September 22, 2014

Colorado Court of Appeals: Victim’s Entire Interview Admissible to Give Jury Complete View of Credibility

The Colorado Court of Appeals issued its opinion in People v. Miranda on Thursday, August 14, 2014.

Sexual Assault on a Child—Evidence—Recording—Prior Consistent Statements—Confrontation Clause—Res Gestae Evidence—Hearsay.

A jury convicted Miranda of sex offenses involving his girlfriend’s 11-year-old daughter, E.S., and her friend, V.M. On appeal, Miranda contended that the trial court erred either in admitting a DVD recording of E.S.’s entire forensic interview or in allowing the prosecution to introduce the recording after E.S. had testified and been released, claiming it violated his confrontation rights. The entire recording was admissible as a prior consistent statement because Miranda broadly attacked the credibility of E.S. Further, the Confrontation Clause permits admission of testimonial hearsay after the declarant has testified and been released, provided that the declarant testified concerning matters addressed in the declaration, the declarant was subject to cross-examination, and the defendant did not ask that the prosecution be required to recall the declarant for further cross-examination after the hearsay had been introduced, which happened in this case. Therefore, Miranda’s confrontation rights were not violated, and the trial court did not commit plain err in admitting the recording.

Miranda also argued that the trial court abused its discretion in admitting evidence that he had groomed E.S., because the evidence was not admissible as res gestae. The record reveals that both the charged offenses and the grooming acts occurred over approximately the same two-year period, and it was helpful to explain the context of the assaults. Therefore, the trial court acted within its “substantial discretion” in admitting the acts as res gestae evidence.

Miranda contended that the trial court erred in admitting a list made by E.S.’s step-mother of the abuse told to her by E.S. However, both the step-mother and E.S. were available to testify, and although roughly two years lapsed between the first assault and the creation of the list, this time span was not so long that E.S. could no longer accurately recall the events that she recited. Thus, the trial court did not commit plain error in admitting the list under CRE 803(5).

Miranda contended that the trial court erred in denying his motion for judgment of acquittal on the V.M. attempt counts because “there was no evidence presented of any overt request and/or expressed dare for a sex act that Mr. Miranda made to V.M.” However, the there was sufficient evidence showing that Miranda had taken all steps preparatory to assaulting V.M. in the same way he assaulted E.S., and had engaged her in a game of truth or dare for the purposes of sexual exploitation.

Finally, Miranda argued that he was entitled to a new trial because his statements to the detective regarding the game incident were taken out of context in a redacted DVD that was given to the jury before deliberation. However, Miranda denied having played the game with the girls in both the redacted and unredacted versions, and he denied having done so at trial. Therefore, he was not entitled to a new trial. The judgment was affirmed.

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

Colorado Court of Appeals: Natural Gas Pipelines and Fittings Exempt from Sales Tax

The Colorado Court of Appeals issued its opinion in Pioneer Natural Resources USA, Inc. v. Colorado Department of Revenue on Thursday, August 14, 2014.

Sales Tax—Pipelines—Fittings—Enterprise Zone—Natural Gas.

In this sales tax case, the district court concluded that the pipelines and fittings at issue, which are located in one of Colorado’s enterprise zones and are used to gather and deliver natural gas from plaintiff’s wells to its processing facilities, qualify for Colorado’s sales tax exemption because they “are in direct use in the manufacturing of natural gas,” as defined in CRS §§ 39-26-709 and 39-30-106. The Colorado Department of Revenue (DOR) appealed, contending that the district court erred in finding that plaintiff’s purchases qualify for this tax exemption.

The parties agreed that plaintiff’s wells and gas-gathering system are located within an enterprise zone. Under the enterprise zone sales and use tax exemption statute, purchases of “machinery or machine tools” in excess of $500 are exempt from sales tax if they are “used solely and exclusively in an enterprise zone in manufacturing tangible personal property, for sale or profit. . . .” Here, the pipelines are used to “move material from one direct production step to another in a continuous flow,” and the enterprise zone exemption statute considers both “extracting” and “processing” as manufacturing. Thus, plaintiff’s pipelines and fittings that move natural gas from the wells—a direct production step of extracting natural gas—to the processing facilities in a continuous flow qualify for Colorado’s sales tax exemption because they “are in direct use in the manufacturing of natural gas.” Therefore, the district court did not err in finding that plaintiff’s purchases qualified for Colorado’s sales tax exemption. The judgment was affirmed.

