May 23, 2019

Archives for June 23, 2015

Colorado Court of Appeals: No Preservation Requirement for Sufficiency Claims Under Colorado Law

The Colorado Court of Appeals issued its opinion in People v. McCoy on Thursday, June 18, 2015.

CRS § 18-3-404—Medical Professionals—Actors.

The prosecution charged McCoy with unlawful sexual contact against two men, P.K. and G.M., arising out of separate incidents. According to each of the victims, McCoy told them that he worked in the television industry and invited them to work for them. During the victim’s interviews and training, held at McCoy’s house, McCoy touched them and asked them sexual questions. McCoy had previously told the victims that he was a physician. A jury convicted McCoy of four counts of unlawful sexual contact.

McCoy argued on appeal that the prosecution presented insufficient evidence to sustain his convictions under CRS § 18-3-404(1)(g), because the statute proscribes only conduct occurring in a physician–patient relationship and as part of a medical exam or medical treatment. Although McCoy raised this issue for the first time on appeal, Colorado law contains no preservation requirement for sufficiency claims. Therefore, the Court of Appeals reviewed the sufficiency of the evidence de novo, and found that the statute is clear and unambiguous and is not limited to medical professionals or those who claim to be medical professionals.

Here, the jury could have concluded that the victims submitted to examinations because McCoy led them to believe the examinations were part of a hiring process. The jury could also reasonably have concluded that McCoy examined the victims for his sexual gratification, and not for bona fide medical purposes, because both victims testified that McCoy touched their intimate parts while he examined them. Therefore, the evidence was sufficient to sustain McCoy’s convictions under CRS § 18-3-404(1)(g). The Court further held that the statute’s plain terms are not unconstitutionally overbroad and vague. The judgment was affirmed.

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

Colorado Court of Appeals: Constructive Amendment to Charges Does Not Require Reversal Where No Plain Error

The Colorado Court of Appeals issued its opinion in People v. Weeks on Thursday, June 18, 2015.

Death of a Child—Other Acts Evidence—Jury Instruction—Indictment—Pattern of Conduct—Expert Medical Testimony—Substitution of Counsel.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of first-degree murder and child abuse. Defendant’s convictions arose out the death of his 3-year-old daughter, A.M., who was declared brain dead after she was physically abused after urinating in her bed.

On appeal, defendant contended that reversal was required because the trial court erroneously admitted evidence of other acts showing that defendant had physically punished his other daughters and family pets for urinating and/or vomiting in the house. This other-acts evidence was properly admitted to show intent, knowledge, and absence of mistake or accident pursuant to CRE 404(b), and the incidents were sufficiently similar and numerous to be probative of an issue that was in dispute. Further, the evidence was logically relevant to disprove defendant’s claim that A.M.’s death was accidental.

Defendant also contended that his conviction and sentence for child abuse must be reversed or vacated because the court’s elemental jury instruction on child abuse effected a constructive amendment of the charge contained in the indictment. Defendant was charged in the indictment with all three categories of abuse. Varying slightly from the text of CRS § 18-6-401(1)(a), however, the indictment did not listmalnourishment and lack of proper medical care as the effects of defendant’s continued pattern of conduct against A.M. Moreover, the instruction included the two statutory effects that had been omitted from the indictment. Therefore, the instruction constructively amended the indictment. However, because defendant did not object to the instructions in the trial court, reversal was not warranted.

Defendant contended there was insufficient evidence of a causal connection between defendant’s pattern of conduct and A.M.’s death to support his conviction. The last phrase of CRS § 18-6-401(1)(a) (“ultimately results in the death of a child or serious bodily injury to a child”) applies only to the last enumerated pattern of abuse (“an accumulation of injuries”). The other enumerated patterns of abuse do not require a showing that they resulted in death or serious bodily injury. Therefore, it was sufficient for the prosecution to show that defendant engaged in a pattern of conduct that resulted in mistreatment and cruel punishment of A.M., which ultimately resulted in A.M.’s death.

Defendant also argued that the trial court erred in permitting expert medical testimony on an ultimate issue to be determined by the jury. It was not an abuse of discretion to allow four medical experts to testify that A.M.’s injuries were not accidental. These experts did not give an opinion regarding whether defendant inflicted A.M.’s injuries or whether those injuries fit the legal definition of child abuse.

Defendant argued that the court deprived him of his right to conflict-free counsel, to present a defense, and to testify when it denied his midtrial request for a substitution of counsel. An actual conflict does not arise when trial counsel pursues a strategy that would impede a defendant’s right to testify, even over the defendant’s protest. Any alleged conflict did not deprive defendant of the right to testify and call witnesses. Consequently, the trial court did not error in denying defendant’s request for new counsel. The judgment of conviction was affirmed.

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

Colorado Court of Appeals: Picture of Accused in Photo Lineup Must Match Victim’s Initial Description

The Colorado Court of Appeals issued its opinion in People v. Singley on Thursday, June 18, 2015.

