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Colorado Court of Appeals Opinions
May 10, 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 79. No. 05CA1922. People v. Garcia.
Sexual Assault—Prosecutorial Misconduct—Closing Argument—Motion to Sever—Insufficient Evidence—Sentence Enhancer—Jury Instructions.

Defendant Jamie Garcia appealed the judgments and sentences entered on jury verdicts convicting him of three counts of sexual assault (victim incapable of appraising); three counts of sexual assault (victim physically helpless); second-degree burglary; and third-degree assault. The Court of Appeals affirmed the judgment in part and vacated it in part, and remanded the case for resentencing and correction of the two mittimuses.

Between October 2002 and January 2004, five women alleged that Garcia committed sexual misconduct against them while they were intoxicated or drugged. The joinder of cases and the consolidation of offenses against separate victims in a single trial were a basis for this appeal.

Garcia contended that the prosecutor committed misconduct twice during closing argument. Although a prosecutor may not argue that a defendant in a sexual assault case unfairly seeks to bolster his case by using his female attorney to blame the female victims for the defendant’s conduct, such argument was not reversible error in this case. Additionally, although the prosecutor implied that the jury could consider Garcia’s propensity for committing sexual misconduct based on the other acts evidence, any error was harmless, because the court properly instructed the jury not to consider the evidence of one charge as propensity evidence for the other charges.

Garcia claimed that the trial court abused its discretion in denying his motion to sever the charges into separate trials under Crim.P. 14. He did not show, however, that he was prejudiced by the trial court’s refusal to sever charges.

Garcia also claimed that insufficient evidence supported the jury’s finding that he was guilty of a sentence enhancer for his conviction of assault against J.M. However, based on J.M.’s testimony, there was sufficient evidence for the jury to find that J.M. did not know or expect that taking the pill defendant gave her would render her unconscious and disoriented.

Garcia contended that the trial court committed plain error in instructing the jury on the charges of sexual assault. The Court determined that the instruction closely tracked the language of the statute and mirrored the pattern jury instruction; therefore, the trial court did not commit plain error.

Garcia further contended that the trial court erred in sentencing him because (1) the mittimus incorrectly reflected that he was convicted of the CRS § 18-3-402(4)(d) sentence enhancer; and (2) his two sexual assault convictions for the victims V.J., B.J.W., and J.M. were based on identical acts and offenses and should have merged. Garcia’s convictions of sexual assault (victim incapable) against V.J. and B.J.W. were vacated because they were not based on distinct acts and therefore merge with his convictions for sexual assault (victim physically helpless), class 3 felonies. In contrast, the record established that Garcia sexually penetrated J.M. on two occasions while she was nearly unconscious. Because the record supported two distinct acts against J.M., the Court affirmed Garcia’s two related convictions of sexual assault.

2012 COA 80. No. 08CA2148. People v. Krueger.
First-Degree Murder—Substitute Counsel—Advisory Counsel—Search Warrant—Prosecutorial Misconduct—Evidence—Felony Convictions—Mistrial.

Defendant Ryan Krueger appealed the judgment of conviction entered on jury verdicts finding him guilty of first-degree murder and conspiracy to commit first-degree murder. The Court of Appeals affirmed the judgment of the district court.

Defendant contended that the district court erred by declining to appoint substitute counsel because he had a conflict with the assigned public defenders, thus making his waiver of his right to counsel ineffective. However, a criminal defendant does not have either a right to review all discovery materials obtained by his counsel or a constitutional right to testify at a pretrial suppression hearing where his counsel decides not to call him as a witness. The Court therefore determined that the district court did not err in finding that defendant had failed to establish good cause warranting substitution of counsel on this basis.

Defendant also contended that the district court erred by (1) declining to continue the first trial and appoint advisory counsel to represent him; and (2) failing to advise him that it could appoint advisory counsel to represent him in the second trial. Both contentions, however, are premised on his assertion that his waiver of the right to counsel was ineffective. Because his waiver was effective, these arguments were rejected.

