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Colorado Court of Appeals Opinions
May 9, 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 65. No. 10CA0587. People v. Perez.
Identify Theft—Criminal Impersonation—Evidence—Mens Rea.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of identity theft and criminal impersonation. The convictions were vacated.

Defendant was charged with identity theft and criminal impersonation for using another person’s Social Security number to obtain employment. On appeal, defendant asserted that the prosecution presented insufficient evidence to sustain his identity theft convictions. The identity theft statute, CRS § 18-5-902, requires that the prosecution prove that the defendant knew the Social Security number at issue belonged to someone. The prosecution failed to present sufficient evidence of this element.

Defendant also contended that the evidence was insufficient to support his criminal impersonation conviction, because the prosecution failed to prove that he assumed a false or fictitious identity or capacity. Although there might have been evidence that the employers would not have hired defendant unless he had a Social Security number, there was no evidence that a Social Security number was legally required for employment. Thus, the evidence was not sufficient to prove defendant assumed a false capacity.

2013 COA 66. No. 11CA0676. People v. Sterns.
Mandatory Protection Order—Victim—Plea Agreement—Sentencing Range.

Defendant appealed from the trial court’s mandatory protection order and sentence. The order and sentence were affirmed.

Defendant was charged with three counts of solicitation to commit second-degree murder for contracting to have his daughter, his ex-wife, and her current husband killed. Before trial, defendant and the prosecution reached a plea agreement in which defendant agreed to plead guilty to an added count of second-degree attempted murder, with his ex-wife and her husband as the only named victims, as well as a crime of violence sentence enhancer, in exchange for dismissal of all other charges. At the plea hearing, the trial court accepted defendant’s plea and entered a mandatory protection order, naming defendant’s ex-wife, her husband, and defendant’s daughter as protected persons.

On appeal, defendant contended that the trial court lacked statutory authority to name his daughter as a protected person in the mandatory protection order. Adding or dropping a single charge within a multi-charge case does not dispose of the case. Thus, when the trial court dismissed the charge involving defendant’s daughter, it did not thereby dispose of the action against defendant. The action continued pursuant to the plea agreement. Accordingly, the trial court’s mandatory protection order properly included defendant’s daughter.

Defendant also contended that the trial court abused its discretion by sentencing him to a twenty-four-year term of imprisonment. Because this sentence falls within the range agreed to under defendant’s plea agreement, defendant is not entitled to appellate review of this issue.

2013 COA 67. No. 11CA1085. People v. Luna, Jr.
Assault—Evidence—Violation of Bond—Jury Questions.

Defendant Arturo Luna, Jr. appealed the trial court’s judgment of conviction entered on jury verdicts finding him guilty of second-degree assault (in jail/bodily fluids), two counts of violating his bond conditions, resisting arrest, and disorderly conduct. The judgment was affirmed.

When questioned by police regarding an alleged assault, Luna acted aggressively, spat in the direction of the officers, and then spat in the face of one of the officers. Luna was found guilty of all charged counts.

On appeal, Luna asserted that insufficient evidence existed to support his convictions of violating the terms of his bonds, because the prosecution did not present evidence to prove that his bonds were in effect at the time of the events giving rise to his conviction. Luna posted bonds in relation to two charges, one on August 28, 2009 and another February 15, 2010. The conditions of both bonds prohibited any further violations of the law. The prosecution was required to prove beyond a reasonable doubt that the terms of the bonds were in effect at the time of the alleged illegal conduct. The prosecution presented circumstantial evidence, which when taken in the light most favorable to the prosecution, established that the bonds were in effect at the time of the charged conduct. Accordingly, the jury could reasonably infer that the bonds continued to be in effect at the time of the charged conduct.

Luna also argued that the trial court erred by issuing a misleading answer to jury questions, which asked whether the bonds were in effect on the date of the offense. In response to the jury’s question as to whether the bonds were still in effect, the trial court correctly declined to address the merits of the questions, and instead referred the jury back to the elements of each charge. Accordingly, the trial court did not commit plain error in responding to the jury’s questions.

Luna further argued that there was insufficient evidence to support his conviction of second-degree assault, because the prosecution did not prove that he was “lawfully confined in a detention facility” at the time of the assault. CRS § 18-3-203(1)(f.5) applies to an individual lawfully confined in a vehicle who is lawfully held in custody and whose victim is a law enforcement officer. Therefore, the prosecution presented sufficient evidence to support Luna’s conviction for second-degree assault.

2013 COA 68. No. 11CA1786. People v. Doyle.
Bond—Judicial Notice—Bias.

Defendant Eric Marcus Doyle appealed the judgment of conviction entered on a jury verdict finding him guilty of violating a condition of his bail bond. The judgment was affirmed.

