February 19, 2018

Archives for January 16, 2018

Colorado Court of Appeals: Whether Minor Initiated Sexual Contact is Irrelevant Under Sexual Assault on a Child Statutes

The Colorado Court of Appeals issued its opinion in People v. Sparks on Thursday, January 11, 2018.

Sexual Assault—Child—Prosecutorial Misconduct—Sufficiency of Evidence—Hearsay—Jury Instructions—Video Interview of Defendant.

Sparks attended a party at his wife’s cousin’s house. The cousin’s daughter, A.M., reported that while she was at the party and Skyping on her computer, Sparks touched her breast over her clothing. She also reported that as she was Skyping, her friend S.F. (the victim) and Sparks were behind her, and that through her computer’s camera she saw the victim grabbing Sparks’s groin area and making other movements. At the time, A.M. was 14 and the victim was 13. Sparks admitted to what A.M. reported and to touching the victim’s groin, breast, and bottom area. Sparks was convicted of one count of sexual assault on a child as to the victim.

On appeal, Sparks contended that the prosecutor engaged in misconduct by misstating the law and evidence during closing argument. Specifically, Sparks asserted it was error for the prosecutor to tell the jury that it did not matter that the victim initiated the sexual contact, arguing that C.R.S. § 18-3-405(1), the sexual assault on a child statute, required the prosecution to prove that he caused the victim to become subservient or subordinate or that the child victim initiated the sexual contact at his directive. Sexual contact includes the touching of the defendant’s intimate parts by the victim. The phrase “subjects another . . . to any sexual contact” in the statute does not require the People to prove that defendant caused the child-victim to become “subservient or subordinate” or that the child-victim initiated the sexual contact at defendant’s directive. There was no error in the prosecutor’s statement to the jury.

Sparks also argued that the prosecutor misstated the evidence by saying A.M. saw improper sexual contact between the victim and Sparks through a computer camera while on Skype and that Sparks knew exactly how old the victim was. As discussed below, the court did not err in admitting this evidence, and given this evidence, the prosecutor did not misstate nor draw improper inferences from it.

Sparks further contended that the prosecution failed to produce sufficient evidence to prove that he committed sexual assault on a child because the only evidence as to the victim’s age was inadmissible. He contended that the court erred in admitting the detective’s and A.M.’s testimony and Sparks’s interview statement about the victim’s age because these were hearsay. All of this evidence was admitted without objection. A.M.’s testimony may have been based on her personal knowledge or the victim’s reputed age, and thus would not have been hearsay or would have fallen within a hearsay exception. Thus, the trial court’s ruling on A.M.’s testimony was not erroneous, much less obviously so. Similarly, the basis for the detective’s testimony could not be determined, but the court of appeals could not conclude that the trial court’s admission of this testimony was obviously erroneous. And even assuming that admitting this testimony was obvious error, such error would be harmless in light of A.M.’s testimony and Sparks’s interview statement. CRE 805 does not apply to Sparks’s interview admission because as a party opponent his statement does not require firsthand knowledge to be admissible. It was not plain error to admit the evidence, and it was sufficient.

Sparks also asserted that the court abused its discretion by instructing the jury that it could assign his interview video any weight it wanted when the court provided the video to the jury during deliberations. The court did not instruct the jury to give Sparks’s statements any weight it wanted. Further, no special protections against undue emphasis as to a defendant’s out-of-court statements were required. Lastly, the court provided specific instructions for the jury to follow in viewing the evidence, and thus appropriately exercised its discretion.

Sparks further contended that the trial court denied him his constitutional right to effective assistance of counsel by providing his interview video to the jury during deliberations without notifying his counsel. The court agreed, but concluded this error was harmless beyond a reasonable doubt.

The judgment of conviction was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Adverse Inference from Refusal to Testify Properly Applied at Administrative Hearing

The Colorado Court of Appeals issued its opinion in Romero v. Colorado Department of Human Services on Thursday, January 11, 2018.

Colorado State Administrative Procedure Act—Sexual Abuse—Evidentiary Facts—Adverse Inference—Fifth Amendment.

In this administrative law case, the Larimer County Department of Human Services (DHS) made a finding confirming that Romero sexually abused his grandchildren and exposed one grandchild to an injurious environment, which required Romero to be listed in the statewide child abuse registry. Romero appealed DHS’s confirmations pursuant to Colorado’s State Administrative Procedure Act (APA). An administrative law judge (ALJ) concluded in an initial decision that the preponderance of the evidence did not support DHS’s confirmation decisions. DHS appealed, and the Colorado Department of Human Services (Department) reversed the ALJ’s initial decision, concluding that the evidentiary facts, including an adverse inference based on Romero’s invocation of his Fifth Amendment right to remain silent, supported a finding that Romero sexually abused his grandchildren. Romero appealed to the district court, which reversed the Department’s final decision.

