Two men, one masked and one not, held up a fast-food restaurant. The surveillance video led to identification of the unmasked man as Maestas. The police found a car belonging to Maestas’s wife, which they believed had been used during the robbery. A search of the car turned up a cell phone with a number connected to defendant and a pair of jeans with defendant’s DNA on the waistband.

At trial, the investigating detective testified that he asked the phone company for records pertaining to the phone number attached to the cell phone found in the car and received a response from the company that it kept the records, with a declaration from the custodian of records attached. The detective testified that when he called the number labeled as “Ray’s mom,” he reached a recording saying he had reached the Ortegas. There was expert testimony on the DNA analysis and identification. Defendant was convicted of aggravated robbery and, following a separate trial, the court adjudicated him a habitual offender. 

Defendant appealed both convictions. He first argued that his confrontation right under the U.S. and Colorado Constitutions was violated by the admission of cell phone records. Defendant argued that both the phone records and the declaration of the custodian for the phone records were testimonial. The records, made at or near the time of the phone activity, were made and kept as a regular practice in the course of the company’s regularly conducted business activity, not for the purpose of establishing or proving some fact at trial, and so were not testimonial. In addition, the certification authenticating the business record is not testimonial simply by virtue of the certification itself being made in anticipation of litigation. Because the certification was not testimonial, the federal Confrontation Clause was not implicated. 

Defendant further argued that even if the phone records were nontestimonial, his right to confrontation under the Colorado Constitution was violated because the phone records were admitted without a showing that the custodian of records was unavailable. The Court of Appeals concluded that because cross-examining the custodian of the phone records would be of limited utility in this case, a showing of unavailability was not required.

Defendant then argued that during closing argument the prosecutor misstated the evidence regarding how DNA was or could have been deposited on the jeans found in the car. Absent a showing of abuse of discretion, a trial court’s ruling on such statements will not be disturbed. In reviewing the prosecutor’s statements in closing regarding the DNA evidence, the Court found no abuse of discretion.

Lastly, defendant argued that he was denied his right to confrontation under the Colorado Confrontation Clause because the sentencing and prison records should not have been admitted into evidence without a showing of unavailability of the judges or their clerks who may have created, signed, or processed the various court documents. The Court concluded, as it did with the phone records, that where the utility of trial confrontation is remote, the prosecution need not produce a declarant or prove a declarant is unavailable.

The judgment was affirmed.

Defendant Flores-Lozano was a shift manager at a restaurant. The restaurant had a point-of-sale system (POS) that stored information associated with every sale, a business analytics system that analyzed trends within the POS, and a video recording system. A loss prevention director for the restaurant used the business analytics and video systems to determine that Flores-Lozano was stealing from the restaurant.

When confronted, Flores-Lozano admitted to stealing. The People charged her with theft of more than $20,000. The sole issue at trial was the amount of the theft. Defendant argued that she should be convicted only for theft that she had admitted to, which amounted to less than $500. The trial court admitted, under the business records exception to the hearsay rule, a computer spreadsheet prepared by the loss prevention director on whether defendant committed theft and the amount of the theft. The jury found defendant guilty of the lesser included offense of theft of $1,000 or more but less than $20,000.

On appeal, defendant argued that the spreadsheet was inadmissible hearsay. The Court of Appeals found that the spreadsheet, which was developed by the loss prevention director, was hearsay, but it was admissible under the business records exception because it met the requirements of a record of “regularly conducted activity.” 

The judgment was affirmed.

Police officers pulled Brown’s car over after he failed to make a complete stop at a stop sign. During the stop, they learned he was driving on a suspended license. He was issued a summons, but not arrested, yet the officers decided to impound his car. While waiting for the tow truck, one of the officers performed an inventory search and found drugs. Brown was then arrested and ultimately convicted of possession of a controlled substance and possession with intent to distribute. Brown appealed on the bases that the impoundment and inventory search were illegal.

