February 11, 2016

Colorado Court of Appeals: Announcement Sheet, 12/31/2015

On Thursday, December 31, 2015, the Colorado Court of Appeals issued six published opinions and thirteen unpublished opinions.

People v. Bohn

Johnson v. VCG Restaurants Denver, Inc.

Williams v. Department of Public Safety

Makeen v. Hailey

A Child’s Touch v. Industrial Claim Appeals Office

Legro v. Robinson

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Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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, 12/24/2015

On Thursday, December 24, 2015, the Colorado Court of Appeals issued no published opinion and 32 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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: Ample Evidence in Record Supported Trial Court’s Findings of No Easement

The Colorado Court of Appeals issued its opinion in Gold Hill Development Co., L.P. v. TSG Ski & Golf, LLC on Thursday, December 22, 2015.

R.S. 2477—Easement Claims—Public Prescriptive Easement

Plaintiff (GHDC) owned several mining lode properties in the vicinity of various properties owned by defendants (collectively, TSG). GHDC alleged that access to its mining properties was historically made by means of the Gold Hill Road (route), which traverses a portion of TSG’s properties. GHDC claimed the right to use and maintain the route where it crossed over TSG’s mining lode properties.

GHDC brought claims against TSG, including express easement, implied easement, implied easement by prior use, way of necessity, public road pursuant to R.S. 2477, and public road pursuant to CRS §§ 43-2-201(1) and 43-1-202. San Miguel County (SMC) was added as a party and defended against some of the claims regarding a public highway.

Following a bench trial, the court granted TSG’s motion for a directed verdict as to GHDC’s express easement claim and dismissed all of GHDC’s other claims. The court also granted SMC’s R.S. 2477 counterclaims for a public road as to a portion of the road and a public prescriptive easement as to another portion of the road. On appeal, GHDC contended that the trial court erred in imposing additional requirements not supported by Colorado law for its R.S. 2477 claim across the TSG properties.

GHDC argued that the trial court erred in concluding that GHDC failed to show the public was using the route. However, the Court of Appeals found ample evidence in the record to support the court’s finding and perceived no error.

GHDC argued that the trial court was inconsistent because at times it credited the absence of certain trails to deny public use, while at other times it failed to acknowledge the absence of other trails on surveys and maps presented at trial. The trial court’s findings were based on maps and mineral surveys, as well as on extensive testimony regarding the use and nonuse of the various routes. Because there was support in the record for the trial court’s findings, the Court perceived no error.

GHDC contended that the trial court erred in finding a public prescriptive easement across GHDC’s properties. CRS § 43-2-201(1)(c) requires showing (1) a “claim of right,” (2) public use adverse to the landowner’s interest, (3) such use continued for 20 years, and (4) actual or implied knowledge of the public use by the landowner and no objection to such use. Again, the Court found ample support for the trial court’s findings in the record.

GHDC argued that trial court erred in failing to find a public highway across TSG’s property under CRS §§ 43-2-201(1)(e) and 43-1-202. The Court agreed with the trial court that GHDC had essentially the same burden of proof as for its RS 2477 claim and for the same reasons (lack of public use on the route before the relevant removal dates) it failed to meet its burden.

GHDC argued that it was error to dismiss its express easement claim for failing to demonstrate the intent to convey an express easement. The Court found no error in the trial court’s interpretation of the unambiguous language in the patents.

GHDC argued that the trial court had effectively created USFS trails. The Court disagreed. The finding that these were public roads granted no rights in them to the USFS. The judgment and order were affirmed.

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

Colorado Court of Appeals: Arrest in California Not Enough to Show Defendant Procured Prosecution There

The Colorado Court of Appeals issued its opinion in People v. Giem on Thursday, December 19, 2015.

Double Jeopardy Clause—Out-of-State prosecution—Aggravated Motor Vehicle Theft.

Giem approaching the victim in a parking lot in Jefferson County, pointed a gun at him, demanded his car keys, and took his car. The car was equipped with an antitheft transmitter. The next day, law enforcement officials in California found Giem driving the victim’s car. In February 2012, Giem pleaded guilty to unlawful driving or taking of a vehicle and DUI in California. He was later prosecuted in Colorado for this same incident, and his motion to dismiss the charges based on the Double Jeopardy Clause and CRS § 18-1-303 were denied.

