February 27, 2017

Colorado Court of Appeals: No Error in Joining Trials Where CRE 404(b) Would Have Allowed Admission of Other Act Evidence

The Colorado Court of Appeals issued its opinion in People v. Raehal on Thursday, February 23, 2017.

Bradford Steven Raehal was living in the basement of S.F.’s family home when he was arrested for failing to register as a sex offender. Shortly after his arrest, S.F. reported that Raehal had sexually assaulted him on multiple occasions and had taken pictures of the assaults with a grey or silver digital camera. A search executed pursuant to a warrant found the digital camera, which contained previously deleted images of Raehal assaulting S.F.

J.H., another minor who lived at S.F.’s house, first denied that Raehal had assaulted him, but later reported three separate incidents of abuse. Although the incidents differed from the incidents with S.F., both boys reported that Raehal gave them video games and rubbed lotion on their backs before the assaults, which occurred in the same location for both boys.

At first, the trials for the acts on S.F. and J.H. were separate, but the district court joined the trials over defense counsel’s objection. A jury convicted Raehal of two counts of sexual assault on a child by one in a position of trust (one for acts against S.F. and one for acts against J.H.), two counts of sexual assault on a child as part of a pattern of abuse (one for acts against S.F. and one for acts against J.H.), and two counts of sexual exploitation of a child for the possession and production of sexually exploitative material relating to the pictures taken of S.F. In a separate proceeding, he was adjudicated a habitual sex offender against children. The trial court designated him a sexually violent predator and sentenced him to 112.5 years to life.

On appeal, Raehal first contended that the trials were improperly joined. Although he admitted that S.F.’s testimony would have been admissible under CRE 404(b) in J.H.’s trial, he argued the photos depicting the assaults of S.F. would not have been admissible. The court of appeals found no abuse of discretion. The court disagreed that the photographs should have been separately analyzed, and found the Spoto test inapplicable because the photos were admitted to corroborate S.F.’s testimony, not to prove a common scheme or plan. The court of appeals similarly found no error in the court’s failure to give a limiting instruction as to the photos, finding that any error could not have cast serious doubt on the reliability of the convictions.

Raehal next contended that the contents of the digital camera should have been suppressed because the examination of the camera occurred outside the 14-day window in the search warrant. The court of appeals again disagreed, finding that the camera was seized within the time limit and was not altered between the seizure and examination, so there was no error.

Raehal also contended that evidence of his prior assault of two other boys should have been rejected under CRE 404(b), but the court of appeals again disagreed, finding that although the prosecutor’s statements were somewhat misleading, there was no doubt that Raehal was convicted of only one charged offense.

Finally, Raehal argued, and the prosecution conceded, that the trial court erred in finding him a sexually violent predator without making specific findings. The court of appeals remanded for further findings on the sexually violent predator designation.

The court of appeals affirmed in part, reversed in part, and remanded for further proceedings.

Tenth Circuit: Unpublished Opinions, 2/24/2017

On Friday, February 24, 2017, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

Ward v. Denver Sheriff Department

Burks v. Raemisch

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

Tenth Circuit: Unpublished Opinions, 2/23/2017

On Thursday, February 23, 2017, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Mays

United States v. Harrison

Gonzalez Vargas v. Sessions

Harold v. University of Colorado Hospital

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

Colorado Supreme Court: No Personal Jurisdiction Over Out-of-State Employer in Workers’ Comp Case

The Colorado Supreme Court issued its opinion in Youngquist v. Miner on Tuesday, February 21, 2017.

Workers’ Compensation—Personal Jurisdiction—Specific Jurisdiction.

In this case, the Colorado Supreme Court considered whether Colorado has jurisdiction to award benefits for out-of-state work-related injuries and impose a statutory penalty on an employer under C.R.S. § 8-41-204 when the employer is not a citizen of Colorado and has no offices or operations in Colorado but hired a Colorado citizen within the state. The court concluded that under the facts of this case, Colorado lacks personal jurisdiction over the employer and therefore the employer cannot be subject to the Workers’ Compensation Act of Colorado, C.R.S. §§ 8-40-101 to 8-47-209. Accordingly, the court reversed the judgment of the court of appeals.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Competency Evaluation Properly Excluded from Speedy Trial Calculation

The Colorado Supreme Court issued its opinion in Nagi v. People on Tuesday, February 21, 2017.

