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Colorado Court of Appeals Opinions
April 24, 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 48. No. 09CA1351. People v. Lane.
Jury Instructions—Lay Testimony—Expert Testimony—Mental Examination—Restitution.

After consuming several drinks, defendant Jason Lane and the victim went to Lane’s motel room in Aurora, where the victim and a neighbor of Lane’s smoked crack cocaine. Afterward, Lane permitted the victim to spend the night. According to Lane, he awoke in the middle of the night to find the victim groping his chest and genitals over his clothing. Lane claimed he acted in self-defense by stabbing the victim with a steak knife thirteen times in the chest, killing him. The jury convicted Lane of second-degree murder, and the trial court sentenced him to forty-five years in prison. The trial court also ordered Lane to pay restitution to all three of the victim’s siblings.

On appeal, Lane contended that the trial court erred in giving the jury improper jury instructions. The applicable self-defense statute emphasizes the reasonableness of a defendant’s use of self-defense. Here, the trial court properly instructed the jury on this element, and defense counsel did not tender an alternative instruction or raise further objections. The court also properly instructed the jury on the issue of defendant’s claim of an elemental traverse, which does not place the burden on the prosecution to disprove this type of self-defense.

Lane also contended that the trial court erred in excluding certain expert and lay testimony. The court did not err in finding that Lane’s request for expert testimony concerning post-traumatic stress disorder triggered Lane’s requirement to undergo a court-ordered examination for this condition, which Lane refused to do. The court also did not abuse its discretion in denying Lane’s request to present lay witnesses to testify about physical and sexual abuse perpetrated against him when he was a young child and an adolescent, because this testimony was too remote and irrelevant without expert testimony to explain the impact of such incidents on Lane’s mental state.

Lane further contended that the trial court erred in limiting the cross-examination of D.B., a prosecution witness who worked at the bar where Lane and the victim met the night of the crime. However, the record shows that defense counsel elicited, and the jury had ample information about, D.B.’s felony conviction and background to assess her credibility. Therefore, the trial court did not abuse its discretion in excluding the further details of this issue.

Finally, Lane contended that the trial court erred in awarding restitution for the travel expenses of all three of the victim’s siblings to attend the trial. Because the statute permits such restitution when a victim is deceased, the trial court did not err in awarding restitution to the victim’s siblings. The judgment and order were affirmed.

2014 COA 49. No. 09CA2717. People v. Cisneros.
Jury Instructions—Challenge for Cause—Deadly Weapon—Evidence—Right to Bear Arms—Controlled Substance—Miranda Rights—Motion to Suppress Statements—Res Gestae Evidence.

Defendant was at home with his wife, four children, brother, and mother when intruders who apparently intended to rob defendant fired shots into the apartment. Defendant grabbed a handgun and fired shots toward the intruders. Defendant’s 10-year-old daughter was caught in the crossfire. She was shot in the head and died at the scene.

The People charged defendant with child abuse resulting in death, possession with intent to distribute marijuana, possession of marijuana–eight ounces or more, and one special offender count under the special offender statute’s deadly weapon provision. The People alleged that defendant was an armed drug dealer who sold drugs out of his home, thereby placing his daughter in a situation that posed a threat of injury to her health. The People also alleged that defendant possessed the handgun in connection with his drug dealing business.

Regarding defendant’s contention on appeal for an elemental jury instruction concerning possession of a deadly weapon under CRS § 18-18-407(1)(f), the Court of Appeals ruled that the instructions as a whole properly informed the jury of the elements of the sentence aggravator and the proof beyond a reasonable doubt burden. The Court also ruled that there was sufficient evidence to support the jury’s findings that defendant possessed both a controlled substance and a deadly weapon, and to infer a nexus between the controlled substance and the weapon.

The Court determined that because the U.S. and Colorado Constitutions do not protect the unlawful purpose of possessing a firearm in furtherance of a drug offense, the Second Amendment right to bear arms in self-defense does not infringe on the constitutionally protected right to bear arms. Defendant was not entitled to the statute’s instruction. Further, because the jury found that defendant’s possession of the handgun was related to his drug offense, the statute was not unconstitutional as applied to him, nor was it unconstitutionally vague.

