April 1, 2015

Colorado Court of Appeals: Business Records Properly Authenticated by Facebook Under CRE 901

The Colorado Court of Appeals issued its opinion in People v. Glover on Thursday, February 26, 2015.

Facebook—Evidence—CRE 901(b)—Admissions—Expert Testimony.

Defendant was the 36-year-old leader of a street family of homeless and runaway teens and young adults. The dead body of one of the young adults was discovered by the police in a gully next to an apartment complex. Among the victim’s injuries was the severing of one of his fingers.

Jordan Rowland was arrested on the day the body was found, but on an unrelated matter. In his pocket, however, police found the victim’s missing finger. The prosecution’s theory was that Rowland killed the victim at defendant’s behest.

On appeal, defendant contended that the trial court erroneously admitted printouts from his Facebook account of communications relating to the murder. The lead detective testified that he had subpoenaed records of defendant’s Facebook activity, and that Facebook complied with the subpoena and sent the detective compact discs containing the requested records. Therefore, sufficient evidence was presented under CRE 901(b) to conclude that the printouts contained content from Facebook. Additionally, sufficient evidence was presented under CRE 901(b) to permit the jury to conclude that the account belonged to defendant and that he sent the messages contained in the printouts. Further, the statements from defendant’s Facebook were admissions, which is an exception to the hearsay rule. Consequently, the Facebook records were properly admitted.

Defendant also contended that reversal was required because the lead police detective on the case gave unendorsed expert testimony. Here, the detective’s understanding of Facebook and its features does not appear to have been the result of any specialized knowledge; rather, it appears to have been based on an investigation uncovering information, experience, or knowledge common among ordinary people using, or considering the use of, Facebook. Further, any error resulting from the detective’s testimony was neither “obvious” nor “seriously prejudicial.” Therefore, reversal was not required.

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

Colorado Court of Appeals: Defendant’s Right to Testify Not Unconstitutionally Usurped by Counsel

The Colorado Court of Appeals issued its opinion in People v. Thomas on Thursday, February 26, 2015.

Self-Defense—Right to Testify—Prejudice.

Thomas had opposed self-defense, and throughout the trial he remained consistent that he wanted to testify to his actual innocence. His attorneys had told him that choosing self-defense was their prerogative, and they told him that once they advanced this defense in opening statement, his testifying to actual innocence would destroy the credibility of the defense. Thomas alleged that his trial counsel rendered ineffective assistance by pursuing a self-defense theory over his objection.

Thomas argued that trial counsel’s self-defense strategy usurped his constitutional right to testify because, if not foreclosed by this strategy, he would have testified that he had not shot the victim.Even assuming that counsel’s decision to proceed with self-defense constituted deficient performance, Thomas made no showing of prejudice. Therefore, his argument fails.

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

Colorado Court of Appeals: Trial Court Has Authority to Allow Defense Discovery of Crime Scene

The Colorado Court of Appeals issued its opinion in People in Interest of E.G. on Thursday, February 26, 2015.

Sexual Assault of a Child—Juvenile Offender—Access to Crime Scene—Privacy Interests—Cross-Examination—Sentence.

E.G. was charged with two counts of sexual assault of a child and two pattern of abuse sentence enhancers for sexually assaulting his younger cousins over a two-year period in the home of their mutual grandmother. Because E.G. was a juvenile, his case originated in juvenile court. E.G. was later charged as an aggravated juvenile offender and his case was transferred to district court.

On appeal, E.G. argued that the trial court erred when it denied, based on lack of authority, his motion requesting court-ordered access to the crime scene in the basement of his grandmother’s home. A trial court has the authority to allow discovery of a crime scene to the defense, even if the discovery implicates constitutionally protected privacy rights of a nonparty, provided that the defendant’s justification for the information, which derives from his constitutional rights to due process and to present a defense, outweighs the privacy interests. Because E.G. previously lived at the home and was provided photographs of the crime scene before trial, he failed to meet this standard. The trial court, therefore, properly denied E.G.’s motion.

