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Colorado Court of Appeals Opinions
June 20, 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 100. No. 12CA1575. Fry v. Lee.
Defamation—Newspaper Article—CRCP 12(b)(5).

Plaintiff Michele Fry appealed the district court’s judgment dismissing her complaint alleging defamation and related claims against defendants Kurtis Lee and The Denver Post, LLC (Post), pursuant to CRCP 12(b)(5). The judgment was affirmed and the case was remanded with directions.

The Post published an article about Fry after she admitted to Lee, a reporter for the Post, that she accidently plagiarized an online publication authored by the National League of Cities (NLC). Fry then filed an action against Lee and the Post, contending that defendants had published materially false and defamatory statements.

Fry contended that, in ruling on the CRCP 12(b)(5) motion, the district court erred because it did not accept her pleaded facts as true and construe them in the light most favorable to her. Contrary to Fry’s contention, however, the district court was not required to accept the meanings alleged in her amended complaint as factual matters; instead, it properly referred to lay dictionaries to determine, as a matter of law, the ordinary and plain meanings ascribed to the challenged words.

Fry further contended that the district court erred when it granted defendants’ motion to dismiss, because reasonable people could have found that the challenged statements were capable of bearing defamatory meaning and were materially false. However, the words “charged,” “plagiarism,” and “recant” would not be interpreted by a reasonable person to have the defamatory meanings Fry alleged in her amended complaint. Furthermore, the substance of the articles was true.

Fry also argued that the court improperly summarily dismissed her ancillary claims, including respondeat superior, negligence, negligence per se, intentional infliction of emotional distress, and deceptive trade practices, based on the failure of her defamation claims. The district court did not err in dismissing Fry’s ancillary claims, however, given that they alleged damages resulting from defendants’ purportedly defamatory statements.

Defendants requested an award of attorney fees pursuant to CRS § 13-17-201. Because the district court properly dismissed Fry’s claim under CRCP 12(b)(5), defendants’ request for attorney fees was granted.

2013 COA 101. No. 12CA1786. In re the Estate of Wheeler: Wheeler v. Tower Building, LLC.
Lease—Security Interest—Personal Property—Collateral.

Mary Beth Wheeler, personal representative of the Estate of David Wheeler, appealed the trial court’s grant of summary judgment to Tower Building, LLC and Lorraine E. Ring (collectively, Landlord). The judgment was affirmed.

David was the sole proprietor of a jewelry store located in a building owned by Landlord. After David died, Landlord filed a claim to recover unpaid rent and interest. Landlord asserted that David’s lease for his jewelry store granted it a security interest in David’s personal property located in the store at the time of his death.

Mary Beth contended that Landlord did not have an enforceable security interest in David’s personal property, because the lease did not sufficiently describe the property. A security interest is enforceable against the debtor and third parties if the security agreement provides a sufficient description of the collateral. Here, the lease described the collateral as all of debtor’s personal property and identified the location of the property as the leased premises. Therefore, the lease for use of Landlord’s building created an enforceable security interest in David’s personal property, which was located in his jewelry store when he died.

2013 COA 93. No. 09CA0434. People v. Poindexter.
Burglary—Obstructing a Peace Officer—Predicate Offense—Vehicular Eluding—Recklessness—Motion for New Trial—Evidence—Sentencing—Habitual Criminal—Prior Convictions.

Defendant appealed the judgment of conviction and sentence entered on jury verdicts finding him guilty of burglary, first-degree aggravated motor vehicle theft, vehicular eluding, obstructing a peace officer, and two habitual criminal counts. The judgment and sentence were affirmed in part and reversed in part, and the case was remanded.

Defendant and another man accosted a woman and stole her car. Defendant drove the car while police officers gave chase. At one point, defendant leapt from the moving car. He then ran to an apartment building and broke into the building to hide from the police.

On appeal, defendant contended that his conviction for second-degree burglary must be vacated because it was based on a crime—obstructing a peace officer—that was not a crime against another person or property. Defendant’s intent on entering the building was to avoid capture, and he hid once he was inside. Because defendant did not threaten the body of anyone, including the peace officer, the offense could not be used as a predicate offense for second-degree burglary. Therefore, the sentence related to this offense was reversed and the conviction was vacated.

