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Colorado Court of Appeals Opinions
August 14, 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.

2013 COA 104. No. 12CA2436. In re the Estate of Foiles v. Foiles.
Trust—Beneficiaries—Breach of Fiduciary Duty.

The trustees of the Clyde Foiles Trust were Ruth Foiles, Larry Foiles, and the Farmers State Bank of Fort Morgan (Bank). Larry Foiles, along with Larry’s two children and his nephew Gregory Foiles, were beneficiaries of the trust. The trust prohibited Larry Foiles from exercising powers as trustee that were directly or indirectly for his own benefit, and required that any such actions be taken solely by the Bank. Gregory Foiles contested two transactions undertaken at least in part by Larry Foiles, alleging that the transactions were a breach of his fiduciary duty. The trial court entered judgment in favor of Larry Foiles.

On appeal, Gregory Foiles contended that the trial court improperly ruled on his breach of fiduciary duty claim. In the absence of a trust provision that would allow ratification by a co-trustee of otherwise invalid actions of a trustee, only the consent of all beneficiaries, with full capacity to give such consent and full knowledge of the relevant facts, could ratify an action of a trustee that is in violation of the express terms of a trust. Here, because Larry Foiles’s undertaking of the 2001 Section 1031 exchange of real property violated the terms of the trust, the Bank, as co-trustee, could not validly ratify that action. Under the terms of the trust, only the Bank would have been authorized to undertake such a transaction. Therefore, Gregory Foiles established a prima facie claim that Larry breached his fiduciary duty, and the trial court erred in ruling that ratification by the Bank precluded Gregory Foiles’s breach of fiduciary duty claim. The judgment was reversed and the case was remanded to the trial court to make additional findings as to whether Larry Foiles met his burden to go forward with some evidence that the questionable transaction was fair and reasonable, and, ultimately, whether he was liable for breach of fiduciary duty in connection with that transaction.

2014 COA 100. No. 12CA1528. People v. Curtis.
Sexual Assault on a Child—Joinder—Motion to Suppress Evidence.

Curtis appealed the judgment of conviction entered on a jury verdict finding him guilty of two counts of sexual assault on a child and two counts of aggravated incest, all arising from sexual acts with his two daughters, S.C. and C.C. These assaults began when the victims were 9 or 10 years old and continued until they were removed from the home several years later.

On appeal, Curtis contended that the trial court abused its discretion in allowing the prosecution to join for trial the charges involving the two victims. Sexual assault offenses may be joined if the evidence of each offense would be admissible in separate trials. Here, the evidence of Curtis’s assaults of the two victims would have been admissible in separate trials under both CRE 404(b) and CRS §16-10-301. The evidence at issue related to material facts, including Curtis’s intent and the fact that he was engaged in a common plan, scheme, or design, and this evidence was relevant because it made it likely that Curtis had committed the crimes charged. Accordingly, the trial court did not abuse its discretion in allowing the prosecution to join the charges pertaining to both victims.

Curtis also contended that the trial court erred in refusing to suppress the statements that he made during his interview with an agent from the Colorado Bureau of Investigation. Curtis claimed these statements were involuntary and were made after he had invoked his right to silence. However, Curtis voluntarily waived his Miranda rights, agreed to take a polygraph examination, was not in custody during the examination, and did not unambiguously invoke his right to silence. In addition, the officer’s conduct was not coercive. Therefore, the trial court did not err in denying Curtis’s motion to suppress.

Finally, Curtis contended that the trial court abused its discretion in admitting evidence of his conduct concerning S.C.’s stillborn baby after its birth (specifically, that Curtis removed the stillborn baby from S.C.’s room and concealed it in a box and then in a jar). Curtis’s conduct after the stillborn birth reflected efforts to conceal that birth, shows consciousness of guilt, explained how the abuse continued leading to S.C.’s second pregnancy, and undermined Curtis’s defense that he was unaware he had intercourse with S.C. because she had drugged and sexually assaulted him. Therefore, the trial court did not abuse its discretion in admitting the evidence at issue here. The judgment was affirmed.

