August 17, 2017

Colorado Supreme Court: Appellate Courts May Rely on Comparative Juror Analyses in Reviewing Batson Rulings

The Colorado Supreme Court issued its opinion in People v. Beauvais on Monday, April 24, 2017.

Juries and Jury Selection—Peremptory Challenges—Batson Challenges.

The Colorado Supreme Court considered whether a trial court must make express findings about the credibility of a party’s reasons for exercising a peremptory challenge when the other party has challenged that strike under Batson v. Kentucky, 476 U.S. 79 (1986). The court also considered when two or more jurors are similarly situated for comparison under Batson such that the dismissal of one but not the other indicates impermissible discrimination. The court held that although express credibility findings significantly aid appellate review, they are not strictly necessary if the trial court’s ultimate Batson ruling is otherwise reviewable on the record. The court also held that appellate courts may rely on comparative juror analyses in reviewing Batson rulings, but only where the record facilitates comparison of the jurors in all respects that reportedly motivated the peremptory strike. The court concluded that the record here supports the trial court’s Batson ruling and that the trial court did not clearly err in denying defendant’s Batson challenges. The court reversed the judgment of the court of appeals in its entirety.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Contracting Jail Nurse Not “Compensated Employee” of Law Enforcement Agency

The Colorado Supreme Court issued its opinion in Mulberger v. People on Monday, February 22, 2016.

Criminal Case Jury Selection—Challenges for Cause.

The Supreme Court held that, under the plain language of the challenge for cause statute, CRS § 16-10-103(1)(k), a “compensated employee of a public law enforcement agency” is a person who provides labor and services to, is paid by, and receives direction from a public law enforcement agency. The potential juror in this case contracted with and received compensation from a private agency for work she performed as a nurse at a county jail. That potential juror therefore was not a “compensated employee” of the county jail because she was not paid by the county jail, and the record does not contain any evidence that she was subject to the jail personnel’s direction and control. Accordingly, the trial court did not err in denying defendant’s challenge for cause. Because the trial court did not err, the Court did not address the issue concerning the proper remedy for a trial court’s erroneous ruling on a challenge for cause.

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

Colorado Supreme Court: Privately Owned Prison Not “Law Enforcement Agency” for Jury Selection Purposes

The Colorado Supreme Court issued its opinion in People v. Bonvicini on Monday, February 22, 2016.

Criminal Case Jury Selection—Challenges for Cause.

The Supreme Court held that, under the plain language of the challenge for cause statute, CRS § 16-10-103(1)(k), a “public law enforcement agency” is a division or subdivision of state or federal government that has the authority to investigate crimes and to arrest, prosecute, or detain suspected criminals. The potential juror in this case worked at a prison owned and operated by a private company that housed inmates from Alaska. The Court concluded that the private company operating the prison is not a “public law enforcement agency” under the statute because it is not an official governmental entity. Therefore, the trial court appropriately denied defendant’s challenge for cause to the potential juror who worked at the private prison. Because the trial court did not err, the Court did not address the issue concerning the proper remedy for a trial court’s erroneous ruling on a challenge for cause.

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

Colorado Court of Appeals: Underrepresentation of Asian Americans in Jury Pool Not Constitutionally Significant

The Colorado Court of Appeals issued its opinion in People v. Luong on Thursday, February 11, 2016.

Man Hao Luong was convicted of several crimes based on acts occurring in 2005 and was sentenced to 96 years imprisonment. On direct appeal, the court of appeals affirmed in part, reversed in part, and remanded, and on remand his sentence was reduced to 64 years. Luong then filed a Crim. P. 35(c) motion for postconviction relief, arguing his counsel was ineffective because he had not investigated the underrepresentation of Asian Americans in the jury pool at Luong’s trial. The postconviction court denied his motion and Luong appealed.

Luong’s original trial took place in Jefferson County, where Asian Americans comprise 2.63% of the population. Of the 100 member jury pool at Luong’s trial, none were Asian American. Luong argued his counsel should have investigated whether jurors of Asian descent were systematically or intentionally underrepresented in his jury as well as other juries in the county. Luong also asserted that the state’s destruction of the master jury list (jury wheel) and jury panel violated his constitutional rights because the destruction prevented him from proving his counsel’s performance prejudiced him. After he filed his appeal but before the court of appeals issued its opinion, the state court administrator informed Luong that the records of the jury wheel and jury panel had been found, and provided a list of the 324 people who reported for jury service on the date of Luong’s trial. Luong moved to remand for reconsideration of that information, but the court of appeals denied his motion.