On appeal, Giem challenged only the court’s ruling on his motion to dismiss, arguing that the Double Jeopardy Clause and CRS § 18-1-303 barred his prosecution in Colorado. CRS § 18-1-304(1)(b), however, creates an exception that allows a prosecution to proceed even if § 18-1-303 would otherwise bar it if the former prosecution “[w]as procured by the defendant without the knowledge of the appropriate prosecuting official and with the intent to avoid the sentence that otherwise might be imposed.” Here, the court’s factual findings do not support its legal conclusion that Giem procured his California prosecution. Merely being present in California with a stolen car stops short of procuring a prosecution there. Therefore, the trial court incorrectly determined that CRS § 18-1-304(1)(b) prevented Giem from taking advantage of § 18-1-303. Giem’s Colorado prosecutions for menacing, theft, and aggravated robbery, however, were not based on the same conduct that resulted in his conviction in California for unlawful driving or taking of a vehicle. Therefore, Giem’s prosecutions in Colorado for these crimes were not barred by his prior conviction in California for unlawful driving or taking of a vehicle. Conversely, Giem’s prosecution in Colorado for aggravated motor vehicle theft was based on the same conduct as the California conviction for unlawful taking of a vehicle, as both offenses were based on the taking and retention by Giem of the victim’s vehicle. Therefore, the People in Colorado were barred from prosecuting Giem for aggravated motor vehicle theft because it is not clear that the law of California and the law of Colorado for this crime were intended to prevent a substantially different harm or evil. The judgment was affirmed as to all counts except the count of aggravated motor vehicle theft, which was reversed.

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

Colorado Court of Appeals: One-on-One “Show Up” Identification In Court Not Definitively Error

The Colorado Court of Appeals issued its opinion in People v. Garner on Thursday, December 17, 2015.

Due Process—In-Court Identification—Prosecutorial Misconduct—Evidence—Prejudicial.

C.A.D. and his brothers R.A.D. and A.A.D. were celebrating C.A.D.’s birthday at a bar. Before the group left, R.A.D. went to the bathroom. On his way back from the bathroom, someone from defendant’s group pushed R.A.D. into a table. During the ensuing chaos, defendant fired a shot at R.A.D., grazing his wrist. Defendant then turned, shot, and injured both C.A.D. and A.A.D. Defendant was convicted of two counts of attempted reckless manslaughter, one count of first-degree assault, and one count of reckless second-degree assault.

On appeal, defendant contended that his right to due process and the requirements of various rules of evidence were violated when the court allowed the brothers to make impermissibly suggestive in-court identifications after failing to make a pretrial identification. While the inability of a witness to identify the defendant in a photographic lineup is relevant and certainly grist for cross-examination, it does not, as a matter of law, preclude the victim from making an identification upon seeing the defendant in court. Instead, the previous inability to identify goes to the weight of his identification testimony rather than to its admissibility. Therefore, the trial court did not err in admitting the evidence.

Defendant contended that numerous instances of prosecutorial misconduct violated his right to a fair trial. There was only one instance of prosecutorial misconduct, which occurred when the prosecutor improperly used the word “lie” when hypothecating about the veracity of the three brothers as witnesses during rebuttal closing argument. However, viewing the comments in context and in light of all of the evidence, the prosecutor’s single use of the word “lie” was not so flagrantly, glaringly, or tremendously improper as to rise to the level of plain error.

Defendant also argued that the trial court committed reversible error in admitting as evidence a report containing the data extracted from a cell phone found at the crime scene. The cell phone belonged to defendant’s friend, Velasquez, who was also present the evening of the shooting. The evidence included photos of defendant and Velasquez making hand gestures that could be interpreted as gang signs and text messages that were violent in nature. The photos and text messages on the phone, however, were not prejudicial enough to conclude that the trial court abused its discretion in admitting this evidence. The judgment was affirmed.

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

Colorado Court of Appeals: Defense Counsel Did Not Err by Refusing to Call Expert Witness who Agreed with Prosecution

The Colorado Court of Appeals issued its opinion in People v. Garner on Thursday, December 17, 2015.

First-Degree Murder—Ineffective Assistance of Counsel—Rebuttal Expert—Jury Instructions—Conflict of Interest.

Defendant was charged and found guilty of first-degree murder for stabbing a female friend to death when the two were most likely high on methamphetamine.

