Negligence Claim—Evidence—Fraud—Other Bad Acts—CRE 608(b)—CRE 403.

McGill filed a negligence claim against DIA Airport Parking, LLC (DIA). Before trial, she moved to exclude evidence of her conviction of check fraud and the underlying conduct that occurred approximately 20 years earlier. The trial court denied the motion and ruled that the conduct was admissible under CRE 608(b). The court did not explicitly conduct a CRE 403 analysis in its written order. At trial, anticipating that the evidence would be elicited by DIA on cross-examination, McGill’s counsel questioned her about the conduct underlying her conviction. DIA also questioned her about it on cross-examination. The jury returned a verdict in favor of DIA, and the trial court entered judgment accordingly.

On appeal, McGill argued that the trial court erred by admitting the check fraud evidence under CRE 608(b). DIA argued that she invited error by first introducing the evidence and waived this argument. McGill’s decision to introduce the check fraud evidence first was willful and strategic, but it was not an express acquiescence or expression of agreement with the trial court’s ruling. In addition, her attempt to counter the effect of the court’s adverse ruling was not an abandonment of her objection to the ruling. Thus she was not precluded from appealing the trial court’s order admitting this evidence. 

McGill also argued that the court erred by admitting the underlying facts of her check fraud conviction under CRE 608(b) because such facts were not probative of her character for truthfulness. Acts involving fraud are probative of a witness’s character for truthfulness. Because McGill’s check fraud involved taking property that was not hers in a fraudulent manner, the trial court did not abuse its discretion by ruling that this was evidence of McGill’s character for truthfulness.

Lastly, McGill argued that the court erred by failing to evaluate whether the evidence was admissible under CRE 403. Based on the record, the Court of Appeals concluded that the court’s ruling implicitly found that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. The court thus acted within its discretion by admitting the evidence.

The judgment was affirmed. 

Disorderly Conduct—Fighting Words.  

R.C., a 14-year-old middle school student, took a photo of his friend, L.P., and then drew a penis over the photo. He showed the doctored photo to L.P. and some other friends. L.P. reported R.C. to the principal, who called the police. The police charged R.C. with disorderly conduct and, after a bench trial, the court adjudicated R.C. a delinquent.

The judgment of conviction was reversed.

Cancer Insurance Policy—Jury Verdict—Punitive Damages—Noneconomic Damages—Judgment—CRS § 14-20-101—Attorney Fees—Actual Damages—CRS § 10-3-1116—Jury Instruction.

Casper bought a cancer insurance policy from defendant, Guarantee Trust Life Insurance Company (GTL). Casper was diagnosed with cancer seven months later, and GTL refused to pay his claims. Casper sued GTL for breach of contract, bad faith breach of an insurance contract, and statutory unreasonable denial of benefits. A jury awarded him punitive and other noneconomic damages. The trial court immediately entered an oral order making the verdict a judgment, but Casper died nine days later, before the court had reduced its oral order entering judgment to a written judgment as required by CRCP 58. Subsequently, Casper’s estate (Estate) was substituted as plaintiff. The court later entered a judgment for the estate nunc pro tunc to the date of the verdict. The court awarded attorney fees and costs as part of the Estate’s actual damages.

On appeal, GTL argued that as a matter of law, under CRS § 13-20-11 (Colorado’s survival statute), the delay in entering the written judgment meant the Estate was entitled only to the $50,000 awarded as economic damages for the breach of contract claim. Under Colorado law, the death of a plaintiff in a personal injury action extinguishes his entitlement to recover noneconomic and punitive damages. Here, because the verdict resolved the merits of the case, and judgment would necessarily follow, the survival statute did not extinguish Casper’s right to damages.

GTL also asserted that attorney fees and costs awarded by the trial court under CRS § 10-3-1116 do not constitute actual damages upon which the court may base its determination of punitive damages under CRS § 13-21-102(1)(a). Under the plain meaning of CRS § 10-3-1116, which is remedial in nature, reasonable attorney fees and court costs in this case are actual damages and do not constitute penalties or other types of damages. 

GTL next asserted that the district court erred by not reducing by two-thirds the supplemental request for attorney fees. Even if apportionment was required, the district court did not abuse its discretion in awarding supplemental fees.

