Colorado Court of Appeals


July 2016: Summaries of Published Opinions

Summaries of Published Opinions

The summaries of Colorado Court of Appeals published opinions are written for the CBA by licensed attorneys Teresa Wilkins (Englewood) and Paul Sachs (Steamboat Springs). They are provided as a service by the CBA; are not the official language of the Court; and are available only in The Colorado Lawyer and on the CBA website, www.cobar.org (click on “Opinions/Rules/Statutes”). The CBA cannot guarantee their accuracy or completeness. The full opinions, the lists of opinions not selected for official publication, the petitions for rehearing, and the modified opinions are available both on the CBA website and on the Colorado Judicial Branch website, www.courts.state.co.us (click on “Courts/Court of Appeals/Case Announcements”).

July 14, 2016

2016 COA 105. No. 13CA1680. People v. Lucero. Conspiracy to Distribute a Controlled Substance—Insufficient Evidence.

On several occasions, Lucero requested prescription medication from her coworker for pain relief. Each time the coworker gave Lucero medication, she gave Lucero one pill. Although the evidence showed that Lucero took the pills herself and did not distribute them, she was found guilty of conspiracy to distribute a controlled substance.

On appeal, Lucero contended that the prosecution presented insufficient evidence to prove that she conspired with her coworker to distribute a controlled substance. A mere buyer–seller relationship, without more, does not constitute a conspiracy to distribute a controlled substance because such conspiracy liability would frustrate the legislative policy to distinguish between distribution of an illegal drug and the acquisition or possession of the drug. Nothing in the record suggested that Lucero and her coworker agreed and intended that Lucero would distribute the pills to others, and Lucero indicated that she consumed the pills to relieve her personal ailments. Accordingly, the prosecution presented insufficient evidence to sustain Lucero’s conspiracy conviction.

The judgment was vacated and the case was remanded for entry of a judgment of acquittal.

2016 COA 106. No. 14CA1954. People v. Stellabotte. Aggravated Motor Vehicle Theft—Felony Theft—Misdemeanor Theft—Jury Instructions—Sentence Reclassification—Disproportionate—Eighth Amendment.

Stellabotte, owner of J&J Towing, was charged with various crimes based on illegally towing vehicles. He was found guilty of one count of aggravated motor vehicle theft, two counts of felony theft, and one count of misdemeanor theft. His sentence was enhanced by three habitual criminal counts.

On appeal, Stellabotte contended that the trial court erred in instructing the jury on aggravated motor vehicle theft. In contrast to the theft instruction, the aggravated motor vehicle theft instruction did not convey that he had to act knowingly without authorization. However, the court listed “knowingly” as the second element of the crime, which applied to the succeeding elements, including the fifth element, “without authorization.” Further, confusion was not created by listing “without authorization” as a subpart of “knowingly” in the theft instruction.

Stellabotte also contended that the court abused its discretion when it provided the standard dictionary definition of “authorization” because the definition differed from that in relevant case law. However, the trial court did not abuse its discretion when it supplemented the jury instructions with the definition of authorization because (1) “authorization” was related to a legal issue, (2) the court’s response was simple and direct, and (3) the jury had expressed confusion over this term.

Stellabotte further argued that the 24-year sentences imposed for his two felony theft convictions should be halved because of new legislation reducing the severity of those offenses. He contended that this reclassification should reduce the maximum of his sentencing range for his theft convictions from six years to three years, which in turn should reduce his sentence for those offenses, as enhanced by the habitual criminal statute, from 24 years to 12 years. The Court of Appeals agreed. Due to a change in the law, by the time the court sentenced Stellabotte, his offenses were considered class 5 felonies. However, the court entered a judgment of conviction and sentenced him under the prior laws as class 4 felonies. Accordingly, the case was remanded to the trial court to correct his sentence on the two felony theft convictions and corresponding habitual criminal sentence enhancement to reflect a 12-year sentence for those offenses.

Lastly, Stellabotte argued that the 24-year sentences imposed for his three habitual criminal counts are grossly disproportionate to the nature and severity of the offenses in violation of the Eighth Amendment. The triggering offenses and the underlying offenses are grave and serious and support the 24-year sentences that the trial court imposed; thus, they are not disproportionate and do not violate the Eighth Amendment.

