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Colorado Court of Appeals Opinions
July 31, 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 92. No. 10CA1620. People v. Marciano.
Theft—Challenge for Cause—Burden of Proof—CRE 803(6)—Bank Records—Confrontation Clause of the Colorado Constitution—Evidence.

In her position as secretary for CDL Trucking, defendant’s duties included managing payroll, billing, making deposits, and loading money onto Comdata Mastercard cash cards for truck drivers’ use while on the road. Defendant stole money from the company by writing checks to herself and cash and by loading money onto a Comdata cash card for her own personal use. A jury found defendant guilty of multiple counts of theft.

On appeal, defendant contended that the trial court erred when it denied her challenges for cause as to Juror M and a second juror, both of whom ultimately sat on the jury. During voir dire, Juror M said that she expected defendant to present evidence in her defense. Neither the prosecutor nor the trial court engaged in any rehabilitative questioning of Juror M to clarify her expectations. The trial court gave no explanation on the record regarding why Juror M’s statements should be disregarded. Thus, defendant’s convictions must be reversed.

Defendant also contended that the trial court improperly admitted her bank records and records that CDL received from Comdata. A foundation for admission of bank statements under CRE 803(6) may be based on judicial notice of the nature of the business and of the records. Therefore, the trial court did not err in admitting these records. However, the trial court abused its discretion when it admitted the records from Comdata without the testimony of a foundational witness establishing their admission.

Defendant argued that admission of the Netbank statements violated her right to confrontation under the U.S. and Colorado Constitutions. Defendant’s personal bank account statements from Netbank were not created for testimonial purposes. Despite the indicia of reliability under CRE 803(6) specific to bank records, the prosecution did not establish or even allege that a witness or declarant from Netbank was unavailable. Therefore, the admission of the Netbank statements violated defendant’s state Confrontation Clause rights. On remand, to admit these documents, the prosecution must either present the testimony of an appropriate witness or establish that such a witness is unavailable for trial.

Defendant further contended that the evidence was insufficient to sustain her convictions on only the theft counts based on the transfers made to the Comdata cash card. Where the evidence was admitted at trial, whether or not in error, would have been sufficient to sustain a guilty verdict, the prosecution is entitled to a retrial on remand. Therefore, although the Comdata records should not have been admitted at trial, the counts are nonetheless subject to retrial on remand. The judgment was reversed and the case was remanded to the trial court for a new trial on all counts.

2014 COA 93. No. 11CA2177. People v. Pifer.
Sexual Assault on a Child—Evidence—Enticement of a Child—Challenge for Cause.

A.E., K.J., and M.S., all girls between the ages of 9 and 12, took Pifer’s dog for a walk. Afterward, Pifer invited the girls in and played a game of chase with them, tossing a bed sheet over them when caught. The girls alleged that, in the course of playing with them, Pifer individually and separately sexually assaulted each of them by touching their intimate parts over their clothing.

Pifer argued that that there was insufficient evidence of sexual contact and sexual assault because the sheet was between his hand and K.J.’s clothing. Therefore, he did not touch the “clothing covering the immediate area” of K.J.’s intimate parts. Pifer’s conduct, however, falls within the plain and ordinary meaning of “touching.” Therefore, there was sufficient evidence to convict him of sexual contact and sexual assault.

Pifer also argued that the evidence was insufficient to establish the enticement of a child charge. According to CRS § 18-3-305(1), enticement of a child occurs where the actor “invites or persuades” a child to enter any building with the intent to commit sexual assault or unlawful sexual contact upon the child. Here, the People presented evidence that Pifer approached the girls outside his apartment in his underwear with his penis partially visible, invited them into his apartment, and had unlawful sexual contact with the girls shortly after they entered the apartment. Therefore, there was sufficient and substantial evidence that Pifer intended to sexually assault the girls when he invited them inside.

Pifer further contended that the court erred by denying his challenge for cause to a prospective juror. The court denied the challenge because the juror’s potential frustration with the deliberation process was insufficient to justify sustaining a challenge for cause. The juror gave no indication that he was biased against Pifer or would be unable or unwilling to render an impartial verdict according to the law and the evidence. The judgment was affirmed.

2014 COA 94. No. 11CA2257. People v. Aryee.
Sexual Assault on a Child—District Attorney—Disqualification—Fifth Amendment—Evidence—Age of Victim.

Aryee was the pastor of a church that was located in his home. The teenage victim, K.W., and her family became friends with Aryee when they moved to Denver and began attending his church. In 2008, Aryee and K.W. engaged in sexual intercourse resulting in a child. Aryee claimed the acts were consensual and occurred three times. K.W. claimed that Aryee forced himself on her nine or more times. A jury found Aryee guilty of aggravated sexual assault on a child and numerous counts of sexual assault on a child by one in a position of trust.

