May 19, 2019

Archives for June 11, 2012

Colorado Court of Appeals: District Court Did Not Err in Denying Request to Recognize Implied Easement of Necessity on Adversely Possessed Land

The Colorado Court of Appeals issued its opinion in Bittle v. CAM-Colorado on June 7, 2012.

Adverse Possession—County—Indispensable Party—Public Roads—Implied Easement of Necessity—CRCP 59(a)—CRCP 15(b).

In this adverse possession action, defendant CAM-Colorado, LLC (CAM) appealed those parts of the judgment entered in favor of plaintiffs Dale and Patricia Bittle. The Bittles cross-appealed the district court’s order denying their post-trial CRCP 59(a) motion. The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

The Bittles are a married couple who live on land that they also use for farming and grazing livestock. Their land abuts land owned by CAM, a coal company subsidiary. The Bittles initiated a claim for adverse possession, and CAM sought an easement of necessity across the Bittles’ land.

CAM contended that the district court erred in determining that Mesa County was an indispensable party that must be joined before it could determine whether the three roads on the Bittles’ property were public roads. However, the trial court was required to determine whether the roads were dedicated and accepted by the county and, if so, whether those roads had been vacated later or abandoned by the county. Therefore, Mesa County was an indispensable party, because in its absence, the declaration would not be binding on the county and complete relief could not be accorded between the parties.

CAM also contended that the district court erred in denying its request to recognize an implied easement of necessity on the land the Bittles adversely possessed. The person claiming an implied easement of necessity bears the burden of proving such an easement exists at the time the unity of ownership was severed. Here, the Bittles had possessed the land since at least 1977; the latest date by which the severance occurred was 1995. CAM had not pointed to any evidence in the record indicating that, at the time of severance in 1995, it or its predecessors in title were using their land in a manner that would necessitate access through the adversely possessed property. Instead, CAM’s expert stated at trial that the easement was mainly “for future purposes.” Further, evidence in the record proved that there were alternatives offering reasonable means of ingress and egress to CAM. Because CAM did not prove the requirements for an implied easement of necessity, the district court did not err in denying its request to recognize such an easement.

The Bittles contended that the district court abused its discretion in denying their CRCP 59(a) motion to amend the judgment to include a ruling on whether they had adversely possessed the property bordered by the Loma Drain referred to as parcel 4. The Bittles failed to include this claim in their complaint. However, they subsequently filed a timely CRCP 59(a) motion to amend the judgment pursuant to CRCP 15(b). Based on the opening statements, evidence presented, and closing arguments, the parcel 4 issue was actually and intentionally tried by both parties. The record also demonstrates that CAM never objected to the Bittles’ presenting evidence and argument regarding the parcel 4 issue. Accordingly, the court abused its discretion in denying the Bittles’ CRCP 59(a) motion.

Summary and full case available here.

Colorado Court of Appeals: Transcript of Interview About Railroad Incident Was Admissible as Prior Consistent Statement to Rebut General Charge of Fabrication

The Colorado Court of Appeals issued its opinion in McLaughlin v. BNSF Railway Co. on June 7, 2012.

Federal Employers’ Liability Act—Locomotive Inspection Act—Safety Appliance Act—Personal Injury—Negligence—Strict Liability—Eggshell Doctrine—Aggravation Doctrine—Pre-existing Medical Condition—Lost Wages—Collateral Source Rule—Disability Benefits.

Defendant BNSF Railway Company (railroad) appealed the judgment entered and damages awarded after a jury found in favor of its employee, plaintiff Thomas McLaughlin, on his statutory strict liability and negligence claims. The judgment was affirmed.

McLaughlin was injured when a locomotive handbrake allegedly malfunctioned when he attempted to release it. He sued the railroad for negligence and strict liability. The railroad asserted that McLaughlin’s injuries were not caused by the handbrake, and alternatively that the jury should apportion damages because McLaughlin had preexisting conditions that the incident had merely aggravated.

The railroad contended that the district court erred by (1) admitting a transcript of the railroad’s claims agent’s post-incident interview of McLaughlin because it contained hearsay, and (2) denying the railroad’s motion for a new trial based on this admission. The railroad’s counsel offered a page of the transcript to challenge McLaughlin’s testimony about the handbrake tension or pressure, and also more generally challenged his description of the incident and his injuries. Consequently, the entire transcript of McLaughlin’s interview about the incident was admissible as a prior consistent statement to rebut the general charge of fabrication. Alternatively, it was admissible to provide context for McLaughlin’s testimony on cross-examination that he had not reported experiencing tension or pressure in operating the handbrake. Because it was not offered for the truth of the matter asserted, it was not inadmissible hearsay.

