October 20, 2018

Archives for April 2018

Colorado Supreme Court: Announcement Sheet, 4/30/2018

On Monday, April 30, 2018, the Colorado Supreme Court issued five published opinions.

People in Interest of R.S.

People v. Rediger

People v. Smith

People in Interest of L.M.

People v. Taylor

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Court of Appeals: Where Father Acquitted of Underlying Sexual Abuse Charges, Juvenile Court Erred in Terminating Parental Rights

The Colorado Court of Appeals issued its opinion in People in Interest of L.M. on Thursday, April 19, 2018.

Dependency and Neglect—Juvenile Court—Termination of Parent-Child Legal Relationship.

The juvenile court found by a preponderance of the evidence that father had sexually abused L.M. and that M.M. was suffering secondary trauma as a result of the abuse. The court adjudicated L.M. and M.M. dependent and neglected. The court granted temporary custody to mother and prohibited father from having any contact with the children during the pendency of the case.

Father’s treatment plan was predicated on his guilt, but he was later acquitted in the criminal case. The juvenile court could not find that the assault allegations had been established by clear and convincing evidence and further concluded that it could not discount the possibility that no abuse occurred. Even so, the juvenile court terminated father’s parental rights, finding there were no less drastic alternatives because the children continued to experience trauma specific to father, which he did not recognize.

On appeal, father challenged the finding that there were no less drastic alternatives to terminating his parental rights. When considering termination under C.R.S. § 19-3-604(1)(c), the court must also consider and eliminate less drastic alternatives. The determination of whether there is a less drastic alternative to termination is influenced by a parent’s fitness to care for his or her child. Here, there is no indication in the record that father was offered treatment or a path to becoming a fit parent other than to acknowledge sexual abuse of L.M. It was error to terminate his parental rights.

Although not raised on appeal, the court of appeals also determined that the juvenile court failed to make the required inquiry of father under the Indian Child Welfare Act.

The judgment was reversed and the case was remanded with instructions that before considering termination of parental rights, the court must adopt an appropriate treatment plan under C.R.S. § 19-3-508(1)(e)(I) that relates to the children’s trauma and is reasonably calculated to render father a fit parent. If the court again considers termination of father’s parental rights, it must confirm whether he knows or has reason to know or believe that the children are Indian children.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Child’s Medical Records Admissible Under CRE 803(4) where Statements Made for Medical Diagnosis or Treatment

The Colorado Court of Appeals issued its opinion in People in Interest of E.M. on Thursday, April 19, 2018.

Dependency and Neglect—Admissibility of Evidence under CRE 803(4)—Indian Child Welfare Act.

The child was born prematurely and spent six weeks in the hospital. The Mesa County Department of Human Services (Department) sought and received emergency custody after the hospital reported that it could not locate his parents to take him home. The Department later filed a petition in dependency and neglect. At a shelter hearing, the court granted the Department’s request to return the child to his parents’ care under the Department’s supervision.

Three months later the court held an adjudicatory trial. As the sole basis for adjudication, the court found that the child had tested positive for a schedule II controlled substance at birth and that the positive test did not result from mother’s lawful use of prescribed medication. The court relied on testimony from a physician specializing in neonatal care who had cared for the child immediately after his birth.

On appeal, mother argued that certain test results to which the child’s physician testified were inadmissible hearsay under CRE 803(4). CRE 803(4) creates a hearsay exception for statements that are made for purposes of medical diagnosis or treatment; describe medical history, symptoms, or the inception or cause of symptoms; and are reasonably pertinent to diagnosis or treatment. Here, the testifying physician was qualified, without objection, as an expert in neonatology and pediatrics. He gave comprehensive testimony regarding the child’s symptoms and treatment and mother’s positive toxicology screen for methamphetamine. The physician’s testimony conformed to the requirements of CRE 803(4).

The court also rejected mother’s contention that even if the test results were admissible it was error for the trial court to rely on them because they were only admitted as the basis of the expert’s testimony under CRE 703, not as substantive evidence. The trial court admitted the results under both CRE 803(4) and 703 and they were therefore substantive evidence on which the court could rely to conclude that the child had testified positive for a controlled substance at birth.

Mother also argued that the trial court erred when it determined that the Indian Child Welfare Act (ICWA) does not apply to this proceeding because the child had been returned to mother’s home. The ICWA applies to a child custody proceeding even when, following a shelter hearing, the child is returned to the mother’s home, because the hearing could have resulted in foster care placement. The trial court did not conduct the proper ICWA inquiry.

