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Colorado Court of Appeals Opinions
June 19, 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 77. No. 11CA1465. People v. Jefferson.
Sexual Assault on a Child by one in a Position of Trust—Videotape—Evidence—Jury Deliberations.

Defendant was a friend of L.T., a mother of two small children. In 2008 and 2009, he watched the children four times, including two overnights, without their mother being present. On one of the overnights, he allegedly sexually assaulted J.B., L.T.’s 5-year-old daughter. A jury found defendant guilty of sexual assault on a child and sexual assault on a child by one in position of trust.

On appeal, defendant contended that the trial court abused its discretion when it gave the jury during deliberations unrestricted and unsupervised access to the videotaped forensic interview of J.B. The trial court admitted the videotaped interview as child hearsay under CRS § 13-25-129. However, the trial court abused its discretion in allowing the jury unfettered access to the statements during deliberations. During her live testimony during trial, almost two years after the alleged assaults, J.B. was unable to remember many details about what had happened between her and defendant. Thus, J.B.’s credibility was the main issue at trial, and the video, which was taken a day after J.B. first reported the assaults to her mother, filled in the gaps of her testimony. Furthermore, the court gave no limiting instruction regarding the jury’s use of the video. These errors created grave doubt as to the error’s effect on the verdict or the fairness of the trial proceedings. Therefore, defendant’s convictions were reversed and the case was remanded for a new trial.

2014 COA 78. No.12CA0001. People v. Lacallo.
Public Disturbance—Riot—Detention Facility—Lesser Included Offense—Crime of Violence—Sentence.

Defendant and other inmates refused to leave a common area of the Jefferson County jail and lockdown. Before being returned to their cells, they damaged the common area. During the disruption, visiting members of the public were evacuated from the jail.

On appeal, defendant asserted that the prosecution failed to prove a “public disturbance” under CRS § 18-9-101(2), because a detention facility is not a place open to the public. Defendant failed to preserve this argument in the trial court, so the Court of Appeals reviewed this challenge for plain error. No Colorado case has interpreted the phrase “public disturbance” under CRS § 18-9-101(2), and there are no Colorado cases that provide a commonly accepted definition for the term “public” that would have alerted the trial court to alleged error arising from defendant’s interpretation. Thus, because determining the meaning of “public disturbance” under existing Colorado authority would be difficult, “the alleged error cannot be regarded as plain or obvious.”

Alternatively, defendant contended that even if sufficient evidence supported his conviction for engaging in a riot, because it is a lesser included offense of rioting in a detention center, the convictions should merge. However, each of these two offenses requires proof of one element that the other does not. Under CRS § 18-8-211(1), the offender must have been confined in a detention facility. Under CRS § 18-9-104(1), the offender—who need not have been confined—must have caused a public disturbance. Thus, engaging in a riot is not a lesser included offense of rioting in a detention facility.

The Attorney General conceded defendant’s contention that the trial court erred by applying crime of violence for sentencing to his conviction for engaging in a riot. The trial court imposed a consecutive six-year sentence for engaging in a riot, after the prosecution told the court that this offense was a crime of violence. However, CRS § 18-9-104(1) does not define engaging in a riot as a crime of violence. Because neither an increased sentencing range nor a consecutive sentence was mandated, defendant’s entire sentence was vacated and the case was remanded for resentencing.

2014 COA 79. No. 13CA0420. Fiscus v. Liberty Mortgage Corporation.
Spurious Lien—Deed of Trust—Forgery—Statute of Limitations—Counterclaims—Cross-Claims—Ownership Interest.

Raymond L. Fiscus (owner) sued Liberty Mortgage Corporation, BB&T Corporation, and Branch Banking and Trust Company (collectively, the banks) under the spurious lien statute, seeking to have a deed of trust recorded by Branch Banking and Trust in 2009 declared spurious after owner’s wife executed the deed of trust on owner’s behalf based on a forged power of attorney. The banks counterclaimed against owner, asking to judicially foreclose on the property, alleging unjust enrichment and seeking an equitable lien against the property. The banks also filed a third-party complaint against wife, alleging theft. The trial court declared the deed of trust spurious and ordered its release, and dismissed the bank’s counterclaims and third-party claims.

On appeal, the banks contended that the trial court erred when it held that owner’s spurious lien petition was not barred by the statute of limitations. Spurious lien actions must be brought within two years of accrual. A cause of action accrues on the date “both the injury and its cause are known or should have been known by the exercise of reasonable diligence.” Here, the trial court concluded that, had owner exercised reasonable diligence, April 2010 was the earliest date he could or should have discovered the existence of the deed of trust. Therefore, owner timely filed the spurious lien petition on March 29, 2012.

The banks contended that the trial court erred when it granted owner’s motion to strike their counterclaims for judicial foreclosure, unjust enrichment, and an equitable lien, as well as their third-party claim against wife. However, there is no authority permitting counterclaims or cross-claims to be brought in a spurious lien action. Therefore, the trial court did not err when it dismissed these claims without prejudice. Because these claims were dismissed without prejudice and the banks were not prohibited from bringing a separate action regarding their claims, the banks were not deprived of any due process rights to pursue them.

The banks also argued that the trial court erred when it concluded wife did not have an ownership interest in the property sufficient to allow her to encumber the property. However, wife was not the record owner of the property. Therefore, she had an inchoate interest only and did not have the authority to encumber the property.

Colorado Court of Appeals Opinions

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