May 21, 2013

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Tenth Circuit: Defendant’s Robbery Conviction Affirmed

April 15, 2013 by Leave a Comment

The Tenth Circuit published its opinion in United States v. Baker on Thursday, April 11, 2013.

Abasi Baker was convicted in the United States District Court for the District of Kansas on seven counts each of robbery affecting commerce, use of a firearm in relation to a crime of violence and being a convicted felon in possession of a firearm. Defendant appealed his convictions, raising two arguments: (1) that use of a global-positioning-system (GPS) tracking device on his car violated his Fourth Amendment rights, and (2) that the evidence was insufficient to convict him on the eight firearms counts associated with the first four robberies.

The Tenth Circuit did not reach the merits of Defendant’s Fourth Amendment argument because he waived the argument by failing to raise it before trial, and he did not show good cause why it was not raised before trial as required by Federal Rule of Criminal Procedure 12.

The Tenth Circuit also rejected Defendant’s argument that the evidence was insufficient for a rational jury to find that he possessed the identified firearm at the times charged. Viewing the evidence in the light most favorable to the verdict, the record contained ample evidence for  any rational trier of fact to have found the defendant guilty beyond a reasonable doubt.

AFFIRMED.

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SB 13-229: Amending Statutory Provisions Related to Criminal Proceedings

April 8, 2013 by Leave a Comment

On Thursday, March 21, 2013, Sen. Lucia Guzman introduced SB 13-229 – Concerning Changes to Statutory Provisions Related to Criminal Proceedings. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, the fiscal note for a bill that creates a new crime includes an analysis of that new crime. The bill adds a description of gender and minority data related to the new crime to the analysis.

The bill changes the definition of felony complaint to require the complaint to be signed by the prosecutor. The change corresponds to a change in the Colorado rules of criminal procedure.

For security fraud offenses, the bill states the statute of limitations begins to run on the discovery of the criminal act.

The bill requires that if requested by the prosecution or defense that the probation department provide the presentence report at least seven days prior to sentencing. If the probation department can’t meet that deadline, the court shall grant the probation department an additional seven days to provide the presentence report.

Under current law, a presentence report regarding a sex offender must include a sex offender evaluation. There are some exceptions to this requirement. The bill adds an additional exception for cases in which there is a court-accepted stipulation by the sex offender and prosecutor to jail time or the sex offender is already serving a sentence in the department of corrections.

The bill makes clarifying changes to when a person convicted of a sex offense as a juvenile can petition to discontinue sex offender registration.

The bill corrects an incorrect internal citation.

The bill adds to the definition of restitution to include health care costs covered by a government agency or insurer.

Under current law, a person may commit first degree burglary if he or she possesses a deadly weapon during the burglary. The bill amends the crime so that a person must use or threaten the use of a deadly weapon to commit first degree burglary.

Under current law, a juvenile committed to a staff secure placement who turns 18 in custody and who walks away can be charged with a class 3 felony. The bill creates a new offense for that situation that is a class 3 misdemeanor. The bill directs that a juvenile who is subject to a direct file or transfer must be held in a county jail once the juvenile turns 18.

The bill clarifies some provisions in the aggravated juvenile offender statute.

Under current law, the district attorney or a probation officer may apply for entry of conviction and imposition of sentence for a deferred prosecution within the term of the deferred prosecution and up to 30 days after the term. The bill clarifies that time period also applies to juvenile deferred adjudications.

The bill allows the district attorney to appoint part-time district attorneys who do not practice criminal defense in the jurisdiction to fulfill the duties of the district attorney without the approval of the county commissioners. The bill adds that the appointed attorneys may be attorneys employed by the Colorado district attorneys’ council. The bill eliminates the requirement that part-time district attorneys be paid by the county they serve.

The bill clarifies that in a record-sealing petition based on a dismissal that is not the result of a completion of deferred disposition or multi-case disposition, the court shall order the record sealed if the petition on its face is sufficient. The bill clarifies that in records-sealing cases, a person may petition for sealing one record every 12-month period.

