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Colorado Court of Appeals Opinions
April 25, 2013

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.

2013 COA 55. No. 09CA1743. People v. Osorio-Bahena.
Sexual Assault Against an At-Risk Adult—Rape Shield Statute—Prior Sexual Conduct—Mental Capacity—Competency—Involuntary Psychiatric Evaluation.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of two counts of attempted sexual assault. The judgment was affirmed.

St. Paul’s House is a residential-care facility for boys with developmental and mental health issues. In 2007, S.S., an 18-year-old resident of the facility with the mental capacity of a 5-year-old, reported that defendant, who worked at the facility, had sexually assaulted him. Defendant was charged with sexual assault against an at-risk adult.

Defendant contended that the exclusion of evidence that described S.S.’s prior incidents of oral and anal sex, offered to explain an alternative source of S.S.’s sexual knowledge, was an abuse of discretion. Evidence of S.S.’s prior sexual conduct was not relevant to show an alternative source of S.S.’s sexual knowledge because (1) S.S.’s limited mental capacity may have given rise to an inference of a lack of sexual knowledge; (2) evidence of prior incidents may show an alternative source of sexual knowledge, regardless of whether the prosecution injects the issue into the trial; and (3) the dissimilarities here did not tend to negate such knowledge. The case was remanded to the trial court to evaluate the admissibility of the evidence under CRE 403.

Defendant contended that the trial court erred by denying his motion for an involuntary psychiatric competency evaluation of S.S. and finding that S.S. was competent to testify. The pretrial testimony by the director of the facility and the videotaped interviews of S.S. both support the trial court’s findings that S.S. could recall the incident and understand the difference between the truth and a lie. Accordingly, the trial court did not abuse its discretion in refusing to order an involuntary examination or finding S.S. competent to testify.

Defendant also contended that the trial court erred by allowing the jury to view a photograph of his bare chest, taken during trial but outside the jury’s presence. He asserted that taking the photograph violated Crim.P. 41.1 and his Fifth Amendment right against self-incrimination. The Court ruled that the photograph was relevant merely to support S.S.’s statements about defendant, and thus rejected defendant’s assertions.

Defendant further argued that the trial court erred when it rejected his request to allow his wife to testify that he was uncircumcised. However, because S.S. was never asked about this particular fact, the evidence was not relevant.

2013 COA 56. No. 09CA2081. People v. Madden.
Refund of Restitution—Overturned Conviction.

Defendant Louis Madden appealed the district court’s order denying his request for a refund of restitution. The order was reversed and the case was remanded.

Madden was convicted of attempted patronizing of a prostituted child and attempted third-degree sexual assault by force, and he was ordered to pay restitution in the amount of $910. The Supreme Court ultimately reversed his conviction for attempted patronizing of a prostituted child, and the attempted third-degree sexual assault conviction was later vacated due to constitutionally ineffective trial counsel.

Madden argued that the trial court erred in denying his request for a refund of the restitution paid after his conviction was vacated, and the Court of Appeals agreed. A defendant whose conviction is overturned on appeal is entitled to seek a refund of the restitution paid in connection with the overturned conviction when the People fail to prove on remand the defendant’s guilt of the charged crimes beyond a reasonable doubt. Therefore, Madden was entitled to a refund of the restitution that he paid in connection with his now overturned conviction, and he was permitted to request a refund by filing a motion in this case. The order was reversed and the case was remanded to the district court to award Madden a refund of the restitution that he paid in this case.

2013 COA 57. Nos. 10CA0501 & 10CA0527. People v. Lahr.
Aggravated Robbery—Other Act Evidence—Relevance—Illegal Sentence—Extraordinary Risk Crime.

Defendant Jacob John Lahr appealed the judgment of conviction entered on jury verdicts finding him guilty of aggravated robbery, menacing, aggravated motor vehicle theft, possession of a controlled substance, and possession of a weapon by a previous offender (POWPO). The People appealed the district court’s sentence. The judgment was affirmed, the aggravated robbery sentence was vacated, and the case was remanded for entry of a corrected sentence.

