Colorado Sex Offender Lifetime Supervision Act—Probation—CRS § 18-1.3-406(1)(a) and (b)—Crime of Violence—

Sex Offender.

Al-Turki was convicted under the Colorado Sex Offender Lifetime Supervision Act of 1998 (LSA) of 12 counts of unlawful sexual contact through use of force, intimidation, or threat. The district court ultimately sentenced him to indeterminate prison terms of six years to life. Al-Turki renewed his previously filed Rule 35(b) motion for reduction of sentence, arguing that he was eligible for a probationary sentence under CRS § 18-1.3-406(1)(a). The trial court denied the motion.

On appeal, Al-Turki contended that he was eligible to have his indeterminate term of incarceration sentence, which was imposed under the LSA and the crime-of-violence statute, CRS § 18-1.3-406(1)(b), modified to probation under CRS § 18-1.3-406(1)(a). The mandatory sentencing for violent crimes statute, CRS § 18-1.3-406(1), differentiates between crimes of violence that involve sex offenses (CRS § 18-1.3-406(1)(b)) and those that do not involve sex offenses (CRS § 18-1.3-406(1)(a)). CRS § 18-1.3-406(1)(b) provides that defendants convicted of a sex offense that is a crime of violence “shall” be sentenced to an indeterminate term of incarceration. Thus, a crime-of-violence sex offender is not eligible for probation. Al-Turki was convicted of a sex offense that is a crime of violence. Therefore, the district court did not err in concluding that CRS § 18-1.3-406(1)(b) precluded it from modifying Al-Turki’s sentence to probation.

The order was affirmed.

Wiretapping—Conspiracy—Habitual Criminal—Unanimity Instruction—Single Transaction—Limiting Instruction—Prior Conviction—Jury.

After an investigation that entailed wiretapping, the People charged defendant with one count of conspiracy to distribute a schedule II controlled substance (methamphetamine) and several habitual criminal counts. A jury convicted defendant of the conspiracy charge, and the district court, after finding that defendant was a habitual criminal, sentenced him to 48 years.

On appeal, defendant contended that the district court erred in not requiring the prosecution to elect the overt act on which it was relying to prove the conspiracy charge or not giving the jury a special, modified unanimity instruction regarding the overt act. When the People charge a defendant with crimes occurring in a single transaction, they do not have to elect among the acts that constitute the crime, and a special unanimity instruction (one that tells the jury that it must agree unanimously as to the act proving each element) need not be given. A defendant can participate in a number of crimes or events to accomplish a single conspiracy. The Colorado Supreme Court has indicated that the following factors tend to show a single criminal episode: the alleged acts occurred during the same period, the type of overt act alleged is the same, the unlawful objective of the conspiracy is the same, and the same evidence would be relevant to the charges. Here, the actions occurred in a relatively short time frame, evidence of defendant’s phone conversations with one person primarily established the conspiracy, and all the overt acts on which the jury could have relied were done in furtherance of the same unlawful objective. Therefore, the evidence presented in this case showed one criminal episode, and hence one conspiracy. Though the prosecution alleged numerous overt acts in furtherance of the single conspiracy, that did not require unanimous agreement by the jurors as to the precise overt act defendant committed. Therefore, the district court did not err, much less plainly err, in failing to require an election or to give the jury a special unanimity instruction.

Defendant also contended that the district court erred in not providing the jury a limiting instruction. However, defendant did not request a limiting instruction, and a trial court’s failure to give a limiting instruction sua sponte does not constitute plain error.

Defendant further contended that his rights to jury trial and due process were violated when the judge, instead of the jury, found that he had been convicted of prior felonies. The Colorado Supreme Court has held that the fact of a prior conviction is expressly excepted from the jury trial requirement for aggravated sentencing.

The judgment was affirmed.

Murder—Robbery—DNA Evidence—Collateral Estoppel—Expungement—Constitutionality—Katie’s Law—Surveillance Camera—Evidence—Jury.

A jury convicted Valdez of first degree murder after deliberation and several other charges arising from the robbery of a jewelry store during which one of the two hooded robbers shot and killed the owner. Valdez did not testify but defended based on misidentification. Valdez was sentenced to life without the possibility of parole on the first degree murder count, was consecutively sentenced to 32 years on the aggravated robbery count, and received concurrent sentences on the other counts.

