07/22/2016

Colorado Court of Appeals

 

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”).

June 2016

June 2, 2016

2016 COA 85. No. 11CA2514. People v. Nardine.CRS § 186.5-103(7)(c)—Mens Rea Element—At-Risk Juvenile—Prosecutorial Misconduct—Character Evidence—Other Acts Evidence.

Nardine was convicted of unlawful sexual conduct on an at-risk juvenile. On appeal, Nardine contended that CRS § 18-6.5-103(7)(c) has an implied mens rea element that requires the prosecution to prove that a defendant knew of the victim’s at-risk status. He thus argued that the evidence was insufficient to convict him and the trial court erroneously instructed the jury by submitting a special interrogatory that did not include a mens rea for the at-risk element. The Court of Appeals disagreed with his interpretation of the statute. A defendant need not know that the victim is “at-risk” to be convicted of unlawful sexual contact on an at-risk juvenile. Consequently, Nardine’s challenges to the sufficiency of the evidence and the special interrogatory were rejected.

Nadine also contended that numerous instances of prosecutorial misconduct during closing argument, in their totality, rose to the level of plain error and required reversal of his conviction. Under the circumstances of this case, the prosecutor improperly (1) characterized the defense theory as a disingenuous scheme commonly perpetuated by defense attorneys to take advantage of victims with mental illness to obtain wrongful acquittals; (2) appealed to the jurors’ religious beliefs and “lambasted” the defense theory by characterizing it as an attack on these beliefs; (3) argued that defense counsel did not believe his own client; (4) argued facts outside the record; and (5) vouched for witness credibility. Because the misconduct so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the verdict, reversal was required.

Additionally, Nardine contended that the trial court should have excluded CRE 404(a) character evidence that he was “a sexual predator” and “not a very good person,” and CRE 404(b) evidence of specific other acts of sexual misconduct. The witness statements about Nardine being “not a good person” and a “sexual predator” were inadmissible under CRE 404(a). Evidence of other acts of sexual misconduct against others, however, was permissible to show that Nardine had a similar intent, motive, common plan, scheme, and method of operation.

The judgment was reversed and the case was remanded.

2016 COA 86. No. 13CA1215. People v. Mountjoy, Jr.

Consecutive Sentencing—Aggravated Range—Jury—Evidence.

Defendant was convicted of manslaughter, illegal discharge of a firearm (reckless), and tampering with physical evidence. The trial court imposed a sentence in the aggravated range on each count, to be served consecutively.

On appeal, defendant first contended that each of his aggravated range sentences violated Apprendi v. New Jersey and Blakely v. Washington. Answering a novel question, the Court of Appeals determined that if a trial court sentences in the aggravated range based on facts not found by a jury, the sentence may be affirmed based on harmless error if the record shows beyond a reasonable doubt that a reasonable jury would have found those facts had the jury been requested to do so by special interrogatory. Based on the overwhelming evidence of guilt in this case, a jury would have found the facts on which the trial court relied in imposing aggravated range sentences, and therefore any error was harmless beyond a reasonable doubt.

Defendant also contended that the trial court abused its discretion in sentencing him consecutively on each conviction. A trial court may impose either concurrent or consecutive sentences where a defendant is convicted of multiple offenses. But when two or more offenses are supported by identical evidence, the sentences must run concurrently. Here, separate acts supported defendant’s convictions for manslaughter and illegal discharge of a weapon. Further, the facts supporting the tampering with evidence conviction did not involve the same acts as either the illegal discharge or manslaughter convictions. Because the record shows that each conviction was supported by distinct evidence, the trial court did not abuse its discretion in imposing consecutive sentences.

The sentences were affirmed.

2016 COA 87. No. 13CA1736. People v. Triplett. Residential Community Corrections Facility—Search—Reasonable Expectation of Privacy—Fourth Amendment—Fifth Amendment—Voluntary Statements.

Triplett was serving a sentence at a residential community corrections facility. A community justice officer conducted an unscheduled search of Triplett’s clothing while he was showering and discovered a vial of drugs. Triplett was convicted of possession of a controlled substance.

On appeal, Triplett contended that the trial court erred in denying his motion to suppress (1) the drugs found in his clothing, because this find resulted from an unconstitutional search, and (2) his statements to the police officer who questioned him about the drugs, because the statements should have been suppressed as “fruit of the poisonous tree” and were involuntary. The Court of Appeals found that the search was proper because, as an inmate, Triplett had no reasonable expectation of privacy in his clothing while at the residential community corrections facility, and the search was reasonable under the Fourth Amendment. Because the search was reasonable, Triplett’s argument that the statements he made to the police officer were fruit of the poisonous tree failed.