Defendant further argued that the district court erred by admitting wiretapped phone conversations and cell phone records because the search warrants were based primarily on stale information. The search warrants, however, were not for tangible evidence that could have been destroyed or removed since the murder. Therefore, the affidavits alleged sufficient facts that a person of reasonable caution would believe that communications about the murder would soon take place on the phones for which records and wiretaps were being sought.

Defendant also argued that the district court abused its discretion by allowing prosecutorial misconduct. The Court determined that the district court did not abuse its discretion by allowing the prosecutor’s remarks that they could not subpoena a witness to testify and that a question is not evidence, regardless of whether an attorney or a pro se defendant asks it.

Defendant claimed the district court abused its discretion by allowing the prosecution to introduce evidence of his felony convictions to impeach his statements introduced through cross-examination of another witness. However, because defendant got his own exculpatory statements into evidence through another witness, he opened the door to introduction of his felony convictions.

Defendant next contended that the district court abused its discretion by denying his motions for a mistrial after (1) his wife testified that she had met him in jail before trial, and (2) two witnesses implied that he had been tried previously for the murder. The prosecutor asked whether (not where) defendant’s wife had met with defendant on the specified dates. Additionally, neither witness testified that defendant previously had been tried for the charges then at issue. Thus, the drastic remedy of a mistrial was not warranted.

2012 COA 81. No. 10CA2559. Freedom From Religion Foundation, Inc. v. Hickenlooper, Colorado Governor.
Taxpayers—Religion—Proclamation—Preference Clause of the Colorado Constitution—Standing.

Plaintiffs, Freedom From Religion Foundation, Inc. (FFRF) and four of its members (taxpayers), appealed the trial court’s determination that the Governor’s proclamations did not violate the Preference Clause, which is Colorado’s equivalent of the First Amendment’s Establishment Clause. The Governor cross-appealed the trial court’s conclusion that FFRF and the taxpayers had standing to bring this case. The Court of Appeals reversed the order in part and affirmed it in part, and remanded the case.

The taxpayers are citizens of Colorado who pay Colorado taxes. FFRF is a Wisconsin nonprofit organization that is registered to do business in Colorado. Each year from 2004 to 2009, Colorado’s Governor issued an honorary proclamation for the first Thursday of May to be the “Colorado Day of Prayer.” Plaintiffs’ complaint alleged that the proclamations violated the Preference Clause of the Religious Freedom section in Colorado Constitution, Article II, § 4, and asked the court to issue an injunction enjoining the Governor from issuing such proclamations in the future.

The Governor contended on appeal that FFRF and the taxpayers do not have standing. The claim herein arises out of a legally protected interest under the Constitution. Further, there is a nexus between the taxpayers and the governmental action of issuing the Colorado Day of Prayer proclamations. Specifically, the record shows that, although the exact amount is not clear, state funds were spent each year to issue the proclamation. Such a nexus, though slight, is sufficient for standing in Colorado. Therefore, the taxpayers had standing to bring this claim.

The Court determined that the six Colorado Day of Prayer proclamations at issue here were governmental conduct that violated the Preference Clause. The Court concluded that the proclamations (1) express the Governor’s support for their content, which is predominantly religious; (2) lack a secular context; and (3) constitute a government endorsement of religion over non-religion. Accordingly, the court’s order entering summary judgment in favor of the Governor was reversed.

2012 COA 82. No. 11CA0462. Radcliff Properties Limited Partnership, LLLP v. City of Sheridan.
Real Property—Municipality—Petition for Disconnection—Procedural Elements—Findings of Fact—Evidence.

Plaintiffs appealed the district court’s order denying their petition for disconnection from the City of Sheridan. Sheridan and its City Council (defendants) cross-appealed certain aspects of the order. The Court of Appeals affirmed the order.