This case presented two novel questions in Colorado: (1) whether the Fourth Amendment allows police officers to impound a car only because the driver and sole occupant was cited, but not arrested, for driving on a suspended license, and (2) if not, whether an ensuing inventory search was unlawful. Under the Fourth Amendment to the U.S. Constitution a search conducted without a warrant is presumptively unreasonable, unless the search falls under an exception to the warrant requirement. Here, the relevant exception was an inventory search based on probable cause when the vehicle is lawfully impounded by law enforcement officials. Brown argued that because the prosecution failed to prove the legality of the impoundment, the inventory search was fatally tainted.

The Court of Appeals found that, although an officer testified that a department policy allows officers to impound a vehicle, the prosecution failed to prove that the impoundment was reasonable. It also found other undisputed evidence that made the impoundment decision unreasonable: (1) the officer planned to release Brown after issuing a summons, not arrest him; (2) Brown’s inability to lawfully drive the car did not alone make the impoundment reasonable (e.g., the car was not in an unsafe location or impeding traffic); and (3) there was no evidence that Brown could not have called someone else to lawfully drive his car or summoned a tow truck himself. Because the prosecution did not meet its burden of showing the impoundment was reasonable, the inventory search was unreasonable. 

The judgment was reversed and the case was remanded.

T.B. used his cell phone to solicit, receive, and store nude photographs of teenage girls who were 15 and 17 years old. He also texted them photographs of his erect penis. Among other offenses, the prosecution charged T.B. with sexual exploitation of a child. The sexual exploitation counts were severed. A jury acquitted him of the remaining counts.

After a bench trial on the sexual exploitation counts, the court adjudicated T.B. delinquent, sentenced him to sex offender probation, and required him to register as a sex offender. 

On appeal, T.B. asserted that the evidence was insufficient to support his delinquency adjudication. He argued that because the girls did not take the photos for their own sexual satisfaction, the photos did not depict “erotic nudity,” a necessary component of the crime of sexual exploitation of a child. He also contended that the statutory reference to “persons involved” in the definition of erotic nudity necessarily means that the people displayed in the photograph must be sexually stimulated. The Court of Appeals disagreed, citing the Colorado Supreme Court’s rejection of the contention that the focus of the overt sexual gratification component of the definition of erotic nudity could only be the persons depicted in the photograph. The Court concluded that the statutory requirement was met.

T.B. also argued that the chain of custody was insufficient to show that he knew that he possessed the nude photos on his cell phone. He contended that the chain of custody linking his cell phone and the photographs was insufficient because it did not show that the photographs were accurate copies of the photographs that were on his phone. The Court found that the photos were found by the police on the T.B.’s cell phone, they were identified by the girls as photos they had taken of themselves and texted to him, and T.B. had complimented one of them on the photos. A digital forensic officer testified that the data in T.B.’s phone had not been tampered with, and the photographs had been opened and viewed. Accordingly, there was sufficient evidence to prove that T.B. knowingly possessed the nude photos.

T.B. also argued that because there was no “sexual abuse of a child” in the photos, the evidence was insufficient to support a conviction. The Court found that the clear and unambiguous language of the statute does not contain such a requirement.

T.B. further argued that the statute does not cover “teen sexting.” The Court found nothing in the language of the statute to support such an argument.

T.B. also contended that the trial court abused its discretion when it denied his request for a jury trial. The Court concluded that the trial court did not abuse its discretion because its decision fell within a range of reasonable options. 

Finally, T.B. argued that he was being selectively prosecuted because he was a male and the trial court should have dismissed the sexual exploitation charges. The Court found that the prosecution was not motivated by a discriminatory purpose and concluded that the trial court’s decision was not manifestly arbitrary, unreasonable, or unfair.

The delinquency adjudication was affirmed.

The parties had three children together, and it was undisputed that wife used her last eggs to create embryos. The parties’ storage agreement with the fertility clinic provided that in the event of a dissolution of marriage, unless they could agree on who would get the embryos, the trial court would award the embryos. In their dissolution of marriage proceeding, wife argued that the embryos should remain frozen so that she could have another child in the future, and husband argued they should be discarded. The trial court entered a lengthy, detailed, and carefully reasoned decision awarding the embryos to husband. Wife appealed.

