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Colorado Court of Appeals Opinions
April 12, 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 56. No. 08CA0156. People v. Davis.
Colorado Organized Crime Control Act—Conspiracy—Assault—Solicitation—Evidence—Statute of Limitations—ExpertTestimony—Habitual Offender—Consecutive Sentence.

Defendant appealed his judgment of conviction entered on a jury verdict finding him guilty of violating the Colorado Organized Crime Control Act (COCCA), conspiracy to commit assault in the second degree, assault in the second degree, and two counts of solicitation of second-degree assault. He also appealed his conviction as a habitual criminal and his 108-year sentence. Defendant’s convictions were affirmed, the sentence was affirmed in part and vacated in part, and the case was remanded to the trial court.

Defendant contended there was insufficient evidence to support his convictions arising from the assault on C.H. and his conviction for soliciting T.M. Because the evidence, including testimony about defendant’s role as the leader of the 211 gang and defendant’s encoded note to T.M. ordering the assault on C.H., supported a finding that defendant ordered the assault on C.H., it was sufficient to establish that defendant intentionally persuaded his fellow gang members to assault C.H. Therefore, the evidence was sufficient to support his conviction for solicitation. Additionally, there was sufficient evidence to prove that defendant conspired with other 211 Crew members to commit second-degree assault on C.H.

Defendant contended that a criminal act that can no longer form the basis of a criminal count because its statute of limitations has expired cannot be used as evidence to support a COCCA conviction. To establish a COCCA violation, the prosecution must show that two or more acts of racketeering activity occurred within a ten-year period. As long as one predicate act of racketeering activity falls within the relevant statute of limitations, other predicate acts occurring within the ten-year period before that act was committed may be used to establish a COCCA violation, even if the earlier acts would be time-barred if separately prosecuted. Here, the prosecution presented four predicate acts that also gave rise to separate counts (namely, the three acts involving the assault on C.H. and the solicitation of T.M). Because there was sufficient evidence to support defendant’s convictions for these acts, there is sufficient evidence to support defendant’s COCCA conviction. Additionally, evidence of the nine predicate acts occurring outside the limitations period established elements of defendant’s COCCA violation and were properly admitted.

Defendant contended that the trial court erred by qualifying a Denver police detective as an expert. At trial, the prosecution designated the detective as an expert witness with specialized knowledge of 211 Crew hierarchy, communication methods, and ideology. At the pretrial hearing, the trial court found that the detective possessed specialized knowledge that was relevant and that would be helpful to the jury. Furthermore, any doubts about the accuracy of the detective’s interpretation of the code, or his lack of experience cracking coded messages, go to the weight of his testimony, not its admissibility. Therefore, the trial court did not abuse its discretion by qualifying the detective as an expert on the 211 Crew.

Defendant also contended that his convictions should be reversed because his co-defendants’ testimony that they had pleaded guilty to COCCA violations was offered as substantive evidence of his guilt. It is proper, however, to use this type of evidence to impeach the credibility of a co-defendant. Therefore, there was no error.

Defendant contended that the trial court erred in determining that he was a habitual offender. Defendant argued that (1) the trial court accepted evidence of his prior convictions in the form of “pen packs,” in violation of his right to confrontation; and (2) his right to a jury trial was violated because the trial court rather than a jury determined his guilt. Defendant, however, failed to object to either the admission of the pen packs or the lack of a jury trial. Therefore, the Court of Appeals reviewed only for plain error, and found none.

Defendant further contended and the People agreed that the trial court erred by concluding that it was required by law to order that defendant’s COCCA sentence be served consecutively to the sentences he already was serving. There was no requirement for consecutive sentencing under these circumstances. Therefore, defendant’s COCCA sentence was vacated and the case was remanded to the trial court to determine, in its discretion, whether that sentence should run consecutively to or concurrently with the sentences for the three crimes to which he pleaded guilty in 1995.