Plaintiffs own eight parcels of property located within Sheridan, a Colorado home rule municipality. The properties were annexed into Sheridan in 1977, and Radcliff Street (Radcliff) provides the only access to the properties. On July 6, 2010, plaintiffs filed a petition seeking to disconnect certain of their properties from Sheridan pursuant to CRS § 31-12-119, which permits qualifying landowners to disconnect their property from a municipality when the municipality has failed to provide certain essential services. Plaintiffs’ petition ultimately was denied.

Plaintiffs argued that the trial court erred by requiring a petition to disconnect filed under § 31-12-119 to contain all of the statutory elements required in a similar petition filed under § 31-12-601. The trial court did not err by requiring that plaintiffs’ petition contain all of the statutory elements required in a petition filed under § 31-12-601, because those procedural elements are incorporated by reference in § 31-12-119.

Defendants argued that plaintiffs’ petition was precluded by § 31-12-603(1). A petition filed under § 31-12-119 only has to follow the procedures “set forth in parts 6 and 7,” not the substantive provisions of parts 6 and 7. Therefore, plaintiffs’ petition to disconnect was not precluded by § 31-12-603(1).

Plaintiffs also argued that the trial court erred by denying their petition to disconnect for failure to meet the statutory requirements of § 31-12-119. The record supports the court’s denial of plaintiffs’ petition because plaintiffs failed to show that Sheridan “does not, upon demand, provide the same municipal services on the same general terms and conditions as the rest of the municipality receives.”

Plaintiffs’ contention that the district court erred by making certain findings of fact that were not supported by any competent evidence was not successful. Plaintiffs’ contention that the trial court erred by failing to admit more than 100 photographs into evidence also was not successful, because they were not relevant.

2012 COA 83. No. 11CA0893. In re the Marriage of Paige.
Post-Dissolution of Marriage—Child Support Modification—Change in Physical Care.

In this post-dissolution of marriage proceeding between Steven Paige (father) and Sarah Paige (mother), father appealed the denial of his motion to retroactively modify a child support order based on a change in physical care of the parties’ child. The Court of Appeals reversed the order and remanded the case.

In the 2000 permanent orders, mother was designated the primary residential parent and father was ordered to pay mother monthly child support in the amount of $1,057.24. In 2008, mother filed a motion requesting contempt sanctions against father for his failure to pay amounts due under the court’s orders, including child support from July 2000 to April 2005, when the child became emancipated. Father filed a motion to modify child support and argued that pursuant to an unwritten agreement between the parties, the child lived with him from July or August 2000 to March 2003, and again from September 2003 through her emancipation; therefore, father should not be required to pay child support to mother during that time period.

Pursuant to CRS § 14-10-122(5), “when a mutually agreed upon change of physical care occurs, the provisions for child support of the obligor under the existing child support order, if modified pursuant to this section, will be modified as of the date when physical care was changed.” This agreement does not need to appear in written form. Because the court erred in requiring a written agreement between the parties as to the change in physical care and failed to hold a hearing, the order was reversed and the case was remanded for a hearing on father’s motion.

2012 COA 84. No. 11CA1080. Joseph, Colorado Securities Commissioner v. Mieka Corporation.
Colorado Securities Act—Cease and Desist Order.

Respondents Mieka Corporation, Daro Blankenship, and Stephen Romo appealed the order prohibiting them from committing any violation of the Colorado Securities Act (CSA), CRS §§ 11-51-101 to -908, in connection with the offer and sale of any security in or from the State of Colorado. The judgment was affirmed.

The Colorado Division of Securities (Division) issued an order directing respondents to show cause why a final order should not be entered against them in conjunction with the alleged sale of securities. The order alleged respondents had violated provisions of the CSA by offering for sale interests in a joint venture to develop an oil and gas lease in Pennsylvania (Joint Venture).

