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Colorado Court of Appeals Opinions
November 8, 2012

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.

2012 COA 191. No. 10CA0035. People v. Ramos.
Bias—Third-Degree Assault—Lay Witness—Expert Testimony—DNA Sample—Crim.P. 41.1(c) and 16(II)(a)(1).

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of committing a bias-motivated crime and third-degree assault. The judgment of conviction was reversed and the case was remanded to the trial court.

While riding in the front passenger seat of a car driven by his girlfriend, defendant turned to the back seat, where victim R.L. was riding, and made bias-related comments to her. Defendant then proceeded to assault R.L., punching her several times in the face and lower neck.

On appeal, defendant asserted that the trial court abused its discretion in allowing a police detective to testify as a lay witness regarding blood spatter and transfer evidence that defendant left on R.L.’s clothing. When an officer’s opinions require the application of, or reliance on, specialized skills or training, the officer must be qualified as an expert before offering such testimony. Here, although the detective had not been qualified as an expert, (1) the detective testified about his extensive experience investigating cases involving blood; (2) the detective used the technical terms “spatter” and “transfer” and defined them for the jury; (3) the prosecutor advised the court that the detective was testifying “as to his training and experience,” and used that phrase four times in questioning the detective; and (4) the detective’s testimony was not based on his personal knowledge or investigation of this case. The trial court abused its discretion by allowing the detective to testify as a lay witness regarding blood spatter and blood transfer, and this error was not harmless. Therefore, the judgment was reversed and the case was remanded for a new trial.

Defendant also contended that the trial court erred in compelling him to provide a DNA sample, because the People did not provide an affidavit setting forth the grounds to support an order to collect evidence pursuant to Crim.P. 41.1(c). Based on the plain language of Crim.P. 16(II)(a)(1), the trial court did not need an affidavit or showing of special circumstances to order defendant to provide non-testimonial evidence. Therefore, the trial court did not err in this regard.

2012 COA 192. No. 11CA0019. People v. Rogers.
Hearsay—Constitutional Right of Confrontation—Waiver.

Defendant appealed his jury conviction for possession of a weapon by a prior offender. The judgment was affirmed.

A man picked up defendant at a local motel. A police officer pulled over the driver for failing to use his signal device when making a turn. The officers on scene discovered defendant had three active warrants and placed him under arrest. Relying on the driver’s statements that defendant threw a gun in the back seat, the People charged defendant with possession of a weapon by a prior offender.

On appeal, defendant contended that his conviction should be reversed because the trial court’s admission of testimonial hearsay statements by the driver, who did not appear at trial, violated his constitutional right of confrontation. Defendant’s counsel introduced the driver’s hearsay statement during the cross-examination of the arresting officer to elicit evidence that the driver knew of the gun and had tried to conceal it. This opened the door to the prosecution’s redirect examination and the admission of statements implicating defendant. Therefore, because defendant opened the door by questioning the officer about the information he received from the driver, defendant waived his right to confrontation.

2012 COA 193. No. 11CA0034. People v. Pena-Rodriguez.
Jury—Racial Bias—Deliberations—Voir Dire—Misrepresentation—CRE 606(b)—Unconstitutional as Applied.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of unlawful sexual contact and harassment. The judgment was affirmed.

Defendant contended that the trial court abused its discretion by not properly addressing allegations of Juror 11’s racial bias and denying defendant’s motion for a new trial. After the jury returned its verdict and was dismissed, two jurors told defense counsel that a juror—later identified as Juror 11—had made racially biased statements during deliberations. Those two jurors completed affidavits describing the statements of racial bias, which were shared with the court. However, to obtain a new trial based on juror misrepresentation, counsel must have asked specific questions about the subject of the misrepresentation during voir dire, which defendant failed to do in this case. Juror 11 inadvertently misrepresented his law enforcement background during voir dire; however, his employment in law enforcement ended more than four decades before trial, and defendant failed to prove this misrepresentation resulted in actual bias. Therefore, the trial court did not abuse its discretion in denying defendant’s motion for a new trial.