Criminal Trials—Continuances—Speedy Trial.

Defendant sought review of the Colorado Court of Appeals’ judgment affirming his conviction and sentence for sexual assault on a child by one in a position of trust. See People v. Nagi, 2014 COA 12. In addition to rejecting his challenge to the legality of his sentence, the court of appeals rejected defendant’s assertion that he was denied his statutory right to a speedy trial, as prescribed by C.R.S. § 18-1-405. Defendant had argued that the district court lacked sufficient grounds to justify ordering a competency evaluation, and that the period during which defendant was under observation or examination was therefore not properly excluded from the calculation of the time within which trial was statutorily required. With one member of the panel dissenting, the appellate court found that the district court did not abuse its discretion in ordering the evaluation, notwithstanding its reference to defendant’s choice to proceed pro se as at least one of the reasons for questioning his competency, and that the evaluation period was therefore properly excluded and defendant’s statutory speedy trial right was not violated.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 2/23/2017

On Thursday, February 23, 2017, the Colorado Court of Appeals issued 10 published opinions and 19 unpublished opinions.

People in Interest of D.Z.B.

People v. Raehal

Francis v. Aspen Mountain Condominium Association, Inc.

Bermel v. BlueRadios, Inc.

Dami Hospitality, LLC v. Industrial Claim Appeals Office

Campaign Integrity Watchdog, LLC v. Alliance for a Safe and Independent Woodmen Hills

Nibert v. Geico Casualty Co.

City of Aurora v. Arapahoe County Assessor

Munoz v. American Family Mutual Insurance Co.

Sterling Ethanol, LLC v. Colorado Air Quality Control Commission

Summaries of these cases are forthcoming.

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, 2/22/2017

On Wednesday, February 22, 2017, the Tenth Circuit Court of Appeals issued two published opinions and three unpublished opinions.

United States v. Mowery

Dawson v. Litton Loan Servicing, LP

United States v. Jones

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

Tenth Circuit: Unpublished Opinions, 2/21/2017

On Tuesday, February 21, 2017, the Tenth Circuit Court of Appeals issued three published opinions and one unpublished opinion.

Lewis v. Berryhill

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

Colorado Supreme Court: Announcement Sheet, 2/21/2017

On Tuesday, February 21, 2017, the Colorado Supreme Court issued two published opinions.

Youngquist v. Miner

People v. Cox

Summaries of these cases are forthcoming.

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

Tenth Circuit: Commerce Clause Does Not Protect Creator of Child Pornography

The Tenth Circuit Court of Appeals issued its opinion in United States v. Humphrey on Wednesday, January 18, 2017.

Reginald Humphrey was convicted of the rape and forcible sexual abuse of his live-in girlfriend’s stepdaughter and sentenced to five years’ imprisonment. During the state’s investigation into the abuse claims, police found photographs and videos depicting the abuse on Humphrey’s computer. Subsequent to his conviction on the abuse claims, a grand jury indicted Humphrey on one count of producing child pornography in violation of 18 U.S.C. § 2251(a).

Section 2251(a) prohibits a minor from engaging in sexually explicit conduct to create a visual depiction of such conduct if it was made with materials that have been mailed, shipped, or transported via intrastate commerce. The court stated that there is no doubt § 2251(a) applies to Humphrey’s conduct in this case. Humphrey conditionally pleaded guilty to the charge, and reserved his right to appeal the district court’s ruling, arguing that the application of § 2251(a) to his solely intrastate activities violated the commerce clause as he did not distribute or share the child pornography across state lines.

The Tenth Circuit had to determine if the previous decisions of the court upholding the application of § 2251(a) to the production of child pornography were invalidated by the Supreme Court decision in National Federation of Independent Business v. Sebelius. While Humphrey acknowledges the court’s holding in United States v. Jeronimo-Bautista that the application of § 2251(a) to the intrastate production of child pornography did not violate the commerce clause, he argues the holding should be overturned in light of the ruling in NFIB, which rejected congress’s regulation of an individual’s inactivity in the market.