The part of the judgment adjudicating the child dependent or neglected was affirmed. The dispositional order was reversed and the case was remanded for the purpose of conducting a proper ICWA inquiry.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Complete Exhaustion of Funds by Contractor Without Paying Subcontractor Violates Trust Fund Statute

The Colorado Court of Appeals issued its opinion in Franklin Drilling & Blasting, Inc. v. Lawrence Construction Co. on Thursday, April 19, 2018.

Construction Law—Public Works Trust Fund Statute—Civil Theft Statute—Directed Verdict—Culpable Mental State.

Lawrence Construction Company (Lawrence) was the general contractor on a Colorado Department of Transportation (CDOT) road project. Franklin Drilling and Blasting Inc. (Franklin) was a subcontractor. Lawrence was paid in full by CDOT but refused to pay Franklin. Franklin sued Lawrence on a variety of claims, and all but the claim for civil theft were arbitrated in favor of Franklin.

Following arbitration, the parties tried the civil theft claim to the court. Franklin alleged that Lawrence violated the Public Works Trust Fund statute (trust fund statute). The trial court granted Lawrence’s motion for directed verdict, finding that Franklin had not proved that Lawrence intended to permanently deprive Franklin of the monies it was owed. The court also awarded Lawrence costs.

Franklin appealed the judgment in favor of Lawrence on the civil theft claim and the costs awarded to Lawrence. The court of appeals first concluded that C.R.C.P. 50 is unavailable when a trial is to the court. Instead, the governing rule is C.R.C.P. 41(b). Under that standard, the court must find that upon the facts and the law the plaintiff has shown no right to relief.

As relevant here, the theft statute, C.R.S. § 18-4-401(1), provides two ways that Lawrence could possess the culpable mental state required for civil liability: knowing use (C.R.S. § 18-4-401(1)(b)), or intent to deprive (C.R.S. § 18-4-401(1)(a)). On the knowing use element, the Court focused on the “res” created when the government entity (CDOT) pays monies to the contractor to be held in trust for its subcontractors and suppliers. When the res is exhausted before payment to the subcontractor, a violation of the trust fund statute, and perhaps the civil theft statute, may be established. Here, the evidence Franklin presented at trial established that at various relevant times the bank account into which Lawrence deposited the CDOT payments had a zero or negative balance. The trial court’s findings do not resolve the “knowingly uses” alternative mental state, and the trial court erred by not addressing this element of the civil theft claim.

Franklin also argued that the trial court’s ruling in Lawrence’s favor regarding the intent to deprive element was unsupported by the record. The trial court made extensive findings regarding Lawrence’s intent to permanently deprive. Reasonable minds could differ about whether Franklin proved that Lawrence intended to permanently deprive Franklin of the CDOT funds, so the court could not conclude that the trial court findings and conclusion were “so manifestly against the weight of evidence as to compel a contrary result.”

The court denied Franklin’s request for attorney fees because it did not enter judgment in Franklin’s favor.

The judgment was affirmed to the extent the trial court determined that Franklin failed to prove Lawrence’s culpable mental state under C.R.S. § 18-4-401(1)(a). It was reversed and the case was remanded with directions for the trial court to determine whether Lawrence possessed the culpable mental state defined by C.R.S. § 18-4-401(1)(b).

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 4/27/2018

On Friday, April 27, 2018, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

John J. Pembroke Living Trust v. U.S. Bank National Association

United States v. Capra

United States v. Pinkerton

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

Bills Signed Enacting Uniform Trust Code, Creating Civil Rape Shield Law, Helping Preserve Family Units with Parents with Disabilities, and More

On Wednesday, April 25, 2018, Governor Hickenlooper signed nine bills into law. On Thursday, April 26, 2018, he signed five bills into law. To date, he has signed 183 bills and sent one bill to the Secretary of State without a signature. The bills signed Wednesday and Thursday include a bill enacting the Colorado Uniform Trust Code, a bill enacting a civil rape shield statute, a bill amending family preservation safeguards for parents with disabilities, a bill requiring free-standing emergency rooms to post certain consumer notices, and more. The bills signed Wednesday and Thursday are summarized here.

