August 19, 2019

Archives for January 30, 2017

CBA-CLE Welcomes Vincent O’Brien, Our New Executive Director

CBA-CLE is proud to welcome Vincent “Vince” O’Brien as our new Executive Director. Vince hails from Minnesota, where he was Assistant Director and Program Attorney at Minnesota CLE. He has been at Minnesota CLE since 1987. Vince also spent 20 years working as a firefighter and EMT for the Hastings Fire Department in Minnesota, and he is active on his local school board. Prior to his work at Minnesota CLE, Vince was a public defender and in private practice, where he practiced in the areas of probate, estate planning, family law, business planning, and criminal defense.

Vince is a proud husband to Amy, an ER nurse, and father of five children ranging in ages from 24 to 3. He likes to run and work out in his spare time, and he loves great literature. When asked about a favorite sports team, Vince wisely declined to comment (this is Broncos Country, after all), but mentioned that Amy is a Green Bay Packers fan.

CLE was a natural fit for Vince, because he is passionate about life-long learning and all it entails. He has worked two jobs for most of his adult life; he commented that working at CBA-CLE will be the first time he will have a sole professional objective. Vince notes that he loves to work with attorneys and listen to them and think about their needs: “There’s an obscure note in a translation of ‘The Art of War,’ where, in discussing the five elements, a commentating general talks about seeing the tree on the plain before it grows… I have been very fortunate a few times to ‘see the tree’ in my work in CLE.”

Vince plans 33 seminars annually, and notes that one of his favorite and most successful ventures was a series of TED Talk-style programs with the estate planning group. Vince mentioned that he likes all the programs he plans, from the rural agricultural law programs to the large multi-day probate conference. He is looking forward to working with the CBA-CLE members and staff to empower people to do best they can and grow to meet increasingly diversified educational needs.

Before working at Minnesota CLE, Vince was a practicing attorney. When asked about a favorite practice area, Vince said, “Cases where I felt I truly helped people were my favorite—in criminal defense, family law, and Veterans disability appeals.” He related a story where once he used vacation time to try a family law case pro bono. On the first day of trial, the judge called counsel and said that if he were to rule preliminarily on what was in the record, he would rule against Vince’s client. However, after that week of “vacation,” Vince prevailed and his client had a successful outcome.

Education of non-attorneys is also important to Vince—he has been on his local school board in Hastings, Minnesota, for many years, and has been in leadership roles such as the school board chair, vice-chair, treasurer, and secretary. He found that his extensive school board experience helped his continuing legal education work in two ways. First, he took an active role in getting into classrooms and observing how “educational processes, differentiation, and technology, blended with classically wonderful teaching methods and hard work led to evolved learning, data-driven practices, and engaged students.” Vince would like to transfer these teaching models into CLE programming. Second, working on the school board helped him learn to listen respectfully to the different factions and interests to steer vision and focus processes.

CBA-CLE is excited to welcome Vince. His vision for our future is to work together with our great staff and wonderful stakeholders throughout Colorado, to evolve the CLE work as best we can. He is excited to present innovative and important education for attorneys.

Colorado Court of Appeals: Sentence Enhancement Based on Victims’ Ages Not Structural Error

The Colorado Court of Appeals issued its opinion in People v. Ewing on Thursday, January 26, 2017.

Leon Ewing was accused in March 2013 of sexually assaulting two brothers, M.B. and J.B., during the summer of 2008 while he was living in their family’s home. The boys were around 11 and 13 at the time of the assaults. The allegations arose in May 2011, and although they were investigated, Detective Nicholas Kundert could not locate Ewing until December 2012. After Ewing was located, he was charged with nine class 3 felony counts of sexual assault on a child by one in a position of trust—eight pertaining to the crimes against J.B. and one pertaining to the crimes against M.B. For the eight charges concerning J.B., Ewing was charged with one count of sexual assault on a child by one in a position of trust (pattern of abuse), and one count of sexual assault on a child by one in a position of trust (victim under 15 years old) for each of four separate incidents. The charge pertaining to M.B. was one count of sexual assault on a child by one in a position of trust (victim under fifteen 15 old). The complaint also included three crime of violence counts.

The jury convicted Ewing of two counts of sexual assault on a child by one in a position of trust — one against J.B. and one against M.B. It specifically found that the assault against J.B. was not committed as part of a pattern of abuse. The jury made no findings regarding J.B.’s and M.B.’s ages at the time of the assaults. At sentencing, the court entered convictions and sentences for two counts of class 3 felony sexual assault on a child by one in a position of trust (victim under 15 years old). Sexual assault on a child by one in a position of trust is typically a class 4 felony. However, the offense is elevated to a class 3 felony if the victim is less than 15 years of age.

