First Degree Assault—Double Jeopardy—Attempted Extreme Indifference First Degree Murder.

When a police officer pulled over Anderson’s car, Anderson got out of his car and fired multiple bullets at the officer’s patrol car. One bullet hit the officer’s arm, wounding him. As Anderson attempted to reload his gun, the officer shot Anderson twice, ending the incident. The evidence at trial established that Anderson and the officer were the only people on the road. A jury found Anderson guilty of attempted extreme indifference first degree murder; first degree assault, threatening a peace officer with a weapon; first degree assault, serious bodily injury with a deadly weapon; and first degree assault, extreme indifference. The trial court sentenced Anderson to 48 years in the custody of the Department of Corrections for the attempted extreme indifference murder conviction, and to a concurrent sentence of 30 years on the first degree assault (extreme indifference) conviction. It also imposed consecutive sentences of 30 years on the two remaining first degree assault convictions, for a total of 108 years.

On appeal, Anderson contended that the evidence was insufficient to convict him of attempted extreme indifference murder. Even if defendant meant only to effect his own suicide by provoking the officer to shoot him, Anderson’s knowing and voluntary acts of firing numerous gunshots at the officer permit his conviction for attempted extreme indifference murder. However, when a defendant’s conduct does not endanger more than one person, as here, the evidence is insufficient to sustain a conviction for attempted extreme indifference first degree murder.

Anderson next contended that he should receive a single first degree assault conviction and sentence because his three sentences for first degree assault violate double jeopardy. CRS § 18-3-202(1) establishes a single offense of first degree assault with alternative means of commission. Here, because there was one victim and one act, Anderson may be convicted and sentenced for first degree assault under CRS § 18-3-202(1) only once.

The judgment and sentence were affirmed in part and vacated in part, and the case was remanded. 

CRE 404(b)—Common Plan—Modus Operandi—Other Acts Evidence—Identity.

Defendant was charged with distribution of cocaine after a police informant purchased rock cocaine from him. Before trial, the prosecution filed a CRE 404(b) motion requesting the  court’s permission to present evidence of a drug deal defendant was involved in that occurred about three months before the events in this case, to establish a “common plan, scheme, design, modus operandi, motive, and guilty knowledge,” and to rebut any potential assertion of mistake or accident by defendant. The court granted the motion, and thereafter, a jury convicted defendant of distributing cocaine.

On appeal, defendant contended that the trial court erred in admitting evidence of the prior drug deal to show that he had a distinctive modus operandi or that the two drug deals were part of a common plan. In cases that do not involve sexual assault or domestic violence, uncharged misconduct evidence offered to prove modus operandi is only admissible to prove that the defendant was the person who committed the crime. Here, defendant did not deny that he was the person with whom the informant met, so his identity was not at issue and was not a material fact. The uncharged misconduct of the prior drug deal was not relevant independent of the impermissible inference, prohibited by CRE 404(b), that defendant had bad character. Therefore, the trial court should not have admitted evidence of the prior drug deal. Furthermore, there was no evidence that the two drug deals were part of a common plan. Because this error was not harmless, the judgment of conviction was reversed and the case was remanded to the trial court for a new trial.

Surcharge—Non-Probate Funds—Fiduciary—In Terrorem Clause—Attorney Fees.

Vicki Sandstead (Sandstead) and Shauna Sandstead Corona (Corona) disagreed about matters relating to their deceased parents’ (William and Auriel Sandstead) former property. Corona filed this action, and the court thereafter entered orders regarding the parents’ wills and revocable trust.

On appeal, Sandstead contended that the district court erred by surcharging her for actions related to the farm sales proceeds, which were placed in joint bank accounts before Auriel’s death, because that money was not estate property. The Court of Appeals agreed. By law, the farm sale proceeds were never estate funds. Therefore, the court could not surcharge Sandstead for her expenditure of those funds.

Sandstead also contended that the district court erred by surcharging her for actions she took before the court appointed her personal representative (PR) of the estate. The district court ruled it could surcharge Sandstead because she acted as a fiduciary as both her mother’s agent under a durable power of attorney and as a trustee of an implied trust regarding money in joint bank accounts. The Court found there was no evidence Sandstead acted pursuant to a power of attorney regarding farm sale proceeds and there was no basis in the record for imposing or finding an implied trust regarding the farm sale proceeds. Before her appointment as PR, Sandstead was not a fiduciary of the estate. Thus, surcharging her for the estate’s benefit for acts prior to her appointment (and that related to non-estate funds) was not allowed by CRS § 15-10-504. Therefore, the district court erred by surcharging her for actions she took before she was appointed as PR.

