September 18, 2014

Colorado Court of Appeals: Permanency for Child in D&N Proceeding More Important than Reestablishing Familial Ties

The Colorado Court of Appeals issued its opinion in People in Interest of M.D. on Thursday, September 11, 2014.

Dependency and Neglect—Foster Parents—Permanency Hearing—Compelling Reason.

The La Plata County Department of Human Services (Department) filed a petition in dependency and neglect regarding M.D. due to its concerns about the parents’ history of domestic violence and substance abuse. M.D. was placed with foster parents and, based on father’s admission to certain allegations in the petition, including that he tested positive for methamphetamine, the court adjudicated the child dependent and neglected and adopted a treatment plan for father (mother’s rights were not at issue in this case). The district court later entered judgment allocating a majority of parenting time and sole decision making authority for M.D. to the foster parents.

On appeal, father contended that the court erred in concluding that it need only find a compelling reason to allocate parental responsibility to a nonparent under the permanency hearing statute. Because CRS §19-1-115 concerns only temporary custody awards and the court’s order here was a permanent custody order, the findings under §19-1-115(6.5) were not required. Further, there was evidence in the record that the child needed permanency and that a complete transition back to father would be difficult and probably result in harm to the child.

The record also reflects that the Department made reasonable efforts to finalize permanent placement of the child and that procedural safeguards were in place to protect father’s rights. In addition, because father was not deprived of all of his parental rights, and because the trial court retained jurisdiction to modify its existing order, the trial court order relating to father’s custody and visitation rights did not require a finding of unfitness to protect his fundamental liberty interest. The record supports the court’s findings regarding several compelling reasons as to why the child could not be returned home under §19-3-702(4). Therefore, the court did not abuse it’s authority to award permanent custody to the foster parents. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Statutory Language Deprived Court of Appeals of Jurisdiction in Bond Revocation Case

The Colorado Court of Appeals issued its opinion in People v. Jones on Thursday, September 11, 2014.

Bond—Revocation—Petition for Review—Jurisdiction.

In this felony case, the trial court set bond for defendant. He posted the bond, and the jail released him from its custody. While he was free on bond, a second court found that there was probable cause to believe that he had committed another felony. Based on that finding, the trial court revoked his release on bond in this case, and it ordered that the jail hold him without bond until this case was resolved. Defendant filed a petition for review in this court.

The prosecution argued that the Court of Appeals did not have jurisdiction over defendant’s petition for review. Defendant filed his petition for review relying on CRS §16-4-204(1), which authorizes review of trial court orders issued under CRS §§16-4-104, -107, and -201. Here, the prosecution’s motion to revoke defendant’s bond relied on CRS §16-4-105(3), which is not mentioned in CRS §16-4-204(1). Because it is not mentioned, a defendant cannot seek appellate review of an order issued under CRS §16-4-105(3) by filing a petition for review under CRS §16-4-204(1). Therefore, the Court of Appeals did not have jurisdiction over defendant’s petition for review, and the appeal was dismissed. Defendant may, however, seek the Supreme Court’s discretionary review of the trial court’s order under CAR 21.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Entire Lease Void Where District Exceeded Leasing Authority

The Colorado Court of Appeals issued its opinion in Rocky Mountain Natural Gas, LLC v. The Colorado Mountain Junior College District on Thursday, September 11, 2014.

Lease—Municipality—Void—Reformation—Equitable Estoppel—Compensation.

Rocky Mountain Natural Gas, LLC (RMNG) and Colorado Mountain Junior College District(CMC) entered into a lease allowing RMNG to construct and operate a natural gas compressor station on CMC property. Despite the statutory three-year term limit on CMC’s authority to lease district property, the lease included an initial term of twenty years, with an option for RMNG to extend the lease for an additional twenty-year term. RMNG spent approximately $2.5 million in reliance on the lease, and CMC thereafter took action to set aside the lease as unenforceable, because the term of the lease exceeded CMC’s statutory authority. The court granted summary judgment in favor of CMC.