The bill clarifies that in drug conviction records-sealing cases, a person may petition for sealing one record every 12-month period.

The bill specifies that the attorney general has concurrent jurisdiction with local district attorneys to prosecute persons for crimes related to air and water quality, hazardous waste and substances, and solid waste. The bill was introduced on March 21 and is assigned to the Judiciary Committee.

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Colorado Court of Appeals: Probation is a Privilege, Not a Right, and May Be Revoked for Violation of Any of its Terms

April 2, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Fair on  Thursday, March 28, 2013.

Probation—Revocation—Sex Offender—Request for Stay.

Defendant appealed the district court’s orders revoking his probation and denying his motion to stay the probation revocation proceedings and the sentence imposed on revocation. The orders were affirmed.

Defendant pleaded guilty to sexual assault, a class 4 felony. The trial court agreed with the recommendations contained in the offense-specific evaluation and presentence investigation report,and sentenced defendant to sex offender intensive supervision probation (SOISP) for a term of ten years to life. As part of the sentence, the court ordered defendant to “complete sex offender specific treatment.” Subsequently, defendant’s probation officer filed a motion to revoke defendant’s probation based on defendant’s termination from offense-specific treatment for refusing to admit to committing the offense. The court thereafter revoked defendant’s probation.

Defendant argued that the district court abused its discretion in revoking his probation and sentencing him to a term in the Department of Corrections (DOC). Probation is a privilege, not a right. If a probationer violates any condition of probation, the order of probation may be revoked. Because defendant violated the terms of his probation to complete sex offender specific treatment, the court did not abuse its discretion in revoking his probation and sentencing him to the DOC.

Defendant further contended that the district court’s refusal to continue the revocation proceedings denied him the opportunity to properly litigate his motion to vacate his guilty plea. Defendant cited no legal authority to support this argument, nor did he demonstrate how he would be prevented from litigating his post-conviction motion after this current appeal is discharged. Under these circumstances, the district court did not abuse its discretion in denying his request.

Summary and full case available here.

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Colorado Court of Appeals: Costs of Hospital Care Incurred After Arrest but Before Booking Improperly Charged to Defendant

April 2, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Sinovcic on Thursday, March 28, 2013.

Prosecution Costs—Medical Treatment—Costs of Care.

Defendant appealed the district court’s order assessing prosecution costs against him for hospital care he received after arrest but before booking. That part of the order was reversed and the case was remanded.

Defendant resisted arrest, and officers used a taser gun to subdue and handcuff him. Following his arrest, the officers transported defendant to a hospital for treatment. After defendant was medically cleared, the officers transported him to the Summit County Jail, where he was booked.

On appeal, defendant contended that the district court erred by assessing the hospital costs as costs of prosecution under CRS § 18-1.3-701(2)(j). It was undisputed that the medical treatment was provided before defendant was formally charged and before the criminal proceeding began. Because the costs of defendant’s medical care were not specifically listed in the statute, and were not litigation-related costs incurred after the filing of formal legal charges against a defendant, the court erred in awarding such costs. Furthermore, because defendant did not receive the treatment during his custody in a jail or correctional facility, the district court properly held that the medical costs do not constitute “costs of care” under CRS § 18-1.3-701(5)(a). The district court’s order was vacated as to the hospital costs, and the case was remanded to the district court to reduce the total assessed fines and costs by $2,717.

Summary and full case available here.

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Colorado Supreme Court: Defendant Was Not Subject of Custodial Interrogation When Questioned so No Miranda Warning Required

March 26, 2013 by Leave a Comment

The Colorado Supreme Court issued its opinion in People v. Pleshakov on Monday, March 25, 2013.

Criminal Law—Fifth Amendment—Suppression of Evidence and Statements—Custodial Interrogation—Miranda Advisement.

