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Colorado Court of Appeals Opinions
September 27, 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 157. No. 08CA0105. People v. Banks.
Juvenile Charged as Adult and Convicted—Privilege Against Self-Incrimination—Recorded Statements—Due Process—Confrontation of Witnesses—Polygraph Test—Challenge for Cause—Sentence—Parole.

Defendant appealed his judgment of conviction entered on a jury verdict finding him guilty of first-degree murder and his sentence of life imprisonment without parole. The judgment was affirmed, the sentence was affirmed in part and vacated in part, and the case was remanded to the trial court for resentencing.

On December 11, 2004, defendant (then age 15 and a member of the Tre Tre Crips gang) attended a house party, where he shot and killed the a 16-year-old victim. Defendant was charged as an adult with first-degree murder after deliberation and later was convicted and sentenced to life imprisonment without parole.

On appeal, defendant contended that the trial court erred in denying his motion for mistrial and permitting the prosecution to question a witness regarding an assertion of the privilege against self-incrimination. Although the prosecution asked the witness about the privilege, the witness did not invoke his Fifth Amendment privilege at trial. Further, because the witness’s credibility was impeached by his admission to having three prior felony convictions, being incarcerated at the time of trial, and lying to an officer, the prosecution’s question about privilege did not have any further prejudicial impact on his credibility.

Defendant also argued that the trial court erred in denying two motions for mistrial and admitting five recorded statements containing inadmissible material. A majority of the statements in these interviews were prior inconsistent or consistent statements, and the required foundational elements were met. Further, most of the statements were cumulative of other testimony or provided context, and defendant did not meet his burden of persuasion in showing how the statements prejudiced him. Thus, the trial court did not abuse its discretion in admitting the recorded interviews or in denying defendant’s two motions for mistrial based on the statements.

Defendant further argued that the trial court violated his federal and state constitutional rights to due process and to confront witnesses. Defendant did not preserve his state constitutional argument. Four of the witnesses were available for the second trial, where defense counsel cross-examined them, and the fifth witness, who was subjected to prior cross-examination, was found by the court to be unavailable to testify. Therefore, the trial court did not violate defendant’s right to confront witnesses by admitting the recorded statements.

Defendant also claimed that the trial court erred by permitting the prosecution to repeatedly refer to Hicks, a known gang member who was a defendant in an unrelated high-profile murder case. The testimony regarding Hicks was relevant to show Hicks’s relationship with defendant, a witness’s fear of testifying, and the disposal of the murder weapon. Thus, evidence of Hicks’s involvement in the case at hand was relevant and was not unduly prejudicial.

Defendant contended that the trial court erred in permitting testimony about a witness’s agreement to take a polygraph test. The trial court did not abuse its discretion in admitting testimony that a witness changed his testimony when confronted with a polygraph test when no results of the polygraph test were mentioned.

Defendant argued that the trial court violated defendant’s right to a fair and impartial jury when it denied his challenges for cause regarding two jurors. Both jurors, however, gave assurances to the court about their ability to be fair and impartial despite their concerns about gang affiliation and safety issues.

Defendant further argued that the mandatory sentence of life imprisonment without parole constituted cruel and unusual punishment and violated his rights to equal protection and due process. The Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. Therefore, defendant’s sentence to life imprisonment was affirmed, but was vacated to the extent he was denied the possibility of parole. The case was remanded to the trial court to modify the sentence by including a provision for the possibility of parole after forty years in accordance with CRS § 17-22.5-104(2)(c).

2012 COA 158. No. 11CA0656. People v. Diaz.
Assault—Consecutive Sentencing—CRS § 18-3-203(1)(f).

Defendant appealed the sentence entered on a jury verdict finding him guilty of second-degree assault. The sentence was vacated and the case was remanded to the district court for resentencing.

While serving a sentence on other charges, defendant punched a prison guard in the eye. On a second occasion, he threw a cup that hit a guard in the mouth. The second assault was tried first. Defendant was found guilty, and he was sentenced to ten years in the custody of the Department of Corrections. The next day, defendant was found guilty of the first assault, and he was sentenced to ten years in prison, to be served consecutively to the sentence imposed for the second assault.