On appeal, Valdez argued that the match of his DNA to the DNA evidence from the crime scene was derived from a sample unconstitutionally collected when he was arrested on an unrelated charge in a traffic case. Valdez’s DNA sample was taken during his arrest for aggravated driving under restraint—habitual offender. Although Valdez pleaded guilty to a misdemeanor in that traffic case and was eligible to apply for DNA expungement under CRS § 16-23-105 (part of Katie’s Law), he failed to either move to suppress the DNA sample before pleading guilty or seek expungement based on his misdemeanor plea. The constitutionality of Katie’s Law was not determined in the traffic case. Because Katie’s Law, as applied to Valdez, is constitutional, the trial court did not err in denying his motion to suppress.

Valdez also argued that the district court erred in admitting a surveillance camera video of the robbery in progress depicting the owner’s dying moments because it was unfairly prejudicial, and further erred by improperly giving the jurors unfettered access to replay all of the videos during deliberations. The recording of the robbery in progress showed the actual crime. Therefore, it was not unfairly prejudicial, and the trial court did not abuse its discretion by admitting the surveillance video from the overhead camera. Additionally, the videos were played for the jurors only after their request, and the court clerk supervised the playback. Therefore, the trial court did not abuse its discretion in declining to limit the number of times the jury could view the videos or in refusing to impose other restrictions on the jury’s consideration of them.

            Having affirmed Valdez’s convictions on all charges, including first degree murder, Valdez’s argument that it was error to impose a lesser sentence consecutively rather than concurrently is moot.

Credit Agreement—Jury Demand—Equitable—Non-Disclosure—Abandonment—Estoppel—Waiver—Consent—Conversion—Bankruptcy—Collateral Estoppel—Damages.

Zachary funded his farming operations with loans from Farm Credit of Southern Colorado, ACA and Farm Credit of Southern Colorado, FLCA (collectively, Farm Credit). Zachary was having difficulty paying his debt to Farm Credit and had planted crops on seven farms for the coming harvest. Written agreements between Farm Credit and Zachary granted Farm Credit a perfected security interest in Zachary’s crops (Crop Collateral) and their proceeds. Farm Credit refused to continue funding Zachary’s farming operations and Zachary was unable to cultivate the Crop Collateral. Zachary’s father, James, thereafter took over the cultivation of the Crop Collateral. James never attempted to transfer the Crop Collateral or its proceeds to Farm Credit. Farm Credit filed a complaint for various claims against Zachary and other parties, but not James. Zachary thereafter filed for bankruptcy. As part of a bankruptcy adversary proceeding, Farm Credit filed an amended complaint alleging that Zachary transferred the Crop Collateral to James. Farm Credit later amended the state trial court complaint to add James as a defendant. Ultimately, the trial court entered a judgment against James, finding him liable for converting the Crop Collateral and awarding Farm Credit damages plus interest.

On appeal, James argued that the trial court erred in striking his demand for a jury trial. Based on the complaint, Farm Credit’s remedy was in the nature of a foreclosure, an equitable action. Because the basic thrust of the underlying action was equitable and not legal in nature, the trial court did not err in striking James’s demand for a jury trial.

James also asserted that the trial court erred in admitting evidence of Zachary’s debt because Farm Credit did not disclose it before trial, and this nondisclosure was intentional and material. However, this nondisclosure was harmless because the amount of debt far exceeded the most optimistic estimate given for the Crop Collateral’s value at the time of conversion. Therefore, James was not denied an adequate opportunity to defend against Farm Credit’s assertion that the value of the outstanding debt exceeded the value of the collateral, and the trial court did not abuse its discretion in refusing to dismiss the action as a result of this nondisclosure.

James next contended that the trial court reversibly erred when it determined that the defenses of abandonment, estoppel, waiver, and consent did not relieve him of liability for conversion. The written agreements evidencing Farm Credit’s perfected security interest in the Crop Collateral were “credit agreements” within the meaning of the Credit Agreement Statute of Frauds. Thus, any waiver involving Farm Credit’s rights to the Crop Collateral, including proceeds, would need to be in writing to be effective. Here, there was never a written waiver. Additionally, while the record shows that Farm Credit acquiesced to James’s cultivation and harvest of the otherwise doomed Crop Collateral, it does not show that Farm Credit consented to its security interest being completely extinguished. Finally, there is no evidence in the record showing Farm Credit manifested intent, or took action, to abandon the Crop Collateral and related claims at any point, including during the bankruptcy adversary proceeding. Accordingly, the trial court did not err in rejecting James’s defenses of waiver, consent, abandonment, and estoppel.

James further contended that the trial court erred when it determined that the bankruptcy court’s decision did not preclude Farm Credit from recovering on its claims and denied James’s motion for a directed verdict. Here, the legal issues before the bankruptcy court were different from those before the trial court. Because the issues litigated in the two proceedings at issue were not identical, the trial court correctly determined that collateral estoppel did not apply to the legal issues before it and properly denied James’s motion for a directed verdict.

