March 08, 2018
2018 COA 28. No. 15CA0683. People v. Robles-Sierra.
Child Pornography—Constitutional Law—Sixth Amendment—Public Trial—Distribution—Publishing—File Sharing Software—Expert Testimony—Jury Instruction.
Sheriff’s department detectives found over 600 files of child pornography—in both video recording and still image form—on various electronic devices defendant owned. In each instance, defendant had downloaded someone else’s file to his computer using ARES peer-to-peer file sharing software. Defendant downloaded the files in such a way that other users downloaded hundreds of defendant’s files. Defendant admitted that he’d downloaded and looked at the sexually exploitative material, but stated as a defense that he hadn’t knowingly violated the law because he did not know how ARES software works. A jury found defendant guilty of four counts of sexual exploitation of a child.
On appeal, defendant challenged all the convictions. He first argued that the district court violated his constitutional right to a public trial by closing the courtroom during the presentation of parts of certain exhibits. Two of the prosecution’s witnesses testified about videos and still images taken from defendant’s devices, describing them in graphic terms. Over defense counsel’s objection, the prosecutor displayed the videos and still images using a screen that could be seen by the witnesses and the jurors, but not by anyone in the courtroom gallery. That portion of a trial when evidence is presented should be open to the public, but that right does not extend to the viewing of all exhibits by the public as those exhibits are introduced or discussed. The right concerns the public’s presence during or access to the trial; where no one is excluded from the courtroom, the right is not implicated. Here, the district court didn’t exclude any member of the public during the presentation of the evidence. Because the court didn’t close the courtroom, there wasn’t any violation of defendant’s right to a public trial.
Defendant also challenged all convictions on the basis that the district court erred by allowing the prosecution’s experts to testify to ultimate legal conclusions that were the jury’s sole prerogative to decide. Even assuming all of the challenged testimony was improper, any error fails the plain error test.
Defendant further challenged his two convictions for publishing, offering, or distributing sexually exploitative material because the prosecution’s theories of publishing and distributing were “legally insufficient.” He alleged that the mere downloading of sexually exploitative material to a share-capable file isn’t publication or distribution, and because we don’t know if the jury convicted on either basis or some proper basis, the verdicts on these counts can’t stand. The Court of Appeals analyzed the meaning of “publishing” and “distribution” and concluded that defendant’s downloading of sexually exploitative material to his computer using peer-to-peer file sharing software, and his saving of that material in sharable files or folders accessible by others using the same software, constituted both publishing and distributing the material within the meaning of the statute.
Finally, defendant challenged his two convictions for publishing, offering, or distributing sexually exploitative material because the jury instruction defining “offer” had the effect of directing a verdict against him on these charges. Here, the instruction was an accurate statement of the law and described a factual circumstance that would constitute an offer. The fact that the jury could have found that factual evidence existed from the evidence presented doesn’t mean the instruction directed a verdict.
The judgment was affirmed.
2018 COA 29. No. 16CA1369. Taylor v. HCA-HealthONE LLC.
Medical Malpractice—Service—CRCP 4(m)—CRCP 60(b)—Excusable Neglect.
Plaintiff filed a medical malpractice action but failed to serve defendants within the CRCP 4(m) deadline. The district court dismissed the action without prejudice, and because the statute of limitations had run, plaintiff could not refile the lawsuit. She moved to set aside the judgment under CRCP 60(b) based on excusable neglect. Without holding a hearing, the district court concluded that counsel’s docketing errors did not amount to excusable neglect and denied the motion.
On appeal, plaintiff first argued that the district court’s dismissal order was invalid under CRCP 4(m) because the delay reduction order was premature. Although the rule requires notice before dismissal, it does not require notice after expiration of the service deadline. Thus, plaintiff was not entitled to additional notice beyond the delay reduction order and the district court’s order of dismissal was valid.