The railroad also contended that the district court erred by improperly instructing the jury on the eggshell and aggravation doctrines. The evidence showed that although McLaughlin’s doctors had diagnosed him with pre-existing degenerative disc disease, other age-related deteriorating back conditions, and a pre-existing hernia from his childhood, he had not experienced any symptoms before the incident. The eggshell doctrine can apply in Federal Employers’ Liability Act (FELA) cases involving pre-existing conditions. The aggravation doctrine applies when the pre-existing condition was symptomatic before the incident giving rise to the plaintiff’s claim. The eggshell doctrine instruction was appropriate here because (1) there was no evidence that McLaughlin had suffered any pain or symptoms from his back conditions or hernia before the handbrake incident; and (2) there was evidence that his pre-existing conditions were made symptomatic or exacerbated by the incident. In contrast, the evidence did not support giving the aggravation instruction or the modified verdict form. However, any error was harmless because it was in the railroad’s favor.

The railroad further argued that the district court erred by denying its motion in limine to preclude McLaughlin from presenting evidence of lost wages because of his receipt of Railroad Retirement Act (RRA) disability benefits or to reduce the damages award by the amount of those benefits. RRA payments, such as those received by McLaughlin here, are collateral source benefits and may not be offset against a FELA award. Therefore, the district court did not err in denying the motion in limine.

Summary and full case available here.

Colorado Court of Appeals: Search of Defendant’s Cell Phone’s Call History Was Lawful Search Incident to Arrest

The Colorado Court of Appeals issued its opinion in People v. Taylor on June 7, 2012.

Conspiracy to Distribute—Unlawful Search—Challenge for Cause—Entrapment Instruction—Affirmative Defense.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of conspiracy to distribute a schedule II controlled substance. The judgment was affirmed.

Defendant was approached by undercover officers to sell them drugs. Defendant indicated that he did not have any drugs, but he could call someone who did. After defendant made a phone call, a woman showed up and sold the undercover officers $40 of crack cocaine. Both the woman and defendant were arrested, and defendant’s cell phone was seized.

Defendant contended that he was subject to an unlawful search when the police reviewed his cellular telephone’s call log without obtaining a warrant. A search of the contents of a defendant’s cellular telephone or other personal electronic device is a lawful search incident to arrest. Therefore, the search of defendant’s cell phone’s call history was a lawful search incident to arrest, and the trial court did not err in denying defendant’s suppression motion.

Defendant next contended that the trial court abused its discretion in denying his challenge for cause to a prospective juror. After Juror J indicated that he would find defendant guilty based on no evidence, defense counsel challenged Juror J and a second juror for cause, which was denied. The trial court, however, explained the presumption of innocence to the jurors, and the two jurors in question indicated that they could follow the court’s instructions. Therefore, the trial court did not err in denying the challenges for cause.

Defendant further contended that the trial court erred in denying his tendered entrapment instruction based on its conclusion that defendant could not plead the affirmative defense of entrapment because he denied committing the crime. Under Colorado law, entrapment is an affirmative defense. Therefore, a defendant’s denial of wrongdoing precludes an entrapment instruction. Furthermore, the evidence here failed to support such an instruction.

Summary and full case available here.

Colorado Court of Appeals: Trial Court Did Not Err by Instructing the Jury on Other Theories of Liability Listed in Sexual Exploitation Statute

The Colorado Court of Appeals issued its opinion in People v. Rowe on June 7, 2012.

Child Pornography—Sexual Exploitation—Theories of Liability—Evidence—Closing Argument—CRE 404(b).

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of sexual exploitation of a child. The judgment was affirmed.

Defendant’s computer revealed pictures and videos depicting child pornography. Defendant contended that the trial evidence was insufficient to prove that he committed sexual exploitation of a child. A defendant “offers” sexually exploitative material by making it available or accessible to others. Here, defendant knowingly stored files containing sexually exploitative material in a shared folder on a peer-to-peer sharing network on his computer. Such conduct constitutes an offer of sexually exploitative material proscribed by CRS § 18-6-403(3)(b).