In this interlocutory appeal, the Supreme Court considered whether the trial court erred in suppressing evidence and statements made by defendant to law enforcement officers. The district court concluded that officers were required to administer a Miranda warning to defendant before a sidewalk interrogation made pursuant to a traffic stop, and that their failure to do so required suppression of defendant’s statements and evidence as products of an illegal interrogation.

The Court reversed the suppression order of the district court. Defendant was not subject to custodial interrogation when he made the statements in question, so a Miranda warning was not required.

Summary and full case available here.

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Tenth Circuit: Securities Fraud Conviction and Sentence Affirmed; Forfeiture Orders Upheld

March 22, 2013 by Leave a Comment

The Tenth Circuit published its opinion in United States v. Gordon on Friday, March 15, 2013.

Defendant-Appellant George David Gordon is a former securities attorney convicted of multiple criminal charges relating to his alleged participation in a “pump-and-dump” scheme where he, along with others, violated the federal securities laws by artificially inflating the value of various stocks, and then turning around and selling them for a substantial profit. He was sentenced to 188 months in prison and was ordered to pay $6,150,136 in restitution. The government also restrained some of his property before the indictment was handed down and ultimately obtained criminal forfeiture of that property.

Gordon raised numerous arguments on appeal. He argued that the he was deprived of the Sixth Amendment right to counsel because the government placed restraints on various property, including two of his law firm accounts, so he lacked the funds to pay for counsel of his choice. In deciding against Gordon on this issue, the Tenth Circuit refused to consider trial brief arguments he attempted to incorporate into his appellate brief by reference as that is disapproved. After reviewing his appellate arguments, the court agreed with the trial court that Gordon failed to show he was denied access to funds to pay for his defense in any substantial sense. He paid his defense counsel over $900,000 and “counsel remained fully and actively engaged in the case throughout the entire trial court proceedings.”

Next, Gordon challenged the sufficiency of the evidence. In connection with misleading promotional material sent or paid for by the conspirators, Gordon contended that under Rule 10b-5 he had no liability because he had no duty to disclose. Once a party elects to disclose material facts, however, the party has a duty to speak truthfully and correct misstatements. The Tenth Circuit found “substantial evidence that many aspects of the information disseminated in the promotional campaigns were false and misleading, and that misleading statements went uncorrected by numerous material omissions.” The court also found sufficient evidence that Gordon prepared or endorsed false opinion letters and that he violated 18 U.S.C. § 1512(c)(2) when he had a friend sign backdated documents to present to the government in an attempt to prevent the forfeiture of his home.

Gordon complained that the district court erred in permitting the government to insinuate guilt by introducing evidence that infringed upon his Fifth Amendment right to remain silent. At trial, the government offered the testimony of Lindberg to establish that he and Gordon had discussed who should be permitted to testify in the proceedings before the SEC. Two additional witnesses testified that Gordon advised them to take the Fifth Amendment. The testimony was offered to corroborate Lindberg’s testimony that he and Gordon had essentially calculated a cover-up strategy. The Tenth Circuit rejected Gordon’s claim that this tactic tainted the invocation of his own Fifth Amendment right not to testify at trial because it did not refer to his right.

The court rejected Gordon’s argument that the district court erred by excusing a juror without adequate cause. The juror had informed court staff that her continued presence on the jury could affect the outcome of the case. The district court determined the juror had not contaminated the rest of the jury and dismissed her for potential bias. The court did not address whether the trial court abused its discretion because even if it had, the juror’s dismissal did not cause any prejudice to Gordon.

The court also rejected Gordon’s claim that the trial court violated the Speedy Trial Act. The trial court properly identified the complex nature of the case and the voluminous records that would take additional time for the parties to organize and analyze when it granted an ends-of-justice continuance. Gordon’s interlocutory appeal and pending trial court motions created additional periods of delay that were excludable from the Act.