Alternatively, Triplett contended that his statements to the police officer should have been suppressed under the Fifth Amendment as involuntary under the totality of the circumstances. The Court disagreed, finding the statements were voluntary and admissible.

The judgment was affirmed.

June 16, 2016

2016 COA 88. No. 13CA1431. People v. Travis. Assault—Interview—Miranda—Motion to Suppress—Request for New Counsel— Continuance—Prosecutorial Misconduct.

Travis was convicted of second degree assault causing serious bodily injury, felony menacing, and third degree assault with a deadly weapon. She was sentenced to 10 years’ imprisonment and three years of mandatory parole.

On appeal, Travis argued that the trial court erroneously concluded that she was not in custody during the interview with police that occurred at her home and that, because she was not advised of her Mirandarights, the court erred in denying her motion to suppress the statements she made at that time. The Court of Appeals determined that (1) neither of the officers used physical restraint or force on Travis during the interview at her home; (2) Travis did not request to end the interview; (3) the interview was brief; (4) only two officers questioned Travis, the tone of the interview was conversational, and the questioning took place in Travis’s home with her husband in view; and (5) the interview took place in Travis’s kitchen, not in a secluded location. Thus, Travis was not in custody when she gave the statements at her home to the police, the statements were voluntary, and the trial court did not err in denying her motion to suppress them.

Travis also argued that the trial court abused its discretion when it denied her request for a continuance to seek new counsel on the morning of trial. Because there was insufficient information in the record to determine whether the trial court weighed the 11 essential factors or abused its discretion in denying the motion to continue, the case was remanded to the trial court for additional findings.

Additionally, Travis argued that the prosecutor’s closing argument was improper. However, the prosecutor’s remarks were a fair comment on the defense’s jury argument that while Travis was guilty of a crime, she was not guilty of the principal charges filed against her.

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

2016 COA 89. No. 14CA0529. Lensky v. DiDomenico. Adverse Possession—Quiet Title—Putative Adverse Possessor. 

In 1998, Lensky purchased a one-acre parcel of property from the Valdezes. Title insurance could not be provided because all of the structures and improvements that Lensky had purchased from the Valdezes were “off the deed” and actually located on adjacent land rather than on the deeded property. In 2001, Lensky filed a quiet title action, claiming fee simple ownership to the approximately 23 acres adjacent to the property he had purchased from the Valdezes by adverse possession. Litigation continued for a number of years. The trial court ultimately found in favor of defendants and ordered Lensky to remove certain structures that restricted access to the subject property. It further ordered Lensky and his associates to refrain from confronting defendants as they entered or left the subject property.

On appeal, Lensky contended that the trial court erred in finding that he had no rights as a putative adverse possessor. He argued that the Court of Appeals’ prior decision affirming his lack of legal title to the subject property fully adjudicated his prior claim to the property as an adverse possessor, but that it had no prospective effect. He also argued that his continued possession of the subject property as a putative adverse possessor gives him an interest in the property (including the right to restrict access to it) that is superior to everyone else’s interest except that of the rightful owner. The Court agreed, determining that neither the trial court’s prior order nor the division’s decision upholding that order addressed the parties’ possessory rights or Lensky’s ongoing right to possess the property, and neither prohibited him from continuing to attempt to adversely possess the property.

The trial court’s order prohibiting Lensky from excluding defendants from the subject property was reversed.

2016 COA 90. No. 14CA0862. People v. Helms. Internet Child Exploitation Statute—CRE 404(b)—Bad Act Evidence—Sufficiency of Evidence—Probation Revocation.

Defendant was convicted of two counts of Internet exploitation of a child. He was sentenced to 10 years of supervised probation on each count. The district court later revoked his probation when he failed to register as a sex offender and resentenced him for an indeterminate term of two years to life.

On appeal, defendant contended that the Internet child exploitation statute, CRS § 18-3-405(1)(a), is facially unconstitutional for several reasons. The Court of Appeals disagreed. The statute does not violate the dormant Commerce Clause of the U.S. Constitution because the statute is limited to situations in which the criminal conduct occurs either wholly or partially in Colorado. It also does not violate the First Amendment because it is not overly broad, and it does not violate defendant’s constitutional right to due process because it is not vague.

Defendant also contended that the district court erred by admitting a statement he made, arguing that it was CRE 404(b) bad act evidence. However, the statement was not admitted as evidence of defendant’s bad character; rather, it directly rebutted his defense. Therefore, the district court did not err by admitting this evidence.

Defendant additionally argued that the evidence was insufficient to support his convictions. He argued that his conviction for count one was not supported by sufficient evidence because the jury was instructed that he must have committed the crime in Colorado to be guilty of child exploitation. However, the sufficiency of the evidence is measured against the elements of the offense rather than jury instructions. The child exploitation statute does not require that the actor be in Colorado at the time of the criminal communication. As to the second count, defendant’s conduct did not meet the requirements of the essential elements of the offense. Therefore, this conviction was reversed.

