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Colorado Court of Appeals Opinions
May 8, 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 58. No. 10CA0414. People v. Stroud.
Child Abuse—Expert Witness Funding—Indigency—“Admission”—Dependency and Neglect Testimony—Effective Representation—Consecutive Sentences—Presentence Confinement Credit.

This appeal arises from allegations of child abuse concerning defendant’s 11-week-old daughter, R.S., and his stepchildren, C.H. and S.H. The judgment was affirmed.

On appeal, Stroud contended that the trial court abused its discretion when it denied his motion for funds to hire an expert. Here, Stroud was eligible for a court-funded expert because he was indigent and represented by a private attorney who began representing him on a pro bono basis. Thus, the trial court should have provided him expert witness funding without an initial determination of indigency by the Public Defender’s Office. Although the trial court abused its discretion, however, the error was harmless beyond a reasonable doubt, because Stroud did not establish that an expert was necessary and there was overwhelming evidence of his guilt.

Stroud also contended that the trial court erroneously admitted his testimony from a previous dependency and neglect case. An “admission” under CRS § 19-3-207(3) only refers to a parent’s formal admission or denial of the allegations in a petition. It does not preclude admissions made during testimony in a dependency and neglect case in a subsequent criminal case. Therefore, the trial court did not err in admitting Stroud’s testimony from his dependency and neglect case.

Next, Stroud argued that his convictions for child abuse should have been reversed because his trial counsel labored under an actual conflict of interest that denied him effective assistance of counsel. Here, the absence of expert testimony did not undermine defense counsel’s representation. Further, the record refutes Stroud’s argument that his trial counsel did not vigorously contest the prosecution’s evidence. Accordingly, there was no actual conflict of interest that adversely affected defense counsel’s performance.

Finally, Stroud contended that the trial court did not make specific findings of fact to justify its imposition of consecutive sentences for his misdemeanor and felony convictions, and that the trial court erroneously denied him presentence confinement credit. Here, the trial court did not abuse its discretion in imposing consecutive sentences after considering the nature of the offense, Stroud’s character and rehabilitative potential, his respect for the law, the deterrence of crime, and protection of the public. Further, the court did not abuse its discretion in applying Stroud’s credit for presentence confinement to his misdemeanor sentence rather than his felony sentence.

2014 COA 59. No. 11CA1205. People v. Curren.
Interlocutory Appeal—Speedy Trial—Attorney–Client Privilege—Waiver—Rebuttal Witness.

In 2002, defendant was charged with two counts of first-degree murder after deliberation, two counts of felony murder, two counts of conspiracy to commit first degree murder, two counts of conspiracy to commit aggravated robbery, and two counts of aggravated robbery. The jury convicted defendant on the two felony murder counts and one count of aggravated robbery. However, defendant’s convictions were vacated, and he was granted a new trial because his trial attorney had represented him while having an actual conflict of interest. The prosecution filed an appeal to challenge this ruling, which tolled the speedy trial period. The appeal was denied, and the jury convicted defendant of accessory after the fact to first-degree murder.

On appeal, defendant asserted that the trial court violated his statutory and constitutional rights to a speedy trial. For purposes of CRS § 18-1-405(6)(b), an appeal attacking a dismissal of one or more counts is considered interlocutory and the period of delay attributable to the appeal is properly excluded from the speedy trial period. Here, the prosecution’s appeal was not frivolous and addressed whether the post-conviction court properly vacated defendant’s convictions for first-degree murder and aggravated robbery. Further, nothing in Crim.P. 35(c)(3)(V) requires the prosecution to seek a stay to toll the speedy trial period. Finally, defendant suffered no prejudice from the delay. Therefore, the speedy trial period was tolled during the prosecution’s appeal, and defendant’s statutory and constitutional speedy trial rights were not violated.

Defendant next asserted that the trial court violated his rights to remain silent, to testify, to counsel, and to attorney–client privilege by allowing the prosecution to call his first trial attorney to testify against him at his second trial. Here, defendant waived the attorney–client privilege by testifying about his communications with his previous counsel, which opened the door to rebuttal testimony regarding that representation. The prosecution called defendant’s previous counsel to testify as a rebuttal witness to refute certain parts of defendant’s testimony in his case-in-chief. Therefore, the trial court did not abuse its discretion in allowing defendant’s first trial attorney to testify against him as a rebuttal witness at his second trial.