The judgment was affirmed, the sentences were affirmed in part and vacated in part, and the case was remanded for resentencing of the felony theft convictions.

2016 COA 107. No. 14CA2300. People v. Vasseur. Colorado Organized Crime Control Act—Restitution—Sixth Amendment—Right of Confrontation—Hearsay—Foundation—Authentication.

Vasseur pleaded guilty to violating the Colorado Organized Crime Control Act for her participation in an Internet scam through which money was stolen from 374 victims. She was sentenced and the district court imposed $1,010,467.55 in restitution, based on a spreadsheet summarizing the criminal acts and the testimony of the primary investigator on the case.

Vasseur appealed the restitution order, contending that the district court erred when it considered the summary spreadsheet in imposing restitution because (1) it violated her Sixth Amendment right of confrontation, and (2) the spreadsheet contained inadmissible hearsay, lacked a proper foundation, and had not been properly authenticated. The right of confrontation and the Colorado Rules of Evidence do not apply to sentencing proceedings, including restitution hearings. Therefore, the district court did not abuse its discretion when it relied on the spreadsheet in determining the amount of restitution.

The order was affirmed.

2016 COA 108. No. 15CA0239. Rangeview LLC v. City of Aurora. Rezoning of Property—Site Plan—Standards—Abuse of Discretion.

BFR’s application to rezone its parcel of property (the property) was granted. Rangeview LLC owns Rangeview Estates, which borders the property to the west, and Eades and Sellery each own property in the neighborhoods surrounding the property. Rangeview, Eades, and Sellery (collectively, Rangeview) filed the underlying action against the City of Aurora, claiming that the Aurora City Council exceeded its jurisdiction in granting BFR’s application to rezone the property. The district court affirmed the City Council’s decision.

On appeal, Rangeview argued that City Council abused its discretion by approving the site plan because the plan did not include an outdoor gathering space as mandated by the Aurora Municipal Code’s (Code) sustainable infill redevelopment (SIR) zoning district design standards. The Code defaults to the terms of the SIR handbook, which states that projects “should” provide a public space. Therefore, although a public space is desirable, it is not required. Because City Council’s approval was supported by competent evidence, it did not abuse its discretion.

Rangeview also argued that City Council abused its discretion in rezoning the property to an SIR district when the property does not meet the requirements of an “infill development parcel,” the proportions of which are defined in the Code. Because the Code language’s ordinary meaning does not reference any requirement related to the proportions of developed boundaries, the City Council did not abuse its discretion by approving the rezoning request even though the property would not meet the definition of an “infill development parcel.”

The judgment was affirmed.

2016 COA 109. No. 15CA0682. People v. Boulden. Knowledge Element of Driving Under Restraint.

Defendant’s driver’s license had been suspended for seven months when he was pulled over. He was convicted of driving under restraint.

On appeal, defendant contended that there was insufficient evidence to support his conviction. Knowledge is an essential element of the crime of driving under restraint. The prosecution admitted into evidence a certified copy of defendant’s driving history, which showed that notice of defendant’s driver’s license suspension had been mailed to him. Mere proof of mailing, however, is not sufficient in a criminal case to prove beyond a reasonable doubt a defendant’s knowledge of restraint of his driver’s privilege. Accordingly, no reasonable jury could have found that the prosecution proved the knowledge element of driving under restraint. Defendant’s conviction and sentence for driving under restraint were vacated, and the trial court was directed on remand to enter a judgment of acquittal.

2016 COA 110. No. 15CA0770. MarkWest Energy Partners, L.P. v. Zurich American Insurance Company. Insurance—Notice-Prejudice Rule—Occurrence Liability Policy.