On appeal, RMNG contended that the district court erred by determining that the lease was entirely void and unenforceable. Because the evidence did not clearly show that CMC desired to lease the property for less than the twenty-year term stated in the agreement with RMNG, it was within the discretion of the district court to reject reformation of the contract as an appropriate equitable remedy. Further, because the entire contract was void, the court could not use the “savings clause” to reform the contract to the maximum three years. Accordingly, the district court did not err in determining that the term of years could not be reformed and that the entire lease was void and unenforceable.

RMNG also contended that the district court erred by refusing to apply equitable estoppel against CMC to prevent manifest injustice. Where a contract is void because it is not within a municipality’s power to make, the municipality cannot be estopped to deny the validity of the contract. Here, because CMC had no power to lease district property for any term exceeding three years, principles of estoppel do not apply against CMC. Accordingly, the district court did not err when it allowed CMC to deny the validity of the lease.

RMNG further argued that the district court erred because it refused to hold a hearing or make factual findings that would permit it to craft a remedy that fully compensated RMNG for CMC’s breach. CMC refunded the lease payments it received from RMNG. Accordingly, RMNG was fully compensated for the benefit it conferred on CMC and the district did not err when it denied further relief and granted summary judgment in favor of CMC. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Witness’s Failure to File Tax Returns for Several Years Probative of Character for Truthfulness

The Colorado Court of Appeals issued its opinion in Leaf v. Beihoffer on Thursday, September 11, 2014.

Negligence—Driving Under the Influence of Drugs—Impeachment—Evidence—Tax Returns—CRE 608(b)—Guilty Plea—Jury Instructions.

Defendant Beihoffer’s car rear-ended plaintiff Leaf’s taxicab on an icy road. Beihoffer ultimately pleaded guilty to a misdemeanor charge of driving under the influence of drugs (DUI). Leaf sued Beihoffer for negligence, and the court entered judgment in Beihoffer’s favor.

On appeal, Leaf contended that the district court committed reversible error by allowing impeachment evidence that he had failed to file income tax returns for several years, because that evidence was not probative of his truthfulness and was unfairly prejudicial. Evidence of a witness’s failure to file income tax returns for several years is probative of the witness’s character for truthfulness and therefore admissible under CRE 608(b) to impeach the witness’s credibility. Therefore, the court did not err in admitting such evidence.

Leaf also contended that the district court erred by not giving preclusive effect to Beihoffer’s DUI guilty plea and by excluding evidence of the plea offered for impeachment. However, evidence of Beihoffer’s DUI guilty plea had no preclusive effect in this case. The court also did not err in excluding evidence of the guilty plea for impeachment, because there was sufficient cumulative evidence presented to the jury on this undisputed issue.

Finally, because Leaf did not allege a negligence per se claim in this case, the district court did not abuse its discretion in rejecting Leaf’s proposed definitional instruction of DUI. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Question of Prospective Harm Inappropriate for Summary Judgment in Dependency and Neglect

The Colorado Court of Appeals issued its opinion in People in Interest of S.N. on Thursday, September 11, 2014.

Parental Rights—Termination—Dependency and Neglect—Summary Judgment—Prospective Harm.

The Boulder County Department of Human Services (Department) removed S.N. from her parents’ custody at birth because a hearing on termination of parental rights involving the parents’ three older children was pending. The trial court adjudicated S.N. dependent and neglected by summary judgment based entirely on a theory of prospective harm.

On appeal, the parents argued that the trial court erred by granting summary judgment on the Department’s petition for dependency and neglect regarding S.N. There were material facts that could affect the determination of whether S.N. should be adjudicated dependent and neglected. Therefore, the question of prospective harm was inappropriate for summary judgment because the parent’s prior conduct alone can never be sufficiently predictive of future conduct to take the question from a trier of fact by summary judgment. The judgment was reversed and the case was remanded with directions.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Remand to Determine Whether Defendant Hired Specific Attorney or Entire Firm

The Colorado Court of Appeals issued its opinion in People v. Stidham on Thursday, September 11, 2014.