Lastly, James argued that the trial court misapplied the law when assessing damages by determining that the date of conversion was the date of harvest rather than when James took over the crops’ cultivation. Because the trial court applied the correct standard in assessing damages and the record supports the trial court’s factual findings, there was no error with the damages award.

Landowners—Default Judgment—Finality—CRCP 54(b) —Jurisdiction—Certification.

The parties own adjacent parcels of property and for a number of years have had disagreements about the precise boundaries of their neighboring parcels. The Allisons filed a complaint asserting two trespass claims and a claim for declaratory relief. The Engels filed various counterclaims. Numerous motions were filed, and the district court ultimately certified a default judgment on the counterclaim for unjust enrichment as final under CRCP 54(b). The Court of Appeals ordered the parties to file supplemental briefs as to whether the unjust enrichment counterclaim is a separate claim for purposes of CRCP 54(b) and whether there is no just reason for delay of an appeal pertaining solely to that counterclaim.

Generally speaking, the Court of Appeals has jurisdiction only over appeals from final judgments. Thus, jurisdiction over an appeal from an order the district court has certified as final under Rule 54(b) depends on the correctness of that certification. Here, the district court gave two reasons for concluding that there was no just reason for delay: (1) “avoid[ing] duplicative efforts” and (2) obtaining “a clear sense of direction in terms of the issues to be considered” at trial. The first reason is plainly insufficient to justify certification because the same could be said about any case involving multiple claims or parties as to which a dispositive ruling is entered on one claim, or as to one party, before trial. The second reason is also insufficient to justify certification because it is not a proper function of Rule 54(b) certification to assuage a district court’s doubts about its decision or to provide “guidance” in the resolution of claims. The district court’s reasons do not show that any party will suffer hardship or injustice unless an immediate appeal of the default judgment on the single counterclaim is allowed. The district court abused its discretion, and the Court of Appeals lacks jurisdiction.

The appeal and cross-appeal were dismissed.

Breach of Contract—Exclusive Right-to-Sell Listing—Statute of Limitations—Jury Instructions.

            Woodard (seller) owned a 100-acre ranch. In 2006 he signed an exclusive right-to-sell listing agreement with International Network, Inc. (broker). The agreement was for a six-month listing period and provided for a percentage commission to be paid to broker upon sale. Seller had the absolute right to cancel the agreement at any time upon written notice.

            Approximately four months into the listing period, seller began negotiating with an attorney who represented a group of potential buyers. Seller did not disclose his negotiations to broker. About a month after commencing these discussions, seller abruptly cancelled the listing agreement without cause. Broker ceased marketing the property. After the listing period had expired, but within the 90-day holdover period set forth in the agreement, seller and the buyers finalized an agreement resulting in the sale of the property.

            Seven years later, broker initiated this action against seller for breach of contract based on seller’s failure to comply with the referral provision, which required seller to conduct all negotiations for the sale of the property through broker and refer to broker all communications received from prospective buyers. Following trial, a jury found in favor of broker and awarded damages in the amount of the commission that would have been owed under the listing agreement.

            On appeal, seller argued that the trial court erred in denying his motion for directed verdict and his post-trial motion for judgment notwithstanding the verdict because broker’s breach of contract claim was barred by the statute of limitations. CRS § 13-80-101(1)(a) states that a breach of contract claim must be commenced within three years after accrual of the cause of action, and accrual occurs when the breach is discovered or should have been discovered. It was undisputed that seller breached the referral provision in 2006. Seller argued that under the facts, broker should have realized there might have been a breach of the referral provision and through the exercise of reasonable diligence should have discovered it in 2006. Broker asserted it had no knowledge of seller’s duplicity until broker’s agent heard seller’s testimony in another lawsuit in 2011 in which seller testified he had violated the listing agreement and intentionally concealed his negotiations to avoid paying a commission. Therefore, in commencing this action in 2013 broker was within three years of its discovery of the breach. Based on the record, the Court of Appeals could not conclude that the evidence, viewed in the light most favorable to broker, compelled a different result.

            Seller also argued that it was error to not give a jury instruction on the elements of liability for recovery on a real estate commission claim, contending that the broker was not the procuring cause of the sale. Here, seller breached the referral provision and cannot use his intentional concealment of his negotiations to prevent broker from obtaining damages in the form of a commission. The court did not err in rejecting seller’s procuring cause instruction.

