therewith, continuing the foreclosure deferment program. Vote: 46 yes and 19 no.
  • SB 14-22. Concerning certified community development financial institutions, and, in connection therewith, authorizing such institutions to serve as a qualified holder and to present a request for full or partial release of collateral pledged without presentation of the original promissory note. Vote: 38 yes and 27 no.

Wednesday, March 26

Passed on 3rd Reading:

  • SB 14-131. Concerning the removal of certain identifying information from a motor vehicle registration card. Vote: 65 yes and 0 no.
  • HB 14-1187. Concerning consumer protection from excess damages for repair of rental vehicles. Vote: 65 yes and 0 no.
  • HB 14-1289. Concerning the reinvestment of unused governmental moneys held by a financial institution that are in excess of the amount insured by the federal deposit insurance corporation in accounts of other financial institutions. Vote: 65 yes and 0 no.

Thursday, March 27

Passed 3rd Reading:

  • The House spent 10 hours debating various 2nd Reading amendments to HB 14-1336. Concerning the provision for payment of the expenses of the executive, legislative, and judicial departments of the state of Colorado, and of its agencies and institutions, for and during the fiscal year beginning July 1, 2014, except as otherwise noted—“the Budget bill.”

Friday, March 28

Passed on 3rd Reading:

  • HB 14-1336. Concerning the provision for payment of the expenses of the executive, legislative, and judicial departments of the state of Colorado, and of its agencies and institutions, for and during the fiscal year beginning July 1, 2014, except as otherwise noted—“the Budget bill.” Vote: 37 yes, 27 no, and 1 excused.
  • HB 14-1337. Concerning an increase in the general fund reserve. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1339. Concerning the creation of the hazardous substance site response fund. Vote: 49 yes, 15 no, and 1 excused.
  • HB 14-1340. Concerning the state toxicology laboratory, and, in connection therewith, making an appropriation. Vote: 63 yes, 1 no, and 1 excused.

In the Senate

Monday, March 24

Passed on 3rd Reading:

  • HB 14-1254. Concerning a requirement to disclose fees charged to a unit owners’ association by a community association manager. Vote: 32 yes and 3 no.

Tuesday, March 25

Passed on 3rd Reading:

  • HB 14-1193. Concerning requirements governing the imposition of a fee for the research and retrieval of public records under the “Colorado Open Records Act.” Vote: 32 yes, 1 no, and 1 excused.
  • HB 14-1047. Concerning restrictions on the publishing of basic identification information on commercial web sites. Vote: 23 yes, 11 no, and 1 excused.
  • HB 14-1274. Concerning the modification of certain limitations on the managers of a bank chartered by Colorado. Vote: 34 yes, 0 no, and 1 excused.

Wednesday, March 26

Passed on 3rd Reading:

  • HB 14-1136. Concerning exempting a continuing professional education program that is approved by a state professional licensing board from regulation by the division of private occupational schools in the department of higher education. Vote: 32 yes, 0 no, and 3 excused.
  • HB 14-1271. Concerning extending a mental health provider’s duty to warn to include specific entities that, if purposefully damaged or attacked as a result of a mental health patient’s violent behavior, would jeopardize public health and safety. Vote: 32 yes, 0 no, and 3 excused.

Thursday, March 27

Passed on 3rd Reading:

  • SB 14-156. Concerning a requirement that a public benefit corporation file an annual report. Vote: 25 yes and 10 no.
  • HB 14-1186. Concerning the release of medical records to a person other than the patient, and, in connection therewith, setting reasonable fees to be paid for the release of the medical records. Vote: 24 yes and 11 no.
  • HB 14-1277. Concerning eligibility requirements for recipients of grants from the military family relief fund. Vote: 35 yes and 0 no.

