Colorado Court of Appeals Opinions
September 15, 2011
|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.|
No. 09CA1184. People v. Gibbons.
Theft by Receiving—Perjury—Jury Instruction—Deadlock—“Time-Fuse” Jury Instruction—Ex ParteJury Communications—Evidence—Prosecutorial Misconduct.
Defendant appealed his convictions of theft by receiving and second-degree perjury. The convictions were affirmed.
Defendant contended that the trial court gave an incomplete modified Allen instruction to the jury when the jury indicated it was deadlocked. [Allen v. People, 660 P.2d 896 (Colo. 1983).] The trial court, in the event of jury deadlock, should not instruct the jurors that they will be excused and a mistrial declared if they cannot reach a unanimous verdict. Here, the court’s instruction, which tracked the pattern instruction for deadlocked juries, was appropriate.
Defendant argued that the trial court committed plain error by giving the jury an improper “time-fuse” instruction. A time-fuse instruction grants the jury a time limit to finish its deliberations, at the end of which the jury will be dismissed. Here, the trial court did not give the jury a timeline for its deliberations; it merely gave the jury additional time to deliberate.
Defendant also contended that the trial court committed plain error in conducting an impermissible ex parte conference with the jury. However, the record does not indicate that the trial court itself ever engaged in any ex parte communications with the jury. Therefore, there was no error.
Defendant further argued that the evidence was insufficient to convict him of either theft by receiving or second-degree perjury. Based on the incongruities between defendant’s statements to the ranger and (1) the ranger’s testimony as to how trailer licenses were granted, (2) the incorrect registration number on the jet ski, (3) the fact that both permits were inaccurate, and (4) the fact that both permits were inconsistent with each other; and based on defendant’s false or contradictory statement about when he first acquired and used the jet ski, the evidence supports the reasonable inference of defendant’s guilty knowledge or belief that the jet ski and trailer had been stolen. In addition, because defendant possessed the trailer and jet ski at the time the officer discovered they were stolen property, the evidence supports the independent reasonable inference that defendant knowingly used the trailer and jet ski in a manner inconsistent with the owner’s permanent use and benefit and, thus, that he intended to permanently deprive the lawful owner of their use and benefit.
Finally, defendant contended that the trial court abused its discretion in allowing certain challenged comments by the prosecutor during closing argument and rebuttal closing. However, the prosecutor’s comments constituted proper argument on the reasonable inferences that could be drawn from the circumstantial evidence concerning defendant’s state of mind. These comments did not shift the burden of proof to defendant. Therefore, the prosecutor’s comments did not constitute reversible error.
No. 10CA1026. Public Service Company of Colorado v. Colorado Department of Revenue.
Sales and Use Tax—Electricity—Tangible Personal Property—Manufacturing.
Defendants, the Colorado Department of Revenue and M. Michael Cooke, in her official capacity as executive director of the department (collectively, Department), appealed from the judgment of the trial court reversing the Department’s final determination that plaintiff, Public Service Company of Colorado (taxpayer), was not entitled to a refund of sales and use taxes it paid on the purchase of machinery and machine tools used in the generation and distribution of electricity. The judgment was affirmed.
The Department argued that the district court erred in finding that electricity is tangible personal property and not subject to sales and use taxes. The parties stipulated that electricity is a commodity that is traded as a commodity on futures exchanges. Because electricity falls within one of the regulation’s clearly delineated categories of tangible personal property, the purchase of machinery and machine tools used in the manufacturing or generation of electricity, for sale or profit, is exempt from taxation under the machinery exemption and the enterprise zone machinery exemption.
The Department also argued that the generation of electricity is not manufacturing within the meaning of the sales and use tax statutes and regulations. However, the generation of electricity is manufacturing within the meaning of the sales and use tax statute and regulations, even though neither coal, gas, nor nuclear energy is physically incorporated into the finished product. Therefore, the production of electricity is manufacturing for purposes of the machinery and enterprise zone machinery exemptions.
The Department further contended that the step-up and step-down transformers must be excluded because they are used only for transmission and not for manufacturing, and that manufacturing is limited to a “contiguous plant site.” The manufacture of electricity, however, is not completed until the electricity is in a form usable by the retail customer, which occurs at the last step-down transformer prior to entering the consumer’s meter. Thus, the transformers are a necessary part of the generation or manufacture of electricity for use by the retail customers of the taxpayer for purposes of the machinery and enterprise zone machinery exemptions.
No. 10CA1271. People v. DeWitt.
Possession of a Weapon by a Previous Offender—Unconstitutional—Due Process—Jury Instruction—Affirmative Defense—Right to Bear Arms—Mental State.
Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of two counts of possession of a weapon by a previous offender (POWPO). The judgment was reversed and the case was remanded for a new trial.
