August 17, 2018

Colorado Court of Appeals: Evidence Sufficient to Show Defendant Had No Possessory Interest in Apartment

The Colorado Court of Appeals issued its opinion in People v. Joosten on Thursday, August 8, 2018.

Criminal Law—Jury Instructions—Theory of the Case—Evidence—Burglary.

After Joosten and his girlfriend broke up, Joosten moved out of their shared apartment, but continued to frequently spend the night there and keep some of his belongings there.  Joosten subsequently returned to the apartment and kicked down the door, which hit the girlfriend’s new roommate in the face. After the girlfriend escaped, Joosten went back into his girlfriend’s room, where he cut up her driver’s license and bank card and cut the cords of her hair dryer and curling iron. The trial court denied Joosten’s tendered theory of the case instruction regarding the burglary charge. A jury convicted Joosten of second degree burglary, first degree criminal trespass, one count of third degree assault, and two counts of class 3 misdemeanor criminal mischief.

On appeal, Joosten first contended that the evidence was insufficient to convict him of second degree burglary because the prosecution failed to prove that he (1) relinquished his possessory interest in the apartment; (2) knew his invitation to enter the apartment was revoked; and (3) knew his entry was unlawful. Here, there was sufficient evidence to support Joosten’s burglary conviction, including the fact that he always knocked before entering, did not have a key to the apartment, and kicked down the door on the occasion in question.

Joosten also argued that the court erred in rejecting his theory of the case instruction. A criminal defendant is entitled to a theory of the case instruction. None of the exceptions to that rule were applicable in this case. The trial court erred when it refused Joosten’s tendered instruction and failed to work with Joosten’s counsel to craft a permissible instruction. But the error was harmless given the evidence regarding the manner of Joosten’s entry into the apartment.

Lastly, Joosten contended and the Attorney General conceded that the mittimus incorrectly reflects that the jury convicted him of two counts of class 2 misdemeanor criminal mischief. The court of appeals agreed that the mittimus is incorrect.

The judgment of conviction was affirmed. The case was remanded for correction of the mittimus.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court Properly Reviewed Count Regardless of Whether Defendants Would Have Been Entitled to Probable Cause Review

The Colorado Court of Appeals issued its opinion in People v. Soto-Campos on Thursday, August 8, 2018.

Criminal Law—Grand Jury Indictment—Probable Cause Review—C.R.S. § 16-5-204(4)(k)—Sentence Enhancer.

The prosecution filed a grand jury indictment against several defendants, including Soto-Campos and Flores-Rosales, for their alleged involvement in a heroin distribution enterprise. Defendants’ attorneys filed motions requesting that the district court conduct a probable cause review under C.R.S. § 16-5-204(4)(k) for count sixty-one, Special Offender—Within 1000 Feet of a School. After review, the court dismissed that count. The prosecution then asked the court to reconsider, arguing that defendants were not entitled to probable cause review of the sixty-first count because it was a sentence enhancer, not a substantive offense. The district court denied the motions.

On appeal, the People contended that the district court erred in conducting the probable cause review because, considering legal principles governing preliminary hearings, the sixty-first count is a “stand-alone” sentence enhancer, and thus not subject to review under C.R.S. § 16-5-204(4)(k). C.R.S. § 16-5-204(4)(k) is not limited to substantive offenses, but instead broadly requires a district court to dismiss “any indictment” based on a probable cause finding that lacks record support. Therefore, the district court properly reviewed the sixty-first count under C.R.S. § 16-5-204(4)(k) and did not abuse its discretion in dismissing this count for lack of record support.

The orders were affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Where Parent Indicates Desire to Relocate with Minor Children, Magistrate Has No Authority to Order Shared Parenting Time in Colorado

The Colorado Court of Appeals issued its opinion in In re Marriage of Morgan on Thursday, August 8, 2018.

Dissolution of Marriage—Relocation—Parenting Time.

In this dissolution of marriage proceeding, mother notified the magistrate well before the permanent orders hearing that she wished to move with the children to California. She sought orders that would name her the children’s primary residential parent and decision-maker. Dr. Albert was appointed as an expert to conduct a parental responsibilities evaluation (PRE). He recommended that the children be allowed to relocate to California with mother and that she should have sole decision-making responsibility. At father’s request, the magistrate appointed Lieberman to perform a supplemental PRE. Lieberman recommended that the children remain in Colorado with father with shared decision-making responsibilities with mother. After a two-day evidentiary hearing, the magistrate ordered the children to remain in Colorado, finding that their best interests would be served if the parents exercised equal parenting time with mutual decision-making responsibilities.