Sentencing Hearing—Sixth Amendment—Right to Counsel—Continuance.

A jury found defendant guilty of multiple sex offenses involving three minor children. The district court convicted him, adjudicated him a habitual criminal based on various prior convictions, and sentenced him to forty-eight years to life in the custody of the Department of Corrections. At a resentencing hearing, the court denied defendant’s request for a continuance based on his objection that an associate from the firm, R.T., instead of the attorney from the firm he had hired, H.S., was there to represent him. The resentencing hearing proceeded, and the district court ultimately imposed the same sentence.

Defendant argued that the trial court violated his Sixth Amendment right to counsel when it denied his request for a continuance of his resentencing hearing. It is unclear from the record whether defendant hired H.S. personally or the firm. Therefore, the case was remanded to make this determination and for further findings. If defendant hired H.S. personally, the court will need to vacate the current sentence and set a resentencing hearing at which H.S., defendant’s current counsel, or defendant’s retained counsel can appear. If defendant hired the firm, the court should consider and make a record of the appropriate factors in deciding whether it should have continued the resentencing hearing to allow defendant to be represented by H.S. If it finds it should have granted defendant’s requested continuance, the court should vacate the sentence and reset the resentencing hearing.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Confrontation Clause Violation where Defendant Not Allowed to Elicit Testimony Regarding Victim’s Truthfulness

The Colorado Court of Appeals issued its opinion in People v. Wilson on Thursday, September 11, 2014.

Sexual Assault—Challenge for Cause—Impeachment—Veracity—Collateral Issue—Prosecutorial Misconduct.

A.M. claimed she was sexually assaulted by defendant and his friend in a parking garage. Defendant claimed the sex was consensual. A jury convicted defendant of two counts of sexual assault.

On appeal, defendant contended that the trial court erred in denying one of his challenges for cause and granting two of the prosecution’s challenges for cause. All three of the challenged jurors expressed a possible bias. Because Juror R indicated that she thought she could fulfill her duties as a fair and impartial juror, the court did not abuse its discretion in denying defendant’s challenge for cause as to this juror. The court also acted within its discretion in removing Jurors W and S based on its conclusion that it was not satisfied that they would render an impartial verdict after expressing bias.

Defendant also contended that the trial court erred in not allowing him to impeach A.M.’s testimony that she had truthfully answered all of a detective’s questions in an interview regarding a previous narcotic’s arrest. However, because the subject of A.M.’s narcotics arrest raised a collateral issue, the trial court acted within its discretion in precluding defendant from inquiring of A.M. whether she had been truthful to the detective on that subject. It follows that defendant’s constitutional right to confront adverse witnesses was not violated.

Defendant further argued that reversal was required because of prosecutorial misconduct in closing argument. However, the prosecutor was drawing reasonable inferences from the evidence rather than professing her personal opinion as to A.M.’s veracity. Although asking the female jurors to conduct an experiment to determine whether the evidence was credible was improper, no plain error occurred. In asking the jury to evaluate the evidence, based on the experience of its female members, the prosecutor was not asking the jury to decide the case on impermissible grounds.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Plain Language of Sexual Abuse Statute Includes Abuse of Sexual Organs

The Colorado Court of Appeals issued its opinion in People v. Lovato on Thursday, September 11, 2014.

Child Abuse—Sexual Assault on a Child—Equal Protection—Prosecutorial Misconduct—Merger—Assault—Lesser Included Offenses.

Defendant adopted the male victim when the victim was 13. Over the next couple of years, defendant punished the victim for not properly completing chores. Punishment included beating the victim with a belt, punching him with a fist, and striking him with a meat tenderizer.