Due Process—Out-of-Court Identification—Photo Lineup—Jury Instructions—Witness Credibility—Subpoena—Testimony—Cumulative.

The victim, J.A.C., was commuting home from work when two men, both carrying handguns, confronted him. When J.A.C. shouted for help, one of the men opened fire, shooting him three times, fracturing his pelvic bone, and causing permanent scarring. Singling and another man were arrested later that evening after robbing another woman. J.A.C. identified Singley as the shooter in a photo lineup. A jury found Singley guilty of attempted second-degree murder, first-degree assault, attempted aggravated, robbery, and felony menacing.

On appeal, Singley contended that the trial court violated his right to due process and a fair trial when it declined to suppress the allegedly impermissibly suggestive and unreliable out-of-court identification, as well as the subsequent in-court identification. Immediately after the shooting, J.A.C. told officers that the shooter was in his 20s with a medium-length Afro. Several days later, the police presented J.A.C. with a photographic lineup built around Singley, which showed six bald men, all of whom appear to be of the same general age as Singley, who was 46. Because the picture of Singley did not match the initial description given by the witness, the trial court erred when it found that the lineup was not impermissibly suggestive. Under the totality of the circumstances, including J.A.C.’s view of the witness at the crime scene and only taking forty-five seconds to identify Singley in the photo lineup, J.A.C.’s identifications of Singley were nonetheless reliable.

Singley contended that the trial court abused its discretion when it refused to give four proposed jury instructions on the reliability of eyewitness identification testimony. The court gave the jury a pattern witness credibility instruction, accurately informing it of the applicable law. Therefore, the trial court did not abuse its discretion when it refused to give Singley’s four additional instructions.

Singley contended that the trial court abused its discretion and violated his right to present a complete defense when it quashed his subpoena of the Aurora police chief. Specifically, he asserted that the court improperly precluded the police chief’s testimony regarding his assistance in helping J.A.C. obtain a U-Visa, which allowed him to reside and work legally in the United States. Singley cross-examined J.A.C. regarding receipt of this U-Visa in exchange for his cooperation in the investigation to establish his motive for testifying and bias. Singley’s counsel also questioned the officer who helped J.A.C. with the U-Visa application. Therefore, the testimony of the Aurora police chief was cumulative and irrelevant, and the trial court did not abuse its discretion when it quashed the subpoena. The judgment was affirmed.

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

Tenth Circuit: Social Media Sharing Can Be “Advertisement” or “Notice” of Child Pornography

The Tenth Circuit Court of Appeals issued its opinion in United States v. Franklin on Monday, May 11, 2015.

Richard Franklin used a website called GigaTribe to share images of child pornography with the “friends” he allowed into his “tribe.” He was found guilty of five counts at trial, including advertisement or notice of child pornography, and received five consecutive sentences totaling 100 years. He appealed, contending the evidence did not support the conviction based on advertisement or notice, the total sentence was unreasonable, and the judge improperly found facts outside the jury to justify the sentence.

The Tenth Circuit first discussed the “advertisement or notice” charge. Franklin’s conviction was based on 18 U.S.C. § 2251(d)(1), which prohibits “any notice or advertisement seeking or offering” to provide or receive pictures of minors engaged in sexually explicit conduct. The prosecution’s theory was that Franklin had provided advertising or notice by making the images available to his 108 GigaTribe “friends.” Franklin argued that because GigaTribe was a closed network and the statute was limited to indiscriminate public communications, his activity did not constitute advertising or notice. Looking to the dictionary definitions of “advertisement” and “notice,” the Tenth Circuit found no limitation of public communication. The Tenth Circuit likened Franklin’s GigaTribe activity to membership at a wholesale club, which would still constitute “public” activity. The Tenth Circuit further noted that Congress  “surely did not intend to limit the statute’s reach to pedophiles who indiscriminately advertise through traditional modes of communication like television or radio.”

Next, the Tenth Circuit addressed the substantive reasonableness of Franklin’s sentence. On each of the five counts, the district court imposed a separate consecutive sentence between 10 and 30 years, for a total sentence of 100 years. The guideline range in Franklin’s case was life imprisonment. However, Franklin argued the guideline range lacks an empirical basis and is unduly harsh. Under prior circuit precedent, the court determined the guideline range deserves consideration regardless of whether it is empirically based. As to the harshness of the sentence, the Tenth Circuit followed Supreme Court precedent to note it cannot apply a “presumption of unreasonableness” even to sentences outside the guideline range.

The Tenth Circuit similarly rejected Franklin’s argument that his sentence was disproportionate to other sentences for similar conduct. Analyzing Franklin’s proffered examples, the Tenth Circuit found none of the sixteen cases he cited involved the same circumstances as his. Because Franklin did not provide any evidence of nationwide disparities, the Tenth Circuit found no abuse of discretion by the trial court.

The district court decision was affirmed.

Tenth Circuit: Unpublished Opinions, 6/22/2015

On Monday, June 22, 2015, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

United States v. Martinez

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