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Colorado Court of Appeals Opinions
July 5, 2012

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.

2012 COA 107. No.09CA1119. People v. Carbajal.
Sex Offender Registration—Deferred Judgment—Dismissal.

Defendant appealed the trial court’s order denying his petition to discontinue sex offender registration. The order was reversed and the case was remanded to the trial court with directions to grant defendant’s petition.

On August 30, 2001, defendant entered guilty pleas in several cases, including a charge of second-degree sexual assault in this case, and the trial court imposed a deferred judgment with four years’ supervision to run consecutively to the prison term in a Montrose case for drug possession and bail violation. Defendant’s parole in the Montrose case subsequently was revoked, and he returned to prison. The People filed a petition to revoke defendant’s deferred judgment in this case, and as a result, the court extended defendant’s deferred judgment to July 2010. The Supreme Court later issued a decision dismissing defendant’s case entirely, finding that the trial court exceeded its jurisdiction in extending the deferred judgment. The trial court subsequently denied defendant’s petition to discontinue sex offender registration because defendant failed to complete sex offender treatment, failed to pay restitution, and later was convicted of trespass.

On appeal, defendant argued that the trial court erred in denying his petition to discontinue sex offender registration. When defendant’s deferred judgment terminated as a matter of law on August 30, 2005, four years after defendant’s guilty plea, the court implicitly found that all of the probationary obligations associated with the deferred judgment also ended, including the requirement to complete sex offender treatment and to pay restitution. Accordingly, to hold defendant responsible for fulfilling conditions that he no longer was legally obligated to complete was an abuse of discretion by the trial court. Therefore, the trial court abused its discretion in denying defendant’s petition for an order to discontinue the requirement that he register as a sex offender.

2012 COA 108. No.09CA2396. People v. Randell.
Fraud—Tax Refunds—Theft by Receiving—Units of Prosecution—Forgery—Conspiracy—Computer Crime—Colorado Organized Crime Control Act—Prosecutorial Misconduct.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of multiple felonies in connection with a scheme to obtain fraudulent tax refunds and credits from the Colorado Department of Revenue (CDOR). Defendant’s twenty-six theft by receiving convictions were merged into five, the case was remanded for resentencing and correction of the mittimus, and the judgment was affirmed in all other respects.

Defendant, his girlfriend, and his wife diverted more than $11 million in fraudulent income tax refunds and credits from the CDOR to bank accounts and business entities controlled by defendant. Defendant asserted that he could not be convicted of twenty-six counts of theft by receiving under CRS § 18-4-410(7), because that statute required all thefts within a six-month period to be prosecuted as a single felony. Defendant was convicted of twenty-six counts of theft by receiving under CRS 18-4-410, based on acts occurring between August 29, 2005 and April 12, 2007. Starting with August 29, 2005, the facts support five convictions, not four as argued by defendant. Therefore, the twenty-six theft by receiving convictions were merged into five.

Defendant also challenged his convictions for forgery, conspiracy to commit forgery, conspiracy to commit computer crime, and violation of the Colorado Organized Crime Control Act (COCCA). Regarding the forgery charges, the jury could have found from the girlfriend’s testimony that she committed forgery by falsely making illegitimate tax refunds, or falsely altering legitimate ones, with intent to defraud the State of Colorado. Whether the jury believed defendant was guilty of forgery as a principal was irrelevant, because the evidence was sufficient to show that defendant was guilty, as a complicitor, for the forgery committed by the girlfriend. Regarding the computer crime charges, a rational jury could find that defendant’s creation of entities and communications of account information were overt acts in a conspiracy to commit computer crime, even if they were not criminal acts in themselves. Regarding the COCCA charge, defendant claims that his actions were not related to the conduct of an “enterprise.” Predicate acts in a pattern of racketeering activity must “protect the integrity of the ongoing enterprise” and be “related to the conduct of the enterprise.” Here, the indictment defined the alleged enterprise as more than a dozen corporate and other entities created by defendant and the girlfriend to receive fraudulent tax refunds. Defendant’s predicate acts were “related to the conduct of the enterprise,” because they channeled stolen money through corporate and other entities set up specifically for that purpose. Therefore, the evidence was sufficient to support the jury’s verdict on these convictions.

Defendant further argued that the prosecution engaged in prosecutorial misconduct. Specifically, the prosecution argued that defendant “stole from” the jury and “spent [jurors’] money” by defrauding Colorado taxpayers. Although the prosecution’s comments were improper, they did not undermine the fundamental fairness of this trial, where misappropriation of public funds was a central issue.