Defendant asserted that his conviction for sexual assault on a child (SAOC) for stomping on the victim’s testicles violated his right to equal protection because the child abuse statute prohibits the same conduct and carries a lesser penalty. Here, the statutes do not violate equal protection on their face because they do not proscribe identical conduct. Notably, the SAOC charge requires “sexual contact” and the child abuse statute requires “serious bodily injury.” Further, because both statutes contain standards for a person of ordinary intelligence to determine permissible and prohibited conduct, neither statute is void for vagueness as applied to defendant’s conduct. Finally, although either assault could have been charged under the child abuse statute or the SAOC statute, the charging decision was a proper exercise of prosecutorial discretion.

Defendant also asserted that his convictions must be reversed because the prosecutor’s repeated statements of personal opinion, inflammatory remarks, and appeal to the jury to send a message to the community deprived him of his rights to a fair trial by a fair and impartial jury. The prosecutor referred to defendant’s actions as “systematic torture,” which was a proper description of the routine and severe beatings defendant inflicted on the victim over the course of several months. Additionally, it was not an abuse of discretion for the court to sustain defendant’s objection regarding the prosecutor’s comments that defendant liked child abuse and to instruct the jury to disregard the statement. Finally, any additional comments by the prosecutor were reasonable inferences based on the evidence introduced at trial. Therefore, any potential prejudice was cured by the trial court’s ruling and instruction to the jury to disregard the remark.

Defendant argued that his three convictions for second-degree assault must merge into three of his convictions for first-degree assault because they are lesser included offenses. The elements of first-degree assault and second-degree assault are almost identical; one difference is that proof that the defendant caused serious bodily injury is required for first-degree assault. Because the prosecution proved that defendant intended to cause, and did cause, serious bodily injury to the victim, the prosecution also proved that defendant intended to cause, and did cause, the lesser degree of bodily injury. The case was remanded to the trial court to amend the sentencing mittimus to merge the convictions on three counts of second-degree assault.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 9/4/2014

On Thursday, September 4, 2014, the Colorado Court of Appeals issued no published opinion and 25 unpublished opinions.

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

Colorado Court of Appeals: No Fourth Amendment Violation where Officers had Reasonable Suspicion for Pat-Down

The Colorado Court of Appeals issued its opinion in People v. Martin on Thursday, August 28, 2014.

Motion to Suppress—Investigatory Stop—Pat Down—Fourth Amendment—Search and Seizure—Right to Testify—Waiver.

After defendant refused to exit a restroom at a convenience store, police officers ordered him to face the wall and put his hands behind his back for a pat down search. During the pat down, defendant’s actions caused the officers to think he was attempting to flee. A struggle between defendant and the officers ensued, during which defendant and one of the officers were injured. A jury found defendant guilty of attempting to disarm a peace officer and resisting arrest.

On appeal, defendant asserted that the trial court erred by denying his motion to suppress evidence because the investigatory stop and subsequent pat down violated his Fourth Amendment right to be free from unreasonable searches and seizures. The Court of Appeals disagreed. The officer had reasonable grounds to initiate contact with defendant, both on the basis of conducting an inquiry into defendant’s welfare and on reasonable suspicion that he was unlawfully trespassing on the property when defendant remained in the bathroom for more than twenty minutes and subsequently refused to exit the bathroom after the police arrived. Additionally, even if the pat down was unlawful, defendant’s conduct of pulling away from the officers, attacking them, and resisting arrest constituted new offenses justifying a pat down.

Defendant contended that the trial court erred by denying his request to testify. Defendant requested to testify after he had waived the right to do so and defense counsel had rested the case. Although a defendant’s constitutional right to testify is not absolute, a defendant is not prohibited from testifying after waiving the right to do so and resting his or her case. Therefore, the case was remanded for hearing to reconsider defendant’s request.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Notice of Mechanics’ Lien Sufficient when Amended Lien Filed Same Day as Original Lien

The Colorado Court of Appeals issued its opinion in Sure-Shock Electric, Inc. v. Diamond Lofts Venture, LLC on Thursday, August 28, 2014.