Friday, March 28

Passed on 3rd Reading:

  • SB 14-158. Concerning the harmonization of statutory recall election provisions with the recall provisions in the state constitution to reflect the manner in which contemporary elections are conducted, and, in connection therewith, aligning circulator regulation and petition requirements with initiative and referendum circulator and petition requirements. Vote: 18 yes and 17 no.
  • HB 14-1149. Concerning making acts related to the advertisement of children for the purposes of transferring their care to others trafficking in children. Vote: 35 yes and 0 no.
  • HB 14-1100. Concerning the use of title documents to give notice of characteristics of motor vehicles that affect a vehicle’s value, and, in connection therewith, making an appropriation. Vote: 35 yes and 0 no.
  • SB 14-115. Concerning procedural requirements applicable to state water plans, and, in connection therewith, making and reducing an appropriation. Vote: 28 yes and 7 no.
  • SB 14-161. Concerning the modernization of provisions of the “Uniform Election Code of 1992” that ensure voter access for eligible electors, and, in connection therewith, reducing the deadline by which a voter registration application must be submitted via certain methods, altering procedures pertaining to national change-of-address searches, allowing emergency ballots to be obtained for nonmedical reasons, amending provisions relating to military and overseas voters, increasing the penalty for providing false residential information, making the aiding or abetting the provision of false residential information a new felony offense, and making and reducing an appropriation. Vote: 22 yes and 13 no.

Stay tuned for 10 Bills of Interest.

Finalists Selected for Larimer County Court Vacancy

The Colorado State Judicial Branch announced on Monday, March 31, 2014, the selection of three finalists for the vacancy on the Larimer County Court bench. The vacancy will be created by the resignation of Hon. Robert A. Rand, effective March 31, 2014.

The governor has fifteen days from March 31 in which to select one of the finalists to fill the vacancy. The three finalists are David P. Ayraud of Fort Collins, Joshua B. Lehman of Fort Collins, and Matthew R. Zehe of Fort Collins. Contact information for the three nominees is available on the state judicial website.

Comments regarding any of the applicants can be emailed to the governor at gov_judicialappointments@state.co.us.

Colorado Court of Appeals: Clear Language of Statute Precludes Appellate Review of Special District’s Creation

The Colorado Court of Appeals issued its opinion in Marin Metropolitan District v. Landmark Towers Association, Inc. on Thursday, March 27, 2014.

Special Metropolitan District—CRS § 32-1-305(7).

In 2007, a developer and five affiliated individuals (organizers) commenced proceedings under CRS §§32-1-101 to -1807 to form a special metropolitan district within the boundaries of Greenwood Village. The organizers filed a service plan with the municipality, and the city council approved it.

On September 5, 2007, a petition for organization was filed with the Arapahoe County District Court pursuant to CRS §32-1-301 and a hearing was set for October 4, 2007. Notice was published in the local newspaper and the clerk of the court issued a notice of the hearing. At the hearing, the district court entered an order directing an organizational election be held on November 6, 2007. The election was held, and on December 6, 2007, the district court entered findings and an order and decree creating the special district. The order included within the special district the Landmark Towers Association (Landmark) condominium properties, which were under construction. Approximately 130 people were under contract to purchase, but no sales had been completed.

Landmark alleged it was not until several years after the Marin Metropolitan District (District) was formed that the owners discovered facts indicating that the District had been organized through alleged misrepresentations and an asserted fraud on the court. In 2012, Landmark intervened and moved pursuant to CRCP 60(b)(2), (3), and (5) to set aside the December 2007 order for alleged fraud on the court, a lack of subject matter jurisdiction to approve the special district, and invalidity of the order due to lack of due process. The court held a three-day evidentiary hearing and issued an order on December 17, 2012 dismissing Landmark’s motion pursuant to CRS §32-1-305(7).

On appeal, the Court of Appeals reviewed the pertinent provisions of the statutory scheme for creating a special district. Landmark argued that regardless of CRS §32-1-305(7), a court has inherent power to vacate a void judgment notwithstanding a statutory time bar; has jurisdiction to set aside a previously entered order based on fraud on the court; and has a duty to provide constitutional due process, providing jurisdiction to set aside an order that is void for lack of notice and an opportunity to be heard. The Court disagreed.