The Court did not agree with defendant’s argument that his statements to law enforcement officers should have been suppressed. Defendant was not in custody and was not being interrogated when he provided his statement to the officer at the scene or in the waiting room at the police station, and defendant voluntarily made statements to police after they advised him of his Miranda rights. Therefore, the trial court did not err in denying defendant’s motion to suppress.

The Court ruled that the trial court did not err in denying defendant’s causal challenge to a juror who worked as a reporter for The Denver Post. The record supported the court’s finding that this juror could “do what the law requires” and could handle any consequences of his relationship with law enforcement agencies.

Defendant contended that the trial court erred when it admitted, as res gestae, evidence concerning his prior acts of buying, selling, and receiving marijuana. This evidence, however, was relevant as to defendant’s knowledge and intent to distribute the marijuana, his possession of a deadly weapon in connection with that offense, and the dangerous circumstances in which defendant allowed his daughter to live. Therefore, the court did not err in admitting it. The judgment and sentence were affirmed.

2014 COA 50. No. 10CA2488. People v. Richardson.
Motion to Suppress Statements—Challenge for Cause.

Until the victim, C.S., was almost 12 years old, he lived with his great-grandmother. Defendant, the great-grandmother’s brother, often visited the home. When the victim was 11 years old, defendant inappropriately touched the victim and then progressed to performing oral sex on the victim.

Defendant was arrested and, after waiving his Miranda rights, substantially admitted the victim’s allegations regarding sexual contact. He subsequently was charged with and found guilty of sexual assault on a child, sexual assault on a child by a person in a position of trust, and sexual assault on a child as part of a pattern of abuse.

On appeal, defendant contended that the trial court erred in denying his motion to suppress the statements he made during his phone conversation with the victim, which were recorded by the police. Contrary to defendant’s argument, however, parental presence was not required for the victim’s consent to record the conversation with defendant to be valid.

Defendant also contended that the trial court erred when it denied his motion to suppress the statements he made during a custodial interrogation. The record supports the trial court’s finding that defendant did not unequivocally invoke his right to silence. Accordingly, the trial court did not err in denying defendant’s motion to suppress.

Defendant further contended that the trial court erred in denying his challenge for cause to Juror M. On her juror questionnaire, Juror M indicated that a relative had been the victim of a sexual assault, and that this would affect her ability to be a fair and impartial juror. She also wrote that she believed she could not be a fair and impartial juror because the case involved “a crime against a child.” The court thereafter questioned Juror M, who affirmed that she understood that the prosecution carried the burden of proof, and that she would listen to all the evidence and base her decision on the evidence despite her background. Therefore, the trial court did not abuse its discretion in denying defendant’s causal challenge to Juror M.

2014 COA 51. No. 11CA1456. People v. Dutton.
CRE 901—Authentication—Evidence—Reckless Driving—Vehicular Eluding—Driving With a Revoked License—Lesser Included Offense.

After being pulled over by a police officer, Anton Dutton accelerated his car and fled the scene. To protect the safety of the public, the officer ceased his pursuit and later identified Dutton through the vehicle’s owner. At trial, Dutton’s defense was that he was not the driver of the vehicle.

On appeal, Dutton argued that the trial court abused its discretion in admitting a statement from a phone call to a police officer that was insufficiently authenticated under CRE 901 as a call made by Dutton. There was sufficient evidence in the record, however, to authenticate the phone call, because the timing of the call to the officer and the caller’s self-identification as “Anton Dutton” allowed the jury to reasonably infer that Dutton received the officer’s message to call him through the owner and then promptly responded to it by calling the officer. Therefore, the court did not err in admitting such testimony.

Defendant also argued that there was insufficient evidence to support his reckless driving and vehicular eluding convictions. Based on the officer’s testimony, there was sufficient evidence for the jury to find that Dutton drove the vehicle recklessly, given testimony that Dutton was driving at unsafe speeds and almost hit a pedestrian. Thus, there was evidence to support the jury’s finding that he drove “in such a manner as to indicate either a wanton or a willful disregard for the safety of persons or property” and “consciously disregard[ed] a substantial and unjustifiable risk” of harm.

Dutton argued that his reckless driving and vehicular eluding convictions should be vacated because they are lesser included offenses of aggravated driving with a revoked license (DARP). The jury found that Dutton’s conviction for aggravated DARP was predicated on him committing vehicular eluding and reckless driving, which are both lesser included offenses of aggravated DARP. However, where a conviction is predicated on more than one offense, only one of those offenses need be merged, because only one predicate offense is essential to support the greater offense. Therefore, Dutton’s conviction for reckless driving must merge under his conviction for aggravated DARP on remand. The judgment was affirmed in part and vacated in part, and the case was remanded with directions.