 Defendant also argued that the district court erred by denying his motion for a mistrial after a witness testified about an inadmissible matter. Defense counsel elicited the statement from the witness, and although it was prejudicial, the court offered to give a curative instruction to the jury, which defense counsel declined. Therefore, the district court did not abuse its discretion by denying the motion for a mistrial.

Lastly, defendant contended that the district court’s revocation of his probation must be reversed because the district court did not adhere to the applicable statutory requirements. There was not sufficient evidence that defendant waived his right to be advised by the court through counsel, or that he was advised of potential penalties before the probation revocation hearing. In addition, the district court revoked defendant’s probation without obtaining and considering treatment and monitoring recommendations from defendant’s probation officer or treatment provider, as required by statute. Therefore, the district court’s revocation of defendant’s probation was reversed.

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

2016 COA 91. No. 14CA1259. Acierno v. Garyfallou, MD. Medical Malpractice—Mistrial—Prosecutorial Misconduct—Ex Parte—Witness—Physician–Patient Privilege—Costs—CRS § 1316-105.

Acierno filed a medical malpractice suit against Dr. Garyfallou and other defendants. The other defendants settled, and the jury returned a verdict in favor of Dr. Garyfallou. Plaintiff appealed and defendant cross-appealed the trial court’s order denying his motion for costs.

On appeal, Acierno asserted that defense counsel’s (1) misstatement of the trial court’s jury instruction on the applicable standard of care and (2) improper comments related to “runaway juries, runaway verdicts, and adverse media” warranted a mistrial. Here, the jury had a written copy of the correct instructions, the judge carefully considered Acierno’s request for a mistrial, and the court took remedial actions by admonishing defense counsel in front of the jury and advising the jury to disregard defense counsel’s statements. Therefore, the court sufficiently addressed any prejudice to Acierno and a mistrial was not warranted. In addition, the trial court did not abuse its discretion in denying the motion for new trial (1) based on changed testimony by prosecutorial witnesses, because this argument was not preserved by a contemporaneous objection; and (2) based on Acierno’s contention that a defense witness violated the court’s sequestration order, because the trial court found there was no violation and Acierno did not point to anything in the record establishing that the court’s finding was clearly erroneous.

Acierno also contended that the trial court erred when it allowed defense counsel to meet ex parte with the radiologist who interpreted Acierno’s MRI and MRA results. The trial court did not abuse its discretion because it confined defendant’s informal questioning to matters not subject to physician–patient privilege and Acierno did not assert that residually privileged information was divulged.

Acierno also contended that the trial court erred in denying his motion for directed verdict on Dr. Garyfallou’s defense of pro rata liability. Because the jury concluded that the doctor did not breach the applicable standard of care, this error was harmless.

Dr. Garyfallou contended, and the Court of Appeals agreed, that the trial court erred in denying his motion for costs against Acierno. Such an award is mandatory under CRS § 13-16-105.

The judgment was affirmed, the order denying costs was reversed, and the case was remanded.

2016 COA 92. No. 14CA1865. People v. Sosa. Deferred Judgment—Crim. P. 35(c)—Withdrawal of Guilty Plea—Crim. P. 32(d)— Final Judgment—Appeal.

Defendant entered into a plea agreement to a deferred judgment. Later, he filed a motion to withdraw his guilty pleas under Crim. P. 32(d) and 35(c).

Regarding the appeal of the district court’s denial of defendant’s Crim. P. 32(d) motion, no final, appealable judgment exists because defendant’s deferred judgment has not yet been revoked and he has not been sentenced. Therefore, defendant’s appeal of his Crim. P. 32(d) motion was dismissed, without prejudice, for lack of jurisdiction.

Regarding his appeal of the denial of his Crim. P. 35(c) motion, defendant raised no argument on appeal. Therefore, this argument was not considered and the district court’s order denying defendant’s Crim. P. 35(c) motion was affirmed.

2016 COA 93. No. 15CA0080. People v. Hunt.Postconviction Relief—Ineffective Assistance of Counsel—Transferred Intent—Complicity.

Defendant was charged with first degree “after deliberation” murder, first degree “extreme indifference” murder, conspiracy to commit murder, possession of a weapon by a previous offender, and three crimes of violence (sentencing enhancement) counts. Under a plea agreement, defendant pleaded guilty to an added count of second degree murder and to one of the original crime of violence counts in exchange for (1) the dismissal of the remaining charges and (2) a stipulated sentence of between 30 and 40 years’ imprisonment.

