Colorado Court of Appeals Opinions
June 24, 2010
|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.|
No. 07CA2412. People v. Sanchez.
Intent After Deliberation—First-Degree Murder—Assault—Heat of Passion—Flight Jury Instruction.
Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of first-degree murder after deliberation, two counts of attempted first-degree murder after deliberation, first-degree assault under the heat of passion, and second-degree assault under the heat of passion. The judgment was affirmed.
Defendant contended that the evidence of intent after deliberation supporting the first-degree murder conviction and the two attempted first-degree murder convictions was insufficient. The Court of Appeals disagreed. The charges required the prosecution to prove defendant deliberated before stabbing the victims. Defendant unfolded the knife before the stabbings and warned the victims before stabbing them. In addition, the jury could have inferred defendant exercised judgment from the locations of the stabbings—the victims’ chest, neck, and back—because of the degree of harm that may result from stabbing a person in those places. Therefore, the circumstances surrounding the stabbings are sufficient to show defendant acted after exercising reflection and judgment.
Defendant also argued that the jury’s verdicts for attempted first-degree murder are inconsistent with its special findings that defendant committed first- and second-degree assault under the heat of passion. Although there is an inconsistency between the jury verdicts for attempted first-degree murder and those for first- and second-degree assault under the heat of passion, the inconsistency does not require reversal because the existence or absence of heat of passion is not a necessary element of either assault charge.
Defendant argued that the jury’s guilty verdicts for attempted first-degree murder are inconsistent with its guilty verdicts for first- and second-degree assault. However, the jury’s guilty verdicts are not necessarily inconsistent because defendant could have possessed the intent to cause death, serious bodily harm, and bodily harm at the same time.
Defendant contended that the trial court erred in giving a flight instruction. The Court disagreed. The prosecution presented evidence that defendant took off running after hearing someone say 911 had been called following the stabbings. He then hid in a trailer. Because such evidence was sufficient to support a flight instruction, the trial court did not err in giving such an instruction.
No. 08CA1240. People v. Price.
Sexual Assault on a Child—Mistrial—Suicide Attempt—Crim.P. 43(b)(1)—Right to Testify—Competency—Charging Documents—Verdict Forms.
Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of one count of sexual assault on a child, four counts of sexual assault on a child as part of a pattern of sexual abuse, and five counts of aggravated incest. The judgment was affirmed.
Defendant contended that the trial court erred by denying his motion for mistrial, which was prompted by his mid-trial suicide attempt. The Court of Appeals disagreed. Defendant voluntarily waived his right to be present at trial by attempting suicide once trial had already begun, because he created the medical necessity to effect his absence from trial. His suicide note, discovered after his suicide attempt, reflected both that he understood the proceedings against him and that he purposefully determined to absent himself from the trial. Because defendant voluntarily caused himself to be absent from trial, he waived his right to be present, and waived the corresponding right to testify on his own behalf. Further, the Court did not abuse its discretion in finding that defense counsel failed to establish a "bona fide doubt" as to defendant’s competency because the suicide note proved otherwise.
Defendant also contended that there was a fatal variance between the charging documents and the verdict forms. The Court disagreed. The verdict forms contained correct dates of illegal activity, but the charging documents contained dates outside the illegal conduct (beyond the victim’s 18th birthday). Because the evidence presented to the jury, the jury instructions, and the verdict form encompassed a date range within the date range of the original and amended charging documents, defendant was not prejudiced in preparing or presenting a defense due to any variance at trial.
No. 08CA1657. People v. Wilson.
Theft—Public Assistance Benefits—Restitution—Statute of Limitations—Plea—Evidence.
Defendant appealed the trial court’s order granting the People’s request for $47,086 restitution for overpaid public assistance benefits. The order was affirmed.
The People charged defendant with theft for overpayment of public assistance benefits for various periods between September 2001 and May 2005. Defendant pled guilty to one charge of theft between September 2004 and February 2005. The trial court then granted the People’s request for $47,476.48 in restitution. Defendant objected to the restitution amount, alleging that some of the restitution requested was for a period covered in defendant’s prosecution for theft of public assistance in another case and some of the period covered was barred by the statute of limitations. The court vacated the order.
On appeal, defendant contended that the trial court erred in determining the amount of restitution because collection of $13,055 of that amount was barred by the statute of limitations, which she contends was a defect of subject matter jurisdiction. However, the statute of limitations does not apply to offenses to which a defendant pleads guilty. Therefore, defendant waived her right to raise the statute of limitations as a defense to restitution when she pled guilty to theft.
Defendant contended that apart from her statute of limitations argument, the trial court abused its discretion in finding that the prosecution had proved by a preponderance of the evidence that she owed restitution in the amount of $47,086. The evidence in the record supported the trial court’s finding that (1) from 2001 to 2005, defendant was living with Hall, her boyfriend; (2) Hall’s income was not included in calculating defendant’s benefits; (3) defendant improperly collected public assistance benefits during that period; and (4) the prosecution proved the amount defendant illegally collected. Thus, the court did not abuse its discretion in ordering restitution in the amount of $47,086.