2014 COA 52. No. 12CA0430. People v. Notyce.
Sentence—CAR 28(k)—Issue on Appeal—Plain Error.

As the result of the prosecution’s appeal of defendant’s initial sentence in Notyce I, this case was specifically remanded to the trial court for resentencing to the twenty-four-year sentence required under the habitual criminal statute. Defendant appealed from that remand proceeding.

Specifically, defendant challenged the way in which the court imposed his sentence on remand. Defendant failed to indicate, however, where he raised this issue in the trial court pursuant to CAR 28(k). Any error in this case was not obvious and, therefore, not plain error. Accordingly, the Court of Appeals declined to address the merits of defendant’s sentencing contention, and the sentence was affirmed.

2014 COA 53. No. 12CA0801. People v. Lucero.
Prima Facie Case of Discrimination Under Batson—Failure to Exercise Peremptory Challenges.

On the first day of a jury trial, twenty-two potential jurors were seated for voir dire. The court stated that there would be no alternates and that the People and defendant would each have five peremptory challenges. Both defendant and the People passed the entire venire for cause.

Jurors were assigned seats one through twenty-two, but peremptory challenges were to be used against jurors in seats one through twelve only, with replacements taken from seats thirteen to twenty-two, a process known as the “struck jury” system. Juror P, the only potential juror with a Hispanic surname, was seated in chair twenty-two.

The People and defendant each struck two potential jurors. The People waived their third peremptory challenge and accepted the panel. Defendant exercised his third challenge and the People again accepted the panel. Defendant exercised his fourth challenge and the People exercised their third peremptory to strike the replacement juror. Defendant exercised his fifth challenge and the People exercised their fourth challenge to strike the replacement juror. The People then accepted the panel again. Because the People did not exercise their fifth challenge, Juror P was not on the final jury panel and was excused.

The court asked whether the parties had any objection pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). Defense counsel indicated he had a problem with how the peremptory challenges had been used with respect to Juror P. After discussion, the court ruled that the defense had not established a prima facie case of discrimination because the People had not exercised a strike to exclude Juror P. Defendant appealed, and the Court or Appeals affirmed.

To make a Batson challenge, the defendant must first make a prima facie showing that the State has excluded potential jurors based on race, ethnicity, or sex. In a case of first impression in Colorado, the Court held that waiver of a peremptory challenge, without more, is insufficient to establish a prima facie case of discrimination under Batson. However, a waiver of a peremptory challenge, with additional indicia of discriminatory purpose, could establish a prima facie case.

Here, the People’s waiver of its last peremptory challenge excluded a minority juror, but defendant failed to demonstrate any other discriminatory action by the prosecutor. Therefore, no pattern of discrimination was shown, and the trial court did not err in finding that defendant had failed to make out a prima facie case of discrimination. The judgment was affirmed.

2014 COA 54. No. 12CA1664. People v. Paglione.
Theft—Fair Trial—Use Immunity.

Defendant, a mortgage broker and banker, helped the victim refinance his house to obtain cash needed to purchase a second house to use as a rental property. Later, defendant helped the victim take out a home equity loan on the rental property. The net proceeds of the home equity loan were approximately $76,000. Defendant arranged for the victim to make payments on both mortgages directly to defendant, who represented he was an agent for the mortgage lender. The victim requested statements, and defendant generated his own receipts and statements for the victim. When the victim attempted to pay the remaining balance of both loans in the amount he believed was outstanding, he discovered the mortgages had not been fully paid and reported defendant to the police for theft.

Defendant testified he had received the victim’s money from the home equity loan but did not apply it to the victim’s primary residence, claiming the victim loaned him the $76,000 in a transaction outside the home equity loan closing. Defendant claimed this loan was evidenced by a promissory note, which he was unable to produce. Defendant also testified he had paid interest to the victim and to victim’s mortgage lender. A jury found defendant guilty of theft of $20,000 or more and sentenced him to five years of probation.

On appeal, defendant claimed he was denied his constitutional rights to a fair trial and to present evidence on his own behalf. He also alleged it was error not to require the prosecutor to request use immunity for a defense witness.