On appeal, mother contended that the magistrate erred by entering a parenting time order requiring her to remain in Colorado. When, as here, a parent indicates before permanent orders that she intends to move, a district court has no statutory authority to order her to live in a specific location. Mother’s admission that she would not “abandon” her children and move without them did not relieve the magistrate of his obligation to make the difficult decision to allocate parenting time with mother in California and father in Colorado.

Mother also contended that the magistrate erred in ordering mutual decision-making responsibilities over her objection and in the absence of credible evidence that the parents could work together. However, the magistrate reviewed the evidence and did not abuse his discretion in finding that the parties could make joint decisions and in ordering joint decision making.

The part of the judgment allocating parenting time was reversed and the case was remanded with directions. The judgment was otherwise affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Appeal of Parenting Time Order Mooted When Subject Child Turns 18

The Colorado Court of Appeals issued its opinion in In re Marriage of Tibbetts on Thursday, August 8, 2018.

Dissolution of Marriage—Post-Decree—Parenting Time—18 Years of Age.

In this post-dissolution of marriage action father moved to have the parenting plan terminated to allow the parties’ 16–year-old child to determine her own parenting time schedule.  A district court magistrate denied father’s request, and while the appeal was pending, the child turned 18 years of age. On father’s petition for review to the district court, the court adopted the order.

Father filed his opening brief the day before the child turned 18. Mother moved to dismiss the appeal, contending that because the child is now an adult, the parenting time issues father raises on appeal cannot be resolved. Once the parties’ child turned 18, she attained the right to make her own decisions, including whether to visit her parents, rendering the issues father raises on appeal moot.

The appeal was dismissed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court May Not Consider Documents Outside Bare Allegations of Complaint when Ruling on C.R.C.P. 12(b)(5) Motion

The Colorado Court of Appeals issued its opinion in Prospect Development Co., Inc. v. Holland & Knight, LLP on Thursday, July 26, 2018.

C.R.C.P. 12(b)(5)—Matters Outside the Bare Allegations of the Complaint—C.R.C.P. 12(b)(5)—Statute of Limitations—Affirmative Defense.

Prospect Development Company, Inc. (Prospect) owned and sold undeveloped lots near Crested Butte. It relied on Holland & Knight, LLP (H&K) to prepare federally mandated property reports for prospective buyers. These reports stated that Prospect was responsible for the costs of constructing roads, sewage systems, and other infrastructure. They also stated that individual lot purchasers would not be responsible for these costs. The reports neglected to disclose that the special district in which the lots were located would purchase the infrastructure from Prospect using property tax revenue from the lots, effectively passing the cost of the infrastructure on to the lot owners.

In 2010, several lot owners complained they were not notified before they purchased that they would ultimately pay for the cost of infrastructure through property taxes. H&K assured Prospect that the reports complied with applicable law. Nevertheless, Prospect entered into a tolling agreement with the lot owners in 2010, agreeing to stay the running of any limitations period applicable to claims the lots owners might have against Prospect. In 2011, H&K withdrew from representing Prospect. In 2013, the lot owners sued Prospect based on its failure to make the required disclosures, and Prospect settled with them in 2015. Also in 2015, Prospect entered into a tolling agreement with H&K to toll claims that Prospect might have against H&K. Prospect sued H&K in 2016, alleging professional negligence. H&K did not answer the complaint but moved to dismiss under C.R.C.P. 12(b)(5), arguing that the statute of limitations barred the claims. H&K attached several exhibits from the underlying litigation between the lot owners and Prospect to support its assertion that the claims had accrued in 2011. Prospect opposed the motion and argued the trial court should disregard the exhibits, or, alternatively, if it did consider the exhibits, it should convert the motion to one for summary judgment and allow Prospect to present its own evidence. The district court granted the motion to dismiss, ruling the claims were time barred.

