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Colorado Court of Appeals Opinions
July 3, 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 80. No. 07CA1217. People v. Schupper.
Indigent—Court-Appointed Counsel—Right to Counsel—Advisement—Recusal—Bias.

Defendant was charged with a single count of felony theft. After numerous hearings on defendant’s claim that he was indigent and had requested court-appointed counsel, defendant’s request ultimately was denied. He represented himself at trial and was found guilty of theft.

On appeal, defendant contended that the trial court erred when it determined he was not entitled to court-appointed counsel based on the collection investigator’s report. The Court of Appeals affirmed the trial court’s judgment.

First, defendant did not meet his burden to prove he was indigent. Second, the trial court’s finding that defendant “lived a luxury lifestyle” was supported by the evidence introduced at numerous hearings over a period of six months. Therefore, the trial court did not abuse its discretion in determining that defendant was not entitled to court-appointed counsel.

Defendant next contended that the court erred by failing to provide him an express advisement concerning his right to counsel before forcing him to proceed pro se at trial. The trial court never gave defendant an express advisement of his rights after it decided defendant was not entitled to court-appointed counsel. The record establishes that defendant knew of his right to counsel, his right to court-appointed counsel if he was indigent, and the importance of having counsel. Also, defendant is highly educated, and he understood the charges against him and the possible penalties from those charges. Defendant demonstrated that he understood his Fifth Amendment right to remain silent, as well as his right to subpoena and confront witnesses. Based on the totality of these circumstances, defendant knowingly, intelligently, and voluntarily waived his right to counsel.

Defendant further contended that Judge Schwartz erred in denying his repeated requests for recusal based on the court’s alleged bias. Rulings of a judge, including an indigency determination, are not sufficient in themselves to show bias or prejudice. Additionally, although Judge Schwartz may have been a material witness in the perjury cases against defendant, the case would not be heard in his court. Therefore, it was not error for the court to deny defendant’s request for recusal. The judgment was affirmed.

2014 COA 81. No. 10CA0173. People v. Payne.
Allen Instruction—Constitutional Right—Jury Deliberations—Evidence—Theft—Value.

V.V.’s home was burglarized while he and his family were away. A neighbor, who had observed part of the burglary, reported that she had noticed a car parked near V.V.’s house. Four days after the burglary, police officers pulled over defendant and noticed that the vehicle he was driving matched the description the neighbor had given to the police. Defendant was subsequently found guilty of second-degree burglary and theft.

On appeal, defendant contended that his right to be present at his trial was violated when the trial court delivered a “modified Allen instruction” to the jury in his absence during jury deliberations and against his counsel’s objection. Because of the psychological influence a defendant's absence or presence may have on the jury, a defendant has a constitutional right to be present when a modified Allen instruction is read to a deadlocked jury. Therefore, the Court of Appeals determined that defendant’s constitutional right was denied. Because the People failed to carry its burden of proving beyond a reasonable doubt that there was no possibility that defendant was prejudiced by his absence when the court read the instruction, defendant’s convictions were reversed.

Defendant also contended that the evidence was insufficient to support his conviction of theft of property valued between $1,000 and $20,000. V.V.’s testimony that the digital camera and video camera were worth a total of $780 was sufficient evidence of value for those items. However, V.V.’s testimony that the television cost $1,400 could not support an inference that the purchase price of the television was comparable to its fair market value at the time the offense was committed. Accordingly, the evidence was insufficient to sustain a conviction of class 4 felony theft of property valued between $1,000 and $20,000. The judgment was reversed, defendant’s sentence was vacated, and the case was remanded with directions.

2014 COA 82. No. 10CA0790. People v. Acosta.
Discovery—Sanctions—Due Process—Relevant—Evidence—Ultimate Issue—Testimony—Summary Characterization—Hearsay—Bias.

Defendant attended a party in his apartment complex that was hosted by a couple he did not know. At least two children, including the 7-year-old victim, C.L., also were present. Defendant was asked to leave the party when someone observed him acting inappropriately with C.L. After speaking with C.L., the responding officer and a forensic interviewer determined that defendant had behaved inappropriately with her. Defendant subsequently was found guilty of sexual assault on a child.