2012 COA 57. No. 09CA0781. People v. Douglas, Jr.
Attempted Sexual Assaulton a Child—Enticement and Solicitation—Internet Luring and Sexual Exploitation—Evidence—Intent and Motive—Expert or Lay Witness Testimony—Prosecutorial Misconduct—Consecutive Sentences.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of attempted sexual assault on a child, enticement of a child, Internet luring of a child, Internet sexual exploitation of a child, and solicitation to commit sexual assault on a child by one in a position of trust. He also appealed his sentence. The judgment was affirmed in part and vacated in part, and the sentence was affirmed.

Defendant and “Marsha” (mother), who actually was an undercover officer, communicated over the Internet and telephone and via text message regarding defendant’s desire to come to Colorado to establish a sexual relationship with her and her 9-year-old daughter. Defendant arranged to travel to Colorado, and he was arrested when he arrived.

Defendant contended that the convictions for (1) Internet luring of a child, (2) Internet sexual exploitation of a child, (3) enticement of a child, and (4) solicitation must be vacated because the prosecution failed to present sufficient evidence to prove the elements of each offense beyond a reasonable doubt. There was insufficient evidence supporting defendant’s convictions for Internet luring of a child and Internet sexual exploitation of a child because there was no evidence that defendant committed the crimes or that he acted as an accomplice to a principal who committed the crimes. As to the solicitation charge, the prosecution was not required to prove that defendant communicated directly with the child; communication with mother as an adult intermediary was sufficient. Further, one may be guilty of enticement by inviting or persuading a child to enter a room within the child’s home with the proscribed intent. Finally, there was sufficient evidence to find defendant guilty of solicitation under the theory that he attempted to persuade mother to act as his accomplice in his commission of sexual assault on a child by one in a position of trust.

Defendant also contended that the trial court erred in admitting evidence of other similar acts and alleged child pornography. This evidence, however, was properly admitted to show intent and motive.

Defendant also argued that the trial court erred in permitting the undercover officer to present expert testimony in the guise of lay witness testimony. The undercover officer’s interpretation of her conversations with defendant did not depend on her specialized skills and training as a police officer. Therefore, any error was harmless.

Defendant further contended that prosecutorial misconduct required reversal. The court instructed the jury not to consider the prosecution’s characterization of the photographs as “child pornography,” and the jury was permitted to see the actual photos to make this determination themselves. Additionally, the prosecutor’s use of the term “grooming” was not improper. Therefore, any error on these issues was harmless.

Defendant also contended that the court erred in imposing consecutive sentences on the enticement and solicitation counts. The court did not abuse its discretion in imposing consecutive sentences in this matter. First, the evidence supporting each count was not identical. Second, the two crimes did not “arise out of the same incident,” because the communications between defendant and mother took place over a period of ten days. Finally, the attempted conviction is not a lesser-included offense of the solicitation conviction.

2012 COA 58. No. 09CA1890. Reyher v. State Farm Mutual Automobile Insurance Co.
Jurisdiction—Final Order—Class Action—Prevailing Party—Costs.

Plaintiffs Pauline Reyher and Dr. Wallace Brucker appealed the trial court’s order awarding costs and attorney fees to defendant State Farm Mutual Automobile Insurance Company (State Farm), following the trial court’s dismissal of Reyher’s claims and denial of plaintiffs’ class certification motion. The order was reversed and the case was remanded with directions. During the briefing of this appeal, Reyher II was announced, reversing the dismissal of Reyher’s claims. At the time of this appeal, there were no class action claims pending in the trial court; however, the individual claims of Reyher and Dr. Brucker remained pending and unresolved.

State Farm argued that the Court of Appeals lacked jurisdiction over this appeal because the order awarding costs and fees was not a final, appealable order. The cost and fee order was related solely to the class certification claims and Reyher’s claims, which were both resolved by final orders pursuant to C.R.C.P. 54(b); the order was not based on any other claims pending in the trial court. Therefore, the cost and fee order was itself a final, appealable judgment.