Defendant later wrote two letters to the district court asking to withdraw his guilty plea. He asserted that he was not guilty of murder because he had not intended for the shooter to kill the victim and his attorney had erroneously advised him that he could, if tried, be found guilty and sentenced to life imprisonment under a complicity theory. Plea counsel then filed a motion to withdraw from the case based on an alleged conflict of interest and asked the court to allow defendant to withdraw his guilty plea. Following a hearing, the court found no conflict of interest and directed counsel to file a Crim. P. 32(d) motion to withdraw guilty plea on behalf of defendant. Counsel filed the motion three days later. The court did not address the motion and sentenced defendant to 40 years’ imprisonment.

Defendant subsequently filed two pro se Crim. P. 35(c) motions for postconviction relief based on ineffective assistance of plea counsel, again alleging that he had been incorrectly advised that he could be found guilty of murder as a complicitor simply because he was present when a person he had not intended to be killed was killed. The court appointed new counsel who expounded on defendant’s claims, and the court, without a hearing, denied the motions for postconviction relief.

On appeal, defendant argued that he was entitled to a hearing on his ineffective assistance of counsel assertions, and the Court of Appeals agreed. An ineffective assistance of counsel claim requires a defendant to establish that counsel’s performance fell below the level of reasonably competent assistance demanded of attorneys in criminal cases and that the deficient performance prejudiced the defense. A hearing is required unless the record establishes that the allegations, if proven true, would fail to establish either of these conditions. Here, defendant argued that he was not aware that the shooter intended to kill someone other than a person whom defendant wanted to kill. If true, these facts would not support a conviction for first or second degree murder under a complicitor theory, and failure to advise defendant of this could have constituted deficient performance on the part of plea counsel. Because there was no hearing to determine what plea counsel advised defendant and what the professional norms were, or whether defendant would have pleaded guilty anyway, the case was remanded for an evidentiary hearing on this issue. Remand is also necessary for an evidentiary hearing on defendant’s claim that plea counsel was ineffective for failing to advise him about appealing the ruling denying his Crim. P. 35(c) motion to withdraw the guilty plea.

The order was reversed and the case was remanded.

2016 COA 94. No. 15CA0278. People v. Fausset. Aggravated Motor Vehicle Theft in the First Degree—Motion for Continuance— Conflict of Interest—Co-Conspirator Statements.

Defendant’s conviction arose out of a theft of a scooter from a residential parking lot. Four days after the scooter was reported missing, police located a stolen pickup truck and ultimately arrested its driver. While in custody, the driver made several police-monitored phone calls to defendant and defendant’s girlfriend that included discussions about disposing of or selling the scooter. Defendant was arrested for the scooter’s theft and found guilty of aggravated motor vehicle theft in the first degree.

On appeal, defendant first argued it was error to deny his motion for a continuance. A week before trial, defendant’s counsel moved for a continuance because (1) the prosecutor had re-interviewed the girlfriend and counsel wanted to review a written report of the interview once it was completed, and (2) counsel had never met defendant outside of court to discuss the trial, and defendant had mentioned additional witnesses. The prosecutor responded that the new conversations with the girlfriend were consistent with what was in discovery. The court denied the motion. The Court of Appeals reviewed for abuse of discretion and found none: (1) there was no suggestion that the interview of the girlfriend contained anything different from what she had previously said, and (2) the lack of communication between counsel and defendant was the result of defendant’s actions, so no continuance should be granted. In addition, no offer of proof regarding the identity of the additional witnesses or what they might offer was made.

Defendant also argued that the court should have appointed “conflict-free counsel” to represent him. Because defendant never raised this issue with the district court nor expressed any dissatisfaction with counsel, there was no sua sponte requirement for the court to inquire as to this issue or provide him with different counsel.

Finally, defendant argued that it was error to admit evidence of four telephone calls made by the driver to him or the girlfriend. Prior to trial, the prosecutor filed a motion to allow admission of the calls under CRE 801(d)(2)(E) because they “were made by co-conspirators during the course and in furtherance of the conspiracy.” Defense counsel objected on the grounds that she wasn’t sure the prosecution could prove the existence of a conspiracy independent of the calls or that the calls were made in furtherance of the conspiracy. The prosecution argued that there was evidence that supported a conspiracy independent of the calls, and the court agreed.

The Court examined each call to determine whether it was made in furtherance of the conspiracy. It found the first two calls were, but the last two, between the driver and the girlfriend, were not, and thus it was an abuse of discretion to admit them. However, because there was not a reasonable probability that their admission influenced the jury’s verdict, the error was harmless.

The judgment of conviction was affirmed.

2016 COA 95. No. 15CA0467. Miller v. Bank of New York Mellon.Dual Tracking—Failure to State a Claim for Relief—Economic Loss Rule—Implied Duty of Good Faith and Fair Dealing— Intentional Infliction of Emotional Distress—Fraud—Negligence.

