July 18, 2019

Archives for October 14, 2015

Hon. David M. Thorson to Retire from Eleventh Judicial District Court

On Tuesday, October 13, 2015, the Colorado State Judicial Branch announced the retirement of Hon. David M. Thorson from the Eleventh Judicial District Court, effective January 12, 2016. Judge Thorson was appointed as a district court judge in 2005. Prior to his appointment, he was a Deputy District Attorney in the Eleventh Judicial District for 16 years. He also has been in private practice, and he served as town attorney for the towns of Alma and Fairplay. He received his undergraduate degree from Pacific Lutheran University and his law degree from the University of Puget Sound Law School. He is a member of the Colorado Bar Association, Fremont-Custer Bar Association, and Heart of the Rockies Bar Association. He has volunteered as a mountain search and rescue person for decades and was a recipient of the J. Hunter Holloway Spirit Award for commitment to the professional advancement of Colorado’s search and rescue community.

Applications are now being accepted for the forthcoming district court vacancy. Application forms are available on the State Judicial website or from the ex officio chair of the Eleventh Judicial District Nominating Commission, Justice Nathan B. Coats. Eligible applicants must be qualified electors of the Eleventh Judicial District and must have been admitted to practice law in Colorado for five years. Applications must be received no later than 4 p.m. on November 18, 2015, and anyone wishing to nominate another must do so no later than 4 p.m. on November 11, 2015.

For more information about the vacancy and application process, click here.

Colorado Court of Appeals: Evidence of Prior Bad Acts Not Introduced to Show Character but to Show Potential Harms

The Colorado Court of Appeals issued its opinion in People in Interest of A.W. on Thursday, October 8, 2015.

Juvenile—Dependent and Neglected—Motion to Continue—Witness—CRE 404(b)—Injurious Environment—Motion for New Trial—CRCP 59(d)(1).

This case involves a juvenile court adjudicating an infant child, A.W., dependent and neglected. A.W.’s mother tried her case to a jury, which found that A.W. lacked proper parental care and that A.W.’s environment was injurious to her welfare.

On appeal, mother argued that the juvenile court erred in denying her motion to continue the adjudicatory hearing. When a motion for continuance is based on the absence of a witness, there is no abuse of discretion in denying the motion if the party seeking continuance did not use due diligence to procure the presence of that witness. Here, mother did not provide the transcript of the hearing in which she requested the continuance. Therefore, it cannot be shown that the juvenile court abused its discretion in denying her motion.

Mother next argued that the juvenile court violated CRE 404(b) and People v. Spoto, 795 P.2d 1314 (Colo. 1990), in permitting the Department of Human Services to introduce evidence about her prior dependency and neglect case, wherein her parental rights to her other seven children were terminated. A.W. had not been in mother’s care; therefore, neither CRE 404(b) nor the Spoto test applied to this case. Further, because mother’s acts in a prior dependency and neglect case were used to predict whether A.W. would be exposed to an injurious environment, they were relevant to the jury determining A.W.’s status as dependent and neglected.

Finally, mother contended that the juvenile court erred by denying her motion for a new trial. Because mother’s motion was not supported by affidavit, as required by CRCP 59(d)(1), the juvenile court did not abuse its discretion by denying her motion. The order was affirmed.

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

Colorado Court of Appeals: Colorado Does Not Recognize Negligence Arising Out of Inherently Dangerous Sports

The Colorado Court of Appeals issued its opinion in Laughman v. Girtakovskis on Thursday, October 8, 2015.

Inherently Dangerous Sport—Negligence—Duty of Care.

Laughman suffered serious facial and visual damage during a martial arts sparring match with Girtakovskis. Laughman initiated the underlying action, asserting a claim for negligence. Girtakovskis filed a motion for summary judgment, arguing that Colorado does not recognize negligence claims in cases involving inherently dangerous sports. The trial court granted the motion, and Laughman appealed.

Co-participants in a martial arts sparring activity, an inherently dangerous sport, do not owe each other a duty of ordinary care that would support a negligence claim. Because the determination of the existence of a legal duty is a question of law, and not an issue for the jury’s consideration, the trial court properly resolved this matter. The order granting summary judgment was affirmed.

