October 25, 2014

Colorado Court of Appeals: Announcement Sheet, 10/23/2014

On Thursday, October 23, 2014, the Colorado Court of Appeals issued 10 published opinions and 18 unpublished opinions.

People v. Maestas

People v. Castillo

People v. Frye

People v. Bertrand

People v. Beauvais

People v. Calderon

In re Marriage of Johnson

Markus v. Colorado Department of Revenue

In re Marriage of Corak

People in Interest of M.K.D.A.L.

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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: Announcement Sheet, 10/16/2014

On Thursday, October 16, 2014, the Colorado Court of Appeals issued no published opinion and 39 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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: Involuntary Medication Administration Necessary to Render Defendant Competent to Stand Trial

The Colorado Court of Appeals issued its opinion in People in Interest of Hardesty on Thursday, October 9, 2014.

Involuntary Administration of Medication to Render Defendant Competent to Stand Trial.

Hardesty was sent to the Colorado Mental Health Institute in Pueblo (CMHIP) after he was found incompetent to proceed in two criminal cases filed against him. While at CMHIP, Hardesty refused to take antipsychotic medications. The People petitioned to have the medications involuntarily administered to render him competent to proceed in the criminal cases. The district court granted the People’s petition following a hearing in which it made a number of findings by clear and convincing evidence.

On appeal, Hardesty argued that the People failed to establish the legal requirements for administration of medications under Sell v. United States, 539 U.S. 166 (2003).The Court of Appeals disagreed.

Under Sell, a court must find the defendant: (1) is facing “serious criminal charges”; (2) the involuntary medication will significantly further the state’s interest in prosecution; (3) administration of the drugs is substantially likely to render the defendant competent to stand trial; (4) administration of the drugs is substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a trial defense; (5) involuntary medication is necessary to further the identified governmental interests; (6) less intrusive means for administering the drugs must be considered; (7) any alternative, less intrusive treatments are unlikely to achieve substantially the same results; and (8) administration of the drugs is medically appropriate.

Hardesty challenged the first, second, and fifth factors listed above. On the first issue, Hardesty was charged with “[s]hoplifting that resulted in an assault and as a result then [became] a [r]obbery.” The Court held that robbery, as charged here, was a “serious” crime. The Court further concluded that, given the seriousness of the robbery charge, the government had a significant interest in restoring Hardesty to competency so that he could be tried.

Hardesty also argued that no evidence was presented to prove that ordering involuntary medication was necessary to further the state’s interest in prosecution. The lower court found by clear and convincing evidence that Hardesty was unlikely to be restored to competency without the medications. This finding was not clearly erroneous. The order was affirmed.

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

Colorado Court of Appeals: Statutory Employer Has Standing to Contest Lapse in Insurance Coverage

The Colorado Court of Appeals issued its opinion in Hoff v. Industrial Claim Appeals Office on Thursday, October 9, 2014.

Workers’ Compensation—Standing—Notice of Cancellation Provision—Estoppel.

Hoff owns a house that she uses as a rental property. After the house sustained hail damage to the roof, Hoff and her husband engaged Alliance Construction (Alliance) to negotiate with their insurance company to resolve their damage claim. A successful resolution was reached, and Hoff contracted with Alliance to repair the roof. Without Hoff’s knowledge, Alliance verbally subcontracted the roofing job to MDR Roofing, Inc. (MDR). Claimant was employed by MDR as a roofer.

While working on the roof in March 2011, claimant fell twenty-five feet to the ground and sustained serious injuries. Claimant sought medical and temporary total disability (TTD) benefits for his work-related injuries. Pinnacol, MDR’s insurer, denied the claim because MDR’s policy had lapsed for failure to pay premiums. Neither Alliance nor Hoff carried workers’ compensation insurance.

In October 2010, before starting the roofing job, Alliance obtained a certificate of insurance (certificate) from Pinnacol’s agent, Bradley Insurance Agency (Bradley), that verified that MDR had workers’ compensation insurance through Pinnacol.

