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Colorado Court of Appeals Opinions
March 27, 2014

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.

2014 COA 32. No. 10CA1793. People v. Firm.
Aggravated Robbery—Complicitor—Equal Protection Clause.

On the day of the charged incident, defendant and his son went to the victims’ house to collect an unpaid debt. The victims refused to pay the debt. Defendant’s son lifted up his shirt in front of the victims to reveal that he had a gun under the shirt, and both defendant and his son threatened to kill the victims if they called the police. Defendant then took some of the victims’ personal property, ostensibly as collateral for the debt. Defendant was convicted of aggravated robbery under CRS §18-4-302(1)(b), among other crimes not relevant here.

In this appeal, defendant contended that his conviction and sentence for aggravated robbery resulted in his being denied equal protection of the law. It is not a violation of equal protection to apply CRS §18-4-302(1)(b) to a complicitor charged under that section. Further, subsections (1)(b) and (1)(c) proscribe different conduct, so defendant’s equal protection claim fails. Accordingly, defendant’s conviction and sentence did not violate the Equal Protection Clause, and the judgment was affirmed.

2014 COA 33. No. 10CA1989. People v. Cook.
Sexual Crimes Against Children—Amendment of Information—Rape Shield Statute—Alternative Suspect Evidence—CRE 404(b)—Continuance.

Defendant was convicted and sentenced on multiple charges of sexual crimes against children. The victims were defendant’s daughter (C.C.), the daughter of his former girlfriend (S.G.), and other unnamed children.

On appeal, defendant contended that the trial court erred in permitting the prosecution to add fourteen counts on remand following his successful appeal. The trial court had discretion to permit the information to be amended before trial, and it did not err by adding counts based on new evidence that did not exist before the first trial. Therefore, the court properly allowed the additional counts to the information.

Defendant asserted that the trial court erred in denying his motion to pierce the rape shield statute, thereby denying him the opportunity to present evidence of an alternate suspect. Where a defendant seeks to introduce alternate suspect evidence to show motive and opportunity, there must be proof that the alternate suspect committed an act directly connecting him to the crime. Where the alternate suspect evidence seeks to challenge the identity of the perpetrator, the alternate suspect’s prior act or crime must be similar to the present crime to be relevant and admissible. The trial court did not abuse its discretion in concluding that defendant’s offer of proof fits no stated exception and was not otherwise relevant to a material issue in the case.

Defendant also contended that the trial court erroneously permitted the prosecution to introduce CRE 404(b) evidence related to acts for which he had been acquitted in Boulder County. The prosecution proffered the evidence from the Boulder County case of C.C.’s interviews in 2004 and the child pornography found on defendant’s computers in Boulder, to show proof of identity, absence of mistake or accident, common plan or scheme, and also to demonstrate that the purpose of defendant’s conduct was relevant to this case. Therefore, the admission of the evidence offered by the prosecution was proper.

Defendant’s assertion that the trial court erred in denying his motion for a fourth continuance was discounted. The expert was able to complete his report, and there was no indication that defense counsel was unprepared for trial. Hence, defendant showed no actual prejudice resulting from the court’s ruling. The judgment was affirmed.

2014 COA 34. No. 11CA1806. People v. Trammell.
Clergy–Communicant Privilege—Confidential.

After defendant attempted suicide while incarcerated, he was hospitalized for treatment of his wounds. While hospitalized, defendant attacked the sheriff’s deputy on guard with a metal bar, striking the deputy on the head. A struggle ensued. The deputy testified that during the struggle, defendant tried to remove the deputy’s gun from its holster. Defendant also struck a nurse on the head, causing a laceration that required stitches, and causing lasting effects on the nurse’s memory. Another nurse who was struck received a minor cut.

On appeal, defendant contended that the statements he made to the hospital chaplain after the incident were privileged under the clergy–communicant privilege, and that the trial court therefore erred when it admitted the chaplain’s testimony that defendant had planned the altercation. Defendant spoke with the chaplain in defendant’s hospital room while he was being guarded by a deputy. Because defendant did not take any precautions to keep those communications confidential or private, the clergy–communicant privilege does not apply. The judgment and sentence were affirmed.