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

Colorado Court of Appeals: Clean Slate Rule Renders Moot Ineffective Assistance Claim Regarding First Trial

The Colorado Court of Appeals issued its opinion in People v. Chipman on Thursday, October 8, 2015.

Crim.P. 35(c)—Ineffective Assistance of Counsel—Mootness—Expert—Statements—Impeach—Competency.

Defendant lived with his wife and the victim in this case. After defendant’s wife filed for divorce and had defendant removed from the home, defendant returned to the home two times with a gun, shooting the victim the second time. A jury convicted defendant of several felonies based on these incidents. He appealed. A division of the Court of Appeals affirmed some of his convictions and reversed others. On retrial, a second jury convicted him of lesser, although related, charges. The same attorney represented defendant at both trials. Defendant contended in a Crim.P. 35(c) motion that his trial counsel had been ineffective. The post-conviction court denied the motion.

On appeal, defendant contended that the post-conviction court erred when, without a hearing, it denied his three Crim.P. 35(c) claims of ineffective counsel. Defendant’s post-conviction claim in the first trial was moot because the appellate court had granted defendant relief in a previous direct appeal. Because defendant received all the relief to which he was entitled when the division reversed the convictions, the post-conviction court could not have given him anything more. Therefore, defendant’s appeal of this issue was dismissed.

Defendant next contended that he was prejudiced at his second trial because his counsel did not retain an expert to test the blood on his clothing, which would have showed that the blood was his and he was there to commit suicide and not hurt the victim. However, defendant failed to show how this evidence would have changed the outcome of the trial.

Defendant also contended that certain statements he made should not have been admitted during his second trial because they were obtained in violation of his Miranda rights. The record, however, shows that defendant’s statements were not the product of police interrogation. Because defendant could not prove his suppression claim, he could not prove that his counsel was ineffective in this regard.

Defendant further argued that his counsel was ineffective because he did not impeach the victim. This argument failed because counsel did try to impeach the victim and defendant’s claim was speculative.

Defendant also argued that he was incompetent during his first trial. A psychiatrist performed a retroactive competency evaluation and formed the opinion that defendant had been competent during the first trial. Therefore, the trial court did not abuse its discretion in denying a second competency evaluation.

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

Colorado Supreme Court: Announcement Sheet, 10/13/2015

On Tuesday, October 13, 2015, the Colorado Supreme Court issued one published opinion.

People v. Quintero-Amador

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: Use of False Identity Immaterial to Wire and Mail Fraud and Cannot Form Basis for Convictions

The Tenth Circuit Court of Appeals issued its opinion in United States v. Camick on Friday, July 31, 2015.

Leslie Lyle Camick was a Canadian citizen who entered the United States in 2000 using the identity of his brother, Wayne Bradly Camick, who had died in infancy. Camick assumed his brother’s identity in order to avoid outstanding child support obligations and back taxes and to evade permanent driver’s license revocation due to numerous intoxicated driving offenses. Camick used his brother’s identity throughout his time in the United States.

In 2004, Camick began a professional and romantic relationship with Lyn Wattley. The couple eventually moved to Kansas and bought a home together under Camick’s assumed identity. In 2010, Camick and Wattley, together with machinist Mark Nelson, began developing an idea for a new way to cover manholes. In 2011, Camick’s and Wattley’s relationship deteriorated, and unbeknownst to Wattley, Camick filed a provisional patent application for the locking manhole cover. In the summer of 2011, Camick drove a 2006 GMC truck that he had paid for but that was titled in Wattley’s name to Arizona. Wattley became concerned about Camick driving since he had had prior intoxicated driving incidents, so she reported the vehicle stolen. Camick was arrested in New Mexico for theft of the truck but Wattley requested that the New Mexico charges be dropped. The Kansas warrant for the stolen vehicle remained outstanding.

