June 28, 2017

Colorado Court of Appeals: Multiple Errors from Prosecutorial Overreach Did Not Influence Outcome of Trial

The Colorado Court of Appeals issued its opinion in People v. Howard-Walker on Thursday, June 15, 2017.

Batson Challenges—Peremptory Strikes—Jurors—Testimony—Expert Opinion—Lay Witness—Prosecutorial Misconduct—Jury Instructions—Cumulative Error Doctrine.

Defendant was charged with first degree burglary and conspiracy to commit first degree burglary. Among other evidence presented, his girlfriend and Detective Garcia testified at his trial. He was convicted as charged and sentenced.

On appeal, defendant contended that the trial court erred when it denied his challenges, under Batson v. Kentucky, to the prosecutor’s peremptory strikes excusing three prospective jurors—one who identified himself as African-American and two who identified themselves as Hispanic—asserting that the prosecutor’s “race-neutral” reasons for removing the jurors were not worthy of belief. One challenged juror was disinterested, the second juror had a negative experience with law enforcement and a belief that police officers sometimes misidentify suspects, and the third juror had previously faced criminal charges from the same district attorney’s office and had a negative view of law enforcement. Therefore, the trial court’s Batson findings are supported by the record.

Defendant next argued that the admission of several portions of Garcia’s testimony constituted reversible error: (1) Garcia was not admitted as an expert witness, but gave opinions regarding whether the gun depicted in the video surveillance was real. Although this was improper, it did not constitute plain error. (2) Garcia testified about the manner in which the gun was being used. Any error in admitting this testimony was harmless. (3) It was not error for Garcia to identify defendant. No specialized knowledge is necessary to recognize an individual in a video and this evidence was probative of a material fact. (4) Garcia testified regarding probable cause, which was not relevant; however, this was not plain error. (5) Garcia testified but had no personal information about the reasons why defendant’s girlfriend was crying during the police interview. This testimony was not obviously improper and did not undermine the fairness of the trial. (6) Garcia opined about defendant’s statement regarding another perpetrator. Even if this was improper, it did not undermine the fundamental fairness of the trial. (7) Garcia opined about the truthfulness of defendant’s statements to police. Though this testimony was improper, it does not rise to the level of plain error because there was other sufficient evidence to support his conviction.

Defendant next asserted that the prosecutor engaged in reversible misconduct. Although the prosecutor stepped over the line when he repeatedly suggested that the girlfriend was committing perjury, the prosecutor did not threaten or coerce her, and any misconduct was not reversible. The prosecutor also commented on the girlfriend’s truthfulness. The evidence supported a reasonable inference that her testimony was false, and thus these comments were proper. Finally, although the court did not condone the prosecutor’s comment on defendant’s decision not to testify, the comment did not amount to plain error.

Defendant further argued that the trial court erred when it failed to instruct the jury on the predicate crime of theft and when it failed to define the word “intent.” While the jury instructions were deficient, (1) the record demonstrates that the specification of the underlying crime was not a controverted element of the burglary offense; therefore, the court’s failure to instruct the jury on theft was not plain error, and (2) under the circumstances of this case, the court’s failure to define the culpable mental state similarly did not constitute plain error.

Finally, defendant argued that the cumulative effect of the trial court’s errors and prosecutorial misconduct violated his right to a fair trial. The errors were relatively small events occurring over a two-day trial during which substantial evidence was presented. Defendant received a fair trial in spite of the identified errors.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Attempts to Tamper with Witness Need Not Actually be Communicated to Victim

The Colorado Court of Appeals issued its opinion in People v. Brooks on Thursday, June 15, 2017.

Assault—Witness Tampering—Evidence—Attempt—Judicial Notice—Plea of Guilty—Grossly Disproportionate.

