November 30, 2017
2017 COA 146. No. 14CA0764. People v. Folsom.
Stalking—Misidentification—Warrantless Search—iPod—Fourth Amendment—Alternate Suspect—Evidence—Identification.
Folsom was arrested for “peeping” after being seen by the victim looking into her window. In a search conducted incident to the arrest, the police seized two iPod devices that Folsom was carrying. Without obtaining a warrant, they searched the iPods and found 17 videos showing fully clothed women walking in public places, and a partially clothed woman changing clothing and masturbating in a bedroom. Folsom moved to suppress the videos, and the trial court denied the motion. All of the videos were admitted at trial. Folsom’s principal defense at trial was misidentification; he sought to introduce evidence of an alternate suspect, which the trial court denied. A jury convicted Folsom of stalking (serious emotional distress) and two counts of attempted invasion of privacy for sexual gratification.
On appeal, Folsom argued that the warrantless search of his iPods violated the Fourth Amendment and that because the videos were admitted into evidence against him, the trial was infected by constitutional error. Applying relevant case law, the Court of Appeals held that suppression of the videos was required. Further, admission of the videos was not harmless beyond a reasonable doubt.
Folsom also argued that the district court erred in denying his request to introduce evidence of an alternate suspect at trial. Less than two weeks before trial, the prosecution disclosed evidence regarding another suspect who was involved in similar peeping incidents in the victim’s neighborhood. While the defendant must show a non-speculative connection between an alternate suspect and the crime charged, he need not necessarily prove that the victim had previously identified the alternate suspect. Here, the evidence offered by Folsom, taken collectively, established a non-speculative connection between the alternate suspect and the charged crime. Therefore, the evidence should have been admitted. This error was not harmless beyond a reasonable doubt.
Folsom next argued that the evidence presented at trial was insufficient for the jury to convict him of stalking. The evidence presented at trial, viewed in the light most favorable to the prosecution, established that Folsom had been in the victim’s yard, where he had no legal right to be, twice in six months. The two acts, taken together, could lead a reasonable juror to find that a reasonable person would suffer serious emotional distress.
Folsom further argued that the admission of the victim’s out-of-court and later in-court identifications violated his right to due process because the out-of-court identification was impermissibly suggestive and unreliable. Under the totality of the circumstances, the out-of-court identification was sufficiently reliable to meet the requirements of due process. Because the out-of-court identification was constitutionally permissible, the Court did not address whether there was an independent basis for the victim’s in-court identification.
Folsom also contended that the stalking statute is unconstitutional on its face and as applied. The Court concluded the statute is constitutionally valid on its face and declined to address the as-applied challenge as being more properly within the province of the trial court.
Lastly, Folsom argued that the habitual criminal statutes are unconstitutional because they allow a judge rather than a jury to make necessary findings about whether a defendant was previously convicted. He argued that this deprived him of his Sixth Amendment right to trial by jury. The Court saw no reason to depart from numerous decisions of the Court holding these statutes constitutional.
The judgment was reversed and the case was remanded for a new trial.
2017 COA 147. No. 14CA1545. People v. Lewis.
Internet Sexual Exploitation of a Child—Internet Luring of a Child—Jury Instructions—Venue—Videotaped Statements—Jury Access to Evidence—Prosecutorial Misconduct.
Lewis posted a Craigslist advertisement soliciting a “barely legal” for sexual acts. In response, Detective Brite pretended to be a 14-year-old girl named “Kayla Nelson.” After exchanging sexually explicit messages via computers, Brite forwarded to Lewis an image of what appeared to be a teenage girl. Lewis inquired whether “Kayla” was “legit,” sent “Kayla” a sexually explicit photograph of himself, and arranged to meet her. Expecting to meet “Kayla” outside his residence in Jefferson County, Lewis was instead arrested by police and charged in Douglas County with Internet sexual exploitation of a child and Internet luring of a child. Lewis’s defense at trial was that he did not really believe that the person responding as “Kayla” was only 14. A jury convicted him as charged.