Plaintiffs argued that the trial court prematurely determined that State Farm was the prevailing party under C.R.C.P. 54(d) based on its successful defense of class certification but before termination of the underlying litigation. The trial court erred to the extent that it awarded costs based on its misconception that it was required to do so and had no discretion in the matter. Additionally, whether a party has derived some of the benefits sought by the litigation requires an assessment in the context of the overall litigation. Therefore, because plaintiffs may yet obtain a judgment against State Farm on their individual claims, it was premature for the trial court to determine that State Farm was the prevailing party. Accordingly, the trial court erred in awarding State Farm its costs and fees as the prevailing party at this stage in the proceedings based on its purely procedural victory on the class certification. Plaintiffs also argued, State Farm conceded, and the Court of Appeals agreed that because the judgment dismissing Reyher’s claims was reversed in Reyher II, the costs and fees related to that dismissal also must be reversed.

2012 COA 59. No. 10CA0993. People v. Turecek, Jr.
Restitution—Time Limit.

Defendant Robert Turecek, Jr. appealed the district court’s orders concluding that it had statutory authority to determine the question of restitution and imposing restitution on him after he pleaded guilty to fourth-degree arson. The orders were reversed.

Turecek was charged with first- and fourth-degree arson for setting fire to his house. He ultimately pleaded guilty to fourth-degree arson, and the parties stipulated in the plea agreement to a sentence of supervised probation and further agreed that restitution and costs of prosecution would be as ordered by the court. The prosecution filed a notice of restitution that contained, among other things, an estimate of losses sustained by the company that insured Turecek’s house (insurer). However, the court indicated that it would not act on the original notice of restitution because it did not contain accurate information. The court gave the prosecution ninety days to file an amended notice of restitution, noting that if additional time was required, the prosecution would need to seek an extension and explain why an extension was required. Approximately nine months later, having filed nothing regarding restitution in the interim, the prosecution filed a motion asking the court to rule on the original notice of restitution. The court thereafter ordered Turecek to pay restitution.

Turecek contended that the district court erred in ordering restitution because the statutorily imposed ninety-day limit had passed, and the prosecution had failed to establish good cause for its belated effort to have the court set the amount of restitution. The statute is clear that if the court determines that the defendant is obligated to pay restitution, and if a specific amount was not set when restitution was ordered, then the specific amount of restitution must be determined within the ninety days immediately following the order of conviction, unless good cause is shown for extending the time period by which the restitution amount shall be determined. Here, the specific amount of restitution was not determined within the ninety days immediately following the order of conviction, and the People failed to establish (or even attempt to establish) good cause to extend that time period. Accordingly, the district court erred in imposing restitution.

2012 COA 60. No. 10CA1286. People v. Adolf.
Uniform Mandatory Disposition of Detainers Act—Actual Notice—Prosecution.

Defendant appealed the judgment of conviction entered after the district court denied his request to dismiss the charges against him under the Uniform Mandatory Disposition of Detainers Act (UMDDA). The judgment was affirmed.

On May 29, 2008, defendant was charged with several drug-related crimes. While awaiting his preliminary hearing, defendant mailed directly to the district court a preprinted form entitled “Motion for Final Disposition” requesting speedy disposition of the charges against him pursuant to the UMDDA. However, the prosecutor did not receive a copy. Defendant subsequently pleaded guilty to an added count of possession of a controlled substance in exchange for dismissal of the remaining charges.

Defendant contended that the district court erroneously failed to dismiss the charges against him for failure to bring him to trial within 180 days of his request for final disposition as required by the UMDDA. However, there is no evidence in the record that the prosecution received notice before July 13, 2009, when defense counsel notified the court. The 180 days began to run on July 13. Defendant pleaded guilty on November 16, 2009—127 days after the prosecution received notice. Therefore, the trial court properly denied dismissal of the charges against defendant and had jurisdiction over defendant to accept his guilty plea.

2012 COA 61. No. 10CA1382. People v. Chavez.
Right to be Present—Right to Confront Witnesses—Right to Testify—Effective Assistance of Counsel—Interpreter—Cross-Examination.

Defendant Daniel Chavez appealed the trial court’s judgment of conviction entered on jury verdicts finding him guilty of second-degree assault and felony menacing. The judgment was affirmed.

