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Colorado Supreme Court Opinions
July 1, 2013

2013 CO 42. No. 10SC218. People v. Flockhart.
Pre-Deliberation Jury Instruction—Challenges for Cause—Judicial Disqualification.

The Supreme Court held that the trial court erred by giving a pre-deliberation instruction in defendant’s criminal trial, because to do so was not authorized by rule or existing law. The Court found, however, that the erroneous instruction constituted non-constitutional trial error and was harmless. Accordingly, the Court reversed the court of appeals’ judgment and remanded the case to the trial court to reinstate defendant’s convictions. The Court further held that a trial court retains discretion to conduct challenges for cause in open court, and that the trial court did not err by denying defendant’s motion to disqualify the trial judge. 

2013 CO 43. No. 11SC961. Planning Partners International, LLC v. QED, Inc.
Contract Providing for Award of Reasonable Attorney Fees—Proportional Diminishment—Discretion Afforded to Trial Courts.

Petitioner challenged the court of appeals’ ruling that a trial court must apportion attorney fees in proportion to the amount recovered on a promissory note, less the amount recovered on the counterclaim. Petitioner argued that apportionment is not mandatory when determining reasonable attorney fees under a contract providing for such an award. The Supreme Court agreed, concluding that the determination of whether and how to apportion attorney fees is typically within the discretion of the trial court. Accordingly, the judgment was reversed.

2013 CO 44. No. 11SC29. Allen v. People.
Sexually Violent Predator—CRS § 18-3-414.5(1)(a)(IV)—Risk Assessment Screening Instrument.

The Supreme Court upheld the court of appeals’ decision affirming petitioner’s designation as a sexually violent predator under CRS § 18-3-414.5(1)(a)(IV). The Court held that although the trial court makes the ultimate designation, it should give substantial deference to the Sex Offender Management Board’s scored risk assessment screening instrument. A trial court that deviates from the results of a scored risk assessment screening instrument must make specific findings to demonstrate the necessity of its deviation.

2013 CO 45. No. 09SC1084. People v. Gallegos.
Sexually Violent Predator—“Established a Relationship”—“Promoted a Relationship”—CRS § 18-3-414.5(1)(a)(III).

The Supreme Court affirmed in part and reversed in part the court of appeals’ decision affirming petitioner’s designation as a sexually violent predator under CRS § 18-3-414.5(1)(a). The Court held that an offender “established a relationship” with his or her victim primarily for the purpose of sexual victimization where the offender created, started, or began a relationship primarily for that purpose. Here, petitioner had lived with the victim and treated her as his stepdaughter for the three years preceding the assault. The Court held that, based on these facts, petitioner had not established a relationship with the victim primarily for the purpose of sexual victimization. Thus, he should not be designated as a sexually violent predator.

The Court also held that an offender “promoted a relationship” if, excluding the offender’s behavior during the commission of the sexual assault that led to his or her conviction, the offender otherwise encouraged a person with whom he had a limited relationship to enter into a broader relationship primarily for the purpose of sexual victimization. Because the trial court failed to consider whether petitioner promoted a relationship with his victim primarily for the purpose of sexual victimization, the Court remanded the case to the court of appeals with instructions to remand to the trial court to make specific factual findings and determine whether petitioner promoted a relationship with his victim primarily for the purpose of sexual victimization.

2013 CO 46. No. 09SC384. Uribe-Sanchez v. People.
Sexually Violent Predator—CRS § 18-3-414.5(1)(a)(III)—“Promoted a Relationship.”

Applying its interpretation of the term “promoted a relationship” in CRS § 18-3-414.5(1)(a)(III) from People v. Gallegos, 2013 CO 45, the Supreme Court held that the court of appeals erred when it concluded that petitioner promoted a relationship with his victim by violently sexually assaulting her. The Court remanded the case to the court of appeals with instructions to remand to the trial court to determine whether to designate petitioner as a sexually violent predator under the proper interpretation of “promoted a relationship.”

2013 CO 47. No. 10SC794. Candelaria v. People.
Sexually Violent Predator—CRS § 18-3-414.5(1)(a)(III)—Specific Intent.

The Supreme Court held that an offender need not specifically intend to establish or promote a relationship with the victim primarily for the purpose of sexual victimization to satisfy the relationship criterion of the sexually violent predator statute, CRS § 18-3-414.5(1)(a)(III). The Court accordingly overruled the court of appeals’ decision in People v. Stead, 66 P.3d 117 (Colo.App. 2002), to the extent that it conflicts with this holding. In addition, the Court upheld the court of appeals’ judgment affirming the trial court’s specific findings and resulting designation of petitioner as a sexually violent predator.