Defendant contended that the POWPO statute is unconstitutional as applied to him because it violated the prohibition against ex post facto laws. It does not matter that defendant’s predicate felonies occurred in 1994 (before the change in the law), because he was punished for conduct occurring in 2009 (after the change). Therefore, the amended POWPO statute as applied to defendant does not violate the constitutional prohibitions against ex post facto laws.
Defendant also contended that the amended POWPO statute as applied to him violated his right to due process. The requirements of due process are satisfied by the notice that is given through publication of the statutes. Accordingly, application of the amended POWPO statute to defendant does not violate his right to due process.
Defendant further contended that the trial court erred by refusing to give tendered jury instructions regarding the affirmative defense of the right to bear arms. As long as there is competent evidence in the record of a constitutionally protected purpose, a defendant is entitled to such an affirmative defense, and it will be for the jury to decide the issue of the defendant’s purpose in possessing the weapon. Here, defendant’s testimony constituted some credible evidence that he carried his handgun for the constitutionally protected purposes of defending his person and his property. Therefore, defendant was entitled to an affirmative defense instruction on his constitutional right to bear arms. Because the court’s error cannot be deemed harmless, defendant’s POWPO convictions were reversed and the case was remanded for a new trial.
Defendant also argued that the “knowingly” mental state required for a POWPO conviction applies to the prior felony conviction element of the offense. The statute prohibits all convicted felons from possessing a firearm to avoid “substantial risk of harm to the public.” It would be inconsistent with this purpose to require proof of a defendant’s knowledge of his or her convicted felon status before prohibiting the possession of a firearm. Therefore, the express mental state of “knowingly” in the amended POWPO statute does not apply to the prior felony conviction element of the offense. Accordingly, the trial court did not err in its interpretation of the amended POWPO statute.
No. 10CA2450. Hire Quest, LLC v. Industrial Claim Appeals Office.
Workers’ Compensation—GroverMedical Benefits—Waiver.
In this workers’ compensation proceeding, Hire Quest, LLC and its insurer, Ace American Insurance (collectively, employer), sought review of a final order of the Industrial Claim Appeals Office (Panel) determining that claimant was entitled to ongoing medical treatment after the date of maximum medical improvement (MMI). The order was affirmed.
In 2007, claimant sustained work-related injuries in a motor vehicle accident. The treating physician determined that claimant was at MMI in 2008, and a physician performing a division-sponsored independent medical examination (DIME) agreed. The DIME physician also issued an impairment rating and recommended further treatment. The first administrative law judge (ALJ) did not address the issue of Grover medical benefits, but a second ALJ later awarded claimant Grover medical benefits. [Grover v. Indus. Comm’n, 759 P.2d 705 (Colo. 1988).]
Employer argued that the Panel erred in rejecting its contention that claimant waived the issue of Grover medical benefits by not requesting them at the time permanent disability was heard. Although the issue of Grover medical benefits was not expressly decided in the first ALJ’s order, the ALJ’s initial award expressly reserved other issues for future determination. Accordingly, the issue of Grover medical benefits was reserved for future determination and therefore not waived by claimant.
No. 10CA2536. People in the Interest of A.C., and Concerning M.S.
Post-Termination of Parental Rights—Foster Child Placement.
M.S. and S.S. (foster parents) appealed from the order changing the placement of A.C., a foster child formerly in their care, to another foster home. The judgment was affirmed in part and the case was remanded with directions.
The juvenile court placed A.C. in foster care days after he was born and terminated the parent–child legal relationship between A.C. and his mother less than a year later. The Denver Department of Human Services (Department) moved A.C. from his first foster home to his second foster home before his first birthday. The Department placed A.C. in a third respite home with the appellant foster parents shortly after he turned one. The Department certified foster parents’ home as a “24-hour foster home” for the term of one year.
After seven months with foster parents, the Department reported to the juvenile court that (1) A.C. had made positive progress; (2) the placement was appropriate; (3) foster parents were meeting A.C.’s needs; and (4) the Department had no safety concerns. The Department recommended that A.C. remain with foster parents until his adoption was finalized. The court adopted these recommendations.
The following week, A.C.’s therapist reported concerns about foster mother. Based on the report, a Department Certification Review Committee concluded it needed to remove A.C. from foster parents’ care. The Department did not notify or consult A.C.’s guardian ad litem (GAL) or the juvenile court before removing A.C. from foster parents’ home.
The GAL filed a motion for a forthwith hearing. At that hearing, the juvenile court stated it was “appalled” by the removal. It found that the removal was “extremely unusual” and that the Department had violated CRS § 19-3-203(2) because it had not kept the GAL informed of any significant developments in the case.
