May 24, 2018

Archives for May 14, 2018

Bills to Keep Dextromethorphan Away from Kids and Extend Rule Review Signed

On Friday, May 11, 2018, Governor Hickenlooper signed two bills into law. To date, he has signed 225 bills into law and sent two to the Secretary of State without a signature. The bills signed Friday were HB 18-1253, “Concerning Implementation of Recommendations of the Committee on Legal Services in Connection with Legislative Review of Rules of State Agencies,” by Reps. Pete Lee & Leslie Herod and Sen. Bob Gardner, and HB 18-1307, “Concerning Restricting the Availability to Children of Products that Contain Dextromethorphan,” by Reps. Jonathan Singer & Pete Lee and Sens. Bob Gardner & John Cooke.

HB 18-1253 extends all state agency rules that were adopted or amended on or after November 1, 2016, and before November 1, 2017, with the exception of the rules specifically listed in the bill. HB 18-1307 criminalizes the selling of products containing dextromethorphan to people under 18 years of age, and requires proof of age unless the vendor reasonably believes the purchaser is over 25 years of age.

For a complete list of Governor Hickenlooper’s 2018 legislative actions, click here.

Tenth Circuit: Unpublished Opinions, 5/14/2018

On Monday, May 14, 2018, the Tenth Circuit Court of Appeals issued two published opinions and one unpublished opinion.

Eikenberry v. Seward County, Kansas

Case summaries are not provided for unpublished opinions.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

Cynthia Dianne Mares Appointed to 18th Judicial District Court

On Thursday, May 10, 2018, Governor Hickenlooper appointed Cynthia Dianne Mares to the 18th Judicial District Court. Mares will fill a vacancy created by the retirement of Hon. Paul A. King, effective July 2, 2018.

Mares is currently an associate judge on the Aurora Municipal Court, where her docket includes criminal matters, traffic infractions, and violations of municipal ordinances. Prior to her work on the Aurora Municipal Court, she was the Arapahoe County Public Trustee. She was Assistant Regulation Counsel at the Colorado Office of Attorney Regulation Counsel from 2005 to 2012, and a Deputy State Public Defender with the Colorado Public Defender’s Office from 1990 to 2005.

Mares is also active in the legal community. She is a past-president of the Hispanic National Bar Association and the Colorado Hispanic Bar Association. She also is a member of the Colorado Womens Bar Association, the Colorado Bar Association, and the American Bar Association. She also is a board member for the Colorado Mexican Cultural Center and a member of the Colorado Gaming Commission.

For more information about the appointment, click here.

Tenth Circuit: Defendant Did Not Establish Significant Nexus Between Potential Alternative Perpetrators and Crimes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Meisel on Tuesday, November 14, 2017.

In 2014, Detective Wright saw a user on the Ares file-sharing network offering child pornography. After identifying the IP address, Wright obtained a search warrant for a home Meisel shared with Thomas. Meisel’s personal computer was found to have child pornography on the external hard drive, with some pictures added just three days prior to the execution of the warrant. Meisel attributed the child porn to his son, W.R., who lived in the home previously. During the investigation, however, there was evidence of the child porn being viewed frequently after W.R. moved out of the home. Meisel continued to assert there was a sufficient nexus between three individuals, J.H., S.H., and W.R., and the child pornography. On appeal, Meisel asserted the district court (1) violated his right to present a complete defense by preventing him from presenting alternative perpetrator evidence; and (2) erred in denying his request to instruct the jury on “identity.”

As for the argument of J.H., Meisel asserted that J.H., Thomas’s caregiver, had unfettered access to the computer and external hard drive at times Meisel was absent from the home. Meisel asserts that the computer was logged into and child pornography was downloaded at times that Meisel was not at the home. Further, Meisel contends that J.H. has a high level of technical knowledge.

S.H. is J.H.’s brother, and Meisel contends that S.H. would often visit the home when the computer was accessible and that S.H. previously lived at the home and knew the wifi password.

W.R., Meisel’s son, lived at the home previously, and Meisel argue that he found W.R. accessing child pornography sites on his computer.

The district court determined that Meisel had not proffered sufficient evidence to establish the necessary nexus between any of the proposed perpetrators and the crimes with which Meisel was charged.

Meisel argued that the district court did not allow him to utilize the term “alternate perpetrator” in presenting his case to the jury. The question was whether the evidence was sufficient to allow Meisel to argue that a particular person was the one who placed the child pornography on his hard drive. The Tenth Circuit found that the district court did an appropriate balancing of evidence in finding that Meisel did not satisfy requirements for arguing that anyone else was responsible for downloading the child pornography.

The Supreme Court has noted that special considerations arise when a court is faced with a defense theory of an alternative perpetrator: “Evidence tending to show the commission by another person of the crime charged may be introduced by accused when it is inconsistent with, and raises a reasonable doubt of, his own guilt; but frequently matters offered in evidence for this purpose are so remote and lack such connection with the crime that they are excluded.”

The Tenth Circuit reexamined the three potential perpetrators Meisel provided. The information on S.H. was not admitted into evidence, as mere proximity and potential access are not sufficient to argue an alternative perpetrator to a crime. Further, the evidence implicating W.R. as the actual perpetrator set out a speculative and remote outcome. And at most, the evidence at trial demonstrated that W.R. used Meisel’s computer; however, there was no evidence indicating that W.R. was anywhere near Meisel’s computer for at least one year before the events at issue. J.H., however, seemed to be a viable alternative perpetrator for these crimes, as J.H. was present in the home four days a week and was present while Thomas slept during the day. Further, child pornography was downloaded on a day Meisel was possibly absent from the home, but J.H. was there. However, the theory that J.H. was responsible for the child pornography was presented to, and rejected by, the jury.

The Tenth Circuit found that the evidence of Meisel’s guilt was, contrary to protest, overwhelming. Unrebutted and unexplained forensic evidence demonstrated that Meisel’s assertion that he was unaware of the child pornography was implausible. Instead, the evidence overwhelmingly proved that after Thomas found child pornography on Meisel’s computer, Meisel took extraordinary efforts to limit access to his computer. For that very reason, Meisel stated during his interview that if child pornography was found on the computer, he was the responsible party. Although Meisel attempted to explain away that statement at trial with the theory he was only accepting ultimate responsibility for the computer, the Tenth Circuit found the evidence to the contrary to be overwhelming.

Lastly, Meisel asserted the district court refused to give his proffered identity instruction to the jury. The Tenth Circuit found that the district court did not abuse its discretion in determining that the existing jury instructions made it clear to the jury that Meisel was legally responsible for the charges if he personally and knowingly possessed and distributed the child pornography found on his computer. The Tenth Circuit found that the district court’s jury instructions were not erroneous or inadequate as given.

The Tenth Circuit Court of Appeals AFFIRMED the district court’s conviction.

Tenth Circuit: Unpublished Opinions, 5/11/2018

On Friday, May 11, 2018, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Stevenson v. Cordova

United States v. Smith

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