Finally, GTL argued that the trial court erred by instructing the jury on Regulation 4-2-3, which regulates advertising by the insurance industry. The trial court found that the instruction related to Casper’s theory that GTL’s marketing and sale of the insurance policy, through Platinum, was evidence of GTL’s bad faith. The standard of care related to the sale and marketing of the policy was relevant to Casper’s claims, and it is undisputed that the instruction was a correct statement of the law. Therefore, the court did not abuse its discretion in instructing the jury on this regulation.

The judgment was affirmed and the case was remanded to determine the Estate’s appellate fees and costs.

Vehicle—Probable Cause—Non-Consensual Search—Mouth—Unlawful Drugs—Evidence—Suppression—Fourth Amendment.

A police surveillance team identified the vehicle Carr was riding in as possibly being involved in drug sales. Officers observed the vehicle speeding and weaving into another lane and pulled it over. The officer who approached the driver’s side of the vehicle smelled alcohol and marijuana. The officers noticed that Carr was making chewing motions with his jaw and had a golf-ball sized bulge in his cheek. He refused the officers’ commands to spit out the contents of his mouth. The officers forced open Carr’s mouth and removed ten bags of drugs, which later tested positive for cocaine. Carr was charged with various crimes. He moved to suppress all evidence resulting from the search of his mouth. The court denied his motion, and he was ultimately convicted. 

On appeal, Carr argued that the nonconsensual search of his mouth violated the Fourth Amendment and the court thus erred in failing to suppress the evidence obtained during that search. In addition to probable cause for the arrest of a suspect, which was not at issue in this case, the Fourth Amendment requires the state to prove three factors to render a warrantless internal body search constitutional: (1) a clear indication that incriminating evidence will be found; (2) exigent circumstances that justify the intrusion and make it impractical to obtain a search warrant; and (3) extraction of the evidence in a reasonable manner and by a reasonable method. Here, there was a clear indication that evidence would be found because the officers believed that Carr was in a vehicle that was suspected to be involved in drug dealing; they saw a large bulge in his mouth; he refused to speak to the officers or reveal what was in his mouth and was trying to chew or swallow what was in his mouth; and the officers had experience or training that indicated that suspects would attempt to swallow drugs. Exigent circumstance justified the search because Carr was attempting to chew and swallow, and it was imperative for the officers to retrieve whatever was in Carr’s mouth to preserve evidence and keep Carr from harming himself. Finally, extraction of the evidence was reasonable. Although the officers used physical force to search Carr’s mouth, they did not force him to undergo any invasive medical procedure or apply force to his throat. The minimal risk to Carr’s health and safety and the intrusion on his privacy and dignity did not outweigh the community’s interest in retrieving the bags of drugs. Therefore, the search of Carr’s mouth did not violate his Fourth Amendment rights.

The judgment of conviction was affirmed.

Guilty Plea—Immigration Status—Post-Conviction Motion—Statutory Time Bar—Justifiable Excuse—Excusable Neglect.

Chavez-Torres is a citizen of Mexico who came to the United States with his family when he was a child. While in high school, Chavez-Torres pleaded guilty to first degree criminal trespass. The trial court sentenced him to probation, which he successfully completed. 

Seventeen years after his criminal trespass conviction, the U.S. Department of Homeland Security initiated removal proceedings, alleging that Chavez-Torres was not legally present in the United States and had been convicted of a crime involving moral turpitude. Chavez-Torres moved for post-conviction relief from his criminal trespass conviction under Crim. P. 35(c) based on ineffective assistance of counsel. He alleged that he had informed his plea counsel that he was not a U.S. citizen but counsel advised him to accept the plea agreement without telling him that the guilty plea carried a risk of adverse immigration consequences. He claimed that had he been properly advised he would have insisted on going to trial. He asserted that as a result, his plea and conviction were constitutionally infirm. While acknowledging that his post-conviction motion was untimely, he alleged that these circumstances amount to justifiable excuse or excusable neglect. The trial court denied the motion as untimely, finding that the prejudice to the state would be too great, given the passage of time, and that he failed to assert facts amounting to justifiable excuse or excusable neglect.

