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

After an investigation that entailed wiretapping defendant’s telephones, defendant was charged 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 in the custody of the Department of Corrections.

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. 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 need not be given. A defendant can participate in a number of crimes or events to accomplish a single conspiracy. 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. Further, 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 a limiting instruction to preclude the jury from considering witnesses’ guilty pleas or desires to plead guilty as evidence of his guilt. Here, 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.

Lastly, defendant contended that his rights to a trial by a jury and to due process of law were violated when the judge, instead of a jury, found that he had been convicted of three prior felonies. The fact of a prior conviction is expressly excepted from the jury trial requirement for aggravated sentencing. Therefore, there was no error.

The judgment was affirmed.

Child Abuse Resulting in Death—Sixth Amendment—Right to Counsel—Public Defender—Indigent—Ancillary Services—CJD 04-04—Statute of Limitations—False Reporting—Conspiracy—Out-of-Court Statements—Hearsay—Expert Witnesses—Credibility—Consecutive Sentences.

Defendant was charged with multiple crimes related to child abuse. After he was indicted, he appeared before the court with attorney Lane, who had represented defendant for about two years as “retained counsel.” Lane stated that defendant was indigent, and although Lane was willing to continue to represent defendant as “retained counsel,” defendant could not pay for ancillary services, such as investigators or experts. Lane stated that the Constitution required the court to provide ancillary services to indigent defendants at state expense. Relying on a U.S. Supreme Court case, United States v. Gonzalez-Lopez, Lane contended that the court should allow him to continue to represent defendant and also agree to pay state funds for ancillary services. Lane asserted that Gonzalez-Lopez is in conflict with the Colorado Supreme Court case People v. Cardenas, under which defendant was being forced to choose between two constitutional rights: the right to counsel of choice and the right to receive ancillary services at state expense. The trial court declined to overrule Cardenas and appointed public defenders to represent defendant, and Lane’s connection with the case ended. Defendant was convicted of multiple charges, including child abuse resulting in death, child abuse, assault, false reporting, concealing a child’s death, contributing to the delinquency of a minor, and conspiracy. The trial court sentenced defendant to 12 years in jail to be followed by 102 years in prison.

On appeal, defendant asserted that the trial court denied his Sixth Amendment right to counsel of his choice when it did not authorize Lane to receive state-funded ancillary services for defendant’s representation. Indigent defendants do not have a constitutional right to use state funds to pay for attorneys or for ancillary services of their choosing. Defendant only had a right to state-funded ancillary services if the public defender or court-appointed alternate defense counsel represented him. Therefore, the trial court did not wrongfully deny defendant’s constitutional right to counsel of choice when it appointed public defenders to represent him. However, Chief Justice Directive 04-04 (CJD 04-04), Appointment of State-Funded Counsel in Criminal Cases and for Contempt of Court, would have allowed the trial court to pay for support services for a defendant who is represented by private counsel. The trial court did not consider the Directive when it decided to appoint the public defenders, and defendant’s private counsel did not ask the court to do so. Any error in not considering CJD 04-04 was harmless in this case.

Defendant also contended that the trial court erred when it denied his motion for judgment of acquittal on the false reporting and conspiracy to commit false reporting counts because they were barred by the applicable statute of limitations. The record contains sufficient evidence to support these convictions based on conduct that had occurred within 18 months of when the grand jury indicted defendant on those charges. Therefore, these convictions were not barred by the statute of limitations.

Defendant further contended that the trial court erroneously admitted the out-of-court statements of defendant’s girlfriend and children who lived with them. As to the girlfriend’s statements, some were admissible as statements against interest; others were admissible as co-conspirator statements; and though the Court of Appeals could not determine the trustworthiness of one statement, it concluded its admission was harmless error. The children’s statements were variously admissible as non-hearsay, or under the child hearsay statute, or under the residual hearsay exception.

Defendant additionally contended that two expert witnesses improperly vouched for the children’s credibility. However, the experts did not vouch for the children’s veracity, either directly or indirectly; rather, their testimony concerned the typical demeanor and traits of abused children.

Defendant also asserted that the trial court erred when it admitted certain financial evidence, contending that it was only relevant to show that defendant and his girlfriend were “sponges on society.” However, this evidence was relevant and its relevancy was not outweighed by the danger of unfair prejudice.

Defendant also argued that the court admitted evidence he described as cumulative. The Court concluded that the trial court did not abuse its discretion.

