Sexual Assault—Child—Jury Instruction—Right Not to Testify—Hearsay.

Defendant was found guilty of two counts of sexual assault on a child.

On appeal, defendant contended that the district court erred by rejecting his tendered jury instruction on his right not to testify and by failing to instruct the jurors immediately before closing arguments of his constitutional right not to testify. The trial court did not err in choosing to give the jury the pattern jury instruction on defendant’s right not to testify because defendant’s proposed instruction went beyond the language of the pattern instruction. However, the trial court had an obligation to instruct jurors about defendant’s right not to testify before the attorneys made their closing arguments. Although the court violated Crim. P. 30 by not reading the instruction to the jury before closing argument, the court properly instructed jurors on defendant’s right not to testify during voir dire and reminded the sworn jurors of its earlier remarks. Reversal isn’t warranted because the error doesn’t cast serious doubt on the reliability of the judgment of conviction.

Defendant also argued that the district court erred by admitting into evidence the victim’s out-of-court statement to a Sexual Assault Nurse Examiner (SANE nurse) that defendant had been “kicked out of the house.” Defendant argued that by saying he got kicked out of the house, the victim implied that her mother had kicked him out because of the victim’s allegations, which implied that the victim’s mother believed those allegations. Even assuming that the statement was inadmissible hearsay, any error in allowing it was harmless because any inferences defendant drew from the statement were speculative, and the victim’s mother testified that she did not believe the victim.

The judgment was affirmed.

 Non-economic Damages—Jury Award—De Minimis—Pre-Offer Costs—Pretrial Offer of Settlement.

Plaintiff Miller was involved in an automobile accident with defendants, Aragon and Hancock. Miller sued Aragon and Hancock to recover economic and noneconomic damages that he suffered as a result of that accident. Before trial, both Aragon and Hancock made statutory offers of settlement to Miller pursuant to CRS § 13-17-202. The jury awarded Miller only economic damages. Miller filed a motion for new trial on damages, which the trial court denied. Each of the parties also moved to recover their costs, Miller as the prevailing party, and Aragon and Hancock pursuant to CRS § 13-17-202, arguing that the final judgment Miller recovered did not exceed their respective pretrial settlement offers. The court did not award Miller costs against Hancock, but awarded Hancock the entire amount of her claimed costs that accrued after her first offer. The court awarded costs in favor of Miller and against Aragon and denied Aragon’s request for costs.

On appeal, Miller contended that the trial court erred by denying his motion for new trial on damages. He argued that a jury’s failure to award noneconomic damages is impermissible as a matter of law when the jury returns a verdict awarding economic damages. Miller contended that it was undisputed that his injuries were more than de minimis; however, his characterizations of the relevant facts and evidence lack record support. The jury could have reasonably concluded that Miller’s injuries from the accident were de minimis. Thus, the record here was sufficient to support the jury’s award of zero noneconomic damages.

Miller also argued that the trial court should have included his pre-offer costs when determining whether Hancock’s pretrial offers of settlement exceeded the amount Miller recovered from Hancock at trial. Whether a statutory offer includes pre-offer costs depends on the language of the offer. Hancock’s offers unambiguously included costs, so Miller was entitled to have his pre-offer costs included in his final judgment for the purpose of determining whether either of Hancock’s offers entitled her to recover her post-offer costs pursuant to CRS § 13-17-202. Thus, the trial court erred by interpreting Hancock’s offers to exclude costs.

Miller next argued that the trial court erroneously reduced the costs he was entitled to recover, yet awarded Hancock the entire amount of her claimed costs without subjecting her costs to similar scrutiny. Here, the trial court abused its discretion when it reduced the amount of Miller’s recoverable costs without making adequate findings as to whether those costs were reasonable and necessary.

            The order denying Miller’s motion for a new trial on damages was affirmed. The awards of costs to Hancock and Miller were reversed and the case was remanded for further proceedings to determine Miller’s costs and whether, after determining Miller’s costs, Hancock made a settlement offer pursuant to CRS § 13-17-202 that exceeds the amount of Miller’s final judgment, inclusive of pre-offer costs and interest.

