July 19, 2019

Archives for June 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.

Colorado Supreme Court: Announcement Sheet, 6/22/2015

On Monday, June 22, 2015, the Colorado Supreme Court issued one published opinion.

Upper Black Squirrel Creek Ground Water Management District v. Cherokee Metropolitan District

The summary for this case is 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.

Tenth Circuit: Junk Fax Claims Against Commercial Insurer Barred by Policy Language

The Tenth Circuit Court of Appeals issued its opinion in Emcasco Insurance Co. v. CE Design, Ltd. on Monday, May 4, 2015.

In April 2008, Custom Mechanical Equipment, Inc., an Oklahoma company, faxed an unsolicited advertisement to CE Design, Inc. in Illinois. Rather than simply throw the fax away, CE Design sued Custom in Illinois state court and sought to certify a class of others who had received unsolicited faxes from Custom. CE Design alleged Custom breached the Telephone Consumer Protection Act (TCPA), which provides $500 in damages for each violation, as well as alleging common law conversion based on the use of paper, toner, the fax machine, and CE Design staff time. Custom submitted the claim to its insurer, Emcasco, which denied coverage and declined to defend Custom. In June 2011, CE Design and Custom settled, entering into an agreement for $1,276,000 in damages ($500 for each of the 2,552 junk faxes Custom sent) whereby CE Design agreed to enforce the judgment only against Emcasco. The Illinois trial court approved the settlement in September 2011.

CE Design brought suit against Emcasco in the U.S. District Court for the Western District of Oklahoma, seeking a declaratory judgment that Emcasco’s policy legally obligated it to pay the CE Design’s judgment. Emcasco then filed suit in the U.S. District Court for the Northern District of Illinois, seeking a declaratory judgment that it was not liable. Upon CE Design’s motion, the Illinois district court transferred the case to Oklahoma. In June 2013, both parties moved for summary judgment. Emcasco argued it had properly denied coverage and refused to defend because Custom’s fax was neither an “occurrence” causing property damage nor a “personal and advertising injury,” and alternatively argued that three policy exclusions barred coverage. CE Design responded that the policy covered Custom and no exclusion applied. After hearing arguments, the district court granted summary judgment in favor of Emcasco and denied CE Design’s motion. CE Design appealed.

On appeal, the parties agreed that Oklahoma law regarding insurance contracts governed the dispute. At oral argument, CE Design conceded the statutory violation language in the policy removed Emcasco’s duty to defend the TCPA claim. The Tenth Circuit agreed. Turning next to the conversion claim, the Tenth Circuit found that CE Design sufficiently pleaded conversion, but in doing so defeated policy coverage, since by pleading conversion CE Design acknowledged that the fax was not an “accident” for policy purposes. The Tenth Circuit next turned to CE Design’s “negligent conversion” claim, alleging conversion under a mistaken belief of right to appropriation of the property. The Tenth Circuit agreed that such “negligent conversion” could qualify as an “accident” under the policy, but CE Design’s bare allegations of mistake were not supported by anything in the record, noting that “[i]f this sufficed as an accident, it is hard to imagine what would not.” The Tenth Circuit found Emcasco had no duty to defend under the “negligent conversion” theory. Tenth Circuit similarly rejected CE Design’s Illinois Consumer Fraud Act (ICFA) claim, finding CE Design was required to prove the defendant intended the plaintiff to rely on a deceptive act in order to further an ICFA claim, and further finding such a deceptive act would trigger all of the same exceptions from Emcasco’s coverage.

The Tenth Circuit next analyzed Emcasco’s argument that its statutory violation exclusion barred coverage under all three of CE Design’s claims. The Tenth Circuit, looking at the plain language of the insurance policy, agreed that coverage would have been barred, since all of CE Design’s claims relied at their core on violations of the TCPA. Because TCPA claims were barred by the contract, all of CE Design’s claims failed.

The Tenth Circuit affirmed the district court’s grant of summary judgment to Emcasco.

Tenth Circuit: Settlement Fair Because it Incentivized Western Union to Change its Business Practices

The Tenth Circuit Court of Appeals issued its opinion in Tennille v. Western Union Co. on Friday, May 1, 2015.