2014 COA 101. No. 12CA1703. Pioneer Natural Resources USA, Inc. v. Colorado Department of Revenue.
Sales Tax—Pipelines—Fittings—Enterprise Zone—Natural Gas.

In thissales tax case, the district court concluded that the pipelines and fittings at issue, which are located in one of Colorado’s enterprise zones and are used to gather and deliver natural gas from plaintiff’s wells to its processing facilities, qualify for Colorado’s sales tax exemption because they “are in direct use in the manufacturing of natural gas,” as defined in CRS §§ 39-26-709 and 39-30-106. The Colorado Department of Revenue (DOR) appealed, contending that the district court erred in finding that plaintiff’s purchases qualify for this tax exemption.

The parties agreed that plaintiff’s wells and gas-gathering system are located within an enterprise zone. Under the enterprise zone sales and use tax exemption statute, purchases of “machinery or machine tools” in excess of $500 are exempt from sales tax if they are “used solely and exclusively in an enterprise zone in manufacturing tangible personal property, for sale or profit. . . .” Here, the pipelines are used to “move material from one direct production step to another in a continuous flow,” and the enterprise zone exemption statute considers both “extracting” and “processing” as manufacturing. Thus, plaintiff’s pipelines and fittings that move natural gas from the wells—a direct production step of extracting natural gas—to the processing facilities in a continuous flow qualify for Colorado’s sales tax exemption because they “are in direct use in the manufacturing of natural gas.” Therefore, the district court did not err in finding that plaintiff’s purchases qualified for Colorado’s sales tax exemption. The judgment was affirmed.

2014 COA 102. No. 12CA1825. People v. Miranda.
Sexual Assault on a Child—Evidence—Recording—Prior Consistent Statements—Confrontation Clause—Res Gestae Evidence—Hearsay.

A jury convicted Miranda of sex offenses involving his girlfriend’s 11-year-old daughter, E.S., and her friend, V.M. On appeal, Miranda contended that the trial court erred either in admitting a DVD recording of E.S.’s entire forensic interview or in allowing the prosecution to introduce the recording after E.S. had testified and been released, claiming it violated his confrontation rights. The entire recording was admissible as a prior consistent statement because Miranda broadly attacked the credibility of E.S. Further, the Confrontation Clause permits admission of testimonial hearsay after the declarant has testified and been released, provided that the declarant testified concerning matters addressed in the declaration, the declarant was subject to cross-examination, and the defendant did not ask that the prosecution be required to recall the declarant for further cross-examination after the hearsay had been introduced, which happened in this case. Therefore, Miranda’s confrontation rights were not violated, and the trial court did not commit plain err in admitting the recording.

Miranda also argued that the trial court abused its discretion in admitting evidence that he had groomed E.S., because the evidence was not admissible as res gestae. The record reveals that both the charged offenses and the grooming acts occurred over approximately the same two-year period, and it was helpful to explain the context of the assaults. Therefore, the trial court acted within its “substantial discretion” in admitting the acts as res gestae evidence.

Miranda contended that the trial court erred in admitting a list made by E.S.’s step-mother of the abuse told to her by E.S. However, both the step-mother and E.S. were available to testify, and although roughly two years lapsed between the first assault and the creation of the list, this time span was not so long that E.S. could no longer accurately recall the events that she recited. Thus, the trial court did not commit plain error in admitting the list under CRE 803(5).

Miranda contended that the trial court erred in denying his motion for judgment of acquittal on the V.M. attempt counts because “there was no evidence presented of any overt request and/or expressed dare for a sex act that Mr. Miranda made to V.M.” However, the there was sufficient evidence showing that Miranda had taken all steps preparatory to assaulting V.M. in the same way he assaulted E.S., and had engaged her in a game of truth or dare for the purposes of sexual exploitation.

Finally, Miranda argued that he was entitled to a new trial because his statements to the detective regarding the game incident were taken out of context in a redacted DVD that was given to the jury before deliberation. However, Miranda denied having played the game with the girls in both the redacted and unredacted versions, and he denied having done so at trial. Therefore, he was not entitled to a new trial. The judgment was affirmed.