On appeal, Prospect argued that the district court erred by considering matters outside of the complaint in granting the C.R.C.P. 12(b)(5) motion. A defense based on a statute of limitations is an affirmative defense. H&K’s motion was based on a statutes of limitations defense. Thus, in ruling on H&K’s motion, the district court was not allowed to consider matters outside the bare allegations of the complaint. Here, the district court erred in considering two documents from the underlying litigation that were not part of the bare allegations of the complaint. If the district court wished to consider these documents, it was required to convert H&K’s motion to one for summary judgment. This error was not harmless because when viewed in the light most favorable to Prospect, the complaint’s allegations, and those in two documents that the complaint referred to, established that Prospect’s claims were timely.

The order was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Board Correctly Ruled that Contiguous Vacant Parcel Not “Used As a Unit” Within Residential Parcel

The Colorado Court of Appeals issued its opinion in Twilight Ridge, LLC v. Board of County Commissioners on Thursday, July 27, 2018.

Property Tax—C.R.S. § 39-1-102(14.4)(a)Used as a UnitVacant Land.

The Robinsons are the sole members of Twilight Ridge, LLC (Twilight), a Colorado limited liability company. In 2013 Twilight purchased two contiguous platted parcels of land in La Plata County. The first parcel has a home on it (the Residential Parcel). The second parcel is a 0.763 acre buildable but undeveloped lot (the Subject Parcel).

The La Plata County Assessor classified the Subject Parcel as vacant land. Twilight appealed the decision for the 2014 to 2015 tax years to the Board of County Commissioners of La Plata County and it appealed the decision for the 2016 tax year to the Board of Equalization for La Plata County, arguing to both bodies (collectively, the County) that the Subject Parcel should be reclassified as residential land. The County upheld the County Assessor’s classification.

Twilight appealed to the Board of Assessment Appeals (BAA). At a consolidated hearing, Mr. Robinson testified that he and his wife bought the two parcels together so that the Subject Parcel would give them privacy, serve as a buffer to prevent any potential house built on the subject property from impeding their views, and provide a place for their grandchildren to play when they visited. Further, although he was currently offering only the Residential Parcel for sale, Robinson intended to sell both parcels together.

Twilight also offered testimony by the Colorado Division of Property Taxation’s deputy director, who was designated by the Property Tax Administrator (PTA) to testify regarding the Division’s policies as embodied in the PTA’s Assessors’ Reference Library (ARL). The County provided the testimony of its appraisers, who had visited the parcels and seen no activity or evidence of use on the Subject Parcel when she visited. The La Plata County Assessor also testified that using the Subject Parcel as a place for children to play and protect a view were “incidental” uses and not the “integral” use of the Subject Parcel in conjunction with the residential improvements that would warrant classifying it as residential. The BAA upheld the County’s classification.

On appeal, Twilight argued that the BAA misconstrued the “used as a unit” element of C.R.S. § 39-1-102(14.4)(a) and made clearly erroneous findings of fact. The BAA’s conclusion that Twilight did not satisfy its burden of proving that the Subject Parcel was used as a unit with the residential parcel is consistent with the ARL and the testimony at the hearing that “used as a unit” contemplates integral, not merely incidental, use.

The orders were affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Refusal to Leave Ex-Girlfriend’s Residence Could Leave him Subject to Prosecution for Trespass and Burglary

The Colorado Court of Appeals issued its opinion in People v. Murray on Thursday, July 27, 2018.

Criminal Law—Trespass—Burglary—Assault—Landlord–Tenant Agreement—Evidence—Doctrine of Completeness—Credibility.

Defendant’s ex-girlfriend (the victim) asked him to come to her house to help with an errand. The couple had dated “on and off” for about two years, and defendant had stayed frequently at the house, but the two had broken up about two-and-a-half weeks earlier. Defendant entered the victim’s house, and the two got into an argument. The victim told defendant to leave. Defendant threatened the victim, ripped off her clothes, and tried to sexually assault her. At that moment, a friend of the victim showed up. Defendant chased him into the street. The victim locked the door behind defendant and called 911. Defendant yelled at the victim to let him back in the house, but she refused. He then broke a window on the front door trying to get back inside. Defendant was found guilty of first degree burglary, trespass, third degree assault, false imprisonment, attempted sexual assault, attempted second degree burglary, and criminal mischief.

