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Colorado Court of Appeals Opinions
August 2, 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 126. No.09CA0593. People v. Tunis.
Sexual Assault—DNA Evidence—Jury—Sexually Violent Predator.

Defendant appealed from the judgment of conviction and sentence in this sexual assault case. The judgment and sentence were affirmed.

The victim was sexually assaulted in her home. Defendant ultimately was convicted of sexual assault and second-degree burglary, both class 3 felonies, and sentenced to the Department of Corrections for an indeterminate term of twelve years to life. His sentence included a determination that he qualified as a sexually violent predator.

Defendant contended that the Y Chromosome-Short Tandem Repeat (Y-STR) DNA evidence, which was admitted through expert testimony, was unreliable and, therefore, the trial court erred by admitting it. The analyst who conducted the testing and testified about it was properly qualified and admitted as an expert in forensic DNA analysis. The analyst testified that she used a generally accepted scientific metric for conducting the Y-STR analysis. The Court of Appeals concluded that the trial court did not abuse its discretion in finding that the exclusion statistics and the sample size of DNA that the expert used were reliable. Therefore, the trial court did not abuse its discretion in admitting this evidence.

Defendant also contended that the trial court erred by releasing a juror who repeatedly fell asleep and replacing him with an alternate juror. Defendant failed to show that the remaining jurors were unfair or biased, or that he was prejudiced by the dismissal and replacement of the juror. Therefore, the court’s decision to replace the sleeping juror was not an abuse of discretion.

Finally, defendant contended that the trial court erred by determining he was a sexually violent predator within the meaning of CRS § 18-3-414.5(1)(a)(III). The court concluded that defendant was a sexually violent predator because he promoted a relationship with the victim primarily for the purpose of sexual victimization. Further, defendant threatened the victim in an effort to keep her quiet during the assault, pulled her hair, and repeatedly forced her head into a position from which she could not see him during the assault. Thus, the evidence at trial supports the court’s conclusion. The judgment and sentence were affirmed.

2012 COA 127. No. 09CA2634. People v. Rhodus.
Criminal Trespass of a Motor Vehicle—Theft by Receiving—Vehicular Eluding—Evidence—Expert Testimony—Closing Argument.

Defendant appealed the judgment of conviction following jury verdicts finding her guilty of first-degree criminal trespass, theft by receiving, and vehicular eluding. The judgment was vacated in part and affirmed in part.

Defendant contended there was insufficient evidence to support her conviction for first-degree criminal trespass of B.C.’s car because there was no evidence that anyone had entered it. An “entry” of a motor vehicle, for purposes of criminal trespass, requires an intrusion into the protected area of the motor vehicle. Evidence that a locked car door has been tampered with and opened is insufficient to support a conviction for first-degree criminal trespass. Here, no evidence was presented at trial that anyone or anything passed the line of the threshold into the protected interior area of B.C.’s car. Consequently, defendant’s conviction on this count was vacated.

Defendant contended there was insufficient evidence to support her conviction for class 4 felony theft by receiving of C.M.’s car. Defendant operated the car without a key, attempted to elude police and conceal the car from them, and fled on foot, effectively abandoning the car. Therefore, there was sufficient evidence to prove defendant knew the vehicle was stolen. Further, there was sufficient evidence to prove ownership and value of the vehicle.

Defendant contended there was insufficient evidence to permit the jury to find her guilty of vehicular eluding. At trial, the jury was presented evidence that defendant drove at high speeds around sharp corners, drove on the wrong side of the street, drove over front lawns in a residential neighborhood, and braked suddenly several times in an apparent attempt to cause a collision with the pursuing officer. This evidence was sufficient to permit the jury to conclude that defendant’s actions put the officer she was eluding at high risk of injury. Consequently, the evidence was sufficient to support the vehicular eluding conviction.

Defendant argued that the trial court erred by permitting the pursuing officer to present expert testimony in the guise of lay opinion testimony. The officer testified about his pursuit of defendant, and any reference to his “training and experience” of foot chases was harmless.

Defendant argued that the trial court abused its discretion by permitting the prosecutor to improperly discuss facts not in evidence during closing argument. The facts referred to by the prosecution were part of the record. Consequently, the trial court did not abuse its discretion by permitting the prosecution to discuss this fact and the inferences reasonably drawn from it during closing argument.

2012 COA 128. No.10CA1881. In re the Marriage of Joel and Roohi.
Invalidity of Marriage—Fraud—Property—Maintenance.

Wife appealed the judgment declaring her marriage to husband invalid. She also appealed, and husband cross-appealed, the court’s permanent orders regarding marital property and maintenance. The judgment of invalidity was affirmed and the permanent orders were affirmed in part, reversed in part, and vacated in part.

Following an invalidity hearing, the court found that the evidence established that wife entered into the marriage to obtain legal residency in the United States and be closer to her sister, and not, as she had claimed, because she loved her husband. The court declared the marriage invalid and entered permanent orders.