On appeal, Chavez-Torres contended that the district court erred in summarily denying his post-conviction motion based on the statutory time bar because he asserted facts that, if true, would establish justifiable excuse or excusable neglect. Here, even though Chavez-Torres had informed plea counsel that he was not a citizen of the United States, counsel had advised him to accept the plea agreement without telling him that the guilty plea carried a risk of adverse immigration consequences. Chavez-Torres subsequently completed his probation and did not learn that his conviction had adverse immigration consequences until the removal proceedings were initiated. Under these circumstances, it cannot be concluded, as a matter of law, that justifiable excuse or excusable neglect did not exist.

Defendant also argued that the finding that the State would suffer “great” prejudice has no record support. The Court of Appeals determined that the existing record does not support the district court’s finding that the state will suffer great prejudice.

The order denying the post-conviction motion was reversed and the case was remanded to the district court to determine whether Chavez-Torres has established justifiable excuse or excusable neglect for his untimely post-conviction motion. If he can, the court must then consider the merits of his post-conviction motion.

Juvenile Court—Evidence Suppression—Deferred Adjudication—Previous Offender.

The district court accepted A.B.’s agreement to a deferred adjudication on a felony charge and deferred entry of adjudication for one year. Less than four months later, A.B. was arrested on a charge of possession of a weapon by a previous offender (POWPO). 

A.B. moved to suppress the weapon.  At the suppression hearing, one of the police officer’s testified that the officers were investigating loud music coming from a parked vehicle. When they approached in their patrol car, all three occupants exited at the same time; A.B. got out of the rear driver’s side door. The officers ordered everyone back into the vehicle. A.B. then turned his back to one of the officers, who observed him reach toward his waistband and throw a gun into the vehicle. The court denied the suppression motion based on the evidence in the record.

The officer presented the same testimony at trial. The prosecution’s evidence included the deferred adjudication. After the prosecution rested, A.B. moved for a judgment of acquittal, arguing that the deferred adjudication did not constitute a prior adjudication for purposes of POWPO. The court denied the motion. A.B. did not present any evidence, and he was found guilty. The court revoked the deferred adjudication, found A.B. a repeat juvenile offender, and sentenced him to the Division of Youth Corrections.

On appeal, A.B. first argued it was error to deny his motion to suppress the handgun, asserting that the search was unconstitutional because when police officers ordered him to get back in the car, they seized him but lacked reasonable suspicion to do so. The vehicle in which A.B. was riding was suspected of a violation of a noise ordinance. The Court of Appeals concluded that the seizure was supported by reasonable suspicion. Because there was reasonable suspicion to seize A.B., it was not error to deny the suppression motion.

The denial of the motion to suppress was affirmed, the adjudication was reversed, the sentence was vacated, and the case was remanded for entry of a judgment of acquittal.

Statute of Limitations—Relation Back—Summary Judgment.

Pratt Jr. and his parents (the Pratts) owned adjacent properties. Pratt Jr. stored used car parts on his property in a spot about a quarter mile from his parents’ house. Pratt Jr. thought someone was stealing the car parts and he drove to the storage area. When he saw beams from flashlights approaching, he fired his rifle in that direction and killed Maldonado. He was convicted of negligent homicide and sentenced.

Lisa Maldonado and the Estate of Maldonado (collectively, the Estate) sued Pratt Jr. for wrongful death, alleging a single claim of negligence. Months later, after the statute of limitations had run on any negligence claims, the Estate sought to amend its complaint to enter a new claim under the Premises Liability Act (PLA) against the Pratts. The Estate stated it had recently learned that the Pratts, not Pratt Jr., owned the property where the shooting occurred. The Pratts filed a motion for judgment on the pleadings or for summary judgment, arguing the two-year statute of limitations had run. The Estate argued that under CRCP 15(c) the amended complaint related back to the original complaint. The district court granted the motion and entered judgment in favor of the Pratts on the PLA claim.

On appeal, the Estate renewed its relation back argument. When an amended pleading seeks to add a new party, the new party must have received such notice of the action within the period provided by CRCP 4(m) for serving the summons and complaint and, having received such notice, the new party must have known or reasonably should have known that but for a mistake concerning the identity of the proper party the action would have been brought against him or her. Notice is the touchstone and is strictly required. Here, the Court of Appeals agreed that the Estate failed to demonstrate a genuine factual dispute regarding whether the Pratts had notice of the original lawsuit within the prescribed time period. Thus the amended complaint did not relate back to the original complaint and the Estate’s claim was time-barred. 

