Colorado Court of Appeals Opinions
August 4, 2011

No. 08CA1275. People v. Brown.
Sexual Exploitation of a Child—Photographs—Foundation—Authentication—C.R.E. 403—Expert Testimony—Prosecutorial Misconduct.

Defendant appealed his judgments of conviction entered on jury verdicts finding him guilty of three counts of sexual exploitation of a child. The judgments were affirmed.

After executing a search warrant for defendant’s home, the police seized numerous items, including a laptop computer and an external hard drive. On the laptop and hard drive, the police found a photograph and two videos depicting child pornography.

Defendant contended that the trial court erroneously admitted the photo and videos over his objections based on foundation, authentication, and C.R.E. 403. Defendant was correct that the government was required to prove that the images were of actual children; however, there was sufficient evidence presented on which the jury could have found that the children depicted in the images were real. To establish a proper foundation and authentication, the prosecution only needed to prove a chain of evidence and not who was portrayed in the photograph and videos. The images were direct proof of an essential element of the charged crimes, and the fact that the nature of the charges may have been prejudicial to defendant does not justify exclusion of such evidence. Accordingly, it was not error to admit the images into evidence.

Defendant also contended that there was insufficient evidence presented that the images depicted real children and, consequently, there was insufficient evidence to sustain his convictions. However, the images appeared to depict real persons. A doctor stated that he believed the images were children based on certain physical characteristics, and a detective stated that there was no evidence that the images were fake or of virtual children. Under these circumstances, the evidence was sufficient to permit the jury, as the finder of fact, to determine that the prosecution had met its burden of proving that the individuals depicted were real children.

Defendant further contended that the trial court’s admission of a detective’s expert testimony warranted reversal. However, the court’s qualification of the detective as an expert was not manifestly unreasonable, arbitrary, or unfair in light of the detective’s experience. Moreover, any error in qualifying the detective as an expert was rendered harmless when the doctor testified in detail as to her opinion that the individuals in the images were under the age of 18.

Finally, defendant contended that reversal was warranted because of prosecutorial misconduct in closing argument. The prosecution’s position was a reasonable inference drawn from the images and testimony in the case and did not misstate the prosecution’s burden of proof. Therefore, reversal was not warranted.

No. 09CA1095. People v. Palomo.
Challenge for Cause—Jury—Affirmative Defense—Duress—Costs.

Defendant appealed his conviction entered on jury verdicts finding him guilty of vehicular eluding and the lesser nonincluded charge of eluding or attempting to elude a police officer. He also appealed the assessment of costs and fees, including the costs of prosecution, in the amount of $2,379.65. The conviction was affirmed, the order assessing the costs of prosecution was vacated, and the case was remanded for further proceedings.

Defendant contended that the trial court erred when it denied his challenge for cause to a potential juror (TJ). Defendant asserted that TJ was biased against criminal defendants and would not hold the prosecution to its burden to prove the culpable mental state of the offenses charged. When questioned by the court, however, TJ unequivocally stated that he would both follow the law and not disregard the culpable mental state element of an offense when instructed that it needed to be proved. Therefore, the trial court did not abuse its considerable discretion in denying defendant’s challenge for cause.

Defendant next contended that the trial court erred when it refused to instruct the jury on the affirmative defense of duress. A defendant is entitled to a duress instruction on a threshold showing of (1) an immediate threat of death or bodily injury; (2) a well-grounded fear the threat will be carried out; and (3) no reasonable opportunity to escape the threatened harm. Here,even if it is assumed that defendant was threatened with death or serious bodily injury, there was no evidence that he had a well-grounded fear that the threat would be carried out, or that there was no reasonable opportunity for escape.Accordingly, the trial court did not err in refusing to give the jury an instruction on the affirmative defense of duress.

Defendant also contended that the trial court erred in granting the motion for costs of prosecution. A defendant convicted of fewer than all of the counts in a multi-count indictment or criminal information, or in consolidated cases, can be assessed only those costs of prosecution attributable to the counts for which he or she was convicted, if an allocation is practicable. Here, the majority of the trial was consumed with the prosecution’s ultimately unsuccessful effort to prove the attempted first-degree murder and second-degree assault charges, and a majority of the assessed costs, if not all of them, were spent on these charges. Therefore, the order assessing all the costs of prosecution cannot stand. On remand, the trial court may assess only those costs that are related to the prosecution of the eluding counts of which defendant was convicted, to the extent an allocation is practicable.

No. 09CA2182. Martin v. Essrig, and Concerning Carroll.
Civility—C.A.R. 38(d) and (e)—CRS § 13-17-102—Attorney Fees—Sanctions.

Paul Essrig (tenant), a former tenant of a residence owned by Bernie Martin (owner), appealed the district court’s denial of his C.R.C.P. 60(b)(3) motion challenging as void a judgment in owner’s favor on a claim that tenant had breached the parties’ lease. Tenant and his counsel, David Carroll, also challenged the district court’s award of attorney fees incurred by owner in responding to the motion. The appeal was dismissed and the case was remanded with directions. 