At a subsequent hearing, a psychologist testified about her concerns with foster mother and recommended A.C. not be returned to foster parents. The juvenile court adopted that recommendation. Foster parents appealed.
Foster parents argued that their due process rights were violated because they had a constitutionally protected liberty interest in a continued relationship with A.C. The Court of Appeals disagreed. Foster parents’ rights are derived from a contractual relationship with the state of Colorado to act as parens patriae to safeguard the interests of vulnerable children within the state. These rights are not those from which a protected liberty interest might be derived.
Foster parents also argued that the juvenile court erred in its application of the best interests standard at the removal hearing. Under the Colorado Children’s Code, the best interests of a removed child is: (1) to be placed in a stable and secure environment; (2) not to be indiscriminately moved from foster home to foster home; and (3) to have assurance of long-term permanency planning. Children under the age of 6 should be placed in permanent homes as expeditiously as possible. Any delay in placement to a permanent home must be in the child’s best interests. To make such a finding, the court must be shown, by clear and convincing evidence, that either (1) reasonable efforts were made to find the child an appropriate permanent home and such a home was not currently available; or (2) the child’s mental or physical needs or conditions deem it improbable that such child would have a successful permanent placement.
The Court concluded that the Department did not make either of the required showings by clear and convincing evidence. On remand, the juvenile court must determine whether A.C. is now in a permanent home; if so, he may not be removed absent the Department showing one of the foregoing conditions by clear and convincing evidence. If the juvenile court determines that A.C. is not in a permanent home, it must determine whether foster parents’ home is still available as a foster home and, if so, must return him to that home unless the Department shows, by clear and convincing evidence, that concerns about foster mother rendered the home “not currently available.”
No. 11CA0032. In re the Parental Responsibilities Concerning G.E.R., and Concerning Terrell.
Petition for Paternity—Uniform Parentage Act—Uniform Dissolution of Marriage Act—Recovery of Birth-Related Costs.
Mother appealed from the district court’s judgment adopting a magistrate’s order that dismissed her petition for paternity. The judgment was vacated and the case was remanded with directions.
Mother and father are natural parents of a child, G.E.R., born out of wedlock. In November 2009, mother petitioned for allocation of parental responsibilities under the Uniform Dissolution of Marriage Act (UDMA) and for child support. The magistrate entered a child support order and determined the allocation of parental responsibilities.
In June 2010, mother moved for modification of child support and filed a petition for paternity under the Uniform Parentage Act (UPA), seeking birth-related costs, court costs, and attorney fees. In her brief, mother contended that paternity was not an issue. In a minute order, the magistrate dismissed mother’s petition for paternity, finding that there was no question of paternity. Mother petitioned for district court review and the court adopted the magistrate’s order. Mother appealed.
The issue on appeal was whether the magistrate could consider a request for birth-related costs under § 19-4-116 of the UPA after it had determined the allocation of parental responsibilities and awarded child support under the UDMA. The Court of Appeals held it could and therefore dismissal was error.
Under mother’s UDMA action for allocation of parental responsibilities, mother’s birth-related costs could not be awarded as a debt of the marriage because the parties were never married. To recover those costs, mother was required to file a petition for paternity under the UPA. Such an action under § 19-4-107(1)(a) may be brought at any time. Therefore, mother was not precluded from seeking birth-related costs in connection with an action to determine paternity under the UPA, even if father’s paternity was uncontested in the action for allocation of parental responsibilities under the UDMA. The Court also awarded mother attorney fees under § 19-4-117, because it is mandatory.
No. 11CA0398. People in the Interest of S.X.M, and Concerning T.M.
Dependency and Neglect—Child Testimony Viewed by Television—Right to Confront and Due Process—Jury Instructions.
In this dependency and neglect proceeding, father appealed from the order adjudicating his child S.X.M. dependent and neglected. The order was affirmed.
In June 2010, S.X.M., then 6 years old, was removed from father’s care after the Larimer County Department of Human Services (LCDHS) received a report that the child had disclosed that father had sex with her and that other inappropriate sexual actions had taken place between father and the child. A jury trial was scheduled for February 2011.
Before trial, LCDHS filed a motion in limine requesting that the child be permitted to testify in front of the jury but not in the presence of father. The trial court granted the motion over father’s objection, but ordered that father should have the opportunity to view the child’s testimony via closed-circuit television. The child testified according to this procedure and the jury adjudicated the child dependent and neglected.
On appeal, father contended that he had a right to confront the child in the courtroom, and that the procedure adopted denied him that right and the fundamental fairness required by the Due Process Clause of the Fourteenth Amendment. The Court of Appeals disagreed. Father argued he had a right to confront the child that should not have been denied absent evidence that the child would have been traumatized if required to testify in his presence. His argument regarding his right to confront in a non-criminal case was based on his right to “fundamentally fair procedures” in a dependency and neglect proceeding.