CRS §32-1-305(7) is clear and unambiguous that once an order establishing a special district is entered, it “shall be deemed final, and no appeal or other remedy shall lie therefrom.” There is one exception for an action in the nature of quo warranto commenced by the attorney general within thirty days after entry of the organizational order. Finally, the subsection mandates that the organization of the district “shall not be directly or collaterally questioned in any suit, action, or proceeding except as expressly authorized in this subsection (7).” This jurisdictional issue was dispositive. Accordingly, the order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Actual Knowledge Cannot Be Imputed in Fraudulent Concealment Claim

The Colorado Court of Appeals issued its opinion in Jehly v. Brown on Thursday, March 27, 2014.

Fraudulent Concealment—Imputed Knowledge.

Defendant owned real property and hired a general contractor to build a house on it. Before commencing, the contractor discovered that part of the property was located in a floodplain, but did not inform defendant of that fact.

Plaintiffs David and Peggy Jehly entered into a contact to purchase the house. Defendant filled out a Seller’s Property Disclosure form by writing “New Construction” diagonally across every page and not checking any of the boxes. Before buying the house, plaintiffs were never informed that part of the property was located in a floodplain.

Approximately five years after the home purchase, heavy rains caused severe flooding and damage to the basement of the house. Plaintiffs sued defendant, alleging he fraudulently concealed knowledge of the floodplain to induce plaintiffs to buy the house. During a bench trial, defendant denied having any personal knowledge of the floodplain at the time of the sale and denied that his general contractor or any subcontractors had so informed him. The trial court found in favor of defendant.

On appeal, plaintiffs asserted that it was error not to impute to defendant the general contractor’s knowledge that part of the property was in a floodplain. The Court of Appeals disagreed. To prevail on a claim of fraudulent concealment, a plaintiff must show that a defendant actually knew of a material fact that was not disclosed. It is not enough that defendant should have or might have known the fact.

Plaintiffs did not contest on appeal the trial court’s factual finding that defendant had no active or conscious belief or awareness of the existence of the floodplain. The trial court, therefore, did not apply the wrong legal standard, because defendant did not have the requisite actual knowledge of the information allegedly concealed.

The Court further concluded that the knowledge of the general contractor could not be imputed to defendant. Knowledge of an agent is generally imputed to the principal. However, “actual knowledge” in the context of a fraudulent concealment claim cannot be imputed to a principal through knowledge of its agent. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: CGIA Does Not Provide for Interlocutory Appeal of Denial of Employee’s Motion for Qualified Immunity

The Colorado Court of Appeals issued its opinion in Estate of Bleck v. Martinez on Thursday, March 27, 2014.

Motion to Dismiss—Qualified Immunity—Interlocutory Appeal.

Steven Bleck sued Officer Martinez and the City of Alamosa Police Department, alleging he was injured as the result of Officer Martinez’s willful and wanton conduct. Officer Martinez moved to dismiss under CRCP 12(b)(1) and (5), claiming qualified immunity under CRS §24-10-118(2). The motion was denied and an appeal was filed. However, the Colorado Governmental Immunity Act (CGIA) does not provide for an interlocutory appeal of an order denying an employee’s motion to dismiss based on qualified immunity. Martinez argued there was an exception in the case of alleged willful and wanton conduct. The Court of Appeals disagreed and dismissed for lack of subject matter jurisdiction.

If a well-pleaded complaint alleges a public employee’s conduct was willful and wanton, the defendant is entitled to qualified immunity under CRS §24-10-118(2). The terms of this subsection provide for “immun[ity] from liability” rather than a bar to suit. It is a defense that can be defeated at trial if it is proven that the conduct was willful or wanton. A trial court’s determination of a CRCP 12(b) motion challenging whether an employee’s conduct was willful or wanton is not subject to interlocutory appeal.

Summary and full case available here.

Colorado Court of Appeals: Lots Annexed by Development Were Not Annexed in Compliance with CCIOA

The Colorado Court of Appeals issued its opinion in Ryan Ranch Community Association, Inc. v. Kelley on Thursday, March 27, 2014.

Summary Judgment—Homeowners Association Assessments.

