During a bar fight, Rigsby struck the victim in the face with a glass. Rigsby was charged and convicted of two counts of second degree assault and one count of third degree assault, a lesser included offense. The trial court sentenced him to five years in the custody of the Department of Corrections for the second degree assault convictions and 66 days in jail for the third degree assault conviction, with all sentences running concurrently.

On appeal, Rigsby contended that the jury verdicts are logically and legally inconsistent. Rigsby could not have simultaneously acted with knowledge to cause bodily injury while also acting without knowledge, unaware of the risk of causing bodily injury. Because the second degree assault convictions required the jury to determine he was aware of the risk of bodily injury, and thus acted with intent or recklessly, while the third degree assault conviction required the jury to find he was unaware of the risk of bodily injury, the jury verdicts were legally and logically inconsistent. Logically and legally inconsistent verdicts require a new trial because the jury’s findings cannot be reconciled to determine its intent.

Rigsby also contended, and the people conceded, that his three convictions must merge because they are multiplicitous and violate the Double Jeopardy Clause. A defendant is constitutionally protected from multiple convictions for the same offense when the relevant statute does not create separate offenses for the same criminal conduct. If, on remand, the jury again convicts Rigsby of both second degree assault counts, Rigsby’s three convictions must merge because they are multiplicitous and violate the Double Jeopardy Clause.

The convictions were reversed and the case was remanded for a new trial.

C.M.D. was adjudicated delinquent based on an incident involving unlawful sexual contact when he was 17 years old. At the time of the incident, C.M.D. was serving a sentence in the Department of Youth Corrections based on prior adjudications, one of which was also for sexual assault. At sentencing, he was ordered to register as a sex offender under the Colorado Sex Offender Registration Act (CSORA).

On appeal, C.M.D. contended that, as applied to him and similarly situated juveniles, CSORA violates constitutional prohibitions against cruel and unusual punishment. Under the facts of this case, the Court of Appeals was not persuaded to depart from Colorado precedent holding that the sex offender registration requirement is not punishment. It therefore did not reach the questions whether such requirement is cruel or unusual. C.M.D. had a previous adjudication for unlawful sexual contact, so the magistrate was statutorily precluded from waiving the registration requirement.

C.M.D. also argued that mandatory, lifetime sex offender registration under CSORA, as applied to him and similarly situated juveniles, violates due process. CSORA’s stated purpose of protecting the public is rational, and C.M.D.’s claim does not implicate a fundamental right. C.M.D. did not show that CSORA violates due process or fundamental fairness when applied to juveniles in the circumstances presented here.

The order was affirmed.

After her husband passed away, Patterson, with the assistance of her attorney Lees, filed a tort action against her husband’s children and an attorney, James, who represented one of the children in seeking appointment as personal representative of the estate. James moved to dismiss these claims under CRCP 12(b)(5), and the trial court granted the motion, finding that the litigation shield and strict privity rule barred Patterson’s claims against James. James moved for attorney fees, and after a hearing, the trial court awarded attorney fees and costs jointly and severally against Patterson and Lees under CRS § 13-17-201. James requested additional attorney fees incurred in pursuing the underlying fee request pursuant to CRS § 13-17-102(2), which the trial court denied.

On appeal, Lees contended that the trial court converted the motion to dismiss to a CRCP 56 motion for summary judgment when it considered matters outside the pleading, thus precluding attorney fees under CRS § 13-17-201. There is no indication that the trial court considered the exhibits attached to James’s motion to dismiss and Patterson’s response in ruling on James’s motion to dismiss. Therefore, the motion to dismiss was not converted into a Rule 56 motion for summary judgment, and the trial court was not precluded from awarding attorney fees under CRS § 13-17-201.

Patterson contended on appeal that the trial court improperly dismissed her claims against James by misapplying the litigation shield and strict privity rule. An attorney’s statements, even if defamatory, when made in the course of, or in preparation for, judicial proceedings in a filed case cannot be the basis of a tort claim if the statements are related to the litigation. The privilege not only shields attorneys from defamation claims arising from statements made in the course of litigation, but also bars other non-defamation claims that stem from the same conduct. Here, Patterson’s claims against James arose from James’s representation of the personal representative in the underlying probate litigation. Therefore, the litigation privilege applies and James was entitled to absolute immunity as a matter of law.