Western Union was the subject of a class action lawsuit challenging its practice of holding and earning interest on customers’ money after failed wire transfers without notifying customers of the failure. While an interlocutory appeal from Western Union was pending, Western Union and the class representatives reached a settlement, agreeing that Western Union would change its business practices to notify customers when wire transfers failed, would help customers whose unclaimed money had escheated to the state to reclaim their money, and would pay interest for the time Western Union held the funds before the escheat. The settlement will be funded using approximately $135 million in customers’ unclaimed funds still held by Western Union, and the funds will be distributed as follows: (1) a $7,500 incentive award to each of the four named plaintiffs; (2) interest to the customers who have already claimed their money from Western Union for the time period from the transfer’s failure to the customer’s claim, minus Western Union’s administrative fees; (3) the unclaimed money plus interest to the customers whose money Western Union still holds, minus Western Union’s administrative fees; (4) the costs of administering the settlement; and (5) 30 percent of the settlement award to class counsel as attorney fees.

Because the settlement was reached during the pendency of the interlocutory appeal, the Tenth Circuit remanded to the district court to consider whether to certify the class and approve the settlement. The district court preliminarily certified the class and approved the settlement, directing that notice be sent to the approximately 1.3 million putative class members. A dozen class members objected to the settlement, including Sikora Nelson (represented by counsel) and Paul Dorsey (pro se). The district court held a “fairness hearing” and eventually overruled all the objections, entered a final class certification, approved the settlement, and entered judgment. Objectors posted bond after it was reduced by the Tenth Circuit and appealed.

The named plaintiffs argued the objectors lacked standing to pursue the appeal, but the Tenth Circuit disagreed, finding Article III standing as to all class members. Plaintiffs also argued the objectors were raising arguments that were not properly preserved below, but the Tenth Circuit again disagreed, noting it has wide discretion to consider all arguments on appeal and the arguments were raised in some form in the lower court proceedings.

Objectors first contended the district court erred in certifying the class because the named plaintiffs could not fairly and adequately protect the interests of the class as a whole, and the district court should have created subclasses to adequately address the needs of all class members. Objector Nelson first argued that because the named plaintiffs had arbitration clauses in their agreements with Western Union and not all class members had arbitration provisions, including Nelson, the plaintiffs could not adequately protect the other class members’ interests. The Tenth Circuit noted that at the time the class was certified the district court had already ruled the arbitration provisions were unenforceable. Nelson argued she, and other similarly situated class members, could have negotiated a much better settlement than the named plaintiffs, but the Tenth Circuit disagreed, finding Nelson had agreed not to initiate any class actions in her contract.

Next, Nelson argued that because she was a Michigan resident and a Michigan statute allowed treble damages for such failed wire transactions, the named plaintiffs could not adequately represent her interest or the interest of other Michigan residents. However, because the district court had already ruled that Colorado law governed the claims, the Tenth Circuit found this argument unavailing. Nelson also argued that because the plaintiffs had already reclaimed their money from Western Union while she and other class members had not, plaintiffs were not similarly situated. The Tenth Circuit noted that Western Union’s challenged conduct was the same as to all class members, and the difference was not enough to preclude plaintiffs from representing the class.

Nelson also challenged the district court’s approval of the settlement, contending it was unfair because absent class members will finance most of the settlement for the entire class. Although the Tenth Circuit was “not unsympathetic to Nelson’s argument,” it determined them to be ultimately unpersuasive, since Nelson and others who had not already claimed their money would not have known about it absent the settlement agreement, and because the settlement agreement incentivized Western Union to change its business practices. Although there is a possibility that the settlement funds will run out before all class members have received their share, that possibility is unlikely to be realized based on historical data indicating that only 15 percent of Western Union’s customers ever seek a refund of their money.

The Tenth Circuit next addressed Nelson’s procedural challenge to the Rule 23 notice, finding the given notice satisfied due process by identifying several ways they could obtain additional information about the claims they would be releasing if they joined the settlement. Objector Dorsey also challenged how the notice was given to class members, arguing Western Union should have cross-checked all its databases instead of mailing to the last known address of class members. The named plaintiffs assert that Western Union did cross-check its databases, and also the class administrator used the post office’s change of address database to update the addresses. The Tenth Circuit found the mailed notice sufficient. Dorsey also speculated that those plaintiffs whose transactions were “zeroed out” by administrative fees may not have received notice, but the Tenth Circuit found that in fact all class members were notified. The Tenth Circuit similarly found a typo in the notice insignificant, given the corrective measures taken on the class action website. Dorsey finally argued that because he did not receive the email notice, despite having a current email address on file with Western Union, there must have been something wrong with the email notice. The Tenth Circuit disagreed.

