November 22, 2017

Archives for August 16, 2017

Colorado Court of Appeals: Criminal Mischief is Not Lesser Included Offense of First Degree Arson

The Colorado Court of Appeals issued its opinion in People v. Welborne on Thursday, August 10, 2017.

First Degree Arson—Criminal Mischief—Lesser Included Offense—Res Gestae Evidence—Impeachment—CRE 608(b)—Witness Disclosure.

Welborne and his mother set fire to the house in which they lived and filed false insurance claims based on the fire. Welborne was convicted and sentenced to six years in prison for arson, six years for criminal mischief, six years for attempted theft, and eight years for theft—all to be served concurrently.

On appeal, Welborne contended that the trial court erred by admitting evidence of his earlier insurance claims to the same company. The prior false insurance claims involved the same company, related to a material fact, and were logically relevant to the charges. Evidence of Welborne’s false but fruitful insurance claims was highly probative of whether he acted to deceive the same insurance company with the intent to permanently deprive it of money. The trial court instructed the jury on the limited purposes of the evidence. The evidence was properly admitted under CRE 404(b) and as res gestae evidence.

Welborne further contended that the trial court committed reversible error by permitting the prosecutor to impeach him with his California theft conviction. The trial court acted within its discretion in admitting evidence of Welborne’s prior theft offense under Rule 608(b) as probative of truthfulness or dishonesty. Although the prosecutor presented evidence of the conviction rather than the underlying facts, any error was harmless.

Welborne also argued that the trial court erred by barring him from calling a witness to impeach the testimony of his former girlfriend. Disclosure of this witness was not timely, and Welborne’s offer of proof did not show that the testimony was admissible or that the witness would impeach the girlfriend’s testimony that Welborne had started the fire.

Finally, Welborne contended that criminal mischief is an included offense of first degree arson and, therefore, those convictions must merge. Because criminal mischief requires proof that the acts were committed in a single criminal episode, while first degree arson does not, criminal mischief is not an included offense of first degree arson.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Urinalysis Test Results Not “Public Record” for Forgery Statute Purposes

The Colorado Court of Appeals issued its opinion in People v. Carian on Thursday, August 10, 2017.

Forgery—Urinalysis Results—Attempt to Influence a Public Servant—Probation—Res Gestae Evidence—Prosecutorial Misconduct.

Carian was on probation for possession of a controlled substance, and mandatory drug tests were a condition of his probation. Carian completed some tests, but missed others and also returned tests with positive results. When Carian’s probation officer served him with a revocation complaint for various probation violations, Carian handed her fraudulent urine drug test results from Wiz Quiz, an unapproved urinalysis facility. Carian was convicted of forgery and attempting to influence a public servant.

On appeal, Carian contended that the evidence was insufficient to convict him of forgery under C.R.S. § 18-5-102(1)(d) because the urinalysis results at issue were not a “public record” or “an instrument filed or required by law to be filed or legally fileable in or with a public office or public servant.” While the urinalysis results from Wiz Quiz were “instrument[s]” within the reach of the statute, they were not filed, required by law to be filed, or legally fileable, thus the evidence did not support his forgery conviction.

Carian also contended that the trial court erred when it admitted evidence under the doctrine of res gestae showing that he had been previously convicted of a drug offense. Regardless of whether the admission of such evidence was error, it did not substantially influence the verdict or affect the fairness of the proceedings regarding his conviction for attempting to influence a public servant. Thus, any error in its admission was harmless.

Carian further contended that the prosecutor committed misconduct, during both his opening statement and his rebuttal closing, by asking the jury to hold Carian accountable for wasting public resources and “squandering” the opportunity to rehabilitate himself on probation. Although the prosecutor’s statements were improper, the admission of such statements does not warrant reversal under either plain or harmless error review.

The judgment on the forgery conviction was vacated, and the judgment on attempt to influence a public servant conviction was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Ordinary Person Would Not Be Aware of Specifics of IP Address and ISP Locating

The Colorado Court of Appeals issued its opinion in People v. Garrison on Thursday, August 10, 2017.

Email—Internet Protocol Address—Internet Service Provider—Expert Testimony—Lay Testimony—Police Officers—Continuance—CRE 702.

Garrison had an affair with the victim’s wife. After the affair ended, Garrison and his wife set up through Google a Gmail account in the victim’s name. Using that account, they sent themselves derogatory and threatening emails. Based on these emails, Garrison and his wife made police reports against the victim and provided related documents to the police. They sought a protection order against the victim and testified about the emails at the hearing. The police filed charges against the victim. When it was later determined that Garrison and his wife had set up the Gmail account, charges against the victim were dismissed, and the Garrisons were charged. At trial police officers gave testimony about Internet Protocol (IP). Garrison was convicted of first degree perjury, attempt to influence a public servant (three counts), conspiracy to attempt to influence a public servant, possessing a defaced firearm, and felony menacing.

On appeal, Garrison first contended that the trial court erred in refusing to grant his request for a continuance of the trial. The trial court did not abuse its discretion in denying him a continuance, and Garrison was not prejudiced because, as discussed below, he is entitled to a new trial on his convictions related to the IP address testimony.

Garrison also argued that the trial court abused its discretion in allowing the prosecution to present expert testimony regarding tracing IP addresses through the lay testimony of police officers. Where an officer’s testimony is based not only on his perceptions and observations of the crime scene but also on specialized knowledge or experience, the officer must be properly qualified as an expert. The concept of an email transmission including an IP address, which can be linked to an Internet service provider (ISP), and in turn traced to the physical location of a particular ISP customer, is not within the knowledge or experience of ordinary people. Thus, because some of the police testimony on direct examination was based on particular experience and specialized knowledge within the scope of Rule 702, the trial court abused its discretion in admitting this portion of the testimony as lay testimony. The error was not harmless because this information was central to the prosecution’s case on the charges of first degree perjury, attempt to influence a public servant (three counts), and conspiracy to attempt to influence a public servant. The charges of possessing a defaced firearm and felony menacing were unrelated to IP addresses.

The judgment was affirmed in part and reversed in part, and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 8/15/2017

On Tuesday, August 15, 2017, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

Sells v. Allbaugh

Judy v. Obama

Ross v. Bush

United States v. Hatanaka

Rice’s Lucky Clover Honey, LLC v. Hawley

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