Defendant also argued that (1) his conviction for vehicular eluding must be vacated because the evidence was insufficient to establish that he drove the car in a reckless manner; and (2) consequently, his conviction for aggravated motor vehicle theft also must be vacated because it was based on the offense of vehicular eluding. Defendant drove the vehicle through a residential neighborhood at a high rate of speed. He bailed out of the vehicle while it was still moving, and the car crashed with the passenger still inside. This evidence amply demonstrated the recklessness of defendant’s conduct as necessary to establish the offense of vehicular eluding.

Defendant further contended that the trial court erred by denying his motion for a new trial based on newly discovered evidence. The differences between the victim’s testimony in the two trials would serve merely to impeach her credibility. Evidence of these differences was not of such consequence that it would likely produce an acquittal. Therefore, the trial court did not abuse its discretion by denying defendant’s motion for a new trial.

Defendant argued that there was insufficient evidence to support the trial court’s findings that he previously had been convicted of two felonies for the purposes of sentencing him as a habitual criminal. The trial court did not abuse its discretion by finding the records of defendant’s prior convictions (pen pack) to be duly authenticated for purposes of the habitual offender charges. Furthermore, information contained in the pen pack linked it to defendant through some combination of his name, date of birth, and inmate number. This was sufficient evidence that defendant was the person named in the prior conviction for possession of a controlled substance. Finally, defendant was not prejudiced by any minor discrepancies in this information and it was proper for the judge to determine these facts.

2013 COA 94. No. 10CA0734. People v. McMinn.
Vehicular Eluding—Double Jeopardy—Merger—Lay Witness—Expert Testimony—Prosecutorial Misconduct.

Defendant Glenn McMinn appealed the judgment of conviction entered on a jury verdict finding him guilty of four counts of vehicular eluding, four counts of eluding a police officer, and one count of menacing. The judgment was affirmed.

McMinn and his girlfriend got into a fight, and he called the police. When Police Officer Anderson arrived at his house, McMinn was already in his pickup truck. He backed out of his driveway and accelerated. Because there was packed snow and ice on the road, the truck slid sideways, striking the officer. McMinn then led the police on a chase before being apprehended.

McMinn contended that under double jeopardy principles, his four convictions for vehicular eluding must be merged and his four convictions for eluding a police officer also must be merged. A defendant may be charged with multiple offenses of vehicular eluding arising from a single criminal episode when he or she has performed discrete acts of eluding one or more peace officers, each constituting a new volitional departure in the defendant’s course of conduct. Here, four officers, including Anderson, testified about being individually eluded during, and each had individual facts. Thus, the evidence supports separate convictions here.

McMinn also contended that the trial court plainly erred in allowing Sergeant Pinson to testify, as a lay witness, to calculations regarding the speed of the truck, and to opine, based on these calculations, that the truck was a deadly weapon. His testimony in fact was expert testimony presented in the guise of lay opinion, and the error in admitting such testimony was obvious and substantial. Because this evidence was cumulative of other evidence properly presented at trial, however, the erroneous admission of Sergeant Pinson’s expert opinions does not warrant reversal.

McMinn further argued that reversal was required due to prosecutorial misconduct in closing argument. Although some of the prosecutor’s comments may have been improper, they weren’t so obvious to undermine the fundamental fairness of the trial or cast serious doubt on the reliability of the judgment of conviction, especially when considered in the light of the evidence presented.

2013 COA 95. No. 10CA2296. People v. Halbert.
Sex Offender—Failure to Register—CRS § 18-3-412.5(1)(a)—Change of Registration.

Defendant appealed the jury’s verdict finding him guilty of failing to register as a sex offender—second or subsequent offense. He also appealed his sentence. The conviction and sentence were vacated.

In 1992, defendant was convicted of sexual assault on a child by a person in a position of trust. He was released from prison in 2003. Before this case was filed in 2009, he had been convicted four times of the felony of failing to register as a sex offender. This case was filed because defendant was evicted from the house in Thornton where he was staying and he failed to register elsewhere.