On appeal, Ewing contended that because the jury made no finding as to the ages of the victims at the time of the assaults, the district court erred in entering convictions and sentences for a class 3 felony. The court of appeals characterized the elevation of the offense to a class 3 felony as a sentence enhancer. The court held that although the district court erred in enhancing Ewing’s sentence without submitting the question to the jury, the error was harmless. The court found no reasonable possibility that the jury could have concluded that the victims were 15 or older at the time of the offenses. The information alleged that the offenses occurred between May 1, 2008, and August 31, 2008. Because each victim testified to his birthday, the jury was presented with undisputed evidence that the boys were not yet 15 years old at the time of the assaults. The Colorado Court of Appeals found no plain error in the district court’s sentence enhancement.

Ewing also argued that his recross-examination of Detective Kundert was impermissibly limited by the trial court. During Detective Kundert’s testimony, defense counsel asked to recross the detective “on biases,” arguing that the prosecution brought up “witness bias and/or interviewer/interrogative bias,” which had not been previously raised on direct or cross-examination. Defense counsel did not, however, raise a Confrontation Clause issue. The court denied the request, stating that the issue was extrinsic and had already been addressed. Because Ewing did not raise the Confrontation Clause issue in the trial court, the court of appeals reviewed for plain error and found none. The court found that the trial court’s decision to deny the recross was not in error because any information that could potentially have been elicited was only marginally relevant. Even assuming error, the court of appeals did not find that it rose to the level of plain error.

The court of appeals affirmed Ewing’s convictions and sentences.

HB 17-1121: Requiring Criminal History Checks for Professional Health Care Workers with Prescriptive Authority

On January 20, 2017, Rep. Janet Buckner introduced HB 17-1121, “Concerning Certain Health Care Professions Regulated by the Department of Regulatory Agencies, and, in Connection Therewith, Requiring Criminal History Record Checks for Individuals with Prescriptive Authority and Certified Nurse Aides, Repealing the Nurse Licensure Compact, and Enacting the Enhanced Nurse Licensure Compact.”

Patient Safety Act

The bill requires applicants for initial licensure or certification, as well as current licensees and certificate holders, to submit to a fingerprint-based criminal history record check for:

  • Podiatrists (sections 1 and 2);
  • Dentists and dental hygienists (sections 3 and 4);
  • Medical doctors, physician assistants, and anesthesiologists (sections 5 and 6);
  • Nurses (sections 7 and 8);
  • Certified nurse aides (sections 10 and 11);
  • Optometrists (sections 13 through 15); and
  • Veterinarians (sections 16 through 18).

Section 9 of the bill eliminates the nurse alternative to discipline program.

Section 12 of the bill requires an employer of a certified nurse aide (CNA) to report whenever a CNA is terminated from employment or resigns in lieu of termination, within 30 days after the termination or resignation. The state board of nursing is authorized to fine an employer that fails to report the termination or resignation.

Section 19 amends the ‘Medical Transparency Act of 2010’ to include a person applying for nurse licensure under the ‘Enhanced Nurse Licensure Compact’ within the definition of ‘applicant’.

Section 20 of the bill repeals the current ‘Nurse Licensure Compact’ and adopts the ‘Enhanced Nurse Licensure Compact’.

The bill was introduced in the House and assigned to the Health, Insurance, & Environment Committee. It is scheduled for hearing in committee at 1:30 p.m. on February 16, 2017.

HB 17-1119: Providing a Workers’ Compensation Payment Mechanism for Uninsured Employers

On January 20, 2017, Reps. Tracy Kraft-Tharp & Lang Sias and Sens. Jake Tate & Cheri Jahn introduced HB 17-1119, “Concerning the Payment of Workers’ Compensation Benefits to Injured Employees of Uninsured Employers.”

The bill creates the ‘Colorado Uninsured Employer Act’ to create a new mechanism for the payment of covered claims to workers who are injured while employed by employers who do not carry workers’ compensation insurance. The bill creates the Colorado uninsured employer fund, which consists of penalties from employers who do not carry workers’ compensation insurance.

The bill creates the uninsured employer board to establish the criteria for the payment of benefits, to set rates, to adjust claims, and to adopt rules. The board is required to adopt, by rule, a plan of operation to administer the fund and to institute procedures to collect money due to the fund.

The bill was introduced in the House and assigned to the Business Affairs and Labor Committee.

Tenth Circuit: Unpublished Opinions, 1/27/2017

On Friday, January 27, 2017, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Walker v. Scherbarth

Griffin v. Bryant

Johnson v. Oklahoma Department of Transportation

Collins v. Schustermann

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