After a night of drinking with R.B., R.B.’s mother, R.B.’s brother, and a friend, defendant took R.B. to his home. Defendant later called the police to report that R.B. was not breathing. When police and paramedics arrived, R.B. was dead. The police were subsequently contacted by defendant’s ex-girlfriend, S.E., who told them that she believed defendant may have strangled R.B. Her belief was based on an incident in which defendant nearly strangled S.E. to death during an argument. R.B.’s autopsy report indicated that R.B. died of manual strangulation. A jury convicted defendant of first degree murder—after deliberation as to R.B., attempted first degree murder—after deliberation as to S.E., and reckless endangerment and third degree assault as to S.E.

On appeal, defendant contended that the trial court erred when it allowed R.B.’s mother and brother, who were witnesses for the prosecution, to be present during testimony at defendant’s preliminary hearing and trial. R.B.’s mother and brother are both included in the statutory definition of “victim” under the Victims’ Rights Act, which controls over CRE 615 (providing for sequestration of witnesses). The Court of Appeals determined that the trial court did not abuse its discretion because (1) defense counsel failed to identify specific grounds raising concerns about conforming testimony; (2) the court admonished the witnesses about not discussing the testimony they heard; and (3) defendant had the opportunity to cross-examine the witnesses.

Defendant next contended that the trial court’s use of a basketball analogy to explain the law of intoxication to jurors during voir dire constituted reversible error. Even if the trial court’s analogy constituted error, the court properly instructed the jury at the close of evidence and any error was not substantial.

Lastly, defendant contended that the trial court erred in precluding his counsel from asking a prosecution witness whether S.E. had smoked marijuana on the day of the attempted murder. Although this evidence was relevant, the proper way to illicit such evidence would have been for defense counsel to ask S.E. the question, which she did not do.

The judgment was affirmed.

During an altercation at City Park, defendant pulled a gun and fired it in the direction of a group of people. One of the shots struck a nearby Denver police officer in the head and killed her. Defendant pleaded guilty to second degree murder. The district court sentenced him and ordered him to pay restitution to the Risk Management Department of the City and County of Denver (Department) in the amount of $365,565.07 for medical costs and survivor benefits resulting from the officer’s death. Defendant filed a Crim. P. 35(a) motion to correct the award as an illegal sentence. After a hearing, the court denied the motion and reaffirmed the award.

On appeal, defendant contended that the Department was not a “victim” for purposes of restitution. The Denver Police Department (DPD) is an agency of the City and County of Denver. The Department acted as the workers’ compensation insurance company for the DPD and the City and County of Denver as a whole. Because the Department was an insurer who had a contractual relationship with the deceased officer, it fits squarely within the definition of a victim insurer under the restitution statute. The district court did not err in concluding that the Department was a victim of defendant’s crime for purposes of restitution.

Alternatively, defendant contended that even if the Department was a victim under the restitution statute, the amount of restitution ordered by the district court was not authorized by law because the death benefits constituted “loss of future earnings,” which is specifically excluded from the statutory definition of restitution. The death benefits paid by the Department were calculated using the deceased employee’s average weekly wage but are not equivalent to “loss of future wages.” Rather, the payments were more properly considered the Department’s “out-of-pocket expenses” and “anticipated future expenses,” both of which are included in the statutory definition of restitution. Accordingly, the district court did not err in awarding the restitution.

The order was affirmed.

County Special Sales Tax—Retail Marijuana—Home Rule Cities—Standing.

In 2014, Adams County (County) voters approved a resolution authorizing the County to levy a countywide special sales tax on retail marijuana. Three home rule cities (Cities) in the County challenged the tax, claiming that it was unauthorized by Colorado law. The Cities sued the County, seeking an injunction and declaratory judgment against the tax, and the County moved to dismiss for lack of standing and for failure to state a claim upon which relief could be granted. The district court held that the Cities had standing and concluded that there was sufficient legislative authority to support the countywide special sales tax. The court converted the County’s motion for failure to state a claim upon which relief could be granted into a motion for summary judgment and granted summary judgment to the County.

On appeal, the County argued that the district court erred in determining that the Cities had standing to bring their claims. Here, the County’s special sales tax likely would harm the fiscal interests of the Cities by reducing their tax revenues. In addition, the fiscal integrity of a home rule city is a legally protected interest of the city, and the tax would harm the fiscal integrity of the Cities. Thus, the district court correctly held that the Cities had standing.