On appeal, Lewis argued that the trial court erred by instructing the jury that the prosecution was not required to prove beyond a reasonable doubt that the offenses were committed, as charged, in Douglas County. Defense counsel asserted that this improperly lowered the prosecution’s burden of proof and therefore impeded Lewis’s constitutional rights under the state and federal constitutions. Venue is not an element of a crime that needs to be proven by the prosecution beyond a reasonable doubt. Under CRS § 18-1-202(11), Lewis waived any issue as to venue by failing to bring it to the court’s attention within the time prescribed by statute. Because Lewis’s constitutional claim in the trial court was intertwined with the effect and validity of the statute, the Court of Appeals considered whether CRS § 18-1-202(11) is constitutional and concluded that it is. Accordingly, the trial court’s instructions were proper, and Lewis’s corollary argument that the prosecution failed to present evidence at trial to support a finding beyond a reasonable doubt of proper venue is similarly waived.
Lewis also contended that reversal was required because the trial court erroneously allowed the jury to have unsupervised and unlimited access to his videotaped statements during deliberations. Here, defense counsel agreed that the jury could have unsupervised and unrestricted access to the videotape during deliberations. In doing so, defense counsel waived Lewis’s right to complain about the jury’s unrestricted access to the videotape.
Finally, Lewis contended that the prosecutor improperly implied in closing argument that he was guilty based on his exercise of his constitutional rights to remain silent and against self-incrimination. The prosecution’s comments addressed what Lewis did and did not say during a videotaped statement he gave to the detective. Before giving the statement, Lewis waived his Miranda rights and spoke freely to the detective. The prosecutor’s comments concerned the content of Lewis’s statements, not Lewis’s silence in the face of the questioning, and were not erroneous.
The judgment was affirmed.
2017 COA 148. No. 14CA2245. People v. Buell.
Aggravated Robbery—Theft—Permissive Joinder—Crim. P. 8(a)(2)—Evidence—Jury Instructions—Lesser Included Offense—Prior Incident.
A loss prevention officer in a Greeley Sears store saw Buell put jewelry in his pockets and leave the store without paying. When confronted by the officer, Buell pulled a knife and moved toward him, and then fled the scene. Several months later, a loss prevention officer in a Greeley Safeway store saw Buell conceal packages of steaks under his jacket and leave the store without paying for them. When the officer attempted to handcuff him, Buell thrust a knife at the officer, cutting his hand, and then fled. The prosecution charged Buell with aggravated robbery, attempted aggravated robbery, two counts of theft, felony menacing, and second-degree assault, in connection with these two incidents. In the consolidated trial, Buell was convicted of attempted aggravated robbery, theft, and second-degree assault arising from one shoplifting incident, and of aggravated robbery, theft, and felony menacing arising from a separate shoplifting incident.
On appeal, Buell argued that the trial court abused its discretion when it consolidated the separate cases involving the Safeway and Sears incidents. The plain language of Crim. P. 8(a)(2) authorizes the consolidation of criminal charges when the offenses “are of the same or similar character” without requiring the court to analyze whether the offenses are cross-admissible under CRE 404(b). The offenses here are of the same or similar character, so consolidation was proper.
Buell next argued that the evidence was insufficient to support his convictions for aggravated robbery and attempted aggravated robbery because he used force or intimidation only after he had taken the property. There is no requirement that the use of force or intimidation be contemporaneous with the taking of property. The evidence was sufficient to support the aggravated and attempted aggravated robbery convictions. Buell’s related argument that the supplemental instruction on aggravated robbery was not supported by the evidence and was misleading similarly fails.
Buell also contended that the trial court erroneously refused to instruct the jury on third degree assault as a lesser included offense of second degree assault. A reasonable jury could not have concluded that the knife was anything other than a deadly weapon. Thus the jury could not have rationally convicted Buell of third degree assault and acquitted him of second degree assault.
Lastly, Buell argued that the court erred in admitting evidence of a prior incident in which he pleaded guilty to theft from Kohl’s. The Kohl’s evidence could not have substantially influenced the verdict because of the overwhelming evidence of Buell’s guilt of the charged offenses.
The judgment was affirmed.
