June 26, 2019

Archives for July 8, 2015

Colorado Court of Appeals: Sentence Longer than Three Times Presumptive Range Illegal

The Colorado Court of Appeals issued its opinion in People v. Isom on Thursday, July 2, 2015.

Sexual Assault on a Child—Habitual Sexual Offender—Sentence—Extraordinary Aggravating Circumstances.

In 2003, a jury found defendant guilty of sexual assault on a child, enticement of a child, and contributing to the delinquency of a minor based on evidence that he had given a 14-year-old girl alcohol and then sexually assaulted her. The district court adjudicated him a habitual sex offender against children, and imposed consecutive sentences of forty years to life in prison on the sexual assault on a child count, and five years to life in prison on each of the counts of enticement of a child and contributing to the delinquency of a minor. The court later corrected the sentence for contributing to the delinquency of a minor to a determinate sentence of five years in prison.

On appeal, defendant argued that his sentence of forty years to life for sexual assault on a child is illegal. CRS §§ 18-3-412(2) and 18-1.3-1004(1)(c) require a district court to sentence a habitual sex offender against children to an indeterminate prison sentence with a lower term of three times the maximum of the presumptive range, unless the court finds extraordinary aggravating circumstances under CRS § 18-1.3-401, in which case the lower term can be up to six times the maximum of the presumptive range. Thus, under CRS § 18-1.3-1004(1)(c), the statutory minimum for the bottom end of defendant’s indeterminate sentence for this class 4 felony was eighteen years, and if extraordinary aggravating circumstances existed, the court could have imposed a bottom-end sentence of no more than thirty-six years. Because the court sentenced defendant to a bottom-end term of forty years, it was an illegal sentence. The sentence was vacated and the case was remanded for resentencing.

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

Colorado Court of Appeals: No Error in Allowing Lay Witness Testimony about Shoeprint Similarity

The Colorado Court of Appeals issued its opinion in People v. Vigil on Thursday, July 2, 2015.

Challenge for Cause—Burglary—Simple Variance—Unanimity Instruction—Lay Witness—Footprint Evidence.

A jury convicted Vigil of second-degree aggravated motor vehicle theft and second-degree burglary for taking a truck, motorcycle, flat-screen television, DVD player, and stereo from Casey Caldon’s farm. On appeal, Vigil contended that the trial court reversibly erred when it denied his challenge for cause to juror C.A. Although C.A. had performed electrical work for the Caldons over a number of years, he did not exhibit any bias and his statements indicated he could render an impartial verdict. Therefore, the trial court did not err in denying Vigil’s challenge for cause as to this juror. Vigil also claimed that the court erred in granting the prosecutor’s challenge for cause to prospective juror D.K. because that juror might have voted to acquit him. Here, Vigil’s claim failed because a defendant is not entitled to have any particular juror serve in his or her case.

Vigil also asserted that the prosecutor’s closing argument impermissibly expanded the second-degree burglary charge to include burglary of the “lean-to” (a shed up against a shop on the farm). In the bill of particulars, the prosecutor alleged that Vigil burglarized three structures: the trailer, the north shop, and the tractor. In closing argument, the prosecutor alleged that Vigil entered the lean-to to steal the truck. Therefore, a simple variance occurred. Because Vigil did not suffer prejudice from the simple variance, however, reversal was not warranted.

Vigil further argued that the trial court reversibly erred by not giving a modified unanimity instruction regarding the burglary count. Where the incidents occurred in a single transaction, such as here, the prosecutor need not elect among acts, and the trial court need not give a modified unanimity instruction. Therefore, the trial court did not err by not giving the modified unanimity instruction to the jury.

Vigil argued that the trial court erred by permitting Sergeant Crown, a lay witness, to testify about shoeprint evidence and by not excluding the shoeprint evidence for failing to disclose a Colorado Bureau of Investigation (CBI) report indicating that its analysis of the shoeprint evidence was inconclusive. Crown’s testimony was based on general measurements and peculiarities common to the shoeprints and Vigil’s shoes that were readily recognizable to a lay witness. Accordingly, the trial court’s finding that Crown’s testimony did not constitute expert opinion was not manifestly unreasonable, arbitrary, or unfair. Finally, the discovery violation did not result in reversible error because the content of the CBI report was presented through Crown’s testimony. The judgment was affirmed.

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

Tenth Circuit: Unpublished Opinions, 7/7/15

On Tuesday, July 7, 2015, the Tenth Circuit Court of Appeals issued three published opinions and four unpublished opinions.

Bainbridge v. Colvin

United States v. Adams

United States v. Aflague

United States v. Hanahan

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