On appeal, wife contended that the district court erred by declaring the marriage invalid. There was sufficient evidence in the record to support the court’s finding that wife’s fraudulent misrepresentations to husband went to the essence of the marriage. Therefore, the court did not abuse its discretion in declaring the marriage invalid.

Wife also contended that the district court erred when it divided the marital property as of the date of the decree of invalidity and not as of the date of the later permanent orders. In his cross-appeal, husband contended that the court erred by awarding wife part of the increase in the value of his retirement account (to which he was the sole contributor), part of the value of a vehicle (which he claimed to have purchased with his own funds), and maintenance. The relevant provisions of the Uniform Dissolution of Marriage Act (UDMA) dictate that wife’s fraud precludes an award of any property attributable to husband’s contributions or an award of maintenance. The most the court may award to the party who engaged in fraud is the proportion of property or increase in value attributable to the financial contribution of that party. In this case, husband was the sole contributor to his 401(k) account, and any increase in value should be awarded entirely to him. There was conflicting testimony regarding the vehicle purchased by husband, so the order regarding this asset was reversed and the case was remanded for further proceedings as to that asset. Finally, wife is not entitled to an award of maintenance as the perpetrator of a fraud, so that order was reversed.

2012 COA 129. Nos.11CA0990 & 11CA1081. Former TCHR, LLC v. First Hand Mgmt LLC.
Fraudulent Concealment—Misrepresentation—Conversion—Economic Loss Rule—CRCP 41(b)(1).

Plaintiff Former TCHR, LLC appealed the trial court’s judgment rejecting its fraudulent concealment and misrepresentation claims against defendants Richard Oneslager, Jr. and Daniel P. Genovese, and the court’s midtrial dismissal of Former TCHR’s conversion claim against defendant Balmar Management Group LLC. Former TCHR also appealed the district court’s grant of attorney fees to Oneslager, Genovese, and Balmar. The judgment was affirmed in part and reversed in part, and the appeal was dismissed in part.

Through a predecessor in interest, Former TCHR, whose sole member was attorney and sophisticated real estate investor Samuel Brown, signed a Real Estate Sale Agreement with Town Center Investors, LLC (TCI) to purchase a shopping center from TCI. TCI was owned by Oneslager, and Genovese was the shopping center’s property manager. Former TCHR alleged that after the Sale Agreement was signed but before closing, Oneslager and Genovese had (1) fraudulently misrepresented the shopping center’s revenues, and (2) fraudulently concealed facts concerning Willary’s financial strength, including its substantial outstanding debt to Balmar. Former TCHR further alleged that Balmar had converted the Willary inventory.

Former TCHR contended that the trial court erred on numerous grounds in entering judgment for Oneslager and Genovese on the fraudulent misrepresentation and concealment claims. These claims, however, were barred by the economic loss rule, because Former TCHR failed to demonstrate that Oneslager and Genovese had violated any tort duty independent of defendants’ contractual duties. Therefore, Former TCHR’s arguments failed.

Former TCHR also contended that the trial court erred in dismissing its conversion claim against Balmar, pursuant to CRCP 41(b)(1). A secured party may bring a claim for conversion against a party who wrongfully obtained and sold property in which the secured party has a security interest, if the secured party’s interest has priority over the seller’s interest. Here, Former TCHR produced sufficient evidence to show that it had a valid unperfected security interest in the Willary inventory, that its interest in that inventory had priority over any interest that Balmar might have had, and that Balmar took and then sold the inventory to First Hand with knowledge of Former TCHR’s security interest. Therefore, the trial court erred in dismissing Former TCHR’s claim for conversion pursuant to CRCP 41(b)(1). The dismissal order was reversed and the case was remanded for a new trial on the conversion claim.

Former TCHR further argued that the trial court erred in awarding attorney fees to Oneslager, Genovese, and Balmar. Because that award had not yet been reduced to a sum certain, the Court of Appeals held it did not have jurisdiction to determine that claim and that portion of the appeal was dismissed without prejudice

2012 COA 130. No.11CA1646. Long v. Colorado Dept of Revenue, Motor Vehicle Division.
Driver’s License—Revocation—Refusal—Express Consent—Advisement.

Plaintiff John Chris Long appealed the district court's judgment affirming an administrative order entered by defendant, the Colorado Department of Revenue, Motor Vehicle Division (Department). The judgment was affirmed.

The Department revoked plaintiff’s driver’s license for one year based on his refusal to submit to testing as required by Colorado’s express consent law. Plaintiff contended that the Department lacked statutory authority to proceed with the hearing, asserting that the Department failed to provide proof that it made an initial revocation determination as required by statute, and that there was insufficient information to support such a determination. Contrary to plaintiff’s argument, however, on receipt of the completed notice of revocation form, a copy of plaintiff’s driver’s license that was taken into possession, the officer’s affidavit, and other additional documents from the officer, the Department determined that plaintiff’s license should be revoked. It had sufficient information to make that initial revocation determination based on the documents submitted by the arresting officer, and it was not required to support its preliminary determination with formal findings. Thus, plaintiff failed to show that the Department lacked statutory authority or jurisdiction to proceed with a revocation hearing.

