Responding to a call to animal control, state animal protection agents and employees of the Humane Society discovered dozens of malnourished and dead animals on defendant’s ranch. Two of the searches of defendant’s property were pursuant to search warrants (a horse warrant and a dog warrant) and a third was made with defendant’s permission. Defendant was charged in two cases with cruelty to animals and aggravated cruelty to animals for needlessly killing an animal.

The cases were consolidated for trial. Defendant moved to bifurcate the trial. The trial court initially denied this motion, but reconsidered its ruling and announced that the animal cruelty charges would be determined by the jury and the existence of prior convictions would be determined separately by the court. The prosecution did not present evidence of the prior convictions to the jury.

Defendant also moved to suppress all evidence obtained from the search on grounds that the animal protection agents were not statutorily authorized to obtain a livestock warrant and that both warrants lacked probable cause. The court denied the motion to suppress.

At trial, the prosecution presented multiple witnesses, including an expert in veterinary medicine, who were on the property during the search and testified that the animals appeared severely malnourished and there was no evidence of food on the property. The prosecution also submitted numerous pictures of the animals. Defendant was convicted of 15 counts of animal cruelty (second offense) and seven counts of aggravated animal cruelty.

            On appeal, defendant renewed her arguments that the animal protection agents were not statutorily authorized to obtain a livestock warrant, both warrants lacked probable cause, and the district court erred in not suppressing the evidence obtained from the illegal warrants. Under the plain language of the statute, the investigation of livestock cases is restricted to employees of the Division of Agriculture, brand inspectors, and sheriffs. Here, the animal protection agent was an employee of the Humane Society, a private nonprofit organization, and was not authorized to investigate livestock cases or to obtain the horse warrant. Although the animal protection agent exceeded her statutory authority in procuring the horse warrant, it was supported by probable cause and the statutory violation did not implicate constitutional concerns. Therefore, it did not require the suppression of evidence obtained from the search.

Defendant also contended that the court violated CRS § 18-1-408(1)(e) and double jeopardy principles by entering judgment and imposing sentence on each count of conviction for what amounted to a single course of conduct. Based on the language and purpose of CRS § 18-9-202, the unit of prosecution in animal cruelty cases is each animal abused or killed. Accordingly, the unit of prosecution permits the charging of multiple offenses.

Defendant further contended that there was insufficient evidence to convict her of the seven counts of aggravated cruelty to animals for needlessly killing an animal. While there was no direct evidence that the horses died because defendant did not feed them, there was substantial circumstantial evidence from which the jury could have drawn this inference and reached this conclusion beyond a reasonable doubt.

Defendant also argued that the charging documents filed in the two cases failed to charge an offense. Here, the indictment set forth the prohibited conduct—killing and mistreating specific animals by failing to provide necessary sustenance and care. Therefore, the indictment was sufficient to put defendant on notice of the charges against her and to allow her to prepare an adequate defense.

Defendant further contended that the trial court erred by initially denying her motion for bifurcation. However, there was no evidence presented that defendant had prior convictions; the court properly instructed the jury; and the weight of the evidence was significant, so it is unlikely that a mere reference to prior misdemeanor convictions substantially affected the verdict. Further, the court offered to give the jury a curative instruction, which defense counsel declined.

Defendant also contended that the trial court improperly admitted evidence of other bad acts under CRE 404(b). Evidence that animal protection agents previously seized horses from defendant in 2007, and that these horses were in poor condition and not being fed regularly, was logically relevant to defendant’s claim that she did not cause their malnourishment.

Defendant additionally argued that the trial court erred in excluding photographs of the horses that were not malnourished. Because there was testimony about the condition of the other horses, however, the photographs were cumulative and had no additional probative value.

Plaintiff, Red Flower, Inc., bought tax liens on farmland owned by defendant, McKown. After the redemption period expired, the county treasurer issued a real property deed and a mineral deed (the deeds) to Red Flower. McKown subsequently challenged the validity of the deeds on the ground that the treasurer had failed to provide actual notice to a tenant farmer who grew crops on the property. The district court ruled that unlike owners and other interested parties who are subject to a “diligent inquiry” standard of notification, the occupant is entitled to actual notice of the issuance of the treasurer’s deed. The court voided the deeds because the tenant farmer had not received actual notice.