The Millers obtained a note and deed of trust in 2004 to purchase a house, and the loan was transferred several times. They began missing payments in 2007 and filed for bankruptcy and received discharges in 2009. Bank of America, N.A. (BANA) then told the Millers to vacate their house, but they stayed and eventually entered into negotiations with BANA regarding a loan modification. In February 2012, Bank of New York Mellon (BNY Mellon) moved for an order authorizing the public trustee to proceed with a foreclosure sale, pursuant to CRCP 120. While this Rule 120 action was pending, the Millers filed a complaint against five financial institutions (collectively, the Banks) to quiet title to the house in their favor. The Millers alleged that the Banks improperly subjected them to dual tracking (a process under which banks pursue foreclosure on a home while negotiating a loan modification) in violation of the consent judgment that resulted from the National Mortgage Settlement, which generally prohibits dual tracking. The district court dismissed for failure to state a claim for relief. The court in the Rule 120 action authorized the sale in July 2012, but the Millers kept negotiating a loan modification with BANA. In 2013, BANA and the Millers agreed to a loan modification, the Millers began making payments, and BNY Mellon dismissed the Rule 120 action. In October 2014, the Millers amended their complaint, asserting claims for breach of the implied duty of good faith and fair dealing, intentional infliction of emotional distress, fraud, and negligence. The Banks moved to dismiss, and the court granted the motion.

On appeal, the Millers argued that the court erred in determining that the economic loss rule barred their tort claims. The economic loss rule provides that “a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such a breach absent an independent duty of care under tort law.” Here, the consent judgment in a federal case challenging dual tracking did not create a private cause of action for third parties and there was no special relationship between the parties that established an independent duty.

The Millers also argued that the court erred in dismissing their contract claim, because they had a reasonable expectation that the Banks would not engage in dual tracking and would modify their loan. Although there is an implied duty of good faith and fair dealing in every contract, there was no reasonable expectation on the part of the Millers that their loan would be modified or that the Banks would refrain from dual tracking. Neither allegation has any basis in their contractual agreement.

The judgment was affirmed.

2016 COA 96. No. 15CA0966. Mesa County Public Library District v. Industrial Claim Appeals Office. Unemployment Compensation Benefits—Mental Health Disorder.

Gomez worked for the Mesa County Public Library District (Library) for almost 25 years. In 2013, she began having performance issues and was placed on two successive performance improvement plans (PIPs). In September 2014, she was placed on a third PIP and told to produce a satisfactory organizational capacity report by October 7 or face additional disciplinary action, including discharge. She called in sick on that date, and again on October 9, and did not return to work again. On October 14, she submitted a doctor’s note advising that she was suffering from acute stress disorder and major depressive disorder. She was granted a request to remain off work for four to six weeks. The Library director terminated her on October 20, 2014 for failing to provide the organizational capacity report.

The hearing officer in her unemployment compensation benefits case determined that Gomez had become mentally unable to perform her job duties but found her “at fault” for becoming mentally unable to complete the report, and under CRS § 8-73108(5)(e)(XX), disqualified her from receiving benefits. On review, the Industrial Claim Appeals Office (Panel) adopted the hearing officer’s evidentiary findings but rejected as a matter of law the conclusion that Gomez was disqualified from receiving benefits because she was at fault for her own diagnosed mental disorders. It awarded her benefits under CRS § 8-73-108(4)(j).

On appeal, the Library argued that the Panel substituted its findings of fact for those of the hearing officer. The Court of Appeals found that the Panel adopted the hearing officer’s findings of fact. The Court also rejected the Library’s contention that the evidence demonstrated that Gomez’s mental health disorder did not affect her ability to complete the report. The Court agreed with the Panel that the hearing officer erred in determining that Gomez was at fault for her nonvolitional conduct.

The Panel’s order was affirmed.

June 30, 2016

2016 COA 97. No. 13CA0032. People v. McFee.  Murder— Prior Statements—Hearsay—Confrontation Clause—Lay Opinion— Expert Opinion.

McFee was convicted of first degree murder in the stabbing death of his girlfriend, L.E. At trial, the district court admitted her prior statements to family members recounting McFee’s threats to kill her. The court also admitted a note that L.E. wrote shortly before her death in which she said that McFee had threatened her and predicted that he would eventually follow through on those threats.

On appeal, McFee contended that the district court abused its discretion in admitting L.E.’s hearsay statements to her mother, daughter, and cousin that McFee threatened to kill her because the statements concerning McFee’s threats did not fall within any exception to the hearsay rule. L.E.’s statements were trustworthy because (1) they were made spontaneously to close family members, were not self-serving, and L.E. had no motive to lie about McFee’s threats; (2) they were more probative than the testimony of other witnesses; and (3) they were reliable. Thus, all ofL.E.’s statements were properly admitted under CRE 807, the residual hearsay exception.