Finally, the trial court did not abuse its discretions when it imposed consecutive sentences on the misdemeanor child abuse counts.

The judgment was affirmed.

Crim. P. 35(c)—Notice—Public Defender.

Higgins pleaded guilty to felony menacing, and the court sentenced him to 18 months in prison. Higgins thereafter filed a Crim. P. 35(c) motion and requested counsel to represent him on his motion. The district court sent a copy of Higgins’s motion to the prosecution and, after receiving the prosecution’s response, denied the motion without a hearing and without hearing from the public defender’s office.

On appeal, Higgins contended that the district court erred by departing from the procedure outlined in Crim. P. 35(c)(3)(IV) and (V) and that the court’s error required reversal. The court has the authority to summarily deny a Crim. P. 35(c) motion without a hearing if the motion, files, and the record clearly show the defendant is not entitled to relief. However, if the court does not summarily deny the motion, the court is required to send a copy of the motion to the prosecutor and, if defendant has requested counsel, to the public defender’s office, who are given an opportunity to respond to the motion. Here, the court failed to send a copy of the motion to the public defender’s office. Thus, the court erred by departing from the Crim. P. 35(c)(3)(IV) and (V) mandatory procedure. The error was not harmless because it affected the fairness of the proceedings.

The order was reversed and the case was remanded.

Harassment—Text Messages—Evidence—Domestic Violence—Sentencing—Sixth Amendment.

The victim and Heisler dated for three years. After they broke up, the victim told Heisler that she no longer wished to communicate with him. Heisler ignored the victim’s request and sent her numerous text messages and letters, and eventually traveled from Florida, where he lived, to Colorado to talk to the victim in person—uninvited and unannounced. When the victim saw Heisler outside of her home, she called the police. Heisler was ultimately found guilty of harassment and sentenced to jail time and probation, and because the conduct underlying his conviction included an act of domestic violence, he was ordered to complete domestic violence treatment.

On appeal, Heisler contended that the trial court erred by admitting into evidence the text messages he sent to the victim because they were not properly authenticated under CRE 901(a). Here, the prosecution introduced printouts of the text messages, and the victim testified that they accurately reflected the texts she received, she recognized the number as being Heisler’s and had used that number to communicate with him, and she recognized the content of the text messages as being from Heisler. In addition, the content of the text messages included corroborative evidence that they came from Heisler. Accordingly, the text messages were properly authenticated and it was not error to admit them into evidence.

Heisler also contended that the domestic violence sentencing statute, CRS § 18-6-801(1)(a), is facially violative of his constitutional right to a jury trial under the Sixth Amendment to the U.S. Constitution. He argued that the statute improperly authorizes the trial court to make a factual determination that the underlying crime of conviction included an act of domestic violence and unconstitutionally imposes a mandatory penalty (domestic violence treatment) above the minimum of the presumptive sentencing range (here, a $50 fine). He further contended that the trial court should have instructed the jury to determine whether his offense included an act of domestic violence and erred in denying his request for that instruction. CRS § 18-6-801(1) allows a trial court to make a factual finding that the defendant’s underlying criminal conviction included an act of domestic violence. Court-ordered domestic violence treatment is not a form of punishment, and the statute does not mandate a penalty. The court did not err in denying Heisler’s request for a jury instruction. No Sixth Amendment violation occurred.

The judgment and sentence were affirmed. 

Forum Non Conveniens—Judicial Inefficiency—Double Recovery.

Cox, a Colorado resident, stayed at a hotel in California owned by defendant Sage Hospitality Resources, LLC (Sage). Sage’s members are Colorado residents, and its principal place of business is in Denver. WS HDM, LLC (WS HDM), incorporated in Delaware and licensed to do business in California, owns and operates the hotel. Cox fell on the hotel property and fractured his femur. Cox sued Sage in Denver District Court and WS HDM in California state court. Sage’s motion to dismiss the action in Denver District Court under the doctrine of forum non conveniens was granted.

On appeal, Cox argued that the Denver District Court erred in granting Sage’s motion to dismiss because there were no unusual circumstances sufficient to overcome the strong presumption in favor of Colorado courts hearing cases brought by Colorado residents. Colorado law is clear that the doctrine of forum non conveniens has “only the most limited application in Colorado courts.” Thus, unless there are “most unusual circumstances,” a Colorado resident’s choice of a Colorado forum will not be disturbed. Cox is a Colorado resident and claims to prefer to sue Sage in Colorado. Even though Cox filed a related suit in California state court, the existence of that lawsuit does not trump Cox’s choice of forum in Colorado. Further, the California state court suit is against a different defendant, and the record does not indicate that the joinder of Sage in Cox’s California state court suit is mandatory. Nor does the risk of double recovery overcome the presumption in favor of Colorado courts hearing suits filed by Colorado resident plaintiffs. The Denver District Court erred in dismissing Cox’s action.