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

Colorado Court of Appeals: Defendant Need Not Renew Pretrial Objection to Joinder to Preserve Issue

The Colorado Court of Appeals issued its opinion in People v. Curtis on Thursday, August 14, 2014.

Sexual Assault on a Child—Joinder—Motion to Suppress Evidence.

Curtis appealed the judgment of conviction entered on a jury verdict finding him guilty of two counts of sexual assault on a child and two counts of aggravated incest, all arising from sexual acts with his two daughters, S.C. and C.C. These assaults began when the victims were 9 or 10 years old and continued until they were removed from the home several years later.

On appeal, Curtis contended that the trial court abused its discretion in allowing the prosecution to join for trial the charges involving the two victims. Sexual assault offenses may be joined if the evidence of each offense would be admissible in separate trials. Here, the evidence of Curtis’s assaults of the two victims would have been admissible in separate trials under both CRE 404(b) and CRS §16-10-301. The evidence at issue related to material facts, including Curtis’s intent and the fact that he was engaged in a common plan, scheme, or design, and this evidence was relevant because it made it likely that Curtis had committed the crimes charged. Accordingly, the trial court did not abuse its discretion in allowing the prosecution to join the charges pertaining to both victims.

Curtis also contended that the trial court erred in refusing to suppress the statements that he made during his interview with an agent from the Colorado Bureau of Investigation. Curtis claimed these statements were involuntary and were made after he had invoked his right to silence. However, Curtis voluntarily waived his Miranda rights, agreed to take a polygraph examination, was not in custody during the examination, and did not unambiguously invoke his right to silence. In addition, the officer’s conduct was not coercive. Therefore, the trial court did not err in denying Curtis’s motion to suppress.

Finally, Curtis contended that the trial court abused its discretion in admitting evidence of his conduct concerning S.C.’s stillborn baby after its birth (specifically, that Curtis removed the stillborn baby from S.C.’s room and concealed it in a box and then in a jar). Curtis’s conduct after the stillborn birth reflected efforts to conceal that birth, shows consciousness of guilt, explained how the abuse continued leading to S.C.’s second pregnancy, and undermined Curtis’s defense that he was unaware he had intercourse with S.C. because she had drugged and sexually assaulted him. Therefore, the trial court did not abuse its discretion in admitting the evidence at issue here. The judgment was affirmed.

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

Colorado Court of Appeals: Defendant Lacked Knowledge of Crime Where No Reason to Believe Victim Was Underage

The Colorado Court of Appeals issued its opinion in People v. Heywood on Thursday, August 14, 2014.

Internet Sexual Exploitation of a Child—Importuned—Invited—Enticed.

Heywood invited a person to view a webcam stream of him masturbating, and then did not stop the stream until several minutes after the viewer (an investigator) had said she was 14 years old. A jury convicted him of violating CRS §18-3-405.4(1)(b), Internet sexual exploitation of a child.

On appeal, Heywood argued that the prosecution failed to prove that he committed Internet sexual exploitation of a child. The Court of Appeals agreed. CRS §18-3-405.4(1)(b) requires knowledge or belief as to the victim’s age. Initially, Heywood did not have any information regarding the investigator’s age. In addition, the Internet chat room was restricted to people at least 18 years old. Further, even though Heywood continued the chat conversation after Gallagher informed Heywood of her age, there was insufficient evidence that he “importuned, invited, or enticed” her to continue viewing. In fact, he said that she “shouldn’t be watching,” and he would “turn it off.” Therefore, Heywood did not continue to invite Gallagher to view his webcam stream merely by failing to disconnect her access to it. The judgment was reversed and the case was remanded to the trial court with directions to enter judgment of acquittal.

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

Colorado Court of Appeals: Announcement Sheet, 8/14/2014

On Thursday, August 14, 2014, the Colorado Court of Appeals issued nine published opinions and 32 unpublished opinions.

People v. Heywood

People v. Curtis

Pioneer Natural Resources USA, Inc. v. Colorado Department of Revenue

People v. Miranda

People v. Fritts

In re Estate of Foiles

Wainscott v. Centura Health Corp.

TABOR Foundation v. Colorado Bridge Enterprise

Curtiss v. People

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, 8/7/2014

On Thursday, August 7, 2014, the Colorado Court of Appeals issued no published opinions 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: Department Cannot Retroactively Deny Previously Approved Paid Sick Leave for Essential Employees

The Colorado Court of Appeals issued its opinion in Idowu v. Nesbitt on Thursday, July 31, 2014.