Doyle was arrested and charged with theft and conspiracy to commit theft stemming from his involvement in an attempt to sell a water pump to a scrap metal processor. After Doyle was booked into jail, he posted a $3,000 bond. As a condition of his bond, he was required to appear in court on March 8, 2011. Doyle failed to appear on that date.

Doyle contended that the trial court abused its discretion in taking judicial notice of the facts contained in its file. Specifically, the trial court took judicial notice of the following facts: Doyle was accused of theft and conspiracy to commit theft and was required to appear in court on March 8, 2011; he failed to appear. The prosecution presented no further evidence. The trial court properly instructed the jury—both orally and in writing—that it could accept or reject the judicially noticed facts, and the court did not comment on Doyle’s mental state. Therefore, the trial court did not abuse its discretion in judicially noticing the facts contained in its own file.

2013 COA 69. No. 11CA1939. People v. Zubiate.
Driving After Revocation Prohibited—Driving While Ability Impaired—Driving Under Restraint—Hearsay—Merger—Lesser Included Offense.

Defendant appealed her convictions entered following a jury trial for aggravated driving after revocation prohibited (aggravated DARP) and driving while ability impaired (DWAI). She also appealed her driving under restraint (DUR) conviction entered following her guilty plea to that offense, and the sentence imposed. The convictions were affirmed.

Defendant contended that the trial court erred in excluding an out-of-court statement concerning her fear of needles and, consequently, deprived her of her constitutional right to present evidence in her own defense. Specifically, defendant argued that the court erred in excluding her statement to Officer Rayside concerning her fear of needles because it was (1) offered for a non-hearsay purpose, (2) a statement against interest, and (3) a statement concerning her state of mind. Here, the statement was relevant only if it was offered for the truth of the matter asserted—namely, that defendant feared needles. Accordingly, it was hearsay. Because defendant’s statement was self-serving and the prosecution did not introduce evidence that defendant refused the test, none of the hearsay exceptions applied.

Defendant also contended that her DARP and DUR convictions should merge because DUR is a lesser included offense of DARP. The offenses do not merge, however, because proving the DARP elements does not necessarily establish DUR. DUR applies to offenses committed only on public ways. DARP, in contrast, does not require that the driver operate the vehicle on a highway. Accordingly, DARP is not limited to the highway and applies to private ways, as well. Because DUR requires proof of an additional fact that DARP does not—namely that a motor vehicle was driven on a highway—DUR is not a lesser included offense of DARP. Furthermore, because one could operate a vehicle without necessarily driving it, the offenses do not merge under the strict elements test. Therefore, DUR is not a lesser included offense of DARP. Accordingly, defendant’s convictions and sentences for both offenses do not merge.

2013 COA 70. No. 11CA1940. Cox v. People.
Seal Records of Non-Traffic Offense Charges—CRS § 24-72-308.

Petitioner appealed a district court’s order denying his petition to seal records of non-traffic offense charges brought against him that were subsequently dismissed. The judgment was reversed and the case was remanded with directions.

Petitioner was charged in the Douglas County Court with possession of marijuana (a class 2 petty offense); possession of drug paraphernalia (a class 2 petty offense); and unsafe lane change (a class A traffic offense). He successfully completed a juvenile diversion program and all charges were dismissed with prejudice.

Petitioner then filed a verified petition requesting that the records of the case be sealed. The prosecution objected, relying on Clark v. People, 221 P.3d 447 (Colo.App. 2009). At the hearing, both parties agreed that Clark was controlling, but petitioner argued the dissent in that case was a better-reasoned approach to interpreting CRS § 24-72-308. The district court disagreed and petitioner appealed. The Court of Appeals reversed.

Judge Russel’s dissent in Clark agreed with the majority that the court cannot seal “records pertaining to” traffic infractions. However, he did not agree that it foreclosed relief, because (1) he saw no practical impediment to offense-specific sealing; (2) he believed that offense-specific sealing would further legislative policy; and (3) he concluded that the statute does not prohibit offense-specific sealing.

The Court stated that the purpose of the statute is to relieve a very limited number of persons charged with criminal offenses from the stigma that comes with having been charged with an offense but not convicted of it. Here, petitioner requested sealing of the entire criminal record, and the Court found that the statutory purpose could be satisfied by sealing records of non-traffic offenses in a criminal record that contained both. Petitioner lost one job and was denied another based on his criminal record, and the Court did not believe it was because of the routine traffic offense.

Therefore, the Court reversed the judgment. On remand, the district court must determine, as to the drug offenses, whether “the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the record” and, if so, whether the court should seal the criminal record as to those charges.