The Cities argued that the retail marijuana sales tax did not expressly grant the County authority to impose a special sales tax and, therefore, the tax was invalid. A county has no power to impose a tax unless the General Assembly or the Colorado Constitution directly authorizes it. Here, the County made no claim of authority under the Colorado Constitution, and the retail marijuana sales tax did not grant the County express authority to enact its special sales tax. Because the County did not have either constitutional or statutory authorization to impose a special sales tax on retail marijuana, the Adams County special sales tax is invalid.

The judgment was reversed.

Trust—Frivolous Lawsuit—Attorney Fees—Foreign Court—Work Product.

James Roberts assisted his mother Della Roberts with forming the Della I. Roberts Trust in Colorado, where she lived. Upon Della’s death eight days later, James, the designated trustee, was supposed to divide the trust’s assets into two equal shares—one to benefit James and his wife, Mary Sue Roberts, and the second to benefit Della’s grandchildren, James and Mary Sue’s children. James did not properly administer the trust, but apparently, no one expressed concern about his administration until after he died.

After James’s death, Mary Sue assumed the role of trustee pursuant to the trust’s provisions. The grandchildren, who were ultimately appointed as trustees (trustees) objected and promptly removed Mary Sue as trustee. Although the Colorado court assumed jurisdiction, Mary Sue filed a separate case in West Virginia, where she lived, which was later dismissed for lack of jurisdiction. Bruce represented Mary Sue in both the Colorado and West Virginia matters. The district court in Colorado accepted a final accounting of the trust filed by trustees, ordered all assets remaining in the trust be distributed to the grandchildren in equal shares, and found that the trust could recover administrative costs and attorney fees incurred in litigating both the Colorado and West Virginia cases, pursuant to CRS § 13-17-102, from Bruce and Mary Sue. It also assessed $54,565 in fees against Bruce for the West Virginia action.

Bruce appealed the district court’s order only as it pertains to attorney fees awarded for the West Virginia action. He contended that CRS § 13-17-102 did not authorize the court to award attorney fees incurred solely in the West Virginia case. CRS §13-17-102 does not authorize a Colorado court to award attorney fees incurred in an action in a foreign court, unless work product created for use in the foreign court is also used in the Colorado court. Neither the district court’s order nor the record clarifies whether the trustees used work product created for the West Virginia action in the Colorado proceedings.

The portion of the order awarding $54,565 for attorney fees incurred in the West Virginia action was vacated, and the case was remanded for the district court to determine whether the trustees used work product created for the West Virginia action in the Colorado proceedings. 

Father’s 12-year-old stepdaughter, J.O-E., made allegations of father’s inappropriate sexual behavior toward her to her therapist. She made additional allegations in a recorded forensic interview. Shortly thereafter, J.O-E. recanted her story. In the meantime, the family voluntarily cooperated with the Department of Human Services (Department) and followed the Department’s recommended safety plan, which required father to leave the family home and have no contact with his infant child G.E.S. or any of his three stepchildren. Father took a psychosexual evaluation, but because he refused to take a polygraph examination, the Department filed a dependency and neglect petition as to G.E.S. Father denied the allegations and requested a jury trial. At a pre-trial hearing, the court determined that J.O-E. was unavailable to testify, and at trial, admitted her hearsay statements without her testifying. The court also ruled that the probative value of evidence regarding the evaluation and polygraph refusal outweighed its prejudicial effect and allowed this evidence. After the jury returned its verdict, the court entered judgment adjudicating G.E.S. dependent and neglected.

On appeal, father contended that the district court erred in admitting evidence that he underwent a psychosexual evaluation and refused to undergo a polygraph examination. Under the Children’s Code, father had no duty to cooperate by completing a psychosexual evaluation and polygraph. Further, evidence of polygraph test results is per se inadmissible at an adjudicatory trial because they are not reliable. Here, the prejudicial impact of both the polygraph evidence and evidence of father’s partial cooperation with the Department’s request that he complete its evaluative processes required reversal.

Father also contended that the court erred in admitting J.O-E.’s hearsay statements. Under CRS § 13-25-129(1), an out-of-court statement made by a child describing an unlawful sexual offense, which would otherwise be inadmissible, is admissible if the court determines that (1) the time, content, and circumstances of the statements provide sufficient safeguards of reliability; and (2) the child either testifies at trial or is unavailable as a witness and there is corroborative evidence of the act that is the subject of the statements. Here, father did not challenge the court’s findings that the statements were reliable and that corroborative evidence supported J.O-E.’s statements. The Court of Appeals agreed with the district court that the Sixth Amendments’ Confrontation Clause does not extend to dependency and neglect cases, and the record supported the finding that J.O.-E. was not available to testify, because testifying would gravely harm her mental and emotional health. Thus, the court did not abuse its discretion in admitting J.O-E.’s hearsay statements.

The judgment was reversed and the case was remanded for a new trial.