On appeal, the court of appeals first noted that to establish that the composition of a jury pool is a prima facie violation of the Sixth Amendment, the defendant must prove (1) the excluded group is distinctive, (2) the representation of the group is not fair and reasonable in relation to the number of such persons in the community, and (3) the underrepresentation is due to systematic exclusion of the group in the jury selection process. The court of appeals, acknowledging that Asian Americans are a distinctive group, evaluated whether the representation of Asian Americans in the jury pool was fair and reasonable in relation to the population within the community. The court noted that implicit in Luong’s argument was a presumption that his counsel should have known the percentage of Asians in Jefferson County and been surprised that there were not at least two people of Asian descent in the 100-person jury pool. The court initially noted that counsel’s performance was not grossly incompetent and a hearing on the Crim. P. 35 motion was unnecessary. Next, using statistical analyses, the court found no constitutional violation from having a 100-person jury pool with no Asian Americans. Because the population of Asians in Jefferson County was small, the absolute impact of the absence of Asians on the jury pool was insignificant.

The court of appeals affirmed the denial of Luong’s Crim. P. 35 motion for postconviction relief.

 

10 iPad Apps for Use in the Office and the Courtroom

PrintThink of the first courtroom you were ever in. Was there a flip chart? An easel? A projector and slides? Or was there a sophisticated plasma TV screen and electronic system so attorneys could showcase their best evidence through their tablets? That last example may not have appeared in your first courtroom, but it certainly is becoming a common sight today.

Attorney Jason Márquez of Johnson Márquez Legal Group uses an iPad in every courtroom presentation where the judge allows it. Using apps like Adobe, Evernote, and Pocket Scan, he can create a compelling courtroom presentation to highlight favorable evidence while minimizing costs associated with photocopying and creating exhibit notebooks. Márquez believes so strongly in using iPads in his practice that he provides them to every member of his firm. He uses several apps, but suggests these ten apps as must-haves for office use and courtroom presentations:

  1. Adobe Acrobat® is multi-platform, PDF solution that allows you to work with all kinds of documents to: View, Create, Manipulate, Print, Combine files.
  2. GoodReader® is the super-robust PDF reader for iPad, iPhone and iPod touch. Sync with Dropbox, OneDrive, any FTP or SFTP server. Sync entire folders or individual files separately.
  3. DropBox® is a folder on your computer that synchronizes your files online and across computers. Any files you place within it will be available on your other computers with Dropbox, as well as the web.
  4. Evernote® is designed for note-taking and archiving. A “note” can be a piece of formatted text, a full webpage or webpage excerpt, a photograph, a voice memo, or a handwritten “ink” note. Notes can also have file attachments.
  5. Pocket Cloud® is a secure and fast way to remotely connect to your Mac or Windows desktop with your iPad, iPhone, iPod touch, or Android device no matter where you are. Access your files, pictures, and applications like Excel, Powerpoint, Photoshop, games or any other program.
  6. Tiny Scan® turns your iPhone/iPad into a portable scanner. Scans are saved to your phone as images or PDFs. Name and organize your scans into folders, or share them by: Email, Dropbox, Evernote, DropBox, Wi-Fi to your computer, Fax (using TinyFax).
  7. Dragon® Dictation is an easy-to-use voice recognition application powered by Dragon® NaturallySpeaking® that allows you to easily speak and instantly see your text or email messages. In fact, it’s up to five (5) times faster than typing on the keyboard.
  8. Prezi® is a presentation tool that can be used as an alternative to traditional slide making programs such as PowerPoint or Keynote. Instead of slides, Prezi makes use of one large canvas that allows you to pan and zoom to various parts of the canvas and emphasize the ideas presented there.
  9. Casemaker® is an alternative legal research tool to LexisNexis and Westlaw. It allows users to search and browse a variety of legal information such as statutes, regulations, and case law on the Web. Casemaker comes free with your CBA membership!
  10. JuryPad® assists with voir dire in different jurisdictions. Create custom seating charts for any courtroom. Add or modify a juror’s information including age, occupation, education, prior jury service, and much more.