2014 COA 35. No. 11CA1954. People v. Cardenas.
Trafficking in Children—Pimping—Prostitution—Res Gestae Evidence.

The victim, a 17-year-old girl, met defendant, an 18-year-old man, at a rave. They became friends and entered into an agreement whereby defendant would post advertisements offering the victim to provide massages with the ultimate goal for the victim to engage in sexual acts for money. The jury convicted defendant of trafficking in children, pimping an adult, pimping a child, pandering a child, and inducing child prostitution.

On appeal, defendant contended that the trial court erred when it denied his motion for judgment of acquittal on the trafficking in children charge because the evidence was not sufficient to support a conviction on that charge. To prove that a defendant has violated CRS § 18-3-502(1)(a), the prosecution must establish that the defendant sold a child, exchanged a child, bartered a child, or leased a child. Here, there was no evidence that defendant facilitated the transfer of the victim’s physical or legal custody to the callers. Because the evidence in the record does not support defendant’s conviction for trafficking in children, the conviction and sentence on that charge were reversed and vacated, and the case was remanded to the trial court to enter a judgment of acquittal on that charge.

Defendant also contended that the trial court erred when it admitted evidence about his tattoo. The victim’s friend testified that she was with defendant when he got the tattoo, which occurred during the same period when the victim and the friend were engaged in defendant’s prostitution ring. The friend stated that defendant told her the “MOB” tattoo meant “money over bitches.” The prosecution argued at trial that the term “money over bitches” showed that defendant had a “calculated plan to exploit” the victim and her friend, that he “put a price tag” on them, and that the phrase was “a sex trafficker’s motto.” Thus, the tattoo evidence was relevant, it was res gestae rather than CRE 404(b) evidence, and it was not unduly prejudicial. Accordingly, the trial court did not err when it admitted evidence about defendant’s tattoo.

2014 COA 36. No.12CA0784. People v. Becker.
Child Abuse—Second Offense—Prior Conviction—Sentence Enhancer.

Defendant was charged with child abuse–second or subsequent offense. The court granted defendant’s request to exclude evidence concerning the facts underlying his prior child abuse conviction, but rejected his request to exclude reference to his prior conviction.

On appeal, defendant contended that the trial court reversibly erred by permitting the jury to learn that he had a prior child abuse conviction, including by informing the jury of his stipulation to the prior conviction. A prior child abuse conviction, as specified in CRS §18-6-401(7)(e), serves only as a sentence enhancer and not as an element of the child abuse crimes set forth in CRS §18-6-401(1)(a)(7)(b)(I) and (II). Therefore, the court should not have permitted the jury to hear of defendant’s prior conviction before it returned its verdicts on the substantive offenses. Because this error was not harmless, the judgment of conviction was reversed and the case was remanded to the trial court for a new trial.

2014 COA 37. Nos. 12CA2312 & 12CA2316. Ryan Ranch Community Assn., Inc. v. Kelley.
Summary Judgment—Homeowners Association Assessments.

In early 2003, Charles Ochsner verbally agreed to sell John Kelley seven lots (Kelley Lots) of the Ryan Ranch property. In summer 2003, Kelley learned that Ochsner was going to sell the majority of the Ryan Ranch property to the Ryland Group, Inc. (Ryland), the entity that would eventually create Ryan Ranch Community Association, Inc. (HOA) and record the Declaration of Covenants, Conditions, and Restrictions (Declaration). Kelley confirmed with Ochsner and Ryland the verbal agreement to purchase and received assurances that Ryland was not purchasing the Kelley Lots. The parties agreed that the Kelley Lots would not be included in the HOA.

In September 2003, Ryland and Ochsner signed a contract for the sale of parcels in Ryan Ranch to Ryland in two phases, which specifically excluded the Kelley Lots. In October 2003, Ochsner and Kelley and his wife signed a contract for the Kelley Lots. They also signed an agreement providing that (1) the Kelley Lots would not be subject to the maintenance obligations of the HOA, and (2) Ryland would record covenants excluding them from the HOA. No such exclusion covenants were ever recorded.