Defendant contended that the trial court erred by instructing the jury on other theories of liability listed in the sexual exploitation statute. The evidence provided a sufficient factual basis to support his conviction under the theory that he offered sexually exploitative material. Therefore, it was not error to argue other theories even though they were not supported by sufficient evidence.

Defendant argued that reversal was required because the prosecutor’s remarks in closing argument improperly stated the law. Read in context, the prosecutor’s remarks stressed that defendant offered the files and promoted them. Because the evidence was sufficient to prove that defendant offered sexually exploitative material, any of the prosecutor’s statements regarding the term “promotes” did not materially contribute to his conviction.

Defendant next contended that the trial court erred in admitting other acts evidence under CRE 404(b). Testimony of a police officer involving a prior incident where defendant admitted to watching and enjoying child pornography was properly used to prove the issues of intent and motive. Specifically, it was used to rebut any assertion by defendant that there was a mistake of fact or that he did not like child pornography. The trial court also admitted 100 images of animated child pornography found on his computer during the search in this case. This evidence was properly admitted to show lack of mistake of fact, intent, and motive. The probative value of this evidence was not substantially outweighed by the danger of unfair prejudice, and the Court gave a limiting instruction to the jury. Therefore, the trial court did not err in admitting this evidence.

Summary and full case available here.

Colorado Court of Appeals: Experts’ Testimony Regarding Drug Use, Psychopathy, and Lack of Empathy and Remorse Were Relevant and Properly Offered

The Colorado Court of Appeals issued its opinion in People v. Herdman on June 7, 2012.

Sexual Assault—Expert Testimony—Mental Condition—Involuntary Intoxication—Relevance—Lay Witness Testimony—Hearsay—Deadly Weapon.

Defendant Robert Herdman appealed his judgment of conviction for sexual assault, second-degree kidnapping, and a crime of violence sentence enhancer. The judgment was affirmed and the case was remanded with directions.

Herdman contended that the trial court reversibly erred in admitting testimony of the prosecution’s experts. The prosecution called the bond examiner, the competency examiner, and the sanity examiner to testify regarding the cause of Herdman’s psychological problems and mental state. Pursuant to CRS § 16-8-107(1.5)(a), the prosecution is allowed to introduce evidence developed in the course of a court-ordered examination to rebut mental condition evidence introduced by a defendant to show incapacity to form a culpable mental state. Here, the experts’ testimony regarding Herdman’s cocaine use, psychopathy, narcissism, malingering, and lack of empathy and remorse were relevant, were properly offered to rebut his claim of involuntary intoxication, and were not offered to prove bad character. Further, the admission of this testimony did not violate Herdman’s privilege against self-incrimination.

Herdman next contended that the court reversibly erred in allowing the bond examiner to testify, because the bond examiner’s testimony was irrelevant and highly prejudicial, and amounted to evidence of Herdman’s bad character. However, the bond examiner’s testimony did not pertain to Herdman’s state of mind at the time of the offense. Therefore, any error was harmless.

Herdman contended that the trial court reversibly erred in allowing Sergeant Gallegos to testify that (1) Herdman did not serve in Iraq; (2) he did not have post-traumatic stress disorder; and (3) his behavior after his return from overseas was “rebellious.” Although the testimony about Herman’s service in Iraq was inadmissible hearsay, any error was harmless, and the remainder of the testimony was proper.

Herdman argued that the evidence presented was insufficient to support his convictions for sexual assault and the crime of violence sentence enhancer, because there was no evidence that he used a deadly weapon to cause submission of the victim. The prosecution presented evidence that Herdman showed the victim his knife, threatened to cut her if she did not do as he said, ordered her to an apartment, put the knife beside the bed where she could see it, and then sexually assaulted her. Such evidence was more than sufficient to allow a reasonable jury to conclude that Herdman used, possessed, or threatened to use a deadly weapon and that he then used the weapon to cause the victim’s submission to the sexual assault.

Herdman also argued that his sexual assault conviction must merge into his kidnapping conviction because the former is a lesser-included offense of the latter. A sentence enhancer is not a substantive element of an offense for purposes of double jeopardy analysis. Accordingly, Herdman’s double jeopardy argument failed. The judgment was affirmed and the case was remanded to the trial court to correct the mittimus.

Summary and full case available here.