Finally, Dorsey and Nelson argued the district court failed to exercise its independent judgment by adopting verbatim the orders drafted by plaintiffs and Western Union in certifying the class and approving the settlement. The Tenth Circuit was satisfied that the court exercised independent judgment. Objectors also claim the district court did not address their objections, but the Tenth Circuit found that it did, albeit briefly.

The Tenth Circuit affirmed the district court’s order certifying the class and approving the settlement.

Tenth Circuit: Interlocutory Appeal of Preliminary Injunction Related to 2014 Elections Moot

The Tenth Circuit Court of Appeals issued its opinion in Fleming v. Gutierrez on Tuesday, May 5, 2015.

The 2012 general election in Sandoval County, New Mexico, was fraught with problems. Some voters waited more than five hours to vote, and others left before casting their ballots. Following the disastrous election, the Sandoval County Board of Commissioners passed two resolutions condemning the handling of the 2012 election and designating more voting centers for the 2014 election.

Several voters filed suit in federal district court after the 2012 elections, alleging equal protection and due process § 1983 violations and a violation of New Mexico’s constitutional free-and-open-elections clause. In September 2014, the district court entered a preliminary injunction against the county that essentially made any discretionary aspects of the Board’s resolutions non-discretionary. The injunction explicitly stated it was to apply through the November 2014 elections, at which point the court would reevaluate the case. The county filed an interlocutory review, seeking vacation of the injunction on the grounds that the voters lacked standing and were unlikely to prevail on the merits, and also seeking expedited review. The Tenth Circuit declined expedited review and the November 2014 election occurred under the bounds of the preliminary injunction.

The voters requested the Tenth Circuit to dismiss the appeal as moot. The county argued the election did not moot the injunction because it falls within the exception to the mootness doctrine for issues capable of repetition yet evading review, and because the injunction remains relevant to the issue of the prevailing party’s attorney fees. The Tenth Circuit addressed each contention in turn.

The Tenth Circuit held that the November 2014 election mooted the interlocutory appeal, finding any decision about the district court’s order would have no present day effect on the parties because the election and the effective time for the injunction had passed. The Circuit further found the exception to the mootness doctrine for issues capable of repetition yet evading review did not apply to the preliminary injunction, though it could apply to the case as a whole. Because the complaint, in which the voters sought permanent injunctive relief as to all future elections, was still pending in the district court, the issues were capable of review.

As to the attorney fee award, the Tenth Circuit found that the voters were the prevailing party as to the preliminary injunction but may not prevail on the suit in district court. Because no fee request had been filed, the Tenth Circuit lacked jurisdiction to address the issue.

The Tenth Circuit granted the voters’ motion to dismiss the appeal as moot and dismissed the appeal for lack of jurisdiction.

Tenth Circuit: Unpublished Opinions, 6/19/2015

On Friday, June 19, 2015, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

White v. Kansas Department of Corrections

Trujillo v. Franco

United States v. Madsen

United States v. Coleman

People’s Electric Cooperative v. Western Farmers Electric Cooperative

United States v. Hosier

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

Application Period Open for Rio Grande County Court Vacancy

On Thursday, June 18, 2015, the Colorado State Judicial Branch announced a vacancy on the Rio Grande County Court, occasioned by the appointment of Hon. Patrick H. Hayes, Jr. to the Twelfth Judicial District Court. The vacancy will occur on July 1, 2015.

Eligible applicants must be qualified electors of Rio Grande County and must have graduated from high school or achieved the equivalent of a high school diploma. Application forms are available from the ex officio chair of the Twelfth Judicial District Nominating Commission, Justice Nathan Coats, and also from the State Judicial website. Applications must be received no later than 4 p.m. on July 20, 2015. Anyone wishing to nominate another must do so no later than 4 p.m. on July 13, 2015.

For more information about the vacancy, click here.

Colorado Court of Appeals: Announcement Sheet, 6/18/2015