Corona argued that the district court erred in enforcing the in terrorem clause to preclude her from benefiting under Auriel’s 2000 will. Because Corona did not have probable cause to challenge the validity of the will, the district court did not err in enforcing the in terrorem clause.

The order awarding Corona attorney fees and costs under CRS § 15-10-504(2)(a) was reversed, and the case was remanded for recalculation of surcharges based on Sandstead’s actions relating to estate property only while she served as PR and to reconsider the award of attorney fees.

Mandatory Protection Order—Conditions—CRS § 18-1-1001.

Defendant was charged in three cases with various drug, driving, and other crimes. In each case, the district court issued a Mandatory Protection Order (MPO), which prohibited defendant from (1) engaging in harassing or similar behavior or tampering with any witness to or victim of the acts charged; (2) using certain drugs; and (3) driving without a valid driver’s license. Defendant ultimately pleaded guilty to some of the charges, and the court continued the conditions of the MPOs until defendant completed his sentences.

On appeal, defendant contended that the MPOs are invalid generally because the cases did not involve any victims or witnesses who needed protection. At the sentencing hearing, defense counsel specifically stated that he was not objecting to the “standard protection order[s],” but instead was only objecting to the specific conditions regarding marijuana and driving. Therefore, this argument was waived.

Defendant also contended that the district court lacked the statutory authority to impose the conditions in the MPOs prohibiting defendant from possessing or using drugs and driving without a valid driver’s license. CRS § 18-1-1001(3) provides broad authority to modify an MPO and applies generally to every MPO issued in a Title 18 case. Thus, the drug and driving conditions in the MPOs at issue did not violate CRS § 18-1-1001.

The sentences were affirmed.

Campaign—Contributions—Expenditures—Reporting.

This is the fourth in a series of complaints brought by claimant, Campaign Integrity Watchdog (CIW), or its principal officer, Matthew Arnold, against Coloradans for a Better Future (CBF), a political organization under CRS § 1-45-103(14.5), to challenge CBF’s alleged failure to report contributions and spending. Specifically, CIW challenged CBF’s spending on legal fees in 2012 and 2013, as well as donated legal services in 2013 and 2014. The administrative law judge (ALJ) found in favor of CBF.

On appeal, CIW argued that the ALJ erred in concluding that CBF did not need to report certain legal services as spending. The Court of Appeals disagreed. The money that CBF spent on legal services in 2012 or 2013 either for defending previous campaign finance complaints or for its attorney fees fell outside the category of expenditures defined by the Fair Campaign Practices Act. Therefore, it did not constitute reportable spending.

CIW also argued that the ALJ erred in concluding that CBF only needed to report contributions that were for the purpose of promoting a candidate’s nomination or election. The Court agreed. CBF received “in-kind” contribution of legal services. It is undisputed that the legal services at issue were either a gift of services for which less than equivalent value was received (if the services were billed but not paid) or they were pro bono services. Therefore, CBF received a contribution that it was required to report.

The order was affirmed in part and reversed in part, and the case was remanded.

Immunity from Suit Under the First Amendment—Denial of Discovery—Private versus Public Dispute—“Sham” Claims—Attorney Fees and Costs.          

Eleven hotels (collectively, Hotels) petitioned the Colorado Economic Development Commission (CEDC), requesting that CEDC require the City of Aurora to submit a new application for an $81 million tax subsidy after the initial company that had been awarded the subsidy assigned its interest to RIDA Development Corporation (RIDA). The Attorney General (AG) denied the petition on behalf of the CEDC. The Hotels filed an action in the Denver District Court (Denver lawsuit). The district court and a division of the Court of Appeals affirmed the AG’s denial of the Hotels’ petition. However, alleging conspiracy to interfere with the financing and development of the project, plaintiffs, Aurora, the Aurora Urban Renewal Authority, and RIDA (collectively, Aurora parties), sued the Hotels. The district court found that the Hotels’ complaint in the Denver lawsuit was immunized under the First Amendment, based on Protect Our Mountain Environment, Inc. v. Dist. Ct., 677 P.2d 1361 (Colo. 1984) (POME), and dismissed the Aurora parties’ complaint. The Aurora parties appealed and the Hotels cross-appealed. 

The Aurora parties first argued it was an abuse of discretion not to allow discovery and a hearing before granting the Hotels’ motion to dismiss. The Court agreed with the district court that because the Aurora parties were unable to articulate any need for discovery on the first, objective prong of the POME test—whether the Hotels’ claims had a reasonable basis in law or fact—they were not entitled to discovery before the court ruled on the Hotels’ motion.