Brooks discovered that his girlfriend (the victim) was pregnant with another man’s child, and then argued with and assaulted her. While in jail, Brooks repeatedly telephoned the victim and others in an attempt to persuade them either to not testify against him on the domestic violence charge or to give false testimony. He also wrote letters to the victim to persuade her either to not testify or to testify falsely on his behalf. These letters were intercepted by a jail officer, and as a result, the victim did not receive them. Brooks was convicted of two counts of assault in the third degree against the victim, two counts of assault in the second degree against a peace officer, resisting arrest, violation of a protective order, and two counts of tampering with a witness or victim. The second tampering count was based on the letters. The court adjudicated Brooks a habitual criminal and imposed a mandatory 24-year sentence. Brooks requested and received an abbreviated proportionality review of the mandatory sentence. After that hearing the district court concluded that Brooks’s sentence was not disproportionate and denied him an extended proportionality review.

On appeal, Brooks argued that there was insufficient evidence to convict him of the second count of tampering with a witness or victim based on the letters because the victim never received them. The tampering with a witness or victim statute does not require that the “attempt” to tamper actually be communicated to the victim or witness. Therefore, the evidence was sufficient to convict Brooks on this charge.

Brooks also argued that the district court abused its discretion in taking judicial notice of the complete case files of his prior felony convictions and that without such improper judicial notice, there was insufficient evidence to support the habitual criminal adjudication. The registers of actions relevant to this case showed that Brooks’s two prior felony convictions were for distinct criminal offenses that occurred months apart. Thus, sufficient evidence supported his habitual criminal conviction.

Brooks further argued that his plea of guilty to felony theft from a person was constitutionally invalid and thus could not support his habitual criminal conviction. Brooks’s plea to theft was constitutionally valid because he entered it voluntarily and knowingly. The district court did not err in finding that it was a valid prior felony conviction under the habitual criminal statute.

Finally, Brooks argued that the district court erred in concluding that his sentence was not grossly disproportionate to his crimes and in not granting him an extended proportionality review. Tampering with a witness or victim is not a per se “grave or serious” offense. However, the facts underlying these crimes were grave or serious. The prosecution identified at least 250 phone conversations in which Brooks attempted to tamper with a witness or victim. Brooks continued tampering with the victim after the prosecution charged him with the first count of tampering and his phone privileges were discontinued. His conduct demonstrated a blatant disregard for the law and thus constituted a grave or serious offense. The Court of Appeals considered all of the convictions and the underlying circumstances as a whole and concluded that Brooks’s mandatory sentence was not grossly disproportionate.

The judgment and sentence were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 6/22/2017

On Thursday, June 22, 2017, the Colorado Court of Appeals issued no published opinion and 23 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: Announcement Sheet, 6/15/2017

On Thursday, June 15, 2017, the Colorado Court of Appeals issued seven published opinions and 37 unpublished opinions.

People v. Brooks

People v. Howard-Walker

People in Interest of L.C.

Board of County Commissioners of County of Weld v. DPG Farms

Rome v. Reyes

Scott R. Larson, P.C. v. Grinnan

Development Recovery Co., LLC v. Public Service Co. of Colorado

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.

Colorado Court of Appeals: Aggravated Incest Statute Constitutional As Applied to Stepchildren of Common Law Marriages

The Colorado Court of Appeals issued its opinion in People v. Perez-Rodriguez on Thursday, June 1, 2017.

Sexual Assault—Minor—Aggravated Incest Statute—Common Law Marriage—Stepchildren—Unconstitutionally Vague as Applied—Jury Instruction—Mens Rea—Prosecutorial Misconduct—Due Process—Admission—Involuntary.

Defendant and A.S. lived together, and though they were never formally married, they publicly referred to each other as husband and wife. J.H-S. was one of A.S.’s children from a previous marriage, and while defendant never formally adopted her, they referred to each other as father and daughter. When J.H-S. was 15 years old, defendant forced her to have sexual intercourse with him on two separate occasions and impregnated her. When defendant was taken into custody, a detective questioned him for about 40 minutes. He was advised of his Miranda rights and signed a waiver. Defendant initially denied having had sexual intercourse with J.H.-S., but after about 15 more minutes, he confessed. Defendant was convicted of two counts each of aggravated incest, sexual assault on a child by one in a position of trust as a pattern of conduct, and sexual assault with the actor 10 years older than the victim.