In November 2006, Chavez and his brother Mario were driving through a parking lot when they encountered J.R.V. and D.D., with whom they had a longstanding contentious relationship. After exchanging words, Chavez got out of the passenger side of the truck and walked around the back of it, carrying a gun. Chavez pointed the gun at J.R.V. and told him to “back off.” J.R.V. got back into his truck. As J.R.V. and D.D. drove away, they heard gunshots.After driving for a short time, J.R.V. realized that he had been shot in the leg.

Chavez contended that his rights to be present, to confront the witnesses against him, to testify, and to receive the effective assistance of counsel were violated because he did not have an interpreter at trial. Chavez did not request an interpreter and the trial court was not on notice that he needed one. Therefore, the trial court’s determination that an interpreter was not needed was not error.

Chavez also contended that the trial court violated his Sixth Amendment confrontation rights by not allowing cross-examination regarding the victims’ gang affiliation. Chavez’s right to confrontation was not violated by the trial court’s limitation because the court did not excessively limit cross-examination. Although Chavez was not able to cross-examine the victims or any prosecution witnesses about the victims’ gang affiliation, he was able to elicit evidence about the animosity between Chavez and the victims, as well as other evidence showing the victims’ bias. Therefore, Chavez was able to present evidence to support his defense. Furthermore, the evidence was not relevant because there was no evidence that the incident was gang-related. Accordingly, the trial court did not abuse its discretion in determining that the probative value of the evidence of the victims’ gang affiliation was not substantially outweighed by the dangers of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence under C.R.E. 403.

2012 COA 62. No. 10CA2049. People v. Oslund.
Felony Murder—Aggravated Robbery.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of reckless manslaughter, first-degree felony murder, and aggravated robbery. The judgment was affirmed.

On September 4, 2009, defendant, his brother, and five others, including Matthew Maez, spent the evening drinking at a party. After becoming severely intoxicated, Maez left the house to ride home with a friend. The friend went back in the house and came out with one of the hosts. They didn’t see Maez, so they waited for him near the car.

The host heard noises coming from defendant’s car nearby. As she reached the car, Maez jumped out, knocked her down, dropped a stereo faceplate and other items, and ran away. The host, who was not able to see that it was Maez, screamed, and defendant and his brother ran out of the house. She told them which way the man had fled, and the two men set out to find him.

Approximately fifteenminutes later, defendant and his brother returned and announced it was Maez who had broken into his car and that he had punched Maez when he refused to return his property.Defendant had blood on his hand and was holding a stick.

Defendant’s brother returned with property he took from Maez, including the items from defendant’s car. (At trial, the prosecution introduced evidence that defendant’s brother also had taken Maez’s wallet and watch.)

Maez was found and taken to the emergency room by friends.The emergency room doctor diagnosed Maez with blunt force trauma to his head and eventually confirmed he was bleeding into his brain. Maez later died from his injuries.

Defendant was arrested in Nebraska about a month later. The jury found him guilty of reckless manslaughter, first-degree felony murder, and aggravated robbery. He was sentenced to life in prison without parole.

On appeal, defendant argued the evidence was insufficient to prove aggravated robbery because there was no evidence he acted with the intent, if resisted, to kill, maim, or wound Maez; therefore, his felony murder conviction must be reversed. The Court of Appeals disagreed. The prosecution, under CRS § 18-4-302(1)(c), was required to prove beyond a reasonable doubt that during the robbery or immediate flight, defendant had the intent “if resistance [was] offered, to kill, maim, or wound the person robbed or any other person.”

It was undisputed that defendant caught and punched Maez and that Maez suffered blunt force trauma to his head. The forensic pathology expert testified that if the injuries were caused by a fist alone, the fist would have been broken or severely injured. Defendant’s hands were not broken or injured. Five witnesses testified that defendant returned with a stick, and that the stick and defendant’s hands were bloody. Witnesses also testified that personal property belonging to Maez was missing when he arrived at the hospital.

Defendant argued that a reasonable juror could not convict him because there was no evidence that (1) defendant knew Maez’s identity when he set out after him; (2) the injuries on his hands were consistent with Maez’s injuries; and (3) defendant started the chase with a stick or weapon. The Court found that such evidence was not necessary to prove aggravated robbery and that the appropriate weight of any evidence, absent or present, was an issue for the jury. Reviewing the record as a whole, and in the light most favorable to the prosecution, the Court concluded there was sufficient evidence to enable a reasonable juror to find, beyond a reasonable doubt, that defendant intended to wound, maim, or kill Maez.