The Aurora parties then contended that POME did not apply because this was a purely private dispute. The Court disagreed. The Hotels did not sue any private party, and the dispute arose from a petition to a state agency for judicial review of state agency action regarding an award of millions of dollars in taxpayer subsidies to a city to develop a project of “major public importance.”

Finally, the Aurora parties argued that three of the Hotels’ claims in the Denver lawsuit lacked reasonable factual support or a cognizable basis in law and were “sham” claims. The Court disagreed. It also agreed with the Hotels that the one claim the district court found to be a “sham” was in fact not a sham because it had reasonable factual support and a cognizable basis in law.

The Hotels contended that the court erred in concluding their third claim was a sham and that the CRCP 12(b)(5) dismissal of RIDA’s claims should be affirmed. The Court concluded their third claim was not a sham, and because the Court affirmed the dismissal of the Aurora parties’ complaint, it did not reach the second argument.

The judgment was affirmed, and the Court awarded the Hotels attorney fees and costs.

Dog Owner Liability—Duty of Care—Premises Liability Act Definition of Landowner.

Plaintiffs, N.M. and his parent and legal guardian, Lopez, appealed from an order dismissing their complaint against defendant Trujillo.

Eight-year-old N.M. was walking on a sidewalk with another boy. As he passed defendant’s home, two large, loudly barking pit bulls rushed at the boys, unprovoked. The dogs jumped up and rattled a four-foot high chain-link fence. N.M. was allegedly so frightened that he darted from the sidewalk into the street and was struck by a service van, causing him serious injuries. Plaintiffs sued and settled with the driver and owner of the van.

On appeal, plaintiffs argued the district court erred in concluding as a matter of law that defendant owed no duty to N.M and was not subject to liability as a “landowner” under the Premises Liability Act (PLA).

Deciding an issue of first impression, the Court of Appeals considered whether a dog owner owes a duty to exercise reasonable care to an injured party when the injured party was not directly injured by the dogs or on the dog owner’s property and the dogs remained confined and never left the landowner’s property. The Court held there was no such duty.

The Court also agreed with the district court that public sidewalks adjacent to a landowner’s property are not property of the landowner under the PLA.

The judgment was affirmed.

2016 COA 54. No. 15CA0034. Friends of the Black Forest Preservation Plan, Inc. v. Board of County Commissioners of El Paso County. CRCP 106(a)(4)—Special Use Permit Appeal—Binding Nature of Master Plans.

Under CRCP 106(a)(4), plaintiffs, Friends of Black Forest Preservation Plan, Inc. and several residents of the Black Forest area, appealed the district court’s judgment affirming the decision of defendant Board of County Commissioners of El Paso County (Board) approving the special use permit application of defendant Black Forest Mission, LLC (BFM) to construct a greenhouse operation in the Black Forest Preservation area.

BFM proposed to construct a 1.19-acre greenhouse on a 4.87-acre lot it owned in an area governed by the Black Forest Preservation Plan (BFPP), which is contained within El Paso County’s overall master plan. Greenhouses are allowed if less than one acre in size, but a special use permit is required for larger greenhouses.

The Planning Commission recommended by a 6–2 vote that the Board deny BFM’s application for a special use permit because of its inconsistency with both El Paso County’s Policy Plan and the BFPP. At the first hearing before the Board, BFM was granted a continuance to amend its application to attempt to ameliorate various concerns of the Planning Commission and residents. At the next hearing, BFM presented a revised plan proposing three smaller greenhouses that collectively would be larger and would be built on two parcels instead of one. BFM also modified the location to address concerns about light pollution, view obstruction, and traffic congestion. The Board approved BFM’s amended special use application by a vote of 3–2.

Plaintiffs filed this action, arguing the Board misapplied governing law and abused its discretion because of its belief, as relayed by a county attorney, that the county’s master plan was merely advisory. The district court affirmed the Board’s decision, agreeing that the county’s master plan was advisory and there was competent evidence in the record supporting the Board’s decision to approve BFM’s special use permit application. Plaintiffs appealed.

The Court of Appeals noted that CRS § 30-28-106 provides that master plans may be made binding by formal inclusion in county land use regulations. The Court undertook an extensive analysis of El Paso County’s land use regulation scheme and rejected plaintiffs’ argument that the Board’s approval was based on an erroneous legal standard, concluding there was a reasonable basis for the Board’s interpretation of its own regulatory framework. It held that the master plan was advisory and the Board has discretion in deciding how to apply the master plan in its decisions on special use applications.