This appeal presented an issue of first impression in Colorado: how to determine the disposition of a couple’s cryogenically frozen embryos on their dissolution of marriage. Because there is not case law in Colorado on this issue, the Court of Appeals reviewed the three different approaches adopted by other jurisdictions for determining the disposition of divorcing spouses’ cryopreserved embryos: (1) the contract approach, which enforces a valid agreement entered into between the parties as to disposition of the embryos; (2) the balancing of interests approach, which the court applies when there is no such agreement between the parties; and (3) the contemporaneous mutual consent approach, under which the court will not allocate the embryos in the absence of an agreement between the parties (the embryos are left in storage indefinitely until the parties can agree to their disposition). The trial court had applied the contract and balancing of interests approaches in awarding the embryos to husband.

On appeal, wife argued that the trial court erred in interpreting the written storage agreement. The Court agreed, but concluded that the storage agreement left it to the dissolution court to decide which party should receive the embryos in the event of dissolution of their marriage. Because the contract gave no guidance for this decision, the Court construed it to require the trial court to exercise its inherent equitable powers if the parties could not agree. Because the trial court had to apply its equitable discretion, it necessarily had to use the balancing of interests approach.

Wife also argued that some factors the trial court applied in its balancing approach were legally erroneous and others violated her constitutional rights. Based on its review of the record, the Court found the trial court’s conclusion that husband’s interest in not producing additional offspring prevailed over wife’s interest in having a fourth child to be reasonable.

The judgment was affirmed.

The county court entered a temporary civil protection order pursuant to CRS § 13-14-104.5 against Martin based on L.O.’s complaint. Martin filed a motion to vacate the temporary order and dismiss L.O.’s complaint. The motion was denied, but the hearing on the permanent order was continued to allow briefing from the Attorney General’s office on the constitutionality of the statutes. Before the rescheduled hearing, Martin filed this action in district court, naming as defendants the Arapahoe County Court and magistrates of that court and seeking review of the temporary protection order under CRCP 106(a)(4). 

The county court defendants moved to dismiss the CRCP 106 action for lack of subject matter jurisdiction, arguing that (1) the temporary order was not a final decision reviewable under CRCP 106 and (2) Martin had other adequate remedies because he could challenge the temporary order at the permanent order hearing and appeal the permanent order if one was issued. The motion to dismiss was granted.

On appeal, Martin argued it was error for the trial court to find it lacked subject matter jurisdiction. The Court of Appeals disagreed, ruling on this as an issue of first impression. The Court found that a temporary protection order issued under CRS § 13-14-104.5 is not the county court’s final decision on a plaintiff’s request for a civil protection order and is therefore not subject to review in a CRCP 106 action. It also found that the permanent order hearing and ordinary appellate review procedures provide adequate alternative remedies for challenging a temporary restraining order. 

The judgment was affirmed.

Layton Construction Co., Inc. (Layton) hired Shaw Contract Flooring Services, Inc. (Shaw) to perform work on a project for BCRE, the property owner. BCRE subsequently terminated its contract with Layton and gave Layton notice of numerous construction defects, a few of which related to Shaw’s work. Layton sued BCRE, alleging BCRE had failed to pay for work and seeking damages. BCRE counterclaimed for defective workmanship. Layton then added claims against various subcontractors, including Shaw.

Pursuant to a clause in the subcontract, Layton sought indemnification from Shaw for all damages and costs arising from any liability it might have to BCRE, including Shaw’s failure to provide a defense or pay Layton’s costs. Later, after BCRE specifically identified Shaw’s allegedly defective work, Layton moved to dismiss its indemnification claim against Shaw with prejudice. Layton’s motion stated the dismissal would include “those claims that have been or could have been asserted in this lawsuit.” The district court dismissed Layton’s claims with prejudice. 

After a subsequent bench trial, the court entered an award for Layton on its claims against BCRE. The subcontractors remaining in the case were found liable to Layton under the indemnification provisions in their subcontracts.