Márquez will present on “The iPad Advantage” at the 2015 Colorado Legal & Technology Expo on Friday, August 21, 2015 at the Warwick Hotel in downtown Denver. Entrance to the Expo is free, and Márquez’s CLE program is only $19 for CBA members. Join us at the Warwick on Friday and learn how you can increase your productivity—and your bottom line.

2015 Colorado Legal & Technology Expo

The 2015 Colorado Legal & Technology Expo will take place on Friday, August 21, 2015 at the Warwick Hotel in Denver. Entrance to the Expo is free. Each 50-minute CLE program is $19 for CBA members and $39 for non-CBA members. Register for the event and find more information here.

Colorado Court of Appeals: Peremptory Challenges Can Only Be Used on Newly Empaneled Jurors After Waiver

The Colorado Court of Appeals issued its opinion in People v. Terhorst on Thursday, August 13, 2015.

Peremptory Challenge—Waiver—Motion to Suppress—Evidence—Exigent Circumstances—Underage Drinking.

Defendant held a birthday party for his 17-year-old son at their large multistory home in Lakewood. Hundreds of teenagers attended the party, alcohol was present, and some of the teenagers were intoxicated. Police responded to the party after a neighbor reported that “underage kids” were drinking alcohol at defendant’s home. A jury found defendant guilty of four counts of contributing to the delinquency of a minor.

On appeal, defendant argued that he was improperly denied a fifth peremptory challenge during jury selection. Defendant was entitled to five peremptory challenges pursuant to CRS § 16-10-104. Defendant’s counsel used peremptory challenges to strike two potential jurors and waived the third and fourth peremptory challenges. Under Crim.P. 24(d)(2), after having previously waived the use of a peremptory challenge, counsel can only make peremptory challenges “as to jurors subsequently called into the jury box.” Because no jurors were called into the jury box after defendant’s counsel’s waiver of the fourth peremptory challenge, defense counsel lost his ability to use any additional peremptory challenges.

Defendant also argued that the trial court erred in denying his motion to suppress evidence obtained after the warrantless entry and search of his home. Exigent circumstances can justify a warrantless search where there is a risk of immediate destruction of evidence. An underage drinking party attended by hundreds of suspected teenagers creates an exigent circumstance because there is a real threat that the alcohol, which is the evidence of underage drinking, will be destroyed. Accordingly, the police officers’ entry into defendant’s home was legally justified, and the trial court did not err in admitting the evidence derived from that entry.

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

Colorado Court of Appeals: Affirmative Self-Defense Instruction Available for All General Intent Crimes

The Colorado Court of Appeals issued its opinion in People v. DeGreat on Thursday, July 30, 2015.

Self-Defense—Robbery—Jury Instruction—Peremptory Challenge—BatsonChallenge.

DeGreat’s criminal charges arose from an altercation with a taxi cab driver over the fare, which culminated in DeGreat stabbing and wounding the driver. DeGreat defended on a theory of self-defense. The jury found DeGreat guilty of aggravated robbery and a related crime of violence count.

On appeal, DeGreat contended that, given the unique facts presented, he was entitled to a jury instruction on self-defense as an affirmative defense to aggravated robbery. A person may use physical force to defend himself from what “he reasonably believes to be the use or imminent use of unlawful physical force” by another person. Here, evidence was presented that supported an affirmative self-defense instruction, and DeGreat successfully defended against attempted murder and first-degree assault charges on that basis. Because the robbery was intertwined with the assault, the jury could have concluded that DeGreat had the right to defend himself. The refusal to give the self-defense instruction for the charge of aggravated robbery lowered the prosecution’s burden of proof and was not harmless. Therefore, DeGreat’s aggravated robbery conviction was reversed and the case was remanded for a new trial.

DeGreat also contended that the trial court erred in denying his Batson challenge to the prosecutor’s use of a peremptory challenge to remove Juror M, an African American, from the panel [Batson v. Kentucky, 476 U.S. 79 (1986)]. In light of the prosecutor’s stated basis for the strike, which was Juror M’s reaction to self-defense questioning, the trial court did not err in finding the prosecution offered a good faith, race-neutral basis for its peremptory challenge.