  • SB 18-071 – “Concerning an Extension of the Repeal of the State Substance Abuse Trend and Response Task Force, and, in Connection Therewith, Making an Appropriation,” by Sens. Cheri Jahn & Larry Crowder and Rep. Daneya Esgar. The state substance abuse trend and response task force is scheduled to be repealed effective July 1, 2018. The bill extends the repeal for 10 years to September 1, 2028.
  • SB 18-146 – “Concerning a Requirement that a Freestanding Emergency Department Inform a Person who is Seeking Medical Treatment about the Health Care Options that are Available to the Person, and, in Connection Therewith, Making an Appropriation,” by Sens. John Kefalas & Jim Smallwood and Reps. Lang Sias & Jonathan Singer. The bill requires a freestanding emergency department (FSED), whether operated by a hospital at a separate, off-campus location or operating independently of a hospital system, to provide any individual that enters the FSED seeking treatment a written statement of patient information, which an FSED staff member or health care provider must explain orally.
  • SB 18-154 – “Concerning a Requirement for a Local Juvenile Services Planning Committee to Devise a Plan to Manage Dually Identified Crossover Youth,” by Sen. Rhonda Fields and Rep. Joseph Salazar. The bill requires local juvenile services planning committees to devise a plan to manage dually identified crossover youth. A dually identified crossover youth is a youth involved in both the juvenile justice system and the child welfare system. The plan must contain descriptions and processes.
  • SB 18-169 – “Concerning Offenses Against Witnesses in Noncriminal Proceedings,” by Sen. Bob Gardner and Rep. Terri Carver. The clarifies that the offenses of intimidating a witness or victim and retaliation against a witness or victim apply to witnesses in criminal, civil, and administrative proceedings.
  • SB 18-180 – “Concerning the Colorado Uniform Trust Code,” by Sen. Bob Gardner and Reps. Cole Wist & Matt Gray. The bill enacts the Colorado Uniform Trust Code and repeals many sections of the Colorado Probate Code.
  • SB 18-187 – “Concerning Transferring Marijuana Fibrous Waste for the Purpose of Producing Industrial Fiber Products,” by Sens. Vicki Marble & Jack Tate and Rep. Jeni James Arndt. The bill gives the state licensing authority rule-making authority to address conditions under which a medical or retail marijuana licensee is authorized to transfer marijuana fibrous waste to a person for the purpose of producing only industrial fiber products.
  • HB 18-1104 – “Concerning Family Preservation Safeguards for Parents with Disabilities,” by Rep. Jessie Danielson and Sens. Dominick Moreno & Kent Lambert. The bill establishes that family protection safeguards for a parent or prospective parent with a disability are critical to family preservation and the best interests of the children of Colorado. These safeguards include that a parent’s disability must not serve as a basis for denial or restriction of parenting time or parental responsibilities in a domestic law proceeding, that a parent’s disability must not serve as a basis for denial of participation in a public or private adoption, or for denial of foster care or guardianship, and that the benefits of providing supportive parenting services must be considered by a court when determining parental responsibilities, parenting time, adoption placements, foster care, and guardianship.
  • HB 18-1132 – “Concerning the Amount that the Department of Corrections is Required to Reimburse a County or City and County for the Confinement and Maintenance in a Local Jail of any Person who is Sentenced to a Term of Imprisonment in a Correctional Facility,” by Rep. Dafna Michaelson Jenet and Sen. Larry Crowder. Under current law, the General Assembly establishes in its annual general appropriations bill the amount that the Department of Corrections is required to reimburse any county or city and county for a portion of the expenses and costs incurred by that county or city and county for the confinement and maintenance in a local jail of any person who is sentenced to a term of imprisonment in a correctional facility. The bill states that, to assist the General Assembly in determining such rate of reimbursement, each county and each city and county shall report to the joint budget committee the average cost of confining and maintaining persons in a local jail for more than 72 hours after each such person has been sentenced to the custody of the department.
  • HB 18-1147 – “Concerning the Continuation of the Regulation of People who Modify the Weather, and, in Connection Therewith, Implementing the Sunset Review Recommendations of the Department of Regulatory Agencies,” by Reps. Joann Ginal & Kim Ransom and Sen. Don Coram. The bill continues the regulation of people who modify the weather.
  • HB 18-1211 – “Concerning Controlling Medicaid Fraud,” by Reps. Cole Wist & Mike Foote and Sens. Irene Aguilar & Jim Smallwood. The bill establishes the medicaid fraud control unit in the department of law. The unit is responsible for investigation and prosecution of medicaid fraud and waste, as well as patient abuse, neglect, and exploitation. Prior to initiating a criminal prosecution, the unit must consult with the district attorney of the judicial district where the prosecution would be initiated.
  • HB 18-1237 – “Concerning the Continuation of the Requirements Regarding the Preparation of a Cost-Benefit Analysis as Administered by the Department of Regulatory Agencies, and, in Connection Therewith, Implementing the Recommendations Contained in the 2017 Sunset Report by the Department of Regulatory Agencies,” by Reps. Tracy Kraft-Tharp & Kevin Van Winkle and Sen. Tim Neville. The bill implements the recommendations of the Department of Regulatory Agencies’ sunset review and report on requirements and procedures regarding the preparation of a cost-benefit analysis.
  • HB 18-1243 – “Concerning Enactment of a Civil Rape Shield Law,” by Reps. Mike Foote & Cole Wist and Sens. Don Coram & Rhonda Fields. Under Colorado criminal law there is a rape shield law that presumes that evidence of a victim’s sexual conduct is irrelevant and not admissible except for evidence of the victim’s prior or subsequent sexual conduct with the defendant or evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse offered for the purpose of showing that the act or acts were or were not committed by the defendant. The bill creates a similar presumption in a civil proceeding involving alleged sexual misconduct. If a party wants to introduce sexual conduct evidence, it must file a confidential motion with the court at least 63 days prior to trial. Prior to ruling on the motion, the court shall conduct an in camera hearing and allow the parties and alleged victim to attend and be heard.
  • HB 18-1275 – “Concerning the Repeal of the Craig Hospital License Plate Donation Requirement,” by Rep. Jeff Bridges and Sen. Daniel Kagan. Current law requires an applicant to make a donation to Craig Hospital in order to be issued a special Craig Hospital license plate. The bill repeals the $20 donation requirement.
  • HB 18-1282 – “Concerning a Requirement that a Health Care Provider Include Certain Identifying Information on all Claims for Reimbursement for Health Care Services,” by Reps. Susan Lontine & Lang Sias and Sens. Jim Smallwood & John Kefalas. The bill requires an off-campus location of a hospital to apply for, obtain, and use on claims for reimbursement for health care services provided at the off-campus location a unique national provider identifier, commonly referred to as NPI. The off-campus location’s NPI must be used on all claims related to health care services provided at that location, regardless of whether the claim is filed through the hospital’s central billing or claims department or through a health care clearinghouse. It also requires all medicaid providers that are entities to obtain and use a unique NPI for each site at which they deliver services and for each provider type that the department of health care policy and financing has specified.

