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Colorado Court of Appeals Opinions
May 22, 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 64. No. 11CA1071. People v. Thomas.
Challenge for Cause—Juror—Hardship—Prior Inconsistent Statement—Fifth Amendment Right to Remain Silent—Impeachment—Credibility—CRE 608(b).

Defendant, his brother, and their friends were drinking and socializing at a bar when they met two women, H.F. and J.L. The group became intoxicated. After the bar closed, the group got into a sport utility vehicle to travel to defendant’s house. A single vehicle crash resulted in the death of one passenger and significant injuries to five other passengers.

On appeal, defendant contended that the trial court erred in granting the prosecution’s challenge for cause to a prospective juror. Because the record regarding the potential juror’s work and sleep schedule, and his family situation, supports the court’s dismissal of the prospective juror under CRS § 13-71-121 based on hardship, the court did not abuse its discretion in dismissing the juror on that ground.

Defendant argued that the trial court erred by admitting J.L.’s statements to other witnesses indicating that defendant was the driver during the crash. J.L. testified at trial that she could not recall any of the events surrounding the crash and could not recall her prior answers to questions about who was the driver. Her testimony that she could not recall her prior statements amounted to a denial that she had made them, and satisfied the requirement for inconsistency. Therefore, the trial court did not abuse its discretion in admitting J.L.’s prior inconsistent statements for the purpose of proving who was driving the vehicle at the time of the crash.

Defendant also contended that the trial court violated his Fifth Amendment right to remain silent by admitting evidence of his silence in response to an accusation that he was the driver. Admission of his silence as an adoptive admission did not violate defendant’s constitutional right against self-incrimination, because his silence did not occur during a custodial interrogation.

Defendant also asserted that the trial court erred by allowing the prosecution to cross-examine him about his stated intent to deceive the court regarding his employment status, and by admitting the audiotape admitting this fact to his mother in rebuttal. CRE 608(b) allowed the prosecutor to impeach defendant’s credibility by asking questions about specific instances of conduct that were probative of his character for truthfulness or untruthfulness, including his stated intent to deceive the trial court about his employment status. Further, under the doctrine of specific contradiction, CRE 608(b) is not an impediment to admission of evidence that specifically contradicts testimony of a witness on direct or redirect examination. The judgment was affirmed.

2014 COA 65. No. 11CA2033. People v. Bridges.
Sexual Abuse—Forensic Interview—Credibility—Testimony.

S.B., defendant’s daughter, alleged that he had sexually abused her. At trial, there was no physical evidence that defendant had sexually abused S.B., and the only direct evidence of the abuse was S.B.’s trial testimony and the video of her forensic interview in which she described the abuse. The jury found defendant guilty of one count of sexual assault on a child (no pattern); one count of aggravated incest; and one count of enticement of a child.

On appeal, defendant argued that the court erred by allowing the forensic interviewer to testify that S.B. and A.Q., S.B.’s stepsister, had not been coached in their respective forensic interviews. An interviewer may not usurp the jury’s role of assessing the credibility of a particular witness’s statement by offering an ultimate conclusion about the statement’s truthfulness. Here, the forensic interviewer’s testimony that S.B. and A.Q. had not been coached constituted conclusions about their truthfulness in their respective interviews. This was impermissible opinion testimony about the credibility of another witness’s statement. The court erred by admitting it over defendant’ objection. Because it could not be concluded that admission of this statement did not substantially influence the verdict or impair the fairness of the trial, the judgment of conviction was reversed and the case was remanded for a new trial.

2014 COA 66. No. 11CA2612. People v. Desantiago.
Speedy Trial—CRS 18-1-405(5)—Motion to Dismiss—Timeliness.

At his arraignment in this case on November 4, 2010, defendant entered a not-guilty plea, and the court set a trial date of April 6, 2011. Because defendant was in federal custody and his presence could not be secured by the prosecution through a writ to federal authorities, defendant did not appear in court for a hearing in this case until July 14, 2011. A new trial date was set for September 7, 2011. Though a motions hearing was held on August 5, 2011, defendant did not then move to dismiss based on the speedy trial statute. However, on August 26, 2011, before the September 7 trial setting, defendant moved to dismiss the charges against him, asserting violation of his statutory speedy trial right, which was denied by the court as untimely filed.