Lees and Patterson also contested the trial court’s order granting attorney fees and costs jointly and severally against them. In view of the trial court’s findings, which are amply supported in the record, the trial court’s decision to impose joint and several liability was not manifestly arbitrary, unreasonable, or unfair. Further, the trial court was not prohibited from considering an unpublished opinion of the Court of Appeals for whatever persuasive value it may have had in reaching its decision. Lastly, James met her burden of establishing the reasonableness of the fees by providing testimony at the evidentiary hearing and sworn affidavits before the hearing.

On cross-appeal, James contended that the trial court erred in failing to make factual findings when it ruled on James’s motion for attorney fees and costs and declined to assess fees under CRS § 13-17-192(2). The trial court declined to find that Patterson’s or Lees’s positions lacked substantial justification and did not abuse its discretion.

The judgment was affirmed and the case was remanded to the trial court to enter an award of reasonable attorney fees incurred by James in defending this appeal.

In 2007, the borrower, Parker, obtained a loan for a house evidenced by a promissory note. Parker soon thereafter stopped making payments. In October 2008, the Bank of New York Mellon (the Bank) initiated foreclosure proceedings. In December 2008, the Bank approved Parker’s request for a loan modification, and Peterson remitted a payment on Parker’s behalf that same month. Neither Peterson nor Parker made any more payments. Even so, in 2010, the Bank withdrew the 2008 foreclosure. It subsequently sent the borrower a new acceleration warning letter providing him another opportunity to cure the default. In January 2015, the Bank initiated and pursued foreclosure proceedings (the January 2015 foreclosure) and the district court authorized the property’s sale. The Bank purchased the property in the foreclosure sale. Two months later, the Bank commenced this action to acquire possession and evict Peterson and Parker from the property, which was granted by the district court.

On appeal, Peterson and Parker asserted that the 2015 foreclosure and the resulting judgment of possession cannot be legally enforced because the six-year statute of limitations for an action for default on a promissory note had already expired. They claimed that the Bank triggered the statute of limitations in 2008 when it accelerated the obligation on the note. The Bank admitted that it accelerated the note in 2008 by initiating foreclosure proceedings. However, because the Bank abandoned the acceleration in 2010 by withdrawing the foreclosure and providing Peterson and Parker another opportunity to cure the default, the abandonment restored the note’s original maturity date for purposes of accrual of the statute of limitations.

The judgment was affirmed.

A jury found defendant guilty of first degree murder, attempted first degree murder, and assault. On direct appeal, a division affirmed. Defendant filed a pro se Crim. P. 35(c) motion raising seven claims mainly related to ineffective assistance of counsel and requesting postconviction counsel. The motion was summarily denied and a division of the Court of Appeals affirmed.

            Defendant then filed a second pro se Crim. P. 35(c) motion. He renewed some of the claims from his first motion and raised new claims. Counsel was appointed and filed a supplemental motion. The postconviction court denied the motion, finding the claims that were the same in the two motions were barred as successive and denying the new claims on the merits.

            On appeal, defendant argued that the claims are not barred as successive under Crim. P. 35(c)(3)(VI) because they were not raised and resolved in the first Crim. P. 35(c) motion. Here, defendant’s first motion addressed seven claims in 22 pages of argument supported by 26 pages of exhibits. Defendant raised these claims in his first motion within the meaning of Crim. P. 35(c)(3)(VI), and the claims were resolved. The renewed claims were properly barred as successive.

            As to the new claims, defendant argued that Crim. P. 35(c)(3)(VII), added in 2004, did not supersede prior case law holding a defendant can raise new postconviction claims if the first motion was filed pro se. Crim. P. 35(c)(3)(VII) bars postconviction claims that could have been presented in an appeal or postconviction proceeding previously brought and supersedes case law to the contrary. Thus, defendant’s new postconviction claims raised for the first time in his second motion are barred.      

            The order was affirmed.