Overtime Compensation—Retroactive Cancellation of Approved and Taken Leave Time for Essential State Employees—CRS § 24-50-104.5(1).

Plaintiffs Idowu and Whitfield are employed as Health Care Tech IIIs at the Colorado State Veterans Nursing Home at Fitzsimons (Fitzsimons), a facility operated by the Colorado Department of Human Services (DHS). Plaintiff Steele is employed at Fitzsimons as a Nurse III. Plaintiffs are designated as “essential” state employees. CRS § 24-50-104.5(1) provides that authorized paid leave time counts as work time for purposes of providing overtime compensation to essential state employees.

Plaintiffs each received approval from their supervisors to take paid leave time, which, when combined with their work time, totaled more than forty hours in the workweek. Following the end of the relevant pay period, DHS, acting pursuant to a state personnel regulation allowing agencies to “deny, delay, or cancel leave” to reduce overtime liability, adjusted plaintiffs’ timesheets to reflect forty hours of work for the week. Plaintiffs grieved the alterations to their timesheets. The administrator of Fitzsimons denied the grievances.

Plaintiffs petitioned the State Personnel Board (Board), and the grievances were reviewed by defendant, the Executive Director of the Colorado Department of Personnel and Administration (Director), who upheld the denials. The district court upheld the Director’s decision. Plaintiffs appealed.

The Court of Appeals first upheld the denial of Steele’s grievance as untimely. Steele had ten days after learning Fitzsimons had reduced her sick hours to file a grievance. She filed it twenty-three days after receiving her paycheck.

The Court then turned to Idowu and Whitfield’s contention that the Director erroneously applied Regulation 3-34 and the district court erroneously interpreted CRS § 24-50-104.5(1) to allow Fitzsimons to cancel previously approved leave time that had been taken by them. The Court examined the statutory language and found no discretion in the agency to withdraw its authorization once an employee had acted in reliance on the authorization by taking the requested leave (as opposed to withdrawing the authorization before the employee took the requested leave). The Court also found that the Director cannot enact a regulation that would allow her to avoid the mandate in CRS § 24-50-104 requiring that authorized paid leave be counted toward the work of essential employees.

Accordingly, the judgment was reversed in regard to Idowu and Whitfield’s complaints. The matter was remanded for an entry of an order requiring that they be awarded back pay in the amount of overtime they would have received had their periods of authorized paid leave been counted toward the calculation of overtime. The judgment was affirmed in regard to Steele’s grievance.

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

Colorado Court of Appeals: Advising Person Not to Talk to Police Is Not Witness Tampering

The Colorado Court of Appeals issued its opinion in People v. Nozolino on Thursday, July 31, 2014.

Witness Tampering—Evidence—Protected Speech—Recusal.

In 2001, someone fired shots into the home of Nozolino’s ex-wife’s divorce attorney. Later that year, shots were fired into the home of Judge Gilbert Martinez of the Fourth Judicial District, who presided over portions of Nozolino’s divorce case. In 2002, the divorce attorney was shot in the face. In 2008, a man who allegedly had an affair with Nozolino’s ex-wife was fatally shot outside his home. Nozolino instructed numerous witnesses regarding these incidents not to cooperate or communicate with the police or provide any testimony. Based on these communications, the grand jury indicted Nozolino on five counts of witness tampering.

On appeal, Nozolino contended that there was insufficient evidence to support his convictions for counts 4 and 5, the witness tampering counts related to his mother and brother. The prosecution must present evidence that the defendant attempted to induce a witness either to testify falsely or to unlawfully withhold testimony. Nozolino sent an e-mail to his mother and brother recommending that they not cooperate with the police. Standing alone, the e-mails neither advise nor advocate unlawful withholding of testimony. Accordingly, Nozolino’s convictions for witness tampering with respect to counts 4 and 5 were vacated.

The Court of Appeals found that the witness tampering statute is facially constitutional. Therefore, Nozolino’s argument that the witness tampering statute is unconstitutional and infringes on his right to free speech failed.

Nozolino contended that his distribution of pre-printed statements to witnesses Feller and Shrecengost to invoke their right not to testify is akin to the public leafleting and is protected speech. However, Nozolino’s actions were not directed to the general public, did not occur in a public forum, and did not address issues of general public concern. Rather, Nozolino’s pre-printed statements were targeted at specific individuals, were distributed privately, and concerned matters of self-interest. The preprinted statements attempted to induce the witnesses to unlawfully withhold testimony in violation of the witness tampering statute. Therefore, they fall within the proscriptions of the witness tampering statute and the statute is not unconstitutional as applied to Nozolino.