MarkWest Energy Partners, L.P. (MarkWest), a natural gas company, procured from Zurich American Insurance Company (Zurich) a commercial general liability policy (the policy) with a limited pollution liability endorsement (the endorsement), covering “incidents” occurring between November 1, 2012, and November 1, 2013. On November 4, 2012, MarkWest was constructing a pipeline when a chemical used in the drilling process escaped the drilling area, thereby contaminating the surrounding area. MarkWest immediately reported the incident to local environmental officials, who approved a chemical cleanup protocol and confirmed that cleanup had been successfully completed in February 2013. On March 28, 2013, MarkWest notified Zurich of the contamination and filed an associated claim. Zurich denied the claim because MarkWest had failed to provide notice within 60 days of the incident, as required by the endorsement. MarkWest filed an action for damages, and the district court granted Zurich’s motion for summary judgment.

On appeal, MarkWest contended that the notice-prejudice rule applied and the district court erred in granting Zurich’s motion for summary judgment. Colorado’s notice-prejudice rule applies even where, as here, the notice requirement is a condition precedent to coverage under an occurrence liability policy. Therefore, unless Zurich can show that its ability to investigate the occurrence or defend against a claim was prejudiced by MarkWest’s late notice, the court cannot deny a claim based solely on a failure to strictly comply with the notice provision. Because the district court concluded otherwise, its decision was reversed and the case was remanded for further proceedings.

2016 COA 111. No. 15CA1046. Mortgage Investments Enterprises LLC v. Oakwood Holdings, LLC. Foreclosure—Lien—Redemption.

The debtors purchased the property at issue and subsequently defaulted on their obligation to pay monthly fees to the Kimblewyck Village Owners Association (Kimblewyck). Kimblewyck filed a lien against the property. The property was also encumbered by (1) a lien filed by the Fox Run Owners Association and (2) two judgments entered in favor of Community Management Association, Inc. (CMA). Kimblewyck obtained a judgment and decree of foreclosure. Mortgage Investments Enterprises LLC (Mortgage Investments) was the successful bidder at the foreclosure sale. On the day before the foreclosure sale, Oakwood Holdings, LLC (Oakwood) purchased the Fox Run lien and both CMA judgments. Oakwood subsequently filed notices of intent to redeem the Fox Run lien and one of the CMA judgments. Mortgage Investments tendered, on behalf of the debtor, pursuant to a valid power of attorney, lien satisfaction payments to Oakwood. Although Oakwood’s period to redeem had not yet begun, it refused to accept the payments. Mortgage Investments filed a complaint for a declaratory judgment that Oakwood was required to accept Mortgage Investments’ tenders on behalf of the debtor. Oakwood subsequently redeemed the property, and the district court granted Oakwood’s motion for summary judgment.

On appeal, Mortgage Investments argued that the district court erred in concluding that Oakwood had no duty to accept tender of payment in satisfaction of its liens. Prior to the start of Oakwood’s period to redeem and before it tendered redemption funds, Oakwood had a duty to accept Mortgage Investments’ tender of payment, on behalf of the debtor, in satisfaction of the lien Oakwood sought to redeem. The district court’s judgment was reversed and the case was remanded with directions to enter summary judgment in favor of Mortgage Investments.

2016 COA 112. No. 15CA1953. People in re L.K. Dependency and Neglect—Sexual Abuse—Polygraph Examination—Treatment Plan—Testimony—Evidence—Attorney Fees—Discovery Violations—Sovereign Immunity.

L.K. alleged sexual abuse by her father, C.K. Although C.K. denied the allegations, he stipulated that L.K. was dependent and neglected because she lacked proper parental care. The court accepted his admission and adjudicated L.K. dependent and neglected. The Moffat County Department of Social Services (MCDSS) devised a treatment plan for C.K., which required, among other things, that C.K. take a polygraph examination as part of denier’s treatment. Moffat later moved to terminate C.K.’s parental rights. Among other things, the court found that C.K. had been referred for a polygraph examination but did not appear for it, and it granted the termination motion, citing C.K.’s failure to successfully complete treatment designed to address the allegations of sexual misbehavior with L.K. as sufficient evidence that he was unable or unwilling to provide nurturing and safe parenting to adequately address her needs.

On appeal, C.K. contended that the trial court committed reversible error by considering the denier’s treatment polygraph examination as evidence supporting its determination that he failed to successfully complete his treatment plan. He did not dispute either that his treatment plan required him to participate in denier’s treatment or that a polygraph examination was required in denier’s treatment. For these reasons, the court properly admitted evidence of efforts to schedule an appointment for a polygraph examination and evidence that C.K. did not keep the appointment, and the court did not err in considering this evidence in terminating C.K.’s parental rights.