On appeal, defendant contended that the post-conviction court erred in denying his motion because the evidence at the post-conviction hearing established that his trial counsel was ineffective. Defense counsel was not ineffective for failing to call a rebuttal expert to testify regarding the cause of the victim’s death after defendant’s first expert changed her mind and agreed with the prosecution’s expert witnesses. Further, because the subject of hypothermia as a potential cause of death was not central to the case, defense counsel did not err in failing to call an expert on this issue. It was also reasonable for defense counsel to forgo calling a methamphetamine expert, who could cause more harm than good to defendant’s case, and to forego calling another inmate, Mr. K, when this witness had three felony convictions and two other inmates had already been used as impeachment witnesses to rebut the prosecution’s witness. It was also not a conflict of interest for defense counsel to represent defendant after previously having represented Mr. K, who was a potential witness for defendant.

Defendant also asserted that his attorney erred by not objecting to the jury instructions, which only contained a partial instruction regarding intoxication law. However, voluntary intoxication was not consistent with defendant’s theory of the case, which was that he did not kill the victim. Therefore, although defense counsel should have asked to include a complete instruction regarding intoxication law since the prosecution had introduced the instruction, it was not err in failing to do so given the theory of the case. In light of these considerations, the post-conviction court correctly determined that defendant had not shown an actual conflict of interest adversely affecting his counsel’s performance.

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

Colorado Court of Appeals: Two Previously Published Opinions Withdrawn and Consolidated

The Colorado Court of Appeals issued its modified opinion in Rogers v. Forest City Stapleton, Inc., which was published on November 19, 2015, and in Dickinson v. Lincoln Building Corp., which was also published on November 19, 2015. These opinions were modified to reflect that they were consolidated with their companion cases from November 19.

Colorado Court of Appeals: Announcement Sheet, 12/17/2015

On Thursday, December 17, 2015, the Colorado Court of Appeals issued six published opinions and 40 unpublished opinions.

People v. Jason Garner

People v. James Joseph Garner

People v. Giem

Rogers v. Forest City Stapleton

Dickinson v. Lincoln Building Corp.

Gold Hill Development, L.P. v. TSG Ski & Golf, LLC

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, 12/10/2015

On Thursday, December 10, 2015, the Colorado Court of Appeals issued no published opinion and 42 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: Harmless Error to Include Inconclusive DNA Test Results as Evidence

The Colorado Court of Appeals issued its opinion in People v. Marks on Thursday, December 3, 2015.

Robbery—Murder—DNA Evidence—Expert Testimony—Jury Instruction—Theory of Defense.

On January 25, 2011, two armed men forced their way into the home of S.W., a marijuana dealer, in search of money and marijuana. The robbery was interrupted by the arrival of S.W.’s husband and son. As S.W.’s husband struggled with the robber who was carrying a shotgun, the other robber fired his handgun. One of the bullets struck S.W. and killed her. Marks was charged with the crime.

On appeal, Marks contended that the trial court erred in admitting evidence of “inconclusive” and “no conclusion” DNA results without evidence of their statistical significance. The “inconclusive” DNA results were harmless because they were irrelevant and didn’t prove anything. However, the “no conclusion” testing result meant that it could be determine that a person was included as a possible contributor, but the “statistical weight” could not be provided for the result and, therefore, it did not reveal a conclusion. That left the jury with only half the necessary information: that Marks was included, or could not be excluded, as a possible contributor to the DNA on various items of evidence. Without the probability assessment, the probative value of the “no conclusion” results were substantially outweighed by the risk of unfair prejudice and misleading the jury. The district court therefore abused its discretion in admitting that evidence. Given the remaining evidence admitted at trial, however, the error was harmless.

Marks also contended that the trial court erred in refusing to give his tendered jury instruction regarding evidence that an alternate suspect, Rocha-Lovatos, committed the crime. Marks was only entitled to a theory of defense instruction, which he declined to submit. Therefore, the trial court did not err in refusing to give the tendered alternate suspect instruction.

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

Colorado Court of Appeals: Entry Into Motor Vehicle Contemplated by Motor Vehicle Theft Statute

The Colorado Court of Appeals issued its opinion in People v. Wentling on Thursday, December 3, 2015.