Finally, the district court did not err in finding that the jury instruction regarding disrupting a lawful assembly did not “fit the facts of the case at all.” The judgment was affirmed in part and reversed in part, and the case was remanded to the district court with directions to enter judgment of acquittal on counts 4 and 5.

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

Colorado Court of Appeals: District Attorney Can Disqualify Self on Own Motion

The Colorado Court of Appeals issued its opinion in People v. Aryee on Thursday, July 31, 2014.

Sexual Assault on a Child—District Attorney—Disqualification—Fifth Amendment—Evidence—Age of Victim.

Aryee was the pastor of a church that was located in his home. The teenage victim, K.W., and her family became friends with Aryee when they moved to Denver and began attending his church. In 2008, Aryee and K.W. engaged in sexual intercourse resulting in a child. Aryee claimed the acts were consensual and occurred three times. K.W. claimed that Aryee forced himself on her nine or more times. A jury found Aryee guilty of aggravated sexual assault on a child and numerous counts of sexual assault on a child by one in a position of trust.

On appeal, Aryee contended that the trial court erred by disqualifying the Adams County District Attorney’s Office and appointing two Denver County district attorneys as special prosecutors. The district attorney requested her own disqualification. The filing of the motion seeking disqualification is all the statute requires;  therefore, the trial court did not err in granting such request and disqualifying the district attorney.

Aryee also contended that the trial court violated his Fifth Amendment rights by admitting statements he made to the police after allegedly invoking his right to counsel. It is unclear, however, whether Aryee was requesting an attorney at that time, or whether he only wanted to speak to one before giving a DNA sample. Considering the totality of the circumstances, Aryee did not make an unambiguous and unequivocal request for counsel. Thus, because Aryee’s statement was ambiguous, the detective was not required to cease all questioning, and the trial court did not err by admitting such statements.

Aryee further contended that the People failed to present sufficient evidence of K.W.’s age to support his convictions. K.W. was born in war-torn Sierra Leone and has no birth certificate. However, S.W., who has taken care of K.W. since birth, testified that K.W. was born on June 6, 1993. Additional evidence was presented regarding K.W.’s age, from which a reasonable jury could have concluded that K.W. was 15 years old at the time of the first incident and between 15 and 18 years old during the following incidents.

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

Colorado Court of Appeals: Touching Through Sheet Clearly Contemplated by Unlawful Sexual Contact Statute

The Colorado Court of Appeals issued its opinion in People v. Pifer on Thursday, July 31, 2014.

Sexual Assault on a Child—Evidence—Enticement of a Child—Challenge for Cause.

A.E., K.J., and M.S., all girls between the ages of 9 and 12, took Pifer’s dog for a walk. Pifer invited the girls in and played a game of chase with them, tossing a bed sheet over them when caught. The girls alleged that, in the course of playing with them, Pifer individually and separately sexually assaulted each of them by touching their intimate parts over their clothing.

Pifer argued that that there was insufficient evidence of sexual contact and sexual assault because the sheet was between his hand and K.J.’s clothing. Therefore, he did not touch the “clothing covering the immediate area” of K.J.’s intimate parts. Pifer’s conduct, however, falls within the plain and ordinary meaning of “touching.” Therefore, there was sufficient evidence to convict him of sexual contact and sexual assault.

Pifer also argued that the evidence was insufficient to establish the enticement of a child charge. According to CRS § 18-3-305(1), enticement of a child occurs where the actor “invites or persuades” a child to enter any building with the intent to commit sexual assault or unlawful sexual contact upon the child. Here, the People presented evidence that Pifer approached the girls outside his apartment in his underwear with his penis partially visible, invited them into his apartment, and had unlawful sexual contact with the girls shortly after they entered the apartment. Therefore, there was sufficient and substantial evidence that Pifer intended to sexually assault the girls when he invited them inside.

Pifer contended that the court erred by denying his challenge for cause to a prospective juror. The court denied the challenge because the juror’s potential frustration with the deliberation process was insufficient to justify sustaining a challenge for cause. The prospective juror gave no indication that he was biased against Pifer or would be unable or unwilling to render an impartial verdict according to the law and the evidence. The judgment was affirmed.