Layton then filed this case against Shaw and other subcontractors, asserting claims for contractual and common law indemnity and declaratory judgment seeking an award of attorney fees, costs, and expenses it had incurred in defending BCRE’s claims in the prior case. Layton asserted the indemnification claim against Shaw under CRS § 13-80-104 of the Construction Defect Action Reform Act (CDARA). Shaw moved for summary judgment, arguing Layton’s indemnification claims were barred by claim preclusion because they had been dismissed with prejudice. The district court granted the motion.

On appeal, the Court of Appeals noted that for a judicial proceeding to be precluded by a previous judgment, there must exist finality of the first judgment, identity of subject matter, identity of claims for relief, and identity or privity between parties to the actions.

Layton argued that its claims were not identical to those asserted against Shaw in the prior case. Because Layton could have asserted an indemnity claim for attorney fees and costs in the prior case there is identity of claims. 

Layton also argued that CDARA modifies the doctrine of claim preclusion in the construction defect context by requiring splitting of indemnification claims. The Court found nothing in CDARA that abrogates the doctrine of claim preclusion in this case. 

Layton further argued that various exceptions to the claim preclusion doctrine applied. The Court found that the exceptions to the doctrine of claim preclusion do not apply to this case.

Shaw requested attorney fees incurred on appeal, arguing that Layton’s appeal was substantially frivolous and vexatious. The Court agreed that the appeal was substantially frivolous and found that Layton’s assertion that it raised “novel” issues was “nothing more than a reflection of their futility.” 

The judgment was affirmed and the case was remanded for the district court to determine the reasonable amount of Shaw’s attorney fees incurred on appeal.

Police officer Marshall was suspended by the Executive Director of Safety (Director). He appealed the Director’s decision, and a hearing officer found that he proved the Director’s actions to have been clearly erroneous. The Director appealed to the Civil Service Commission of the City and County of Denver (Commission), which reversed the hearing officer’s decision. Marshall then challenged the Commission’s decision in district court, and the court upheld the Commission’s decision. Marshall appealed.

Marshall’s sole contention on appeal was that the Commission violated the Denver City Charter (Charter) by imposing, by rule, the burden on him to show that the Director’s action was clearly erroneous. 

The Court of Appeals noted that the Charter does not expressly address the burden of proof and it delegates unlimited rulemaking authority to the Commission regarding hearing procedures. The burden of proof in a hearing is a matter of procedure. The Commission may place the burden of proof on the employee by rule as long as the rule is consistent with the Charter. Here, the Court discerned no inconsistency.

The judgment was affirmed.

The Medveds purchased a conservation easement (CE) tax credit from Whites Corporation (Whites). The appraised value of the tax credit was $130,000. Whites was the CE donor and the Medveds were the CE transferees. On October 23, 2006, the Medveds filed their 2005 Colorado tax returns and claimed a $130,000 credit based on the CE. On October 30, 2007, Whites filed a Colorado State C Corporation income tax return and claimed a $260,000 credit based on the same CE.

On March 4, 2011, the Colorado Department of Revenue (Department) issued a notice of disallowance to Whites and the Medveds, disallowing the credit in its entirety. The Medveds appealed to the district court and argued the notice of disallowance was barred by the four-year statute of limitation in CRS § 39-21-107(2). The Department argued that the Medveds and Whites were subject to the same statute of limitations that was triggered when the donor filed its tax return under CRS § 39-22-522(7)(i). The district court found that the donor and the transferee were a single entity and were bound as to all issues concerning the tax credit to the four-year statute of limitations, which was triggered by the donor’s tax claim. Because Whites filed its return on October 30, 2007, the Department’s notice of disallowance was within the statute of limitations.

On appeal, the Medveds claimed they were not bound by the same statute of limitations as Whites. The Court of Appeals agreed with the Department that a donor and transferee are considered a single entity under the statute and are bound by the same statute of limitations. The Medveds also argued that the first claim filed triggers the four-year statute of limitations. Finding the statutory language ambiguous, the Court considered its legislative intent and purposes and concluded that the General Assembly intended that the first claim filed, either by the donor or transferee, begins the four-year statute of limitations period. Because the Department’s notice of disallowance was beyond the four-year limitations period, the Department’s disallowance was untimely and statutorily barred.

The judgment was reversed and the case was remanded for dismissal.