Plaintiff also argued that the court erred in failing to apply the three-factor test in Craig v. Rider, 651 P.2d 397 (Colo. 1982), in evaluating her Rule 60(b) motion to set aside the order of dismissal. That test requires the district court to consider not just whether the neglect that resulted in the order of dismissal was excusable, but also whether the plaintiff has alleged a meritorious claim and whether relief from the order would be consistent with equitable considerations. The district court abused its discretion in failing to analyze the Rule 60(b) motion under the three-part Craig test.
The order was vacated and the case was remanded to the district court to apply the Craig test.
2018 COA 30. No. 16CA1524. Abu-Nantambu-El v. State.
Sexual Assault—Kidnapping—Felony—Misdemeanor—Exoneration Statute—Wrongful Conviction—Compensation.
Defendant was convicted of first degree sexual assault (a class 3 felony), second degree kidnapping (a class 2 felony), and third-degree assault (a class 1 misdemeanor) in the same case, all arising out of an incident in which the victim claimed that defendant had raped her. Thereafter, the felony convictions were vacated based on defendant’s successful Crim. P. 35(c) motion claiming ineffective assistance of counsel. The district court denied the Crim. P. 35(c) motion as to the misdemeanor conviction. Based on the order vacating his felony convictions, defendant filed a petition for compensation pursuant to the Exoneration Statute. The State moved to dismiss and the district court granted the State’s motion.
On appeal, defendant contended that the district court erred when it concluded that his misdemeanor conviction precluded him from filing a petition for compensation. He argued that because the Exoneration Statute addresses only wrongly convicted felons, the legislature could not have meant to include misdemeanor convictions within its parameters. The Court of Appeals concluded that the General Assembly intended to require that all convictions in a case be vacated or reversed for a petition for compensation to qualify for the district court’s consideration.
The judgment was affirmed.
2018 COA 31. No. 16CA1869. In re Marriage of Yates and Humphrey.
Dissolution of Marriage—Receiver—Colorado Medical Marijuana Code—Retail Marijuana Code. Read More..
Petitioner-Appellee Yates filed a petition to dissolve her marriage to respondent-appellee Humphrey. She requested the appointment of a receiver over marital property, which included marijuana businesses. A number of these marijuana businesses were licensed medical and recreational marijuana entities. The court appointed Sterling Consulting Corporation, including its principal Richard Block, as the receiver. When the court entered the receivership order, neither Block nor his employees held the licenses required by the Colorado Medical Marijuana Code and the Colorado Retail Marijuana Code to own, operate, manage, control, or work in a licensed marijuana business.
After learning of the receivership order, the Colorado Department of Revenue, officially acting as the State Licensing Authority (SLA), moved to intervene and modify the receivership order by removing the receiver, at least until Block and his employees obtained the requisite licenses. The court granted the motion to intervene, but denied the motion to modify.
On appeal, SLA challenged the court’s authority to appoint receivers who are not licensed to operate marijuana businesses. A district court may only appoint a receiver for a marijuana business who complies with Colorado’s marijuana licensing laws.
The order appointing the receiver was reversed and the case was remanded with directions.
2018 COA 32. No. 17CA0019. Meardon v. Freedom Life Insurance Co. of America.
Health Insurance Policy—Mandatory Arbitration—Conformity Clause—Federal Arbitration Act—CRS § 10-3-1116(3)—McCarran-Ferguson Act—Federal Supremacy—Preemption—Reverse Preemption.
Defendants Freedom Life Insurance Company of America and Robert J. Pavese (collectively, Freedom Life) denied health insurance benefits claimed by plaintiff Meardon under a health insurance policy (policy) issued to her by Freedom Life. The policy contained a mandatory arbitration clause to resolve disputes. The policy also contained a “conformity clause” stating that a policy provision that conflicts with the laws of the policyholder’s state is amended to conform to the minimum requirements of such laws. Freedom Life moved to compel arbitration and to dismiss the case, relying on the mandatory arbitration clause. The trial court denied the motion, relying on CRS § 10-3-1116(3), which allows denied claims to be contested in court before a jury.