According to the prosecution’s evidence, defendant stole a car, robbed a Motel 6, robbed a Fascinations store, and later stole an SUV. Defendant contended that the district court erred by incorrectly applying the second part of the Spoto test for admission of other act evidence. [See People v. Spoto, 795 P.2d 1314, 1319 (Colo. 1990).] Defendant’s theory of the case was that another person committed both the Motel 6 robbery and the SUV theft. However, there were sufficient similarities between the two robberies. Therefore, the district court did not abuse its discretion when it ruled that evidence of the Fascinations robbery was logically relevant, because it tended to make more probable the material fact that defendant was the person who robbed the Motel 6 and/or stole the SUV.

Defendant also contended that the district court erred by denying his motion for a new trial. A verdict form regarding the POWPO charge against defendant, which was part of a bifurcated case, was inadvertently given to the jury. The court told the jurors that the POWPO verdict form had been included in error and asked them to hand their copies to the bailiff. Assuming the court gave an instruction to disregard the form, the reference was clearly not so prejudicial that any resulting prejudice could not have been remedied by the instruction. Further, even if the court did not so instruct, the reference was not so prejudicial that the drastic remedy of declaring a mistrial was required. Therefore, any error was harmless, and the district court did not abuse its discretion by denying defendant’s motion for a new trial.

The People contended that the district court imposed an illegal sentence for defendant’s aggravated robbery conviction. Aggravated robbery is a class 3 felony and is an extraordinary risk crime that is subject to the modified presumptive sentencing range. The court imposed a forty-eight-year prison sentence for defendant’s aggravated robbery conviction. However, CRS § 18-1.3-801(2) required a sentence of sixty-four years for a defendant convicted of aggravated robbery and adjudicated a habitual criminal. Therefore, the district court’s sentence for the aggravated robbery conviction was illegal and the case was remanded to the district court for resentencing.

2013 COA 58. No. 11CA1206. People v. Nelson.
Refund of Restitution—Overturned Conviction.

Defendant Shannon Nelson appealed from the district court’s order denying her motion for a refund of the restitution paid while she was incarcerated in the Department of Corrections (DOC). The order was reversed and the case was remanded.

Nelson was charged with forty counts related to the alleged sexual assault and physical abuse of her four children. Nelson appealed her convictions, and a division of the Court of Appeals reversed and remanded the case for a new trial. At her second trial, Nelson was acquitted of all of the remaining charges.

Nelson contended that the district court erred in concluding that it lacked the authority to order a refund of the restitution, fees, and costs that Nelson paid in connection with a conviction that was overturned when she was acquitted after retrial of all of the remaining charges against her. A defendant whose conviction is overturned on appeal is entitled to seek a refund of the restitution paid in connection with the overturned conviction when the People fail on remand to prove beyond a reasonable doubt the defendant’s guilt of the charged crimes. Such a defendant may seek the refund of restitution from the state in his or her criminal case without having to file a separate proceeding. Accordingly, Nelson was entitled to seek, and the district court was authorized to award, a refund of the fees, costs, and restitution that Nelson paid in connection with her now overturned conviction. The order was reversed and the case was remanded to the district court to consider on the merits Nelson’s motion for a refund of the restitution that she paid.

2013 COA 59. No. 11CA1520. People v. Tyme.
Sexual Assault—Hearsay—Sexual Assault Nurse Examiner—Medical Diagnosis or Treatment.

Defendant Justyn E. Tyme appealed the trial court’s judgment of conviction entered on jury verdicts finding him guilty of sexual assault, third-degree assault, and false imprisonment. The judgment was affirmed.

This case stems from Tyme’s sexual assault of the victim, G.A. Five days after the assault and at the request of law enforcement, G.A. submitted to a Sexual Assault Nurse Examiner (SANE) examination that was performed by Sue Goebel. At trial, Goebel testified, as an expert witness, about information she had learned from G.A. during the exam. Both Goebel’s testimony and her report were allowed as evidence at trial.