On appeal, defendant contended that the court provided an inaccurate jury instruction defining “enters unlawfully” and “remains unlawfully,” and that it abused its discretion by refusing his tendered instruction explaining those concepts. The basis for defense counsel’s objection to the prosecutor’s added instruction and for his requested instruction was his argument that defendant wasn’t on the premises unlawfully because he lived there. However, defendant failed to present any evidence of a landlord–tenant agreement between him and the victim, and he didn’t pay rent. Therefore, defendant was not a tenant and didn’t have a possessory interest in the premises other than that the victim allowed. The district court did not need to provide the type of instruction that defense counsel tendered.

Defendant further contended that the district court erred by denying his motions for a judgment of acquittal based on insufficiency of the evidence. The record contains sufficient evidence to support the jury’s finding that defendant knowingly entered or remained in the victim’s house unlawfully with the intent to assault and sexually assault the victim, and that he attempted to sexually assault the victim.

Defendant also contended that the district court erred by ruling that if he introduced certain of his recorded statements pursuant to the doctrine of completeness, his credibility would be implicated, and the prosecution could use his Montana deferred judgment to impeach his credibility. He argued that as a result of these rulings, the district court infringed on his right to a fair trial and to confront witnesses, because he was dissuaded from introducing his statements and cross-examining the prosecution’s investigator. Defendant’s statements were self-serving and were inadmissible under the doctrine of completeness. Further, defendant waived his contention that his testimony couldn’t be impeached by the Montana judgment. Alternatively, had defendant not waived this issue, the Montana judgment constituted an admissible felony conviction, and any error wasn’t plain.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court Erred in Ruling Defendant Knew of Bond Condition Prohibiting Travel

The Colorado Court of Appeals issued its opinion in People v. Donald on Thursday, July 26, 2018.

Criminal Law—Bond Conditions—Failure to Appear—Mens Rea.

Defendant was arrested and charged with a felony. During his court appearance, the judge set bond and announced his court date. Defendant subsequently posted bond and was released from jail. The bond paperwork provided that, as a condition of his release, defendant was prohibited from leaving Colorado without court approval. Defendant failed to appear in court, and he was arrested in Mississippi five weeks later. A jury convicted defendant of knowingly violating a condition of bond by leaving Colorado and knowingly failing to appear for trial or other proceedings.

On appeal, defendant contended that the prosecution failed to establish beyond a reasonable doubt that he knew of his court date and knowingly failed to appear. However, defendant was present when the court announced the court date, and there was sufficient evidence to permit the jury to reasonably infer that defendant was aware of the court date and that he knowingly failed to appear.

Defendant also contended that the prosecution failed to establish beyond a reasonable doubt that he knew of the bond condition that prohibited him from leaving Colorado. Here, there was no evidence that the bond condition was announced or discussed in open court; it was set forth only in the bond paperwork. The prosecution failed to present any evidence showing that defendant had personally signed the bond paperwork or that he was otherwise aware of the bond condition that prohibited out-of-state travel. Therefore, the evidence was insufficient to establish defendant’s knowledge of the specific bond condition therein beyond a reasonable doubt.

The judgment and sentence were affirmed in part and vacated in part.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Erred in Refusing to Grant Continuance

The Colorado Court of Appeals issued its opinion in People v. Senette on Thursday, July 26, 2018.

Criminal Law—Witness—Subpoena—Motion for Continuance—Bench Warrant.

The prosecution charged defendant with aggravated robbery and menacing against a single victim, M.T. When M.T., who was a necessary witness and was under subpoena, did not appear at trial, the prosecution requested that the trial court issue a bench warrant and grant a brief continuance to secure the M.T.’s attendance. The trial court denied both requests and, at defendant’s request, dismissed the charges.

On appeal, the People argued that the trial court erred by denying its motion for a continuance and dismissing the case. The trial court abused its discretion in denying the continuance because it (1) misapplied the law regarding the issuance of a bench warrant as a remedy to procure the attendance of a missing witness, and (2) failed to consider the factors relevant to the prosecutor’s motion to continue. Those factors included whether the prosecutor was diligent in securing the witness’s attendance, whether a continuance would be effective in securing the witness’s attendance, and the prejudice that a continuance would cause both parties.

The People also contended that the trial court erred in dismissing the charges after denying the continuance. Because the trial court erred in denying the motion for continuance, and the dismissal of the charges was a direct result of that erroneous decision, the trial court erred in dismissing the case.