McFee also argued that the note was a testimonial statement under the Confrontation Clause. Because the primary purpose of the note was to create an out-of-court substitute for trial testimony and aid in police investigation, and because the victim was unavailable at trial and McFee had no prior opportunity for cross-examination, the admission of the note violated McFee’s confrontation rights. However, this error was harmless beyond a reasonable doubt because this evidence also came in through other witnesses, and McFee’s threats were not the only evidence of his motive nor the only evidence that he had committed the crime.

McFee also contended that the trial court violated his confrontation rights by improperly limiting the scope of his cross-examination of a prosecution witness. The court did not abuse its discretion in prohibiting McFee’s counsel from asking a prosecution witness questions about his mental health and whether he was found incompetent to stand trial three years prior because such information was too remote to be relevant.

McFee further contended that the court admitted a detective’s testimony in violation of CRE 701. Here, McFee voluntarily submitted to a recorded interview with the police. While the detective was out of the room, the recording equipment captured McFee saying something to himself. The jury listened to the recordings and was instructed to reach its own conclusion about what McFee had said. While it was improper for the detective to state an opinion as to the words uttered by McFee, the jury had no reason to accept his opinion and could evaluate McFee’s words for itself. Therefore, any error was harmless.

McFee additionally argued that the district court erred in admitting testimony by the prosecution’s blood pattern expert that was beyond the scope of his expertise. However, once defense counsel injected the issue of confirmation bias into the trial, the prosecutor was entitled to try to show that, contrary to defense counsel’s suggestion, the expert’s opinion was not based entirely on improper, unscientific biases.

The judgment was affirmed.

2016 COA 98. No. 14CA1549. People v. Reyes. Revocation of Probation—Resentencing—Hearing—Separation of Powers—Sua Sponte—Equal Protection—Discretion.

Reyes was serving a two-year probationary sentence. A revocation of probation complaint was filed, Reyes entered into a plea agreement, and the district court resentenced him to four years in community corrections. Reyes was subsequently terminated from the community corrections program for violating its policies. The court held a resentencing hearing sua sponte and resentenced Reyes to five years in the custody of the Department of Corrections.

On appeal, Reyes contended that the court lacked the statutory authority to set a resentencing hearing without a request from one of the parties. The district court can increase an offender’s sentence as long as it holds a resentencing hearing, and there is no statutory requirement that one of the parties must request that hearing.

Reyes also contended that the sua sponte hearing violated separation of powers because the prosecutor did not request the hearing. Discretion to request a resentencing hearing does not lie solely with the prosecutor, and the district court did not violate separation of powers principles.

Additionally, Reyes argued that the court violated his equal protection right by singling him out from other defendants and setting a resentencing hearing just because it disagreed with the prior judge’s four-year sentence. The Court of Appeals found that the court’s decision to set a resentencing hearing was rationally related to a legitimate governmental objective and did not violate Reyes’s right to equal protection.

Finally, Reyes asserted that even if the court did not violate his equal protection right, it abused its discretion by setting the resentencing hearing because its decision was manifestly arbitrary and abrogated the previous judge’s sentence, which was the law of the case. The court’s decision to set a hearing was rationally based on Reyes’ particular circumstances, and the court did not abuse its discretion.

The five-year sentence was affirmed.

2016 COA 99. No. 15CA0124. People v. Relaford. Sexual Assault—Child—Testimony—Truthfulness—Bad Acts or Character Evidence—Colorado Sex Offender Lifetime Supervision Act.

A jury convicted Relaford of 27 offenses related to sexual assaults against two child victims, and the trial court sentenced him to an aggregate indeterminate term of 204 years to life under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), CRS §§ 18-1.3-1001 to -1012.

Relaford appealed the judgment and sentence. He argued that the therapist’s testimony regarding the circumstances in which a child might fabricate claims of sexual assault and her statement that she had never encountered sexual assault fabrications in any other circumstances constituted impermissible opinion testimony that the victims in this case were not lying.  The Court of Appeals agreed that this evidence should not have been presented to the jury. However, because defense counsel failed to object to the testimony, the error was not obvious, and there was substantial evidence to prove Relaford’s guilt, it was not plain error to admit the therapist’s statements.

Relaford also argued that the trial court reversibly erred in admitting numerous sex toys and pornography found at his home. Although Relaford conceded that the admission of evidence regarding sex toys that the children identified was proper, he argued that the trial court erred in admitting evidence of the other sex toys and the pornography that the children didn’t identify because it was irrelevant and constituted impermissible bad acts or character evidence. Some of this evidence probably should not have been admitted, but any error in this respect was harmless, given the substantial evidence to prove Relaford’s guilt and the prosecutions argument to the jury not to consider this evidence as other bad acts.