2013 CO 48. No. 10SC146. People v. Hunter.
Sexually Violent Predator—“Stranger”—Statutory Interpretation—CRS § 18-3-414.5(1)(a)(III).

The Supreme Court held that the court of appeals erred in reversing petitioner’s designation as a sexually violent predator under CRS § section 18-3-414.5(1)(a). The Court held that “stranger” in § 18-3-414.5(1)(a)(III) means either the victim is not known by the offender or the offender is not known by the victim at the time of the offense.

2013 CO 49. No. 11SC899. Gibbons v. Ludlow.
Professional Negligence—Transactional Malpractice.

The Supreme Court held that to sustain a professional negligence claim against a transactional real estate broker, a plaintiff must show that, but for the alleged negligent acts of the broker, he or she either: (1) would have been able to obtain a better deal in the underlying transaction; or (2) would have been better off by walking away from the underlying transaction. The Court found that here, the sellers failed to present evidence of the fact of damages; they did not establish beyond mere possibility or speculation that they suffered a financial loss as a result of the transactional brokers’ professional negligence. Because no injury could be shown, the trial court properly granted summary judgment as a matter of law. Accordingly, the Court reversed the judgment of the court of appeals with respect to the summary judgment on the professional malpractice claim and reinstated the judgment of the trial court, including the attorney fees and costs associated with the claims.

2013 CO 50. No. 12SA196. Concerning the Application for Water Rights of the City and County of Denver, Acting by and Through its Board of Water Commissioners in Douglas, Arapahoe, Denver, Broomfield, Weld, Adams, and Park Counties: City of Denver v. City of Englewood.
Water Law—Transmountain Lawn Irrigation Return Flows—Appropriative Rights of Exchange—Injury.

The Supreme Court held that the City of Denver may use properly quantified as transmountain lawn irrigation return flows (LIRFs) as a substitute supply of water for its civil action (C.A.) 3635 exchanges. Properly quantified LIRFs are legally indistinguishable from reusable transmountain effluent. The Court also held that junior appropriators, such as the City of Englewood, cannot claim injury solely on account of Denver’s proper operation of the C.A. 3635 exchanges. Thus, the water court correctly decided Denver’s Motion for Determination of a Question of Law under CRCP 56(h).

2013 CO 51. No. 11SC596. Marshall v. People.
Sixth Amendment—Confrontation Clause—Testimonial Statements—Laboratory Supervisor.

Petitioner was charged with driving under the influence of drugs, careless driving, and possession of drug paraphernalia after lab results revealed she had methamphetamine in her system when she caused a car accident. At trial, the People called the supervisor of the Colorado Department of Health toxicology lab to testify about petitioner’s level of intoxication. During her testimony, the People sought to admit the lab result showing that petitioner had methamphetamine in her urine. Although the lab supervisor did not conduct the urinalysis test herself, she supervised the testing process, reviewed all the data generated by the test, made the determination that the data accurately determined that petitioner had methamphetamine present in her urine, and certified the test results. Over petitioner’s objection, the trial court admitted the lab report without the testimony of the lab technician who actually performed the test.

The Supreme Court affirmed the district court’s ruling regarding the admission of the lab report. Admission of the lab report did not violate the Confrontation Clause because the lab supervisor managed the testing process, reviewed all data generated, determined that the data accurately showed that petitioner had methamphetamine present in her urine, and certified the results. She therefore did not provide “surrogate” testimony of the sort found to be problematic in Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705 (2011).

Admission of the lab report also did not violate CRS § 16-3-309(5), which provides that, on a defendant’s timely request, the lab employee who “accomplished the requested analysis” must be made available to testify at trial. According to the plain meaning of “accomplish,” the lab supervisor accomplished the analysis because she performed the final analysis of the data required to certify the results as accurate. Therefore, the lab supervisor’s testimony satisfied the statutory provision.

The trial court also denied petitioner’s motion for judgment of acquittal on the paraphernalia possession charge. Acting in its appellate capacity, the district court upheld the trial court’s decision. Because the People conceded that there was no evidence presented that petitioner possessed drug paraphernalia, the Court held that the county court erroneously denied petitioner’s motion for judgment of acquittal on this charge, and reversed the district court’s judgment in this regard.