On appeal, Tyme contended that the trial court abused its discretion in concluding that both the SANE testimony and her report were admissible under the medical diagnosis or treatment hearsay exception because the purpose of the SANE examination was to collect evidence, not to treat or diagnose the victim. Generally, statements made for purposes of medical diagnosis or treatment, including a SANE exam, are admissible if (1) the statement is reasonably pertinent to treatment or diagnosis; and (2) the content of the statement is such that it is reasonably relied on by a physician in treatment or diagnosis. Here, Goebel testified that she relied on the medical history to guide her examination and used it “to diagnose and treat,” thereby satisfying the first prong of the reliability test. She also testified that SANEs normally rely on similar histories to “guide the[ir] diagnosis and treatment,” thereby demonstrating the reasonableness of her reliance on G.A.’s statements in satisfaction of the second prong of the reliability test. Accordingly, the trial court did not abuse its discretion in admitting Goebel’s testimony or her report.

2013 COA 60. No. 12CA0250. Tarco, Inc. v. Conifer Metropolitan District.
Breach of Contract—Summary Judgment—CRS § 38-26-106.

In this breach of contract action, plaintiff Tarco, Inc., a construction contractor, appealed the district court’s grant of summary judgment for defendant Conifer Metropolitan District (CMD). The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

In 2005, Tarco and CMD entered into a series of contracts for construction projects related to the development of a shopping center. Tarco alleged that the work on two of the contracts was substantially complete and that CMD wrongfully withheld payment on them.

Tarco sued, based on nonpayment, and CMD counterclaimed, alleging material breach by Tarco. After two years of litigation, CMD moved for partial summary judgment, asserting that Tarco couldn’t recover under the contracts because it did not satisfy CRS § 38-26-106 (the bond statute). The district court granted the motion. Tarco did not dispute that it did not provide a bond, and the district court concluded that the bond statute barred recovery by contractors failing to post bond.

On appeal, Tarco argued that the court erred by granting summary judgment. Tarco contended that there was a genuine disputed issue of material fact as to whether the contracts at issue were for “public works” projects. If they were not, they were not subject to the bond statute. The Court of Appeals found there was no disputed issue that the projects were public works. The bond statute applies to “any building, road, bridge, viaduct, tunnel, excavation, or other public works for any . . . political subdivision of the state.” The Supreme Court has interpreted “public works” extremely broadly. The contracts at issue were for the construction of a highway overpass and infrastructure components around the shopping center, including sewers, fire hydrants, retaining walls, paving, and roadways. The Court found these clearly to be public works subject to the bond statute, noting that there was no disputed issue of material fact in this regard.

CMD asserted that the bond statute is a “nonclaim statute” that creates an absolute bar to recovery or destroys the claim for relief itself, thus precluding Tarco’s equitable claims of waiver and estoppel. The Court disagreed. Nonclaim statutes deprive a court of subject matter jurisdiction. The Colorado Governmental Immunity Act (CGIA) is a nonclaim statute. CRS § 15-12-803 in the Colorado Probate Code is another. They are rare. The bond claim statute merely provides that unless a bond is provided, “no claim in favor of the contractor arising under the contract shall be audited, allowed, or paid.” It is not a nonclaim statute, and therefore Tarco’s noncompliance does not preclude its assertion of equitable defenses.

Tarco claimed there was a genuine and material factual dispute as to whether CMD affirmatively waived the bond requirement. CMD countered that, as a special district, it did not possess the power to waive the requirement. The Court agreed that a special district does not possess the power to waive the requirement of the bond statute. CRS § 32-1-1001 provides the express common powers of special districts, but does not include the power to waive the bond requirement. The Court will not imply such a power. Therefore, there was no genuine issue of material fact as to whether CMD waived its rights under the bond statute, because it could not.