            Seller contended the trial court erred by rejecting seller’s proposed jury instruction on the affirmative defense of laches. The trial court ruled, and the Court agreed, that seller’s improper conduct precluded his assertion of a laches defense.

            Seller further argued that the court erred in denying him the right to impeach broker’s agent with certain evidence. The court precluded seller’s questioning due to lack of a sufficient foundation and acted within its discretion in limiting seller’s cross-examination.

            Broker requested attorney fees and costs in accordance with the agreement, which the Court awarded.

The judgment was affirmed and the case was remanded for further proceedings to award broker’s costs and attorney fees incurred on appeal.

Subject Matter Jurisdiction—Death of Arbitrator During Pendency of Arbitration.

            The parties agreed to arbitrate the permanent orders issues in their dissolution of marriage. The agreement provided that the Colorado Uniform Arbitration Act (CUAA) governed the proceedings; the arbitrator would reserve jurisdiction for 20 days after issuing an award to allow the parties to seek clarification, correction, or modification of the award; and if jurisdiction was reserved on an issue, the arbitrator would hear it unless he was unavailable. The arbitrator issued an award, and both parties submitted timely requests for modification and clarification of the award. During the process of submitting these requests, the arbitrator died. Five days later, wife moved in district court to appoint a replacement arbitrator under CRS § 13-22-215(5). A week later husband moved to confirm the arbitrator’s award under CRS § 13-22-222. The trial court found that wife was essentially seeking to relitigate the permanent orders, and it denied her motion and granted husband’s motion to confirm the award and entered a dissolution decree incorporating the award.

            On appeal, wife argued that under the CUAA, the district court lacked subject matter jurisdiction to confirm the arbitration award while the parties’ requests to modify or correct it were pending before the arbitrator. She contended that upon the death of the arbitrator, the court had subject matter jurisdiction only to appoint a replacement arbitrator. Under the CUAA, a valid and enforceable arbitration agreement divests the district court of jurisdiction on all matters submitted to arbitration pending the conclusion of the arbitration. Here, due to the timely requests for modification or correction of the award, the arbitration proceedings had not concluded at the death of the arbitrator and subject matter jurisdiction to confirm the award was not in the district court. Under the CUAA, the district court only had subject matter jurisdiction to appoint a replacement arbitrator to complete the proceedings.

            Wife further contended that the district court erred by denying her motion to appoint a replacement arbitrator. Because it is undisputed that the parties’ chosen arbitrator could not act, the district court was required to appoint a replacement arbitrator.

Mistake on Special Verdict Form—CRE 606(b).

            Malpica-Cue sued Fangmeier for damages resulting from a car accident. After trial, the jury filled out a Special Verdict Form B that included three different damages amounts. All six jurors signed the form, and the judge read the verdict and each separate amount of damages aloud in open court. The jury foreman confirmed the verdict. Counsel for both parties declined to poll the jury.

            Fangmeier filed a post-trial motion averring that while the jurors were still in the courthouse, defense counsel spoke with some of them about the amount of damages they had awarded. They said they had intended to award $2,500 for noneconomic losses, $18,373.38 for economic losses, and $0 for physical impairment or disfigurement. The total damages intended, $20,873.38, had mistakenly been added together and inserted on the line for physical impairment and disfigurement, making the total damages $41,746.76. Defense counsel told the court clerk that all six jurors agreed they had made a mistake on the verdict form and wanted to fix it. The judge denied counsel’s request to reconvene the jury that day and told him to file a motion.

            Fangmeier filed a motion asking the court to vacate the jury verdict awarding $41,746.76 and enter judgment awarding $20,873.38. The motion included an affidavit from the jury foreman saying the jury had made a mistake. The district court denied the motion, stating that CRE 606(b) precluded it from considering the foreman’s affidavit.

            On appeal, Fangmeier argued that the foreman’s affidavit should not have been precluded because an exception to Rule 606(b) allows jury testimony regarding “whether there was a mistake in entering the verdict onto the verdict form.” Here, all the jurors agreed that there should have been no recovery for physical impairment or disfigurement and the foreman misread the jury form, so the exception applies. While the affidavit by itself does not require the verdict to be changed, Fangmeier is entitled to an evidentiary hearing on the issue. Thus, it was error to not reconvene the jurors on the day the trial ended and in later failing to reconvene the jurors to ascertain the true verdict in response to the post-trial motion.

CRCP 106(a)(4) —Rezoning Decision—Due Process—Spot Zoning.