Hogsett and Neale, a same-sex couple, ended their 13-year relationship. Hogsett believed the parties were common law married and petitioned for dissolution. Neale disagreed and moved to dismiss the petition. The district court applied the test for determining whether a common law marriage exists in People v. Lucero, 747 P.2d 660 (Colo. 1987), and found no common law marriage existed and granted Neale’s motion to dismiss. Hogsett moved for relief from the court’s judgment under CRCP 59. Her motion was deemed denied. Both parties agreed that Obergefell v. Hodges, 135 S.Ct. 2584 (2015), which overturned laws banning same-sex marriage, applies retroactively in deciding whether a same-sex common law marriage existed between them.

            On appeal, Hogsett contended that the district court erred in applying the Lucero test and finding no common law marriage existed. The Court of Appeals concluded that a court may find a same-sex common law marriage existed under the Lucero test based on the parties’ pre-Obergefell conduct. Here, the district court did not err in applying Lucero and finding no common law marriage existed.

            Hogsett also made several evidentiary arguments, which the Court rejected.

            The judgment was affirmed.

The Pueblo County Department of Social Services offered no testimony at mother’s adjudicatory and termination of parental rights hearings. Mother’s trial counsel accepted a no-fault adjudication in her absence, and mother’s parental rights were terminated.

On appeal, mother argued that her trial counsel was ineffective at the adjudicatory and termination hearings. The Court of Appeals applied the two-prong test outlined in Strickland v. Washington, 466 U.S. 668 (1984), to review her ineffective assistance of counsel claim. These prongs are that (1) counsel’s performance was outside the range of professionally competent assistance, and (2) the parent was prejudiced by counsel’s errors. The Court departed from the outcome-determinative prejudice inquiry applied by previous divisions of the Court and adapted the prejudice inquiry to the context of termination of parental rights proceedings to “focus on whether counsel’s deficient performance rendered the proceeding fundamentally unfair or the result of the proceeding unreliable.”

            Here, based on her counsel’s failure to subject the case to meaningful adversarial testing, mother made a sufficient showing that her counsel’s deficient performance was outside the range of professionally competent assistance, and further, rendered the termination proceeding presumptively unfair and unreliable.

The judgment was reversed and the case was remanded.

The Denver Department of Human Services (the Department) filed a petition in dependency and neglect against mother and father. The petition included a detailed case history and a summary of the referrals that prompted the Department’s action. Shortly before trial, the Department amended the case history portion of the petition, adding information that included the dates the parents had missed court-ordered drug tests and the results of the tests they had taken.

            At the beginning of the trial, as part of its statement of the case instruction, the juvenile court read the entire amended case history to the venire, and a written copy of the instruction was included in the juror notebooks. Later, the court admitted evidence that mother had declined requests for drug testing before the Department had filed the petition. The jury determined the child was dependent and neglected because his environment was injurious to his welfare, he was lacking proper parental care, and his parents had failed or refused to provide proper or necessary subsistence, education, medical care, or other care.

            On appeal, father argued that the juvenile court committed reversible error by incorporating the case history portion of the petition into its statement of the case instruction to prospective jurors. The purpose of the introductory statement of the case is to orient the jury to the nature of the case as a way of facilitating the jury selection process. The juvenile court’s instruction departed from this limited purpose and it amounted to a judicially endorsed opening statement on behalf of the Department. Further, this instruction was not harmless because it impaired the basic fairness of the trial in a way that likely influenced the outcome of the case. The juvenile court abused its discretion.

            Mother contended that the juvenile court erred when it admitted evidence that she refused to agree to drug testing for herself and the child before the Department filed its petition. Because it could arise on remand, the Court addressed mother’s argument. In this case, where mother and child exhibited nothing that would indicate the use of drugs, mother was entitled to a presumption that her refusal to take a drug test was objectively reasonable. Her refusal to consent to voluntary drug testing is so lacking in probative value as to be inadmissible. Therefore, it was an abuse of discretion to admit the refusal into evidence.

            Mother also argued that it was an abuse of discretion to admit evidence that mother refused the caseworker’s request to stop breastfeeding pending a drug test. This request was made before the filing of the petition and mother retained her rights as a presumptively fit parent to make decisions in the best interests of her child. The juvenile court abused its discretion when it admitted this evidence.

         The judgment was reversed and the case was remanded for a new trial.