Defendant argued that the court erred in allowing his conviction to stand under CRS § 18-3-412.5(1)(a) and (2). The evidence showed that defendant initially registered as required in Adams County. Although there was evidence that he was kicked out of the Thornton house, and that he may have continued to live there surreptitiously, or that he may have lived in Parker or Lakewood, those acts did not fall within the ambit of subsection 412.5(1)(a). Contrary to the prosecution’s argument, the duties to which it points correspond to differentsubsections of 412.5(1). Defendant’s conduct of failing to change his registration to a new address after he was kicked out of the Thornton house is made a crime by subsection 412.5(1)(g), and the duty that corresponds to this crime is found in CRS § 16-22-108(3)(a). Defendant’s conduct of failing to cancel his registration with Adams County after he was kicked out of the Thornton house and then residing in another county is made a crime by subsection 412.5(1)(i), and the duty that corresponds to this crime is found in CRS § 16-22-108(4)(a)(I). Because the prosecution elected to charge defendant only under subsection 412.5(1)(a) and did not prove a violation of subsection 412.5(1)(a), the judgment of conviction and the sentence were vacated.

2013 COA 96. No. 10CA2436. People v. Ruch.
Probation—Revocation—Stalking—Right to Counsel—Fifth Amendment—Counseling—Hearsay—Notice.

Defendant Carl Daniel Ruch appealed the trial court’s judgment revoking his probation. The case was remanded with directions.

In 2007, Ruch was charged with sexual assault on a child by one in a position of trust and harassment—stalking (emotional distress). Following a jury trial, Ruch was acquitted of the sexual assault charge, but was found guilty of stalking. The trial court sentenced Ruch to six years of intensive supervised probation. In January 2010, Ruch’s probation officer filed a special report in the trial court requesting that Ruch be ordered to comply with additional terms of probation typically imposed on sex offenders, which was granted by the court against Ruch’s objection and assertion of his Fifth Amendment rights.

On appeal, Ruch asserted that the trial court violated his right to counsel when it required him to choose between continuing with his appointed counsel or proceeding pro se to renew his request for a continuance to allow him to seek private counsel. The trial court did not abuse its discretion by denying Ruch’s request for a continuance after previously allowing five continuances for Ruch to find private counsel and no evidence to support Ruch’s ineffective assistance of counsel allegations against his public defender.

Ruch also asserted that the trial court erred in finding that he had changed residences without the approval of his probation officer. Hearsay evidence is admissible in probation revocation proceedings; however, it is only admissible if the defendant has a fair hearing and is afforded the opportunity to rebut the hearsay evidence. Here, the amended probation revocation complaint stated that Ruch’s roommate was the declarant of the incriminating information. Accordingly, Ruch had notice of the declarant’s identity and the content of the hearsay. Thus, Ruch had sufficient information to allow him to effectively rebut the hearsay testimony through cross-examination or presentation of his own witnesses. Therefore, the triple hearsay evidence was sufficient to prove, by a preponderance of the evidence, that Ruch changed residences without obtaining permission from his probation officer.

Ruch further asserted that the trial court erred by revoking his probation based on his refusal to attend offense-specific treatment (counseling). By requiring Ruch to attend counseling while his appeal was pending, the trial court violated his Fifth Amendment right against self-incrimination, which he expressly invoked and did not waive. The trial court could have properly revoked Ruch’s probation based on his failure to (1) contact his probation officer at the times and places specified by the officer, (2) receive approval from his probation officer before changing his residence, and (3) sign releases of information to allow his probation officer to communicate with members of the community supervision team. However, the record is not clear whether the trial court would have revoked Ruch’s probation and imposed the same sentence based on these three violations alone. Accordingly, the case was remanded for further findings.

2013 COA 97. No. 12CA1074. Mikes v. Burnett.

Plaintiff Daniel Mikes appealed the district court’s grant of summary judgment in favor of defendants Lyndon B. Burnett, Joe Craven, and J & V Diller Ranch, LLC. The judgment was affirmed.

In July 2010, steers owned by Burnett and J & V Diller wandered onto neighboring land owned by Lester Friend. Friend asked several individuals, including Mikes, if they would assist him in herding the steers off his property. While Mikes was attempting to separate Burnett’s steers from Friend’s cows using his four-wheel vehicle, the vehicle flipped several times, and he was injured.