The order was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: No Violation of Open Meetings Law in Establishing Process to Refer Physicians for Disciplinary Investigations Related to MMJ Prescriptions

The Colorado Court of Appeals issued its opinion in John Doe No. 1-9 v. Colorado Department of Public Health and Environment on Thursday, July 26, 2018.

Open Meetings LawState Public BodyAdministrative Procedure Act—Colorado Open Records Act—Attorney Fees and CostsMedical MarijuanaC.R.S. § 24-4-106(8)—Final Agency Action.

The Colorado Constitution authorizes physicians to recommend the medical use of marijuana for patients with debilitating medical conditions. The Colorado Department of Public Health and Environment (CDPHE) is designated as “the state health agency” to administer Colorado’s medical marijuana program and is required to promulgate rules to administer the program. CDPHE created the medical marijuana registry to meet its requirement to establish a confidential registry of patients who are entitled to receive medical marijuana cards.

CDPHE has discretion to refer physicians to the Colorado Medical Board (the Board) for violations of medical marijuana laws. The Board, which is entirely separate from CDPHE and is housed under the Department of Regulatory Agencies, determines whether such violations exist.

Wolk, the CDPHE executive director, and Riggins, the state registrar and director of the Medical Marijuana Registry, (collectively, the Department) referred John Does 1 through 9 (collectively, the Doctors) to the Board for investigation of unprofessional conduct involving the Doctors’ certification of patients for the use of medical marijuana. The Department based its referrals on its medical marijuana policy (the Policy).

The Doctors then submitted Colorado Open Records Act (CORA) requests to the Department and the Board, seeking public records about, among other things, the Policy. The Department responded to the request, but withheld certain documents. The Doctors then brought this action against the Department and the Board, alleging violations of Colorado’s Open Meetings Law (OML) and the State Administrative Procedure Act (APA) and seeking injunctive and declaratory relief. The district court dismissed the claims against the Board and granted summary judgment on the Doctors’ OML and APA claims against the Department and, as a result, declared the Policy void.

On appeal, the Department argued for reversal of the summary judgment, contending that the entire agency cannot constitute a “state public body” under the OML, so the OML doesn’t apply. Under the OML’s plain language, the Department is not a state public body. Thus, the district court erred in granting summary judgment on the Doctors’ OML claim against the Board.

The Doctors challenged the dismissal of their OML claim against the Board. However, they did not allege that the Board had authority to enact or implement the Policy, or that it had enacted the Policy. Thus, even accepting as true the Doctors’ allegations that Board employees attended meetings to discuss and develop the Policy, the complaint failed to allege facts showing a link between the meetings and the Board’s policy-making powers. Thus, the Board is not subject to the OML.

The Doctors also challenged the denial of their request for attorney fees and costs under the OML. Given the case disposition, the court of appeals rejected the request.

The Department also argued that the district court erred in finding that the APA applied to the Department referrals because they are not a “final agency action” under the APA. Subject to an exception under C.R.S. § 24-4-106(8), only final agency action is subject to review. The referrals were not final; they didn’t determine anything, and it is uncertain whether an investigation will result in a finding of a violation or any other action. The Doctors sought to enjoin the referrals under the C.R.S. § 24-4-106(8) exception, which allows interlocutory review of agency actions in which a party will suffer irreparable harm. But to fit under the exception, the referrals must be a “proceeding” under the APA, which they are not. The district court erred in granting summary judgment on the Doctors’ APA claims against the Department based on the referrals.

The Doctors further argued that the Policy itself was a final agency action that did not comply with the APA’s rulemaking requirements. Here, the Policy was not binding and did not confer any power the Department did not already have, so it fell within the APA’s exception to the notice and hearing rulemaking requirements.

The Doctors also objected to the dismissal of the APA claims against the Board. However, they developed no argument in their opening brief about how the APA applies to the Board, and their discussion of the APA in their reply brief was too late.

The Doctors next argued that the district court erred in denying an award for attorney fees and costs associated with their request to obtain access to public documents under CORA. A party requesting an order to show cause for the disclosure of public records is not entitled to attorney fees and costs if the requesting party has filed a lawsuit against a state public body and the records relate to the pending litigation and are otherwise discoverable under the rules of civil procedure, which was the case here. The district court did not err in denying attorney fees and costs under CORA.