In early 2003, Charles Ochsner verbally agreed to sell John Kelley seven lots (Kelley Lots) of the Ryan Ranch property. In summer 2003, Kelley learned that Ochsner was going to sell the majority of the Ryan Ranch property to the Ryland Group, Inc. (Ryland), the entity that would eventually create Ryan Ranch Community Association, Inc. (HOA) and record the Declaration of Covenants, Conditions, and Restrictions (Declaration). Kelley confirmed with Ochsner and Ryland the verbal agreement to purchase and received assurances that Ryland was not purchasing the Kelley Lots. The parties agreed that the Kelley Lots would not be included in the HOA.

In September 2003, Ryland and Ochsner signed a contract for the sale of parcels in Ryan Ranch to Ryland in two phases, which specifically excluded the Kelley Lots. In October 2003, Ochsner and Kelley and his wife signed a contract for the Kelley Lots. They also signed an agreement providing that (1) the Kelley Lots would not be subject to the maintenance obligations of the HOA to be formed by Ryland, and (2) Ryland would record covenants excluding them from the HOA. No such exclusion covenants were ever recorded.

The 2003 contract excluding the Kelley Lots was reaffirmed by Ochsner and the Kelleys in May 2005. However, when the Ryan Ranch Filing 2 plat map was recorded on November 17, 2005, it included the Kelley Lots. The December 20, 2005 reconveyance deed conveying the Kelley Lots from Ryland back to Ochsner was recorded, as was the Ochsner deed conveying the Kelley Lots to the Kelleys. Ryland never intended to annex the Kelley Lots into the Ryan Ranch community.

In June 2006, the Kelleys sold one of the Kelley Lots to a contractor who constructed a home and sold the lot to the Zimmermans. In September 2010, the HOA asserted that the Kelley Lots had been “automatically annexed” to the HOA and sought to recover past assessments, penalties, and fees from the Kelleys and the Zimmermans. Defendants counterclaimed for a declaratory judgment that Ryland had not annexed the Kelley Lots in compliance with the Colorado Common Interest Ownership Act (CCIOA) or the Declaration, and asserted principles of equitable conversion operated to preclude the transfer of the Kelley Lots from Ochsner to Ryland.

The HOA moved for summary judgment and defendants requested the court to determine as a matter of law that the Declaration did not apply to their properties. The trial court granted the HOA’s motion and denied defendants’ motion.

On appeal, defendants’ argued it was error to grant summary judgment to the HOA because: (1) the Kelley Lots were not annexed in compliance with CCIOA; (2) Ryland did not annex the Kelley Lots in compliance with the Declaration; and (3) Ryland did not “own” the Kelley Lots at the time of the alleged annexation. The Court of Appeals agreed with the first argument and did not address the others.

CCIOA was the controlling statute in this case and prevails over the Declaration. To exercise a development right under CCIOA, a developer must comply with the plat and map requirements of CRS §38-33.3-209 and the recording requirements of CRS §38-33.3-217(3).

Defendants argued that to exercise a reserved development right, CCIOA requires the recording of an amendment to the declaration that must contain certain information and be properly indexed. The Court agreed that the recording of the Official Development Plan and the Declaration was not sufficient to meet these requirements. The original Declaration cannot logically be considered an amendment to itself such that it could annex the Kelley Lots. Moreover, nothing was denominated as an amendment, nothing assigned indentifying numbers to newly created units, there was no reallocation of interests among all units, and no common elements were described. Nothing on the Filing 2 plat map subjected the described property to the Declaration.

The Court’s determination resolved the HOA’s claims for breach of contract, recovery of unpaid assessments, and foreclosure of liens. However, it did not resolve the unjust enrichment claim. On remand, the trial court was ordered to revisit that claim. Attorney fees were awarded to defendants as prevailing parties under the Declaration and CRS §38-33.3-123(1)(c).

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 3/28/2014

On Friday, March 28, 2014, the Tenth Circuit Court of Appeals issued one published opinion and eight unpublished opinions.

Tooley v. City of Konawa

United States v. Smart

United States v. Murphy

Amin v. Voigtsberger

Dority v. Farris

Lawrence v. School District No. 1

Summers v. State of Utah

United States v. Webb

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

The Barristers Benefit Ball: What is it Funding?

This post originally appeared in the March 2014 edition of The Docket, the publication of the Denver Bar Association. 

Click here to see an infograph regarding the impact of Metro Volunteer Lawyers.