On appeal, Mikes contended that the trial court erred in granting summary judgment on his trespass claims. Specifically, he argued that he could maintain a claim for trespass of the steers because he was in possession of Friend’s land when he was injured. The owner of livestock is strictly liable for damages caused when the livestock trespass on another’s land. Further, a claim for trespass may be asserted by anyone injured while in possession of that land. Mikes did not claim he constructively possessed Friend’s land, and it was undisputed that Mikes does not own the land. Further, the record did not establish that Mikes had anything more than a temporary right to enter Friend’s land to help move the steers, and there is no evidence in the record suggesting that Friend granted Mikes any right to occupy, control, or manipulate the land in any manner. Consequently, as a matter of law, he could not maintain a trespass claim against defendants.

2013 COA 98. No. 12CA1218. People v. Lehmkuhl.
Juvenile Prosecuted as Adult—Sentence—Cruel and Unusual Punishment—Constitutional—Eighth Amendment—Parole—Mitigating Factors.

Defendant Jordan Lehmkuhl appealed the district court’s order denying his Crim.P. 35(c) motion challenging, on cruel and unusual punishment grounds, the constitutionality of sentences he received in connection with acts committed while he was a juvenile. The order was affirmed.

In October 2001, Lehmkuhl, who was then 17 years old, broke into a house where three high school girls were staying. While brandishing a gun, he bound the girls’ hands with duct tape, put a blanket over their heads, and rummaged around the house. He then took one of the girls out of the house, placed her in the trunk of a car, and, after driving the car for some distance, sexually assaulted her in the backseat of the car. Lehmkuhl was prosecuted as an adult, convicted, and sentenced to consecutive terms totaling seventy-six years to life imprisonment.

On appeal, Lehmkuhl contended that his sentence constituted unconstitutional cruel and unusual punishment because it does not provide him with a meaningful opportunity of being paroled within his lifetime. The Eighth Amendment categorically prohibits sentencing a juvenile convicted of a non-homicide crime to life imprisonment without the possibility of parole. Here, the record indicates that Lehmkuhl will become eligible for parole in 2050, when he is 67 years old. Pursuant to CRS § 13-25-103’s mortality table, Lehmkuhl’s life expectancy is 78.2 years. Therefore, Lehmkuhl would have a meaningful opportunity for release during his natural lifetime because his life expectancy exceeds his date of parole eligibility. Accordingly, Lehmkuhl’s sentence was not a de facto life without parole sentence.

Lehmkuhl next contended that in sentencing him, the district court did not properly consider his age and other mitigating factors. The record here, however, reflects that the district court considered Lehmkuhl’s youth, as well as several other mitigating factors, including his lack of a criminal record and reputation in the community. Thus, the record shows that the court afforded Lehmkuhl the individualized sentencing determination to which he claims he was entitled.

2013 COA 99. No. 12CA1234. In re the Support of E.K., and Concerning the People.
Paternity—Subject Matter Jurisdiction—Parties—Notice.

In this paternity action, P.W.K. (obligor) appealed the district court’s judgment adopting a magistrate’s order that established his paternity of three children, E.K., J.K., and P.K. The judgment was vacated and the case was remanded with directions.

Obligor did not dispute that he was P.K.’s biological parent. Genetic-testing results excluded obligor as the biological parent of E.K. and J.K. Mother identified by name the separate biological fathers for E.K. and J.K., and she testified that each biological father had met his respective child. The magistrate adjudicated obligor the parent of the three children, incorrectly stating in her written order that obligor had admitted that he was their parent, and ordered him to pay child support and the costs of genetic testing.

The Court of Appeals considered on its own motion whether the district court lacked subject matter jurisdiction in this matter. A district court lacks jurisdiction to resolve matters in a paternity action unless each man presumed to be the children’s father and each man alleged to be the children’s natural father are made parties to or given notice of the action. Because the alleged biological fathers of E.K. and J.K. were not made parties to or given notice of this paternity action, the judgment was vacated for lack of subject matter jurisdiction. The case was remanded to the district court for further proceedings in compliance with the Uniform Parentage Act.

Colorado Court of Appeals Opinions