2011 Judicial Branch Awards Received by 1st, 7th, 8th, 16th, 17th, and 18th Judicial Districts

Several Judicial Branch Awards for 2011 were announced on Monday, June 11, 2012:

  • The 2011 Colorado Judicial Branch Team of the Year award went to the Eighth Judicial District Juvenile Probation Unit;
  • The 2011 Colorado Judicial Branch Manager of the Year award went to David Book, a probation supervisor in La Junta in the Sixteenth Judicial District;
  • The 2011 Colorado Judicial Branch Court Employee of the Year award went to Jenni Turnidge, managing court interpreter for the Eighteenth Judicial District;
  • The 2011 Colorado Judicial Branch State Court Administrator’s Office Employee of the Year award went to Emy López;
  • The 2011 Colorado Judicial Branch Judicial Officer of the Year award went to the Honorable Sandra K. Miller, Delta County Court Judge; and
  • The 2011 Colorado Judicial Branch Probation Employee of the Year award went to Judy Sanger, a probation officer who works with juveniles in the First Judicial District.

The Colorado Judicial Branch annually recognizes a handful of outstanding employees for exemplary work contributing to the high quality of service provided throughout the state’s twenty-two judicial districts.

Nominating the Juvenile Probation team were numerous professionals involved in juvenile justice and rehabilitation throughout the Eighth Judicial District, which serves Jackson and Larimer counties.

Members of the Eighth Judicial District Probation Team are Francesca Arruzza-Obrien, Lori Bragg, Denise Cosgrove, Moriah Eisert, Courtney Gailey, Paula Gates, Tom Harbaugh, Tonya Hertz, Lawrence Hollier, Dirk Kettlekamp, Jessica Link, Mandi Lozano, Scott Newbold, Trevor Quinlivan, Tracy Stromberg, Dixie Vogel, Gordon Walker, and Carol Wright.

Book was nominated for the award by Sixteenth Judicial District Chief Probation Officer Tobin Wright, Chief Judge Jon Kolomitz, other members of the probation department, and Joseph Carrica III, assistant executive director for the Southeast Behavioral Health Group.

Turnidge was nominated for the award by twenty-two district and county court judges and magistrates serving the Eighteenth Judicial District. The judicial officers nominated Turnidge because she exemplifies the dedication and devotion to the Judicial Branch to which all Judicial employees should aspire.

López was nominated for the award by Colleen Kent, managing court interpreter for the Seventeenth Judicial District.

Judge Miller was nominated for the award by Pamela Bliss, volunteer coordinator with Meth Free Delta County, and Seventh Judicial District Probation Officer Juan P. Gallegos.

Sanger was nominated for the award by several judges, a prosecutor, and others involved with the Jefferson County Mental Health Court, where she was the first supervising probation officer.

The Colorado Judicial Branch includes the Supreme Court and Court of Appeals, as well as the state’s district and county trial courts.  The branch is also home to the Department of Probation Services, which employs more than 1,100 people including approximately 900 probation supervisors and officers.  The department’s officers are responsible for supervising more than 6,000 juvenile offenders and more than 54,000 adult offenders.

As of July 1, 2011, the Colorado Judicial Branch employed approximately 3,400 employees, which includes 374 justices, judges, and magistrates. In fiscal year 2011, the latest for which full statistics are available, there were 505,265 cases filed statewide at the County Court level, 246, 728 filed in District Court, 2,742 in the Court of Appeals and 1,387 in the Supreme Court.  There were an additional 956 cases filed in the Water Courts.

Judge F. Stannard Lentz to Retire from Mineral County Court Bench

The Twelfth Judicial District Nominating Commission will meet Monday, August 13, 2012 at the Mineral County Courthouse to interview and select nominees for appointment by Governor Hickenlooper to the office of County Judge for Mineral County. The vacancy will be created by the retirement of the Honorable F. Stannard Lentz on January 8, 2013.

Eligible applicants for appointment to fill the vacancy must be qualified electors of Mineral County and must have graduated high school or attained the equivalent of a high school education as indicated by the Department of Education. Applications must be received by Friday, July 20. The appointed county court judge will serve an initial provisional term of two years before facing a retention election. If retained in the general election, judges serve four-year terms.

Further information about applying for the vacancy is available here from the Colorado Judicial Branch.

Tenth Circuit: No Opinions, 6/8/12

On Friday, June 8, 2012, the Tenth Circuit Court of Appeals issued no opinions.