The judgment was reversed and the case was remanded. 

Dependency and Neglect—Allocation of Parental Responsibilities—Subject Matter Jurisdiction—Uniform Child-Custody Jurisdiction and Enforcement Act.

The Mesa County Department of Human Services (Department) assumed temporary custody of 8-year-old M.S. and initiated a dependency and neglect proceeding. Mother lived in Texas.

The court, by stipulation, adjudicated M.S. dependent or neglected. The Department then moved for a permanent allocation of parental responsibilities (APR) for M.S. to mother. The magistrate determined it was in M.S.’s best interests to be placed with mother and issued an order granting permanent APR to mother.

Father appealed, and a Court of Appeals’ division dismissed for failure to obtain district court review. Father then filed a petition for district court review, which was denied, and he appealed again.

Initially, the Court of Appeals addressed the Department’s argument that the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) does not apply to dependency and neglect proceedings once a child has been adjudicated dependent and neglected. The UCCJEA does not exempt any stage of a dependency and neglect proceeding from its purview.

The Court, sua sponte, concluded that the magistrate lacked jurisdiction under the UCCJEA to issue the permanent APR order. Under the UCCJEA, the court that makes an initial custody determination generally retains exclusive, continuing jurisdiction. As a result, a Colorado court, absent temporary emergency jurisdiction, may only modify a custody order issued by an out-of-state court under limited circumstances. Here, a California court had issued a custody order before the initiation of the dependency and neglect proceeding. The magistrate did not confer with the California court that issued the custody order or make a determination as to whether the California court had lost exclusive, continuing jurisdiction. Consequently, the magistrate failed to acquire jurisdiction under the UCCJEA before issuing the APR order that effectively modified the California custody order.

The judgment was vacated and the matter was remanded to the district court to direct the magistrate to determine whether it has jurisdiction to issue an APR order that modifies the California custody order.

Termination of Parental Rights—Indian Child Welfare Act of 1978—Continuing Inquiries.

In 2013, the Chaffee County Department of Social Services (Department) initiated a dependency and neglect proceeding involving Tr.D. Respondents denied the child was a member or eligible for membership in an Indian tribe, and the Department represented it had determined the child was not an Indian child. The petition was later withdrawn and the case closed.

In 2015, the Department initiated another dependency and neglect proceeding concerning Tr.D. and 6-month-old A.D. after mother and father were arrested on drug charges. The children were placed in foster care and adjudicated dependent and neglected. Treatment plans were developed for both parents, but neither could overcome their addictions. The Department ultimately filed a petition to terminate parental rights and stated that the children were not Indian children. No evidence concerning the Indian Child Welfare Act (ICWA) was elicited at the termination hearing. The trial court terminated parental rights and found the provisions of the ICWA did not apply.          

On appeal, mother argued that the record failed to support the court’s ICWA finding because no questions were asked about possible Indian heritage during the proceedings and therefore the Department didn’t meet its “continuing inquiry” duty under the ICWA. The Department argued that the ICWA issue was resolved in the prior case and the trial court satisfied the ICWA requirements in this case because it took judicial notice of its ICWA finding in the previous case. The Department reasoned that because A.D. is a full sibling of Tr.D., the court’s previous finding as to Tr.D. must also apply to her. The ICWA required the Department to conduct new inquiries to determine whether the children were Indian children. Because there was no evidence in the record of such inquiries, further proceedings were required.

Because the ICWA inquiry may result in the court determining that the children are not Indian children, the Court of Appeals addressed the other issues raised on appeal. Mother argued that the grounds for terminating her parental rights were not established by clear and convincing evidence. Based on the record before it, the Court disagreed. Father argued that the record did not support the finding that reasonable efforts were made to avoid the removal of the children from their home and to promote reunification of the family. Specifically, father argued that a dispute over venue delayed his ability to participate in a drug program, averring that reasonable efforts required not just providing services, but providing services “at the right time.” The Court determined that father waived his right to raise this issue when he expressly agreed to hold the motion to change venue in abeyance and therefore failed to seek a ruling from the court.

The judgment was reversed and the case was remanded.