On appeal, Red Flower contended that the court’s interpretation of the notification requirement in CRS § 39-11-128(1)(a) adds a “diligent inquiry” element to the clause referring to actual possessors or occupants. McKown argued that the district court could have granted summary judgment in his favor for the additional reason that the treasurer’s publication notice was deficient and therefore the deeds were void. CRS § 39-11-128 does not require actual notice to any of the listed persons. If the person is on the property, the statute presumes no real burden on the treasurer to locate the person. If the person is off the property, the statute requires the treasurer to make a “diligent inquiry” to find the person. Here, the real property deed, unlike the mineral deed, could not be issued until the treasurer published notice of its impending issuance. Because the publication notice was deficient, the district court’s entry of summary judgment in favor of McKown on the real property deed was affirmed.

The summary judgment in favor of McKown was affirmed in part and reversed in part, and the case was remanded for the district court to determine, with respect to the mineral deed only, whether the treasurer used diligent efforts to notify the tenant of the issuance of the deed.

Defendant was a passenger in his cousin’s vehicle when a police officer stopped the vehicle for a traffic infraction. When asked to identify himself, defendant provided the name of a relative and a birth date that was not defendant’s to the officer. When the officer discovered that defendant was lying about his identify and had an active arrest warrant, defendant was arrested and charged with attempt to influence a public servant. Defendant was found guilty of the charge.

On appeal, defendant contended that the prosecution’s evidence was insufficient as a matter of law to support his conviction because it didn’t show that (1) the officer was a public servant and (2) he intended to alter the officer’s actions, because there was no evidence that he knew there was a warrant for his arrest. The plain language of CRS § 18-8-306 reveals that a police officer is a public servant. Here, the prosecution proved that the officer is a police officer, and therefore, a public servant. Additionally, there was sufficient proof that defendant intended to alter the officer’s actions by means of deceit.

Defendant also contended that the district court erred by taking judicial notice of his outstanding warrant at trial and that judicial notice invaded the province of the jury. That defendant’s warrant arose in another jurisdiction is of no consequence, because the existence of the warrant was capable of accurate and ready determination by referring to the statewide court database. The Court of Appeals was not persuaded by defendant’s assertion that the court could not take judicial notice of the contents of the database because it may contain inaccurate records. Further, the court’s notice of the warrant did not improperly invade the province of the jury because the court took notice only of the existence of the warrant, which was not an element of the offense charged. The Court concluded this is the kind of fact noticeable under CRE 201.

The judgment was affirmed.

Plaintiffs filed for a preliminary injunction to enjoin defendant Applewood Water Association, Inc. (Association) from (1) conducting special meetings of the board of directors (board) in violation of its bylaws and (2) submitting an amended declaration of covenants for a full membership vote, based on their belief that the amended declaration illegally conveyed certain property rights. The owners presented evidence to support their contention that the board conducted special meetings without giving required notice set forth in the Colorado Common Interest Ownership Act (CCIOA) and the Colorado Revised Nonprofit Corporations Act (CRNCA). They also presented evidence that those meetings concerned amendments to existing covenants. The trial court denied both requests.

On appeal, the owners contended that the trial court erred as a matter of law when it found that it had no legal authority to enjoin future violations of civil statutes. The CCIOA and CRNCA create a legally protected interest in open meetings. The plain language of both statutes gives a court the authority to enjoin the violation of their provisions where a movant can show noncompliance and harm. Therefore, the trial court has the authority to enjoin the Association from holding special board meetings without providing the notice required under CCIOA and CRNCA. The trial court’s order as to that preliminary injunction request was reversed and the case was remanded for further factual findings.

The Court of Appeals concluded that the second injunction request is moot because a vote on the amended declaration has already occurred. That portion of the appeal was thus dismissed.