DeGreat contended that the trial court plainly erred in failing to sua sponte strike testimony that DeGreat had been offered a plea bargain. DeGreat’s attorney did not make a contemporaneous objection to this testimony. Because no binding precedent clearly precludes evidence regarding plea offers, the trial court could not have been expected to sua sponte strike such unsolicited testimony.

DeGreat contended that the trial court erred in admitting recorded phone calls he placed from jail in which he attempted to solicit the victim not to appear for trial. There is no reasonable expectation of privacy in phone calls placed from jail. Furthermore, the wiretapping statute does not apply to inmate phone calls placed from jail. Thus, the trial court did not err in admitting the jailhouse phone calls.

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

Tenth Circuit: District Court Required to Review All Circumstances in Determining Validity of Batson Challenge

The Tenth Circuit Court of Appeals issued its opinion in United States v. Vann on Friday, January 16, 2015.

Rayvell Vann paid cash for a one-way Amtrak ticket from Los Angeles to Kansas City two hours before the train departed. A confidential informant relayed the unusual circumstances of the ticket purchase to DEA Agent Small in Albuquerque, and when the train made a scheduled stop in New Mexico, Agent Small boarded the train and located Vann. After a brief conversation, Agent Small asked to search Vann’s bags and he consented. The search revealed two bottles of codeine, 25 OxyContin pills, and two jars containing approximately 100 grams of PCP. Vann was interrogated and admitted to dealing drugs, but he contended he did not know the PCP was in the box where the pills were found because he had shipped the PCP via UPS. He was charged with two counts of possession with intent to distribute PCP and codeine, and was convicted on both counts. He dismissed his attorneys at sentencing, deciding instead to proceed pro se, and was sentenced to 15 years’ imprisonment. He appealed, raising four issues.

Vann’s first issue on appeal was that the district court committed legal error during jury selection because it improperly administered the three-part Batson test after the government moved to strike the sole African-American member of the venire. Both sides concede that the other party met its obligation as to the first and second parts of the Batson test, so the Tenth Circuit analyzed only the third part — the district court’s obligation to consider all circumstances in determining whether there was racial animosity in the juror strike. During trial, Vann objected to the prosecution’s strike of the juror, but Vann also filed a post-trial Rule 33 motion, arguing that the government’s reasons for striking the juror were pretextual. The Tenth Circuit examined the record, acknowledging the record was limited as to the district court’s reasons for accepting the prosecution’s race-neutral explanations. However, the Tenth Circuit noted that its precedent makes clear that the district court need not make a complete record as to the reasons for denying a Batson challenge, although the better practice may be to complete the record. As to Vann’s post-trial motion, the Tenth Circuit strongly discouraged the practice, finding that this put the district court into an awkward position. Vann could have instead reiterated his Batson challenge after the completion of voir dire but before the jury was empaneled, which would have allowed the court to adequately compare similarly situated jurors before the trial began.

Vann next contended the district court erred by allowing Agent Small’s expert testimony at trial. Vann does not claim error in the court’s qualification of Agent Small as an expert, contesting only the reliability of the testimony. The Tenth Circuit noted that the district court properly vetted Agent Small through a Daubert hearing and at trial. The Tenth Circuit also found that, contrary to Vann’s assertions, Agent Small had considerable experience in the drug trade and had attested to numerous PCP arrests. The Tenth Circuit found no abuse of discretion.

Vann’s third claim was that the district court erred in not sua sponte addressing alleged prosecutorial misconduct during trial. After reviewing the record, the Tenth Circuit found that the prosecution’s comments were “simply lawyering,” or attempts to influence the jury’s verdicts by presenting evidence favorable to its case. Further, a limiting instruction provided by the district court and limiting remarks made by the prosecutor mitigated any error there might have been.

Vann’s final claim is that he did not knowingly waive his right to counsel at sentencing. The district court had conducted a waiver-of-counsel inquiry at the beginning of trial, and Vann elected to have representation at trial. When Vann discharged his attorney at the sentencing phase, the trial court questioned whether he was firing his attorney as a tactic to gain time, since he had fired two previous attorneys. The court allowed him to proceed pro se at the sentencing phase. Vann contends that he did not receive an adequate waiver-of-counsel inquiry prior to sentencing, but the Tenth Circuit found he was adequately informed of the risks of proceeding unrepresented due to the previous inquiry.