Defendant also asked for a jury instruction on defense of property, which the trial court denied. The Court analyzed this as requiring evidence in the record that defendant used force to prevent what he reasonably believed to be an attempt by Maez to commit theft. The Court agreed with the trial court that any assault in this case occurred after the theft had been accomplished. Defendant could not have been acting to prevent the theft. Rather, he was acting in response to what had already occurred; he was trying to apprehend the thief and recover the property. Therefore, it was not error not to give the instruction. The judgment was affirmed.

2012 COA 63. No. 10CA2386. In re the Parental Responsibilities Concerning B.R.D., and Concerning Decker.
Presumption of Fit Parent Versus Non-Parent—Custody.

Father sought liberal and expanded parenting time and a share of decision-making authority regarding his son. The trial court denied his request, awarding sole decision-making responsibility, primary residential caretaking, and majority parenting time to Phillip and Sherry Decker, the couple with whom the boy currently was residing. The order was vacated and the case was remanded. 

Father and mother are biological parents of a boy born September 2005. Mother gave him up for adoption and he was placed with the Deckers shortly after birth. In January 2006, mother filed a petition stating that she wished to relinquish to the Deckers her parental rights. Several months later, father, who had not known of mother’s pregnancy, learned of the birth. He acknowledged paternity and objected to the adoption. Mother then asked the court to dismiss her relinquishment petition and have the boy returned to her. The Deckers asked the court to terminate mother and father’s parental rights.

In June 2007, mother and father entered into a stipulation with the Deckers that awarded the Deckers sole parental and decision-making responsibility, but also allocated some parenting time to mother and father. Mother and father reserved the right to ask for a modification of parental responsibilities and also paid child support to the Deckers. In December 2008, mother moved to increase her parenting time and to have more decision-making authority. In September 2009, father asked for a similar modification.

In October 2010, the court held a three-day evidentiary hearing. The court found that the boy was deeply attached to father and mother, as well as to the Deckers and their child. The court applied the endangerment standard found in CRS §§ 14-10-129 and -131 and, finding no endangerment, decided that the Deckers should be the primary residential custodians and exercise sole decision-making authority. Father appealed.

Father argued that the court failed to accord him the presumption that he is a fit parent acting in the best interests of the boy. The Court of Appeals agreed. The Court noted that the applicable statutes essentially establish a three-step analysis: (1) there is a presumption that prior orders should remain in effect; (2) to overcome the presumption, the court must find evidence showing that the status quo endangers the child and that a modification will create advantages that outweigh any harm caused by the modification; and (3) the modification must be in the child’s best interests.

In this case, however, the Court determined that the status of the persons involved (father versus non-parents) also is a determining factor. The Court found that parents have a fundamental interest, protected by the Due Process Clause, in the care, custody, and control of their children. A fit parent is presumed to act in the best interest of his or her child. In analyzing appellate decisions addressing conflicts between parents and non-parents, the Court found (1) there is a presumption that the parent has a first and prior right to custody, which presumption may be rebutted; (2) the presumption is given “special weight” by requiring proof of “special factors” that justify interference with a parent’s decisions when the parent has custody; (3) to grant responsibilities to a non-parent over the objection of a parent, a court must find by clear and convincing evidence that such an order is in the child’s best interests based on special factors; and (4) a fit parent who has relinquished custody is nonetheless entitled to the presumption that his or her decisions about the child’s custody are in the child’s best interests.

In this case, father has a constitutionally protected interest in the boy’s care, custody, and control, and is presumed to act in the boy’s best interests. Consequently, the statutory analysis is altered in the following manner: (1) rather than presuming the existing order remains in effect, the court must give “special weight” to father’s modification request (father gains the presumption); (2) the Deckers must be given an opportunity to rebut the presumption by showing that the modification is not in the boy’s best interests and that the present allocation does not endanger him, and they must prove that the present allocation is in the boy’s best interests; (3) the Deckers must satisfy their evidentiary burdens by a preponderance of the evidence standard; and (4) if the court denies father’s request, it must make findings of fact identifying the special factors on which it relied. Because the trial court did not follow the foregoing analytic framework, its ruling was in error and the case was remanded for proceedings conducted under the standards described in the opinion.