For a complete list of Governor Hickenlooper’s 2018 legislative decisions, click here.

Colorado Court of Appeals: Plaintiff Not Allowed to Treat Denial of Liability as Denial of Coverage

The Colorado Court of Appeals issued its opinion in Pena v. American Family Mutual Insurance Co. on Thursday, April 19, 2018.

Uninsured Motorist—Denial of Liability—Denial of Coverage—CRCP 12(b)(5) Dismissal.

Peña was involved in a three-car collision. Both Peña and Garner, another driver involved in the accident, were insured by defendant American Family Mutual Insurance Company (American Family). Peña sent a letter to American Family asserting a claim under the uninsured motorist provisions of her policy. American Family denied Peña’s claim, asserting that Garner was not responsible for the damage to her vehicle and Garner had coverage at the time of the accident, so Peña’s uninsured motorist property damage (UMPD) provision would not apply.

Peña sued Garner and American Family in separate actions. In this action, she sued American Family under C.R.S. § 10-3-1115 for the unreasonable delay and denial of benefits due under the UMPD provisions of her policy. American Family moved to dismiss, arguing that Peña’s complaint failed, as a matter of law, to state a claim upon which relieve could be granted because Peña’s UMPD coverage applied only if American Family, as Garner’s insurer, denied coverage, rather than liability, for Garner in connection with the accident. The district court agreed with this interpretation of Peña’s policy and the distinction made between denial of coverage and denial of liability. But because American Family had only denied liability and the issue of liability had not yet been determined, the court concluded that Peña’s UMPD coverage did not apply at that point and the lawsuit was premature. The district court dismissed the case without prejudice.

On appeal, Peña contended that the district court erred in dismissing her case. She argued that the district court erred in not considering whether American Family unreasonably delayed or denied her claim before dismissing her action. Because American Family denied liability but not coverage, her policy’s UMPD provision was inapplicable, and there were no benefits that could have been delayed or denied. Peña had no claim as a matter of law. The district court’s determination that Peña’s lawsuit was premature was in error because Peña will never have a claim against American Family under her policy for unpaid UMPD benefits from the accident; Garner’s insurer has not denied coverage, which is the circumstance that would trigger Peña’s UMPD coverage. If Garner is ultimately found liable, Peña will have a claim against American Family under the liability provisions of his policy.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Colorado Wage Claim Act Does Not Categorically Bar Plaintiff from Piercing Corporate Veil

The Colorado Court of Appeals issued its opinion in Paradine v. Goei on Thursday, April 19, 2018.