On February 10, 2011, Pinnacol sent a certified letter to MDR advising the policy would be cancelled if payment of a past due premium was not received. The policy was canceled effective March 3, 2011 and letters to that effect were sent to MDR and Bradley.

Claimant was injured on March 10, 2011. On March 11, MDR’s owner went to Bradley’s office seeking to reinstate the policy. He was informed it could be reinstated if he paid the past due premium, paid a reinstatement fee, and signed a no-loss letter. The owner knew claimant had been injured, but he submitted the no-loss letter and did not inform Bradley of the accident.

Pinnacol reinstated the policy on March 11. MDR’s owner returned to Bradley’s office to report claimant’s injuries. Pinnacol contested the claim and cancelled the policy.

The administrative law judge (ALJ) determined that the owner’s failure to disclose claimant’s injuries when he signed the no-loss letter was a material misrepresentation, thus voiding the policy. The ALJ held MDR, Alliance, and Hoff jointly liable for claimant’s medical and TTD benefits. The Industrial Claim Appeals Office (Panel) agreed and affirmed.

Hoff appealed, arguing that Pinnacol was stopped from denying benefits to claimant. Pinnacol argued Hoff had no standing to challenge the cancellation of MDR’s policy.

The Court of Appeals held that Hoff had standing and agreed in part with her argument. Standing is established by Hoff demonstrating (1) she has sustained an injury in fact, and (2) the injury is to a legally protected interest. The first prong was clearly met. The liability imposed on Hoff by the ALJ and the Panel exceeded $300,000. The second prong was met because Hoff argued she was a beneficiary of specific promises that there was a workers’ compensation policy issued to MDR that was in force on the dates stated in the certificate. Her claim is independent of the Pinnacol policy and the Workers’ Compensation Act; it is one for promissory estoppel.

The Court found there were factual findings that need to be addressed by the ALJ regarding the estoppel argument. The case was remanded for a hearing, specifically to determine whether (1) Alliance or Hoff relied on the promises contained in the certificate, and (2) whether circumstances exist such that injustice can be avoided only by enforcement of the promises contained in the certificate.

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

Colorado Court of Appeals: Although Unusual, Forced Sale Appropriate Remedy to Continuing Trespass

The Colorado Court of Appeals issued its opinion in Graham v. Jules Investment, Inc. on Thursday, October 9, 2014.

Forced Sale in Encroachment Case.

Serenity Springs Wildlife Center is a ten-acre wildlife refuge in El Paso County that houses approximately 140 tigers, lions, and other exotic, threatened, or endangered animals. The refuge was once part of a 320-acre parcel of land. In 1997, a perimeter fence was erected enclosing the refuge and a deed was recorded severing it from the original parcel. In 1998, another deed severed a 36.5-acre parcel directly south from the refuge. A home was built on the severed parcel approximately 1,000 feet from the refuge.

Beginning in 2000, the property went through cycles of foreclosure and reacquisition. It was eventually sold to plaintiffs in 2010. In 2012, plaintiffs hired a surveyor, who told them that 1.7 acres (surrounded by a fence) was on plaintiffs’ parcel. The fence enclosed pens and lion and tiger dens. The footings were 16″-wide concrete slabs buried 2′ to 4′ in the ground and about nineteen lions and tigers lived on the 1.7 acres.

Plaintiffs sued defendants for trespass. The trial court held that the structures alone were not a trespass, but that the use and presence of the structures “deprive[d] . . . plaintiffs of the use of” 1.7 acres of their 36.5-acre parcel and “facilitated a regular, if not continuing trespass” of the refuge’s staff. The court held a hearing on the appropriate remedy. Defendants asked the court to allow them to purchase the 1.7 acres from plaintiffs, because removing the structures and rebuilding them would create a severe hardship. Plaintiffs asked for everything to be removed and the property restored to its “natural state.” The trial court held that under the “unique and unusual facts” of this case, it would order a forced sale of the 1.7 acres to defendants. It ordered conveyance in exchange for $5,870, which was the value of the 1.7 acres according to plaintiffs. The court also ordered payment of $1,737, which was the amount of the application fee for obtaining a waiver from the 35-acre requirement from El Paso County.