Owner argued that tenant’s briefs should be stricken, the appeal dismissed, and other appropriate sanctions imposed because tenant failed to comply with the appellate rules governing the form and content of briefs and because tenant’s opening brief contained “inappropriate and unprofessional commentary.” In rare cases, conduct in prosecuting an appeal is so contrary to court rules and so disrespectful of the judicial process and its participants that the right to appellate review is forfeited.

Here, Carroll filed briefs supporting this appeal, which largely failed to advance a coherent argument in support of the contention of error. Most troubling, however, was the tenor of the opening and reply briefs. They were suffused with uncivil language directed primarily against owner’s attorneys, and were filled with sarcastic and bombastic rhetoric. This was bad advocacy and in large part inconsistent with Carroll’s professional obligation to represent his client in a civil manner. Therefore, the opening and reply briefs were stricken, the appeal was dismissed, attorney fees and double costs were assessed against Carroll, and the case was remanded to the district court for a determination of the reasonable attorney fees owner has incurred on appeal.

No. 10CA1320. Qwest Corporation v. Colorado Division of Property Taxation, Dep’t of Local Affairs.
Property Tax—Public Utility—Cable Company—Intangible Property Exemption—Cost Cap Limitation—Equal Protection—Administrative Convenience.

In this property tax dispute, plaintiff Qwest Corporation appealed the trial court’s judgment granting the motion to dismiss of defendant, Colorado Division of Property Taxation, Department of Local Affairs (DPT). Because Qwest failed to state a claim as a matter of law, the judgment was affirmed.

DPT is responsible for determining for property tax purposes the actual value of the operating property and plant of all public utilities doing business in Colorado. The definition of “public utility” includes telephone companies but not cable companies.

Qwest contended that DPT can and should interpret the intangible property exemption, CRS § 39-3-118, and the “cost cap” limitation on value, CRS § 39-1-103(13), as applying to its property. However, the plain language of § 39-3-118 states otherwise. Further, § 39-4-102(1) specifically covers public utilities and mandates “actual value” assessment, without regard to a cost cap. Therefore, implying that the DPT administrator must employ a cost cap, in the absence of any specific statutory direction, would conflict with this mandate. Because DPT’s interpretation of § 39-1-103(13) was reasonable, it was entitled to deference.

Qwest also contended that the trial court erred in summarily rejecting its claims that DPT’s interpretation and application of §§ 39-3-118 and 39-1-103(13) deny it the guarantees of uniform taxation and equal protection. DPT’s application of the tax statutes to value utility property as a unit could rationally have been based on administrative convenience. Achieving the equality Qwest demanded would require a multistep process as to a significant amount of property. Further, even if the classification based on status as a public utility results in some inequity, the administrative convenience aspect of the rational basis test does not demand that the governmental decision maker choose the best possible solution.

Therefore, because DPT could reasonably have concluded that apportioning and valuing public utility property as Qwest asserted would result in administrative inconvenience, there was no equal protection violation by DPT in refusing to interpret and apply the statutes as Qwest urged. Additionally, the Gallagher Amendment did not prohibit the legislature from creating a tax classification based on status as a public utility; therefore, DPT constitutionally applied §§ 39-3-118 and 39-1-103(13) to Qwest.

No. 10CA1409. Henderson v. City of Fort Morgan.
Colorado Open Meetings Law—Ballots—Public Meetings.

Plaintiff Ronald Henderson appealed the trial court’s C.R.C.P. 12(b)(5) dismissal of his claims for injunctive and declaratory relief against defendant, City of Fort Morgan, asserting that the Fort Morgan City Council’s voting procedure violated the Colorado Open Meetings Law (COML). The order was affirmed.

Henderson contended that CRS § 24-6-402(2)(b) and the COML prohibited the Fort Morgan City Council’s use of anonymous written ballots to fill two council vacancies and appoint a municipal judge during its public meetings in 2009 and 2010. Neither § 24-6-402(2)(b), nor any other section of the COML, imposes specific voting procedures on local public bodies. Instead, the COML requires that the public have access to meetings of local public bodies and be able to observe the decision-making process. Henderson does not claim that the public was prohibited from observing, participating in, or listening to the discussions regarding the candidates or the deliberation process. The ballots were completed in the public meeting, andthe result was announced at the public meeting. Therefore, the City Council’s voting procedure could not have violated the statute or the COML. Accordingly, the trial court properly dismissed Henderson’s action under C.R.C.P. 12(b)(5) for failure to state a claim based on this ground.

No. 10CA1725. In re Estate of Newton: Mojo Properties, LLC v. Woods.
Personal Representative—Priority—Nominee—Creditor.
Mojo Properties, LLC (creditor) appealed the district court’s order appointing Patrick Woods (nominee) to be personal representative of the estate of Kathryn E. Newton (decedent). The order was affirmed.