2014 COA 103. No. 12CA2228. People v. Fritts.
Sexual Assault—Child—Sentence—Consecutive—Right to Counsel—Crim.P. 35(a).

Defendant was charged with sixteen counts of sexual assault-related offenses based on allegations that he molested his minor stepdaughter. In 2000, in exchange for dismissal of the remainder of the charges, defendant pleaded guilty to two counts of sexual assault on a child by one in a position of trust. Defendant was sentenced to two concurrent sentences of twenty years to life. Defendant later filed a Crim.P. 35(a) motion to correct an illegal sentence. After a hearing, the court sentenced defendant to two consecutive sentences of ten years to life.

On appeal, defendant argued that the post-conviction court erred in holding that a defendant has no constitutional or statutory right to appointed counsel at a resentencing hearing occasioned by a successful Crim.P. 35(a) motion. Here, although defendant had a right to appointed counsel because the motion involved resentencing and the court erred in ruling otherwise, the error was harmless beyond a reasonable doubt because defendant was represented by privately retained counsel at the resentencing hearing.

Defendant also argued that the consecutive sentences imposed by the post-conviction court on resentencing were unconstitutional and illegal. However, the aggregate sentence imposed on resentencing was not harsher than defendant’s original sentence. Further, the record supports the court’s finding that two factually distinct offenses occurred. Therefore, the post-conviction court did not abuse its discretion by imposing consecutive sentences, and the consecutive sentences imposed on resentencing did not deprive defendant of due process of law. In addition, defendant’s rights against double jeopardy were not violated. The sentences were affirmed.

2014 COA 105. No. 13CA0995. Wainscott v. Centura Health Corporation.
Auto Accident—Hospital Lien Statute—Notice—Substantial Compliance—Colorado Consumer Protection Act—Fraudulent Concealment.

Donald Wainscott was injured in an auto accident caused by third parties (tortfeasors). He received treatment at St. Anthony Central Hospital, which is managed and operated by Centura Health Corporation. To secure payment of these medical expenses, Centura asserted a statutory hospital lien against any settlement or judgment that Donald Wainscott might receive as a result of the accident. The trial court declared that Centura’s failure to strictly comply with the hospital lien statute rendered its lien unenforceable.

On appeal, Centura argued that it substantially complied with the hospital lien statute and that the trial court erred in finding the lien was unenforceable. Because minor filing and notice deficiencies should not invalidate an otherwise valid hospital lien, substantial compliance may be sufficient to satisfy the filing and notice provisions of Colorado’s hospital lien statute. A lienholder substantially complies when it satisfies the statute’s purposes through timely actual notice of the lien to those against whom the lienholder attempts to enforce the lien. Because Centura did identify and serve the tortfeasors’ insurer and Donald Wainscott, Centura substantially complied with the hospital lien statute and the trial court erred in finding the lien was not enforceable.

On cross-appeal, the Wainscotts contended that the district court erroneously dismissed their Colorado Consumer Protection Act (CCPA) and fraudulent concealment claims under CRCP 12(b)(5) for failure to state a claim on which relief can be granted. The basis of the Wainscotts’ CCPA claim was an injury resulting from Centura’s failure to bill Medicare. However, during the period of time in question, Centura was required to refrain from billing Medicare and to seek payment from the tortfeasors’ liability insurer. Thereafter, it had the option of billing Medicare. Centura’s failure to advise the Wainscotts that it was obeying the law did not constitute a deceptive or unfair trade practice. Further, Centura did not have a duty to disclose that it planned to pursue payment from the tortfeasors or their insurer.Accordingly, the district court properly dismissed the CCPA and fraudulent concealment claims.

The district court’s dismissal of the Wainscotts’ CCPA and fraudulent concealment claims was affirmed. The summary judgment as to the Wainscotts’ declaratory action to determine the validity of Centura’s hospital lien was reversed. The case was remanded for further proceedings to determine whether the amount of Centura’s asserted lien represents “reasonable and necessary charges” under CRS § 38-27-101.