On appeal, defendant asserted that the trial court erred by refusing to sanction the prosecution for withholding, until just before trial, the fourth interrogation of defendant, and for misrepresenting the content of the interrogation. However, defendant did not suffer any prejudice resulting from the late disclosure. Defendant received the evidence before the trial began, was offered additional time to effectively review it but refused a continuance, and was able to use the information during cross-examination of the detective. Additionally, the late disclosure was not willful. Hence, the trial court did not abuse its discretion in declining to sanction the prosecution for its late disclosure of evidence.

Defendant also asserted that the trial court erred by allowing J.H. to testify that defendant was “very guilty-looking” following the incident. A lay witness may testify about a summary conclusion based on the witness’s perception. Here, J.H. was physically present at the party where the assault occurred, and observed defendant immediately after the incident occurred with C.L. J.H. provided a summary characterization of her perception of how defendant looked and acted immediately following the incident. Therefore, the trial court did not abuse its discretion by allowing the challenged testimony.

Defendant further argued that the trial court erred by allowing C.L.’s father to testify that C.L. had attended a support group after the assault and had told him that thinking about the incident made her feel sick to her stomach. Because C.L.’s statements described her state of mind or physical condition resulting from the incident with defendant, the testimony did not violate the hearsay rules and was admissible.

Defendant additionally argued that admission of the father’s testimony violated the trial court’s orders and his right to an impartial judge when the court advised the prosecutor how the testimony might be admitted without providing discovery about the support group to defendant. The judge did not act as an advocate, and the testimony conformed with the court’s orders. Therefore, admission of this testimony was not error. The judgment was affirmed.

2014 COA 83. No. 10CA0832. People v. Wise.
Challenge for Cause—Novotny—Due Process—Retroactive Application—Bias—Consecutive Sentences.

A division of the Court of Appeals previously determined that the district court had erroneously denied defendant’s challenge for cause to a prospective juror. The Colorado Supreme Court vacated the division’s decision, and remanded the case for reconsideration in light of People v. Novotny, No. 10SC377, 2014 CO 18.

On appeal, defendant contended that applying the holding of Novotny to this case would violate his right to due process because he did not have fair warning of Novotny’s change in the law. In Novotny, the Court abrogated the automatic reversal rule on which the previous division had relied, holding that reversal is required for a district court’s deprivation of a defendant’s peremptory challenge only where the error was not “harmless under the proper outcome-determinative test.” Here, the Supreme Court mandated that the Court of Appeals apply that rule in this case. Further, because retroactive application to this case has no legaleffect on proceedings in the district court, including both the determination of guilt and punishment, defendant’s due process rights were not violated. Therefore, in applying Novotny to defendant’s case, and assuming that the district court erred in denying the challenge for cause to prospective juror K, the district court’s error resulting in defendant’s loss of a peremptory challenge was harmless, because defendant did not show that a biased or incompetent juror participated in deciding his guilt.

Defendant also contended that the district court abused its discretion in imposing consecutive sentences for his two felony convictions. Where, as here, a defendant’s multiple convictions are not based on identical evidence, the district court has discretion to impose either concurrent or consecutive sentences. The court’s remarks considered as a whole constitute a sufficient explanation of the basis for its decision to impose consecutive sentences. The judgment and sentence were affirmed.

2014 COA 84. No. 10CA2139. People v. Newmiller.
Ineffective Assistance of Counsel.

Defendant, his brother, and their friends went to a strip club in Colorado Springs to celebrate defendant’s birthday. When the group was leaving the club, they had an altercation with another group (victim’s group) regarding a comment someone in the victim’s group had made to a dancer. The two groups confronted each other soon after, and the victim was stabbed in the heart. He later died from his injuries.