Defendant also contended that, because the statements of bias attributed to Juror 11 in the juror affidavits showed deliberations were corrupted by extraneous prejudicial information or an outside influence, he is entitled to a new trial. CRE 606(b) broadly prevents attacks on verdicts using information from jury deliberations. Because the statements at issue illustrate Juror 11’s beliefs and opinions and not any outside influence, the juror affidavits describing statements of racial bias made during deliberations do not fall under the outside influence exception to 606(b). Thus, because the juror affidavits were inadmissible, the record contains no admissible evidence of Juror 11’s bias. Furthermore, because defendant failed to conduct specific voir dire on racial bias, his challenge as to whether CRE 606(b) was unconstitutional as applied failed.

2012 COA 194. No. 11CA0750. Van Gundy v. Van Gundy.
Beneficiary—Trustee—Breach of Contract—Irrevocable Trust—Breach of Fiduciary Duty—Prudent Investor Rule—Discretion.

Defendant Quinton Van Gundy (trustee) appealed a portion of the judgment entered after a bench trial in favor of plaintiff Eldon Van Gundy (beneficiary) on beneficiary’s breach of contract claim, as well as the court’s award of attorney fees to beneficiary. The judgment was affirmed in part and reversed in part, and the case was remanded.

In 2004, beneficiary created an irrevocable trust to be managed by trustee, his son, funding it with real estate and shares of stock in a family business. Beneficiary later filed a complaint against trustee, asserting claims for breach of fiduciary duty, breach of contract, breach of duty to provide a complete accounting, and to quiet title. Following a bench trial, the district court found that trustee had breached his contractual duty to beneficiary by purchasing stocks on margin, which, “under the circumstances,” violated the prudent investor rule. In addition, the court held that trustee was required to diversify trust investments, but had failed sufficiently to do so. The court awarded beneficiary $399,819.24 in damages, plus attorney fees, on his breach of contract claim.

On appeal, trustee contended that the district court erred in applying the prudent investor rule and consequently ruling that he had breached the trust agreement by purchasing stock on margin and failing to sufficiently diversify. If a trustee is empowered to exercise his or her discretion under the terms of the trust in a manner that might otherwise be inconsistent with the prudent investor rule, the trustee’s performance under that power does not give rise to a claim for breach of duty. Here, the trust agreement expressly granted trustee the discretion and power to invest in stocks, “whether or not . . . of the character permissible for investments by fiduciaries under any applicable law, and without regard to the effect [the investment] may have upon the diversity of the investments.” Therefore, the district court erred by deeming trustee’s purchases on margin and failure to diversify investment as breaches of his duty under the trust agreement. The court’s award of attorney fees was reversed and the case was remanded for the court to determine the proper amount of fees to which beneficiary was entitled.

2012 COA 195. No. 11CA1448. People in Interest of A.R., and Concerning F.N.
Dependency and Neglect—Parental Rights—Termination—Indian Child Welfare Act—Active Efforts.

In this dependency and neglect proceeding, mother appealed from the judgment terminating her parent–child legal relationship with A.R. The Department of Human Services (Department) joined mother’s appeal of the termination and also challenged that part of the judgment addressing the Department’s guardianship. The judgment terminating mother’s parental rights was affirmed, the part of the judgment addressing guardianship was reversed, and the case was remanded.

Because A.R. is an “Indian child” as defined in 25 USC § 1903(4), these proceedings were subject to the Indian Child Welfare Act (ICWA), 25 USC §§ 1901 to 1963. Mother contended that the court erred in terminating her parental rights. She asserted that the Department did not meet the ICWA’s “active efforts” requirement, and there were viable, less drastic alternatives to termination, including A.R.’s placement with A.W. and C.W. The ICWA’s “active efforts” standard requires more effort than the “reasonable effort” standard in non-ICWA cases. Here, despite the court’s use of the term “best efforts,” the record supports the court’s determination that the Department’s actions met the requisite “active efforts” standard under the ICWA with regard to mother, A.W. and C.W. The trial court found, with record support, that although mother substantially complied with her treatment plan, it was unsuccessful in rendering her a fit parent and that her conduct or condition was not likely to change within a reasonable time. It also found that A.R. needs lifelong care or intensive services for her special needs, and mother was unable to provide those services. Additionally, placement with A.W., and C.W. without terminating mother’s parental rights was not a less drastic alternative; A.R. needed permanency, so it was not in her best interests.