2014 COA 60. No. 12CA1133. People v. Rhea.
Theft—Conspiracy to Commit Theft—Attempt to Influence a Public Official—Multiplicitous Charges—Double Jeopardy—Due Process—Merger—Prosecutorial Misconduct.

Defendant was charged with ten counts of theft, ten counts of conspiracy to commit theft, and three counts of attempting to influence a public official. These charges arose from approximately $250,000 in road work for which defendant’s company invoiced Adams County and was paid, but allegedly did not perform.

On appeal, defendant contended that allowing multiplicitous charges to go before the jury violated the double jeopardy prohibition and his due process right to a fair trial. Here, the trial court recognized that sentencing defendant on ten counts of the theft statute and on ten counts of conspiracy to commit theft for acts within the same six-month period would have violated the double jeopardy prohibition. Nevertheless, the prosecution charged defendant with and the jury convicted him on ten theft counts and ten related conspiracy counts, all of which were based on acts that occurred within a six-month period. Thus, these twenty charges and convictions were multiplicitous. However, the double jeopardy prohibition does not preclude a trial court from allowing multiplicitous charges to go before a jury. Any prejudice can be cured by merging multiplicitous convictions. Also, because the same evidence could have been presented to the jury, which convicted defendant on all counts, no due process violation occurred.

Defendant next contended that the trial court abused its discretion in denying his post-trial motion based on prosecutorial misconduct. The Court of Appeals disagreed wotj this contention. The judgment of conviction was affirmed.

2014 COA 61. No. 12CA2000. Zueger v. Goss.
Discovery Sanction—Defamatory Per Se—Public Concern—Public Figure—Damages—Speculation—Outrageous Conduct—Extortion.

Plaintiff Zueger is an art dealer, and the other plaintiffs are entities through which he purchases, sells, publishes, promotes, preserves, and exhibits artwork by Earl V. Biss, Jr. and other artists. Goss and Zueger had a dispute stemming from Goss’s contention that plaintiffs were making and selling unauthorized reproductions of Biss’s artwork. Goss made disparaging statements about plaintiffs on the Internet. The trial court’s decision was affirm in part and reversed in part, and the case was remanded for further proceedings.

On appeal, although she conceded that her trial counsel failed to timely submit her list of trial witnesses, Goss argued that the trial court erred by entering as a discovery sanction an order precluding Biss’s former attorney from testifying. The Court of Appeals determined that the trial court did not abuse its discretion in precluding the former attorney from testifying.

Goss also argued that the trial court erred by concluding that one of Goss’s statements about plaintiffs was defamatory per se. The Court concluded that none of the circumstances surrounding the publication of the statement, “The company is comparable to the ‘Man in Black’ for Mozart,” suggested that it was intended as an assertion of fact rather than an expression of a subjective judgment. Thus, the statement was not defamatory per se. Because this statement was one of fifteen submitted to the jury, and the record does not indicate which of the statements the jury relied on in finding liability, the defamation verdict was reversed and the case remanded for a new trial.

Goss further argued that the court erred by concluding that plaintiffs were not public figures and that the statements by Goss were not matters of “public concern” for the purpose of plaintiffs’ defamation claim. Here, Goss’s statements about plaintiffs’ business activities do not involve a matter of public concern, nor do her allegations make plaintiffs public figures. Therefore, on retrial, plaintiffs should not be deemed public figures, nor should the statements be treated as matters of public concern.

Goss also contended that the evidence of plaintiffs’ damages was too speculative as a matter of law. Here, through their expert witnesses, plaintiffs presented ample testimony to support their contention that sales by plaintiffs of Biss’s work declined as a result of Goss disparaging them online. Therefore, there was a sufficient evidentiary basis for the amount awarded by the jury.

Plaintiffs contended on cross-appeal that the trial court erred by dismissing their claims for outrageous conduct and extortion at the close of evidence. Goss’s conduct was not sufficiently egregious to establish that it was extreme and outrageous. Further, Colorado does not have a civil extortion statute, and there is no evidence in the record that Goss threatened to cause economic injury to plaintiffs, with the intent to induce them, against their will, to do an act. Therefore, the trial court did not err in dismissing these claims.

2014 COA 62. No. 13CA0928. City and County of Denver v. Industrial Claim Appeals Office.
Firefighter—Cancer—Employment—Volunteer—Training—Workers’ Compensation—Home Rule Municipality.

