February 19, 2018

Archives for February 2, 2018

Colorado Court of Appeals: Guardian Who Diverted Assets for his Own Family Subject to Treble Damages

The Colorado Court of Appeals issued its opinion in People in Interest of Black on Thursday, January 25, 2018.

Probate—Disability—Conservator—Fiduciary Duty—Conflict of Interest—Jurisdiction—Civil Theft.

Black is the former conservator for his mentally-ill sister, Joanne. When he filed his petition to be appointed conservator, he did not tell the probate court that he sought the appointment to disclaim Joanne’s interest in payable-on-death (POD) assets so that they could be redistributed in accordance with his and his children’s expectations of his mother’s estate plan. Nor did he disclose this conflict of interest when he requested authorization to disclaim Joanne’s assets. Black later admitted this conflict. The probate court found that Black breached his fiduciary duties and committed civil theft by converting his sister’s assets for his own benefit. Specifically, the court concluded that Black failed to adequately disclose his intent to use a disclaimer to divest his sister of one-third of the (POD) assets, and therefore did not have the court’s authorization to redirect the assets. The court determined that his actions were undertaken in bad faith and satisfied the elements of civil theft. Based on its findings, the court surcharged Black in the amount of the converted funds and then trebled those damages under the civil theft statute.

On appeal, Black first argued that the probate court lacked jurisdiction to enter the hearing order because only a C.R.C.P. 60(b) motion, and not a motion to void the disclaimer, could undo the court’s order authorizing the disclaimer. However, the motion to void the disclaimer did not seek relief from a final order. Instead, the motion alleged that Black had breached his fiduciary duties to Joanne while acting as conservator, and it sought to unwind a transaction based on this breach. Thus, the probate court’s jurisdiction was based on the court’s authority to monitor fiduciaries over whom it has obtained jurisdiction. Accordingly, the court had jurisdiction to adjudicate the allegations and issues raised by the motion to void the disclaimer. Additionally, Black had sufficient notice of the proceedings.

Black next argued that he could not have breached his fiduciary duty to Joanne because his conversion of one-third of her POD assets was disclosed to and approved by the probate court in accordance with C.R.S. § 15-14-423. C.R.S. § 15-14-423 allows a fiduciary to engage in a conflicted transaction only when the fiduciary has disclosed the conflict of interest and demonstrated that the conflicted transaction is nonetheless reasonable and fair to the protected person. Black received authority to transfer the POD funds to a Supplemental Needs Trust (SNT) for Joanne’s benefit. Instead, he redistributed the POD funds two-thirds to the SNT and one-third to the Issue Trust, which benefited himself and his children. Because Black did not disclose the conflict of interest or demonstrate that this proposed redistribution was reasonable or fair, he did not have safe harbor under the statute. Thus, the probate court did not err in finding that Black breached his fiduciary duties.

Next, Black contended that the probate court erred in finding him liable for civil theft, arguing that the probate court lacked jurisdiction over the claim; the claim was time-barred; and that, in any event, the evidence was insufficient to establish civil theft. The civil theft claim is coterminous with the breach of fiduciary duty claim and thus directly related to Black’s duties as conservator. The probate court had jurisdiction over the civil theft claim, of which Black had notice. The record amply supports that the civil theft claim was timely asserted. As to the sufficiency of the evidence, Black did not dispute that he obtained control over Joanne’s assets with the intent to permanently deprive her of them; he disputed only the probate court’s finding of deception. The record supports the probate court’s finding that Black made misrepresentations or misleading statements or that he concealed material facts. When a conservator allegedly commits theft from a protected person by deception on the probate court, reliance is established if that court relied on the misrepresentation in authorizing the theft. Here, the court relied on Black’s misrepresentations in authorizing the disclaimer, and it would not have authorized the transaction had it known the true facts. The evidence was sufficient to support the finding that Black committed civil theft.

Black also contended that reversal is required because the probate court committed a series of errors that made the evidentiary hearing unfair. The court of appeals was unpersuaded by these arguments.

Lastly, Black contended that the court erred in concluding that he lacked authority to create a separate trust for Joanne’s workers’ compensation and Social Security disability benefits. The court discerned no error.

Joanne cross-appealed, contending that the court erred by failing to make explicit findings denying her request to void the disclaimer. The court did not abuse its discretion in imposing a surcharge rather than ordering that the disclaimer transaction be unwound.

The order was affirmed and the case was remanded for determination of reasonable appellate attorney fees.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Full-Size Mock Up of Crime Scene Admissible Under Four-Part Douglas Test

The Colorado Court of Appeals issued its opinion in People v. Palacios on Thursday, January 25, 2018.