At trial, defendant called to testify a former employee of the title company, who was the closer of the second loan. The prosecutor asked for a bench conference, during which he advised the court that the employee should be advised of her Fifth Amendment rights because if she testified that she notarized the loan documents, the victim and his father were prepared to testify she wasn’t there when he signed. Following additional colloquy in chambers, the court advised the closer of the possible penalties for a first-degree perjury conviction. The court offered to appoint counsel for the loan closer, and she agreed. Following consultation with the attorney, she exercised her Fifth Amendment right and refused to testify.

The Court of Appeals looked to the totality of the circumstances to determine whether the prosecution’s actions constituted substantial governmental interference with a defendant’s right to present a defense. The Court reviewed six factors and concluded that defendant had not established by a preponderance of the evidence that this perjury warning and advisement deprived him of a fair trial.

Defendant also had requested that the court grant immunity to the loan closer or, alternatively, order the prosecutor to request immunity for the loan closer pursuant to CRS § 13-90-118. The court denied the request, and the prosecutor stated it would be “inappropriate” to grant immunity. The Court agreed that only the prosecutor may request immunity for a witness and neither the court nor the defense can require the prosecutor to make such a request.

The Court reviewed and rejected a number of other arguments made by defendant concerning jury instructions, challenge for cause, juror misconduct, and cumulative error. The judgment was affirmed.

2014 COA 55. No. 13CA0285. Qwest Corporation v. City of Northglenn.
Use Taxes—Statute of Limitations—CRS § 39-26-210.

Qwest Corporation has a facility in Thornton, a home-rule municipality. Under Thornton’s tax code, Qwest must pay use taxes on new purchases delivered to the Thornton facility. Northglenn, an adjacent home rule municipality, has a similar tax ordinance.

Qwest’s Thornton facility is across the street from Northglenn. Between 2002 and 2005, an error in Qwest’s computer software recognized the Thornton facility as being in Northglenn. As a result, Qwest mistakenly paid to Northglenn use taxes it owed to Thornton during that time.

In 2008, Thornton conducted an audit of Qwest and discovered the error. After Thornton notified Qwest of the deficiency, Thornton and Qwest entered into numerous agreements extending the three-year limitations period under CRS § 39-26-210 for collecting tax assessments and requesting refunds applicable to Qwest’s tax liability to Thornton. Thornton ultimately issued Qwest a sales and use tax assessment totaling $65,862.19 for the subject period.

In 2010, pursuant to CRS § 29-2-106.1(3), Qwest requested a hearing concerning the deficiency by the Colorado Department of Revenue (Department) and joined Northglenn as a respondent. This was the first time that Qwest notified Northglenn that it had received tax payments in error. The Department concluded that any action against Northglenn for taxes for the 2002 through 2005 period was time barred, and Qwest remained liable to Thornton.

Qwest appealed to the district court and moved for summary judgment. The district court affirmed the Department.

On appeal, Qwest argued that under CRS § 29-2-106.1(5) and (6), it is immune from liability for use taxes owed to Thornton for 2002 to 2005 because it erroneously paid those taxes to Northglenn. It further argued that the statute of limitations did not relieve Northglenn of any obligation to forward the erroneously paid taxes to Thornton. The Court of Appeals disagreed.

Colorado’s general use tax statute limits the time to collect taxes to three years after the date the tax is due. The parties agreed that if the limitations period applies, it has expired. The Court concluded that it clearly applies because it covers “any action to collect use taxes.”

Qwest also argued that it should be relieved of its tax liability to Thornton because it paid the amounts due to Northglenn. The Court rejected this argument because Thornton cannot recover the money from Northglenn due to the statute of limitations. The Court therefore affirmed the district court’s decision that Qwest remains liable to Thornton for the use tax deficiency.

2014 COA 56. No. 13CA0750. People v. Houston.
Presentence Confinement Calculation.

The question in this case was whether the trial court erred in granting defendant 130 days of presentence confinement credit (PSCC) rather than the 724 days sought by defendant. CRS § 18-1.3-405 provides that “[a] person who is confined for an offense prior to the imposition of a sentence for said offense is entitled to credit against the term of his or her sentences for the entire period of such confinement.” There must be a “substantial nexus” between the offense and the period of confinement for which PSCC is sought.