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

Colorado Court of Appeals: Juror Who Impermissibly Shifted Burden Should Have Been Discharged; Error Not Harmless

The Colorado Court of Appeals issued its opinion in People v. Marciano on Thursday, July 31, 2014.

Theft—Challenge for Cause—Burden of Proof—CRE 803(6)—Bank Records—Confrontation Clause of the Colorado Constitution—Evidence.

In her position as secretary for CDL Trucking, defendant’s duties included managing payroll, billing, making deposits, and loading money onto Comdata Mastercard cash cards for truck drivers’ use while on the road. Defendant stole money from the company by writing checks to herself and cash and by loading money onto a Comdata cash card for her own personal use. A jury found defendant guilty of multiple counts of theft.

On appeal, defendant contended that the trial court erred when it denied her challenges for cause as to Juror M and a second juror, both of whom ultimately sat on the jury. During voir dire, Juror M said that she expected defendant to present evidence in her defense. Neither the prosecutor nor the trial court engaged in any rehabilitative questioning of Juror M to clarify her expectations. The trial court gave no explanation on the record regarding why Juror M’s statements should be disregarded. Thus, defendant’s convictions must be reversed.

Defendant also contended that the trial court improperly admitted her bank records and records that CDL received from Comdata. A foundation for admission of bank statements under CRE 803(6) may be based on judicial notice of the nature of the business and of the records. Therefore, the trial court did not err in admitting these records. However, the trial court abused its discretion when it admitted the records from Comdata without the testimony of a foundational witness establishing their admission.

Defendant argued that admission of the Netbank statements violated her right to confrontation under the U.S. and Colorado Constitutions. Defendant’s personal bank account statements from Netbank were not created for testimonial purposes. Despite the indicia of reliability under CRE 803(6) specific to bank records, the prosecution did not establish or even allege that a witness or declarant from Netbank was unavailable. Therefore, the admission of the Netbank statements violated defendant’s state Confrontation Clause rights. On remand, to admit these documents, the prosecution must either present the testimony of an appropriate witness or establish that such a witness is unavailable for trial.

Defendant further contended that the evidence was insufficient to sustain her convictions on only the theft counts based on the transfers made to the Comdata cash card. Where the evidence admitted at trial, whether or not in error, would have been sufficient to sustain a guilty verdict, the prosecution is entitled to a retrial on remand. Therefore, although the Comdata records should not have been admitted at trial, the counts are nonetheless subject to retrial on remand. The judgment was reversed and the case was remanded to the trial court for a new trial on all counts.

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

Colorado Court of Appeals: Wife’s Failure to Disclose Financial Records Not Fraud or Misconduct Under Rule 16.2(b)(2)

The Colorado Court of Appeals issued its opinion in In re Marriage of Roddy and Betherum on Thursday, July 31, 2014.

Modification of Child Support—Abuse of Discretion—Financial Disclosures—CRCP 16.2(e)(10)—CRCP 60(b)(2) and (5).

When the parties’ 2003 decree of dissolution was entered, the court adopted their stipulation that wife would be the primary residential parent for the parties’ minor child and husband would pay her $3,000 in monthly child support. Eight years later, husband moved to modify child support on the bases that his parenting time had increased and his income had decreased since the order. After a hearing, the district court increased husband’s child support obligation to $4,604 per month.

On appeal, husband contended that the district court erred in its child support calculation. Because husband’s appeal from the child support order was untimely, this part of husband’s appeal was dismissed.

Husband also argued that the district court abused its discretion when it denied his motion for post-trial relief after he established that wife had withheld financial information. The plain language of CRCP 16.2(e)(10) does not allow a court to re-determine a child support award. Further, although husband’s post-hearing evidence demonstrated that wife was “inconsistent” insofar as her finances were concerned, the court already made a finding at the child support hearing that wife’s testimony in that regard was “inconsistent” and “incredible.” Additionally, the parties did not dispute that their combined gross incomes exceed the uppermost guideline limits. Therefore, an exact income for wife was not required, because the court had discretion to deviate from the guidelines and enter an appropriate support order. As a result, the district court did not err by denying husband’s motion for relief.

Husband further argued that the court should have granted relief under CRCP 60(b)(5). Because husband alleged that wife either fraudulently failed to disclose or misrepresented her income, his motion fell squarely under CRCP 60(b)(2). In such cases, the residual provision of CRCP 60(b)(5) is not applicable. The appeal from the child support order was dismissed and the post-decree order was affirmed.

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