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Colorado Court of Appeals Opinions
January 31, 2013

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

2013 COA 11. No. 09CA2147. People v. Houser.
Patronizing a Prostituted Child—Affirmative Defense—Reasonable Belief in Age Defense—Confrontation Rights—Cross-Examination—Plea Agreement—Jury Instruction—Lesser-Included Offense.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of patronizing a prostituted child. The judgment was affirmed and the case was remanded for correction of the mittimus.

A.J., age 16, was arrested in Denver and charged with prostitution, soliciting for the purpose of prostitution, and possession of a controlled substance. A.J. told police that the night before her arrest, she had gone to defendant’s home in Douglas County, where he paid her $240 to engage in sexual acts with him. Based on A.J.’s statements, defendant was charged in Douglas County with patronizing a prostituted child.

Defendant first contended that the trial court erred by precluding him from raising the defense that he reasonably believed A.J. was at least 18 years old. However, CRS § 18-7-407 prevents a defendant from offering a reasonable belief in age defense to a charge of patronizing a prostituted child. Therefore, the court did not err in this regard.

Defendant also contended that the trial court violated his confrontation rights by precluding cross-examination of A.J. on the details of her plea agreement, her continued prostitution, and the outstanding warrant. The jury heard only that A.J. had been arrested, agreed to plead guilty, and provided information to police. The disparity between the originally charged class 3 felony (drug possession) and the class 3 misdemeanor (prostitution) to which A.J. pleaded was likely to cause an average juror to infer that she had received significant benefit from testifying. Therefore, although the court committed constitutional error in limiting cross-examination on the plea agreement, the overwhelming evidence of defendant’s guilt rendered this error harmless beyond a reasonable doubt. Further, the exclusion of evidence of the outstanding warrant against A.J. and of her continued prostitution was harmless beyond a reasonable doubt for the same reasons.

Defendant further argued that the trial court’s instruction defining “prostitution by a child” was erroneous. The definitional instruction substantially followed the statutory language, and it was not error that the instruction provided multiple ways by which an act could constitute “prostitution by a child.” Defendant’s e-mails were sufficient to support a jury finding to this effect. Therefore, the trial court’s definitional instruction did not constitute plain error.

Defendant also challenged the trial court’s failure to give his tendered jury instruction on the lesser-included offense of attempt. However, given the definition of “prostitution by a child,” the evidence would not have permitted the jury to acquit defendant of patronizing a prostituted child while convicting him of the lesser-included attempt offense. Therefore, the trial court properly rejected defendant’s attempt instruction.

2013 COA 12. No. 12CA0445. Target Corp. v. Prestige Maintenance USA, Ltd.
Damages—Contract—Choice of Law—Injuries—Preservation for Appellate Review—Standard of Review.

Defendant Prestige Maintenance USA, Ltd. (Prestige) appealed the trial court’s judgment awarding future damages to plaintiff Target Corporation (Target). The judgment was affirmed.

Prestige had contracted with Target to provide cleaning services at Target stores. The contract provided that Prestige would indemnify Target for, among other things, all injuries or damages relating to or arising out of Prestige’s performance of its services. While using a vacuum cleaner, a Prestige employee caused Johanna Cleveland, a Target employee, to fall and injure her right knee while working in a Colorado Target store. Target filed a breach of contract action against Prestige, seeking indemnification for Cleveland’s injuries and damages. The court ruled in favor of Target.

On appeal, Prestige contended that the trial court erred in awarding Target future damages in three categories: (1) future medical treatment; (2) future disability payments; and (3) future medical management costs. The parties’ cleaning contract contained a choice of law provision stating that Minnesota law shall “govern all matters arising out of or related to this Agreement, including its interpretation, construction, performance or enforcement.” Therefore, the court applied Minnesota law to determine the substantive issue of damages in this matter. Pursuant to Minnesota law, there was sufficient evidence to support the damages award for future medical treatment, future disability benefits, and future medical management, because it was more likely than not that Cleveland would incur these damages. The remaining two issues—the legal standards governing preservation for appellate review and the standard of review—were matters of judicial administration. Therefore, Colorado law was applied.

2013 COA 13. No. 12CA2482. In re the Parental Responsibilities Concerning M.D.E., and Concerning Spencer.
Grandparent Visitation—Standing.

In this parental responsibilities action, Scott Rottler (father) challenged the district court’s order allowing Bernice Spencer (great-grandmother) to intervene and seek grandparent visitation of father’s child (great-grandmother’s great-grandchild) under CRS § 19-1-117. The order was reversed.

In May 2009, the child’s mother filed a petition for allocation of parental responsibilities as to the child. Several months later, the court entered permanent orders and a parenting plan resolving the dispute between father and mother. The orders and parenting plan did not mention great-grandmother. More than six months later, great-grandmother filed a motion to intervene in the proceeding and a motion for grandparent visitation. The district court granted her motion to intervene by applying the principle of liberal construction to CRS § 19-1-117.

On appeal, father argued that the trial court erred in granting great-grandmother’s motion to intervene. CRS § 19-1-117 limits the meaning of grandparent to “a person who is the parent of a child’s father or mother.” Therefore, great-grandmother is not a grandparent within the meaning of the statute. Because she did not have standing to seek visitation, the district court’s order was vacated.

Colorado Court of Appeals Opinions

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