2017 COA 149. No. 15CA1956. Carousel Farms Metropolitan District v. Woodcrest Homes, Inc.
Eminent Domain—Condemnation—Bad Faith—Public Purpose.
Woodcrest Homes, Inc. owned a parcel of land outside the town of Parker (town). Century Communities, Inc. and its subsidiaries (collectively, the developer) acquired parcels to the north and south of Woodcrest’s parcel with a plan to create a development, Carousel Farms, comprising all three parcels. Under its annexation agreement with the town, the developer could not proceed with its development plan until it acquired Woodcrest’s land. When Woodcrest refused to sell its parcel for the price offered, the developer created the Carousel Farms Metropolitan District (District), and the District condemned Woodcrest’s property and agreed to dedicate it to the town for eventual public use. The district court rejected Woodcrest’s challenges to the condemnation petition and granted the District’s request for immediate possession of Woodcrest’s parcel.
On appeal, Woodcrest argued that the District’s condemnation of its parcel was not necessary to advance a public purpose but instead was initiated in bad faith, for the purpose of facilitating the developer’s compliance with the Agreement. Here, the essential purpose of the taking was to facilitate the developer’s compliance with the agreement. The acquisition of the parcel was not necessary to accomplish a public purpose. Further, the evidence established that the condemnation proceedings were undertaken in bad faith. The district’s condemnation of Woodcrest’s parcel failed to comply with constitutional and statutory requirements.
Woodcrest also challenged the district court’s denial of its request for reimbursement of certain expert witness fees incurred in connection with the valuation hearing. In light of the disposition reversing the judgment of possession, the bill of costs must be reconsidered.
The judgment of possession was reversed, the order on the landowner’s bill of costs was vacated, and the case was remanded for further proceedings.
2017 COA 150. Nos. 16CA0210 and 16CA0211. People v. Iannicelli and People v. Brandt.
Jury Tampering—First Amendment—Leafletting—Jury Nullification.
The People charged defendants with jury tampering based on allegations that defendants handed out fliers discussing the concept of “jury nullification” to persons entering a courthouse. Defendants moved to dismiss the charges, arguing that the jury tampering statute is unconstitutional on its face and as applied to their alleged conduct. The district court ruled that the statute is not unconstitutional on its face but dismissed the charges, finding the statute unconstitutional as applied to defendant’s conduct, which it determined to be speech protected by the First Amendment.
On appeal, the People challenged the district court’s ruling that the jury tampering statute is unconstitutional as applied to defendants’ conduct. CRS § 18-8-609(1) applies only to attempts to improperly influence jurors or those selected for a venire from which a jury in a particular case will be chosen. The People did not charge defendants with attempting to improperly influence any such person.
The orders were affirmed.
2017 COA 151. No. 16CA1151. In re Marriage of Tozer.
Family Law—Post-Dissolution—Marital Property—Uniform Services Former Spouses’ Protection Act.
Permanent orders were entered in the parties’ divorce that required husband to pay wife monthly maintenance for three years and a percentage of his military retirement pay. The district court expressly reserved jurisdiction over maintenance to “offset [m]ilitary [r]etirement that is exchanged” for Veteran Administration (VA) disability benefits.
Several years later, husband was relieved from active duty and placed first on the temporary disability retired list and later on the permanent disability retired list. Where the military retires a member due to a service-related physical disability, it is referred to as a “Chapter 61” disability retirement. A veteran so retired may opt, as husband did, to receive monthly payments based on his disability rating in lieu of military retirement pay. In addition, husband received a VA disability benefit. His entire military retirement pay was based on disability.
Wife moved to enforce the permanent orders provision awarding her a share of husband’s military retirement pay. The district court denied the motion, determining that the disability benefits were not subject to division under federal law. A year later, wife again moved to enforce the same provision through equitable relief. Based on expert testimony, the court denied the motion, finding that none of the disability pay was subject to division.
Wife appealed the second order denying her motion. The Court of Appeals first rejected husband’s argument that wife’s claim for equitable relief was barred by claim preclusion based on the first decision denying relief. The motion was made in the same litigation, so it was not barred by claim preclusion, which applies to later, independent proceedings.