2014 COA 106. No. 13CA1621. TABOR Foundation v. Colorado Bridge Enterprise.

In 1992, Coloradans adopted the Taxpayer’s Bill of Rights (TABOR), which limits the power of the state, its subdivisions, and its districts to levy taxes or create debt. TABOR requires voter approval for any new tax and for the issuance of debt. Enterprises, as defined by TABOR, are exempt from TABOR’s voter approval requirements. In 2009, the General Assembly created the Colorado Bridge Enterprise (CBE). CRS § 43-4-805authorizes the CBE to impose a bridge safety surcharge to finance, repair, reconstruct, and replace any designated bridge in the Colorado highway system, without being subject to TABOR.

In 2012, the TABOR Foundation (Foundation) commenced this action, asserting that the CBE was subject to TABOR. The trial court held that the CBE did not levy a TABOR-prohibited tax when it imposed a bridge safety surcharge, but instead imposed a permissible fee. It further held that the CBE operates as a TABOR-exempt enterprise and did not violate TABOR by issuing bonds without submitting the matter to voters in a statewide election.

On appeal, the Foundation contended that the bridge safety surcharge is a tax because it is collected without regard to any services used by the vehicles for which the charge is imposed, and thus fails to meet the definition of a TABOR-exempt fee. The Court of Appeals disagreed. The General Assembly’s primary purpose was to create a charge that would finance a particular service. Further, the charge can be imposed only for the purpose of financing, repair, reconstruction, and replacement of designated bridges. The money raised by the surcharge could never be used for general government purposes. Further, it is not determinative that persons registering their vehicles might never use a CBE bridge. Therefore, the bridge safety surcharge is a fee, not a tax.

The Foundation also contended that the trial court erred in finding that the CBE is an enterprise exempt from TABOR requirements. CBE is a business because it pursues a benefit and generates revenue by collecting fees from service users. Also, CBE is authorized to issue its own revenue bonds and receives less than 10% of annual revenue in grants from all Colorado state and local governments combined. Therefore, it is an enterprise exempt from TABOR requirements. The judgment was affirmed.

2014 COA 107. No. 13CA1645. Curtiss v. People.
Sexual Assault on a Child—Sex Offender Registry—Petition to Discontinue Registration.

Curtiss pleaded guilty to the felony charge of first-degree sexual assault of a child in Oneida County, Wisconsin. He was required to register as a sex offender as a condition of his probation. Thereafter, Curtiss moved to Colorado and registered as a sex offender in this state. Curtiss later filed a petition in district court requesting to be removed from the Colorado sex offender registry, which was denied by the district court.

On appeal, Curtiss argued that the district court erred in denying his petition to discontinue registration. CRS §16-22-113(3) applies to persons whose convictions were obtained from out-of-state courts and prohibits removal from the registry for an offense comparable to sexual assault on a child in Colorado. Because Curtiss was convicted of an offense comparable to Colorado’s offense of sexual assault on a child, he was not eligible for discontinuation of sex offender registration. The order was affirmed.

2014 COA 99. No. 11CA2165. People v. Heywood.
Internet Sexual Exploitation of a Child—Importuned—Invited—Enticed.

Heywood invited a person to view a webcam stream of him masturbating, and then did not stop the stream until several minutes after the viewer (an investigator) had said she was 14 years old. A jury convicted him of violating CRS §18-3-405.4(1)(b), Internet sexual exploitation of a child.

On appeal, Heywood argued that the prosecution failed to prove that he committed Internet sexual exploitation of a child. The Court of Appeals agreed. CRS §18-3-405.4(1)(b) requires knowledge or belief as to the victim’s age. Initially, Heywood did not have any information regardingthe investigator’s age. In addition, the Internet chat room was restricted to people at least 18 years old. Further, even though Heywood continued the chat conversation after Gallagher informed Heywood of her age, there was insufficient evidence that he “importuned, invited, or enticed” her to continue viewing. In fact, he said that she “shouldn’t be watching,” and he would “turn it off.” Therefore, Heywood did not continue to invite Gallagher to view his webcam stream merely by failing to disconnect her access to it. The judgment was reversed and the case was remanded to the trial court with directions to enter judgment of acquittal.

Colorado Court of Appeals Opinions