Wage Claim Act—Corporations—Piercing the Corporate Veil.

Plaintiff served as the chief financial officer and vice president of administration for Aspect Technologies, Inc. (Aspect), a corporation. Defendant Goei was the chief executive officer. Plaintiff sued Goei and Aspect, raising a claim under the Colorado Wage Claim Act (the Act), for fraud, and for breach of contract. He alleged that defendants owed him unpaid wages. The trial court granted Goei’s motion for judgment on the pleadings and dismissed the three claims against him individually with prejudice.

On appeal, plaintiff asserted that he was not barred from piercing the corporate veil and holding Goei personally liable under the Act. The Act does not categorically bar a plaintiff from piercing the corporate veil to hold an individual liable for unpaid wages. Plaintiff’s fraud claim made allegations in support of his request that the trial court pierce the corporate veil to impose liability on Goei, and plaintiff’s breach of contract claim incorporated the allegations in the fraud claim. Because plaintiff pleaded sufficient facts to establish a plausible claim that plaintiff could pierce the corporate veil, the trial court erred when it granted Goei’s motion to dismiss on the pleadings.

The judgment was reversed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 4/26/2018

On Thursday, April 26, 2018, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Pittman v. Berryhill

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

The Perils of Predicting

“We were promised flying cars, and instead what we got was 140 characters.”

Peter Thiel, PayPal co-founder[1]

Economic forecasts and policy solutions are based on predictions, and predicting is a perilous business.

I grew up in a small town in western Minnesota. Our family got the morning paper — the Minneapolis Tribune. The Stars ubscribers got their paper around 4:00. A friend’s dad was a lawyer — his family got both. In a childhood display of cognitive bias, I never could understand why anyone would want an afternoon paper. News was made the day before, so you could read about it the next morning, and that was that.

I remember one Tribune headline to this day: it predicted nuclear war in 10 years. That was 1961, when I was eight. The Cuban missile crisis was the following year, and for awhile it looked like it wouldn’t take all ten years for the headline’s prediction to come true.

The Tribune helpfully ran designs and instructions for building your own fallout shelter. Our house had the perfect place for one: a root cellar off one side of the basement — easily the creepiest place in the house. You descended a couple steps down from the basement floor, through a stubby cinderblock hallway, past a door hanging on one hinge. Ahead of you was a bare light bulb swinging from the ceiling — it flickered, revealing decades of cobwebs and homeowner flotsam worthy of Miss Havisham. It was definitely a bomb shelter fixer-upper, but it was the right size, and as an added bonus it had a concrete slab over it — if you banged the ground above with a pipe it made a hollow sound.

I scoured the fallout shelter plans, but my dad said no. Someone else in town built one — the ventilation pipes stuck out of a room-size mound next to their house. People used to go by it on their Sunday drives. Meanwhile I ran my own personal version of the Doomsday Clockfor the next ten years until my 18th birthday came and went. So much for that headline.

I also remember a Sunday cartoon that predicted driverless cars. I found an article about it in this article from Gizmodo:[2]

The article explains:

The period between 1958 and 1963 might be described as a Golden Age of American Futurism, if not the Golden Age of American Futurism. Bookended by the founding of NASA in 1958 and the end of The Jetsons in 1963, these few years were filled with some of the wildest techno-utopian dreams that American futurists had to offer. It also happens to be the exact timespan for the greatest futuristic comic strip to ever grace the Sunday funnies: Closer Than We Think.

Jetpacks, meal pills, flying cars — they were all there, beautifully illustrated by Arthur Radebaugh, a commercial artist based in Detroit best known for his work in the auto industry. Radebaugh would help influence countless Baby Boomers and shape their expectations for the future. The influence of Closer Than We Think can still be felt today.

Timing is Everything

Apparently timing is everything in the prediction business. The driverless car prediction was accurate, just way too early. The Tribune’s nuclear war prediction was inaccurate (and let’s hope not just because it was too early). Predictions from the hapless mythological prophetess Cassandra were never inaccurate or untimely: she was cursed by Apollo (who ran a highly successful prophecy business at Delphi) with the gift of always being right but never believed.

Now that would be frustrating.