On appeal, defendant first contended that the aggravated incest statute is unconstitutionally vague as applied to stepchildren of common law marriages. However, there is sufficient guidance through statute, case law, and the plain meaning of “stepchild” that a person in a common law marriage has sufficient notice as to the prohibited conduct of aggravated incest.

Defendant next contended that the trial court’s elemental instruction on aggravated incest failed to properly instruct the jury on the scope of the mens rea required to sustain a conviction. Specifically, defendant claimed that the way the jury instruction was written, the “knowingly” mens rea applied only to his act of subjecting J.H-S. to sexual penetration or sexual intrusion, and not to whether he knew she was his stepchild. Regardless of whether the instruction was erroneous, however, the evidence that defendant knew J.H-S. was his stepdaughter was overwhelming. Therefore, any error was not plain error.

Defendant then argued that the prosecution misstated the law on common law marriage during rebuttal closing argument, thereby committing reversible misconduct. The court’s instruction properly defined common law marriage and cohabitation. Although the prosecutor’s simple reference to “cohabitation,” viewed in isolation, may have misstated the law, when viewed in context as rebuttal to defendant’s arguments, there was no plain error.

Finally, defendant asserted that his confession was involuntary and that its admission violated his state and federal due process rights. Based on the totality of the circumstances, defendant’s admission was voluntary and the trial court did not err in admitting it into evidence.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Evidence Insufficient to Prove Photographs were “Erotic Nudity” and “Sexually Exploitative Material”

The Colorado Court of Appeals issued its opinion in People v. Henley on Thursday, June 1, 2017.

Sexual Exploitation of a Child—Erotic Nudity—Objective Standard.

A detective searched defendant’s computer and found over 90 images that he thought were sexually exploitative. The charged images that were introduced into evidence  show fully or partially naked children (sometimes accompanied by adults) talking, walking, and standing outside, posing in costumes, or participating in activities like body painting and games. The prosecution was also allowed to introduce uncharged images as relevant to show context. A jury found defendant guilty of 22 counts of sexual exploitation of a child (possession of materials) and one count of sexual exploitation of a child (possession of more than 20 items).

On appeal, defendant contended that his convictions should be vacated because there was insufficient evidence that the charged images are “sexually exploitative” as required to support a conviction under C.R.S. § 18-6-403(3) because they weren’t “erotic nudity.” Under C.R.S. § 18-6-403(3)(b.5), a person commits sexual exploitation of a child if he knowingly possesses or controls sexually exploitative material. “Sexually exploitative material” is any photograph depicting a child engaged or participating in, observing, or being used for explicit sexual conduct. Explicit sexual conduct includes, as relevant in this case, “erotic nudity.” The People conceded that the charged images don’t depict “erotic nudity” if viewed objectively. When viewed objectively, images that are not “erotic nudity” don’t become so merely because a particular person—one not involved in the creation or distribution of the images—looks at them for the purpose of personal sexual gratification. Therefore, evidence that defendant viewed the charged images for sexual gratification was insufficient to support defendant’s convictions.

The judgment was vacated.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Law of the Case Doctrine Does Not Prohibit Officer from Requesting Warrant for Previously Illegally Obtained Evidence

The Colorado Court of Appeals issued its opinion in People v. George on Thursday, June 1, 2017.

Sexual Contact—Minor—Search—Suppression—Warrant—Independent Source Doctrine—Law of the Case Doctrine—Joinder—CRE 404(b)—C.R.S. § 16-10-301(3).

George was arrested on charges related to sexual encounters with underage girls A.R. and G.D. Following George’s arrest and inability to post bond, he was evicted from his apartment. The landlord had George’s car towed from the premises to an impound lot. The lead investigator obtained the towing company’s consent to search the car and instead of seeking a warrant, obtained the company’s consent to examine the GPS device in the vehicle. Data obtained from a forensic examination of the GPS device showed that George’s movements were generally consistent with the victims’ testimony about their meetings with him. George moved to suppress, challenging the car search and the examination of the GPS device. The court suppressed evidence obtained from examination of the device. Rather than appealing the suppression order, the prosecution directed the investigator to seek a search warrant for the GPS device from a different magistrate. When applying for the warrant, the investigator did not specifically refer to data obtained from examination of the GPS device nor disclose the suppression ruling. The warrant was issued and the GPS device was reexamined. George again moved to suppress. The court denied the motion to suppress based on the independent source doctrine. The court found that that the decision to seek the warrant had not been based on the fruits of the initial unlawful search and information from the search had not been presented to the magistrate as a basis for seeking the warrant. A jury convicted George of multiple offenses arising from his sexual contact with two young girls.