The court rejected Humphrey’s argument that NFIB should apply, as the NFIB case involved an individual’s failure to engage in a commercial activity where Congress had mandated action, while Humphrey’s case involved no requirement to act by Congress. The court states that this distinguishes Humphrey’s case from NFIB, because, “here, Humphrey didn’t fail to produce child pornography; he actively engaged in producing it.” The court states that because the NFIB case has no affect on Congress’s ability to regulate interstate commerce, they are bound by their previous holding in Jeronimo-Bautista.

The court affirmed the district court’s denial of Humphrey’s motion to dismiss.

Tenth Circuit: Concurrent Insurer Responsible for Proportional Shares of Loss for School Fire

The Tenth Circuit Court of Appeals issued its opinion in Philadelphia Indemnity Ins. Co. v. Lexington Ins. Co. on January 19, 2017.

In 2012, Philadelphia Indemnity Insurance Company issued an insurance policy to Tulsa School of Arts and Sciences (TSAS), an Oklahoma charter school. TSAS leased the Barnard Elementary School building from the Independent School District No. 1 of Tulsa County, Oklahoma. TSAS obtained the insurance policy, as required by the lease, naming the District as the payee. The District held a separate insurance policy on the building leased by TSAS and on over 100 other facilities the District owned. The building was damaged by fire on September 5, 2012. The total adjusted loss was $6,014,359.06. The insureds were paid; however, the insurers pursued litigation over which policy covered the damage. Both policies protected against fire damage and included identically worded “other insurance” provisions. Philadelphia sought a declaratory judgment in the U.S. District Court for the Northern District of Oklahoma in March 2013. The district court granted Philadelphia’s motion in December 2015 and denied Lexington’s request for summary judgment.

Rejecting Lexington’s arguments, the Tenth Circuit found that Philadelphia had standing. The court held that Philadelphia met the Constitutional requirement for a case or controversy in the context of a declaratory judgment. Philadelphia’s alleged injury was financial, definite, and concrete. The parties’ interests were adverse: either insurer would bear the loss or share it. Due to the causal connection of how the insurers’ policies interact with one another, a judicial determination of the insurers’ responsibilities under the policies would provide redress. The court stated that this action is between insurers for a declaration of the insurers’ responsibilities, and not an action to enforce a contract. Therefore, Philadelphia had standing.

The Tenth Circuit agreed with the district court’s conclusion. The court held that the district court properly applied Oklahoma insurance law in its decision on summary judgment. The panel applied the framework established by the Oklahoma Supreme Court in Equity Mutual Insurance v. Spring Valley Wholesale Nursery to affirm that both policies were primary polices, the identical policy provisions canceled each other out, and the total loss must be shared proportionally. This reasoning was further supported by the Fifth Circuit’s decision in Southern Insurance Co. v. Affiliated FM Insurance Co. In Southern Insurance, the court applied Mississippi law to hold that concurrent policies containing “other insurance” clauses canceled each other out and required pro rata calculation.

Philadelphia argued that the district court should have required Lexington to pay more because Lexington’s policy limit was $100 million, while its policy limit was $7 million. The court disagreed. Because Lexington’s policy included a “limit of liability” endorsement, Lexington’s policy limit was the amount of loss here and not the full $100 million.

Judge McHugh concurred in part and dissented in part. He agreed with Philadelphia. The district court should have used Lexington’s policy limit of $100 million and not the liability limit to determine the proportional share. The dissenting part also relies on a different interpretation of the default rule from Equity Mutual. Without expressly provided for in the insurance policy, the pro rata calculation should be based on the total policy limit of each policy. This conclusion would result in Philadelphia liable for 6.54% and Lexington 93.46%. The majority of the panel affirmed the lower court’s calculation apportioning 53.79% of the loss to Philadelphia, and 46.21% to Lexington.

Tenth Circuit: Unpublished Opinions, 2/17/2017

On Friday, February 17, 2017, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Branzan Alternative Investment Fund, LLLP v. Bank of New York Mellon Trust Company, N.A.

Breen v. Pruter

United States v. Avila

Unites States v. Ramon-Perez

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