The Barristers Benefit Ball comes every spring. This year’s event, themed “Talk Derby to Me,” is sure to be a night to remember! If you haven’t been before, or are wondering what it’s all about—and why this enormous fundraising effort takes place every year—read on.

The DBA supports Metro Volunteer Lawyers as its pro bono program. Its mission is “To bridge the gap in access to justice by coordinating the provision of pro bono legal services by volunteer lawyers within the Denver Metro Area to people who could not otherwise afford legal services for their civil legal issues.”

The Barristers Benefit Ball is the biggest annual fundraiser to benefit MVL—a vital portion of our annual funding. MVL is also supported by the Henry Hall Memorial Golf Tournament, Colorado Legal Services, the Colorado Lawyer Trust Account Foundation, the Fred & Jean Allegretti Foundation, Lois Ann Rovira in honor of her husband, former Colorado Supreme Court Chief Justice Luis Rovira, and private donations.

The following table shows major contributors and amounts contributed during the last fiscal year:

BBB-chart

MVL’s Current Programs

There are six programs within MVL that provide our clients free and low-cost legal services: Direct Referrals to individual attorneys for representation, the Family Law Court Program, the Post-Decree clinics, the Rovira Scholar, the legal clinic at the Denver Indian Center, and the Clinical Adoption Program. Following are more details on these programs that rely on your fundraising.

Direct Referrals

MVL recruits and coordinates volunteer attorneys to represent people who otherwise could not afford legal assistance. CLS handles the initial client intake process and then sends selected cases to MVL for referral. Once a potential client has completed intake, the Legal Services Coordinator reviews the file and begins contacting volunteer attorneys to try to place the case.

Family Law Court Program

The vast majority of the clients served by MVL need assistance with their domestic relations cases. We coordinate and manage monthly FLCP clinics in Adams, Arapahoe, Denver, Douglas, and Jefferson Counties. The FLCP assists clients with relatively uncomplicated, “uncontested” divorce or custody matters where the other party is not represented by an attorney.

Post-Decree Clinics

MVL coordinates and manages Post-Decree Clinics for domestic relations cases in Denver and Jefferson Counties. The Post-Decree Clinics assist individuals with legal problems that arise after Permanent Orders have been entered in a Dissolution of Marriage (divorce) or Allocation of Parental Responsibilities (custody) case.

MVL collaborates with the following volunteer firms who sponsor and staff our Post-decree Clinics: Faegre, Baker, Daniels LLP, Holland & Hart LLP, Pelegrin Radeff & Frazer-Abel, PC, Polidori, Franklin & Monahan, LLC, and the Colorado Office of the Attorney General.

Rovira Scholar Fellowship

The Rovira Scholar Fellowship was made possible by a generous gift from Lois Ann Rovira, wife of former Colorado Supreme Court Chief Justice Luis Rovira. The goal of the Fellowship is to enhance the overall understanding of the complex and unique legal challenges presented in pro bono public service through the early training and professional development of outstanding law school graduates. This position, designed for a recent law graduate, permits MVL to increase critical legal services to those in need.

Legal Clinic at the Denver Indian Center

MVL works with the Denver Indian Center to provide a walk-in clinic each month. The project was initiated by two Native American attorneys: MVL Executive Director Dianne Van Voorhees and Board Member Danielle L. Demkowicz. The Clinic meets in the Denver Indian Center in Lakewood, on the first Wednesday of every month. MVL sponsors and coordinates volunteers.

Clinical Adoption Program

In an effort to meet the rising demand of adoption cases coming through our office, past Rovira Scholar Sarah Zoellner created an adoption program to meet the following goals: reduce the number of volunteer hours required of our volunteer attorneys; enable our office to more efficiently process the larger number of adoption cases; and provide support for our volunteer attorneys so we can provide the highest quality of legal service to our clients.

Your Contribution Matters

Expanding our program, studying new ways to operate and provide services is an ongoing and satisfying endeavor. We are especially proud to have had the Colorado Attorney General’s Office become our latest sponsor firm as of Fall 2013. Thanks to our new collaboration, MVL has added two additional Post-Decree Clinics to our schedule each month.