Additionally, Relaford contended that SOLSA is unconstitutional. Relaford did not raise the constitutional challenges at trial, and the Court thus declined to review them. However, the Court stated that even if it were to exercise its discretion to review Relaford’s constitutional claims it would conclude that he is not entitled to relief; several divisions of the Court previously considered constitutional challenges to SOLSA and concluded it is constitutional.

The judgment and sentence were affirmed.

2016 COA 100. No. 15CA0143. In re Donald C. Taylor and Margaret Ann Taylor Trust. Revocable Trust—Fiduciary Duty— Breach—Standing—Attorney Fees—Exception to American Rule.

Donald and Margaret Ann Taylor were married to each other. They each had children from prior marriages: defendant is Donald’s son, and plaintiff and intervenor (plaintiffs) are Margaret Ann’s children. Donald and Margaret Ann created a revocable trust, the primary purpose of which was to benefit whichever spouse survived the other. Upon the death of the surviving spouse, half of the trust’s remaining assets were to be distributed to Donald’s children, with the other half going to Margaret Ann’s children. Donald and Margaret Ann also each had investment accounts, which would pass to only their respective children upon death. Upon Donald’s death, defendant became co-trustee with Margaret Ann. Shortly before her death, Margaret Ann, at defendant’s urging, transferred into the trust monies that she had separately placed in her investment accounts and designated as payable upon death only to her children. A jury found that defendant had breached his fiduciary duty. The court entered judgment and awarded attorney fees to plaintiffs.

On appeal, defendant contended that the trial court erroneously allowed plaintiffs to recover damages when there was no evidence of a breach of fiduciary duty to Margaret Ann. Because plaintiffs alleged an injury-in-fact to a legally protected interest, they had standing to assert the breach of fiduciary claims. Therefore, plaintiffs could pursue a claim for a breach of fiduciary duty that proved harmful to them, even though the duty was owed to Margaret Ann.

Defendant also contended that the trial court erred in awarding plaintiffs attorney fees under CRS § 15-10-504(2). The jury determined that defendant had breached a fiduciary duty owed to Margaret Ann and the undisputed evidence was that defendant was a trustee, Margaret Ann was a trust beneficiary, and defendant and his siblings stood to personally gain by the inclusion of the challenged property in the trust. Under these circumstances, the requirements for recovery of attorney fees under the breach of trust exception to the American Rule were satisfied.

The judgment and order awarding attorney fees were affirmed.

2016 COA 101. No. 15CA0159. People v. Alaniz. Prison Cell— Prisoner—“Make-my-day” Statute—Dwelling—Immunity.

Alaniz is an inmate in the Colorado Department of Corrections. The people filed the charges in this case after another inmate was found dead in a cell shared by Alaniz and another inmate. After the court held an evidentiary hearing, it dismissed the charges against defendant based on Colorado’s “make-my-day” statute, which provides that under certain circumstances an occupant of a dwelling who uses any degree of physical force, including deadly physical force, against an intruder will be immune from prosecution.

On appeal, the People contended that Alaniz was not entitled to immunity under CRS § 18-1-704.5 because a prison cell is not a dwelling for purposes of that statute. Alaniz’s prison cell meets the definition of a dwelling in CRS § 18-1-901(3)(g) because it was used by persons for habitation. Further, the definition of dwelling in CRS § 18-1-901(3)(g) applies to the immunity provisions of CRS § 18-1-704.5.

The People next contended that the court erred in dismissing the charges because Alaniz failed to prove that he used physical force against the victim. Alaniz was merely required to establish that circumstances justifying the charged use of force were present, as set forth in CRS § 18-1-704.5(2)–(3). Nothing in the language of that statute supports the People’s assertion that he was required to explain the entirety of his actions at the hearing to obtain immunity. Accordingly, the court did not err in granting Alaniz’s motion to dismiss the charges.

The order was affirmed.

2016 COA 102. No. 15CA0582. TABOR Foundation v. Regional Transportation District.

TABOR—Summary Judgment— HB 13-1272—Constitutionality and Beyond a Reasonable Doubt Standard.