E.G. next contended that the trial court reversibly erred in limiting E.G.’s cross-examination of the forensic interviewer. Because the forensic interview tapes were already in evidence and counsel had already impeached the victims during prior cross-examination of them, it was needless to question the forensic interviewer on her recollection of those same interviews or what the forensic interviewer did and did not ask. Therefore, the court did not abuse its discretion in excluding the evidence as cumulative. It was also not an abuse of discretion to exclude cross-examination that did not show actual bias of the forensic interviewer.

E.G. also contended that the trial court reversibly erred when it sentenced him directly to Department of Corrections (DOC) custody absent statutory authority to do so. A trial court must sentence an aggravated juvenile offender according to CRS § 19-2-601. Here, however, because E.G. was 22 years old at the time of sentencing, he had already aged out of Department of Human Services (DHS) custody and DHS could not exercise jurisdiction over him. Therefore, certain portions of § 19-2-601(8), which do not require the participation of DHS, may apply to defendants who fall within the statute’s gap. Because the record does not include the court’s consideration of all requirements under § 19-2-601(8), the case was remanded for additional findings concerning the missing factors to determine whether the court’s decision to sentence E.G. directly to DOC custody was proper.

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

Colorado Court of Appeals: Announcement Sheet, 2/26/2015

On Thursday, February 26, 2015, the Colorado Court of Appeals issued eight published opinions and 24 unpublished opinions.

People v. Wilder

People v. Casillas

People v. Glover

People v. Thomas

People in Interest of E.G.

First National Bank of Durango v. Lyons

Ranch O, LLC v. Colorado Cattlemen’s Agricultural Land Trust

Monell v. Cherokee River, Inc.

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.

Frederick Skillern: Real Estate Case Law — Foreclosure, Debtor-Creditor, Receivers, Lender Liability

Editor’s note: This is Part 12 of a series of posts in which Denver-area real estate attorney Frederick Skillern provides summaries of case law pertinent to real estate practitioners (click here for previous posts). These updates originally appeared as materials for the 32nd Annual Real Estate Symposium in July 2014.

frederick-b-skillernBy Frederick B. Skillern

Colorado Community Bank v. Hoffman
Colorado Court of Appeals, November 7, 2013
2013 COA 146

Receiver; order for sale certified as final judgment; C.R.C.P. 54(b); deadline to appeal; abuse of process; civil conspiracy.

This action arises from the judicial dissolution of certain companies in the course of a receivership proceeding. The companies were formed to develop golf courses. The bank sought appointment of a receiver when the companies defaulted on development loans. Certain individuals intervened and joined in the motion for appointment of a receiver. The companies asserted counterclaims for abuse of process and civil conspiracy.

The court granted a motion by the receiver for the companies to sell the golf courses to an entity controlled by the intervening individuals. The district court certified the sale orders as final under C.R.C.P. 54(b) to allow an appeal. The sale orders disposed of an “entire claim for relief” for purposes of C.R.C.P. 54(b) certification. Is a sale order in the course of a receivership action an “entire claim”? It can be, reasons the court. It states that prior cases have suggested that orders concerning property ownership can properly be certified. In Corporon v. Safeway Stores, Inc., 708 P.2d 1385 (Colo. App. 1985), the court held that “a quiet title claim is separable from slander and defamation claims, and therefore, properly certifiable under C.R.C.P. 54(b).” Because defendants did not appeal this order within forty-five days of the certification, but rather waited until the counterclaims had been resolved, the court of appeals lacked jurisdiction over this issue and that portion of the appeal was dismissed.

The court affirms the summary judgment order dismissing the abuse of process and civil conspiracy claims. Although the evidence might have proved that the interveners had an ulterior motive in bringing the receivership action, it did not establish the requisite improper use of process element. The rule was recently stated in Sterenbuch v. Goss, 266 P.3d 428 (Colo. App. 2011):

If the action is confined to its regular and legitimate function in relation to the cause of action stated in the complaint there is no abuse, even if the plaintiff had an ulterior motive in bringing the action or if he knowingly brought suit upon an unfounded claim.

