April 20, 2019

Archives for March 16, 2015

Colorado Supreme Court: Announcement Sheet, 3/16/2015

On Monday, March 16, 2015, the Colorado Supreme Court issued five published opinions.

People v. Carrion

Ankeney v. Raemisch

Cantina Grill, JV v. City & County of Denver

Martinez v. People 

Wolfe v. Jim Hutton Educational Foundation

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Court of Appeals: Identity Theft and Unauthorized Financial Transactions Statutes Address Different Conduct

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

Identity Theft—Unauthorized Use of Financial Transaction Device—Testimony—Character Evidence—Habit Evidence—Equal Protection.

Trujillo worked at an assisted-living facility. One weekend, she took $250 in cash and a debit card from a resident. Trujillo used the debit card to spend approximately $270 at several stores. She was convicted of identity theft and theft from an at-risk adult.

On appeal, Trujillo argued that the trial court abused its discretion when it admitted the resident’s testimony that she never gave her debit card to anyone, contending it was inadmissible character evidence. The resident described her regular response to the situation of needing people to buy things for her—her habit was to never give them her debit card. This testimony was habit evidence, not character evidence, and thus the trial court did not abuse its discretion in admitting it.

Trujillo also contended that her conviction for identity theft violated her right to equal protection of the laws because, as applied to her, the identity theft statute punishes the same conduct as the unauthorized use of a financial transaction device statute but carries a harsher penalty. Trujillo’s charged conduct was using the resident’s debit card, without her permission, to purchase food, clothing, and other items. A reasonable distinction can be drawn between the conduct punished by the two statutes because the felony identify theft statute describes a theft perpetrated against the account holder of a financial device, while the misdemeanor statute describes fraudulent conduct committed against the provider of cash, property, or services in a financial transaction. Therefore, Trujillo’s equal protection rights were not violated. The judgment was affirmed.

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

Colorado Court of Appeals: Physician’s Prescription Order Falls Within Exception to Physician-Patient Privilege

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

Prescription—Physician–Patient Privilege—CRS § 18-18-415(1)(b)—Juror.

A doctor wrote Moon a prescription order for six Vicodin pills. Moon later gave a pharmacy a prescription order for sixty Vicodin pills. A pharmacist called the doctor, who said that he had prescribed six pills, not sixty. At trial, Moon testified that she received a prescription order from the doctor and gave it to the pharmacy, but she denied altering it.

On appeal, Moon contended that the trial court erroneously allowed her doctor to reveal information at trial that was protected by Colorado’s physician–patient privilege. The doctor testified that he wrote two prescription orders for Moon, one for antibiotic eyedrops and the other for six extra-strength Vicodin pills. The court also admitted copies of the two original prescription orders contained in Moon’s medical records. This evidence was not privileged in light of CRS § 18-18-415(1)(b)’s statutory exception to privileged communications for persons who alter an order in an attempt to obtain a controlled substance by fraud or deceit.

Moon also contended that the trial court abused its discretion in denying her request to excuse a juror who revealed during trial that she knew the pharmacist. The pharmacist had filled the juror’s prescriptions. The juror’s relationship with the pharmacist was not ongoing and she said that she could be fair and impartial despite knowing the pharmacist. Therefore, the court was not required to dismiss her. The judgment was affirmed.

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

Colorado Court of Appeals: Single Entry Can Only Support One Count of Burglary

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

Burglary—Challenge for Cause—Cross-Examination—Relevance—Jury Instructions—Complicity Liability—Voir Dire—Reasonable Doubt—Prosecutorial Misconduct.

After Fuller, a former grade-school classmate of R.W., knocked on the door, asking to use R.W.’s phone, two or three men rushed inside, pushing past R.W. One of the perpetrators was armed with a rifle. While the perpetrators searched the house, several people called 911, and the police arrived moments later. Fuller and Golston fled, but were apprehended nearby. Defendant’s wife, a friend who was residing in the basement, and at least three minor children had been in the house and witnessed the incident.

Defendant was taken into custody several days later after his parole officer noted that his ankle monitor placed him within 150 to 200 feet of the residence on the night of the incident. He was convicted of four counts of first-degree burglary—assault/menace; one count of first-degree burglary—deadly weapon; and three counts of misdemeanor child abuse.

On appeal, defendant argued that the trial court erred when it denied his challenge for cause to a prospective juror who was a criminal investigator for the Colorado Public Utilities Commission (CPUC). However, the CPUC does not qualify as a public law enforcement agency under the applicable statute. Therefore, it was not error for the trial court to deny the challenge for cause.

Defendant also argued that the trial court erred by restricting him from eliciting, on cross-examination, information about two alleged incidents that he claims would have been relevant as to R.W.’s motive to testify and credibility. Specifically, defendant sought to cross-examine R.W. and Detective Meier, an investigating detective on the case, to support a defense that what happened at R.W.’s house on the eve of the incident was not a robbery but a botched drug deal. This evidence, however, was too speculative to support the relevance of these inquiries; therefore, they were properly excluded.

Defendant argued that the trial court erred when it gave a second instruction on complicity liability. Standing alone, the second instruction could be confusing, but it didn’t conflict with or contradict the first instruction. When read as a whole, the instructions accurately informed the jury of the applicable law.

Defendant contended that the trial court erred, during voir dire instructions to the jury, by analogizing the beyond a reasonable doubt standard to an incomplete jigsaw puzzle, and by allowing the prosecutor to make similar comments, consequently lowering the prosecution’s burden of proof. The trial court verbally instructed the jury twice on the definition of reasonable doubt, as stated in the model jury instructions and applicable case law, and provided final written instructions. Absent evidence to suggest otherwise, it is presumed that the jury followed these instructions.

Defendant further contended that the trial court erred when it allowed the prosecutor to make statements characterizing defense counsel as attempting to distract the jury with “magic trick[s]” and “red herrings.” Although the reference to defense counsel in the prosecution’s closing argument was arguably inappropriate, as a whole, the prosecutor’s statements were fair comments on the evidence. Therefore, they were not improper. Conversely, the prosecutor’s comments during voir dire did not appear to be tied to the evidence and were improper. However, these statements were not the focus of the overall voir dire and argument. Therefore, any error was harmless.

Defendant also argued that the trial court erred in entering convictions on each of the five counts of first-degree burglary. Defendant’s burglary convictions were based on the same unlawful entry of the victims’ home. Because a single entry can support only one conviction of first-degree burglary, even if multiple assaults occur, defendant’s five first-degree burglary convictions violated the Double Jeopardy Clause.

The case was remanded to the trial court with directions to vacate defendant’s conviction and sentence for four counts of first-degree burglary—assault/menace and correct the mittimus accordingly. In all other respects, the judgment was affirmed.

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

Tenth Circuit: Unpublished Opinions, 3/13/2015

On Friday, March 13, 2015, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

United States v. Benoit

United States v. Douglas

Vigil v. Morgan

Cook v. Peters

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.