No. 08CA2321. People v. Frye.
C.A.R. 4—CRS § 16-12-102(1)—Dismissal—Voluntary.
The People appealed a trial court order excluding the testimony of defendant’s sister under C.R.E. 807, the residual exception to the rule against hearsay. The Court of Appeals dismissed the appeal.
In 1973, defendant was charged with first-degree murder for the death of his wife. However, the case was dismissed on the eve of trial at the prosecution’s request, on its representation that there was insufficient evidence to proceed. In 2006, based on a statement by his sister, defendant was indicted for the same crime by a grand jury. The sister testified that their mother, who subsequently passed away, had told her that defendant had confessed to her that he had killed his wife. The trial court concluded that the sister’s testimony lacked sufficient guarantees of trustworthiness and, therefore, was inadmissible under C.R.E. 807. As a result of that order, the case was again dismissed at the prosecution’s request.
On appeal, the prosecution argued that the trial court erred in excluding the sister’s testimony. The question presented here, however, is whether the trial court’s dismissal of an indictment without prejudice before trial at the prosecution’s request qualifies as a final judgment for purposes of appellate jurisdiction under CRS § 16-12-102(1). Because the trial court granted the prosecution’s motion to dismiss under circumstances in which it essentially had no choice but to approve the prosecution’s request, the trial court’s dismissal of the case did not constitute a final judgment from which an appeal of a question of law could be taken under CRS § 16-12-102(1).
No. 09CA0689. Crossgrove v. Wal-Mart Stores, Inc.
Personal Injuries—Collateral Source Rule.
In this personal injury case, plaintiff appealed the judgment for damages entered on a jury verdict against defendant Wal-Mart Stores, Inc. (Wal-Mart). The judgment was vacated in part and the case was remanded.
Plaintiff was struck on the head by a manually operated overhead garage door while delivering cookies to a Wal-Mart store. Based on a negligence theory, he sued Wal-Mart for injuries, claiming in pertinent part more than $240,000 in billed medical expenses. The trial court allowed Wal-Mart to present evidence to the jury that plaintiff’s medical providers accepted $40,000 in full satisfaction of his medical bills. Plaintiff also testified to the full amount ($242,293.86) billed by his providers, as well as his loss of income ($101,520). The jury returned a verdict for plaintiff, awarding him a total of $50,000 for economic losses and an additional $27,375 in noneconomic damages. The jury also determined plaintiff was 20 percent at fault. The court thereafter reduced the award by the 20 percent, plus the $40,000 paid by third parties.
On appeal, Wal-Mart contended that the collateral source rule is not implicated by presentation of the discounted amount paid in satisfaction of plaintiff’s medical bills, as long as the source of payment is unidentified. Colorado’s common law collateral source rule is not limited to protecting the cash amounts paid to providers for services rendered. Evidence of the amount paid by third-party payors and, conversely, the amount discounted (or written off) from the billed amount due under a contract between the third-party payor and the provider, is inadmissible under the common law collateral source rule even to show the reasonable value of services rendered, because these payments and discounts constitute collateral sources. Further, the collateral source statute does not abrogate the common law rule prohibiting evidence of collateral sources at trial as it applies only after the verdict is received from the fact finder. Therefore, the trial court erroneously admitted collateral source evidence. The judgment was vacated as to the amount of damages, and the case was remanded for a new trial on the issue of damages, after which the trial court shall adjust the verdict in accordance with the collateral source statute.
No. 09CA1195. Grand Valley Citizens’ Alliance v. Colorado Oil and Gas Conservation Commission.
Standing—Entitlement to an Administrative Hearing.
Plaintiffs appealed a district court order dismissing their claim for a hearing before the Colorado Oil and Gas Conservation Commission (Commission). The order was reversed.
Plaintiffs are two organizations and four individuals. They collectively own, reside on, and use land in Garfield County, near Rulison. This area was the site of a 1969 federal agency experiment dubbed Project Rulison. The project involved detonation of a large nuclear device 8,400 feet below ground to determine whether the explosion could stimulate natural gas production. Nothing marketable was produced; however, the liberated gas contained radioactive matter, and subsurface toxic and radioactive contaminants are still present.
In the late 1990s, companies began seeking to drill in the area. In 2004, the Commission ruled that a hearing would be required for any permit application involving drilling within a half mile of the blast site. In 2008, EnCana Oil & Gas (EnCana) applied for permits to drill wells less than three miles from the blast site. Because the proposed wells were beyond the half-mile radius, a hearing was not automatic. Plaintiffs petitioned the Commission for intervention and a hearing on EnCana’s applications. The Commission Director denied the hearing requests and approved the permit applications. Plaintiffs sued, alleging they were statutorily entitled to a hearing. The district court granted EnCana’s motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. The Court of Appeals reversed, holding plaintiffs had standing and are entitled to a hearing.