The court agrees with the trial court that the claims failed this test. Because the companies’ conspiracy claims were based on the alleged underlying wrong of abuse of process, this claim also failed.


Armed Forces Bank v. Hicks
Colorado Court of Appeals, June 5, 2014
2014 COA 74

Guarantor; waiver of anti-deficiency rights; C.R.S. 38-38-106(6); good faith bid at foreclosure sale.

The bank makes a $6 million loan to a closely held, single asset company to build a condominium project in Glenwood Springs. The loan is personally guaranteed by Mr. and Mrs. Hicks, the principals of the company. After the loan goes into default in 2009, the bank agrees to several loan extensions, after which the company remained in default for failure to make certain payments and failure to obtain planning department approval of a condominium plat. After a trip by the company through bankruptcy court, the bank forecloses. At the foreclosure sale, the bank bids $3.7 million, leaving a $6 million deficiency, after all interest, costs and the like are added to the final tab. The bank files a civil action to collect the deficiency against Hicks. The Hicks attempt to assert defenses based on failure to make a bid based on a good faith estimate of fair market value, and alleging that the bank violated its duty of good faith and fair dealing by refusing to approve the plat ten months after the borrowers’ default. In effect, they argue that the bank failed to mitigate its damages by not allowing the plat to be recorded, even if the borrowers were in default, because the property would be more valuable at that point and the receiver would be able to lease the property, generating income to apply to the loan balance.

The court of appeals affirms the trial court’s grant of summary judgment in favor of the bank, holding that the guaranty contained a specific, and very broad, waiver of any right to challenge the bank’s bid at the foreclosure sale based on a “one action or antideficiency law.” In a case of first impression, the court holds that the statutory duty of a creditor under C.R.S. § 38-38-106(6) to bid its good faith estimate of fair market value may be waived, and that such an agreement is not void for violation of public policy. The court contrasts this statute, which has no provision barring a contractual waiver of its terms, with C.R.S. § 38-38-703, which explicitly prohibits agreements to waive, inter alia, the right of cure and redemption. The court notes that there is still a common law duty to make a good faith bid, under Chew v. Acacia Mutual Life, 165 Colo. 43, 437 P.2d 339 (1968) (bid not made in good faith on the basis of what the security could reasonably be expected to produce on sale at its fair market price), but the guaranty signed by Mr. and Mrs. Hicks included a waiver of “any defenses given to guarantors in law or in equity” except for payment of the indebtedness.

It will be interesting to see if the Supreme Court wants to take a look at this.

Frederick B. Skillern, Esq., is a director and shareholder with Montgomery Little & Soran, P.C., practicing in real estate and related litigation and appeals. He serves as an expert witness in cases dealing with real estate, professional responsibility and attorney fees, and acts as a mediator and arbitrator in real estate cases. Before joining Montgomery Little in 2003, Fred was in private practice in Denver for 6 years with Carpenter & Klatskin and for 10 years with Isaacson Rosenbaum. He served as a district judge for Colorado’s Eighteenth Judicial District from 2000 through 2002. Fred is a graduate of Dartmouth College, and received his law degree at the University of Colorado in 1976, in another day and time in which the legal job market was simply awful.

Colorado Court of Appeals: Announcement Sheet, 2/19/2015

On Thursday, February 19, 2015, the Colorado Court of Appeals issued no published opinion and 45 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: Pretrial Motion Insufficient to Preserve Issue for Appellate Review

The Colorado Court of Appeals issued its opinion in People v. Dinapoli on Thursday, February 12, 2015.

Assault—Jury—Modified Allen Instruction—Mistrial—Pretrial Ruling—Contemporaneous Objection.