On appeal, defendant contended that the trial court should have granted his motion to dismiss for violation of his statutory right to speedy trial. Under Colorado’s speedy trial statute, if a defendant has not been brought to trial within six months from the date of entry of a plea of not guilty, charges against him or her must be dismissed with prejudice. Under the plain meaning of CRS § 18-1-405(5), a defendant timely files a motion to dismiss even if it is filed on the day of trial, as long as it is filed before any hearing on any pretrial motion that is set for hearing on that date. Therefore, defendant’s motion to dismiss was timely filed. However, the trial court’s findings were insufficient to determine whether dismissal of the case was warranted on speedy trial grounds with regard to whether the prosecution made diligent efforts to secure defendant’s presence. Accordingly, the case was remanded to the trial court for the limited purpose of having the court make findings of fact and conclusions of law on that issue.

2014 COA 67. No. 12CA2551. Madrigal v. City of Aurora.
Colorado Criminal Justice Records Act.

In July 2011, an Aurora Police Department (APD) officer shot and killed plaintiffs’ husband and father, Juan Contreras, in a parking lot. Pursuant to the Colorado Criminal Justice Records Act (CCJRA), plaintiffs requested from the City of Aurora (City) various records pertaining to this incident. The City initially denied inspection of the records and failed to respond to plaintiffs’ subsequent request for a written statement of the grounds for the denial. On plaintiffs’ application, the district court issued an order directing the City to show cause why it should not permit inspection. The City ultimately disclosed almost all of the records requested. The court determined that the City did not abuse its discretion either in delaying release of the records disclosed or in denying release of the records not disclosed until after the conclusion of the criminal investigation.

On appeal, plaintiffs contended that the district court erred in determining that the City did not abuse its discretion in handling their records request. The City (or, more precisely, the official custodian of the records) did not abuse its discretion in delaying the release of the records for ten months, pending the completion of the criminal investigation into Contreras’s death. Furthermore, the plain language of the statute did not authorize the district court to order the custodian to pay court costs, attorney fees, or penalties. Therefore, the court did not err in denying plaintiffs request for sanctions.

2014 COA 68. No. 13CA0940. In re the Petition of R.A.M., for the adoption of B.G.B., and Concerning Creative Adoptions.
Parental Rights—Termination—Due Process—Right to Counsel.

Mother filed a petition to relinquish her parental rights to the child and named father as the only potential father of the child. With her petition for relinquishment, mother also filed a petition to terminate father’s parental rights. Father was served the petition, summons, and notice to terminate in jail. Father responded to the petition by indicating that he did not wish to relinquish his rights. The court proceeded to hearing without advising father of his rights or considering his request for counsel, and began the hearing without father’s presence. After considering the matter, the court found by clear and convincing evidence that father was the child’s parent. The court agreed with the adoption agency’s interpretation of the relinquishment statute and found that the law required that father be able to assume legal and physical custody of the child “at the time of the hearing.” Because father was incarcerated and thus unable to assume legal and physical custody of the child that day, the court granted the petition and terminated father’s rights.

On appeal, father contended that the trial court violated his due process rights when it failed to appoint counsel for him at the termination hearing. The Court of Appeals agreed. First, father sufficiently expressed his desire for the assistance of counsel. Also, father had an important interest, the state’s interest was not weak, and the risk of error in this case was extremely high. Before the hearing, neither the petition to terminate his rights, nor the notice to terminate his rights or the summons advised father of the allegation to be proven at the hearing: that he cannot personally assume legal and physical custody of the child, taking into account the child’s age, needs, and individual circumstances. Therefore, taking into consideration all of these factors, father had a due process right to counsel. The court’s order denying father’s CRCP 60(b)(3) motion was reversed, the judgment terminating his parent–child legal relationship was vacated, and the case was remanded.

