August 19, 2019

Archives for January 16, 2017

Happy Martin Luther King, Jr. Day from CBA-CLE

Today, we celebrate Dr. Martin Luther King, Jr., the civil rights activist who bravely spoke out against racism and oppression so many years ago. Dr. King’s important work continues to be relevant. His full speech is available here.


“Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred.”


“I have a dream that my four little children will one day live in a nation where they will not be judged by the colour of their skin but by the content of their character.”


“I have a dream that one day this nation will rise up and live out the true meaning of its creed – we hold these truths to be self-evident: that all men are created equal.”

Colorado Court of Appeals: “Knowingly” Element Should Have Been Offset but Error Harmless

The Colorado Court of Appeals issued its opinion in People v. Garcia on Thursday, January 12, 2017.

Juvenal Onel Garcia was married to the victim, but in August 2010 a protective order issued against Garcia concerning the victim. However, on occasion in April 2012, he would go to the victim’s house to watch their children at her request. One night, he was late, and when he arrived the victim told him to leave because he had been drinking. He took her car keys and left. The victim eventually reported her car stolen after he did not return. When he came back, they physically struggled. According to the victim, Garcia then tried to take her clothes off and force intercourse, but she fought him off and he immediately masturbated. They resumed struggling, he prevented her from calling 911, and he left, again taking her car. The victim called police and was taken to the hospital.

Garcia was charged with first degree burglary, attempted sexual assault, unlawful sexual contact, third degree assault, violation of a protection order, and obstruction of telephone service, as well as attempted sexual assault and unlawful sexual contact. He was designated a sexually violent predator (SVP). Garcia appealed, arguing first that the trial court erred in not applying “knowingly” to every element of the offense of sexual assault, including the “caused submission” element. The court of appeals found no error. The jury instruction in this case was based on the model jury instruction then in effect, and although the model jury instruction was later amended to offset the word “knowingly,” the court concluded any error in the failure to offset “knowingly” was not obvious. The court of appeals found the trial court did not commit plain error and affirmed.

Garcia next contended his sentences for class 4 attempted sexual assault and class 4 unlawful sexual contact should be vacated because the jury was not instructed and therefore did not find that Garcia knowingly used force or submission, so elevation of the offenses to a higher class of felony was not warranted. After evaluating the instructions under a plain error standard, the court of appeals found none. The court found that a published opinion directly addressed and refuted Garcia’s contention, so there was no error in the trial court’s instructions.

Garcia also argued that the trial court erred in its interrogatory on force related to sexual assault because the trial court did not define “force,” “threat,” or “intimidation,” which are narrower in the legislative context than in ordinary use. The court of appeals again rejected his argument. The court again looked to prior case law that had addressed the issue, and affirmed Garcia’s convictions and sentences.

Garcia argued that the mens rea element for violation of a protection order was not proved. The court of appeals disagreed, finding there was plenty of evidence to show that Garcia knew the protective order was still in place and he was not supposed to contact the victim. The court affirmed this sentence and conviction also.

Finally, Garcia contended the trial court erred in designating him a sexually violent predator (SVP) because he neither established nor promoted his relationship with the victim for purposes of sexual victimization, as required by the statute. The court evaluated two supreme court cases that had not been decided at the time of Garcia’s conviction and remanded for reconsideration in light of the two cases.

Garcia’s sentences and convictions were affirmed, and the court of appeals remanded for consideration of the SVP designation in light of new precedent.

Tenth Circuit: Unpublished Opinions, 1/13/2016

On Friday, January 13, 2017, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

United States v. Nazareta

Pioneer Craft House, Inc. v. City of South Salt Lake

Ebert v. Herwick

Tebedo v. Commissioner of Internal Revenue

Salazar v. Green

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