In late 2011, Camick was arrested in New Jersey, where he was interviewed by U.S. Immigration Officer Jackey He to determine his immigration status. Eventually, Camick admitted his real name to Officer He and signed an affidavit that he had used his brother’s identity to enter and reside in the United States. Camick was placed under arrest and Officer He initiated removal proceedings against him. As a result of the arrest, Wattley discovered Camick’s true identity and initiated quiet title proceedings to remove the name Wayne Camick from their Kansas residence. She served Camick in the New Jersey detention center, but he failed to respond within the 30-day period and the Kansas court quieted title against him. More than a month after the Kansas court entered judgment, Camick submitted a response to the quiet title action, claiming he was the purchaser and owner of the subject property and that he had been unable to respond due to his immigration detention. The Kansas court responded by issuing a letter that Camick’s response did not comply with Kansas law and was untimely. Two months later, Camick sent another letter to the Kansas court claiming he had been “wrongfully detained” by ICE as a result of Wattley’s “falsified Police report.”

In March 2013, Camick was indicted on charges of mail fraud, wire fraud, material false statement to the U.S. Patent Office, and three counts of aggravated identity theft relating to the fraud and false statement charges. In July 2013, Camick filed a 42 U.S.C. § 1983 lawsuit against Wattley and others, alleging constitutional and tort violations arising from the 2011 stolen vehicle report. This lawsuit became the source of Camick’s obstruction of justice charge as contained in the government’s second superseding indictment. After a three-day trial, Camick was convicted of all seven charges and was sentenced to 48 months’ imprisonment followed by one year of supervised release. Camick was also ordered to pay $15,186 in restitution to Wattley. He timely appealed.

The Tenth Circuit analyzed the mail fraud charge, which was premised on the letter Camick mailed to the Kansas court regarding his failure to respond to the quiet title action. Camick argued the evidence was insufficient to show he made materially false statements with the intent to defraud. The Tenth Circuit agreed. The Kansas court and Wattley were aware of Camick’s true identity at the time he sent the letter, and he had been known as Wayne throughout his time in the United States. The Tenth Circuit held that Camick’s identity could have had no bearing on the Kansas court’s decision to uphold its default judgment. Camick’s statement that he had been “wrongfully detained” was likewise immaterial since it was incapable of influencing the Kansas court’s decision. The Tenth Circuit reversed Camick’s conviction for mail fraud and the related aggravated identity theft charge.

The Tenth Circuit next evaluated Camick’s challenges to the wire fraud and material false statement convictions, both of which pertained to the provisional patent application. Camick argued that because he was the actual inventor of the locking manhole cover and everyone knew him as Wayne Camick, his use of that name on the provisional patent application was insufficient to show a false statement with intent to defraud. The Tenth Circuit again agreed, holding that the false statements were immaterial to the provisional patent application. Because the provisional patent application did not require an oath or declaration by the applicant, the Tenth Circuit found Camick’s fraud in using his brother’s name immaterial to the provisional patent application. The Tenth Circuit reversed the convictions for wire fraud and material false statement. The Tenth Circuit also reversed the accompanying aggravated identity theft charges.

Camick challenged his obstruction of justice charge, arguing the evidence was insufficient to show that he filed the civil rights suit against Wattley with retaliatory intent. The Tenth Circuit, drawing inferences of retaliation from the timing of his filing, disagreed. The Tenth Circuit upheld this conviction. Judge Kelly dissented from this part of the opinion; he would have reversed the obstruction of justice conviction as well.

Finally, Camick argued that the restitution award improperly failed to tie Camick’s harms of conduct to the restitution requested by Wattley. The Tenth Circuit evaluated the restitution award and reversed the parts of the award requested for Wattley’s quiet title action and review of the provisional patent application. The Tenth Circuit also reversed the award of costs incurred in a separate civil lawsuit.

Camick’s convictions for mail fraud, wire fraud, material false statement, and aggravated identity theft were reversed. Camick’s conviction for obstruction of justice was affirmed. The case was remanded for a hearing on the remaining restitution award.

Tenth Circuit: Unpublished Opinions, 10/13/2015

On Tuesday, October 13, 2015, the Tenth Circuit Court of Appeals issued no published opinions and seven unpublished opinions.

Rader v. Citibank, N.A.

M.K. v. Visa Cigna Network POS Plan

Widman v. Keene

Gabriel v. Colorado Mountain Medical, P.C.

Rauda-Castillo v. Lynch

United States v. Miller

Kirby v. O’Dens

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