2012 COA 109. No.09CA2629. People v. Munoz-Casteneda.
Intent to Distribute a Schedule II Controlled Substance—Possession of Drug Paraphernalia—Fact Witness—Interpreter—Prosecutorial Misconduct.

Defendant appealed from the judgment of conviction entered on jury verdicts finding him guilty of possession with intent to distribute a schedule II controlled substance (cocaine) and possession of drug paraphernalia. The judgment was affirmed.

Defendant contended that the trial court erred by allowing the detective who interrogated him in Spanish to translate that recorded interrogation during his trial testimony without meeting the requirements for interpreters set forth in CRE 604 and 702. The detective had personal knowledge of the relevant conversation. Therefore, he was a fact witness and was permitted to testify without first being certified as an interpreter.

Defendant also contended that the prosecutor impermissibly introduced the issue of Mexican drug trafficking organizations into the trial through his voir dire questioning of prospective jurors and his direct examination of his expert witness. Although the prosecution’s comments were improper (because this case did not involve drug trafficking organizations or allegations of complicity), the misconduct does not warrant reversal in light of the overwhelming evidence of defendant’s guilt.

2012 COA 110. No.10CA2382. Francen v. Colorado Department of Revenue, Division of Motor Vehicles.
Revocation of Driver’s License—Alcohol—Reasonable Suspicion—Initial Stop—Express Consent Statute—Exclusionary Rule.

Respondent Colorado Department of Revenue (Department) appealed the trial court’s order reversing its revocation order concerning petitioner Tom Francen. The judgment was reversed and the case was remanded to the district court for reinstatement of the Department’s order revoking Francen’s driver’s license.

The Department revoked Francen’s driver’s license based on a determination that he had driven a motor vehicle with a legally excessive breath alcohol content. The district court reversed the revocation order, finding that the initial stop of his vehicle by police was not supported by reasonable suspicion.

The Department argued that the district court erred in reversing the revocation order because the police officer’s initial contact with Francen was unlawful. The express consent statute no longer provides that an arrest is a prerequisite to a request for chemical testing. Therefore, the legality of the initial contact between a driver and police is not relevant in a civil revocation proceeding, and the Department should not apply the exclusionary rule in civil revocation proceedings.

2012 COA 111. No.11CA0950. People v. Kovacs.
Forgery—Written Instrument.

The People appealed the district court’s order dismissing for lack of probable cause their indictment of defendant Alexander Kovacs for forgery. The order was reversed and the case was remanded.

In 2010, a grand jury indicted Kovacs on five counts of forgery of a written instrument. The indictment alleged that Kovacs provided various parties appraisals that contained material misrepresentations or omissions. The district court dismissed the indictment, finding that the appraisals were not “forged instruments” as that term is defined in CRS § 18-5-101(5).

The People argued that the district court erred in dismissing the indictment. Under CRS § 18-5-101(3)(b), a person falsely “completes” a written instrument when he or she adds materially false information to any instrument, genuine or non-genuine, so as to render it legally operative. Here, Kovacs falsely completed the appraisals when he certified the appraisals as true and accurate, and as having been completed in compliance with the applicable professional guidelines. Therefore, the district court erred in dismissing the indictment based on its view that the forgery statute required the completion of a non-genuine instrument.

2012 COA 112. No. 11CA1019. Loveland v. St. Vrain Valley School District RE-1J.
Governmental Immunity—Subject Matter Jurisdiction—Injuries on School Playground.

During lunch recess on November 21, 2008, a 9-year-old minor child (the minor) suffered a compound fracture of her left arm when she fell from a playground apparatus. The minor, through her parents and next friends, sued defendants St. Vrain Valley School District RE-1J (school district) and Cathy O’Donnell, alleging claims of premises liability and negligent supervision. The trial court dismissed all claims against defendants. The Court of Appeals affirmed in part and reversed in part, and the case was remanded with directions.

The common law doctrine of sovereign immunity was abrogated by the Colorado Supreme Court in a 1971 trilogy of cases. The General Assembly responded by enacting the Colorado Governmental Immunity Act (Act), which includes an immunity waiver for a “dangerous condition of any public hospital, jail, public facility located in any park or recreation area maintained by a public entity. . . .” Defendants filed a CRCP 12(b)(1) motion, arguing lack of subject matter jurisdiction. The trial court granted the motion, holding that the playground apparatus did not constitute a “public facility” under the Act.