In 2009 and 2010 the General Assembly removed the state sales tax exemption for certain items, but the exemption remained in place for the Regional Transportation District (RTD) and the Scientific and Cultural Facilities District (SCFD) (collectively, the Districts). To conform these exemptions, in 2013 the General Assembly enacted HB 13-1272, granting the Districts “the power to levy uniformly throughout the district a sales tax at any rate that may be approved by the board, upon every transaction or other incident with respect to which a sales tax is now levied by the state.” In 2014 the Districts began collecting taxes on some previously exempted items. The TABOR Foundation and Penn Pfiffner (the Foundation) brought this action challenging the Districts’ collection of these taxes on the grounds that they were subject to TABOR’s “voter approval in advance” requirement because they constitute a new tax and a tax policy change. The trial court disagreed, applying the unconstitutional beyond a reasonable doubt standard, and granted the Districts’ motions for summary judgment.

The Court of Appeals first affirmed application of the “beyond a reasonable doubt” standard to the constitutionality of the house bill. The Court then concluded that HB 13-1272 does not impose a new tax, but, even if it did, the RTD had received prior voter approval because it was initially authorized to impose a sales tax on “every taxable transaction, now and in the future,” and the SCFD was granted the authority to impose taxes “currently, or in the future, levied and collected.” The Court also concluded that the bill did not constitute a tax policy change because the Districts always had the authority to impose a broad sales tax.

The judgment was affirmed.

2016 COA 103. No. 15CA0842.West Colorado Motors, LLC v. General Motors, LLC. Lack of Subject Matter Jurisdiction— Motion to Dismiss—Final Agency Action.

Park Meadows is a franchised Buick and GMC automobile dealership located in Lone Tree. Alpine is a franchised Buick and GMC automobile dealership located in Denver. General Motors, LLC (GM) is a manufacturer and distributor of automobiles. CRS § 12-6-120.3(1) required GM to provide at least 60 days’ notice to certain of its franchised dealers if it intended to relocate an existing motor vehicle dealer to a location that was within another motor vehicle dealer’s “relevant market area.” GM provided statutory notice to Park Meadows that it intended to approve the relocation of the Alpine dealership to Littleton. Park Meadows then sent a letter to the executive director of the Colorado Department of Revenue protesting the relocation and requesting an investigation, hearing, or cease and desist order. The executive director responded, stating that there was no basis to proceed with an investigation. Park Meadows sent another letter to the Executive Director, alleging violations of CRS § 12-6-120.3. The executive director responded, again stating there was no basis upon which to proceed with an investigation. Park Meadows then filed a complaint in Denver District Court alleging that GM unreasonably approved Alpine’s relocation in violation of CRS § 12-6-120.3(1.5) and, in the alternative, against the executive director to order her to undertake an investigation or other action. The executive director filed a motion to dismiss, arguing that her second letter was “final agency action” that was subject to review only in the Court of Appeals. The district court agreed and dismissed the action as to the executive director. It denied a motion by Park Meadows for reconsideration. Alpine filed a motion to dismiss for lack of subject matter jurisdiction, which the district court granted, finding that jurisdiction for any relief lies in the Court of Appeals.

Park Meadows appealed all three orders, arguing that the executive director’s second letter did not constitute “final agency action.” The Court disagreed. It found that the letter was clearly final action finding that Park Meadows had no basis on which to proceed. The Court then found no abuse of discretion in the district court’s denial of Park Meadows’ motion for reconsideration. The Court also affirmed the district court’s dismissal of the claim against Alpine because the Court had sole jurisdiction to review the executive director’s decision.

The orders were affirmed.

2016 COA 104. No. 15CA0849. Wibby v. Boulder County Board of County Commissioners. Lack of Standing.

Plaintiffs are property owners in unincorporated Boulder County (collectively, the Owners) who sued to try to force the Boulder County Board of County Commissioners (County) to maintain their subdivision roads. The roads were part of the county road system and, by statute, are assigned to the County for maintenance. They were maintained by the County until the mid-1990s, but since that time the County has reduced its road funding and the Owners claimed this has resulted in “severe deterioration” of the roads. The Owners brought claims for breach of contract, declaratory relief, and mandamus. After various amendments to the complaint and motions, the district court granted the County’s motion to dismiss for lack of standing. The Owners appealed.

The Court of Appeals analyzed whether the Owners had standing. To establish standing, a plaintiff must demonstrate that (1) the plaintiff suffered an injury in fact, and (2) the injury was to a legally protected interest. The Owners claimed standing by alleging that a contract was created through the statutory subdivision approval process that they could enforce. However, there is a presumption that statutory enactments alone do not create contractual relationships. The Owners alleged no facts to overcome this presumption and therefore lacked standing to sue the County for breach of contract.

The Owners’ requests for declaratory relief and mandamus alleged that the County violated its “statutory duty” to maintain subdivision roads under the county highway statutes. Because the statutory county road provisions do not indicate an intent that they can be enforced by private citizens, the Owners lacked standing. Moreover, the statute clearly entrusts the County with the discretion to allocate funds for developing and overseeing its county road policies.

The judgment was affirmed.