Claimant is a first-grade firefighter for the Denver Fire Department. He was hired by Denver on October 1, 2004. Before taking his oath of office as a firefighter in February 2005, claimant completed a seventeen-week course at the Rocky Mountain Fire Academy as a probationary firefighter for Denver. Claimant also garnered four years’ experience as a volunteer firefighter and emergency medical technician for the Elbert Fire Protection District before entering the fire academy. On February 12, 2010, claimant was diagnosed with chronic myelogenous leukemia. He filed a claim for workers’ compensation benefits under CRS § 8-41-209 for his cancer treatments, invoking the statute’s presumption that certain cancers contracted by firefighters with five or more years of service are compensable occupational diseases. The administrative law judge (ALJ) found in favor of claimant and the Industrial Claim Appeals Office (Panel) agreed. The Court of Appeals affirmed.

On appeal, Denver contended that the ALJ and Panel misinterpreted CRS § 8-41-209(1) by including in the length of claimant’s “employment as a firefighter” both (a) the entire time claimant served as volunteer firefighter and (b) his time training at the fire academy. It argued that it did not “employ” claimant as a firefighter, within the meaning of § 8-41-209(1), until he took his oath of office as a firefighter in February 2005. However, the definition of “employee” set out in the Workers’ Compensation Act expressly includes “all members of volunteer fire departments.” By including volunteer firefighters in the definition of “employee,” the legislature made clear its intent that injuries sustained by volunteer firefighters in the course and scope of their volunteer work be compensable under the Act. Accordingly, the Panel did not err in finding that length of firefighting service under § 8-41-209 should begin to run from the date on which a volunteer firefighter fights his or her first actual or training fire, including time spent at the fire academy.

Denver also contended that its status as a home rule municipality gives it the right and authority to define “firefighter” and “probationary firefighter” as it sees fit. The scope of “employment as a firefighter” under the firefighter cancer presumption statute and workers’ compensation benefits are considered a matter of state-wide concern, which a home rule municipality may not supersede.

2014 COA 63. No. 13CA1514. Visible Voices, Inc. v. Industrial Claim Appeals Office.
Unemployment Compensation Tax Liability—Definition of “Employment.”

Visible Voices, Inc. (Visible) provides “computer-assisted realtime translation” (CART) services under contracts with clients. It supplies clients with “CART providers, or captionists, who perform live word-for-word speech-to-text translation for the deaf and hearing impaired.” Visible entered into agreements with thirteen individuals (workers) to provide CART services to Visible’s clients as independent contractors.

The Division of Employment and Training (Division) issued a liability determination, concluding that the workers’ services for Visible amounted to covered employment and that Visible was required to pay unemployment compensation taxes on those services. On appeal, a hearing officer determined the workers were independent contractors. The Industrial Claim Appeals Office (Panel) upheld the hearing officer’s determination that the workers were free from Visible’s control and direction, but remanded for further findings as to whether the workers were customarily engaged in an independent trade or business providing CART-related services.

On remand, a different hearing officer affirmed the original determination. The (Panel) overturned this hearing officer’s decision as to eleven of the thirteen workers, finding that these workers were not customarily engaged in independent businesses related to the CART services and therefore were engaged in covered employment. Visible appealed.

CRS § 8-70-115(1)(b) defines covered employment for unemployment tax liability purposes. To establish that a worker is customarily engaged in an independent trade or business related to the services performed, a putative employer must show that the worker is engaged in a separate business venture, other than the provision of services for the putative employer.

The Court of Appeals concluded that a multi-factor approach to determining whether a worker is customarily engaged in an independent trade, occupation, profession or business, as enunciated in Softrock Geological Services, Inc. v. Industrial Claim Appeals Office, 2012 COA 97, ¶ 10 (cert. granted March 25, 2013), is the standard to be applied. In Softrock, the Panel focused almost exclusively on whether the workers performed CART services for others besides Visible.

The Court affirmed the portion of the Panel’s order determining that two of the thirteen workers were independent contractors and not in covered employment with Visible. However, the Court found that evidence in the record supported the hearing officer’s determination that the eleven workers in question were customarily engaged in independent businesses related to the services provided by Visible. Accordingly, the remainder of the order was set aside and remanded with instructions to reinstate the hearing officer’s determination that the remaining eleven workers were also not in covered employment with Visible.

Colorado Court of Appeals Opinions

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