On appeal, plaintiffs argued it was error not to find that the structures themselves were a trespass and encroachment. The Court of Appeals did not decide this issue because the trial court had already determined there had been a trespass and had crafted a remedy. Regarding the remedy, the Court found that, though extraordinary, it is not unheard of to order a forced sale when the hardships weigh heavily on the defendant’s side. Therefore, it was not an abuse of discretion to order a sale under these unique circumstances. The judgment was affirmed.

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

Colorado Court of Appeals: Named Insured Means All Persons Named in Policy for UM Coverage Purposes

The Colorado Court of Appeals issued its opinion in Johnson v. State Farm Mutual Automobile Insurance Co, Inc. on Thursday, October 9, 2014.

Uninsured or Underinsured Motorist Coverage—Scope of Waiver.

Daphne Satriano helped her roommate, plaintiff, buy a car. When plaintiff’s insurance policy expired, Satriano called her insurance company (State Farm) to obtain a policy for the car. Plaintiff was not present during the call. Both plaintiff and Satriano were listed as “named insured” and Satriano signed a form waiving uninsured or underinsured motorist (UM/UIM) coverage. Plaintiff did not sign the form, nor was he aware of it. Satriano told plaintiff he was “fully covered.” The written policy, mailed to Satriano, did not state whether UM/UIM coverage had been waived.

Plaintiff was seriously injured in an accident. The at-fault driver was underinsured. State Farm paid the policy limits of the UM/UIM coverage from a second policy that Satriano had on her car, but refused to pay under the policy on plaintiff’s car. Plaintiff sued State Farm, and the trial court found that Satriano had acted as agent for plaintiff in waiving the UM/UIM coverage and the driver was bound by that waiver.

The Court of Appeals reversed, holding that State Farm did not show that plaintiff expressly waived UM/UIM coverage on his car’s policy. The general rule in Colorado is that automobile liability insurance policies must contain coverage for bodily injury damages caused by uninsured or underinsured motorists unless “the named insured” waives such coverage in writing. The Court found it was unambiguous that a “named insured” under the UM/UIM statutes means all persons listed in a policy. Even if the term were not unambiguous, the legislative history and policies for UM/UIM coverage support the conclusion that a waiver of UM/UIM coverage is effective only as to each named insured that has expressly waived it. The Court then examined common law agency principles and concluded that one named insured may not act as an agent for another in waiving UM/UIM coverage on the other’s behalf unless the agent acts with express actual authority from the other. The judgment was reversed and the case was remanded.

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

Colorado Court of Appeals: No Error to Include Nurse in Physician Malpractice Instruction

The Colorado Court of Appeals issued its opinion in Gasteazoro v. Catholic Health Initiatives Colorado, Inc. on Thursday, October 9, 2014.

Medical Negligence—Including Nurses in Pattern Exercise of Judgment Instruction—Expert Testimony Objections.

Plaintiff arrived at the emergency room of the defendant hospital. Nurse Yeager was the first person to attend to her. Plaintiff complained of headache, nausea, dizziness, and neck pain. She had high blood pressure and low blood oxygen saturation. Defendant Dr. Overholt diagnosed a cervical sprain and ordered her discharged. Nurse Scolardi processed the discharge. Plaintiff’s blood pressure remained elevated.

Ten days later, plaintiff was found unresponsive in her home, following a hemorrhagic stroke resulting from a ruptured aneurysm in her brain. The stroke caused serious injuries.

Plaintiff alleged her treatment in the emergency room was below the standard of care in three ways: (1) Nurse Yeager did not properly triage her; (2) Dr. Overholt failed to recognize that her symptoms were consistent with an impending cerebral vascular incident (CVA) and did not order tests that would have detected a CVA or an aneurysm; and (3) given plaintiff’s unstable vital signs, Nurse Scolardi did not follow the hospital’s policies when processing her discharge. Following trial, a jury returned a verdict in favor of the hospital and Dr. Overholt.