The Court concluded that there was such an issue of material fact as to whether the doctrine of equitable estoppel applied to CMD’s conduct. A party asserting equitable estoppel must establish that the party to be estopped knew the facts and either intended the conduct to be acted on or so acted that the party asserting estoppel must have been ignorant of the true facts, and the party asserting estoppel must have reasonably relied on the other party’s conduct with resulting injury. Based on the evidence presented, the Court concluded that Tarco had demonstrated a genuine issue of material fact as to whether the foregoing facts were established. Therefore, CMD was equitably estopped by its conduct from asserting the bond statute as a defense to Tarco’s contract claims. The judgment was reversed as to the determination that the bond statute is a nonclaim statute and as to the dismissal of Tarco’s equitable estoppel claim, and the case was remanded for further proceedings.

2013 COA 61. No. 12CA0457. Rodgers v. Board of County Comm'rs of Summit County.
Building Regulations—Same-Sex Couple Discrimination—Colorado Civil Rights Act—Exhaustion of Administrative Remedies—Inverse Condemnation—Directed Verdict—Section 1983.

Plaintiffs Jason L. Rodgers and James R. Hazel, a same-sex couple, appealed the trial court’s judgment dismissing two of their claims and its entry of a directed verdict in favor of Summit County on their inverse condemnation claim. The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Plaintiffs built a home in Summit County that included a septic system. County employees found it did not comply with the County’s regulations or the approved building plan obtained by the previous owner. The County found that the septic tank was too small and required a subsurface drain that had not been installed. It also found that during the installation, the subcontractor had damaged wetlands on the property.

Winter was approaching and the issues couldn’t be resolved until spring, so the County offered a temporary certificate of occupancy requiring plaintiffs to fix the septic system, mitigate the wetlands damages, and post a bond for the estimated costs. Plaintiffs did not post the bond, the certificate of occupancy was not issued, and plaintiffs lost their home in foreclosure.

The trial court dismissed three of plaintiffs’ five claims under CRCP 8 and 12(b)(5). The parties agreed to bifurcate the inverse condemnation claim from the 42 USC § 1983 equal protection claim. The court entered a directed verdict on the inverse condemnation claim in the County’s favor during a bench trial. After plaintiffs rested in the jury trial on the § 1983 claim, the court directed a verdict in favor of the County on three of the four actions on the basis of which the plaintiffs asked that the jury be instructed to “collectively establish[] that the County treated them in a discriminatory manner.” The jury returned a verdict for the County on what remained of the § 1983 claim.

Plaintiffs argued it was error to dismiss their first and third claims for relief. The Court of Appeals disagreed. The first claim asserted that County officials discriminated against them by requiring certain actions not required of heterosexual couples before it would issue a certificate of occupancy. This claim seemed to arise under the Colorado Civil Rights Act. Under that Act, any person alleging discrimination must file a complaint with the Colorado Civil Rights Commission. Plaintiffs never did so, and therefore it was not error to dismiss this claim for failure to plead exhaustion of administrative remedies.

Plaintiffs’ third claim asserted that the County deprived them of their constitutional rights of due process, equal protection, and freedom of association under the U.S. and Colorado Constitutions. These claims were appropriately dismissed because plaintiffs were not entitled to recover damages through such a direct claim. Section 1983 is the remedy for a person who has been deprived of a constitutional right by state action; under the Colorado Constitution a direct claim for damages will lie only where no other adequate remedy exists.

Plaintiffs then argued it was error to direct a verdict for the County on their inverse condemnation claim and on three of the four actions that formed the basis for the § 1983 claim. The Court affirmed on the inverse condemnation claim but reversed on the § 1983 claim.

Inverse condemnation is a claim for relief against a regulatory taking. The trial court found that the County’s regulations and response regarding the septic issues were reasonably applied to plaintiffs and the County did not deny them an economically viable use of their property. Moreover, the County’s septic regulations were reasonable and contributed to the legitimate public purpose of protecting groundwater and adjoining properties from contamination. The record clearly supported the trial court’s determination that no regulatory or per se taking had occurred.