2013 CO 52. No. 12SC49. Industrial Claim Appeals Office v. Colorado Dep’t of Labor and Employment.
Unemployment Benefits—Retirement Contributions—Offset Provision.

Respondent worked for the Colorado Department of Labor and Employment (Department) for a number of years, and then retired. The Department made contributions to respondent’s retirement fund, and once she retired, she began receiving retirement payments from that fund. When she was involuntarily separated from her job with the Department during a second period of employment, she applied for and was awarded unemployment benefits. Respondent’s benefits were discontinued when a panel of the Industrial Claim Appeals Office (Panel) reasoned that respondent was ineligible to receive unemployment benefits under the “offset provision” of CRS § 8-73-110(3)(a)(I)(B), which provides that “an individual’s weekly benefit amount shall be reduced (but not below zero) by . . . [t]he prorated weekly amount of a pension, retirement or retired pay, or annuity that has been contributed to by a base period employer.” The court of appeals reversed, holding that the offset provision applies only when the employer has contributed to the claimant’s retirement fund during the base period employment that made him or her eligible for unemployment benefits.

The Supreme Court reversed the judgment of the court of appeals. The offset provision applies when a claimant is receiving payments from a retirement fund “that has been contributed to by a base period employer.” In contrast to the definition of employer, which specifically includes a time frame during which the employing unit must pay wages, and in contrast to the definition of base period, which describes the time frame for determining eligibility for benefits, the offset provision contains no temporal limitation. Therefore, it applies any time the employer has contributed to the retirement fund from which the claimant is receiving payments, regardless of when the contributions were made. Accordingly, the Court held that respondent’s unemployment benefits can be offset by the retirement benefits she is receiving from a base period employer.

2013 CO 53. No. 12SA313. Concerning the Application for Underground Water Rights, Change of Water Rights, and Plan for Augmentation of Cherokee Metropolitan District, El Paso County: Cherokee Metropolitan Dist. v. Felt, Monson & Culichia LLC.
Civil Procedure—Intervention as of Right Under CRCP 24(a).

The Supreme Court held that Felt, Monson & Culichia LLC (FMC) did not have a right to intervene under CRCP 24(a) because FMC did not make a compelling showing that Cherokee Metropolitan District may not adequately represent its interest in the underlying litigation. Furthermore, FMC did not establish that the water court abused its discretion in denying its motion for permissive intervention under CRCP 24(b). The Court therefore affirmed the water court’s denial of FMC’s motion to intervene in the consolidated Case Nos. 2005CW06 and 2005CW20.

2013 CO 54. No. 12SA96. Asmussen v. United States.
Real Property—Deeds—Construction and Operation—Railroad Easement Right-of-Way.

The Supreme Court considered a certified question from the U.S. Court of Federal Claims asking whether Colorado law presumes that abutting landowners own the underlying fee to the centerline of an abandoned railroad right-of-way. The Court determined that the centerline presumption is a common law rule of conveyance that presumes that a grantor who conveyed land abutting a right-of-way intended to convey land to the center of the right-of-way—to the extent that the grantor owned the property underlying the right-of-way and absent a contrary intent on the face of the conveyance. Therefore, although the Court held that the centerline presumption applies to railroad rights-of-way, it also held that, to claim presumptive ownership to the centerline of a railroad right-of-way, an adjacent landowner must produce evidence that his or her title derives from the owner of the land underlying the right-of-way. Accordingly, the Court answered the certified question in the negative.

2013 CO 55. No. 09SC323. People v. Brunsting.
Criminal Law—Fourth Amendment—Exigent Circumstances—Safety of Officers as Justification for Warrantless Search—Search of a Curtilage—Probable Cause.

The Supreme Court considered the exigent circumstances exception to the Fourth Amendment’s warrant requirement as it pertains to a search of a residence’s curtilage motivated by concern for officer safety. The Court held that officer safety concerns fall within the exigent circumstances exception when: (1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable. Here,

The deputy sheriff’s initial entry into defendant’s cartilage was justified by the exigent circumstances exception. The court of appeals did not consider conduct by law enforcement in response to observations made after officer safety concerns caused the first deputy to enter the curtilage. Accordingly, the judgment was reversed and the case was remanded to the court of appeals to consider the remainder of the issues raised on appeal concerning the conduct by law enforcement that occurred after the first deputy crossed into defendant’s curtilage, as well as all other outstanding issues.

Colorado Supreme Court Opinions

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