On appeal, defendant contended that the district court erred by ruling that CRS § 18-3-203(1)(f) requires that the sentence for the first assault be served consecutively to the sentence for the second assault. CRS § 18-3-203(1)(f) requires consecutive sentencing only when a defendant is serving a sentence (and not merely confined on unresolved charges) at the time of the assault. Therefore, the district court erred in ruling that the sentence for the first assault must run consecutively to the sentence for the second assault. Nonetheless, the court had discretion to order the sentence for the first assault to run consecutively to the sentence for the second assault. On remand, the court must exercise its discretion in determining whether the sentence for the first assault should be served consecutively to the sentence for the second assault.

2012 COA 159. No. 11CA1226. People v. Juanda.
Restitution—Pecuniary Loss—Victim—Law Enforcement.

Defendant Joseph L. Juanda appealed from an order requiring him to pay restitution. The order was affirmed. 

On four occasions, Juanda sold oxycodone to an undercover agent of the Drug Enforcement Administration (DEA). After Juanda pleaded guilty to two drug offenses, the People sought an order of restitution requiring Juanda to return the “buy money” ($11,600) that he had received from the DEA’s agent, which the court granted.

Juanda contended that the court erred in ordering him to pay restitution. “Restitution” means “any pecuniary loss suffered by a victim.” Qualifying pecuniary losses include (1) “money advanced by law enforcement agencies,” and (2) “extraordinary direct public . . . investigative costs.” Here, the money was advanced by the DEA to its undercover agent, who then used the money to buy drugs from Juanda. Therefore, the DEA’s buy money qualifies as “money advanced by [a] law enforcement agenc[y]” under CRS § 18-1.3-602(3)(a), and the trial court’s order was supported by the restitution statute.

2012 COA 160. No. 11CA2205. Kyle W. Larson Enterprises, Inc. v. Allstate Insurance Co.
First-Party Claimant—Repair Vendor—CRS §§ 10-3-1115 and -1116.

Plaintiff Kyle W. Larson Enterprises, Inc. (roofer) appealed only a portion of the trial court’s summary judgment in favor of defendant Allstate Insurance Company (Allstate). The judgment against the roofer on its claim under CRS § 10-3-1116 was reversed and the case was remanded for further proceedings on that claim.

The roofer contracted with the owners of four homes insured by Allstate to repair their roofs. The contracts provided that the repair costs would be paid from insurance proceeds and granted the roofer full authority to communicate with Allstate regarding all aspects of the insurance claims. The roofer met with Allstate adjustors to discuss the four homes and to determine the amount of each claim, and began each repair after receiving approval from Allstate for the claims. It later was determined that additional repairs were necessary to comply with applicable building codes and to maintain certain manufacturers’ warranties. The roofer made the repairs and invoiced Allstate for them. Allstate paid the claim amounts that were agreed to during the original adjustment, but refused to pay for the additional repairs. Pursuant to CRS §§ 10-3-1115 and -1116, the roofer filed suit as a first-party claimant against Allstate for unreasonable delay and denial of benefits. The trial court ruled that the roofer was not a first-party claimant entitled to seek relief under the statutes, and granted Allstate’s summary judgment motion.

On appeal, the roofer contended that the trial court erred in granting summary judgment for Allstate because the roofer is a first-party claimant. A repair vendor that brings a claim against an insurer on behalf of its insured qualifies as a first-party claimant under § 10-3-1115 and is entitled to sue the insurer under § 10-3-1116. CRS § 10-3-1115(1)(b). This includes vendors such as the roofer, which is authorized to assert, and do assert, claims on behalf of insureds.

2012 COA 161. No. 12CA0649. People in Interest of O.C., and Concerning C.M.
Dependency and Neglect—Motion to Intervene—CRCP 24—Final Order—CRS § 19-3-507(5)(a).

In this dependency and neglect proceeding concerning O.C., the child’s maternal grandfather and the child’s maternal step-grandmother (grandparents) appealed from the order denying their motion to intervene. The order was reversed and the case was remanded.