On the § 1983 claim, plaintiffs alleged that the County’s requirements were unreasonable and differed from requirements imposed on similarly situated heterosexual homeowners in four ways. The trial court analyzed each of the alleged discriminatory actions and entered a directed verdict in the County’s favor on three of them, allowing only an allegation that it was discriminatory to require plaintiffs to post a bond. It found plaintiffs had not presented sufficient evidence of similar situations, even when taken in the light most favorable to them, that could have established an equal protection claim.

Plaintiffs argued it was error to analyze the County’s conduct as discrete actions, rather than as a pattern of discriminatory conduct. The Court agreed, finding that at the directed verdict stage, the trial court’s role is not to weigh individual aspects of the evidence offered to support a single claim; its function is to decide whether the totality of the evidence would permit a reasonable jury to return a verdict against a defendant. The trial court may not “parse evidence presented” and grant a “partial directed verdict” on a claim. The partial directed verdict on the single § 1983 claim was error, and this claim was remanded to be retried.

2013 COA 62. Nos. 12CA0595 & 12CA1704. Coats v. Dish Network, L.L.C.
Medical Marijuana—CRS § 24-34-402.5—“Lawful Activity”—Attorney Fees.

Plaintiff Brandon Coatsappealed the trial court’s dismissal of his complaint for failure to state a claim and its order awarding defendant Dish Networks, L.L.C.attorney fees. The judgment was affirmed and the order was reversed.

Defendant fired plaintiff after he tested positive for marijuana, which was a violation of defendant’s drug policy. Plaintiff is a quadriplegic and licensed by the state of Colorado to use medical marijuana pursuant to the Medical Marijuana Amendment (Amendment). Plaintiff alleged that he used marijuana within the limits of his license, never used it on defendant’s premises, and was never under the influence of marijuana at work.

Plaintiff claimed his termination violated the Lawful Activities Statute, CRS § 24-34-402.5, which prohibits an employer from discharging an employee for “engaging in any lawful activity off the premises of the employer during nonworking hours.” Defendant filed a motion to dismiss, arguing that plaintiff’s use of medical marijuana was not a “lawful activity” because it was prohibited under state and federal law.

The trial court agreed with defendant and dismissed the complaint for failure to state a claim. The court also granted defendant’s motion for attorney fees pursuant to CRS § 13-17-201.

The Court of Appeals noted that all marijuana use was, and remains, prohibited by federal law. The Court held that this renders medical marijuana use not “lawful activity” for purposes of CRS § 24-34-402.5, finding the term includes federal and state law.

CRS § 13-17-201 mandates an award of reasonable attorney fees to a defendant when a court dismisses, pursuant to CRCP 12(b), an “action[] brought as a result of . . . an injury . . . occasioned by the tort of any other person.” The trial court granted the motion because it determined plaintiff’s claim constituted a tort claim.

The claim was based on a violation of CRS § 24-34-402.5, which is an employment discrimination provision of the Colorado Civil Rights Act. Plaintiff was seeking back pay and benefits. Defendant first argued this is the equivalent of an invasion of privacy tort. The Court rejected this argument, because the interest being protected by this statutory section is from discriminatory termination based on lawful, off-the-job activity and not against intrusion into privacy or discovery and disclosure of private information.

Defendant further argued that the claim asserted had enough tort-like characteristics to be considered a tort. The Court found that although there is no satisfactory definition of what constitutes a tort, the primary purpose of tort law is to compensate individuals for injuries wrongfully suffered at the hands of others. The Court found that, based on the statute’s language and legislative history, its purpose is not to compensate an individual for breach of a statutory duty, but to eliminate workplace discrimination based on lawful, off-the-job activity. In addition, most traditional tort remedies are not available for this claim; the damages would simply restore the plaintiff to the wage and employment position he or she would have had absent the unlawful discrimination. The judgment dismissing plaintiff’s complaint was affirmed and the order awarding attorney fees was reversed.