On December 22, 2009, defendant was served an arrest warrant in Larimer County, and on November 5, 2010, he was sentenced to probation and released (first period). Defendant argued that he was entitled to 319 days of PSCC for this period, but the People argued he was entitled to only eighty-four days, reflecting the amount of time he was in custody in Jefferson County for a separate offense. The Court of Appeals agreed with the People. During the first period, defendant was in custody in Jefferson County for eighty-four days, and he was entitled to PSCC for that time. However, defendant was not entitled to PSCC for the remaining time he was confined in Larimer County, because the conduct for which he was confined was unrelated to this case and he was confined in a different jurisdiction.

The second period was from December 19, 2010, when defendant was arrested based on a revocation complaint filed in this case, to February 3, 2011, when the district court declined to revoke his probation and released him to probation. The only dispute was whether the amount of PSCC was properly calculated as forty-seven days or forty-six days. The district court granted forty-six days.

The Court was not certain, but believed the dispute was whether the PSCC should have included both the date of defendant’s arrest and the date of his release to probation. The Court concluded that defendant was entitled to credit for both dates, and therefore the trial court erred by one day in its PSCC calculation for the second period.

The third period was from December 28, 2011, when defendant was arrested in Denver County, to December 20, 2012, when he was sentenced to prison in this case. Defendant argued he was entitled to 358 days of PSCC for this entire period, and the People argued he was not entitled to any.

On March 24, 2011, another revocation complaint was filed in this case (second revocation complaint) and a warrant was issued for defendant’s arrest. In April 2011, a revocation complaint was also filed in the Larimer County case. Defendant was arrested in Denver County, and the record suggests he was arrested on the warrant in this case. During the third period, he was transferred to Jefferson County a number of times on writs from either Denver County or Larimer County. On July 3, 2012, an addendum to the second revocation complaint was filed, which added as a basis for revocation the charge filed against him in Denver County (the amended second revocation complaint). A new arrest warrant was issued on July 5, 2012. The district court ultimately revoked probation in this case and sentenced defendant to four years in prison.

During the third period, the amount of time defendant was in Denver, Larimer, or Jefferson Counties was unclear, and therefore there was no basis for the Court to allocate the PSCC due based on time in each jurisdiction. The Court held that the time defendant was confined in Denver County was based on defendant’s alleged failure to register as a sex offender in Denver County and not the second revocation complaint in this case. The Court found that the time defendant was confined in Larimer County was based on the revocation complaint filed in the Larimer County case. The Court declined to consider the time defendant was confined in Jefferson County, because defendant did not present any argument in the district court or on appeal that he was entitled to PSCC on the basis of his confinement in Jefferson County during the third period.

The order was affirmed in part and reversed in part. The case was remanded for the district court to award defendant one additional day of PSCC.

2014 COA 57. No. 14CA0105. People in the Interest of Marquardt.
Involuntary Administration of Antipsychotic.

Larry Marquardt was committed to the Colorado Mental Health Institute at Pueblo (CMHIP) after having been found not guilty by reason of insanity in a criminal case. Since arriving at CMHIP, he was voluntarily taking ten milligrams of Saphris, an antipsychotic medication, once a day. The People petitioned the court to slowly increase the dosage to 20 milligrams per day, because he refused to voluntarily do so and his psychiatrist felt 10 milligrams was ineffective.

After a hearing, the court ordered the dosage could be increased over his objection. On appeal, Marquardt argued that the trial court erred in applying the elements established in People v. Medina, 705 P.2d 961 (Colo. 1985),to the facts of this case.

As a matter of first impression, the Court of Appeals had to decide whether Medina was applicable to a nonemergency request to increase antipsychotic medication dosage over a patient’s objection. It concluded it was applicable; however, the trial court applied an incorrect legal standard in its decision.

The trial court was required, pursuant to Medina, to find by clear and convincing evidence a number of factors, one of which was whether, absent the increased dosage, Marquardt would suffer significant and likely long-term deterioration to his mental health. Although the evidence supported the trial court’s finding that Marquardt was unlikely to improve at the current dosage, that was not the correct standard and there was not clear and convincing evidence that, absent the increased dosage, he would suffer a significant and likely long-term deterioration to his mental health. The order was reversed.

Colorado Court of Appeals Opinions

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