The Department contended that, even if the court’s termination of mother’s parental rights was proper, the court erroneously deviated from the ICWA’s placement preferences when, in granting the Department guardianship, it denied the Department permission to place A.R. with A.W. and C.W. for purposes of adoption. The ICWA presumes that the child’s best interests are served by placement with an extended family member who also has Indian heritage. Here, the record does not support the trial court’s finding that there was good cause to deviate from the ICWA’s placement preferences. Therefore, the court erred in deviating from the ICWA’s placement preferences. The trial court’s judgment was reversed in this regard and the case was remanded with directions for the court to allow the Department to arrange a home visit with A.W. and C.W., and to consider an adoption or preadoptive placement of A.R. consistent with the ICWA placement preferences, including possible placement with A.W. and C.W. or her foster parents.

2012 COA 196. No. 11CA1829. Health Grades, Inc. v. Boyer.
Abuse of Process—Summary Judgment—Directed Verdict—Judgment Notwithstanding the Verdict—Sham Litigation.

Plaintiff Health Grades, Inc. appealed the trial court’s judgment following a jury verdict in favor of defendants Christopher Boyer and Patrick Singson on their abuse of process counterclaim. The judgment was reversed and the case was remanded with directions.

Health Grades is a Web-based information resource that provides health-care information and provider ratings online. Defendants are former Health Grades employees who resigned over a dispute as to whether websites they created improperly competed with Health Grades’ business.

Health Grades contended that the trial court erred by denying its motions for directed verdict and judgment notwithstanding the verdict as to defendants’ abuse of process counterclaim. Health Grades argued that, once its claims survived motions for summary judgment and directed verdict, they could not, as a matter of law, constitute “sham litigation.” However, there is no bright-line rule—and the Court of Appeals declined to adopt one—that states that any lawsuit that survives a motion for summary judgment or directed verdict cannot be the basis for an abuse of process claim. Thus, defendants’ abuse of process counterclaim was not automatically barred, because Health Grades’ claims survived motions for summary judgment and directed verdict. Nonetheless, the constitutional aspect of Health Grades’ defense to the abuse of process claims should have been decided by the court and should not have been submitted to the jury. Because the court failed to apply the heightened standard to determine whether the claims asserted by Health Grades were devoid of reasonable factual support or had no cognizable basis in law, the judgment was reversed and the case was remanded to the trial court to make this determination.

2012 COA 197. No. 11CA2132. Fitfield v. Pitkin County Board of Commissioners.
Nonresidential Classification for Tax Purposes—CRS § 39-1-102(14.4)(a).

Petitioners James and Betsy Fifield (taxpayers) appealed from an order of the Board of Assessment Appeals (BAA) denying their petition challenging the nonresidential classification of their property for the 2008 and 2009 tax years. The order was vacated and the case was remanded for further proceedings.

In 2007, taxpayers divided their Pitkin County property into two contiguous residential lots, both of which they own. Lot 1 contains their home. Lot 2 has no buildings or structures, but has a paved road and utility line. The road is the only access to taxpayers’ home and also serves a neighboring subdivision.

The assessor classified Lot 2 as vacant land for tax years 2008 and 2009. Taxpayers petitioned the BAA to reclassify Lot 2 as residential land for those tax years. The BAA denied the petition, holding that there was no residential improvement on Lot 2 and thus it was not residential land.

The Court of Appeals held that it was error for the BAA to require that Lot 2 contain a residential improvement to qualify as residential land. CRS §39-1-102(14.4)(a) defines “residential land” as “a parcel or contiguous parcels of land under common ownership upon which residential improvements are located and that is used as a unit in conjunction with the residential improvements located thereon.” Based on this plain language, the Court concluded that residential land must contain a residential dwelling unit and be used as a unit in conjunction with the residential improvements on the residential land. Here, taxpayers’ residential land consists of those portions of Lot 1 and Lot 2 that were used as a unit in conjunction with the home on Lot 1. The case was remanded to the BAA to determine what portions of Lot 1 and Lot 2 were used as a unit in conjunction with a residential improvement for tax years 2008 and 2009, and thus were entitled to residential classification.

2012 COA 198. No. 11CA2495. People v. Rockne.
Supplemental Restitution—CRS § 18-1.3-603.

Pursuant to CRS § 16-12-102(1), the People appealed the district court’s order denying an award of supplemental restitution to the victim. The order was vacated and the case was remanded for further proceedings.