Colorado has a relatively lenient standing test: (1) the plaintiff must have suffered an injury-in-fact; and (2) this harm must have been to a legally protected interest. The Court held that the denial of plaintiffs’ claimed statutory right to a hearing to contest the permit application was a cognizable injury (procedural in nature). In addition, the allegation that the proposed drilling would threaten substantive injury to land they owned, resided on, and used also conferred standing (substantive in nature).
Plaintiffs’ claimed right to a hearing is provided in CRS § 34-60-108(7), which mandates a hearing on the filing of a petition requesting one concerning any matter within the jurisdiction of the Commission. The Court held this language clearly entitled plaintiffs’ to a hearing.
No. 09CA1548. Romantix, Inc. v. City of Commerce City.
Summary Judgment—Sales and Use Tax.
The City of Commerce City (City) appealed the district court’s summary judgment in favor of plaintiff Romantix, Inc. (Romantix). The judgment was reversed.
Romantix operates an adult video arcade in the City. Customers are given the opportunity to view various films. They can purchase prepaid cards that enable them to activate a "film preview" or an "arcade" feature in a private room on the premises using equipment furnished by Romantix.
In the film preview option, the customer chooses a film to watch inside a private room. The customer can fast-forward, adjust sound, and start and stop the viewing. The charge is based on the size of the room. In the arcade option, the customer may view any of approximately fifty film channels. Charges are $5 for the first twenty minutes and 25 cents for each additional minute. The customer can switch channels, fast-forward, adjust sound, and start and stop the viewing.
Romantix collected City sales tax from its customers based on the price the customer paid for the prepaid cards for tax years 2005, 2006, and 2007. It later sought a refund. Following a hearing, the City’s hearing officer determined no refund was owed. Romantix appealed to the district court under CRS § 29-2-106.1(8)(a). The court granted summary judgment to Romantix.
On appeal, the City argued that the transactions are taxable for several reasons. The Court of Appeals agreed, holding that the transactions constitute a grant of a license to use tangible personal property and therefore are taxable under CRS § 20-4-1 of the City’s Sales and Use Tax Code (Code). The film-viewing equipment falls under the Code’s definition of "tangible personal property," and the viewing falls under the Code’s definition of "use." Further, customers effectively acquire a license to exercise a degree of control over the equipment to customize their viewing experience. Accordingly, the judgment was reversed and the case was remanded to the district court with directions to grant the City’s cross-motion for summary judgment.
No. 09CA1869. United Fire Group v. Powers Electric, Inc.
Summary Judgment—Statute of Limitations—Construction Defect Action Reform Act.
Plaintiff United Fire Group (insurer) appealed the trial court’s summary judgment in favor of defendants Powers Electric, Inc. and Gary J. Powers (collectively, electrician). The judgment was affirmed.
On March 6, 2006, a fire damaged property owned by Metamorphosis Salon (salon). Neither the salon nor its insurer knew what caused the fire. Three weeks later, a fire investigator gave the insurer a report stating that the cause was faulty wiring in an electrical exit sign. The electrician had installed the sign.
Insurer made a series of payments to the salon to compensate for its losses. On March 11, 2008, insurer filed a subrogation claim against the electrician, alleging negligent installation of the exit sign that caused the fire. The electrician moved for summary judgment, alleging that the case was barred by the statute of limitations and that the time began to run on the date of the fire. Insurer replied that the statute began to run either on the date insurer received the investigator’s report or the date the salon cashed the insurance payments. The trial court granted the electrician’s motion for summary judgment. Insurer appealed.
This is a construction defect case brought under the Construction Defect Action Reform Act. The parties agreed such cases are governed by a two-year statute of limitations. They also agreed that the two-year period begins to run when a claimant "discovers or in the exercise of reasonable diligence should have discovered the physical manifestations of a defect in the improvement which ultimately causes the injury." They also agreed that the improvement in this case was the electrician’s installation of the exit sign.
Insurer argued it could not determine the cause of the fire until the investigator provided his report and, therefore, could not have discovered in the exercise of reasonable diligence the physical manifestation of the defect in the exit sign installation. The electrician countered that the fire was the physical manifestation of the defect; thus, insurer could have discovered in the exercise of reasonable diligence that there had been a fire on the day it occurred. The Court of Appeals agreed with the electrician and affirmed the summary judgment.
The Court also rejected the insurer’s argument that, as a subrogee, it did not suffer any injury until the salon cashed the insurance payments. The Court held that case law is clear that the insurer stands in the shoes of its insured and has no greater rights than the insured.
Colorado Court of Appeals Opinions