Criminal Law—Fifth Amendment—Photo Identification—Demonstrative Exhibit.

Defendant was convicted of felony murder, aggravated robbery, and other offenses after a drug-deal-turned-robbery ended in the shooting death of the victim by defendant’s accomplice.

On appeal, defendant argued that the court erred in failing to suppress a witness’s identification as the product of an impermissibly suggestive identification procedure because defendant’s photo was placed in position 3 in the photo array after the witness had selected a filler photograph in position 3 from the initial array. The witness, the victim’s girlfriend, witnessed the murder. She had previously selected photos in positions 1, 3 and 5. Position 3 did not have special suggestive properties, as defendant’s argument would apply with equal force if the officer had placed his photo in either position 1 or 5. The mere placement of defendant’s photo in a particular position, without more, does not render the identification procedure impermissibly suggestive. The court properly denied the motion to suppress the girlfriend’s identification.

Defendant also argued on appeal that the court erred in permitting the prosecution to use demonstrative aids because their size was inaccurate, and the inaccuracy rendered the mock-ups misleading and therefore unfairly prejudicial. Here, the prosecution used a full-size mock-up of the garage crime scene as a demonstrative aid during the testimony of a sheriff’s department investigator and the eyewitness drug supplier. The prosecution also referred to a smaller version of the mock-up during closing argument. A demonstrative aid must be authentic, relevant, a “fair and accurate representation of the evidence to which it relates,” and not unduly prejudicial. Here, the record demonstrated that the full-size mock-up was substantially similar to the actual garage, and defendant failed to show any prejudice from the use of such mock-up. Further, defense counsel admitted that the smaller mock-up was accurate. Accordingly, the district court did not err in allowing the prosecution to use the demonstrative aids.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: GPS Data from Ankle Monitor Properly Admitted to Show Defendant’s Location at Time of Robbery

The Colorado Court of Appeals issued its opinion in People v. Campbell on Thursday, January 25, 2018.

Constitutional Law—Fourth Amendment—Illegal Search and Seizure—Reasonable Suspicion—Reasonable Expectation of Privacy—GPS Data—Identification.

Campbell’s vehicle was pulled over and Campbell was arrested on suspicion of burglary. Officers searched Campbell and found he had on an ankle monitor, which he was wearing at the request of a private bail bondsman. A detective later requested and received the global positioning system (GPS) data from the company owning the ankle monitor. The GPS data revealed that, within the month before the victim’s home was broken into, Campbell had been at the location of two other homes when they were burglarized. The GPS data also placed Campbell at the victim’s house at the time of the break-in. Campbell was convicted of two counts of second degree burglary, one count of attempted second-degree burglary, and three counts of criminal mischief.

On appeal, Campbell contended that the trial court erred in denying his motion to suppress evidence obtained as a result of an illegal seizure and search of his person. The officers had reasonable suspicion to stop Campbell based on his violation of traffic laws. Further, the officers had probable cause to believe defendant was committing the felony of vehicular eluding, and therefore constitutionally arrested and searched him. The trial court did not err in denying Campbell’s motion to suppress evidence obtained as a result of his seizure and search.

Campbell also contended that the trial court erred in denying his motion to suppress GPS data obtained from the ankle monitor. The court of appeals concluded, as a matter of first impression, that defendant did not have a reasonable expectation of privacy in the GPS location data generated by the ankle monitor under the U.S. or Colorado Constitutions. Defendant voluntarily disclosed the data, which was transmitted to and collected by a third party that voluntarily gave the data to law enforcement officials. Further, the trial court did not err in admitting the GPS evidence without first conducting a hearing pursuant to People v. Shreck, 22 P. 3d 68 (Colo. 2001), to assess its reliability, because GPS technology is prevalent and widely regarded as reliable.

Campbell additionally contended that the trial court erred in denying his motion to suppress the victim’s identification because the identification was unduly suggestive and unreliable. The victim had the opportunity to see the intruder for one or two seconds in a well-lit area while the two men were approximately 10 feet apart before Campbell ran out of the house. Although the victim was not wearing contact lenses or eyeglasses, he felt he was able to see the intruder sufficiently to identify him. The victim immediately called 911 and described Campbell. The police brought Campbell to the scene handcuffed in the back of a police vehicle for a one-on-one identification. The identification occurred less than an hour after the victim saw the intruder. Although the lineup was suggestive, it was reliable under the totality of the circumstances.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 2/1/2018

On Thursday, February 1, 2018, the Colorado Court of Appeals issued no published opinion and 34 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 2/1/2018

On Thursday, February 1, 2018, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Carroll v. Moorehead

United States v. Gilliard

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