First-Degree Criminal Trespass—Evidence—Motor Vehicle Theft—CRS § 18-1-303(1)—Equal Protection—Presentence Confinement Credit.

Wentling was arrested in Utah after he was found asleep in a vehicle that had been reported as stolen in Colorado. Wentling was charged with multiple offenses in Colorado, including first-degree criminal trespass with intent to commit motor vehicle theft.

On appeal, Wentling contended that there was insufficient evidence to convict him of first-degree criminal trespass with intent to commit motor vehicle theft. However, the motor vehicle theft statute does not preclude prosecution under a general criminal statute, and the People had discretion to prosecute under either. Here, there was sufficient evidence that Wentling entered the motor vehicle with the intent to commit motor vehicle theft inside the vehicle, which was sufficient to prove first-degree criminal trespass with intent to commit motor vehicle theft.

In the alternative, Wentling contended that he was improperly prosecuted in Colorado in violation of CRS § 18-1-303 because he was previously convicted in Utah for the same conduct. Wentling’s prosecution under the Colorado statute was not barred by CRS § 18-1-303(1) because the law defining each offense was intended to prevent a substantially different harm or evil.

Wentling also contended that when the People charged him with first-degree criminal trespass with intent to commit motor vehicle theft rather than attempted motor vehicle theft, it violated his right to equal protection under the law because it subjected him to more severe punishment. Attempted motor vehicle theft and criminal trespass have different elements and, thus, it is permissible for the legislature to prescribe different penalties for similar conduct. Therefore, the trial court did not violate Wentling’s right to equal protection.

Wentling further contended that the trial court erred when it denied his request for 89 additional days of presentence confinement credit (PSCC). Wentling was entitled to PSCC from October 11, 2011, when he arrived in Moffat County Jail, until February 7, 2012, when he finished his Utah sentence, because this period of time resulted from the charges brought by the State of Colorado. The case was remanded to amend the mittimus to include the correct additional PSCC days.

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

Colorado Court of Appeals: “Sufficient Consequence” Language in Sexual Assault Statute Not Unconstitutionally Vague

The Colorado Court of Appeals issued its opinion in People v. Komar on Thursday, December 3, 2015.

Sexual Assault—Unconstitutionally Vague—Jury Instructions—Mens Rea—Prior Inconsistent Statements.

M.A., the victim, celebrated her 21st birthday with several others and later went to bed in a severely intoxicated state. M.A. testified that she awoke to find defendant engaging in sexual intercourse with her. She told him to stop, screamed for help, and defendant continued the assault until M.A.’s friends pulled defendant off of her. The jury found defendant guilty of sexual assault by causing the victim’s submission through means of sufficient consequence to overcome her will, a class 4 felony.

On appeal, defendant argued that the “sufficient consequence” language of the sexual assault statute, CRS § 18-3-402(1)(a), is unconstitutionally vague, both on its face and as applied to him. When the statute is read as a whole, a reasonable person is put on notice that a class 4 sexual assault is committed when causing submission by “means of sufficient consequence.” Further, the evidence supporting defendant’s conviction showed, at a minimum, that defendant continued to sexually penetrate M.A. after she explicitly and forcefully instructed him to stop. Imposing sexual penetration despite clear and affirmative non-consent paradigmatically constitutes sexual penetration “by means of sufficient consequence reasonably calculated to cause submission.” Accordingly, this statute is not unconstitutionally vague on its face or as applied to defendant.

Defendant also argued that the district court erred by failing to instruct the jury that the mens rea element of “knowingly” applies to the fourth element of sexual assault. Although the instruction did not specifically tie “knowingly” to the last element of the offense, it did inform the jury that to convict it must find the sexual penetration had been achieved by means “reasonably calculated to cause submission against the victim’s will.” Hence, the district court adequately instructed the jury.

Defendant next argued that the district court reversibly erred by sustaining the prosecutor’s objection to testimony concerning M.A.’s prior inconsistent statements and by limiting defense counsel’s questions concerning those statements. On direct examination by defense counsel, M.A. testified that she had never accused anyone other than defendant of sexual assault and no other individual had sexually assaulted her. Defense counsel called Stone as a witness to impeach M.A.’s in-court testimony and to show that M.A. had previously made false accusations of sexual assault. The trial court abused its discretion when it excluded Stone’s testimony concerning M.A.’s prior statements; however, any error was harmless.

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