The 2003 contract excluding the Kelley Lots was reaffirmed by Ochsner and the Kelleys in May 2005. However, when the Ryan Ranch Filing 2 plat map was recorded on November 17, 2005, it included the Kelley Lots. The December 20, 2005 reconveyance deed conveying the Kelley Lots from Ryland back to Ochsner was recorded, as was the Ochsner deed conveying the Kelley Lots to the Kelleys. Ryland never intended to annex the Kelley Lots into the Ryan Ranch community.

In June 2006, the Kelleys sold one of the Kelley Lots to a contractor who constructed a home and sold the lot to the Zimmermans. In September 2010, the HOA asserted that the Kelley Lots had been “automatically annexed” to the HOA and sought to recover past assessments, penalties, and fees from the Kelleys and the Zimmermans. Defendants counterclaimed for a declaratory judgment that Ryland had not annexed the Kelley Lots in compliance with the Colorado Common Interest Ownership Act (CCIOA) or the Declaration, and asserted principles of equitable conversion operated to preclude the transfer of the Kelley Lots from Ochsner to Ryland.

The HOA moved for summary judgment, and defendants requested the court to determine as a matter of law that the Declaration did not apply to their properties. The trial court granted the HOA’s motion and denied defendants’ motion.

On appeal, defendants’ argued it was error to grant summary judgment to the HOA because: (1) the Kelley Lots were not annexed in compliance with CCIOA; (2) Ryland did not annex the Kelley Lots in compliance with the Declaration; and (3) Ryland did not “own” the Kelley Lots at the time of the alleged annexation. The Court of Appeals agreed with the first argument and did not address the others.

CCIOA was the controlling statute in this case and prevails over the Declaration. To exercise a development right under CCIOA, a developer must comply with the plat and map requirements of CRS §38-33.3-209 and the recording requirements of CRS §38-33.3-217(3).

Defendants argued that to exercise a reserved development right, CCIOA requires the recording of an amendment to the declaration that must contain certain information and be properly indexed. The Court agreed that the recording of the Official Development Plan and the Declaration was not sufficient to meet these requirements. The original Declaration cannot logically be considered an amendment to itself such that it could annex the Kelley Lots. Moreover, nothing was denominated as an amendment, nothing assigned indentifying numbers to newly created units, there was no reallocation of interests among all units, and no common elements were described. Nothing on the Filing 2 plat map subjected the described property to the Declaration.

The Court’s determination resolved the HOA’s claims for breach of contract, recovery of unpaid assessments, and foreclosure of liens. However, it did not resolve the unjust enrichment claim. On remand, the trial court was ordered to revisit that claim. Attorney fees were awarded to defendants as prevailing parties under the Declaration and CRS §38-33.3-123(1)(c).

2014 COA 38. No. 12CA2637. Estate of Bleck v. Martinez.
Motion to Dismiss—Qualified Immunity—Interlocutory Appeal.

Steven Bleck sued Officer Martinez and the City of Alamosa Police Department, alleging he was injured as the result of Officer Martinez’s willful and wanton conduct. Officer Martinez moved to dismiss under CRCP 12(b)(1) and (5), claiming qualified immunity under CRS §24-10-118(2). The motion was denied and an appeal was filed. However, the Colorado Governmental Immunity Act (CGIA) does not provide for an interlocutory appeal of an order denying an employee’s motion to dismiss based on qualified immunity. Martinez argued there was an exception in the case of alleged willful and wanton conduct. The Court of Appeals disagreed and dismissed for lack of subject matter jurisdiction.

If a well-pleaded complaint alleges a public employee’s conduct was willful and wanton, the defendant is entitled to qualified immunity under CRS §24-10-118(2). The terms of this subsection provide for “immun[ity] from liability” rather than a bar to suit. It is a defense that can be defeated at trial if it is proven that the conduct was willful or wanton. A trial court’s determination of a CRCP 12(b) motion challenging whether an employee’s conduct was willful or wanton is not subject to interlocutory appeal.

2014 COA 39. No. 13CA0182. Jehly v. Brown.
Fraudulent Concealment—Imputed Knowledge.

Defendant owned real property and hired a general contractor to build a house on it. Before commencing, the contractor discovered that part of the property was located in a floodplain, but did not inform defendant of that fact.