Plaintiffs also argued it was error for the district court to find competent evidence in the record to support the Board’s decision. The Court disagreed.

The judgment was affirmed.

CRCP 106—Reasonable Interpretation of Rules—City and County of Denver Career Service Board.

Plaintiff Khelik appealed from the district court’s judgment affirming an order of the City and County of Denver’s Career Service Board (Board) relating to disciplinary proceedings against him by the Denver Sheriff Department (DSD). The sole issue on appeal was whether the Board abused its discretion by misinterpreting a DSD disciplinary rule and concluding that a charge of conduct unbecoming does not require the DSD to prove actual harm to the City or the DSD. Khelik was a sergeant in the DSD. He was given a disciplinary notice suspending him without pay for inappropriate interactions with a female officer under his command and retaliating against her for stating her intention to file a sexual harassment complaint. Khelik appealed his suspension to a hearing officer in the Career Service Authority. The hearing officer concluded that because the DSD had not made a showing of actual harm, Khelik had not violated DSD Rule 300.11.16 (the retaliation claim was also denied and that was not appealed). The DSD petitioned for review with the Board, and the Board vacated the hearing officer’s determination, concluding there was no requirement of a showing of actual harm to the City or the DSD to find a violation of the rule concerning conduct unbecoming. The district court affirmed. Khelik appealed under CRCP 106.

The Court of Appeals concluded that the Board did not abuse its discretion. In interpreting DSD Rule 300.11.16, the Board’s reasoning was consistent with principles of statutory interpretation and reflects the plain language of the rule, the drafters’ intent, and the policy considerations behind the rule.

The judgment was affirmed.

In 2012, Arnold lost the Republican primary election for University of Colorado Regent to Davidson. During the run-up to the election, Coloradans for a Better Future (CBF) purchased a radio advertisement supporting Davidson and other radio advertisements unfavorable to Arnold. After the election, Arnold, and later Campaign Integrity Watchdog (CIW) with Arnold as its principal officer, filed a series of complaints with the Colorado Secretary of State (Secretary) alleging violations of Colorado’s Fair Campaign Practices Act (FCPA). This is the third such complaint.

Specifically, CIW challenged CBF’s failure to report funds donated to CBF to pay Arnold’s court costs from an earlier case, arguing those funds were a contribution and spending and were incorrectly reported in CBF’s initial January 2014 contributions and expenditures report. The administrative law judge (ALJ) dismissed the complaint. The ALJ found that on January 22, 2014, CBF filed a contribution and expenditures report with the Secretary. Its report wasn’t due until May 5, but it intended to terminate its activities as a political organization and thus filed early. On the same day, CBF’s legal counsel sent an email to the Secretary seeking to amend the report to show that Colorado Justice Alliance (CJA) contributed $200.20 to pay Arnold’s court costs. The Secretary’s electronic reporting system didn’t allow the change to be made by CBF, and the Secretary’s staff couldn’t change the report either. CIW filed its complaint on March 3, 2014 and CBF’s report was publicly amended on March 6, 2014. The ALJ concluded that CBF had already reported the CJA contribution to the Secretary when CIW filed its complaint and that the complaint was premature because the report was not due until May 2014. The ALJ further concluded that the payment of Arnold’s court costs did not meet the FCPA definition of spending and did not have to be reported as such.

On appeal, CIW contended that the $200.20 CJA donated to help CBF satisfy its obligation to pay Arnold’s court costs was a contribution that was incorrectly reported on the initial report. Specifically, CIW argued that the ALJ (1) invented findings of fact, (2) misrepresented facts regarding CBF’s request to amend its report, and (3) erred in concluding the complaint was premature. As to the first argument, CIW failed to cite specific findings or record support; as to the second argument, the allegation concerned a question of law rather than fact; and as to the third argument, the Court concluded the report was corrected on January 22, when CBF notified the Secretary of its mistake. CIW also argued that CBF violated the FCPA because it listed the payee of the $200.20 as the Denver District Court rather than Arnold; the Court found this too insignificant to amount to a violation of the reporting law. Thus, the Court concluded that the ALJ did not err when he concluded CBF correctly reported the $200.20.

CIW also argued that the $200.20 CBF paid to Arnold constituted spending and should have been reported. The Court found the funds were not “expended influencing or attempting to influence the selection, nomination, election, or appointment of any individual to any state or local public office in the state,” and thus concluded they were not reportable spending.

CIW’s request for costs and fees was denied. CBF’s request for attorney fees was denied, but its request for costs was granted.    

The judgment was affirmed.