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Colorado Supreme Court Opinions
February 13, 2012

2012 CO 10. No. 11SA77. In re Vinton v. Virzi.
Trust Administration—C.R.C.P. 9(b)—Client Suing Opposing Attorney.

Amanda Vinton petitioned for relief pursuant to C.A.R. 21 from orders of the probate court permitting Sharon Virzi to amend her challenge to a trust administration by adding a claim of fraud against Vinton, the attorney for the trustee. Over Vinton’s objection, the probate court summarily granted Virzi’s motion to amend, forcing Vinton to withdraw as counsel for the trustee. The probate court summarily denied two motions by Vinton to dismiss the claim against her and ordered her to pay Virzi’s attorney fees for having to defend against a substantially frivolous and groundless motion. The Supreme Court issued a rule to show cause.

The Court held that because Virzi’s fraud claim was not pleaded with sufficient particularity to withstand a motion to dismiss, it was futile, and the probate court abused its discretion in permitting the joinder of her opponent’s attorney. The Court also held that regardless of whether Vinton’s motion to dismiss for lack of subject matter jurisdiction over the separate fraud claim was meritorious, the record was inadequate to support an award of attorney fees. The rule was made absolute and the matter was remanded to the probate court with directions to dismiss Virzi’s claim of fraud against Vinton and to vacate its award of attorney fees.

2012 CO 6. No. 10SC294. Montez v. People.
First-Degree Burglary—Firearm Not Per SeDeadly Weapon—Burglar’s Use or Intent to Use Firearm.

The Supreme Court held that the General Assembly has not classified firearms as per se deadly weapons for purposes of the first-degree burglary statute. The legislature did not intend theft of a firearm from a building to constitute first-degree burglary, regardless of the manner the burglar used or intended to use the firearm.

The General Assembly superseded earlier decisions of the Court, which held that firearms were per se deadly weapons. In 1981, it amended the language of the deadly weapon definition, providing that a firearm is a deadly weapon only when used or intended to be used in a manner capable of producing death or serious bodily injury. This refers to the manner in which the burglar used or intended to use the weapon, and does not refer to the intent of the manufacturer of the weapon.

The prosecution conceded that, if its argument that a firearm is per se a deadly weapon did not prevail, Montez’s conviction for first-degree burglary could not stand. Accordingly, the Court vacated the first-degree burglary conviction.

2012 CO 7. No. 10SC72. Lucero v. People.
Thefts Committed by Single Person Within a Six-Month Period—First-Degree Burglary—Firearm Not Per SeDeadly Weapon—Burglar’s Use or Intent to Use Firearm.

Joseph Lucero was convicted of crimes connected to several break-ins in August and September 2000, including three counts of theft and one count of first-degree burglary. Applying its earlier decisions, the Supreme Court merged the three theft convictions into a single theft conviction and vacated the first-degree burglary conviction.

The Court first held that Lucero cannot be punished for all three alleged thefts. The statute in effect at the time of Lucero’s acts provided that multiple thefts committed by the same person within a six-month period should be joined and prosecuted as a single theft. [See Roberts v. People, 203 P.3d 513 (Colo. 2009).] Accordingly, the Court corrected his illegal sentence.

The Court also applied its holding in Montez v. People, 2012 CO 6. In Montez, the Court held that a firearm is not a deadly weapon per se for the purposes of the first-degree burglary statute. As in Montez, the prosecution in this case conceded that if firearms are not per se deadly weapons, Lucero’s conviction cannot stand. Thus, the Court vacated Lucero’s first-degree burglary conviction.

2012 CO 8. No. 11SA280. People v. Revoal.
U.S. Constitution—Fourth Amendment—Suppression of Evidence—Reasonable Suspicion—Investigatory Stop.

The prosecution charged Anthony Michael Revoal with one count of possession with intent to manufacture or distribute marijuana in an amount less than five pounds after an investigatory stop and subsequent frisk revealed marijuana and a scale containing marijuana residue. At the time of the stop, the police were aware of the following facts and circumstances: (1) it was 11:30 p.m.; (2) robberies had recently occurred in the area; (3) Revoal was standing on the side of a closed Subway restaurant, looking left to right; (4) Revoal walked to the side of an open liquor store, continued looking left to right, and then walked toward the back of the liquor store, where it was dark; and (5) Revoal turned and walked away from the investigating officer when he observed the patrol vehicle. The trial court suppressed the marijuana evidence on the basis that these facts did not give the investigating officer reasonable suspicion to conduct the stop.

The Supreme Court affirmed the trial court’s judgment. The Court held that the facts and circumstances the officer knew at the time of the intrusion, viewed either individually or collectively, did not amount under the totality of the circumstances to reasonable suspicion sufficient to justify the officer’s investigatory stop. 

2012 CO 9. No. 10SC350. O’Shaughnessy v. People.
Criminal Trials—Jury Instructions—Affirmative Defenses—Abandonment and Renunciation.

The Supreme Court granted certiorari to review whether the court of appeals imposed an unauthorized restriction on the affirmative defense of abandonment when it held that a defendant is not entitled to a jury instruction on abandonment when charged with attempted first-degree murder with a deadly weapon, or with attempted aggravated robbery, once he or she has injured the victim. The court of appeals’ judgment was affirmed.

The Court first held that to present an affirmative defense of abandonment of an attempted crime for jury consideration, a defendant must present “some credible evidence” on the issue. The Court also held that having injured the victim does not necessarily foreclose the affirmative defense of abandonment. Nonetheless, defendant was not entitled to a jury instruction on the affirmative defense of abandonment, because he failed to present sufficient credible evidence to support that defense.

CO12 CO 11. No. 10SC254. M.T. v. People.
Statutory Construction—Sealing of Criminal Records—Unlawful Sexual Behavior—Deferred Judgments.

Colorado’s sealing statute, CRS § 24-72-308(1), allows for the sealing of arrest and criminal records in certain circumstances. The Supreme Court held that CRS § 24-72-308(3)(c), which prohibits the sealing of records pertaining to a conviction involving unlawful sexual behavior, applies to a successfully completed and dismissed deferred judgment. Thus, a person with a successfully completed and dismissed deferred judgment for an offense involving unlawful sexual behavior is not eligible to petition to seal records under the sealing statute.

Colorado Supreme Court Opinions