2013 COA 63. No. 12CA0955. Dunlap v. Colorado Department of Corrections.
Death by Lethal Injection—Administrative Procedure Act—CRS § 17-1-111.

Nathan J. Dunlap, a death row inmate in the custody of the Colorado Department of Corrections (DOC), appealed the district court’s judgment denying his challenge to the DOC’s regulation establishing the procedure for carrying out the death penalty by lethal injection. The judgment was affirmed.

Colorado law provides for imposition of the death penalty by lethal injection. The implementation of such a sentence is entrusted to the DOC. The Executive Director promulgated Administrative Regulation 300-14 (regulation), effective June 1, 2011, “to establish procedures, consistent with Colorado statutes, governing death penalty executions.”

Dunlap was sentenced to death for murdering four people at a Chuck E. Cheese restaurant in Aurora in 1993. He filed a complaint under § 24-4-106(4) of the Administrative Procedure Act (APA), claiming that the DOC had violated the APA in promulgating this regulation. Specifically, he alleged that the DOC had failed to comply with the rule-making procedures of § 24-4-103.

Defendants moved to dismiss under CRCP 12(b)(1) and (5). The subject matter argument was based on § 17-1-111, which exempts the regulation from the procedural requirements of § 24-4-103 of the APA. The district court granted the motion to dismiss for lack of subject matter jurisdiction.

On appeal, Dunlap argued that § 17-1-111 should not apply because the Executive Director’s statutory authority to administer the death penalty is found in Title 18 of the Colorado Revised Statutes, not Title 17. The Court of Appeals disagreed. The fact that the source of the authority to carry out a death sentence is found in Title 18 is not dispositive of whether the regulation relates to a matter within Title 17.

Dunlap also argued that the phrase “placement, assignment, management, discipline, and classification of inmates” in § 17-1-111 has nothing to do with the implementation of a death sentence. The Court disagreed. In the context of Title 17, this language clearly encompasses determinations concerning the conditions under which sentences served by DOC inmates are to be carried out. The judgment was affirmed.

2013 COA 64. No. 12CA1465. In re the Estate of Hossack: Robinson v. Hossack.
Contempt—Fine as Remedial Sanction for Contempt.

Gladys Robinson appealed the trial court’s order denying her motion to set aside a judgment in favor of decedent’s children and against Robinson in the sum of $231,300. The order was affirmed.

Robinson lived with the decedent, Charles Erroll Hossack, at the time of his death. Following the settlement of his estate, the court ordered her to return specified items of personal property to Lori and Kirk Hossack, decedent’s children. Robinson did not comply.

In a written order issued November 14, 2007, made effective nunc pro tunc August 21, 2007, the court found Robinson in contempt because she did not return the property. Robinson did not timely appeal the contempt order and did not comply with its terms. The fines that were imposed ($100 per day and later $1,000 per day) eventually accumulated to a sum of $231,300.

The decedent’s children moved to reduce this amount to judgment in March 2008. This motion was granted in January 2010, with interest accruing at 8% annually.

Robinson moved under CRCP 60(b)(3) to set aside the judgment. She argued that the amount of the fine should have been limited to any damages the decedent’s children may have suffered. The trial court denied the motion, and Robinson appealed.

CRCP 60(b)(3) allows a court to grant a party relief from a void judgment. Robinson based her argument on cases and language in CRCP 107(d) that limited the amount of a remedial fine to the damages the adverse party suffered. Due to amendments to the rule, effective April 1, 1995, the rule now defines remedial sanctions for contempt to be “[s]anctions imposed to force compliance with a lawful order or to compel performance of an act within the person’s power or present ability to perform.” It also empowers the court to continue to fine a contemnor until an act ordered to be performed is performed.

Robinson also argued that any fine could only be payable to the court and not to decedent’s children. The Court found no authority for this argument. Accordingly, the order was affirmed.

Colorado Court of Appeals Opinions

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