K.M.’s dog and defendant’s dog “got into a tussle.” After the dogs separated, K.M. and defendant engaged in a physical altercation, during which defendant hit K.M. with a tree branch, dislocating her arm. Defendant claimed it was self-defense. The jury found defendant guilty of one count of second-degree assault.

On appeal, defendant contended that she was entitled to a new trial because the trial court should have told the jury that it would declare a mistrial if the jury could not reach a unanimous verdict. In response to the jury’s concern that they could not reach a verdict on the fourth charge, the court gave the jury a modified Allen instruction and instructed the jury to continue deliberations (Allen v. United States, 164 U.S. 492 (1896)). Trial courts are not required to supplement a modified Allen instruction with a mistrial advisement. Therefore, defendant was not entitled to a new trial on this argument.

Defendant also contended that she was entitled to a new trial because the prosecutor committed misconduct by referring to K.M. as the “victim” during trial. Although defendant obtained a pretrial ruling that precluded the parties from referring to K.M. as the victim, she never sought to enforce that ruling at trial with a contemporaneous objection. Because this error was not obvious and did not constitute plain error, defendant was not entitled to a new trial on this argument. The judgment was affirmed.

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

Colorado Court of Appeals: Prosecution for Forgery Not Precluded Where Conduct Also Falls Under Employment Penalty Statute

The Colorado Court of Appeals issued its opinion in People v. Clanton on Thursday, February 12, 2015.

Unemployment Compensation Benefits—Forgery—CRS § 8-81-101(1)(a)—Equal Protection—Restitution—Statutory Penalty.

Defendant obtained unemployment compensation benefits to which he was not entitled by using a false Social Security number and a fake military discharge form. The trial court found defendant guilty of forgery. The court sentenced defendant to eighteen months of probation and ordered him to pay $12,397.50 in restitution. That total included a 50% statutory penalty of $4,132.50, which the court believed was required by CRS § 8-81-101(4)(a)(II).

On appeal, defendant contended that he was unlawfully convicted of forgery. He argued that CRS § 8-81-101(1)(a) was the appropriate statute under which he should have been charged, because his misconduct involved making of a false statement of material fact, with intent to defraud, to obtain unemployment compensation benefits. CRS §8-81-101 does not address all criminal activity that may occur in the unemployment compensation context; rather, it addresses certain specific acts that may occur in the context of an application for benefits. Because the General Assembly did not intend to preclude prosecution for forgery where the conduct underlying the charge also arguably violates CRS § 8-81-101(1)(a), the People had the discretion to charge defendant with the more serious offense.

Defendant also contended that the forgery statute, CRS § 18-5-102, fails to provide an intelligible standard by which to differentiate the conduct proscribed from that proscribed by CRS § 8-81-101(1)(a). Therefore, charging him under the forgery statute violated his constitutional right to equal protection of the laws. The forgery statute applicable here includes elements that CRS § 8-81-101(1)(a) does not. Accordingly, the People could charge defendant with forgery without violating his right to equal protection of the laws.

Defendant further contended, the People agreed, and the Court of Appeals concurred that the district court should not have assessed the 50% penalty provided for in CRS § 8-81-101(4)(a)(II) as part of his restitution obligation. That portion of defendant’s sentence, including the statutory penalty as restitution, was vacated, and the case was remanded to the district court to correct the mittimus to reflect the proper amount of restitution.

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

Colorado Court of Appeals: No Error in Denial of Crim. P. 35(c) Postconviction Relief Motion

The Colorado Court of Appeals issued its opinion in People v. Romero on Thursday, February 12, 2015.

Crim.P. 35(c)—Ineffective Assistance of Counsel—Fifth Amendment—Sixth Amendment—Right to Counsel—Competency—Prosecutorial Misconduct.

Romero was convicted of first-degree murder for shooting A.S. He was sentenced to life in prison without the possibility of parole. He filed a motion for post-conviction relief pursuant to Crim.P. 35(c), which was denied without a hearing.