 Eminent Domain—Inverse Condemnation Claim—Compensable Damages—Restoration Damages—Diminution in Value.

Sos owns property on which he owns and operates a tire business. The Roaring Fork Transportation Authority (RFTA) built a bus station on the property north of and adjacent to his property. Before RFTA began construction, an earthen embankment rested on the property line between Sos’s and RFTA’s properties. Sos regularly sold tires and other items on the embankment and, with the previous owner’s permission, on the northern property. As part of its construction, RFTA removed the embankment and built a wall on its property, and then restored the embankment, which the wall relies on for lateral support. Sos then wanted to remove the embankment to facilitate his business. He brought an inverse condemnation claim against RFTA because the bus station wall relies on his property for lateral support. RFTA moved for summary judgment and Sos moved for partial summary judgment, regarding whether a compensable taking or damages had occurred. The district court denied RFTA’s motion and granted Sos’s motion, determining that the force the bus station wall permanently imposed on the embankment constituted compensable damage under article II, section 15 of the Colorado Constitution, and that the proper measure of damages was restoration damages rather than diminution in value.

On appeal, RFTA argued that the district court erred in determining that RFTA possessed the power of eminent domain because the General Assembly had not granted RFTA this power expressly or by clear implication, and because it does not possess the power of eminent domain, Sos cannot establish an inverse condemnation claim. Pursuant to the plain language of CRS § 43-4-604, RFTA has the power of eminent domain by clear implication.

RFTA next asserted that the district court erred in concluding that RFTA’s bus station wall caused compensable damage because the wall’s construction did not substantially diminish the value of Sos’s property or substantially change Sos’s use of his property. The district court found, with record support, that RFTA authorized the building of the bus station wall and that RFTA incorporated the embankment’s support into the bus station wall’s design and construction. The court, therefore, properly determined that the imposition of force on Sos’s embankment was the natural consequence of RFTA’s intentional construction of the bus station wall. Further, the record, including RFTA’s own expert opinions, supported the district court’s finding that the bus station wall imposed a new force on Sos’s embankment to such a degree that an engineered remedy was now required before the embankment could be excavated. The district court properly determined that RFTA damaged Sos’s property.

RFTA next contended that the district court erred in ruling that restoration costs rather than diminution of value was the proper measure of damages. The record shows that the diminution in value of Sos’s property after RFTA built the bus station was de minimis. But RFTA’s construction substantially limited Sos’s use and enjoyment of the embankment area. Therefore, the district court properly determined Sos’s damages under the measure of restoration costs.

RFTA further argued that the district court erred in allowing evidence of Sos’s business and personal uses for his property because such interests are non-compensable in condemnation cases. RFTA contended that Sos presented no admissible evidence regarding restoration costs or supporting the damages award. The Court of Appeals concluded that the district court’s damages award is supported by competent record evidence.

RFTA also argued that the district court erred in rejecting its proposed instructions regarding diminution of value being the proper measure of damages. The district court’s decision was supported by competent evidence and did not cause the commissioners to be inaccurately instructed on the law.

The judgment was affirmed.

 Plea Agreement—Menacing—Consumption of Marijuana—Possession of Drug Paraphernalia—Consumption of Alcohol—Deferred Judgment—Petition to Seal—Statutory Waiting Period.

In 2014, Robertson was charged in three separate cases with (1) misdemeanor menacing; (2) consumption of marijuana and possession of drug paraphernalia; and (3) consumption and possession of alcohol by a person under 21. Robertson entered into a global plea agreement whereby he pleaded guilty to the menacing charge and received a deferred judgment lasting one year, the drug and alcohol cases were dismissed, and Robertson was permitted to seal the records of all three cases. After Robertson completed the deferred judgment, his guilty plea was withdrawn and the case was dismissed. He petitioned the court to seal the records in all three cases, which the court granted.

On appeal, the prosecution contended that the district court erred by granting Robertson’s petitions to seal the records in the drug and alcohol cases because CRS § 24-72-702(1)(a)(III)(A) prohibits such sealing until at least 10 years have passed. Where a statute prohibits a court from sealing criminal records until 10 years have passed since the disposition of the criminal proceedings, as in this case, the parties may not waive this requirement and authorize the court to seal the records earlier. Therefore, the district court lacked authority to seal the criminal records in the drug and alcohol cases. The records in the menacing case, however, were eligible for sealing because that case was completely dismissed after Robertson completed the deferred judgment. However, the existing record in the menacing case was not sufficient to support the order.