            Plaintiffs Whitelaw, III and various neighbors (the neighbors) sought judicial review of the rezoning decision of defendant Denver City Council (the Council). Cedar Metropolitan LLC (Cedar) applied to rezone a 2.3-acre parcel. To build an “age-targeted” apartment complex on the site, Cedar sought to tear down a blighted church and rezone the parcel from single family home to a zone district that allowed three-story apartment buildings. The neighbors are property owners who live in the neighborhood near the parcel. They challenged the rezoning efforts, asserting it would hurt their property values, create traffic and parking problems, cause hazards to pedestrians, and degrade the character of the surrounding neighborhood. Following an eight-hour hearing, the Council granted the request to change the zoning.

            The neighbors challenged the rezoning in district court under CRCP 106(a)(4). The district court rejected all of their claims. On appeal, the neighbors asserted various claims, principally violation of their right to due process. They made five due process arguments. The Court of Appeals will affirm a rezoning decision unless the governmental entity exceeded its jurisdiction or abused its discretion, which occurs if the body misapplied the law or no competent evidence supports its decision.

            The neighbors first argued that a lobbyist for Cedar communicated before the hearing with Council member Susman, in whose district the parcel lies, through her private email account and by phone. They alleged that the failure to disclose these communications to the public before the hearing deprived them of their due process rights because they did not have notice and an opportunity to rebut the information on which the Council may have impermissibly relied in making its determination. Despite evidence of approximately 50 pages of such emails, the neighbors pointed to no evidence that they had a “substantial prejudicial impact” on the outcome of the proceedings. In fact, Susman voted against the rezoning. The neighbors did not overcome the presumption that the Council members acted with integrity, honesty, and impartiality, and they showed no prejudice from the communications.

            Second, the neighbors asserted their due process rights were violated due to the involvement of Cedar’s architect, who was also a member of the City’s Planning Board, in the application process. The Planning Board recommended that the Council approve the rezoning. The architect submitted the application to the Board, but did not attend the Planning Board meeting or vote on the rezoning and thus complied with the Denver Municipal Code. Further, the Planning Board’s recommendation is not appealable because it is not a “final decision” reviewable under CRCP 106(a)(4). Therefore, the Court of Appeals did not review this claim.

            Third, the neighbors argued that their due process rights were violated because certain Council members’ comments at the public hearing reflected “flawed quasi-judicial decision making” and showed they “relied on irrelevant factors and information outside of the hearing record” in making their decision. The neighbors failed to demonstrate a lack of competent evidence supporting the Council’s decision or that any individual member relied on factual information outside the hearing record or ignored the record in casting their vote. There was competent evidence in the record to support the Council’s decision.

            Fourth, the neighbors argued their due process rights were violated because the Council stepped outside of its neutral, quasi-judicial role and supported Cedar by improperly applying the protest petition procedure of the Denver City Charter. The protest procedure provides that if opponents gather signatures from property owners representing 20% or more of the land area within 200 feet of the perimeter of a proposed rezoning, the rezoning must pass the Council by a super-majority (10 members). Opponents gathered 17% of the perimeter zone signatures and the rezoning passed 8 to 4. The neighbors argued that the City improperly applied the protest procedure by including City-owned park land but not allowing a procedure for residents to obtain petition signatures from the City. The Court disagreed, finding that the City’s calculation of the 200-foot protest petition area was in accordance with the Denver Charter.

            Fifth, the neighbors alleged a due process violation because some Council members received “substantial” political contributions from lobbyists and were therefore biased in the rezoning vote. Evidence of this was not in the record before the Council and therefore was not reviewable by the Court.

            The neighbors also argued that the rezoning decision must be vacated because, as a matter of law, it did not comply with the City’s zoning ordinance, alleging it was not consistent with the City’s adopted plans; no specific circumstances justified the rezoning; and the rezoning fails to further the public health, safety, and general welfare. The record shows that the Council members engaged in lengthy discussions about the criteria and evidence, including testimony presented by both proponents and opponents at the hearing. The Council did not abuse its discretion in concluding that the proposed zoning was consistent with the City’s adopted plans; the rezoning resulted in uniformity of district regulations and restrictions; the rezoning furthered the public health, safety, and general welfare; circumstances justified the rezoning; and the rezoning was consistent with the description of the applicable neighborhood context and the stated purpose and intent of the proposed Zone District.

            Finally, the neighbors argued that the rezoning was impermissible spot zoning because it did not further Denver’s comprehensive plans and was therefore an abuse of discretion. The Court disagreed. Here, the rezoning was not out of character with the adjacent area and furthered the City’s adopted plans.

            The judgment was affirmed.