On appeal, defendant argued that his trial attorneys were ineffective. To establish prejudice, a defendant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Here, counsel’s failure to request a lesser included offense instruction or consult with defendant on the matter did not constitute ineffective assistance, because it was an adequately informed strategic choice by defendant’s attorneys. Additionally, contrary to defendant’s assertions, counsel’s failure to request an instruction on the lesser non-included offense of accessory to crime did not constitute ineffective assistance, because there was no factual basis for this requested instruction; it could be considered a strategic choice by defendant’s attorneys. Further, the level of investigation by defendant’s counsel and the subsequent decision not to retain a medical expert clearly met the standard of reasonably competent assistance. Also, defendant has not shown that, in light of all the circumstances, counsel’s failure to call a crime scene reconstruction expert was “outside the wide range of professionally competent assistance.” Finally, one attorney discussed the case with defendant on multiple occasions and this attorney’s advice to defendant regarding his right to testify was within the range of competence demanded of attorneys in criminal cases. Therefore, defendant failed to prove that hisattorneys were ineffective. The district court’s order denying defendant’s Crim.P. 35(c) motion for post-conviction relief was affirmed.

2014 COA 85. No. 11CA1178. People v. Garcia.
Probation Revocation—Mootness.

In 2010, Garcia pleaded guilty to criminal impersonation for providing a false name and false identification documents to police officers when they pulled him over for driving under the influence (DUI). He was sentenced to sixty months’ probation and one year in jail, on condition that he leave the United States and not reenter without inspection and a visa. Garcia’s remaining jail time was waived and he was released to the custody of Immigration and Customs Enforcement (ICE) for deportation.

One year later, Garcia returned to the United States. He was arrested for a traffic violation and charged with violating the conditions of his probation. The trial court revoked his probation after finding he had reentered the United States without a valid passport or visa. He was resentenced to one year in the custody of the Department of Corrections, with credit for 211 days served. After he completed his sentence, ICE deported him. In 2012, Garcia returned to the United States and ICE deported him again.

Garcia filed a notice of appeal of the revocation of his probation and the People filed a motion to dismiss, arguing the appeal was moot. The Court of Appeals granted the People’s motion.

The doctrine of mootness precludes the Court from reviewing a case in which its decision will have no practical effect on an actual or existing controversy. Here, the Court found that the appeal was moot because: (1) Garcia had already served his sentence; (2) he was not contesting his conviction, which could affect his admission to the United States; and (3) he is permanently barred from reentering the United States because criminal impersonation is a crime involving moral turpitude.

Garcia argued that the Court should reach the merits of the appeal even if it is otherwise moot, because it is capable of repetition without conducting a review, and this presents a matter of public importance involving recurring constitutional violations. The Court disagreed. First, there is no chance that Garcia’s probation will be revoked again because he has completed his sentence, has been deported, and is permanently barred from reentry. Second, this case does not involve a matter of public importance because the appeal only concerned the revocation of Garcia’s probation. Accordingly, the appeal was dismissed.

2014 COA 86. No. 13CA0775. Giduck v. Niblett.
Defamation—Personal Jurisdiction—Failure to State a Claim.

Plaintiffs Giduck and his wife are Colorado residents. Giduck carried out various servicesthough a business called Archangel Group, Ltd.

Plaintiffs sued seven defendants for defamation (libel per se and libel per quod); trespass; assault; invasion of privacy; intentional interference with contract; tortuous interference with prospective business advantage; extreme and outrageous conduct; civil conspiracy; aiding and abetting tortuous conduct; preliminary and permanent injunction; and violation of the Colorado Organized Crime Control Act, based on various Internet postings by defendants. Plaintiffs claimed defendants “waged a public campaign of defamation all over” the Internet to discredit Giduck. Defendants filed separate but similar motions to dismiss, which the trial court granted.

On appeal, plaintiffs argued it was error: (1) to conclude defendants’ statements were constitutionally privileged; (2) to dismiss claims three through twelve as a sanction for improperly amending their complaint; and (3) to grant defendant Monger’s motion to dismiss for lack of personal jurisdiction. The Court of Appeals addressed the personal jurisdiction issue first, because all of defendants except Martin asserted they were not subject to the in personam jurisdiction of the Colorado District Court. The Court concluded that plaintiffs failed to establish the district court’s personal jurisdiction over the foreign defendants. Therefore, the dismissal as to those defendants was proper.

The Court found a failure by defendants to make a prima facie showing of specific personal jurisdiction over them. Accordingly, the dismissal of foreign defendants was affirmed.