On appeal, plaintiff argued it was error to include the words “or nurse” following every reference to “a physician” in the pattern instruction CJI-Civ. 15:4. The Court of Appeals dismissed plaintiff’s argument that a court may not depart from CJI, because CJI does not cover all possible legal principles that may be applicable in a case. In addition, the instruction at issue includes in its Notes on Use that it is “generally applicable to members of other healing arts.”

Plaintiff also argued that although no Colorado case has addressed whether a nurse should be included in a professional judgment instruction, decisions discussing why the instruction is proper for physicians weigh against giving the instruction as to nurses. The Court held that the trial court did not abuse its broad discretion by including nurses in the exercise-of-judgment instruction because: (1) the issue was unresolved in Colorado cases; (2) language in CJI-Civ. supports extending the instruction to healthcare professionals other than physicians; (3) one Colorado case and several statutes classify nurses as medical professionals; and (4) the hospital’s policy vesting nurses with the prerogative of challenging a physician’s order refers to “good clinical judgment” in carrying out “authorized physician orders.”

Plaintiff further argued that the trial court erred in overruling plaintiff’s objections to expert testimony from a neurosurgeon as violating a stipulation or improperly opining on the standard of care for a specialist in emergency medicine. The Court found that the neurosurgeon properly analyzed plaintiff’s presentation and history as they related to his specialty and offered opinions within that specialty. Therefore, the trial court did not abuse its discretion. The judgment was affirmed.

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

Colorado Court of Appeals: Treasurer Did Not Undertake Diligent Inquiry as to Actual Residence for Notice

The Colorado Court of Appeals issued its opinion in Cordell v. Klingsheim on Thursday, October 9, 2014.

Tax Lien—Deed—Treasurer—Diligent Inquiry—Notice—Jurisdictional.

Plaintiffs Carl and Wanda Cordell were record owners of a tract of land in La Plata County (Tract 1). Carl Cordell was also the record owner of an adjoining tract (Tract 2). The Cordells failed to pay the taxes owed on the properties, and Brenda Heller purchased the tax liens on the properties. Heller assigned the tax liens to Klingsheim, who later requested and received deeds from the La Plata County Treasurer to the two properties after the Treasurer sent notice to the Cordells. Upon learning of the Treasurer’s deeds, the Cordells filed the present action seeking, as relevant here, a declaratory judgment that the Treasurer’s deeds are void, which the trial court granted.

On appeal, Klingsheim contended that the trial court erred in concluding that the Treasurer had failed to undertake diligent inquiry in attempting to determine Carl’s and Wanda’s residences. The Treasurer sent the notices, by certified mail, to 705 N. Vine, Farmington, New Mexico, which was the address listed for them in the county tax rolls. The return receipts from the mailings, however, indicated that the notices were not delivered to plaintiffs, nor were they delivered to 705 N. Vine. Rather, the receipts indicated that the notices were delivered to Cleo Cordell at 703 N. Vine, and the box for “agent” on the return receipts had not been checked. Despite this discrepancy, the Treasurer conducted no further inquiry to determine whether 705 N. Vine was indeed plaintiffs’ residence.

Such inaction after learning that the notices were not delivered either to plaintiffs or to a person claiming to be their agent does not constitute “diligent inquiry” in attempting to determine their residences. Because a treasurer’s “full compliance” with the requirements of CRS §39-11-128 is jurisdictional, the trial court properly set aside the deeds as void.

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

Colorado Court of Appeals: Identification of Drugs On Website Insufficient as Proof Under CRE 803(17)

The Colorado Court of Appeals issued its opinion in People v. Hard on Thursday, October 9, 2014.

Hearsay Testimony—CRE 803(17)—Illegal Sentence.

State Trooper Blake Hancey pulled over defendant’s car after seeing that defendant was speeding and not wearing a seat belt. Incident to the arrest, Trooper Hancey searched defendant and found ten pills in her pants pockets. A jury found defendant guilty of possession of a schedule II controlled substance (oxycodone), possession of a schedule III controlled substance (alprazolam), failure to present proof of insurance, and speeding.

