December 11, 2017

Archives for July 10, 2017

Colorado Court of Appeals: Remand Granted for Extended Proportionality Review

The Colorado Court of Appeals issued its opinion in People v. Oldright on Thursday, June 29, 2017.

First Degree AssaultAbbreviated Proportionality ReviewHabitual CriminalPrior ConvictionsExtended Proportionality Review.

A jury convicted Oldright of first degree assault based on evidence that he hit the victim in the head with a metal rod. Following trial, the court conducted an abbreviated proportionality review, adjudicated Oldright a habitual criminal, and sentenced him to 64 years in prison. Oldright’s prior offenses included aggravated driving after revocation prohibited, forgery, fraud by check, theft by receiving, and theft.

On appeal, Oldright contended that the court erred in finding that the triggering offense was grave or serious. Oldright’s triggering offense, first degree assault, is a grave and serious offense because the legislature deems it a crime of violence and an extraordinary risk crime, Oldright used a deadly weapon to commit the crime, and the victim suffered serious bodily injury.

Oldright also argued that the court erred in concluding that all of his prior convictions were serious simply because they were felonies. Although first degree assault is a grave and serious offense, not all of Oldright’s prior offenses were serious because the General Assembly had reclassified three his prior felony convictions as misdemeanors (making them an ineligible basis for habitual sentencing), and one of the prior felonies from a class 4 felony to a class 5 felony. Because the court failed to consider these legislative changes in determining whether Oldright’s sentence was disproportionate, the sentence was vacated and the case was remanded for an extended proportionality review of Oldright’s habitual criminal sentence.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Balancing Test Enunciated when One Party Calls Other Party’s “May Call” Witness

The Colorado Court of Appeals issued its opinion in Sovde v. Scott, D.O. on Thursday, June 29, 2017.

Medical MalpracticeMisdiagnosisExpert WitnessesTimely EndorsementHearsay.

Sovde, a child, sued doctors Scott and Sarka by and through his mother. The lawsuit claimed that defendants had negligently misdiagnosed lesions on the child’s head as something benign instead of manifestations of the herpes simplex virus, and if defendants had timely and properly diagnosed the lesions as products of less harmful skin, eyes, and mucous membrane disease, they could have treated the child with antibiotics, which could have prevented the onset of the more harmful central nervous system disease. The jury found in defendants’ favor.

On appeal, plaintiff argued that the trial court erred when it denied his requests to use the testimony of defendants’ previously endorsed expert witnesses whom defendants had withdrawn. The trial court did not abuse its discretion when it permitted defendants to withdraw Dr. Reiley and Dr. Molteni as expert witnesses and not make them available at trial because they had previously been listed as “may call,” not “will call,” witnesses. Further, because plaintiff did not timely endorse these witnesses or timely inform the court and defendants that he would use their depositions at trial, and the record supports the trial court’s implicit decision that the testimony and depositions would have been cumulative or would have had little probative value, the trial court did not err in denying his requests. For the same reasons, the trial court properly rejected plaintiff’s motion for a new trial.

Plaintiff also argued that the trial court erred in excluding father’s telephone conversation with a licensed medical assistant in a pediatrician’s office, contending that the testimony was admissible under CRE 803(4) as statements made for purposes of medical diagnosis or treatment. Although some of father’s statements fell within the ambit of CRE 803(4) because he provided them to the medical assistant to obtain a diagnosis of and treatment for the child’s condition, plaintiff failed to show that excluding this testimony substantially influenced the basic fairness of the trial. Further, the trial court did not abuse its discretion when it denied plaintiff’s motion for a new trial on these grounds.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Evidence Sufficient to Prove Defendant Knowingly Failed to Register as Sex Offender

The Colorado Court of Appeals issued its opinion in People v. Wilson on Thursday, June 29, 2017.

Sex Offender—Registration—Evidence—Affirmative Defense—Uncontrollable Circumstances.

Wilson was required to register as a sex offender and failed to do so. He was then convicted of failure to register as a sex offender.

On appeal, Wilson contended that the evidence was insufficient to show that he knowingly failed to register as a sex offender. Wilson argued that because he was evicted from the motel he was staying at on the last day of the five-day period, he had an additional five days to register. A defendant is guilty of failing to register as a sex offender when, as relevant here, he does not register with his local law enforcement agency within five business days after being released from incarceration. The evidence is sufficient to support the fact that Wilson knowingly failed to register as a sex offender within five days of being released. Further, the statute required Wilson to register within five days of his release without regard to where he was living or whether his location changed during that five-day period.

Wilson next contended that the trial court erred in “disallowing the affirmative defense of uncontrollable circumstances.” However, lack of a fixed residence is not an uncontrollable circumstance, and Wilson did not present any credible evidence that uncontrollable circumstances existed that prevented him from registering as a sex offender. Thus, the trial court did not err in rejecting his affirmative defense.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 7/7/2017

On Friday, July 7, 2017, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

Davis v. Fox

Ni v. Sessions

Rader v. Citibank N.A.

Christian v. Farris

Chapman v. Pacheco

United States v. Carey

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