2012 COA 64. No. 11CA0941. People in the Interest of M.C.
Willful Destruction of Wildlife.

M.C., a juvenile, appealed an adjudication of delinquency entered after a bench trial. The judgment was affirmed.

The juvenile and two companions, T.P. and C.P., had gone out to shoot clay pigeons when they encountered a pronghorn antelope. T.P. shot and killed it. The boys went to C.P.’s home and returned that night, dragged the carcass down a hill, and hid it. The juvenile assisted. The juvenile was charged with willful destruction of wildlife, in violation of CRS § 33-6-117(1)(a)(II), which holds that it is unlawful to “intentionally abandon the carcass or body of taken wildlife.” The offense is a class 5 felony. The prosecution responded to a request for a bill of particulars as follows:

[Juvenile] abandoned the wildlife when he left the original kill site with the person who killed the wildlife. He went with the person who killed the wildlife back to a [sic] juvenile’s house. He then returned to the scene with the person who killed the wildlife. He helped move the carcass from the original spot to a different location. He and the others then abandoned the wildlife.

The juvenile moved to dismiss on the ground that the information failed to charge an offense. He argued that CRS § 33-6-117(1)(a)(I) and (II) are not independent and, therefore, the actor had to have “taken” the wildlife. Alternatively, he argued that subsection (II) was unconstitutionally vague because it does not identify what right or interest the actor must have in the wildlife. The court denied the motion.

The juvenile renewed his same arguments on appeal. The Court of Appeals rejected both of them. The Court first found that the plain language of CRS § 33-6-117(1)(a)(I) and (II) describes different ways of committing willful destruction of wildlife—one of which is abandoning wildlife regardless of whether the actor was also the taker.

The Court also found that CRS § 33-6-117(1)(a)(II) was not void for vagueness. A facial challenge requires a showing that the statute is “impermissibly vague in all of its applications.” The juvenile argued that a person can only abandon something in which a person has a right or interest. Here, the statute requires that the wildlife was “taken,” defined as “to acquire possession of wildlife.” Although finding ambiguity in the phrasing (the actor doing the taking is not identified), the Court held that it did not rise to the level of unconstitutional vagueness, because a person of common intelligence has sufficient notice under the statute that subsection (II) could apply to abandonment of wildlife taken by another person. “Abandon” is not defined in the statute, but the plain meaning of the word is clear enough that a person of common intelligence would understand that there was liability for abandoning the carcass of an animal taken by another. The judgment was affirmed.

2012 COA 65. No. 11CA1046. TCD, Inc. v. American Family Mutual Insurance Co.
Summary Judgment—Duty to Defend.

Plaintiff TCD, Inc. appealed the district court’s summary judgment in favor of defendant American Family Mutual Insurance Company (American Family), on the ground that the insurance company had no duty to defend TCD under a commercial general liability (CGL) insurance policy. The judgment was affirmed.

The developer, Frisco Gateway Center, LLC (Gateway), entered into a contract with TCD, the general contractor, to construct a building. TCD subcontracted with Petra Roofing and Remodeling Company (Petra) to install the roof. The subcontract required Petra to “indemnify, hold harmless, and defend” TCD against claims arising out of or resulting from the performance of Petra’s work on the project. Petra also was to name TCD as an additional insured on its CGL policy. American Family issued a CGL policy to Petra, with TCD as an additional insured. The policy was cancelled on June 10, 2007 for nonpayment of the premium.

TCD sued Gateway, seeking payment on the project. Gateway counterclaimed for breach of contract, negligence, and violation of the Consumer Protection Act. This action proceeded to arbitration and resulted in a binding award. As an additional insured under the CGL policy, TCD demanded that American Family defend and indemnify it in the underlying action, but American Family denied coverage.