On appeal, Romero contended that attorney F.G. ineffectively assisted him during his police interview when he failed to advise Romero of the consequences of submitting to police interrogation and a polygraph test. Romero’s Fifth Amendment right to counsel had not attached because the police interview was not custodial. Romero’s Sixth Amendment right to counsel had also not attached because Romero had not yet been charged. Accordingly, Romero’s ineffective assistance of counsel claim with regard to F.G.’s pre-indictment representation failed.

Romero contended that F.G. ineffectively assisted him during trial because F.G. visited Romero in jail and improperly advised him. Because F.G. did not represent Romero during any critical stages of the case, did not help him prepare his defense, and did not otherwise appear on his behalf, the constitutional guarantee of effective assistance did not apply. Accordingly, Romero’s ineffective assistance of counsel claim with regard to F.G.’s post-indictment advice also failed.

Romero further contended that D.J. and R.C. ineffectively assisted him when they (1) allowed him to be tried while incompetent, and (2) failed to object contemporaneously to alleged prosecutorial misconduct at trial. The record reflects that defense counsel raised the issue of Romero’s competency numerous times, and the court made adequate rulings on the record each time. In regard to Romero’s claims of prosecutorial misconduct, even assuming that the prosecutor’s statements were improper and that counsel’s failure to object constituted deficient performance, Romero failed to allege facts demonstrating prejudice. Therefore, the post-conviction court did not err in dismissing these claims without an evidentiary hearing. The order was affirmed.

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

Colorado Court of Appeals: Snowplow is Motor Vehicle so Immunity Under CGIA Waived

The Colorado Court of Appeals issued its opinion in Roper v. Carneal on Thursday, February 12, 2015.

Motion to Dismiss for Lack of Subject Matter Jurisdiction—Colorado Governmental Immunity Act—Tort Claims— “Motor Vehicle” Versus “Special Mobile Machinery.”

Carneal, an El Paso County employee, was driving a county-owned snowplow when he allegedly failed to stop at a stop sign. Plaintiff, Roper, drove off the road to avoid Carneal and crashed, suffering personal injuries and damage to her car. She filed this action against Carneal and the Board of County Commissioners of El Paso County (County Board), alleging claims of negligence per se, negligence, respondeat superior, and property damage/loss of use.

Defendants moved to dismiss for lack of subject matter jurisdiction, arguing they were immune from suit under the Colorado Governmental Immunity Act (CGIA). The CGIA generally bars tort-related claims against public entities and employees, but waives immunity for a public employee’s operation of a motor vehicle under certain circumstances. Defendants argued the snowplow was “special mobile machinery” rather than a “motor vehicle,” and therefore the motor vehicle waiver of immunity did not apply.

The district court denied the motion to dismiss based on the nature of the vehicle (a modified dump truck with seats for two but generally driven by one operator and used exclusively on county roads to remove snow and ice). Defendants filed this interlocutory appeal.

The Court of Appeals reviewed the statutory definitions of “motor vehicle” and “special mobile machinery” and concluded the snowplow in this instance was a “motor vehicle”; therefore, governmental immunity was waived. The Court noted that a “motor vehicle” under CRS §42-1-102(58) must be designed primarily for travel on the public highways and generally and commonly used to transport persons and property over the public highways. The undisputed evidence was that the snowplow was a dump truck designed to remove snow and ice from the public highways by traveling on them. The Court found that a vehicle need only transport persons or property, despite the use of “and” in the statute, because requiring transport of both persons and property would be “absurd and unreasonable.” It further held that carrying sand and salt constituted transporting property.

The Court also held that the definition of “special mobile machinery” requires a finding that the vehicle is “only incidentally operated or moved over public highways.” Because it was exclusively driven over the public highways, the snowplow did not meet this requirement. The order was affirmed and the case was remanded for further proceedings.