On appeal, the Department argued that the district court erred by overruling the Department’s final decision and by restricting the application of the adverse inference to situations where the Department provides an “adequate explanation” of why it has applied the inference. An agency’s determination in a final agency action to apply an adverse inference to a defendant’s invocation of his right to remain silent is an ultimate conclusion of fact under the APA. Consequently, the agency is required, as a matter of law, to make its own determination regarding the adverse inference and can substitute its own judgment for that of the administrative law judge regarding the inference and the weight to give the inference in light of the other evidence presented. To apply the adverse inference for invocation of the right against self-incrimination, a party in a civil case must have been asked questions the answers to which would have been potentially incriminating in a future criminal action, and the party must have invoked his Fifth Amendment rights. There must also have been probative evidence offered against the person claiming the privilege.

It is undisputed that during discovery for the ALJ hearing, DHS deposed Romero and asked him incriminating questions, including whether he touched his grandchildren for his own sexual gratification. It is also undisputed that Romero invoked his Fifth Amendment rights for the entire deposition except for the first few questions. Further, the record is clear that had Romero been called to testify at the ALJ hearing, he would have invoked his Fifth Amendment rights because of the ongoing criminal investigation into the allegations. Here, the Department’s application of the adverse inference was not arbitrary or capricious because it was supported by the record; it considered Romero’s constitutional rights; and it was not contrary to the law on Fifth Amendment adverse inference. Further, there is no authority that supports the district court’s imposition of a duty on the Department to provide an explanation for why it was applying the inference. Accordingly, the district court erred by effectively precluding the Department from making its own determination on the adverse inference.

Romero argued that the district court’s judgment should be upheld because the facts relied on by DHS to support findings of sexual abuse are speculative and do not support the ultimate findings. The Department’s view of the evidence was not speculative or contrary to the weight of the evidence presented to the ALJ.

The district court’s judgment overturning the Department’s final decision was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: CGIA Bars Father’s Claims that City Breached a Duty of Care to Prevent Son’s Death

The Colorado Court of Appeals issued its opinion in L.J. v. Carracito on Thursday, January 11, 2018.

Wrongful Death—Child Protection Act of 1987—Colorado Governmental Immunity Act—Police Officer—Failure to Report Child Abuse—Public Entity—Vicarious Liability—Tort—Willful and Wanton—Exemplary Damages.

D.J.M., age 2, died after suffering a beating by his mother’s boyfriend. D.J.M.’s father brought an action against the City of Colorado Springs (City) and Officer Carricato, individually and in his capacity as an officer with the City of Colorado Springs Police Department, for failing to report child abuse that father complained about to them multiple times. The complaint alleged violation of the Child Protection Act of 1987 (CPA); negligence (wrongful death) by the City and Officer Carricato; negligence per se by the City and Officer Carricato; violation of 42 U.S.C. § 1983 by the City and Officer Carricato; vicarious liability against the City; and an entitlement to exemplary damages under C.R.S. § 24-10-118(1)(c) against Officer Carricato. The district court determined that while the negligence claims for wrongful death and negligence per se were barred by the Colorado Governmental Immunity Act (CGIA), the claim for violation of the CPA was not barred because it was not a claim based in tort. The district court allowed the claim for vicarious liability to stand insofar as it related to the violation of the CPA and found, without conducting a hearing under Trinity Broadcasting of Denver, Inc. v. City of Westminster, that the complaint alleged a sufficient factual basis to support a claim of willful and wanton behavior.

On appeal, the City and Officer Carricato argued that the district court erred because the CGIA bars the claim for violation of the CPA and father’s complaint does not allege specific facts sufficient to support a finding that Officer Carricato’s conduct was willful and wanton. The City is undisputedly a “public entity.” The exceptions to sovereign immunity are not applicable here because (1) the enumerated statutory exceptions are not at issue; (2) the CPA does not fit within any of the statutory exceptions; and (3) father is not requesting equitable, remedial, or non-compensatory remedies. Here, the essence of father’s claim is that the City breached a duty of care owed to D.J.M., which caused his death. Because father’s claim lies or could lie in tort, the CGIA bars the claim against the City for alleged violation of the CPA. Thus, the district court improperly denied that part of the motion to dismiss. Similarly, the vicarious liability claims are claims that lie in tort or could lie in tort and are thus barred by the CGIA.

Furthermore, public employees are immune from liability for tort claims unless their act or omission was willful and wanton. The district court must determine whether the conduct was in fact willful or wanton. Here, the district court failed to hold a Trinity hearing on this issue.

Finally, Officer Carricato argued that the claim for exemplary damages cannot stand because it was improperly pleaded and that exemplary damages cannot be awarded against a police officer. The CGIA allows a claim for exemplary damages against public employees only if their conduct was willful and wanton. The claim for exemplary damages against the police officer was prematurely pled.

The portions of the judgment on the claims against the City, the vicarious liability claim, and the exemplary damages claim were reversed. The portion of the judgment relating to the claims against Officer Carricato was remanded.

Summary provided courtesy of Colorado Lawyer.