The summary judgment was affirmed.

Unemployment Compensation Benefits—Gross Earnings Versus Taxable Earnings—Cafeteria Plan Contributions—Overpayment—Penalty.

Claimant Meyer filed for unemployment compensation benefits. After filing her claim, she worked part-time as a sales associate and then full-time as a controller for another company. The Division of Unemployment Insurance (Division) conducted an audit of claimant’s file and determined that she had underreported her hours and earnings and had been overpaid unemployment compensation benefits in the amount of amount of $1,712. A penalty of $1,112.80 was also assessed. Claimant appealed to the Industrial Claim Appeals Office (Panel), which affirmed.

On appeal, claimant argued that under CRS § 8-70-142 she was not required to report as earnings any contributions she made to her 26 USC § 125 cafeteria plan. The Court of Appeals agreed that the term “wages” excludes § 125 cafeteria plan contributions. The Court also concluded that the Division erred in requiring claimant to report her gross earnings rather than her wages as defined by CRS § 8-73-142. In addition, there was sufficient evidence that claimant contributed to a § 125 cafeteria plan for unemployment purposes and that she met her burden to establish that the amounts she paid for these benefits were excludable from wages.

Claimant also contended that the Panel erred in upholding the hearing officer’s determination that she knowingly failed to report her earnings accurately and that both the hearing officer and the Panel erred in determining that she had received an overpayment and in imposing a monetary penalty. The Court found that when claimant was working full-time she worked over 32 hours per week for two weeks and no pre-tax deductions were taken from her wages during this period. Therefore, the Division was correct in determining she was ineligible to receive unemployment compensation benefits during that two-week period and was overpaid $1,000 in benefits. Because claimant knowingly underreported her earnings, the $650 penalty for that period was appropriate. For the remainder of the time, however, claimant was eligible for benefits because she did not work more than 32 hours in any week and the wages reported were less than her benefit amount. The Court recalculated her taxable wages and determined that she was overpaid $76 during this period, not $890.64 as calculated by the hearing officer. Because claimant underreported the number of hours she worked, a monetary penalty was appropriate. Based on her overpayment of $76, the penalty was reduced to $49.40. 

The case was affirmed in part and reversed in part, and the case was remanded for imposition of a new order consistent with the calculations in the opinion.

Dependency and Neglect—Final and Appealable Order.

The Department of Human Services (Department) filed a dependency and neglect petition regarding S.M-L., B.M-M, and R.S. (the children). The petition named D.S. as R.S.’s biological father and named G.S. as the mother of all of the children. The Department asserted that father had sexually abused his stepdaughter S.M-L. He was arrested and criminally charged with sexual abuse. Father denied the allegations and mother believed S.M-L was lying about them. Mother requested a bench trial and father requested a jury trial.

As to mother, the court found the allegations in the petition had been proven by a preponderance of the evidence and entered an order adjudicating the children dependent and neglected. However, the jury returned a verdict as to father finding that R.S. was not dependent or neglected. The Department moved for an adjudication of father notwithstanding the verdict. The trial court denied the motion and dismissed father from the petition. Both the Department and mother appealed.

The Court of Appeals issued an order to show cause why the appeal should not be dismissed for lack of a final, appealable order, noting that it was unaware of any authority for the proposition that dismissing a parent from a petition based on a jury verdict was a final appealable order. CRS § 19-1-109(2)(c) provides that an order decreeing a child to be neglected or dependent shall be a final and appealable order upon the entry of the disposition. This section does not address the dismissal of a party from the petition based on a jury’s verdict finding a child was not dependent or neglected as to that party. The Court also noted that after the jury determined that R.S. was not dependent or neglected as to father, the trial court did not have jurisdiction to enter any orders other than dismissal of the petition. Because a jury’s “no adjudication” verdict is not a proper basis for a motion for adjudication notwithstanding the verdict and thus is not a final appealable order under CAR 3.4(a) or CRS § 19-1-109(2)(c), the Department’s appeal was dismissed.

Mother challenged her adjudication on several grounds, but the Court found no reversible error because the evidence supports the trial court’s factual findings. 

The Department’s appeal was dismissed and the order adjudicating mother was affirmed.