Unfortunately, MVL is also anticipating significant, if not total, loss of COLTAF funds due to the consistent lack of growth or replenishment of the fund. The overall shrinking of funds for CLS impacts all of us, and the resulting shortfall of funds for pro bono programs that serve as an additional safety net to those unable to be served by CLS only adds to the crisis. The complete loss of COLTAF funding would possibly prevent MVL from additional expansions of existing programs. Given this impending likelihood, any increase in the per capita contributions from our local bar associations, private funders, and Barristers Benefit Ball sponsors and attendees is welcome.

The MVL staff is a small team that works together with our volunteers and interns to ensure that we are in touch with our partners and the legal community at large. In 2012, we had 455 volunteer attorneys and 33 nonattorneys (law students, paralegals, etc.) handle 1,448 cases and assist several clinical clients. MVL also successfully recruited 165 new volunteer attorneys to our existing panel. The majority of cases are domestic relations matters. Other case types include consumer, bankruptcy, landlord tenant, real estate, wills/POA, guardianships, conservatorships, probate, and tax issues. Without our donors and our volunteers who give their money, time, and skill, we could not have helped so many people in need.

The funds raised through the Barristers Benefit Ball help MVL maintain its staff and pay its operating expenses, both of which are vital to sustaining and expanding its capacity to serve our community.

MVL is always recruiting more attorneys who practice in the Denver Metro area to join our volunteer panel. By providing much needed pro bono legal services, MVL’s volunteer lawyers, law students, and other legal professionals provide access to justice and help stabilize families, save taxpayers money, reduce the number of cases clogging the courts, and help people move toward self-sufficiency and full participation in society.

By Dianne Van Voorhees, the Executive Director of Metro Volunteer Lawyers. You can contact her at diannev@denbar.org.

Colorado Court of Appeals: Evidence of Prior Conviction Should Not Have Been Allowed; Error Not Harmless

The Colorado Court of Appeals issued its opinion in People v. Becker on Thursday, March 27, 2014.

Child Abuse—Second Offense—Prior Conviction—Sentence Enhancer.

Defendant was charged with child abuse–second or subsequent offense. The court granted defendant’s request to exclude evidence concerning the facts underlying his prior child abuse conviction, but rejected his request to exclude reference to his prior conviction.

On appeal, defendant contended that the trial court reversibly erred by permitting the jury to learn that he had a prior child abuse conviction, including by informing the jury of his stipulation to the prior conviction. A prior child abuse conviction, as specified in CRS §18-6-401(7)(e), serves only as a sentence enhancer and not as an element of the child abuse crimes set forth in CRS §18-6-401(1)(a)(7)(b)(I) and (II). Therefore, the court should not have permitted the jury to hear of defendant’s prior conviction before it returned its verdicts on the substantive offenses. Because this error was not harmless, the judgment of conviction was reversed and the case was remanded to the trial court for a new trial.

Summary and full case available here.

Colorado Court of Appeals: Defendant’s Tattoo Evidence Relevant Under CRE 404(b)

The Colorado Court of Appeals issued its opinion in People v. Cardenas on Thursday, March 27, 2014.

Trafficking in Children—Pimping—Prostitution—Res Gestae Evidence.

The victim, a 17-year-old girl, met defendant, an 18-year-old man, at a rave. They became friends and entered into an agreement whereby defendant would post advertisements offering the victim to provide massages with the ultimate goal for the victim to engage in sexual acts for money. The jury convicted defendant of trafficking in children, pimping an adult, pimping a child, pandering a child, and inducing child prostitution.

On appeal, defendant contended that the trial court erred when it denied his motion for judgment of acquittal on the trafficking in children charge because the evidence was not sufficient to support a conviction on that charge. To prove that a defendant has violated CRS § 18-3-502(1)(a), the prosecution must establish that the defendant sold a child, exchanged a child, bartered a child, or leased a child. Here, there was no evidence that defendant facilitated the transfer of the victim’s physical or legal custody to the callers. Because the evidence in the record does not support defendant’s conviction for trafficking in children, the conviction and sentence on that charge were reversed and vacated, and the case was remanded to the trial court to enter a judgment of acquittal on that charge.