On appeal, Aryee contended that the trial court erred by disqualifying the Adams County District Attorney’s Office and appointing two Denver County district attorneys as special prosecutors. The Adams County district attorney requested her own disqualification. The filing of the motion seeking disqualification is all the statute requires;  therefore, the trial court did not err in granting such request and disqualifying the district attorney.

Aryee also contended that the trial court violated his Fifth Amendment rights by admitting statements he made to the police after allegedly invoking his right to counsel. It is unclear, however, whether Aryee was requesting an attorney at that time, or whether he only wanted to speak to one before giving a DNA sample. Considering the totality of the circumstances, Aryee did not make an unambiguous and unequivocal request for counsel. Thus, because Aryee’s statement was ambiguous, the detective was not required to cease all questioning, and the trial court did not err by admitting such statements.

Aryee further contended that the People failed to present sufficient evidence of K.W.’s age to support his convictions. K.W. was born in war-torn Sierra Leone and has no birth certificate. However, S.W., who has taken care of K.W. since birth, testified that K.W. was born on June 6, 1993. Additional evidence was presented regarding S.W.’s age, from which a reasonable jury could have concluded that K.W. was 15 years old at the time of the first incident and between 15 and 18 years old during the following incidents.

2014 COA 95. No. 12CA2308. People v. Nozolino.
Witness Tampering—Evidence—Protected Speech—Recusal.

In 2001, someone fired shots into the home of Nozolino’s ex-wife’s divorce attorney. Later that year, shots were fired into the home of Judge Gilbert Martinez of the Fourth Judicial District, who presided over portions of Nozolino’s divorce case. In 2002, the divorce attorney was shot in the face. In 2008, a man who allegedly had an affair with Nozolino’s ex-wife was fatally shot outside his home. Nozolino instructed numerous witnesses regarding these incidents not to cooperate or communicate with the police or provide any testimony. Based on these communications, the grand jury indicted Nozolino on five counts of witness tampering.

On appeal, Nozolino contended that there was insufficient evidence to support his convictions for counts 4 and 5, the witness tampering counts related to his mother and brother. The prosecution must present evidence that the defendant attempted to induce a witness either to testify falsely or to unlawfully withhold testimony. Nozolino sent an e-mail to his mother and brother recommending that they not cooperate with the police. Standing alone, the e-mails neither advise nor advocate unlawful withholding of testimony. Accordingly, Nozolino’s convictions for witness tampering with respect to counts 4 and 5 were vacated.

The Court of Appeals found that the witness tampering statute is facially constitutional. Therefore, Nozolino’s argument that the witness tampering statute is unconstitutional and infringes on his right to free speech failed.

Nozolino contended that his distribution of pre-printed statements to witnesses Feller and Shrecengost to invoke their right not to testify is akin to the public leafleting and is protected speech. However, Nozolino’s actions were not directed to the general public, did not occur in a public forum, and did not address issues of general public concern. Rather, Nozolino’s pre-printed statements were targeted at specific individuals, were distributed privately, and concerned matters of self-interest. The preprinted statements attempted to induce the witnesses to unlawfully withhold testimony in violation of the witness tampering statute. Therefore, they fall within the proscriptions of the witness tampering statute and the statute is not unconstitutional as applied to Nozolino.

Finally, the district court did not err in finding that the jury instruction regarding disrupting a lawful assembly did not “fit the facts of the case at all.” The judgment was affirmed in part and reversed in part, and the case was remanded to the district court with directions to enter judgment of acquittal on counts 4 and 5.

2014 COA 96. No. 13CA06332. In re the Marriage of Roddy and Morelli.
Modification of Child Support—Abuse of Discretion—Financial Disclosures—CRCP 16.2(e)(10)—CRCP 60(b)(2) and (5).

When the parties’ 2003 decree of dissolution was entered, the court adopted their stipulation that wife would be the primary residential parent for the parties’ minor child and husband would pay her $3,000 in monthly child support. Eight years later, husband moved to modify child support on the bases that his parenting time had increased and his income had decreased since the order. After a hearing, the district court increased husband’s child support obligation to $4,604 per month.

On appeal, husband contended that the district court erred in its child support calculation. Because husband’s appeal from the child support order was untimely, this part of husband’s appeal was dismissed.

Husband also argued that the district court abused its discretion when it denied his motion for post-trial relief after he established that wife had withheld financial information. The plain language of CRCP 16.2(e)(10) does not allow a court to re-determine a child support award. Further, although husband’s post-hearing evidence demonstrated that wife was “inconsistent” insofar as her finances were concerned, the court already made a finding at the child support hearing that wife’s testimony in that regard was “inconsistent” and “incredible.” Additionally, the parties did not dispute that their combined gross incomes exceed the uppermost guideline limits. Therefore, an exact income for wife was not required, because the court had discretion to deviate from the guidelines and enter an appropriate support order. As a result, the district court did not err by denying husband’s motion for relief.

Husband further argued that the court should have granted relief under CRCP 60(b)(5). Because husband alleged that wife either fraudulently failed to disclose or misrepresented her income, his motion fell squarely under CRCP 60(b)(2). In such cases, the residual provision of CRCP 60(b)(5) is not applicable. The appeal from the child support order was dismissed and the post-decree order was affirmed.