On appeal, the Attorney General argued that the data obtained from the initial warrantless search of George’s GPS device in his vehicle should not have been suppressed because the search was conducted in good faith. Because the Attorney General did not challenge the trial court’s consent ruling based on a question of law, the validity of the initial search was not properly before the court of appeals.

George argued on appeal that the trial court should have suppressed data obtained from the second examination of the GPS device because the first suppression order was the law of the case and an unchallenged order that applied the exclusionary rule. Here, had the towing company not asserted ownership of the GPS device and given its consent to examination, the investigator would have sought a warrant to search the device. Therefore, the investigator did not later seek a warrant based on the fruits of the warrantless search. Additionally, the investigator did not specifically refer to any data obtained from examination of the GPS device in the warrant application. Thus, the warrant at issue in the second suppression hearing raised a different issue—independent source—that was not and could not have been raised at the first suppression hearing, and the law of the case doctrine does not apply.

George also argued that the trial court erred in joining the cases involving A.R. and G.D. over his objection. Here, evidence related to A.R. and G.D. was sufficiently similar to establish a common plan or scheme under CRE 404(b) and C.R.S. § 16-10-301(3). Therefore, evidence from each case would be admissible in the other. Because George did not show prejudice, the trial court properly joined the trials involving A.R. and G.D.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 6/1/2017

On Thursday, June 1, 2017, the Colorado Court of Appeals issued five published opinions and 25 unpublished opinions.

People v. George

People v. Henley

People v. Perez-Rodriguez

Galindo v. Valley View Association

Hutchinson v. Industrial Claim Appeals Office

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.

Colorado Court of Appeals: Forbearance Fees and Interest Charges on Loan Were Not Usurious

The Colorado Court of Appeals issued its opinion in Blooming Terrace No. 1, LLC v. KH Blake Street, LLC on Thursday, May 18, 2017.

Usury—Motion to Dismiss—Attorney Fees.

KH Blake Street, LLC and Kresher Holdings, LLC (collectively, lender) loaned Blooming Terrace No. 1 LLC (borrower) $11 million for an origination fee of $220,000. The loan was secured by a deed of trust and memorialized by a promissory note (note) that contained an accrual interest rate of 11% per annum, a default interest rate of 21% per annum, a 5% late charge on any late monthly payments, and an $110,000 exit fee. The note required monthly interest payments calculated at the rate of 8% per annum, with none of the monthly payments being applied to the principal.

Borrower defaulted. The parties executed a forbearance agreement whereby lender agreed to forbear from foreclosing on the deed of trust in exchange for a $110,000 forbearance fee plus continued accrual of default interest, late charges, and certain additional fees. At that time, the amount of all outstanding charges was $778,583.33. The loan was not paid when due, and the forbearance agreement was amended for $220,000. Borrower then paid off the loan, including all outstanding interest, fees, and costs.

Borrower sued lender, claiming that the fees, interest, costs, and expenses exceeded the 45% per annum interest allowable under Colorado’s usury law. Lender moved to dismiss under C.R.C.P. 12(b)(5), arguing the loan fees did not constitute interest above the maximum allowable rate. The district court agreed, concluding that the effective rate of interest was 12.924% based on the total amount of interest charged during the life of the loan. The complaint was dismissed. Lender sought attorney fees pursuant to the note, and the district court awarded attorney fees in the amount of $15,407.20 to lender.