Gordon’s challenges to his sentencing also failed. In fraud cases where loss cannot be accurately calculated, a sentence may be based on gain. The court found no error in the trial court’s calculations, but even if it had, the error would be harmless because of the court’s downward variance from the sentencing guidelines. The court also properly included Gordon’s co-conspirators gains in making sentencing calculations.

Finally, the district court did not err in making its forfeiture orders. The defendant’s conviction and sentence were affirmed.

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Colorado Court of Appeals: Plain Language of Statute Requires Sex Offender Registration to Continue for 10 Years After Final Release

March 20, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Sheth on Thursday, March 14, 2013.

Declaratory Judgment—Sex Offender Registration—CRS § 16-22-113.

In this declaratory judgment action, petitioner Parag Sheth appealed the district court’s judgment denying his request for equitable relief to discontinue the requirement that he register as a sex offender. The judgment was affirmed.

In 2008, petitioner pleaded guilty to criminal attempt to commit Internet sexual exploitation of a child, a class 5 felony. He was sentenced to thirty-six months’ probation, which included a number of conditions, such as undergoing sex offender treatment and refraining from all contact with minors. He also was required to register as a sex offender under the Colorado Sex Offender Registration Act (Act). In 2011, the district court reduced petitioner’s probationary sentence to two years, and his probation ended as a matter of law on that date.

Petitioner filed a CRCP 57 action seeking a declaratory judgment determining that his registration duties terminated when his probation terminated. The district court concluded that CRS § 16-22-113 was the relevant statutory section and that it requires a person to wait ten years after final release from the jurisdiction of the court for the offense triggering the registration duties before petitioning the court for termination of those duties.

On appeal, petitioner argued that the sentencing court has discretion to set the length of time that the petitioner is required to register, pursuant to its sentencing authority. The Court of Appeals disagreed, finding that the language of CRS § 16-22-113 is unambiguous and there are no exceptions to the waiting period.

Summary and full case available here.

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Colorado Court of Appeals: Other Bad Act Evidence Admissible to Show Knowledge But Conviction Reversed on Fourth Amendment Grounds

March 18, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Pollard on Thursday, March 14, 2013.

Possession of More Than One Gram of Cocaine—Habitual Offender for Sentencing—Other Bad Acts Evidence—Fourth Amendment Refusal to Consent to Search.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of possession of more than one gram of cocaine. He also appealed his adjudication as a habitual offender, for sentencing purposes. The judgment was reversed and the case was remanded for a new trial.

The police spotted defendant’s unoccupied car at 3:00 a.m. in an otherwise vacant parking lot in a park. An officer, looking inside the car, noticed on the center console a plastic bag he believed to be crack cocaine. When defendant returned to his vehicle with a female friend, he told the police that the car was his and the substance was probably bubble gum.

Defendant refused to give the police consent to search his car. He was arrested, and the bag—containing 2.66 grams of cocaine—was seized from the vehicle. Drug paraphernalia (a crack pipe, a glass vial, and two re-sealable cloth bags) were found only in his female friend’s purse.

At trial, defendant asserted the cocaine belonged to his friend and that he did not know it was in his car. The friend testified that the cocaine belonged to her, she had brought it with her in her purse, defendant didn’t know she had it, and she had put it on the car console only after defendant had gotten out of the car. Defendant argued he was charged and prosecuted due to racial stereotyping—that because he is black and his friend is a white woman, he was using the cocaine to obtain sex from her.

For purposes of showing motive, knowledge, identity and absence of mistake or accident, the prosecution presented evidence of a drug transaction that occurred fourteen months after the charges arose in this case. In that case, defendant sold crack cocaine to a woman in a grocery store parking lot. He was apprehended shortly thereafter and crack cocaine was recovered from the center console of his car.

The jury convicted defendant as charged. The trial court adjudicated him as a habitual offender and sentenced him to twenty-four years’ incarceration.