In 2006, defendant was arrested and charged with attempted second-degree murder, first-degree assault, sexual assault, intimidating a witness or victim, false imprisonment, and false reporting. The charges were based on allegations that defendant had severely beaten his girlfriend, causing, among other things, a ruptured bladder. Rather than taking her to the hospital, defendant left her at home and went to a bar. While he was gone, the girlfriend crawled up three flights of stairs, found her cell phone, and called a taxi to transport her to the hospital. She was rushed into emergency surgery and hospitalized for more than a week.

In 2008, in exchange for dismissal of the charges, defendant entered a plea of no contest to a count of criminal mischief and was given a deferred judgment and sentence conditioned on paying restitution. The victim claimed $78,550 in restitution for medical treatment, psychological counseling, and other associated costs. Defendant objected. In August 2008, defendant and prosecution stipulated to a restitution award of $8,810. The court did not make the order final but “left the issue open,” putting defendant “on notice that restitution could be increased in the future.”

Subsequently, defendant’s deferred judgment and sentence were revoked, his judgment of conviction was entered, and he was sentenced to six years’ probation by a second judge. At his December 2009 sentencing hearing, the subject of supplemental restitution for reconstructive surgery for the victim was raised. The prosecutor stated that no bills had been submitted and it was agreed that everything owing had been paid, though the possibility of future medical expenses had been reserved by the first judge. The second judge, responding to defense counsel, stated that there was nothing before him concerning a request for supplemental restitution.

In September 2010 and in April 2011, the People filed requests for more than $35,000 in supplemental restitution. Defendant objected, and a third judge denied the People’s request for supplemental restitution, finding it would violate the restitution statute and defendant’s double jeopardy rights.

On appeal, the People argued that (1) double jeopardy is violated only when the restitution statute does not authorize an increase in restitution; (2) the restitution statute authorizes an increase in restitution when a previous restitution order was not final; (3) contrary to the court’s finding, the December 2009 restitution order was not final; and (4) neither the prosecution nor the court knew of the additional expenses, so neither the statute nor defendant’s double jeopardy rights would be violated by an increase in the restitution obligation.

Before 2000, the law did not permit a court to modify an order of restitution once a legal sentence was imposed and the defendant began serving it. In 2000, the legislature amended the statute to give courts greater latitude in awarding restitution. The Court of Appeals agreed with the People that the ninety-day period of limitation contained in the amendments applies only to efforts to procure an initial order of restitution and not to efforts to increase a previously entered order for restitution. CRS §18-1.3-603(3) allows an increase in a previously imposed restitution order when “the final amount of restitution due has not been set by the court” and the “additional victims or additional losses [were] not known to the judge or the prosecutor at the time the order of restitution was entered.”

Defendant argued that the December 2009 restitution order was a final amount. The Court disagreed. The record clearly reflects that the final amount of restitution had not been set. The question then became whether the victim’s additional losses were not known to the prosecution or the court at the time of the previous order. Because the third judge made no determination of this issue, the Court remanded for such a determination. If the trial court concludes that neither it nor the prosecution knew of the victim’s losses as of the December 2009 hearing, the court should consider the People’s supplemental requests for restitution and determine them on the merits. If the court determines the victim’s losses were known to either it or the prosecution, then the supplemental requests for restitution should be denied.

2012 COA 199. No. 11CA2518. People in the Interest of D.S.
Juvenile Revocation of Deferred Adjudication—One-Year Extension for Good Cause.

D.S., a juvenile, appealed the district court’s revocation of his deferred adjudication. The judgment was affirmed.

In 2009, D.S. pleaded guilty to sexual assault on a child. As part of the plea agreement, D.S. and the prosecution stipulated to a two-year deferred adjudication requiring a sex-offender treatment program and other probationary conditions. The day before the deferred adjudication expired, D.S.’s probation officer filed to revoke it. D.S. admitted to violating the conditions of his deferred adjudication, and the court revoked the adjudication and imposed a two-year sentence of probation. D.S. petitioned for review in the Colorado Supreme Court pursuant to CAR 21. The Supreme Court denied his petition and defendant filed this appeal.