Defendant also contended that the trial court erred when it admitted evidence about his tattoo. The victim’s friend testified that she was with defendant when he got the tattoo, which occurred during the same period when the victim and the friend were engaged in defendant’s prostitution ring. The friend stated that defendant told her the “MOB” tattoo meant “money over bitches.” The prosecution argued at trial that the term “money over bitches” showed that defendant had a “calculated plan to exploit” the victim and her friend, that he “put a price tag” on them, and that the phrase was “a sex trafficker’s motto.” Thus, the tattoo evidence was relevant, it was res gestaerather than CRE 404(b) evidence, and it was not unduly prejudicial. Accordingly, the trial court did not err when it admitted evidence about defendant’s tattoo.

Summary and full case available here.

Colorado Court of Appeals: Statements to Hospital Chaplain Not Privileged

The Colorado Court of Appeals issued its opinion in People v. Trammell on Thursday, March 27, 2014.

Clergy–Communicant Privilege—Confidential.

After defendant attempted suicide while incarcerated, he was hospitalized for treatment of his wounds. While hospitalized, defendant attacked the sheriff’s deputy on guard with a metal bar, striking the deputy on the head. A struggle ensued. The deputy testified that during the struggle, defendant tried to remove the deputy’s gun from its holster. Defendant also struck a nurse on the head, causing a laceration that required stitches, and causing lasting effects on the nurse’s memory. Another nurse who was struck received a minor cut.

On appeal, defendant contended that the statements he made to the hospital chaplain after the incident were privileged under the clergy–communicant privilege, and that the trial court therefore erred when it admitted the chaplain’s testimony that defendant had planned the altercation. Defendant spoke with the chaplain in defendant’s hospital room while he was being guarded by a deputy. Because defendant did not take any precautions to keep those communications confidential or private, the clergy–communicant privilege does not apply. The judgment and sentence were affirmed.

Summary and full case available here.

Colorado Court of Appeals: No Error to Allow Prosecution to Add Charges on Remand to Trial Court

The Colorado Court of Appeals issued its opinion in People v. Cook on Thursday, March 27, 2014.

Sexual Crimes Against Children—Amendment of Information—Rape Shield Statute—Alternative Suspect Evidence—CRE 404(b)—Continuance.

Defendant was convicted and sentenced on multiple charges of sexual crimes against children. The victims were defendant’s daughter (C.C.), the daughter of his former girlfriend (S.G.), and other unnamed children.

On appeal, defendant contended that the trial court erred in permitting the prosecution to add fourteen counts on remand following his successful appeal. The trial court had discretion to permit the information to be amended before trial, and it did not err by adding counts based on new evidence that did not exist before the first trial. Therefore, the court properly allowed the additional counts to the information.

Defendant asserted that the trial court erred in denying his motion to pierce the rape shield statute, thereby denying him the opportunity to present evidence of an alternate suspect. Where a defendant seeks to introduce alternate suspect evidence to show motive and opportunity, there must be proof that the alternate suspect committed an act directly connecting him to the crime. Where the alternate suspect evidence seeks to challenge the identity of the perpetrator, the alternate suspect’s prior act or crime must be similar to the present crime to be relevant and admissible. The trial court did not abuse its discretion in concluding that defendant’s offer of proof fits no stated exception and was not otherwise relevant to a material issue in the case.

Defendant also contended that the trial court erroneously permitted the prosecution to introduce CRE 404(b) evidence related to acts for which he had been acquitted in Boulder County. The prosecution proffered the evidence from the Boulder County case of C.C.’s interviews in 2004 and the child pornography found on defendant’s computers in Boulder, to show proof of identity, absence of mistake or accident, common plan or scheme, and also to demonstrate that the purpose of defendant’s conduct was relevant to this case. Therefore, the admission of the evidence offered by the prosecution was proper.

Defendant’s assertion that the trial court erred in denying his motion for a fourth continuance was discounted. The expert was able to complete his report, and there was no indication that defense counsel was unprepared for trial. Hence, defendant showed no actual prejudice resulting from the court’s ruling. The judgment was affirmed.

Summary and full case available here.