On appeal, defendant argued it was error to admit evidence of his subsequent drug transaction with the woman in the grocery store parking lot. The Court of Appeals disagreed. Defendant objected that the evidence was inadmissible under CRE 404(b). An abuse of discretion by a trial court will be found only on a showing that the court misconstrued or misapplied the law or otherwise reached a manifestly arbitrary, unreasonable, or unfair result. Evidence of other bad acts is inadmissible if its relevance depends only on an inference that the person has a bad character and acted in conformity therewith. Under CRE 410, 403, and 404(b), a trial court may admit evidence of a defendant’s other bad acts if (1) the evidence is offered for a proper purpose; (2) the evidence is logically relevant to a material issue in the case; (3) its relevance is independent of the intermediate inference that the defendant has a bad character; and (4) its probative value is not substantially outweighed by the danger of unfair prejudice. The Court concluded that the trial court acted within the scope of its discretion in admitting evidence of defendant’s subsequent possession and distribution of crack cocaine, particularly for the purpose of establishing his knowing possession in this case.

Defendant also argued that reversal was required because the prosecution improperly elicited evidence of, and commented on, his refusal to consent to a search of his car. The Court agreed. The prosecution repeatedly elicited evidence from the officer on the scene that when asked to consent to search of his car, defendant responded by saying, “Nobody searches my car.” Because defendant did not object to this and related statements, reversal was warranted only if it constituted plain error. The Court found it did. The Fourth Amendment gives a defendant a constitutional right to refuse to consent to entry and search. Evidence of a person’s refusal to consent to a warrantless search may not be used to support an inference of guilt. It is even more egregious to argue to the jury that such evidence is probative of guilt. The error in admitting this type of evidence in this case was so clear cut that the trial judge should have been able to avoid it without benefit of objection. Moreover, this was a substantial error because it was seriously prejudicial. Accordingly, the Court reversed defendant’s conviction and the case was remanded for a new trial.

Summary and full case available here.

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Colorado Court of Appeals: Defendant Who Insisted on Proceeding at Hearing to Preserve Speedy Trial Rights, Despite Counsel’s Request for Continuance, Made Voluntary Waiver of Better-Prepared Counsel

March 18, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Bryant on Thursday, March 14, 2013.

Unlawful Sexual Contact by Use of Force—Constitutionality of Sexually Violent Predator Designation—Effective Assistance of Counsel—Use of Force Evidence.

Defendant Joseph Bryant appealed the judgment of conviction entered on a jury verdict finding him guilty of two counts of unlawful sexual contact by use of force. He also appealed his designation as a sexually violent predator (SVP). The judgment was affirmed.

Evidence at trial showed that as 17-year-old A.M. and her friend were about to walk into a Starbucks, Bryant attacked A.M. by wrapping a hand around her neck and grabbing her vaginal area with his other hand. He held her for about eighteen seconds and tried to pull her away from the entrance. She screamed and struggled and then jammed her elbow into his stomach. He released her and ran away.

That evening, Bryant approached D.P. at a bus stop. He “bumped” into her, stared at her, asked her age, and then followed her onto the bus. When D.P. got off the bus, Bryant followed her off the bus. She decided to wait at the bus stop, because it was well-lit and there were stores nearby. Bryant waited with her for thirty minutes. He offered several times to pay her $300 if she would accompany him to a motel room, and she declined. He then grabbed her breasts four to six times and her vagina once. D.P. asked him to stop and tried pushing him away. He grabbed her hand and put it on his crotch.

Bryant followed her onto a second bus and off that bus. D.P. asked him to stop following her. He grabbed her breasts twice, and she pushed him away. Bryant walked away and was arrested later that evening.

Bryant was charged with two counts of unlawful sexual contact by force and was found guilty by a jury. The trial court made a preliminary finding that he was an SVP and sentenced him to five years to life in the Department of Corrections on each conviction, to run consecutively. The court, after a hearing, made a final determination that Bryant was an SVP.