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

Colorado Court of Appeals: Period of Probation Under Deferred Judgment Does Not Count when Deferral Revoked

The Colorado Court of Appeals issued its opinion in People v. Anderson on Thursday, February 12, 2015.

Probation Termination—CRS § 18-1.3-1008(2).

In 2002, Anderson pleaded guilty to one count of sexual assault on a child, a class 4 felony, and one count of unlawful sexual contact, a class 1 misdemeanor. As part of the plea agreement, Anderson entered into a stipulation for a deferred judgment and sentence on the felony count, which continued the case for four years.

Three years later, the probation department filed a revocation complaint claiming Anderson had been unsuccessfully terminated from his sex offender treatment program for violating his treatment contract and was in arrears on payments toward the costs of his supervision. Anderson admitted to the violations and the district court revoked his deferred judgment and probation.

At a March 2006 hearing, the court sentenced Anderson to probation for ten years to life on the felony count. In August 2013, Anderson moved to terminate his probation and for a review hearing under CRS § 18-1.3-1008(2). He argued that he had been on probation for eleven years. He acknowledged that his deferred judgment had been revoked but claimed he had maintained compliance with his probation. Although the probation department agreed he had successfully completed his treatment, it stated it could not recommend termination because he had not completed ten years of probation. The district court denied Anderson’s request without a hearing.

On appeal, Anderson argued that the period during which he was supervised in connection with his unsuccessful deferred judgment constituted probation within the meaning of CRS § 18-1.3-1008(2). The Court of Appeals was not persuaded. Under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), a district court may sentence a sex offender to probation for at least ten years for a class 4 felony. After serving ten years of probation, the offender may petition the court to be discharged from the indeterminate probation sentence. There is no discretion to terminate probation before a sex offender has completed the minimum term of probation. The Court rejected Anderson’s argument that supervision under a deferred judgment is the same as probation under SOLSA. His argument contravenes the plain language of the statute.

The Court concluded that the district court correctly determined it did not have authority to consider Anderson’s request at the time it was made. Accordingly, the order was affirmed.

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

Colorado Court of Appeals: Park Board’s Failure to Follow Own Process Arbitrary but No Prejudice

The Colorado Court of Appeals issued its opinion in Rags Over the Arkansas River, Inc. v. Colorado Parks and Wildlife Board on Thursday, February 12, 2015.

Colorado Division of Parks and Outdoor Recreation—Special Activities Permit—Regulations.

Several years ago, artists Christo and Jeanne-Claude began a quest to install a large-scale art display over the Arkansas River (Project). The artists formed Over the River Corporation (OTR), an intervenor in this action, to facilitate the Project. More than a decade after the initial application, the Colorado Division of Parks and Outdoor Recreation (Parks Division), through its Board, authorized the Project. Rags Over the Arkansas River, Inc. (ROAR), a nonprofit organization, sought judicial review of the Parks Division’s authorization of the Project.

ROAR asserted that the Board was required to follow its special activities permit regulation, and the failure to do so was arbitrary and capricious. The General Assembly delegated the authority to develop regulations for management of the state parks and recreation areas and development of outdoor recreation programs to the Parks Board. Consistent with this statutory guidance, the Board issued regulations to manage the use of state parks and recreation areas. The regulations outline procedures for allowing members of the public to obtain a permit to conduct a special activity on areas under the Parks Division’s jurisdiction, including prior approval in the form of a Special-Activities Permit. The plain language of the special activities permitting regulation is mandatory. At the May 2011 Board meeting, the Board, with little explanation, abandoned the special activities permitting process, instead approving negotiation of a cooperative agreement with OTR. Because the Parks Division failed to adhere to its own special-activities permit regulation in approving the Project, its decision was arbitrary and capricious. However, because the Board’s authorization of the Project was supported by sufficient evidence and ROAR was unable to demonstrate prejudice as a result of the procedure by which the Project was approved, the Parks Division’s approval of the Project was affirmed.

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