On appeal, plaintiffs argued it was error to conclude the apparatus is not a “public facility” under the Act, and the Court agreed. The Court found the phrase “public facility” ambiguous and therefore looked to rules of statutory construction and legislative history to ascertain intent. The Court found that the apparatus clearly was “public,” given its availability to all, and that it was a “facility,” because it was a man-made, mechanical device installed on a playground for the purpose of providing recreation. The legislative history supported this conclusion. The trial court decision was reversed and remanded on this issue.

Plaintiffs also argued that it was error to conclude that the tort of negligent supervision is not a recognized exception to sovereign immunity under the Act. The Court disagreed and affirmed on this issue. The Court noted that all parties agreed that injuries resulting from negligent supervision were not among the tortious injuries for which sovereign immunity has been expressly waived. Plaintiffs’ arguments for an implied waiver are of no avail because the case law is clear that, absent specific language unambiguously waiving sovereign immunity, implied waiver is disallowed by the Act.

2012 COA 113. No. 11CA1041. Gray v. University of Colorado Hospital Authority.
Public Entity Immunity—Public Employee Immunity—Willful and Wanton Actions.

Charles Gray died while a patient of the University of Colorado Hospital and the University of Colorado Hospital Authority (collectively, the hospital). His family brought a medical malpractice suit against the hospital and some of its employees. Defendants moved to dismiss under the Colorado Governmental Immunity Act (Act), and the trial court granted the motion. The Court of Appeals affirmed in part and reversed in part, and the case was remanded with directions.

It was undisputed that Gray suffered from epilepsy and checked into the epilepsy monitoring unit in October 2007 so that the nature and extent of his seizures could be monitored while he was weaned from his anti-seizure medications. This required Gray to stay in the hospital for several nights. Members of his family were assured that Gray would be monitored around the clock by hospital personnel during this process. The hospital later admitted this assurance was false. On the fifth night of the patient’s stay, he was left unattended for about an hour. The patient suffered a seizure, stopped breathing, and died.

The Act provides immunity to all public entities from suit for all actions that lie in tort or that could lie in tort, unless an enumerated exception applies. One exception is applicable in this case: injuries resulting from the “operation of any public hospital.” When immunity is waived, a plaintiff’s recovery is limited to $150,000 per occurrence from one or more public entities. The hospital deposited $150,000 in the court registry and the trial court declared the claim moot.

The Court held that the statute and case law clearly provide that the hospital is immune from suit for its own willful and wanton acts or omissions, or for the willful and wanton acts or omissions of its employees. However, the hospital and the Court recognized that its sovereign immunity was nonetheless waived under the statute. That liability is capped at $150,000 and the claim against the hospital was rendered moot when it deposited that amount into the court registry to be distributed to the patient’s family.

The patient’s family also made numerous allegations against various hospital employees. The Court affirmed the dismissal by the trial court of all those claims except for the claim against Dr. Mark Spitz. Public employees have qualified immunity, not sovereign immunity. Public employees are immune from liability for “injuries arising out of an act or omission occurring during the performance of his or her duties and within the scope of his or her employment, unless such act or omission was willful and wanton.” The $150,000 cap does not apply to limit a public employee’s liability if his or her acts or omissions were willful and wanton. In this case, the facts alleged support a reasonable inference that Dr. Spitz was aware that his acts or omissions created danger or risk to the patient’s safety and that the doctor acted, or failed to act, without regard to the danger or risk. The dismissal therefore was in error and the case was remanded for proceedings against the doctor.

The Court did not find the conduct of any of the other defendants as alleged in the complaint were of sufficient specificity to support a reasonable inference that they were willful and wanton. Accordingly, the Court affirmed their dismissal.

2012 COA 114. No. 11CA1136. McLaughlin v. Oxley.
Negligence—CRS § 13-21-117.5—Immunity.

Defendants Christopher Oxley, Ricardo Sison, and Ability Specialists, Inc. (Ability) appealed the trial court’s holding that they were not immune from the suit brought by plaintiffs Brandon McLaughlin, Michael McLaughlin, and Selena McLaughlin. The Court of Appeals reversed the trial court’s order and the case was remanded with directions.