The dismissal involving Martin was based on the district court’s conclusion that all of the statements made by defendants were protected opinion. The Court affirmed this ruling. Plaintiffs alleged that Martin made two defamatory statements. The Court concluded that both statements could not be reasonably interpreted as stating actual facts about Giduck.

The Court affirmed the dismissal of claims three through twelve because plaintiffs failed to comply with its order for a more definite statement. It found nothing was added to the amended complaint that tied any defendant to any of the nine claims.

Because the district court properly dismissed the complaint against all defendants pursuant to CRCP 12(b)(2) or 12(b)(5), they were entitled to their reasonable attorney fees incurred on appeal. The judgment was affirmed and the matter was remanded for a determination of reasonable attorney fees.

2014 COA 87. No. 13CA0779. Expedia, Inc. v. City and County of Denver.
Online Travel Companies’ Collection of Municipal Taxes for Hotel Accommodations.

The City and County of Denver (City) imposes a Lodger’s Tax of 10.75% on the purchase price for lodging. “Lodging” includes overnight accommodations, furnished for consideration, in a hotel or similar establishment. The tax must be collected from travelers and remitted to the City by vendors. The City argued that plaintiff online travel companies (OTCs) are vendors that must collect and remit the Lodger’s Tax on the fees they charge their customers, in addition to the tax on the room rate charged by the hotel.

The OTCs facilitate booking reservations on behalf of its customers. The OTC calculates the Lodger’s Tax based solely on the discounted room rate charged by the hotel, excluding the additional fees collected from the traveler and retained by the OTC. The OTC does not disclose to the customer the discounted rate the OTC pays the hotel, the amount representing the OTC’s fees, or the portion of the final price attributable to the Lodger’s Tax.

The hotel invoices the OTC for the contractual room rate and the Lodger’s Tax on that discounted rate. The hotel assumes responsibility for remitting the collected Lodger’s Tax to the City. The Lodger’s Tax remitted is based on the discounted rate charged the OTC, but the City argued it should be based on the full amount paid by the customer to the OTC.

The City began investigating the OTC’s obligations under the Lodger’s Tax in 2003. The City took no action until 2010, when it issued the assessments at issue in this case. The City’s manager of finance issued Lodger’s Tax assessments to the OTCs from 2001 through April 2010 totaling $40 million.

The parties stipulated that if they were liable for the Lodger’s Tax on their fees since 2001, they owed $4,652.522 in back taxes, not including penalties and interest. A hearing officer found that the OTCs were liable for the tax since 2001, and they owed interest and a 15% nonpayment penalty.

The district court affirmed, but found error in the hearing officer not having applied the ordinance’s three-year limitations period relevant to tax assessments. It therefore vacated the assessments to the extent they pertained to taxes payable more than three years before the date of the assessments. The OTCs appealed the portion of the order holding them liable, and the City cross-appealed the application of the statute of limitations.

The Court of Appeals held that the Lodger’s Tax did not apply to the fees charged by the OTCs for two reasons: (1) the OTCs are not vendors within the meaning of the ordinance because they do not furnish lodging, and (2) their fees are not included within the purchase price for lodging under the ordinance because the fees are not directly connected with the furnishing of lodging. The City argued that making sales of lodging is synonymous with selling lodging. The Court agreed that the OTCs are not vendors under the ordinance because they do not actually furnish lodging. It was an abuse of discretion to find otherwise.

The Court found that OTC fees are not directly connected with furnishing lodging because they are compensated only for providing travel-related information and online facilitation services. Therefore, under a provision of the Lodger’s Tax, their fees are excluded. The matter was remanded to vacate all of the tax assessments against the OTCs.

2014 COA 88. No. 13CA0989. Lester v. The Career Building Academy.
Attorney Fees Under the Colorado Wage Claim Act.

Lester appealed a jury verdict awarding him $12,307.69 in unpaid compensation based on breach of an implied contract with defendant, The Career Building Academy (TCBA). TCBA is a Colorado nonprofit corporation that provides vocational training, with an emphasis on residential construction, to high school students.

In 2011, Lester orally agreed to work as TCBA’s chief operating officer. Rick Johnson, TCBA’s founder, promised to pay Lester an annual salary of $150,000, of which $75,000 would be paid by TCBA and $75,000 by Johnson Heating and Plumbing (JHP).

