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Colorado Court of Appeals Opinions
December 6, 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 212. No. 09CA1347. People v. Allman.
Colorado Sex Offender Registration Act—Residence—Constitutionally Vague—Special Unanimity Instruction—MirandaRights.

Defendant appealed his judgment of conviction entered on a jury verdict finding him guilty of failing to register as a sex offender under the Colorado Sex Offender Registration Act. The judgment was affirmed.

In 2007, defendant lived in Colorado Springs with his father and was registered in El Paso County. That year, he went to Garfield County to look for work and found a job in Rifle. The job paid less than he had anticipated, so he opted to sleep in his car during the work week. He drove back to Colorado Springs every weekend.

On appeal, defendant contended the trial court erred by failing to hold that the Registration Act is unconstitutionally vague as applied to his conduct. The statute’s plain language does not limit “residence” to a traditional house or apartment, but rather includes “any place,” which could include a motor vehicle. Therefore, defendant had fair notice that staying in his car could trigger his registration duties, thus guiding his conduct.

Defendant also contended that the evidence was insufficient to prove that he established an additional residence in Garfield County because he did not have an address. According to the Registration Act, a “residence” is “a place or dwelling that is used, intended to be used, or usually used for habitation.” It does not require an address. The record showed that defendant ate, slept, worked out, showered, banked, lived, and worked in Garfield County for approximately fifty days in the span of two-and-a-half months. This evidence was sufficient to support a rational jury’s finding that defendant knowingly failed to register after establishing an additional residence in Garfield County.

Defendant contended that the trial court erred by failing to provide the jury a special unanimity instruction. The act constituting defendant’s offense was the failure to register with law enforcement authorities in Garfield County. His duty to register was triggered by his establishing an additional residence in Garfield County. The different theories proffered regarding defendant’s place of residence—whether in his car, in a trailer, or at a recreation center—were merely incidents making up a single transaction: defendant’s establishment of a residence in Garfield County. Therefore, the trial court did not err in failing to give a special unanimity instruction.

Defendant further contended that his statements to the arresting deputies were obtained in violation of his Miranda rights and should have been suppressed. The statements were made to the deputies one morning when they approached defendant while he was sleeping in his car to inquire about his residence and registration status. Based on the circumstances of the questioning and the lack of any restraint, a Miranda advisement was not required before defendant’s arrest.

2012 COA 213. No. 10CA2023. People v. Novitskiy.
Counterfeit Money—Probable Cause—Seizure—Evidence.

Defendant appealed the order, entered on remand from the Court of Appeals, denying his motion to suppress evidence and leaving intact the judgments of conviction entered on jury verdicts finding him guilty of two counts of forgery and one count of possession of a forged instrument. The order was affirmed.

Police were dispatched to a convenience store to investigate a report of a person passing a counterfeit $20 bill. The store’s assistant manager identified defendant as the person. The officer approached defendant and ordered him to produce any money he had on him. When defendant emptied his pockets, the police found additional counterfeit bills.

Defendant contended that, because the officer did not have probable cause to arrest him, the seizure of the counterfeit bills found in his pockets could not be justified as the product of a search incident to a lawful arrest. The officer had probable cause to arrest defendant based solely on the assistant manager’s report. Therefore, the officer also had probable cause to search defendant incident to a lawful arrest for additional counterfeit money.

2012 COA 214. No. 11CA2078. BSLNI, Inc. v. Russ T. Diamonds, Inc.
Breach of Contract—Negligence—Attorney Fees—CRCP 12(c)—Expert Testimony.

Defendant Russ T. Diamonds, Inc. (Diamonds) appealed the trial court’s judgment in favor of plaintiff BSLNI, Inc. The judgment was affirmed.

BSLNI orally contracted with Diamonds to cut concrete from the deck of a bridge into sections so that BSLNI could remove the concrete in blocks. While performing the cutting, Diamonds caused damage to several of the bridge’s girders.

Diamonds argued that the trial court erred in failing to award costs and attorney fees pursuant to CRS §§ 13-16-113(2) and 13-17-201 on dismissing BSLNI’s negligence claim. Specifically, Diamonds contended that, although the trial court granted BSLNI leave to amend its complaint and add a contract claim, the court dismissed BSLNI’s entire “tort action” when it dismissed the negligence claim, which was the sole claim in BSLNI’s original complaint. Because Diamonds already had filed a responsive pleading, however, and its motion was filed on the eve of trial, Diamonds’ motion should have been treated as a motion for judgment on the pleadings under CRCP 12(c). Therefore, BSLNI’s tort claim was not dismissed under CRCP 12(b), and the trial court did not err when it denied Diamonds’ motion for attorney fees and costs.

Diamonds further contended that the trial court should have granted its pretrial motion to dismiss, its motion for directed verdict, and its motion for judgment notwithstanding the verdict, because BSLNI failed to provide expert testimony on the professional standard of care in proving its breach of contract claim against Diamonds. BSLNI’s breach of contract claim did not rely on Diamonds violating an industry or professional standard of care. BSLNI, therefore, was not required to prove an industry standard of care by expert testimony or otherwise. Further, the evidence presented at trial makes clear that the issue was within the realm of common knowledge. Therefore, BSLNI was not required to provide expert testimony to establish whether the damage was “minor” in this case.

Colorado Court of Appeals Opinions