On appeal, Bryant argued he was deprived of his right to effective assistance of counsel when the court denied his counsel’s motion to continue the trial two weeks beyond the Uniform Mandatory Disposition of Detainers Act (UMDDA). The Court of Appeals found he waived that right. On November 27, 2009, Bryant’s counsel learned his trial had been rescheduled from December 15 to December 1 to comply with Bryant’s speedy trial rights under the UMDDA. Counsel objected to the earlier trial date, but Bryant insisted on a speedy trial despite the judge’s warnings against proceeding pro se. Bryant decided to proceed pro se, and counsel assumed she had been removed from the case.

On December 1, counsel appeared with Bryant and explained that Bryant did not want to proceed pro se. She requested a two-week continuance because she was not prepared for trial. The court found the request reasonable, but then engaged in a colloquy with Bryant wherein Bryant ultimately chose to proceed with unprepared counsel rather than waive his UMDDA rights. The Court found the record reflected that Bryant made a voluntary, knowing, and intelligent waiver of better-prepared counsel in favor of his right to a speedy trial under the UMDDA. Therefore, there was no error.

Bryant also argued there was insufficient evidence to show he caused each victim’s submission by force because there was no evidence that he used force apart from the unlawful contact, and the victims were able to escape. The Court disagreed. The statute requires evidence of physical force, which is “force applied to the body.” The fact that the victims were able to escape does not render insufficient the evidence that showed Bryant used physical force.

Bryant further contended that SVP evaluation procedures violate one’s right to remain silent, because offenders who do not participate in the SVP assessment interview are evaluated using an alternative scale that increases the likelihood they will be designated SVPs. This argument presumes the Fifth Amendment applies to the SVP evaluation procedures, but it does not. The Fifth Amendment privileges apply during sentencing, but the SVP designation is not part of a defendant’s sentence. Its purpose is not to punish the defendant, but to protect the public and aid law enforcement.

The Court also rejected Bryant’s equal protection argument. Equal protection challenges require that the people allegedly subject to disparate treatment be similarly situated. Bryant’s argument didn’t meet this threshold test because offenders who participate in the interview are not similarly situated to offenders who do not participate.

Summary and full case available here.

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Colorado Court of Appeals: Emails Sent from Boston and Received in Baltimore Caused Threats for Safety of People in Colorado

March 18, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Chase on Thursday, March 14, 2013.

Felony Stalking—Subject Matter Jurisdiction—Sufficiency of Evidence a Question of Law.

Defendant Jerry Chase appealed the judgment of conviction entered on jury verdicts finding him guilty of three felony counts of stalking and three misdemeanor counts of harassment. He also appealed the sentences imposed. The judgment was affirmed.

From 2002 to 2008, Chase resided in Wapiti Meadows, a low-income housing complex in Grand County, where he met the three named victims: G.B., D.D., and M.G. M.G. and D.D. were husband and wife. D.D. was the former property manager and M.G. was the maintenance supervisor. During his tenancy, Chase frequently complained to all three about his neighbors, the B. family, whom he alleged made noises that disturbed him. In 2008, Mr. B. accused Chase of putting sugar in his gas tank. Chase was charged with criminal mischief, and a restraining order was entered against him. Chase violated the order by banging on the B. family’s well and yelling an ethnic threat at them.

The Wapiti management evicted Chase on October 1, 2008. On the evening of October 6, 2008, Chase (who was in Boston) sent an e-mail to twenty-three recipients, including G.B., M.G., and D.D. The e-mail was obscenity-laced and contained overt threats against the park residents. The following morning, Chase sent a second obscenity-laced e-mail to thirty-four recipients, including G.B., M.G., and D.D. The e-mail contained direct threats against G.B., M.G., D.D., and others. He then sent another threatening e-mail that contained a photo of a man pointing a gun at a judge, followed by three more e-mails containing similar vile language and violent threats. M.G. and D.D. were in Baltimore when they received the e-mails. They returned to Colorado a few days later and were under the impression that Chase was in Colorado, as well.

