April 25, 2017

Archives for April 12, 2016

HB 16-1058: Creating the Crime of Misuse of Electronic Images by a Juvenile

On January 13, 2016, Reps. Yeulin Willett & Rhonda Fields and Sens. Linda Newell & John Cooke introduced HB 16-1058 – Concerning Creating the Crime of Misuse of Electronic Images by a Juvenile. The bill was introduced in the House and assigned to the Public Health Care & Human Services Committee. The committee heard testimony but the bill failed on a committee vote.

This bill creates the crime of misuse of sexually explicit images by a minor. The offense prohibits individuals under eighteen years of age from knowingly distributing through electronic means or possessing a sexually explicit image of himself, herself, or another juvenile who, as depicted in the image, is within four years of the age of the charged juvenile. The crime of misuse of a sexually explicit image of a minor is a class two misdemeanor, and if a juvenile is charged with the offense, he or she cannot be charged with the crime of sexual exploitation of a child.

It is an affirmative defense to the crime of misuse of sexually explicit images by a juvenile if the juvenile: (i) did not solicit or request the image; (ii) did not participate or encourage that making of the image; (iii) did not transmit or distribute the image to another; and (iv) took reasonable steps within 72 hours to destroy, delete or report the images.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Colorado Court of Appeals: Monies Held in Joint Accounts Not Part of Probate Estate

The Colorado Court of Appeals issued its opinion in In re Estate of Sandstead on Thursday, April 7, 2016.

Auriel and Willard Sandstead attempted to avoid probate by titling their real estate and bank accounts jointly in their names and two of their three daughters’ names. The couple executed wills in 1991 and again in 2000. After Willard’s death, Auriel presented only the 1991 will for probate and neglected to mention the 2000 will.

Auriel held proceeds from the sale of a family farm in a joint bank account with the two daughters, Vicki Sandstead (Sandstead) and Shauna Sandstead Corona (Corona). After an altercation with a Wells Fargo employee, Sandstead transferred $200,000 out of the joint account and into an account at Citizens Bank in Massachusetts that she held jointly with her mother but not with Corona. Sandstead used those funds for her mother’s benefit during her lifetime and also to conduct repairs on some of the properties held jointly.

After Auriel died, Sandstead and Corona executed small estate affidavits as to their parents’ personal property, since most of the assets had been removed from probate by joint titling with their daughters. Sandstead noticed some items missing from the estate, and opened a probate case where she was named as PR. Corona petitioned to remove Sandstead as PR, and a successor was agreed upon by the sisters. Corona moved for surcharge, attorney fees, and other relief against Sandstead as to her actions as PR, specifically alleging Sandstead breached her fiduciary duties to Corona because of the $200,000 transfer prior to their mother’s death. The district court surcharged Sandstead for the $200,000 transfer and two other transfers occurring before the probate estate was opened.

At some point, the sisters became aware of the 2000 will. Corona challenged the will as having been revoked by their mother. Sandstead and the two grandsons included as heirs in the 2000 will argued that the in terrorem clause in the 2000 will barred Corona from recovering under the will. The district court granted Sandstead’s motion for enforcement of the in terrorem clause in the 2000 will against Corona. The district court noted that if the parents were unaware of the 2000 will as Corona claimed, it was hard to imagine how they could have revoked it. Both sisters appealed.

On appeal, the Colorado Court of Appeals reversed the district court’s surcharge. The court held that Sandstead had a legal right to transfer the moneys due to being a signatory on the joint bank account. The assets in the Citizens Bank account were never part of the probate estate and therefore could not have been subject to surcharge. The court found that Sandstead had never intended for the monies to be included in the probate estate, and had vehemently denied their inclusion when the issue was raised in court. The court of appeals reversed the district court’s surcharge against Sandstead. The court upheld the district court’s enforcement of the in terrorem clause in the 2000 will against Corona, finding that she could not have reasonably believed that her mother had revoked the 2000 will since there was no evidence Willard and Auriel had executed subsequent wills or destroyed the 2000 will, the only two ways enumerated in the statute to revoke a will.

The district court’s order was reversed in part, affirmed in part, and remanded with instructions.

Colorado Court of Appeals: Special Conditions in Mandatory Protection Order Upheld

The Colorado Court of Appeals issued its opinion in People v. Yoder on Thursday, April 7, 2016.

Charles Yoder was charged with several offenses in Mesa County in three cases, including possession of methamphetamine and driving after revocation prohibited. In each of the three cases, the district court issued a mandatory protection order (MPO) containing conditions against harassing witnesses, possession or consumption of controlled substances, and driving without a valid driver’s license. Two of the MPOs also prohibited possession and consumption of marijuana absent a doctor’s prescription. Defendant pleaded guilty to some of the charges and was sentenced. The district court also clarified that the conditions of the MPOs would remain in effect until defendant completed his sentences. Defendant objected to the conditions restricting marijuana use and driving without a license.

On appeal, the Colorado Court of Appeals deemed defendant’s argument that MPOs are invalid generally waived because it was not properly preserved. As to his challenge to the marijuana and driving restrictions, the court interpreted the relevant statutes and determined that although the statutes specifically reference domestic violence offenses and certain Victims’ Rights Act cases, the special conditions in MPOs are not limited to domestic violence or Victims’ Rights Act offenders. 

The court of appeals affirmed the district court.

Tenth Circuit: Unpublished Opinions, 4/11/2016

On Monday, April 11, 2016, the Tenth Circuit Court of Appeals issued four published opinions and one unpublished opinion.

United States v. Villanueva

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