TCD sued Petra and American Family, asserting claims for declaratory judgment, breach of insurance contract, breach of contract, and negligence. The district court entered a default judgment against Petra and granted summary judgment in favor of American Family.

On appeal, TCD argued that Gateway’s counterclaims were sufficient to raise a genuine issue as to whether American Family had a duty to defend it against those counterclaims. Alternatively, TCD argued it was entitled to have the Court of Appeals consider evidence not contained in the counterclaims that purportedly shows the insurance company had a duty to defend. Finally, TCD argued that CRS § 13-20-808, enacted three years after the CGL policy was cancelled, requires reversal. The Court rejected all three arguments.

TCD argued that Gateway’s claims constituted “property damage” covered by the CGL policy. The Court stated that defense and liability coverage in CGL policies issued to subcontractors generally is limited to property damage caused by an “occurrence.” In this policy, an “occurrence” is “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” In analyzing the counterclaims made by Gateway, the Court found no alleged “accident,” but found that Petra improperly installed the roof, resulting in defects that caused TCD to breach its contract with Gateway.

TCD argued that it should be allowed to go outside the “four corners” of the counterclaims and offer other evidence. The Court found the argument unpersuasive.

In May 2010, the legislature enacted HB 10-1394, codified as CRS § 13-20-808. The Court held that the statute was not retroactive, and therefore was inapplicable. The judgment was affirmed.

2012 COA 66. Nos. 11CA1243 & 11CA1250. Great Plains National Bank N.A. v. Mount.
Summary Judgment—Food Security Act—Security Interests in Cattle—Uniform Commercial Code.

In this consolidated appeal, defendants Jamie Mount and Cattle Consultants, LLC appealed the district court’s summary judgment in favor of plaintiff Great Plains National Bank, N.A. (Great Plains) on their separate motions for summary judgment. The judgment was affirmed.

This consolidated case involved two disputes. Mount claimed under the Food Security Act of 1985 (FSA) that he purchased 206 head of cattle free of a security interest claimed by Great Plains. Cattle Consultants and Great Plains each claimed a superior security interest in the 206 head of cattle.

In October 2009, Fred Smith obtained a loan from Great Plains and granted a security interest covering “[a]ll cattle” that he owned at the time or would acquire in the future. On November 19, 2009, Great Plains filed a Uniform Commercial Code (UCC) financing statement with the Oklahoma Secretary of State’s office reflecting this interest. Great Plains also filed an effective financing statement (EFS) in Oklahoma, as required by the FSA, on December 17, 2009.

On February 15, 2010, Mount agreed to purchase 206 head of cattle from Smith. That same day, Cattle Consultants financed Mount’s purchase, and Mount granted Cattle Consultants a security interest in the 206 head of cattle. Cattle Consultants filed a UCC financing statement with the Colorado Secretary of State on March 8, 2010.

Mount believed he was buying 206 head of cattle located in Oklahoma, but Smith actually fulfilled the purchase with cattle he had just bought on February 14, 2010 from a broker in Missouri. On February 18, 2010, Smith received a shipment of 231 head of cattle from the Missouri cattle broker. The next day, he loaded 206 of them onto trucks bound for Colorado. Mount paid for the shipping.

Smith paid the Missouri cattle broker with a check from an account with insufficient funds, but Great Plains covered it. Great Plains couldn’t recoup the money from Smith. In April 2010, Great Plains sought to enforce its security interest in the 206 head of cattle purchased by Mount and filed a UCC financing statement against Smith in Colorado.

All parties moved for summary judgment, and the district court ruled in favor of Great Plains. The court concluded that the cattle were “produced in” Oklahoma, such that under the FSA, Mount’s purchase was subject to Great Plains’ financing statement filed in that state. The court further found that Cattle Consultants’ security interest in the cattle was junior to Great Plains’ security interest. Mount and Cattle Consultants appealed.