On appeal, borrower argued that the court of appeals should annualize the forbearance charges. The district court had measured the interest charged on a purely per annum rate based on the entire amount of interest charges over the life of the loan. The court concluded that borrower’s computation would not accurately reflect the rate of interest actually charged. Although it found the district court overlooked some charges, the court agreed with the district court’s computation approach and calculated an interest rate of 17.60%. The court concluded that the interest charges were not usurious and the complaint failed to state a claim for which relief could be granted

Borrower then argued it was error to grant attorney fees, asserting that because the forbearance agreements were not loan documents, the litigation regarding those agreements was not related to any loan document. The note provided for attorney fees incurred in any litigation related to any “Loan Document.” This litigation concerned the interest charged by lender under both the note and the forbearance agreements. Therefore attorney fees were properly awarded.

Borrower further contended that the district court abused its discretion in calculating the fees awardable to lender. The court rejected this contention.

The judgment was affirmed and the case was remanded for determination of the amount of reasonable appellate attorney fees to be awarded to lender.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: CGIA Does Not Apply to Claims by Metropolitan District Against Developers

The Colorado Court of Appeals issued its opinion in Tallman Gulch Metropolitan District v. Natureview Development, LLC on Thursday, May 18, 2017.

Colorado Governmental Immunity Act—Public Employee Immunity for Torts.

Richardson owned Natureview Development, LLC (Natureview) and platted and developed Tallman Gulch, a real estate development. In 2006, the Tallman Gulch Metropolitan District (the District) was formed to provide public improvements and services to its residents and taxpayers. Richardson was president of the District’s Board of Directors (Board). Tallman Gulch went into foreclosure, and despite being aware of the foreclosure proceedings, Richardson, acting as president of the District’s Board, signed off on the issuance of $4,214,000 in bonds to Natureview in exchange for the then-existing infrastructure improvements in Tallman Gulch. Ten days after the bonds were issued, the district court authorized the public trustee sale of Tallman Gulch, which was sold in 2011.

The District filed various claims against Natureview and Richardson, alleging it suffered an injury when it issued over $4 million in bonds to Natureview and Richardson, despite Tallman Gulch’s foreclosure status. The District argued that Richardson breached his fiduciary duty to the District as a Board member by approving issuance of bonds in a financially reckless manner and in bad faith, failing to disclose and consider the development’s financial and foreclosure status in making the bonds decision. Defendants moved to dismiss on various grounds. As relevant here, defendants argued that the court lacked subject matter jurisdiction over the claims against Richardson under CRCP 12(b)(1), asserting that the claims were based on Richardson’s actions as an officer of the District and were thus barred by the Colorado Governmental Immunity Act (CGIA). The court denied the motion to dismiss.

On appeal, defendants argued it was error to conclude the CGIA did not apply to the District’s claims against Richardson. Richardson argued that as a public employee he was immune under the CGIA with regard to the District’s tort claims against him. Here, the District, the public entity that employed Richardson, sued him for his malfeasance while in its employ. The plain language of the statute is unambiguous as to the immunity of the entity or employee when called upon to defend against tort claims, but it is silent as to suits brought by a public entity plaintiff. The CGIA clearly states that its purpose is to limit the liability of public entities in defending against tort claims, and thus to lessen the burden on taxpayers who provide funding for public entities. To prevent the District from recovering its loss by allowing Richardson to claim immunity as a public employee does not effectuate the purposes of the CGIA. The Court of Appeals concluded that the district court correctly concluded that the CGIA did not on its face apply to the District’s claims against Richardson.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Foster Parents Allowed to Intervene to Appeal Non-termination of Mother’s Parental Rights

The Colorado Court of Appeals issued its opinion in People in Interest of C.W.B. on Thursday, May 18, 2017.

Dependency and NeglectTreatment Plan—Guardian ad Litem—Termination of Parental Rights.

A petition in dependency and neglect was filed for C.W.B., Jr., and the child was placed with foster parents (intervenors). Father’s parental rights were terminated. After a hearing, the court denied the motion to terminate mother’s parental rights over the guardian ad litem’s objection.