Decedent died intestate and was survived by his half-sister, Szoke. Szoke challenged the validity of a deed that decedent had executed near the end of his life. In that deed, decedent purported to convey his house to three of his close friends (the recipients). The probate court rejected Szoke’s claims, finding the recipients’ case far more persuasive because it was based on evidence from persons who had direct contact with decedent near or at the time the deed was executed, and not all of whom were interested in the outcome of the case. The court also determined that the recipients were entitled to an award of attorney fees under CRS § 13-17-102 because Szoke’s claims “lacked substantial justification” and were “groundless, in that she presented valid theories of undue influence and lack of capacity, but offered little or nothing to support those claims.” The probate court awarded the recipients attorney fees.

On appeal, Szoke contended that the probate court erroneously awarded attorney fees to the recipients under CRS § 13-17-102. The probate court found that Szoke’s claims were “groundless” because she did not present much evidence to support her claims, and the court did not believe her evidence in light of the recipients’ evidence. Based on the evidence presented by Szoke, a reasonable fact finder could have found undue influence and lack of capacity. Because Szoke presented some credible evidence in support of her claims, her claims were not sanctionable as groundless under CRS § 13-17-102. On the other hand, although the trial court did not explicitly characterize Szoke’s action as “vexatious,” that was the gist of its findings and conclusions. Because the court’s findings are supported by the record, the court did not abuse its discretion in awarding fees for conduct that was “stubbornly litigious, or disrespectful of the truth,” and, thus, “substantially vexatious.”

The award of attorney fees was affirmed.

A homeowners association (HOA) sued developer Mountain View Homes III (MVH III) and general contractor Casson Duncan Construction Inc. (Casson Duncan) on defective construction claims. In arbitration, MVH III’s insurer, Mt. Hawley Insurance Co. (Mt. Hawley), defended under a reservation of rights. The arbitration resulted in awards of damages and taxable costs to the HOA. Casson Duncan paid the costs award, for which it and MVH III were jointly liable, and thereafter sought contribution from MVH III and Mt. Hawley.          

            Mt. Hawley initiated this action against MVH III, the HOA, and Casson Duncan, requesting a declaration that there was no coverage under its commercial general liability policies with MVH III for either the costs or damages awarded in the arbitration. Casson Duncan filed a counterclaim for declaratory and monetary relief against Mt. Hawley for payment of MVH III’s portion of the costs award. The parties filed cross-motions for summary judgment on coverage issues. The district court denied summary judgment on all but one issue: it determined that Mt. Hawley was, as a matter of law, responsible for paying MVH III’s portion of the cost award, regardless of whether it was also responsible for paying its portion of the damages award. This partial summary judgment ruling was certified as “final” for purposes of permitting appellate review.

            On appeal, Mt. Hawley argued that the district court erred in granting partial summary judgment because Mt. Hawley’s responsibility for paying costs was inextricably linked to the question of whether the policies provided MVH III with coverage for the HOA’s claims, and because the coverage issues had not been determined, the costs issues could not be determined either. The Court of Appeals interpreted the policies to decide the issue. The insurance policies had standard “coverages” and “exclusions” sections and provided that the insurance company would pay “[a]ll costs taxed against the insured in the ‘suit,’” where “suit” clearly covered the arbitration proceeding. The obligation to pay costs was not linked to coverage but simply to the defense of the case. Because Mt. Hawley conducted MVH III’s defense in the arbitration proceedings, it was obligated to pay MVH III’s portion of taxable costs.

Mt. Hawley also argued that its reservation of rights letter superseded the policies’ costs provisions. A reservation of rights does not destroy the insured’s rights or create new rights in the insurer. The Colorado case law exception to this principle applies to defense costs, and defense costs are different from costs taxed against an insured.

Lastly, Mt. Hawley asserted that the Court’s interpretation of the policies leads to absurd results. Mt. Hawley agreed in its policies to pay all costs taxed against MVH III in suits in which it defended MVH III. If Mt. Hawley wanted to avoid the result here, it could have changed the language in its policy regarding coverage of such costs.

            The judgment was affirmed.