On appeal, defendant contended that the district court erred by admitting hearsay testimony about information Trooper Hancey obtained from Drugs.com. Before taking defendant to the police station, Hancey accessed the website Drugs.com to identify the pills found on defendant. Information from Drugs.com does not meet the requisite criteria of necessity and reliability to be admissible under CRE 803(17). Another available and more reliable method for identifying the pills would have been to submit them to the Colorado Bureau of Investigation for chemical testing, which was not done in this case. The district court therefore erred in admitting the hearsay evidence obtained from that website.

Because Drugs.com was insufficient to prove identity of some of the pills as oxycodone beyond a reasonable doubt and there was no other evidence to identify these pills, the conviction for possession of a schedule II controlled substance was vacated and the People cannot retry defendant on that charge. However, because defendant told Hancey that she had taken Xanax (alprazolam) earlier that day and that she had prescriptions for the pills he had found in her pockets, a rational fact-finder could have found beyond a reasonable doubt that defendant possessed alprazolam. Therefore, defendant was subject to retrial on the charge for possession of that substance.

On cross-appeal, the People contended that the district court imposed an illegal sentence by suspending half of the mandatory minimum fine for defendant’s conviction for failure to present proof of insurance. The sentencing statute permits a court to suspend half of the $500 mandatory minimum fine for failure to present proof of insurance if the defendant shows that he or she has obtained insurance. Here, at the sentencing hearing, defendant told the court that her car had been auctioned off and that she was no longer driving. Nothing in the plain language of the statute provides an exception where a defendant represents that she has relinquished ownership of her car or is not currently driving. The sentence was therefore illegal.

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

Colorado Court of Appeals: Trial Court Impermissibly Usurped Jury’s Role in Finding Facts

The Colorado Court of Appeals issued its opinion in People v. Jaso on Thursday, October 9, 2014.

Civil Protection Order—Domestic Violence—Sixth Amendment—Habitual Offender—Jury.

A.K. received a civil protection order against defendant after he attacked her while she was holding her infant son. The orderprevented defendant from contacting A.K. directly or through a third person except by use of text message. After defendant sent A.K. a letter addressed to their minor son through a fellow inmate at the county jail where he was in custody, he was charged with violation of the protection order, a class 1 misdemeanor, and a habitual domestic violence offender sentence enhancer (HDVO statute), a class 5 felony.

The jury convicted defendant of the charged misdemeanor. Thereafter, the court held a trial on the habitual charge. First, the court determined that the violation of the protection order was an act of domestic violence. Second, the court concluded that the prosecution had proved that defendant had previously been convicted three times of domestic-violence-related crimes. Pursuant to the HDVO statute, the trial court convicted defendant of a class 5 felony and sentenced him to thirty months in the custody of the Department of Corrections.

On appeal, defendant argued that the trial court violated his Sixth Amendment right to a jury trial. “The Sixth and Fourteenth Amendments to the United States Constitution require that any fact that increases the penalty for a crime beyond the statutory maximum, except the fact of a prior conviction, must be submitted to a jury and proven beyond a reasonable doubt.” Here, because the trial court and not the jury found the facts necessary to sentence defendant as a habitual offender, it violated his Sixth Amendment rights. Accordingly, the judgment of conviction was reversed and the case was remanded to the trial court for entry of judgment of conviction and resentencing on a class 1 extraordinary risk misdemeanor.

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

Colorado Court of Appeals: Prejudicial Effect of Other Bad Act Evidence Outweighed Possible Relevance

The Colorado Court of Appeals issued its opinion in People v. Brown on Thursday, October 9, 2014.

Stalking—Surveillance—Other Acts Evidence—Expert.

Defendant asked a woman he knew to “house sit” his apartment for six months while he worked in South Korea. Before he left, and without the house sitter’s knowledge, defendant set up motion-sensitive video cameras in the apartment’s bedroom and living room. The house sitter discovered the cameras about twelve days after she moved in. Some of the recordings showed the house sitter having sex with her boyfriend. A jury convicted defendant of two counts each of stalking, invasion of privacy, and unlawful sexual contact.