As I said last week, predicting is as perilous as policy-making. An especially perilous version of both is utopian thinking. There’s been plenty of utopian economic thinking the past couple centuries, and today’s economists continue the grand tradition — to their peril, and potentially to ours. We’ll look at some economic utopian thinking (and the case for and against it) beginning next time.

 

Apparently timing is everything in country music, too. I’m not an aficionado, but I did come across this video while researching this post. The guy’s got a nice baritone.


[1]Peter Thiel needn’t despair about the lack of flying cars anymore: here’s a video re: a prototypefrom Sebastian Thrun and his company Kitty Hawk.

[2]The article is worth a look, if you like that sort of thing. So is this Smithsonian articleon the Jetsons. And while we’re on the topic, check out this IEEE Spectrum articleon a 1960 RCA initiative that had self-driving cars just around the corner, and this Atlantic articleabout an Electronic Age/Science Digestarticle that made the same prediction even earlier — in 1958.

 

Kevin Rhodes writes about individual growth and cultural change, drawing on insights from science, technology, disruptive innovation, entrepreneurship, neuroscience, psychology, and personal experience, including his own unique journey to wellness — dealing with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning.

Check out Kevin’s latest LinkedIn Pulse article: When We Move, We Can Achieve the Impossible.”

Colorado Court of Appeals: Obvious Error in Trial Court’s Restitution Calculation Did Not Seriously Affect Fairness or Integrity of Judicial Proceeding

The Colorado Court of Appeals issued its opinion in People v. Butcher on Thursday, April 19, 2018.

Restitution—Post-Judgment Interest—Crim. P. 52(b)—Plain Error.

A jury convicted Butcher of two counts of securities fraud and two counts of theft from at-risk adults, and he was ordered to pay restitution.

On appeal, Butcher argued that the trial court erred in its award of prejudgment and post-judgment interest in its amended restitution order. The court of appeals reviewed the appeal for plain error and found that the trial court erred by calculating post-judgment interest from the date of conviction rather than from the date of the operative restitution order. However, although this error was obvious, it did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.

The court exercised its discretion under Crim. P. 52(b) and affirmed the order.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Police Officer’s Testimony Defining Street Slang for Drug Considered Expert Testimony

The Colorado Court of Appeals issued its opinion in People v. Bryant on Thursday, April 19, 2018.

Assault—Expert Testimony—Jury Instructions—MirandaWarning—Voluntary Statements—Evidence.

While high on PCP, defendant assaulted two teenagers. After defendant’s arrest, police officers interviewed him and he admitted that he was under the influence of PCP, which he initially referred to as “sherm.” Defendant told officers that they could retrieve the substance from his sock, which they did. Before trial, defendant filed several motions to suppress. The court denied all of the motions, ruling that defendant’s statements were made voluntarily and that he had validly waived his Miranda rights. Defendant was convicted of unlawful possession of a controlled substance and two counts of third degree assault.

On appeal, defendant contended that the trial court erred by ruling that his statements to the police were voluntary. He argued that the police exploited his intoxicated state during their interrogation. Here, by the time they reached the police station, defendant was calm, coherent, and cooperative. The interview lasted no more than 15 minutes; there was no evidence that defendant’s demeanor changed during the interview; and there was no evidence of psychological coercion. The trial court did not err by finding that defendant’s statements to police were voluntary.

Defendant also contended that his statements should have been suppressed because police failed to obtain a valid waiver of his Miranda rights. Defendant contended that he was so intoxicated and confused when he was advised of his Miranda rights that he did not make a knowing and intelligent waiver of those rights. The record supports the trial court’s finding that defendant was not intoxicated when he waived his Miranda rights. The trial court did not err by finding that defendant validly waived his Miranda rights.

Defendant also contended that the trial court reversibly erred by allowing Officer Fink to testify as a lay witness regarding the meaning of the term “sherm.” This testimony was not based on Officer Fink’s personal knowledge or investigation of defendant’s case, but was based on his training and experience as a police officer. Although the trial court erred by allowing Officer Fink to testify as a lay witness, the error was harmless because the testimony was cumulative of other evidence presented at trial that served to prove the “knowingly” element of the possession charge.

Defendant next contended that the trial court erred by improperly instructing the jury. First, the instruction that voluntary intoxication was not a valid defense to the charged crimes could not have confused the jury, particularly because it was a brief and correct statement of the law. Second, the pattern instruction on mens rea was legally correct and informed the jury to apply a subjective standard rather than on objective standard. There was no error in the manner in which the trial court instructed the jury.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.