Chase was charged with three felony counts of stalking under former CRS § 18-9-111(4)(b)(II). The court also instructed the jury on the lesser non-included offense of misdemeanor harassment by computer. The jury convicted Chase of three counts of felony stalking—one for each victim. He also was convicted of three misdemeanor counts of harassment by computer. Chase was sentenced to four years on each of the felony counts, to run consecutively.

On appeal, Chase argued his convictions of felony stalking of M.G. and D.D. must be vacated. He argued there was insufficient evidence to establish that Colorado had subject matter jurisdiction because no part of the offenses against them was committed in Colorado. The Court of Appeals disagreed.

The Court looked to CRS § 18-1-201 (state jurisdiction over criminal offenses) in relation to the felony stalking statute. The Court found that under the plain language of CRS § 18-9-111(4)(b)(II) and (c)(II), the elemental conduct of making a credible threat is defined by its result of causing a reasonable person to be in fear for his or her safety or the safety of his or her family or intimates. The question under CRS § 18-1-201 was whether Chase committed at least part of the conduct in Colorado.

Chase argued that because he wrote and sent the e-mails in Boston, and because M.G. and D.D. opened the e-mails in Baltimore, none of the conduct occurred in Colorado. The Court held that the proper question was whether the result of Chase’s conduct (causing a reasonable person to be in fear for his or her safety) occurred, at least in part, in Colorado. This is a question of fact for the jury, and the Court found sufficient support in the record to support the jury’s finding that the threats made by Chase in the e-mails would have caused a reasonable person to be in fear for his or her own safety and the safety of other persons in Colorado.

Chase made a related argument concerning whether, in response to a question from the jury, the trial court should have elaborated on the element of the offense regarding its occurrence in Colorado. The Court found no error in the trial court not elaborating on the elemental instruction, but found its response well within the trial court’s sound discretion. Specifically, the Court found that (1) the jury’s question did not reflect a fundamental misunderstanding of a legal element of the offense; (2) the original instructions properly stated the applicable law and adequately answered the question; and (3) the response of the trial court was essentially as defense counsel requested.

Chase also argued that there was insufficient evidence to prove he made a credible threat as defined in CRS § 18-9-111(4)(c)(II) and to prove he made repeated communications in connection with the threat as required under CRS § 18-9-111(4)(b)(II). The Court disagreed, finding the evidence more than sufficient to find the e-mails, with their implicit and explicit threats, to cause a reasonable person to be in fear for his or her safety or the safety of other persons. It also found that reading the six e-mails in one sitting does not mean they were not repeated communications.

Chase contended that the trial court gave an incorrect mens rea instruction to the jury. The Court disagreed. Because no contemporaneous objection to the instruction was made, it was reviewed for plain error. The instruction tracked the language of CRS § 18-9-111(4)(b)(II) and the Court perceived no error.

Chase argued that CRS § 18-9-111(4)(b)(II) was unconstitutional as applied to him because it violated his First Amendment and Equal Protection Clause rights. The Court disagreed. Speech that contains “true threats” may be regulated by the government. The jury found that Chase’s e-mails were true threats and, based on the Court’s independent review of the record, it agreed.

Finally, Chase argued that because his conduct fell within the ambit of the misdemeanor harassment statute, convicting him as a felon violated his equal protection rights. The Court disagreed. Different statutes proscribing the same criminal conduct with disparate criminal sanctions violate equal protection principles. The two statutes here, however, proscribe different criminal conduct. Specifically the felony stalking statute requires repeated communications in connection with a credible threat, whereas the misdemeanor statute requires only one communication by use of a computer in a manner intended to harass or threaten bodily injury or property damage. The conduct is related, but not identical.

Summary and full case available here.

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Colorado Court of Appeals: Plain Language of C.R.S. § 18-1.3-202 Allows Incarceration for Each Specific Grant of Probation

March 7, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Gravina on Thursday, February 28, 2013.