The orders in the drug and alcohol cases were vacated. The order in the menacing case was reversed and the case was remanded for further proceedings.

 Dependency and Neglect—No Fault—Summary Judgment.

The Fremont County Department of Human Services (Department) filed a dependency and neglect petition concerning M.M. and P.M. III. Mother admitted that the children were dependent and neglected. Although father did not dispute that the children were in an injurious environment and were without proper parental care through no fault of a parent, he denied the allegations in the petition against him and requested an adjudicatory trial before a jury. The Department moved to adjudicate the children dependent and neglected by summary judgment. The trial court granted summary judgment and adjudicated the children dependent and neglected.

On appeal, father asserted that the trial court erred in granting summary judgment. He contended that the facts concerning him were disputed, the remaining undisputed facts concerned only mother, and the children could not be adjudicated dependent and neglected simply because the Department established that mother was a danger to the children. There are four statutory grounds for adjudication, two of which require a showing of fault as to each parent. The undisputed facts established that, with respect to the “no-fault” grounds, CRS § 19-3-102(1)(c) and (e), the children were dependent and neglected and the trial court properly granted summary judgment on those statutory grounds. With respect to CRS § 19-3-102(1)(a) and (b), however, the material facts concerning father’s conduct were disputed and thus the trial court erred in granting summary judgment on those grounds.

The judgment was affirmed in part and reversed in part. The case was remanded for the trial court to amend the order of adjudication to reflect that the children were adjudicated dependent and neglected only under CRS § 19-3-102(1)(c) and (e).

 Workers’ Compensation—Change of Authorized Treating Physician—Maximum Medical Improvement—Final Admission of Liability.

Claimant sustained work injuries and received medical care from Sharma, an authorized treating physician (ATP). Several months later she requested and received permission, under CRS § 8-43-404(5)(a)(VI)(A), to begin treatment with another physician, Miller. Notwithstanding the agreed-upon change of doctor, claimant’s employer periodically sent her to the see Sharma. After Miller assumed her care, Sharma reported that claimant reached maximum medical improvement (MMI). Miller disagreed. Despite this disagreement, claimant’s employer filed a final admission of liability (FAL) based on Sharma’s conclusion. Claimant challenged the FAL, and an administrative law judge found that Sharma’s status as claimant’s ATP terminated when Miller began treating her, pursuant to CRS § 8-43-404(5)(a)(IV)(C), the automatic termination provision. A panel of the Industrial Claim Appeals Office (Panel) disagreed, concluding that CRS § 8-43-404(5)(a)(IV)(C) applied only if the worker sought a change of physician under CRS § 8-43-404(5)(a)(III). The Panel further held that the termination provision in CRS § 8-43-404(5)(a)(VI)(B), which automatically terminates the relationship between an ATP and an injured worker upon treatment with a new ATP, did not apply either because it was not in effect when claimant changed physicians. 

            On appeal, claimant contended that her employer erred in relying on Sharma’s MMI finding when issuing the FAL because Sharma was no longer an ATP when he made the MMI finding. She argued that (1) her treating relationship with Sharma was automatically terminated by CRS § 8-43-404(5)(a)(IV) because it applies to all changes of physicians, and (2) even if this section does not apply, her relationship with Sharma was terminated by recently amended CRS § 8-43-404(5)(a)(VI). The Court of Appeals held that the CRS § 8-43-404(5)(a)(VI)(B) termination provision only applies to requests to change a treating physician made after the effective date of the provision. Second, CRS § 8-43-404(5)(a)(IV) is limited to changes made under CRS § 8-43-404(5)(a)(III) “within ninety days after the date of the injury.” Because claimant’s request in this case to change her physician predated CRS § 8-43-404(5)(a)(VI)(B), and because it was not granted under CRS § 8-43-404(5)(a)(III), her treatment with Miller did not automatically terminate Sharma’s status as an ATP.

            The order was affirmed.