The Tenth Circuit affirmed the district court.

Colorado Court of Appeals: No Error to Admit Hearsay Statements for Purpose of Rehabilitating Credibility

The Colorado Court of Appeals issued its opinion in People v. Pernell on Thursday, November 20, 2014.

Restraining Order—Sexual Assault—Challenge for Cause—Jury Selection—Motion for Mistrial—Hearsay—Excited Utterance—Rape.

In violation of a restraining order, defendant went to his ex-wife’s home one evening while she and her boyfriend were inside. Defendant forced his way inside, put a gun to the boyfriend’s head and, after allowing the boyfriend to leave, sexually assaulted his ex-wife. He was convicted of violating a restraining order, first-degree burglary, menacing (two counts), second-degree kidnapping, sexual assault, and commission of a violent crime (three counts).

On appeal, defendant contended that the trial court erred in granting the prosecution’s challenge for cause to prospective Juror H, who indicated that she had doubts about her ability to be fair and impartial because her son had been accused of burglary in connection with a domestic violence incident. Although she agreed with defense counsel that she could follow the court’s instructions and reserve judgment until hearing all of the evidence, the record indicated that she was deeply conflicted about her ability to be fair given her experience with her son’s case. Because her answers were equivocal and conflicting, and because it was not satisfied she would render a fair and impartial verdict, the court acted within its discretion in removing her.

Defendant also contended that the trial court erred in not granting his motion for mistrial based on the erroneous admission of an officer’s testimony in which he recounted the ex-wife’s description of the incident twelve hours after it occurred. After the incident and before reporting it to police, she stayed the night at her boyfriend’s and then went home the next morning to change her clothes. Despite the officer’s description of the ex-wife as “distraught,” “traumatized,” and “terrified,” the evidence indicates that the ex-wife had “several independent interludes of reflective thought” that rendered her statements less than spontaneous. Therefore, the trial court erred in admitting the statements as excited utterances. However, the ex-wife’s statements were admissible as prior consistent statements to rehabilitate her credibility after defendant had attacked it. Therefore, any error was harmless. Any further improper testimony was cured by instructing the jury to disregard it. Finally, the cumulative effect of the matters raised on appeal did not deprive defendant of a fair trial.

Defendant also argued that the district court erred in allowing the ex-wife, her boyfriend, and the prosecutor to use the term “rape” rather than “sexual assault” to describe defendant’s conduct. In a sexual assault case, neither a witness nor a prosecutor is barred from using the term “rape” simply because the term no longer appears in the criminal statutes. Therefore, the court did not err in allowing the witnesses and prosecution to use this term. The judgments were affirmed.

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

Colorado Court of Appeals: Insufficient Findings on Batson Challenge Warranted Reversal

The Colorado Court of Appeals issued its opinion in People v. Beauvais on Thursday, October 23, 2014.

Jury Selection—Peremptory Challenge—Batson Challenge.

A jury found Beauvais guilty of one count of stalking under CRS § 18-3-602(1)(c) after she repeatedly called, e-mailed, and sent text messages to a man she met on the Internet. On appeal, she contended that the trial court committed reversible error in the jury selection process, and that CRS § 18-3-602)(1)(c) is unconstitutional.

Beauvais first contended that the trial court clearly erred by failing to sustain her Batson challenge to the prosecution’s use of peremptory challenges to excuse potential jurors on account of their gender [Batson v. Kentucky, 476, U.S. 79 (1986)]. The record refutes several of the prosecutor’s explanations for excusing potential jurors. The prosecutor did not attempt to excuse several males on the panel that had the same characteristics for which the prosecutor claimed he excused the female jurors. However, the prosecutor also claimed that each of the potential jurors he had excused was either young, sick, or a college student. These justifications are objectively verifiable and could potentially form the basis of a legitimate peremptory challenge. However, the trial court made no findings regarding the potential jurors’ ages or health, and there is nothing in the record to show whether the trial court believed that the prosecutor sought to excuse any of them because they were college students. Because the record was insufficient to determine whether the trial court’s ruling was clearly erroneous, the matter was remanded to the trial court for additional findings.