On appeal, the intervenors first contended that the trial court abused its discretion by failing to give primary consideration to the physical, mental, and emotional conditions and needs of the child when denying the motion to terminate mother’s parental rights. Colorado law requires that the child’s needs and the parent’s ability to meet the child’s needs be considered together. Here, although there were concerns about mother’s ability to parent the child, the trial court concluded that mother’s treatment plan was appropriate, and she had substantially complied with it. Additionally, the court found that the evidence showed that mother would provide nurturing and protection adequate to meet the child’s physical, emotional, and mental health needs. The court properly assessed the child’s needs and the parent’s ability to meet the child’s needs and applied the correct legal standard in denying the motion to terminate mother’s parental rights.

Intervenors also contended that the court erred in refusing to require the Montezuma County Department of Social Services to comply with the expedited procedures under C.R.S. § 19-3-703. The trial court’s findings were adequate to show that there was good cause to delay permanency in this case.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: District Court Erred in Concluding Injured Worker Not Entitled to UIM Benefits from Personal Insurer

The Colorado Court of Appeals issued its opinion in American Family Mutual Insurance Co. v. Ashour on Thursday, May 18, 2017.

Personal InjuriesWorkers Compensation ActPersonal Automobile Insurance PolicyUninsured Motorist Benefits—Underinsured Motorist Benefits.

Ashour was an employee and co-owner of Nubilt Restoration & Construction (Nubilt). While employed with Nubilt, Ashour was severely injured when he was pinned by a 30-foot truck to a nearby tractor-trailer. The accident was caused by the negligence of his co-employee Peake, who failed to set the airbrake on the truck that rolled backward and pinned Ashour to the other vehicle. After the accident, Ashour submitted a claim to Nubilt’s workers’ compensation carrier and subsequently received benefits. He also submitted a claim to Nubilt’s corporate liability insurance provider and received a settlement for that claim based on a policy rider that allowed for coverage of workplace injuries. Ashour then made a claim under his personal automobile insurance policy with American Family Mutual Insurance Company (AFI) for underinsured (UIM) benefits to recover the remainder of his alleged damages. AFI then filed an action for declaratory relief as to whether Ashour was owed UIM coverage when the policy limited UIM benefits to situations where the insured was “legally entitled to recover” from the owner or operator of an uninsured or underinsured motor vehicle. The district court denied Ashour’s motion for summary judgment and granted AFI’s motion for summary judgment.

On appeal, Ashour contended that the district court erred by ruling, as a matter of law, that his claim for UIM coverage under his automobile insurance policy with AFI was precluded because he was not legally entitled to sue his employer or co-employee in tort for his injuries based on their immunity under the Workers’ Compensation Act of Colorado (the Act). Nubilt and its workers’ compensation insurance carrier are immune from suit by Ashour for his injuries sustained in the course and scope of his employment. By extension, co-employees are also immune from suit for injuries to a fellow employee arising out of the scope of employment. However, this exclusive remedy is limited to suits by an injured employee against his employer or co-employee; an injured employee may receive workers’ compensation benefits and bring suit against a third-party tortfeasor. Here, AFI’s uninsured motorist/underinsured motorist (UM/UIM) policy provides coverage where the tortfeasor is underinsured. Underinsured tortfeasors are those who are covered by insurance at the time of the accident. Thus, Nubilt and Peake are effectively underinsured in that Ashour received benefits up to Nubilt’s workers’ compensation insurance limits but still has additional damages from his workplace injury. It is the exhaustion of Nubilt’s and Peake’s limits of liability coverage (i.e., workers’ compensation insurance) that triggers AFI’s obligation to pay UM/UIM benefits. Therefore, Ashour’s claim for UIM benefits under his policy with AFI is not barred by the exclusivity provisions of the Act or by the “legally entitled to recover” language of the policy.

The judgment was reversed and the case was remanded with directions to enter summary judgment in favor of Ashour, declaring, as a matter of law, that AFI must provide coverage of UM/UIM benefits to Ashour upon his proof that Peake was at fault for causing his injuries and of the extent of his damages in excess of the coverage offered him under the Act.

Summary provided courtesy of The Colorado Lawyer.