Plaintiffs David and Peggy Jehly entered into a contact to purchase the house. Defendant filled out a Seller’s Property Disclosure form by writing “New Construction” diagonally across every page and not checking any of the boxes. Before buying the house, plaintiffs were never informed that part of the property was located in a floodplain.

Approximately five years after the home purchase, heavy rains caused severe flooding and damage to the basement of the house. Plaintiffs sued defendant, alleging he fraudulently concealed knowledge of the floodplain to induce plaintiffs to buy the house. During a bench trial, defendant denied having any personal knowledge of the floodplain at the time of the sale and denied that his general contractor or any subcontractors had so informed him. The trial court found in favor of defendant.

On appeal, plaintiffs asserted that it was error not to impute to defendant the general contractor’s knowledge that part of the property was in a floodplain. The Court of Appeals disagreed. To prevail on a claim of fraudulent concealment, a plaintiff must show that a defendant actually knew of a material fact that was not disclosed. It is not enough that defendant should have or might have known the fact.

Plaintiffs did not contest on appeal the trial court’s factual finding that defendant had no active or conscious belief or awareness of the existence of the floodplain. The trial court, therefore, did not apply the wrong legal standard, because defendant did not have the requisite actual knowledge of the information allegedly concealed.

The Court further concluded that the knowledge of the general contractor could not be imputed to defendant. Knowledge of an agent is generally imputed to the principal. However, “actual knowledge” in the context of a fraudulent concealment claim cannot be imputed to a principal through knowledge of its agent. The judgment was affirmed.

2014 COA 40. Nos. 13CA0211 & 13 CA0751. Marin Metropolitan District v. Landmark Towers Assn., Inc.
Special Metropolitan District—CRS § 32-1-305(7).

In 2007, a developer and five affiliated individuals (organizers) commenced proceedings under CRS §§32-1-101 to -1807 to form a special metropolitan district within the boundaries of Greenwood Village. The organizers filed a service plan with the municipality, and the city council approved it.

On September 5, 2007, a petition for organization was filed with the Arapahoe County District Court pursuant to CRS §32-1-301, and a hearing was set for October 4, 2007. Notice was published in the local newspaper and the clerk of the court issued a notice of the hearing. At the hearing, the district court entered an order directing an organizational election be held on November 6, 2007. The election was held, and on December 6, 2007, the district court entered findings and an order and decree creating the special district. The order included within the special district the Landmark Towers Association (Landmark) condominium properties, which were under construction. Approximately 130 people were under contract to purchase, but no sales had been completed.

Landmark alleged it was not until several years after the Marin Metropolitan District (District) was formed that the owners discovered facts indicating that the District had been organized through alleged misrepresentations and an asserted fraud on the court. In 2012, Landmark intervened and moved pursuant to CRCP 60(b)(2), (3), and (5) to set aside the December 2007 order for alleged fraud on the court, a lack of subject matter jurisdiction to approve the special district, and invalidity of the order due to lack of due process. The court held a three-day evidentiary hearing and issued an order on December 17, 2012 dismissing Landmark’s motion pursuant to CRS §32-1-305(7).

On appeal, the Court of Appeals reviewed the pertinent provisions of the statutory scheme for creating a special district. Landmark argued that regardless of CRS §32-1-305(7), a court has inherent power to vacate a void judgment notwithstanding a statutory time bar; has jurisdiction to set aside a previously entered order based on fraud on the court; and has a duty to provide constitutional due process, providing jurisdiction to set aside an order that is void for lack of notice and an opportunity to be heard. The Court disagreed.

CRS §32-1-305(7) is clear and unambiguous that once an order establishing a special district is entered, it “shall be deemed final, and no appeal or other remedy shall lie therefrom.” There is one exception for an action in the nature of quo warranto commenced by the attorney general within thirty days after entry of the organizational order. Finally, the subsection mandates that the organization of the district “shall not be directly or collaterally questioned in any suit, action, or proceeding except as expressly authorized in this subsection (7).” This jurisdictional issue was dispositive. Accordingly, the order was affirmed.

Colorado Court of Appeals Opinions

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