Property—Mechanics’ Lien—Contract—Foreclosure—Notice—Equitable Apportionment—Prevailing Party—Costs.

Diamond Lofts Venture, LLC (DLV) was the developer and owner of a building project at 2210 Blake Street in Denver (Blake Street property). Sure-Shock Electric, Inc. (Sure-Shock), as the primary electrical contractor on the project, installed the electrical work throughout the building. Thereafter, Sure-Shock filed a mechanics’ lien for the unpaid contract price. Pursuant to their contract, DLV and Sure-Shock participated in arbitration. The arbitrator determined that Sure-Shock had proved its claims, and awarded it the principal amount claimed in the amended lien statement. The trial court affirmed the arbitrator’s award and entered a decree of foreclosure authorizing the sale of the DLV units to satisfy Sure-Shock’s lien.

On appeal, DLV contended that the trial court erred in allowing Sure-Shock to foreclose on its lien because Sure-Shock failed to comply with the statutory requirements necessary to perfect the lien. The Court of Appeals disagreed. Sure-Shock provided DLV proper notice more than ten days before filing the original lien statement. Sure-Shock was not required to provide an additional notice before it filed its amended lien statement the same day as the original lien to correct the amount claimed. Additionally, although DLV only owned seven of the twenty-nine units in the Blake Street property at that time, Sure-Shock’s lien statement sufficiently identified the property by listing the entire Blake Street property and naming only DLV as the property owner. Finally, Sure-Shock was not required to apportion the unpaid contract price according to the amount due for work on the DLV units, rather than claiming the full amount due.

In its cross-appeal, Sure-Shock contended that the trial court abused its discretion in apportioning the lien. A court may equitably apportion a blanket lien. Here, the trial court determined that an equitable apportionment should be based on the actual benefit enjoyed by each unit. Therefore, Sure-Shock was awarded 33.1% of the lien amount, which corresponded to the total square footage of the DLV units relative to the square footage of the entire Blake Street property. Because Sure-Shock’s electrical work benefited the entire Blake Street property, and Sure-Shock chose to encumber only the DLV units, Sure-Shock may not recover the entire unpaid amount of the contract. Therefore, the trial court’s apportionment was not an abuse of its discretion.

In addition, because Sure-Shock’s lien was determined to be valid, Sure-Shock succeeded on a “significant issue in the litigation.” Therefore, the trial court did not abuse its discretion in concluding that Sure-Shock was the prevailing party and awarding it costs. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant Not Required to Pay Restitution for Sexual Assault Nurse Exam

The Colorado Court of Appeals issued its opinion in People v. Rogers on Thursday, August 28, 2014.

Restitution—Sexual Assault Nurse Examiner (SANE) Examination—Forensic Evidence—Cost of Prosecution.

Defendant offered the victim a ride in his car and then drove her behind a building, where he parked the car. He threatened her with a knife and forced her to perform oral sex on him. After the victim called the police, she was examined by a sexual assault nurse examiner. Defendant pleaded guilty, and the court granted the prosecution’s request for the $500 in restitution to be paid to the Aurora Police Department for the cost of the examination.

On appeal, defendant contended that the district court erred in awarding restitution to the Aurora Police Department for the cost of the examination. The Court of Appeals agreed. The examination was for the purpose of collecting forensic evidence, so the Aurora Police Department was not a “victim” under the applicable version of the restitution statute. Additionally, the examination was not an “extraordinary direct public investigative cost” under CRS §18-1.3-602(3)(b). Further, because the examination was conducted beforeformal legal charges were filed, the cost of the exam was not recoverable as a cost of prosecution. The order was reversed and the case was remanded with directions.

Summary and full case available here, courtesy of The Colorado Lawyer.