Defendant argued the district court lost jurisdiction over his deferred adjudication because it did not find good cause to extend the adjudication beyond one year, as required by the juvenile deferred adjudication statute. The Court of Appeals disagreed. D.S.’s argument was that the juvenile deferred adjudication statute requires a district court to make a finding at the end of a one-year period as to whether good cause exists to continue the deferred adjudication for an additional year. The statute provides that a “court may continue the case for an additional one-year period for good cause.” D.S. admitted the plain language does not identify when the good cause determination must be made. The Court held that the plain language allows a court to make its good cause determination at any time, including at the time of entering the deferred adjudication.

D.S. contended that the district court had made no such express finding of good cause when it entered the deferred adjudication. The Court held that an express finding is not necessary; all that is required are sufficient findings on the record to permit appellate review. That standard was satisfied here. The judgment was affirmed.

2012 COA 200. No. 12CA0233. Marcellot v. Exempla, Inc.
Personal Injury—CRCP 12(b)(5) Dismissal—CRS § 13-21-117 Immunity.

In this personal injury action, plaintiff Melanna Marcellot appealed the judgment of dismissal in favor of defendant Exempla, Inc., doing business as Exempla West Pines (Exempla), a mental health hospital. The judgment was affirmed.

Marcellot, a psychiatric nursing educator, visited Exempla with three of her students. Before entering the Psychiatric Intensive Care Unit, she asked the nursing staff whether there were any patients who presented a safety risk to her or her students. She was told there were none. However, shortly after entering the unit, a patient assaulted her. Exempla knew that the patient presented a special risk.

Marcellot sued Exempla, alleging it had been negligent in failing to take reasonable steps to prevent the patient from harming her and in failing to provide adequate staffing. She also asserted a claim under the Premises Liability Act. Exempla moved to dismiss the general negligence claims, contending that the premises liability statute provided the exclusive remedy for Marcellot. The court granted the motion and that determination was not appealed.

Exempla then moved to dismiss the premises liability claim, asserting immunity under CRS §13-21-117. The trial court agreed and dismissed the claim. Marcellot appealed. She argued that §13-21-117 covers affirmative duties to act, but does not protect a mental health care provider from liability where incorrect information is provided in response to a direct question. The Court of Appeals disagreed. The statute specifically states that a mental health hospital “shall not be liable for damages in any civil action for failure to warn or protect any person against a mental health patient’s violent behavior,” unless there has been a specific threat against that third party. The Court found this plain language broad and all-encompassing. It precludes liability for failure to warn, as well as failure to protect any person.

The Court also rejected Marcellot’s contention that §13-21-117 does not apply to inpatients. If that were the case, the General Assembly could have so stated. The judgment was affirmed.

2012 COA 201. No. 12CA0681. Hall v. American Standard Insurance Company of Wisconsin.
Attorney Fees and Costs Are Component of Damages Before Final Judgment Enters—Final Judgment.

Defendant American Standard Insurance Company of Wisconsin (American Standard) appealed from a monetary judgment entered against it in favor of plaintiff Rose Hall. The appeal was dismissed.

The trial court entered a monetary judgment in favor of Hall and against American Standard on two claims. First, on her statutory claim under CRS §§ 10-3-1115 and -1116, the court entered judgment in the amount of $3,846.80, which was double the amount of covered benefits that the jury found American Standard had unreasonably delayed or denied payment. On her tort claim for bad-faith breach of an insurance contract, the court entered judgment for $55,478.92, after adding prejudgment interest to the jury’s finding of $40,000 in noneconomic damages. The trial court directed Hall to submit her request for attorney fees.

Hall moved for $103,998.36 in attorney fees and $26,930.95 in costs. The trial court denied post-judgment motions filed by American Standard. American Standard filed its notice of appeal in April 2012. A hearing on the attorney fees and costs was set for November 28, 2012. Because the attorney fees and costs issue had not been resolved, and it is a component of damages, the Court of Appeals issued an order to show cause why this appeal should not be dismissed for lack of a final judgment. American Standard stated that its appeal should be dismissed on this basis.

The Court first held that though three other claims were said to have been resolved by the parties (breach of contract, outrageous conduct, and American Standard’s cross-claim), because there was no signed, written order resolving these claims, final judgment had not entered and the Court lacked jurisdiction over the appeal on this basis alone. Even if the trial court were to sign a written order dismissing these claims, however, without resolution of the attorney fees and costs issue on the statutory claim, the non-finality of that claim still would cause the Court to lack jurisdiction. Accordingly, the appeal was dismissed without prejudice for lack of a final judgment.

Colorado Court of Appeals Opinions

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