On appeal, Freedom Life contended that (1) CRS § 10-3-1116(3) cannot be applied because it is preempted by the Federal Arbitration Act (FAA); (2) even if the FAA does not preempt the statute, the arbitration clause remains in effect for those claims that fall outside the statute; and (3) Meardon must arbitrate her claims to “exhaust her administrative remedies” under CRS § 10-3-1116(3). The plain words of the statute conflict with the mandatory arbitration clause. This conflict triggered the policy’s conformity clause, the application of which invalidated the arbitration clause for those claims covered by CRS § 10-3-1116(3). Further, the FAA does not preempt CRS § 10-3-1116(3) because the McCarran-Ferguson Act preempts the FAA under the doctrine of reverse-preemption.
Freedom Life alternatively contended that only those claims covered by CRS § 10-3-116(3) are exempted from the arbitration clause and the remaining claims must be arbitrated. Because the parties did not seek a ruling from the trial court on this specific issue, the Court of Appeals was unable to determine which claims are subject to the arbitration clause.
The court’s order denying arbitration of those claims covered by CRS § 10-3-1116(3) was affirmed. The case was remanded for the trial court to determine which claims are covered by CRS § 10-3- 1116(3) and which are subject to the policy’s arbitration clause.
2018 COA 34. No. 17CA0262. In re Marriage of Boettcher.
Post-Dissolution—Modification of Child Support—Child Support Guidelines—Presumptive Amount—Discretion—Retroactive—Attorney Fees.
The parties’ dissolution of marriage agreement that no child support would be owed by either of them was incorporated into the decree. Mother subsequently moved to modify child support, alleging changed income resulting in more than a 10% change in the amount of support that would be due. The district court ordered father to pay mother child support of $3,000 per month as of the date she moved to modify, as well as 70% of mother’s attorney fees.
On appeal, father argued that the district court erred by determining there was no rebuttable presumptive child support obligation when the parents’ combined incomes exceed the highest level of the statutory income schedule, $30,000. He argued that for combined incomes above this amount, the child support obligation at the highest level is the presumptive amount, such that any greater award constitutes a guidelines deviation. The statute’s plain language does not support this argument, but rather states that, in this circumstance, the judge may use discretion to determine child support, but that the obligation must not be less than it would be based on the highest level. Further, deviation does not apply when the court awards more than the amount of support from the schedule’s highest level. Here, father alone earns $92,356 per month and the parties together earn $105,699 per month. The district court was correct in finding that there was no presumptive child support amount under these circumstances, that there was a minimum presumptive amount under the guidelines, and that it could use its discretion to determine a higher amount. Further, the court made sufficient findings concerning the relevant statutory factors and properly exercised its discretion.
Father also argued that the court erred by retroactively modifying the child support back to the date that mother moved to modify. A child support modification should be effective as of the filing date of the motion unless the court finds this “would cause undue hardship or substantial injustice.” Father did not argue that applying the statute would cause undue hardship or substantial injustice, and the district court did not abuse its discretion.
Lastly, father argued it was an abuse of discretion for the court to award mother a portion of her attorney fees without making sufficient findings. The district court is afforded great latitude in apportioning costs and fees appropriate to the circumstances in a given case. The findings were amply supported by the record.
Mother contended the appeal was frivolous and requested appellate attorney fees. The Court of Appeals denied her request.
The order was affirmed.
2018 COA 35. No. 17CA0292. White v. Estate of Soto-Lerma.
Probate—Prejudgment Interest —Costs—Insurance Policy—Liability Limits—Offer of Settlement.
Plaintiff’s claim arose from a car accident that occurred about a year before decedent died from unrelated causes. More than two years after decedent’s death, plaintiff filed suit, asserting that decedent had been negligent. Decedent’s estate consisted solely of his automobile insurance policy, which had a policy limit of $50,000 per person injured. Defendant rejected plaintiff’s pretrial statutory offer of settlement for the insurance policy limit of $50,000. After trial, a jury awarded plaintiff $100,000 in damages. The court reduced the award to $50,000, but ultimately entered judgment for $79,218, which included $11,600 in costs and $17,618 in prejudgment interest.