Beauvais next contended that, on its face, CRS § 18-3-602(1)(c) (the stalking statute)is unconstitutionally vague and overbroad. The Colorado Supreme Court and a division of the Court of Appeals have both concluded that a prior substantially identical version of this statute was neither unconstitutionally vague nor overbroad. Therefore, Beauvais’s facial challenge was rejected.

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

Colorado Court of Appeals: Applying Novotny to Case Pending on Appeal Not a Retroactive Application

The Colorado Court of Appeals issued its opinion in People v. Maestas on Thursday, October 23, 2014.

Challenge for Cause—Peremptory Challenge—Constitutional Right to Impartial Jury.

A jury found defendant guilty of aggravated robbery, menacing, and eluding police. A division of the Court of Appeals overturned defendant’s conviction and remanded the case for a new trial after determining the trial court had erred by denying one of defendant’s for-cause challenges. The Supreme Court remanded the case to the Court of Appeals for reconsideration in light of its recent decision in People v. Novotny, 2014 CO 18, which held that, where a district court erroneously deprives a defendant of a peremptory challenge, reversal is warranted only where the error was not “harmless under the proper outcome-determinative test.”

The Court first rejected defendant’s contention that applying Novotny retroactively to his case would violate federal and state due process guarantees. Applying Novotny to a case pending on appeal is not a retroactive application of the law and does not offend due process.

The Court agreed with defendant that the trial court abused its discretion by denying his challenges for cause to two prospective jurors, Juror F and Juror H, who indicated they would hold it against defendant if he refused to testify. The trial court denied defendant’s challenges for cause as to Jurors F and H, and defendant used a peremptory challenge to remove Juror H from the jury. Defendant had exhausted his peremptory challenges, so Juror F ultimately served on the jury. Because Juror F, a biased juror, sat on the panel, defendant’s constitutional right to an impartial jury was implicated, and reversal was required. The case was remanded for a new trial.

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

Colorado Court of Appeals: Defendant Need Not Be Same Race as Excused Juror to Make Batson Challenge

The Colorado Court of Appeals issued its opinion in People v. Friend on Thursday, September 25, 2014.

Child Abuse—Murder—Batson Challenge—Jurors—Challenge for Cause—Expert Testimony—Merger.

M.B., the 12-year-old daughter of defendant’s girlfriend, C.H., was declared brain dead and taken off life support after defendant physically abused her, causing her fatal injuries. A jury convicted defendant of (1) first-degree murder—victim under the age of 12, position of trust; (2) child abuse causing death; (3) child abuse causing death—pattern of conduct; (4) two counts of child abuse causing serious bodily injury; and (5) child abuse causing serious bodily injury—pattern of conduct.

On appeal, defendant contended that the trial court erred in holding that he did not have standing to assert a challenge under Batson v. Kentucky, 476 U.S. 79 (1986). Defendant made a Batson challenge when the prosecutor used a peremptory challenge to excuse Juror H, an African American. The prosecutor asserted that defendant could not make a Batson challenge because he was not African American. The trial court agreed and concluded that the challenged juror and defendant had to be of the same race. A defendant does not have to be of the same race or cognizable group as that of an excused juror to make a Batson challenge. However, the prosecution provided race-neutral grounds for excusing Juror H, and defendant did not establish purposeful discrimination. Therefore, the court did not err.

Defendant contended that the trial court should have granted his challenges for cause to two prospective jurors, Juror C and Juror W, who were later removed by peremptory challenges. Because defendant failed to demonstrate that a biased juror actually sat on the jury, the court did not err.

Defendant also contended that the trial court erred in admitting the testimony of three expert witnesses regarding injuries consistent with non-accidental trauma, as well as Detective Thrumston’s testimony recounting M.B.’s removal from life support. The Court of Appeals ruled that the trial court did not abuse its discretion nor err in admitting the testimony.

Defendant further argued that the court erred in failing to merge his convictions. Defendant is correct that the four child abuse counts must merge into one conviction because they are alternative ways of committing the offense of child abuse. The child abuse convictions, however, should not have merged into the first-degree murder conviction, because each offense contains an element not included in the other. The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

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