On appeal, defendant contended that the trial court abused its discretion when it “admitted other act evidence of an unrelated sexual encounter involving another individual.” The prosecution’s offer of proof alleged that a woman who had rented a room to defendant awoke one night to find him crouched near her bed, wearing only his underwear, and masturbating while watching her. The woman’s trial testimony was significantly different from the prosecution’s offer of proof. At trial, she stated that she awoke because defendant had touched her “underneath the covers in [her] crotch.”The woman’s description at trial was qualitatively different, more severe, and more inflammatory than the evidence concerning the charged offenses. Therefore, her testimony was inadmissible pursuant to CRE 403 and the trial court erred by admitting such evidence. Because there was a reasonable probability that the error contributed to defendant’s convictions by substantially influencing the verdict or impairing the trial’s fairness, the convictions were reversed and the case was remanded for a new trial.

Defendant also contended that the trial court abused its discretion when it excluded the psychologist’s testimony concerning the charge of unlawful sexual contact. Defendant sought to admit testimony by a psychologist who performed a sex-offense-specific evaluation of defendant. The psychologist’s report found that (1) defendant had a sexual interest consistent with the interests of the general adult male population of the United States, and (2) defendant’s interest in voyeurism was not significant enough to classify him as abnormal. Because the evidence was relevant to the charge of unlawful sexual contact, the court abused its discretion in excluding such testimony. The trial court should allow defendant to present such evidence on retrial.

Defendant further argued that the evidence was insufficient to support his convictions for stalking. Defendant’s use of the cameras constituted surveillance, which supported the stalking charge.

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

Colorado Court of Appeals: Merely Identifying Group to Which Excluded Juror Belonged Not Enough for Batson Challenge

The Colorado Court of Appeals issued its opinion in People v. Morales on Thursday, October 9, 2014.

Sexual Assault—Jury Selection—BatsonChallenge—Penetration—Evidence—Double Jeopardy.

The evidence presented at trial showed that, on the night of the charged assault, the victim, 16-year-old B.R., attended a party at the apartment of an acquaintance. B.R. became intoxicated and eventually fell asleep in a bedroom. B.R. woke up with Morales, A.R.’s step-father, kissing her, touching her, and placing his penis on her. Someone turned on the lights in the room when B.R. began screaming at Morales and alleging that he had tried to rape her. A jury convicted him of multiple charges of sexual assault.

On appeal, Morales first sought a limited remand for the trial court to make a better record on the third step of his Batson challenge [Batson v. Kentucky, 476 U.S. 79 (1986)]. Merely identifying cognizable groups to which the excluded juror might have belonged is insufficient, without more, to establish a prima facie showing of purposeful discrimination. Here, a remand was unnecessary, because the court properly determined that Morales failed to make a prima facieshowing of discrimination at step 1 of the Batson analysis.

Morales also contended that the evidence was not sufficient to prove that he committed the crime of sexual assault because there was no sexual penetration. Sexual assault in violation of CRS §18-3-402 requires the knowing infliction of either sexual intrusion or sexual penetration on a victim. Here, the prosecution presented evidence that Morales performed cunnilingus on B.R. The evidence was therefore sufficient to support Morales’s convictions for sexual assault, and the jury was properly instructed as to these definitions.

Morales further argued that one of his convictions must be vacated to comport with the prohibition against double jeopardy. Specifically, he claims that he should not stand convicted and sentenced for both the felony sexual assault and attempted felony sexual assault because the actions underlying both convictions constitute a single crime. All of the sexual conduct Morales inflicted on B.R. occurred within five minutes or less, with no break in between the different sexual acts. There was no evidence of intervening events. Because Morales’s separate convictions for felony sexual assault and attempted felony sexual assault violated double jeopardy principles, the Court of Appeals remanded the case to merge the charges into a single conviction.

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