Regarding the divisibility of husband’s military retirement, under the Uniform Services Former Spouses’ Protection Act (USFSPA), state courts may treat disposable retired pay as marital property that may be divided. But Chapter 61 disability retirement pay is excluded from such disposable retired pay.
Wife further contended that the district court erred by not awarding her an equitable share of the military disability retirement pay. However, federal law precludes state courts from dividing military disability benefits as marital property.
The order was affirmed.
2017 COA 152. No. 16CA1316. Oracle Corp. v. Department of Revenue of the State of Colorado.
Taxation—Corporation—Income Tax—Includable C Corporation—Summary Judgment.
Oracle Corporation (Oracle) is a Delaware corporation headquartered in California. Oracle Corporation Japan (Oracle Japan) is a foreign subsidiary operating exclusively within Japan. Oracle Japan Holding, Inc. (OJH), formed later, is a wholly owned domestic subsidiary holding company that holds stock in Oracle Japan. In the tax year ending (TYE) May 31, 2000, OJH sold 8.7 million shares of Oracle Japan stock on the Tokyo Stock Exchange for a gain of $6.4 billion (OJH Gain).
Colorado taxes the income of a C corporation from tangible or intangible property located or having a situs in this state, as well as the income from any activities carried on in this state. The Colorado Department of Revenue (Department) applies the “unitary apportionment” accounting method to calculate the taxable income of affiliated C corporations attributable to Colorado. Following an audit of Oracle’s Colorado income tax returns for TYEs May 31, 2000 through May 31, 2005, the Department issued an assessment that Oracle owed Colorado income tax on the OJH Gain. Oracle protested, the Department director issued a corrected final determination, and Oracle commenced this action.
The parties filed cross-motions for summary judgment. The district court held that Oracle could not be required to include OJH in its Colorado combined corporate income tax returns for the years 2000 to 2005 because OJH was not includable under CRS § 39-22-303(12)(c). The court also rejected the Department’s assertion that it could require Oracle to include OJH or otherwise tax a portion of OJH’s income under CRS § 39-22-303(6), allegedly to prevent tax abuse. The court entered summary judgment in favor of Oracle.
On appeal, the Department argued it was error for the district court to hold that OJH was not an includable C corporation under CRS § 39-22-303(12)(c). CRS § 39-22-303(12)(c) authorizes the Department to allocate income and deductions among corporations owned or controlled by the same interests to avoid abuse and clearly reflect income. But Colorado exempts corporations that do not have 20% domestic property and payroll, and OJH has no property and payroll of its own. The plain language of this section did not allow the Department director to require that Oracle include OJH in its Colorado combined tax return.
The Department next contended that the district court erred in ruling that CRS § 39-22-303(6) could not be applied as an alternative basis for including OJH’s income in Oracle’s tax return. CRS § 39-22-303(6) can be applied to allocate income among affiliated corporations only if those corporations are otherwise includable under CRS § 39-22-303(12)(c), which is not the case here.
Lastly, based on the conclusion that the Department director cannot require Oracle to include OJH in a unitary consolidated return, Oracle’s cross-appeal is moot.
The judgment was affirmed.
2017 COA 153. No.17CA0070. People in re K.G. and A.R.
Juvenile Court—Dependency and Neglect—Child Custody—Indian Child Welfare Act.
The district court adjudicated K.G. and A.R. dependent and neglected and allocated parental responsibilities to the aunt and uncle. Before entering the allocation order, the district court did not address the applicability of the Indian Child Welfare Act (ICWA).
On mother’s appeal, the Court of Appeals concluded that the ICWA applies to this proceeding. The Court found no indication in the record that mother was asked whether she knew or had reason to know the children were Indian children; the district court did not make required inquiries of the parents, guardian ad litem, or the Department of Human Services; and although the record indicates that the Department had reason to know that K.G. might be an Indian child, there is no indication that it sent the required notices to the Cherokee tribes on K.G’s behalf.
The case was remanded for further proceedings to determine whether the children are Indian children in accordance with the ICWA.