O.C. was removed from mother and father’s care in May 2010. An older child, 2-year-old B.C., had been removed from mother’s care five months earlier because of concerns about possible physical abuse. Grandparents first sought to become involved in the proceeding in October 2010, when they moved to intervene under CRCP 24(a) and (b) and requested that O.C. and B.C. be placed with them. The Jefferson County Division of Children, Youth, and Families (County) opposed the motion, arguing that grandparents did not meet the criteria to intervene as a matter of right under CRS § 19-3-507(5)(a). The trial court denied the motion.

Both the County and the guardian ad litem contended that the order denying grandparents’ motion to intervene was not a final order and, thus, was not properly before the court on appeal. However, the denial of a motion to intervene as a matter of right is a final and appealable order.

Grandparents contended that the trial court erred in denying their motion to intervene as a matter of right under CRS § 19-3-507(5)(a). The trial court denied grandparents’ motion to intervene because they did not have the child in their care for at least three months. However, CRS § 19-3-507(5)(a) only requires foster parents—not parents, grandparents, or other relatives—to have had the subject child in their care for at least three months before being permitted to intervene. CRS § 19-3-507(5)(a) affords to grandparents of a dependent and neglected child the right to intervene in a dependency and neglect proceeding at any time after adjudication, and such right is not contingent on a showing that those grandparents have had the child in their care for more than three months. Accordingly, the order was reversed and the case was remanded to the trial court to allow grandparents to intervene in the proceeding.

2012 COA 162. No. 12CA0771. In re the Parental Responsibilities of M.W., and Concerning Taylor.
Parental Responsibilities—Nonparent Versus Parent.

In this action involving parental responsibilities for M.W., who is the child of Trista Ann Wamsher (mother) and Edward Day (father), mother’s former boyfriend, Shane Taylor, appealed from the trial court’s judgment denying him allocation of parental responsibilities. The judgment was reversed.

Mother and Taylor entered into a relationship while mother was pregnant with M.W. Taylor was present when M.W. was born and lived with mother and M.W. for the first two years of M.W.’s life. Mother considered Taylor as M.W.’s father and encouraged M.W. to identify Taylor as his father.

Mother and Taylor ended their relationship when M.W. was 2 years old, and mother and M.W. subsequently moved out of Taylor’s home. Taylor then petitioned for an allocation of parental responsibilities for M.W.

After mother moved out, she petitioned for public assistance, which resulted in notifying father, who was living in North Carolina, that a child support action had been initiated against him. Father initially doubted his paternity. Several years later, in the course of a child support proceeding, he arranged for genetic testing and his paternity was confirmed. Thereafter, father intervened in Taylor’s proceeding and moved to Colorado with his girlfriend. With mother’s consent, father and girlfriend began exercising parenting time with M.W.

Following a three-day trial court hearing, the trial court found that although Taylor was M.W.’s psychological parent and had established standing under CRS § 14-10-123(1)(c), the court could not allocate parenting time to him unless it found that mother and father were unfit or likely would make parenting decisions that were not in M.W.’s best interests. Taylor appealed, contending the trial court applied an incorrect legal standard. The Court of Appeals agreed.

Once a nonparent has established standing, the trial court then considers whether to allocate parenting time or decision-making authority to the nonparent based on the factors in CRS § 14-10-124(1.5). Parents, however, have a fundamental right protected by the Due Process Clause to make decisions concerning the care, custody, and control of their children [Troxel v. Granville, 530 U.S. 57 (2000)]. Thus, special factors must justify a court’s interference with this fundamental right.

Also, when a nonparent seeks parental responsibilities contrary to a parent’s wishes, the court must give special weight to the parent’s position. This means that the presumption favoring the parent’s decision can be rebutted only by clear and convincing evidence that granting parental responsibilities to the nonparent is in the child’s best interests. The nonparent does not, however, have to prove that the parents are unfit.

Thus, a court must employ a three-part test in considering the nonparent’s request. First, a presumption exists favoring the parental determination. Second, to rebut this presumption, the nonparent must show by clear and convincing evidence that the parental determination is not in the child’s best interests. Finally, the nonparent must establish by clear and convincing evidence that the nonparent’s requested allocation is in the child’s best interests. The trial court did not apply the foregoing standards and must do so on remand.

Colorado Court of Appeals Opinions