On appeal, defendant contended that the trial court erred in awarding plaintiff prejudgment interest. CRS § 15-12-803(1)(a) bars all claims against a decedent’s estate that arose before the decedent’s death and were not presented within the statutory timeframe. It was undisputed that plaintiff’s claim was not timely presented. CRS § 15-12-803(3)(b) states that nothing prevents a proceeding to establish decedent’s liability to the limits of his insurance protection. This statute conflicts with CRS § 13-21-101(1), which requires a court to award prejudgment interest. The Court of Appeals concluded that prejudgment interest is part of the underlying liability claim against an estate and is therefore subject to the insurance policy limits and the CRS § 15-12-803(3)(b) bar on claims above that limit. CRS § 15-12-803 bars an award of prejudgment interest above defendant’s $50,000 policy limit.
Plaintiff cross-appealed the judgment, arguing that the court should have entered judgment for the jury’s $100,000 damages award plus corresponding costs and prejudgment interest. Plaintiff contended that regardless of whether she could collect the jury award from defendant’s insurance company, judgment in excess of the policy limits was proper to leave open the possibility that plaintiff could be assigned the right to bring a bad faith claim against defendant’s insurer. The statutory language is clear that any untimely liability claim in excess of policy limits is barred.
Defendant also argued it was error to award costs in the final judgment, because such an award ignores the bar on claims in excess of insurance policy limits. Plaintiff argued for costs only under CRS § 13-17-202, which provides that a plaintiff must be awarded costs only if the final judgment exceeds the settlement offer. Given that the final judgment did not and could not exceed the policy limit, which was also the amount of the settlement offer, plaintiff was not entitled to costs under CRS § 13-17-202 and the trial court erred in entering a costs judgment above the policy limit.
The judgment was reversed and the case was remanded for entry of judgment for plaintiff in the amount of $50,000.
2018 COA 36. No. 18CA0398. People v. Ray.
Death Penalty—Postconviction—Freedom of Religion—First Amendment—Refusal to Testify—Direct Contempt—Rational Basis—Strict Scrutiny. Read More..
Ray was sentenced to death in a first degree murder case. Ray’s attorneys hired Lindecrantz as an investigator to assist them in the penalty phase of the case.
The trial court began the required postconviction review of Ray’s conviction and sentence. Ray sought postconviction relief, in part alleging ineffective assistance of counsel. Part of that claim challenges Lindecrantz’s investigation. The prosecution subpoenaed Lindecrantz to testify. She moved to quash, arguing that as a devout Mennonite she is opposed to the death penalty on religious grounds and she feared that in truthfully answering the prosecutor’s questions, she would provide information from which the prosecutor could argue that Ray received effective assistance, which could lead to upholding the conviction and death sentence.
The trial court denied the motion to quash, finding that under either a rational basis or strict scrutiny analysis, Lindecrantz’s sincerely held religious beliefs did not justify her refusal to answer questions under oath in response to the subpoena. She took the stand and refused to testify. The court ultimately found her in direct contempt and remanded her to the sheriff’s custody “until she elects to answer the questions” as a remedial sanction. She has been in jail since February 26 of this year.
On appeal, Lindecrantz argued that being called as a witness for the prosecution makes her a “tool” or “weapon” of the prosecutor’s efforts to execute Ray. She would answer the trial court’s questions on direct examination and the prosecutor’s and defense counsel’s questions on cross-examination, but does not want to answer the prosecutor’s questions on direct examination. The Court of Appeals weighed the substantial burden on Lindecrantz’s religious beliefs against the state’s compelling interests in ascertaining the truth and rendering a just judgment in accordance with the law and concluded that Lindecrantz’s position fails under both a rational basis and strict scrutiny analysis. Lastly, holding Lindecrantz in contempt is narrowly tailored to advance the government’s compelling interests.
The order was affirmed.