2013 COA 71. No. 12CA0797. Meza v. Industrial Claim Appeals Office.
Workers’ Compensation—Jurisdiction—Weight of Evidence—Substantial Evidence—CRS § 8-42-107(8)(b)(II).

In this workers’ compensation action, claimant sought review of a final order of the Industrial Claim Appeals Office (Panel). The order was affirmed.

Claimant sustained an admitted, compensable injury in 2004 when a cow bone fell on his right foot. On November 26, 2004 his authorized treating physician (ATP) placed him at maximum medical improvement (MMI) with no impairment and released him to work, with no restrictions. Plaintiff continued to experience pain and developed low back pain four years after his initial injury.

His employer, Swift Foods Company, and its insurer, Zurich American Insurance Company (collectively, employer), agreed to reopen the claim in 2008. A new ATP suspected claimant had developed complex regional pain syndrome (CRPS) and that his low back pain was related to the foot injury. Employer retained a physician to conduct an independent medical examination (IME). The physician found that claimant had reached MMI, and that the low back pain was unrelated to the 2004 injury.

Because the ATP had not placed claimant at MMI within eighteen months of commencing treatment, employer requested a division-sponsored independent medical examination (DIME). The DIME physician examined claimant in January 2010 and placed him at MMI as of the date of the exam. The DIME physician rated claimant’s impairment at 10% of the whole person for CRPS and 11% for his spine, giving him a 20% impairment rating of the whole person.

Employer filed a final admission of liability (FAL) based on the DIME physician’s MMI and impairment ratings. Claimant moved to strike the FAL, arguing that a physician performing an eighteen-month DIME is limited to determining MMI and may not give an impairment rating. An administrative law judge (ALJ) agreed with claimant, struck the FAL, and ordered claimant to see his ATP for a permanent impairment evaluation. The ATP rated claimant at 18% for his spinal injuries, 10% for CRPS, and 4% for the lower extremity, resulting in a total impairment rating of 27% of the whole person.

Employer requested a second DIME to review the ATP’s impairment rating. The second DIME agreed that claimant had reached MMI in January 2010, but rated his impairment at 18% of the whole person. In her deposition, however, she corrected herself and rated him at 4% of the whole person.

At the hearing, claimant objected to the second DIME physician’s opinions. The ALJ found that when claimant moved to strike the FAL he waived his opportunity to rely on any presumptive weight that might otherwise have been given to the eighteen-month DIME’s impairment rating. The ALJ awarded claimant PPD benefits based on an impairment rating of 10% of the lower extremity, but found claimant’s spine injury and CRPS unrelated and therefore awarded no benefits for those conditions. The Panel affirmed.

On appeal, claimant argued he was entitled to a higher impairment rating because (1) the ALJ was bound by the eighteen-month DIME physician’s opinions and therefore lacked jurisdiction to rule on the relatedness of his alleged CRPS and low back conditions; and (2) the ALJ improperly assigned him the burden of overcoming the second DIME’s opinion. The Court of Appeals disagreed.

Claimant argued the determination of the eighteen-month DIME physician’s opinion was binding on the ALJ because neither party had requested a hearing to challenge his opinions. In general, a DIME physician’s opinions concerning MMI and permanent medical impairment are given presumptive effect. However, the Panel has found this general rule does not govern as to impairment when an eighteen-month DIME determination is requested under CRS § 8-42-107(8)(b)(II), because it does not mention or address impairment. The Court found that this a reasonable interpretation of the statutory language and an eighteen-month DIME report under this section only carries presumptive weight concerning MMI.

Consequently, the causation findings associated with the impairment ratings carried no presumptive effect and were not jurisdictionally binding on the ALJ. The impairment rating was advisory only and did not statutorily close the issue of causation of impairment.

Claimant also argued that the ALJ “did not enforce the presumption of validity” associated with the eighteen-month DIME physician’s causation determinations. The Court found this argument premised on the incorrect notion that the eighteen-month DIME physician’s causation opinions were related only to MMI. To the extent they were related to impairment ratings, they were not subject to presumptive weight. It was for the ALJ to determine whether the impairment opinions expressed by the second DIME physician, including the causes of impairment, had been overcome by clear and convincing evidence. The ALJ’s findings in this regard will not be set aside if supported by substantial evidence in the record. The Court found such evidence in the record. The order was affirmed.

2013 COA 72. No. 12CA1618. Town of Milliken v. Kerr-McGee Oil & Gas Onshore LP.
Oil and Gas Well Safety and Security Inspection Fees—CRS § 34-60-106(15).

The Town of Milliken (Town) appealed the trial court’s summary judgment in favor of Kerr-McGee Oil & Gas Onshore LP (Kerr-McGee). The judgment was affirmed.