Deferred Judgment and Sentence—Sexual Exploitation of a Minor—CRS § 18-1.3-202.

Defendant appealed the trial court’s judgment revoking his deferred judgment and sentence, entering a judgment of conviction, and sentencing him for the crime of sexual exploitation of a minor. The judgment and sentence were affirmed.

In December 2010, defendant pleaded guilty to sexual exploitation of a child, a class 5 felony, for possessing nude photographs of his 17-year-old girlfriend. Pursuant to the plea agreement, the trial court granted defendant a deferred judgment and sentence for four years. Defendant agreed to complete Sex Offender Intensive Supervision Probation (SOISP) and other conditions, one of which was that he could not have “possession or have any contact with any form of . . . [m]aterial that contains nudity, sexual themes, and sexually explicit or violent images.”

In February 2011, defendant’s probation officer searched defendant’s house. She found a Hooters calendar and aMaxim magazine. She also found photographs of defendant with a naked woman and nine pornographic movies. This resulted in defendant being removed from his treatment program.

After a hearing, the trial court found defendant in violation of his probation and revoked his deferred judgment and sentence, and sentenced him to five years of SOISP. In addition, he was to serve ninety days in jail, with sixty days suspended and credit for one day served.

Defendant contended it was error to commit him to ninety days in jail after he had already been committed to ninety days in jail as a condition of his initial probation, because CRS § 18-1.3-202 allows only an aggregate of ninety days in jail as a condition of probation for any single conviction. The Court of Appeals disagreed. The Court found the plain language of CRS § 18-1.3-202 to allow a trial court to include as a condition of probation a commitment to jail for up to the maximum number of days permitted by statute. The ninety-day limit applies to each specific grant of probation and not to the sentencing for the underlying crime.

Defendant also argued it was error to revoke his deferred judgment because the terms of his probation were unconstitutionally vague as applied to the magazine and calendar, and the prosecution failed to prove that he knowingly possessed the movie and photos. The Court found no error. Defendant’s probation prohibited him from possessing “sexually oriented or sexually stimulating material.” Though neither the calendar nor the magazine was part of the record, the Court presumed the trial court was correct that they were sexually oriented or stimulating within the meaning of the probation condition. As for proving “knowing” possession, the Court found the record supported such a finding.

Summary and full case available here.

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Colorado Court of Appeals: Sex Offender Convicted of Class 3 Felony or Higher Must Receive Minimum of 20 Years’ Probation; Trial Court Has No Discretion to Terminate Probation Early

March 6, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Dinkel on February 28, 2013.

Probation—Sex Offender—Sexual Assault—Child Under 15.

Defendant appealed the district court’s order denying his motion to terminate his probation. The order was affirmed.

In 2002, defendant pleaded guilty to sexual assault on a child under the age or 15 by a person in a position of trust, a class 3 felony. The trial court sentenced him to an indeterminate twenty-year-to-life term of sex offender intensive supervision probation (SOISP). In 2010, the trial court granted defendant’s request to modify his probation from SOISP to “regular Sex Offender Supervision.” In 2011, the trial court denied defendant’s request to terminate his probation in its entirety.

Defendant contended that the trial court had discretion under § 18-1.3-204(4)(a) of the Sex Offender Lifetime Supervision Act (Act) to reduce or increase a term of a sex offender’s probation, and its discretion is not limited by the provisions of §§ 18-1.3-1004(2)(a) and -1008(2) of the Act. Under the plain language of the Act, however, a sex offender who is convicted of a class 3 felony and sentenced to probation must receive a minimum of twenty years of probation. The Act has no provision permitting discharge of the sex offender’s probationary sentence before the twenty-year review. Thus, the district court did not have discretion to terminate defendant’s probation until he completed at least twenty years of the sentence.

Summary and full case available here.

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2013-05-21 08:23:57