2014 COA 69. No. 13CA1023. Dawson, Jr. v. Exec. Dir., Colorado Dep't of Corrections.
Prison Disciplinary Conviction.

In September 2012, Dawson was assisting another inmate with a legal matter. On his way back to the living area, Dawson was carrying the other inmate’s legal papers, but was not accompanied by the inmate. Prison officials charged Dawson with unauthorized possession, a class 2 violation of the Code of Penal Discipline (Code).

The hearing officer determined that the legal papers became contraband when Dawson possessed them outside the presence of the inmate to whom the papers belonged. He was found guilty of unauthorized possession, and the conviction was upheld on administrative review.

Dawson challenged his disciplinary conviction in district court under CRCP 106(a)(4). The district court affirmed. On appeal, Dawson argued that his conduct did not violate the Code. The Court of Appeals disagreed.

Review was limited to whether prison officials exceeded their jurisdiction or abused their discretion. A disciplinary decision must be upheld if there is some evidence to support it.

The Code defines “contraband” as any item that an offender is not specifically authorized to have in his or her possession. The regulation clearly covers possessing another inmate’s legal documents outside the presence of the owner. Because the evidence supported that Dawson possessed contraband in violation of the Code, Dawson was guilty of unauthorized possession and the judgment was affirmed.

2014 COA 70. No. 13CA1185. Calderon v. American Family Mutual Insurance Co.
Setting Off Uninsured/Underinsured Motorist Benefits—“Coverage” Versus “Benefit.”

Calderon sustained multiple injuries in an automobile accident with an uninsured driver, requiring him to seek medical treatment and miss work. Calderon was insured by American Family Mutual Insurance Co. (American Family) under an insurance policy providing a total of $300,000 in uninsured/underinsured motorist (UM/UIM) coverage and $5,000 in medical payment (MedPay) coverage.

After the accident, American Family paid Calderon $5,000 under the policy’s MedPay provision. Calderon filed a claim under the UM/UIM provision, but the parties could not agree on the benefit amount due. Calderon sued for breach of contract, violation of CRS § 10-3-115, and breach of the duty of good faith and fair dealing.

A jury returned a verdict of $68,338.97 in favor of Calderon, including $34,394.65 for past medical expenses. The trial court reduced the amount awarded by $5,000 to set off the medical payments Calderon had already received. After adding prejudgment interest, judgment was entered against American Family in the amount of $77,459.

On appeal, Calderon argued he was entitled to the full amount awarded by the jury because CRS §§ 10-4-609(1)(c) and -635(3)(b)(II) prohibited the trial court from setting off his UM/UIM benefits by the amount of MedPay benefits he received. The Court of Appeals disagreed.

The Court noted that setoff is not allowed where the benefits are impaired, but it is allowed to prevent a double recovery. Calderon argued that the statutory sections expressed a legislative intent to prevent insurance companies from using a MedPay setoff to reduce UM/UIM benefits. The Court found that Calderon was incorrectly equating the term “coverage” with the term “benefit.” The sections prohibit a reduction in coverage by a setoff from another coverage but not a benefit. “Coverage” refers to the upper limit for which an insurer may be liable; “benefit” refers to the actual payments made under the policy. Here, Calderon’s UM/UIM coverage was not reduced (he was awarded $68,338.97 with coverage limits of $300,000), but the amount he was awarded was properly reduced by the $5,000 he had already received.

Calderon also argued that the setoff provision was void as against public policy. The Court found that the insurance policy did not dilute, condition, or limit his statutorily mandated coverage and therefore was not void as against public policy. The judgment was affirmed.

Colorado Court of Appeals Opinions