During his first six months, Lester was paid twice, totaling $7,884 in gross pay. Lester resigned and sent a wage demand to TCBA. TCBA rejected the demand, contending that Lester agreed to volunteer as chief operating officer. Lester sued TCBA and JHP, seeking unpaid wages and compensation, as well as penalties and attorney fees.

A jury determined Lester had entered into an implied contract with TCBA and returned a verdict in his favor for $12,307.69. The court dismissed Lester’s claim against JHP. Following the verdict, Lester requested that the court award him statutory penalties and attorney fees under the Colorado Wage Claim Act (CWCA). TCBA argued that the CWCA did not apply to an implied contract. After applying factors in Carruthers v. Carrier Access Corp., 251 P.3d 1199 (Colo.App. 2010), used to determine an award of attorney fees to prevailing employers, the trial court denied the request.

On appeal, Lester argued it was error to apply the Carruthers factors to a prevailing employee who is presumptively entitled to an award of attorney fees. The Court of Appeals agreed. CRS §8-4-110(1) allows a court to award costs and attorney fees to the prevailing party on a CWCA claim. Unlike a prevailing employer, a prevailing employee is presumptively entitled to attorney fees under the CWCA. The attorney fee issue was remanded for reconsideration under the correct standard by the trial court.

Lester also argued it was error for the trial court to have, sua sponte, dismissed his claims against JHP as a matter of law. The Court found no reversible error. It also determined that because JHP was neither a member of TCBA nor an individual, the alter ego doctrine could not be applied to it.

The Court held that if the trial court decides that Lester is entitled to attorney fees in the trial court, Lester also should be awarded appellate attorney fees. The denial of attorney fees under the CWCA was reversed and the case was remanded to the trial court to consider Lester’s request for attorney fees, incurred in the trial court and on appeal.

2014 COA 89. No. 13CA1092. Morales-Guevara v. Koren.
Motor Vehicle Accident Damages Calculation—Jury Selection—Automatic Reversal Rule.

At trial, defendant did not dispute that she caused a motor vehicle accident by driving while intoxicated. Damages were in dispute. Defendant challenged plaintiff’s claim that the accident was the cause of a heart attack he suffered two months later.

During voir dire, there was an exchange between plaintiff’s counsel and a prospective juror concerning whether she could properly apply the burden of proof to the issue of the causation of the heart attack. After receiving a negative response, plaintiff challenged her for cause. Neither defendant nor the court tried to rehabilitate the prospective juror. The court denied the challenge, plaintiff removed the juror using a peremptory challenge, and plaintiff then exhausted his remaining peremptory challenges.

On appeal, plaintiff raised two issues: (1) whether the trial court abused its discretion in denying plaintiff’s challenge for cause to the prospective juror and, if so, (2) whether the “automatic reversal rule” announced in the civil case of Denver City Tramway Co. v. Kennedy,50 Colo. 418, 117 P. 167 (1911), remains binding after the Supreme Court’s decision in the criminal case of People v. Novotny, 2014 CO 18, 320 P.3d 1194.

The automatic reversal rule provides that, when a trial court improvidently denies a challenge for cause to a prospective juror and then, after exercising a peremptory challenge to that juror, a litigant exhausts his or her peremptory challenges, reversal is required without a showing of prejudice. The resolution of this issue turns on whether the Supreme Court overruled Denver City Tramway and its progeny in Novotny.The Court of Appeals concluded that the trial court abused its discretion in denying the challenge for cause and the automatic reversal rule still applies in civil cases, thereby requiring reversal.

The record disclosed that the prospective juror clearly stated she would be unable to follow the law. She made no affirmative assurance that she would follow the court’s instructions after expressing her unwillingness to do so. She should have been excused from the jury and it was an abuse of discretion not to do so.

The Court also discussed the case law behind the automatic reversal rule and the recent Novotny decision. It concluded that Novotny did not overrule Denver Tramway and its progeny, and that the application of the automatic reversal rule still controls in the civil context. The judgment was reversed and the case was remanded for a new trial.

Colorado Court of Appeals Opinions

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