The Division, through a hearing panel (Panel), issued a detailed opinion concluding that the presented evidence established that the interests in the Joint Venture were securities under the CSA and that there had been an offer and sale of such security interests. Because those securities had not been registered with the Division, the Panel recommended that the Colorado Securities Commissioner (Commissioner) issue a cease and desist order against respondents to enjoin them from violating the CSA.

In April 2011, the Commissioner affirmed the decision of the Panel and made two additional conclusions of law: (1) that “the strong presumption that general partnerships are not securities as found in the Williamson case [Williamson v. Tucker, 645 F.2d 404 (5th Cir. 1981)] is not the law under the Colorado Securities Act”; and (2) that respondent Romo had acted as an unlicensed broker-dealer or sales representative, in violation of CRS § 11-51-401(2). These additional conclusions were appealed by respondents.

Respondents argued that the conclusion of the Panel and the Commissioner that the Joint Venture interests were unregistered securities because they were interests in an investment contract was based on an erroneous view of the law or was unsupported by substantial evidence in the record. The Court of Appeals declined to address the first contention, because the Panel and the Commissioner found that the Joint Venture interests were securities on grounds that did not turn on the legal argument made by respondents. The Court then found that there was substantial evidence in the record to support the decision of the Panel and the Commissioner. The judgment was affirmed.

2012 COA 85. No. 11CA1259. Youngs v. Industrial Claim Appeals Office.
Workers’ Compensation—Attorney Fees and Costs.

In this workers’ compensation action, appellants Patrick Youngs and his counsel, Chris Forsyth, sought review of the final order entered by the Industrial Claim Appeals Office (Panel) affirming the administrative law judge’s (ALJ) order assessing the employer’s attorney fees and costs against Forsyth, individually, because appellants requested a hearing on an issue that was not ripe for adjudication. The judgment was affirmed.

This case presented an issue of first impression: whether CRS § 8-43-211(2)(d) requires that reasonable attorney fees and costs be assessed when only one issue, among others raised, in a request for a hearing is not ripe for adjudication at the time such request is made. The Court of Appeals concluded that any person requesting a hearing on an issue that is not independently ripe for adjudication when the request is made, even though there are other ripe issues in the same request, must be assessed the reasonable attorney fees and costs of the opposing party in preparing for such hearing.

Youngs sustained an admitted work-related injury in March 2005. He was awarded benefits for an 8% impairment to his left upper extremity and a 5% impairment to his left lower extremity. The ALJ denied his claim for permanent total disability (PTD), and the Panel affirmed the order. During the pendency of the appeal on the PTD, appellants filed an application for a hearing on a “petition to reopen [permanent partial disability (PPD)] and PTD pursuant to [section] 8-43-303 fraud/mistake.” Employer argued that fraud or mistake had already been argued and decided.

The ALJ dismissed the petition to reopen, finding that the reopening issue had been improperly endorsed, but declined to assess employer’s attorney fees and costs. The Panel held that the plain language of CRS § 8-43-211(2)(d) required an assessment of fees and costs and remanded for a determination of that amount. The ALJ assessed fees and costs of $23,308.54 against Forsyth, individually, and the Panel affirmed.

The Court of Appeals held that the ALJ and the Panel properly determined that the petition to reopen was not ripe when the request was made. When the request was made, these issues were on appeal and, in fact, were not fully adjudicated until much later when the U.S. Supreme Court denied appellants’ petition for a writ of certiorari.

Appellants also argued that other issues in their request for hearing were ripe, which negated the prohibition on endorsing unripe issues. The Court found that the plain language of the statute and the intent of the provision do not allow for such an exception.

Appellants further argued that the amount of fees assessed was “erroneous.” The Court disagreed, finding that the fees and costs assessed are within the ALJ’s sound discretion and there was no abuse of that discretion in this instance.

Appellants raised several evidentiary issues, none of which the Court found was an abuse of the ALJ’s discretion. The judgment was affirmed.

Colorado Court of Appeals Opinions

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