Michael and Selena McLaughlin retained Ability to provide services to assist in the care of their developmentally disabled son, Brandon, who at the time was 21 years old. As part of the services, Oxley, an employee of Ability, was supervising Brandon at Oxley’s home, while Oxley’s own 7-year-old son, B.O., was present. Brandon and B.O. were left unattended together, during which time Brandon put B.O. in a “spanking position,” pulled down B.O.’s pants, and kissed him. Oxley informed his superiors, who called the police to investigate. The police charged Brandon with sexual assault on a child. The criminal case was dismissed after Brandon was found incompetent to proceed.

Plaintiffs later sued defendants, alleging negligence against Oxley and Ability. Defendants moved for summary judgment on all claims, arguing they were immune from liability under CRS §§ 13-21-117.5(4) and (6). The trial court denied the motion and defendants appealed.

CRS § 13-21-117.5 was enacted to “mitigate the risk of liability to providers to the developmentally disabled to the extent that such mitigation is reasonable and possible.” The Court agreed with defendants that the trial court erred in finding that § 13-21-117.5(6) did not apply. The trial court reasoned that the section applied only to immunize a provider against civil actions initiated by a victim of a developmentally disabled person’s assaultive behavior and not, as here, to a suit regarding harm to the developmentally disabled person. The Court found no support for such an interpretation of the statute. The order was reversed and the case was remanded for entry of summary judgment in favor of defendants.

2012 COA 115. No. 11CA1251. Vanderpool v. Loftness.
Negligence and Battery—Nonmutual Offensive Issue Preclusion Waiver.

Plaintiff Adam Vanderpool appealed the district court’s judgment on jury verdicts in favor of defendant Jeremy Loftness on plaintiff’s negligence and battery claims. The Court of Appeals affirmed.

Vanderpool and Loftness, both students at Colorado State University, had a physical altercation near campus after attending a party. Loftness hit Vanderpool and claimed self-defense.

The District Attorney charged Loftness with second-degree assault. On September 8, 2009, Loftness pleaded guilty to added charges of attempted second-degree assault (a felony) and third-degree assault (a misdemeanor). His plea to the felony was subject to a stipulation for a deferred judgment. If he successfully fulfilled the conditions of the deferred judgment, in two years the guilty plea would be withdrawn and the charge dismissed with prejudice. His plea to the misdemeanor was unconditional.

Vanderpool filed this civil case against Loftness on August 19, 2009, asserting claims for negligence, assault, battery, and outrageous conduct. The jury found in Loftness’s favor on the negligence and battery claims.

On appeal, Vanderpool argued four points of error: (1) denying his motion for a directed verdict on the battery claim; (2) allowing one of Loftness’s medical expert witnesses to testify; (3) improperly instructing the jury on the elements of the battery claim; and (4) denying his motion for judgment notwithstanding the verdict on the battery claim. The Court rejected all these arguments.

On the second day of trial, Vanderpool’s attorney prematurely moved for a directed verdict on the battery claim on the ground that issue preclusion barred Loftness from denying that he had committed battery on Vanderpool and from claiming self-defense. This is offensive issue preclusion and, because it was asserted by a nonparty to the criminal case, it is “nonmutual.” This requires consideration not just of the four foundational requirements for issue preclusion but also consideration as to (1) whether the party seeking to assert preclusion could have joined the first action; (2) the extent to which the party sought to be stopped had incentive to litigate vigorously the prior case; (3) whether the decision sought to be relied on is inconsistent with another decision involving the party sought to be estopped; and (4) whether the second case affords the party sought to be estopped procedural protections that were unavailable in the first case.

Issue preclusion may be waived. Courts have held that a party waives offensive issue preclusion unless it is timely raised. Here, Vanderpool’s counsel was aware of Loftness’s guilty pleas, but did not assert issue preclusion until the second day of trial, eighteen months after filing the complaint and seventeen months after the guilty pleas. Given that time frame and the lack of any indication that the issue would be raised, the Court found that the trial court did not abuse its discretion in ruling that Vanderpool had waived issue preclusion.

Vanderpool argued it was error for the trial court to not rule on his motion to compel production of documents from one of Loftness’s expert witnesses, Dr. Ramos, or on his motion to prohibit him from testifying. Vanderpool did not preserve this issue for appellate review. He filed motions, but never requested rulings on them before or during trial.

Vanderpool argued that the instruction on battery that the jury had to find “harmful” physical contact should have been “harmful or offensive” physical contact. The Court did not address this argument because Vanderpool’s counsel tendered an elemental instruction on battery substantially identical to the one the court ultimately gave the jury and expressly stipulated to the court’s instruction. In addition, there was no objection to the instruction. The judgment was affirmed.

Colorado Court of Appeals Opinions