The Court first noted that Colorado has rejected the argument that the Sixth Amendment right of confrontation should be extended to a parent in a dependency and neglect proceeding. The Court then rejected any further contention that fundamental fairness required he be allowed to confront the child in court.
Father argued that because the jury instructions used the past tense and therefore focused the jury’s attention on the child’s status “at some moment in the past when some abuse was alleged to have occurred,” rather than on the child’s status at the time of the hearing, the jury’s findings were not in compliance with CRS § 19-3-102. The Court disagreed. The Court noted that a jury instruction that misleads or confuses a jury amounts to error, but such error is not a ground for reversal unless it prejudices a party’s substantial rights. Review is for abuse of discretion, which is found only when the ruling is manifestly arbitrary, unreasonable, or unfair.
The Court reviewed the statute, which uses the present tense: a child is deemed neglected or dependent if he or she lacks proper parental care or if his or her environment is injurious to his or her welfare. The trial court noted that the use of the present tense in the jury instructions could cause “massive confusion” if, at the time of the hearing, the jury was informed that the child had been removed from harm and was doing well in foster care. This could lead to the child not being adjudicated dependent and neglected while in his or her parent’s care, which would not be in the best interests of the child and not consistent with the purposes of the Children’s Code. Although the trial court’s instructions were not what the Court considered the best solution to this issue, it concluded that they were not misleading and were not an abuse of discretion.
No. 11CA1505. Adams v. Corrections Corporation of America.
Motion to Compel—Interlocutory Review—C.A.R. 4.2.
Plaintiffs petitioned for interlocutory review of the trial court’s order denying their motion to compel defendant Corrections Corporation of America (CCA) to provide them with electronic copies of their deposition transcripts. The petition was denied and the appeal was dismissed.
Plaintiffs, 201 current and former inmates of the Crowley County Correctional Facility, sought damages for injuries suffered during a riot in which they did not participate. They alleged that CCA, as owner and operator of the facility, was negligent in not preventing or controlling the riot.
At the time of trial, CCA had deposed 118 of the plaintiffs and stated its intention to depose the remainder. During each deposition, the deponent reserved the right to review the transcript and make corrections. CCA had begun purchasing transcripts and, with each purchase, the court reporters provided CCA with an electronic copy.
Before trial, plaintiffs asserted they were indigent and thus unable to purchase transcripts to review. Approximately 170 plaintiffs remained incarcerated, out of state, or in halfway houses, and they asserted they could not travel to court reporters’ offices to review transcripts and make corrections. Based on these assertions, plaintiffs moved the trial court for an order that CCA must provide each deponent with an electronic copy of each transcript it had purchased or eventually would purchase. The court denied the motion, stating, “[T]his is clearly a money issue and this Court will not take the work product from the reporter.”
Plaintiffs then moved for an order authorizing a petition for interlocutory appeal of this ruling. The court certified the appeal over objection. Plaintiffs had asserted, and the trial court had agreed, that there was a controlling and unresolved legal question: Are plaintiffs entitled to obtain electronic copies of their depositions from CCA at no charge, as an exception to the rule that a party must obtain copies of deposition transcripts directly from the court reporter? The Court of Appeals agreed that this was an unresolved question of law, but found that it was not “controlling” and therefore not subject to interlocutory review. Because this is merely a discovery issue, it is not controlling and the appeal was dismissed.
Nos. 09CA0510, 09CA0772 & 09CA0773. In re the Marriage of Walker.
Dissolution of Marriage—Post-Decree—C.R.C.P. 59—Timely.
In this post-dissolution of marriage proceeding, wife appealed the order denying her C.R.C.P. 59 motion. The appeal was dismissed.
Wife contended that the trial court erred by denying her C.R.C.P. 59 motion. C.A.R. 4(a) provides that an appeal must be filed within forty-five days of the entry of final judgment. After a final judgment enters, if a timely C.R.C.P. 59 motion is filed, the forty-five-day period for filing a notice of appeal is tolled and begins running from the date the post-trial motion is denied or is deemed denied under C.R.C.P. 59(j). However, an untimely C.R.C.P. 59 motion does not toll the time for filing an appeal.
Here, wife timely requested an extension to filing her C.R.C.P. 59 motion to obtain a transcript of the hearing so that her new attorney could prepare a post-trial motion. Nearly four years later, on November 23, 2008, wife filed her C.R.C.P. 59 motion, contending she had been unable to obtain a transcript. Because wife effectively abandoned her C.R.C.P. 59 motion by not diligently prosecuting it in the trial court, her appeal was dismissed as untimely under C.A.R. 4(a).
Colorado Court of Appeals Opinions