Next, C.K. contended that MCDSS had the burden to prove by clear and convincing evidence that his parental rights should be terminated, but the trial court erred by unfairly shifting the burden of proof to him when he decided not to testify in the termination hearing. When C.K. failed to present evidence, the court did not improperly shift the burden of proof, infringe on his privilege against self-incrimination, or draw impermissible adverse inferences.

Finally, C.K. contended that MCDSS did not prove its case by clear and convincing evidence, asserting the absence of such evidence that he had sexually abused L.K., which was the basis for the petition in dependency and neglect. However, the factual basis for adjudicating L.K. dependent and neglected had already been established, and MCDSS’s burden was to prove the criteria for termination, including C.K.’s failure to comply with his treatment plan. The Court of Appeals rejected the contention that the evidence was insufficient to support the judgment.

On cross-appeal, MCDSS contended that the trial court erred in assessing attorney fees against it for discovery violations. Sovereign immunity precludes orders assessing attorney fees against a governmental entity for discovery violations.

The judgment was affirmed and the sanctions order was reversed.

July 28, 2016

2016 COA 113. No. 14CA2276. People v. Geisick. Assault—Resisting Arrest—Obstructing a Peace Officer—Challenge for Cause—Prejudice—Hearsay—Insufficient Evidence—Lesser Non-Included Offense—Waiver.

Geisick engaged in a physical altercation with an officer and attempted to escape on foot. Geisick was charged with assault on a peace officer, attempting to disarm an officer, and possession of drug paraphenalia. At his trial, Geisick asked the court to instruct the jury on two lesser nonincluded offenses that were not charged: resisting arrest, and obstructing a peace officer. He was found guilty of resisting arrest, obstructing a peace officer, and possession of drug paraphernalia.

On appeal, Geisick argued that the trial court reversibly erred by denying his challenge for cause to a potential juror whom he then used a peremptory challenge to dismiss. The Court of Appeals rejected this argument because Geisick failed to articulate how this error caused any prejudice to him.

Geisick next argued that the trial court erred by admitting hearsay testimony about the physical altercation with the officer from another officer who did not witness the altercation. Any error in admitting the testimony was harmless because the jury understood that the testifying officer did not actually observe the altercation.

Geisick also argued that the evidence was insufficient to support his convictions for resisting arrest and obstructing a peace officer. Geisick waived this argument when he requested that the trial court instruct the jury on these lesser non-included offenses.

Lastly, Geisick argued that the cumulative effect of the alleged errors deprived him of a fair trial. Even if the trial court had erred by denying his challenge for cause and admitting the interviewing officer’s testimony, these errors did not prejudice Geisick’s right to a fair trial.

The judgment was affirmed.

2016 COA 114. No. 15CA1755. Rucker v. Federal National Mortgage Association. Property—For Sale Sign—Implied Representation—Injuries—Trespasser—Invitee.

The Federal National Mortgage Association (FNMA) owned an unoccupied house. Heter and Company, Inc. (Heter), FNMA’s listing real estate broker, placed a “For Sale” sign in the house’s front yard. There was also a “Warning” sign on the front door that stated, “Theft, Trespassing or Vandalism Will Be Prosecuted to the Full Extent of the Law.” After Rucker’s father submitted an offer on the house, Rucker and her mother went to look at the house without informing FNMA or Heter. While looking at the house, Rucker fell and suffered injuries. She sued FNMA and Heter for the damages she suffered in her fall. The trial court found that Rucker was a trespasser under the Premises Liability Act.

On appeal, Rucker contended that she was an invitee because she entered the property in response to an implied representation by FNMA that the “For Sale” sign indicated that the public was requested, expected, or intended to enter. Here, there was no evidence that the buyers had any authority to inspect the premises without a real estate agent present. Therefore, the trial court did not err in concluding that the “For Sale” sign did not constitute an implied representation to the public to enter or remain on the property, and, consequently, Rucker was a trespasser.

The order was affirmed.