2014 COA 97. 13CA0801. Idowu v. Nesbitt, Exec. Dir., Colorado Dep’t of Personnel and Administration.
Overtime Compensation—Retroactive Cancellation of Approved and Taken Leave Time for Essential State Employees—CRS § 24-50-104.5(1).

Plaintiffs Idowu and Whitfield are employed as Health Care Tech IIIs at the Colorado State Veterans Nursing Home at Fitzsimons (Fitzsimons), a facility operated by the Colorado Department of Human Services (DHS). Plaintiff Steele is employed at Fitzsimons as a Nurse III. Plaintiffs are designated as “essential” state employees. CRS § 24-50-104.5(1) provides that authorized paid leave time counts as work time for purposes of providing overtime compensation to essential state employees.

Plaintiffs each received approval from their supervisors to take paid leave time, which, when combined with their work time, totaled more than forty hours in the workweek. Following the end of the relevant pay period, DHS, acting pursuant to a state personnel regulation allowing agencies to “deny, delay, or cancel leave” to reduce overtime liability, adjusted plaintiffs’ timesheets to reflect forty hours of work for the week. Plaintiffs grieved the alterations to their timesheets. The administrator of Fitzsimons denied the grievances.

Plaintiffs petitioned the State Personnel Board (Board), and the grievances were reviewed by defendant, the Executive Director of the Colorado Department of Personnel and Administration (Director), who upheld the denials. The district court upheld the Director’s decision. Plaintiffs appealed.

The Court of Appeals first upheld the denial of Steele’s grievance as untimely. Steele had ten days after learning Fitzsimons had reduced her sick hours to file a grievance. She filed it twenty-three days after receiving her paycheck.

The Court then turned to Idowu and Whitfield’s contention that the Director erroneously applied Regulation 3-34 and the district court erroneously interpreted CRS § 24-50-104.5(1) to allow Fitzsimons to cancel previously approved leave time that had been taken by them. The Court examined the statutory language and found no discretion in the agency to withdraw its authorization once an employee had acted in reliance on the authorization by taking the requested leave (as opposed to withdrawing the authorization before the employee took the requested leave). The Court also found that the Director cannot enact a regulation that would allow her to avoid the mandate in CRS § 24-50-104 requiring that authorized paid leave be counted toward the work of essential employees.

Accordingly, the judgment was reversed in regard to Idowu and Whitfield’s complaints. The matter was remanded for an entry of an order requiring that they be awarded back pay in the amount of overtime they would have received had their periods of authorized paid leave been counted toward the calculation of overtime. The judgment was affirmed in regard to Steele’s grievance.

2014 COA 98. No. 13CA1812. People in the Interest of J.S.R.
Illegal Sentence—Juvenile.

J.S.R. was adjudicated a juvenile delinquent in two previous cases and had two new delinquency cases pending against him. He entered into a plea agreement wherein he pleaded guilty to one count of felony menacing and one count of possession of a handgun by a juvenile in exchange for dismissal of the remaining two counts and the other pending case. Sentencing was left to the court’s discretion.

The court accepted the plea, adjudicated J.S.R. (then 17 years old) a juvenile delinquent as a mandatory sentence offender, and sentenced him to the Department of Youth Corrections (DYC) for a determinate one-year mandatory minimum term of commitment and a mandatory parole period. The court ordered one year of probation immediately following his release from the DYC and advised him that, because he would be 18 upon his release, he would be subject to a county jail sentence if he did not comply with probation.

J.S.R. completed his term of commitment and began serving his probationary term in February 2013. In June and July 2013, the probation department filed petitions to modify or revoke J.S.R.’s probation, which resulted in his arrest. J.S.R then filed a motion to correct an illegal sentence, alleging the probationary term was illegal. The district court denied the motion.

The Court of Appeals firstinterpreted a court’s authority to impose a combination of sentencing options under CRS § 19-2-907. The Court concluded that CRS §§ 19-2-907 and -908(1)(a) can be harmonized and applied together; however, here, the district court erred in the combination that it chose, thereby imposing an illegal sentence.

The Court noted that, in general, probation is an alternative sentence to commitment. A prison sentence is generally punitive, and probation is intended to be rehabilitative. CRS §§ 19-2-907 and -925(1)(b) allow a combined sentence of commitment and probation, but only if the term of commitment is limited to no more than forty-five days. Because J.S.R.’s sentence was a combined sentence of commitment and probation, and the period of commitment exceeded the forty-five day maximum, the sentencing court exceeded its statutory sentencing authority and that the sentence was illegal. The judgment was reversed and the case was remanded with directions to resentence J.S.R. to a determinate one-year mandatory minimum commitment to the DYC, nunc pro tunc to the original date of sentencing, and to correct the mittimus accordingly.

Colorado Court of Appeals Opinions