Mount argued the trial court misinterpreted the phrase “produced in” under the FSA. The Court had to determine whether Mount’s cattle were “produced in” Oklahoma. If so, they were subject to Great Plains’ security interest. If not, they were free and clear of that security interest. Under the FSA, buyers of farm products generally take free of a security interest created by the seller; however, there is an exception under 7 U.S.C. § 1631(e) that applies where (1) the farm product was produced in a state that has a central filing system, (2) the buyer has failed to register with that state’s secretary of state, and (3) the secured party has filed an effective financing statement covering the farm products being sold.

Mount challenged the district court finding that the cattle were produced in Oklahoma, arguing they were produced in Missouri, which has no central filing system. The phrase “produced in” is undefined in the FSA and no case law was found in this regard. The Court of Appeals therefore looked to the plain and ordinary meaning of the phrase, which it found ambiguous and, as a consequence, turned to legislative history. It noted that Mount’s argument could result in buyers purchasing farm products subject to security interests they had no practical method of discovering (Mount himself believed he was buying cattle from Oklahoma). Based on the purposes of the FSA as stated in its legislative history, the Court held that “produced in” means the location where farm products are furnished or made available for commerce. Therefore, it affirmed the district court’s decision that Mount purchased the cattle subject to the perfected security interest claimed by Great Plains.

Cattle Consultants argued it had a senior security interest in Great Plains because Mount, not Smith, owned the cattle when they entered Oklahoma; therefore, Great Plains did not have a security interest in them and its purchase money security interest (PMSI) had priority over any competing security interest. The Court disagreed. Under the UCC, a security interest is enforceable against a debtor and third parties with respect to the collateral when (1) value is given; (2) the debtor has rights in the collateral; and (3) the debtor has signed a security agreement that provides a description of the collateral. Here, it was undisputed that Great Plains gave value to Smith; Smith had an ownership interest in the cattle; and Smith gave Great Plains a security agreement with an interest in all cattle owned or later acquired.

The Court also disagreed that the PMSI had priority. Great Plains filed its financing statement on November 19, 2009. This filing was done before Smith acquired rights in the cattle and thus was perfected at the moment of attachment. Cattle Consultants did not file their financing statement until March 2010. Great Plains was the first to file, and therefore had priority.

2012 COA 67. No. 06CA2677. People v. Durapau.
Sex Offender Registration—Not Guilty by Reason of Insanity—Conditional Release—Due Process—Constitutional Rights.

Defendant appealed the district court’s order requiring him to register as a sex offender pursuant to CRS § 16-8-115(4)(a). The appeal was dismissed in part and the order was affirmed.

In 1997, defendant carried an intoxicated victim over his shoulder from her neighboring apartment to his apartment and had sexual intercourse with her. Although he maintained the sex was consensual, defendant was charged with first-degree sexual assault. In 1999, pursuant to a plea agreement, the district court found defendant not guilty by reason of insanity (NGRI). Defendant was committed to the Colorado Mental Health Institute at Pueblo (CMHIP). In 2006, the court granted defendant conditional release from CMHIP, and required him to register as a sex offender as a condition of release.

On appeal, defendant contended that the court erred in imposing sex offender registration, because no such statutory requirement existed when he entered his NGRI plea. CRS § 16-8-115(4)(a) addresses the registration requirement for an NGRI defendant who is released from commitment, and in 2005, the General Assembly amended this section by making registration mandatory. Therefore, all NGRI offenders who have pleaded to an offense involving unlawful sexual behavior are required to register as a condition of release. Further, the registration requirement of CRS § 16-8-115(4)(a) is triggered by the court’s conditional release order, not the dates of the charged offense or the NGRI finding. Because defendant pleaded NGRI to an offense involving unlawful sexual behavior, and he was granted conditional release from CMHIP after the effective date of the amended statute, the court was required to impose registration as a condition of release. Furthermore, this registration requirement did not violate defendant’s due process or constitutional rights.

Defendant also contended that his case should be remanded to the district court for a hearing to allow him to withdraw his plea because he was not advised of the registration requirement. However, the court expressly reserved ruling on whether defendant should be allowed to withdraw his plea in its November 13, 2006 order. Because the court reserved ruling on that issue and there was no final appealable order, the Court of Appeals lacked jurisdiction to consider this issue, and dismissed that portion of defendant’s appeal.

Colorado Court of Appeals Opinions

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