In 1983, the Town enacted a series of ordinances that imposed fees on oil and gas wells within its boundaries. In 1996, the General Assembly amended existing state oil and gas law by enacting House Bill 96-1045. As relevant here, the new legislation, codified in part at CRS § 34-60-106(15), states:

No local government may charge a tax or fee to conduct inspections or monitoring of oil and gas operations with regard to matters that are subject to rule, regulation, order, or permit condition administered by the [Oil and Gas Conservation] [C]ommission. Nothing in this subsection (15) shall affect the ability of a local government to charge a reasonable and nondiscriminatory fee for inspection and monitoring for road damage and compliance with local fire codes, land use permit conditions, and local building codes.

In 2003, the Town enacted another ordinance concerning oil and gas wells that authorized the Town to inspect wells, equipment, and structures to determine compliance with the land use code, the Town fire code, the Town building code, and all other Town health or safety standards. The Town imposed an annual $400 inspection fee for each well within its boundaries that had not been plugged or abandoned. It was undisputed that the Town has never conducted the inspections described. In 2008, the Town enacted an ordinance imposing an annual $400 security inspection fee on each active oil and gas well within its boundaries. The fee was intended to offset the costs incurred by the Town’s police department for additional security checks that the well sites require. It was undisputed that the Town’s police conducted such checks on a regular basis before 2003. In 2010, the Town repealed and replaced the portion of the land use code containing both of the above provisions and replaced it with a provision authorizing inspections of wells and an annual $400 security fee on active oil and gas wells within the Town’s boundaries.

In 2010, the Town sued Kerr-McGee and others seeking to collect the security fees from 2003 onward. Kerr-McGee moved for summary judgment, which was granted in its favor. The district court held that the Town lacked the statutory authority to impose the fees. The Town appealed.

The Court or Appeals found it patently clear that oil and gas well safety and security are matters subject to rule, regulation, order, or permit condition administered by the Oil and Gas Conservation Commission. Thus, the Town’s fees under all of the ordinances above are clearly prohibited. The summary judgment was affirmed.

2013 COA 73. No. 12CA2196. People in the Interest of T.E.R., and Concerning T.P.C.-J.
Dependency and Neglect—Indian Child Welfare Act—Termination of Parent–Child Legal Relationship.

In this dependency and neglect proceeding, mother and father appealed from the order denying transfer of jurisdiction to a tribal court under 25 USC § 1911(b) of the Indian Child Welfare Act (ICWA). Father also appealed the judgment terminating the parent–child legal relationship between him and his child, T.E.R. The order and judgment were affirmed.

In September 2011, the Department of Human Services of the City and County of Denver (Department) filed a petition in dependency and neglect based on mother’s substance abuse and mental health issues and father’s incarceration. In October 2011, the Department sent a notice to the Sault Ste. Marie Tribe of Chippewa (Tribe), pursuant to the ICWA, based on mother’s report that she was registered with the Tribe. The Tribe responded that it intended to intervene. Before it did so, the juvenile court adjudicated T.E.R. dependent and neglected and adopted treatment plans for mother and father.

In May 2012, the Tribe moved to intervene, alleging that T.E.R. was eligible for membership. The juvenile court granted the motion. The Department then moved to terminate mother’s and father’s parental rights.

In July 2012, mother moved to transfer jurisdiction to tribal court. The Department and guardian ad litem (GAL) opposed, arguing that good cause existed to deny the motion, because the case was at an advanced stage and could not be adequately presented in the tribal court without undue hardship to the parties or witnesses. In October 2012, after hearing arguments but not taking evidence, the court found good cause to deny the transfer. Following a two-day hearing, the juvenile court entered judgment terminating mother’s and father’s parental rights.

On appeal, mother and father contended it was error to find good cause to deny transfer of jurisdiction. The Court of Appeals disagreed.

The state and the tribe have concurrent jurisdiction under the ICWA over Indian children who live off the reservation. The tribal court is the preferred jurisdiction and, in the absence of good cause, the state must transfer jurisdiction to the tribe. The Bureau of Indian Affairs has issued guidelines for determining whether good cause exists. As relevant, those guidelines provide that good cause exists if the proceeding was at an advanced stage when the petition to transfer was received, or if the evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or witnesses. The determination is within the juvenile court’s discretion. The Court found that substantial evidence in the record supported the juvenile court’s finding of good cause to deny transfer for the reasons stated.

The Court declined to address father’s argument regarding the transfer of jurisdiction because he failed to raise it in the juvenile court; therefore, it was waived. The order and judgment were affirmed.

Colorado Court of Appeals Opinions

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