Plaintiff also contended that the hearing officer erred in determining that his conduct constituted a valid refusal to submit to testing. Plaintiff originally had elected to take a breath test. The breathalyzer initially indicated that it was not operating properly, but when the deputy restarted it, the breathalyzer printout indicated it was working properly. Plaintiff then refused to take the test because he did not believe that the machine was working properly. A licensee, however, cannot refuse to take a chemical test of breath or blood merely because he or she believes such testing equipment is unreliable or not working properly. Because the hearing officer’s factual finding that the breathalyzer was working properly after it had been restarted was based on unrebutted evidence and inferences on this issue, this finding is binding on judicial review.

Plaintiff contended that the hearing officer erred in determining that he was properly advised under the express consent statute. Because the breathalyzer was working properly, the deputy’s explanation was correct. The deputy had explained that plaintiff did not have to take the breath test, but because he had elected initially to take a breath test and because there were no extraordinary circumstances preventing completion of that test, if he did not take the test, it would constitute refusal.

Plaintiff further argued that there was no probable cause for the initial traffic stop. The testimony and written report of the arresting officer established that he observed plaintiff speeding and weaving in and out of his traffic lane. Therefore, the evidence was sufficient to support the hearing officer’s conclusions that there was reasonable suspicion to justify the initial traffic stop.

2012 COA 131. No. 10CA0417. People in the Interest of N.G., and Concerning J.P.W.
Dependency and Neglect—Deferred Adjudication—Parental Presumption.

In this dependency and neglect (D&N) proceeding, father appealed from the magistrate’s order allocating permanent custody and parental responsibilities for his child to the child’s maternal uncle, and from the district court’s order denying his petition for review of the magistrate’s order. The orders were vacated.

In June 2010, the El Paso County Department of Human Services (DHS) removed N.G., then 5 years old, from his mother’s care because of concerns about her drug use. The child was placed in the care of his maternal uncle. Father, a resident of Arizona, learned of the removal from mother. He had not seen the child in three years, but court-ordered testing had confirmed his paternity and he was voluntarily paying child support. Father expressed no interest in becoming a part of child’s life when contacted by DHS.

On August 23, 2010, father admitted to the Amended Petition in Dependency and Neglect, which alleged that father did not reside in the home of mother and the child, and that the incidents that had led to the removal “placed the welfare of the child at risk,” but were “beyond his immediate control.” Based on this admission, the magistrate found the child dependent and neglected.

A treatment plan for father also was approved by the court. A favorable report regarding father’s performance in this plan was submitted to the court in January 2011. Two days later, father moved for placement and custody of the child. In February, a mediation was held to consider placing the child with father, during which it was decided that father should come to Colorado “for at least a couple visits” to see the child. In late May, DHS concluded that the child should be placed in the permanent custody of uncle because father did not make the required visits with the child. The magistrate entered an order adjudicating the child dependent and neglected as to mother, nunc pro tunc August 23, 2010.

In September 2011, a magistrate granted the motion to allocate parental responsibilities to uncle. Father moved for review in the district court. The district court upheld the magistrate’s order and revoked the deferred adjudication as to father. Father appealed.

The Court of Appeals first reviewed the law under Article 3 of the Children’s Code. It concluded that (1) in permitting a continuation of the adjudicatory hearing, CRS § 19-3-505(5) contemplates reconsidering the child’s status before entering the adjudicatory order; (2) reconsideration may be requested expressly or impliedly; and (3) reconsideration should be accompanied by any additional findings required to address new evidence and the child’s current status. Consequently, during the deferral period, the parent may seek to present evidence probative of the current status of the child as to that parent and/or the continued vitality of any admission to a petition alleging D&N.

The Court then reviewed Troxel v. Granville, 530 U.S. 57, 66 (2000). In an issue of first impression concerning the status of this presumption during a D&N proceeding that has gone forward on the basis of a deferred adjudication, the Court concluded: (1) the mere judicial authorization to file a petition alleging D&N does not overcome the Troxel presumption; and (2) where the adjudication has been deferred, the preponderance determination is not final as to the merits of the allegations set forth in the D&N petition. Therefore, the Troxel presumption will generally survive such a determination.

The Court then applied the foregoing conclusions. First, it rejected DHS’s argument that the Children’s Code requires only an adjudication as to one parent. It then held that by entering into the deferred adjudication agreement, father did not waive his right to request an adjudicatory hearing or further findings on the child’s current status. Therefore, it was error for the magistrate not to address father’s evidence presented at the hearing before allocating parental rights to uncle.

It also was error for the magistrate to fail to rule on father’s motion for placement and custody of the child and to decline to address the Troxel presumption. The Court also ruled that the Troxel presumption survived the deferred adjudication agreement and must be addressed.

Accordingly, the Court vacated the district court’s order denying father the relief he requested in his petition for review of the magistrate’s order and vacated the magistrate’s order. The case was remanded to the district court with instructions to remand the case to the magistrate to conduct further proceedings regarding father’s motion for placement and custody of the child.

Colorado Court of Appeals Opinions