The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: 32-Year Habitual Offender Sentence Does Not Raise Inference of Gross Disproportionalilty

The Colorado Court of Appeals issued its opinion in People v. Loris on Thursday, July 26, 2018.

Criminal Law—Possession—Intent to Distribute—Controlled Substance—Manslaughter—Habitual Criminal Statute—Sentencing—Drug Felonies—Gross Disproportionality.

Defendant sold methamphetamine to three individuals. As part of the deal, she agreed to accept a handgun for the drugs. After the parties had been drinking and smoking methamphetamine, defendant handled the gun and it went off. The bullet struck the victim in the head, killing him. Defendant pleaded guilty to possession with intent to distribute a controlled substance, manslaughter, and four habitual criminal counts. The four habitual criminal counts were based on prior state felony convictions. Applying the habitual criminal sentence multiplier, the district court sentenced defendant to concurrent sentences of 32 years for possession with intent to distribute and 24 years for manslaughter.

On appeal, defendant contended that her 32-year sentence raises an inference of gross disproportionality and therefore requires a remand for an extended proportionality review. Here, defendant’s triggering offense of possession with intent to distribute a controlled substance was per se grave or serious. Defendant’s underlying conviction for conspiracy to distribute a controlled substance is also a per se grave or serious offense. The gravity of defendant’s offenses as a whole compared to the severity of her 32-year habitual criminal sentence does not merit a remand for an extended proportionality review. Defendant’s 32-year sentence does not raise an inference of gross disproportionality.

Defendant also contended that the district court lacked authority under the habitual criminal statute to sentence her to a 32-year sentence for a level 2 drug felony. The sentence multiplier of the habitual criminal statute applies to convictions “for any felony.” The district court had authority to sentence defendant to a term of 32 years under the habitual criminal statute.

The sentence was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court’s Late Imposition of Drug Offender Surcharge Did Not Violate Double Jeopardy

The Colorado Court of Appeals issued its opinion in People v. Yeadon on Thursday, July 27, 2018.

Criminal Law—Driving Under Restraint—Failure to Report an Accident or Return to the Scene—Possession—Methamphetamine—Evidence—Prosecutorial Misconduct—Drug Offender Surcharge—Illegal Sentence—Double Jeopardy.

Police officers responded to a rollover crash where the driver had abandoned the vehicle. The car had been reported stolen two weeks earlier. After an expert matched Yeadon’s DNA to the deployed driver’s airbag in the crashed vehicle, a jury found Yeadon guilty of driving under restraint, failure to report an accident or return to the scene, and possession of less than two grams of a controlled substance (methamphetamine), which was found in the crashed vehicle. The district court sentenced Yeadon to 16 months in the custody of the Department of Corrections and, 11 days later, imposed a $1,250 drug offender surcharge.

On appeal, Yeadon contended that the prosecution presented insufficient evidence to support his conviction for possession. Here, the CBI expert testified that Yeadon was the major source of the DNA found on the driver’s side airbag and that such evidence suggested that he was sitting in the driver’s seat when the airbag deployed. Therefore, the prosecution presented sufficient evidence that Yeadon was the driver of the car at the time of the crash. Further, the evidence showed that Yeadon was in close proximity to the bag of methamphetamine and the scale found on the front seat, and that he fled from the accident. There was sufficient evidence to support Yeadon’s conviction for possession of less than two grams of a controlled substance.

Yeadon also argued that certain statements made by the prosecutor during closing argument constituted misconduct. However, the prosecution’s comments were reasonably supported by the evidence and did not improperly affect the verdict.

Yeadon further argued that the district court’s late imposition of the drug offender surcharge violated his right against double jeopardy. Because C.R.S. § 18-19-103(1) mandates that the drug offender surcharge be imposed in all cases in which a defendant is convicted of a drug offense, failure to impose the surcharge renders a sentence illegal. Yeadon’s sentence did not include the surcharge and was not accompanied by a district court finding of his financial inability to pay, so the sentence was contrary to the statute and illegal, and the district court was required to correct defendant’s sentence by including the surcharge. The late imposition of the surcharge was a permissible correction to an illegal sentence and thus did not violate Yeadon’s double jeopardy rights.

The judgment and sentence were affirmed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.