Colorado Court of Appeals Opinions

April 19, 2018

2018 COA 51. No. 14CA1181. People v. Figueroa-Lemus.

Deferred Judgment—Crim. P. 32(d)—Jurisdiction—Immigration Consequences—Ineffective Assistance of Counsel—Withdrawal of Plea.

            As relevant to this appeal, defendant pleaded guilty to possession of a schedule II controlled substance. The parties stipulated to a two-year deferred judgment. The court accepted the deferred judgment and sentenced defendant to two years of probation. About five months later, defendant filed a Crim. P. 32(d) motion to withdraw his guilty plea, arguing that his counsel failed to advise him of the clear immigration consequences of the plea and claiming that if he had been properly advised, he would have rejected the offer. After an evidentiary hearing, the district court denied the motion.

On appeal, the People argued that the Court of Appeals did not have jurisdiction to review the trial court’s order because the motion challenged a non-final judgment. Although a deferred judgment may not be subjected to either Crim. P. 35 or direct review while it is still in effect, a defendant may challenge an unrevoked deferred judgment under Crim. P. 32(d). Further, the Court had jurisdiction to review the district court’s denial of a motion to withdraw a guilty plea because that motion challenged a deferred judgment still in effect.

Defendant argued that his guilty plea was not made knowingly, voluntarily, and intelligently because his counsel never informed him of the clear immigration consequences of the plea. Here, the record supports the district court’s finding that defendant’s criminal attorney and immigration attorney both told defendant on multiple occasions that a guilty plea to a drug felony would result in deportation. Because counsel’s performance was not deficient, the district court did not abuse its discretion when it denied the Crim. P. 32(d) motion.

Defendant also argued that counsel should have advised him that he would be held in custody during the removal proceeding. The Court found no authority that would require counsel to give this advice, and defendant failed to explain how such an advisement would have affected his decision to accept the plea offer.

The order was affirmed.

Read More..

2018 COA 52. No. 14CA1392. People v. Margerum.

Assault—Menacing—Sixth Amendment—Confrontation Clause—Cross-Examination—Probationary Status.

Defendant was alone in a friend’s apartment with the friend’s girlfriend, E.S. When E.S. rejected defendant’s sexual advances, defendant became angry and forced E.S. onto the bed, climbing on top of her and kissing and groping her. Then defendant tried to remove E.S.’s clothing. Eventually he stopped and let E.S. leave the apartment. Defendant then texted his sister, T.M., to come to the apartment. He told her he had a bag of clothes he wanted to give her. T.M. went to defendant’s apartment with her son. Without warning, defendant grabbed her around the neck and began choking her. Defendant then pinned T.M. underneath him and began groping her body. T.M. grabbed a glass candleholder and hit defendant on the back of the head, which allowed her to escape with her son. A jury convicted defendant of unlawful sexual contact without physical force as to E.S., and third-degree assault and menacing with a deadly weapon as to T.M.

On appeal, defendant argued that the trial court violated his rights under the Confrontation Clause by not allowing him to cross-examine E.S. concerning her probationary status. A witness’s probationary status alone does not implicate a defendant’s constitutional right to cross-examine the witness on potential bias or motive. Rather, some logical connection between the probationary status and the witness’s motive for testifying is required. Here, at the time of defendant’s trial, E.S. was serving a one-year probation in another county for a forgery conviction. Defendant pointed to no other facts that would logically connect E.S.’s probationary status with her testimony at his trial. Accordingly, the trial court did not err in denying defendant’s request to cross-examine E.S. regarding her probationary status because these facts do not show that E.S.’s testimony might have been influenced by a promise or expectation of leniency in exchange for favorable testimony.

Defendant next argued that there was insufficient evidence to support his menacing conviction. He contended that (1) the menacing statute requires that a defendant place the victim in fear before any actual injury, and (2) the conduct underlying his menacing conviction cannot be the same single act as the conduct underlying his assault conviction. The statute does not require that the victim be placed in fear before she in injured; it is thus irrelevant whether the victim is injured before, during, or after she is placed in fear of imminent bodily harm, if defendant’s actions place or attempt to place her in such fear. Defendant presented no basis to depart from established law that a person can commit two crimes with one act. The evidence supports defendant’s menacing conviction.

The judgment was affirmed.

Read More..

2018 COA 53. No. 15CA0121. People v. Bryant.

Assault—Expert Testimony—Jury Instructions—Miranda Warning—Voluntary Statements—Evidence.

While high on PCP, defendant assaulted two teenagers. After defendant’s arrest, police officers interviewed him and he admitted that he was under the influence of PCP, which he initially referred to as “sherm.” Defendant told officers that they could retrieve the substance from his sock, which they did. Before trial, defendant filed several motions to suppress. The court denied all of the motions, ruling that defendant’s statements were made voluntarily and that he had validly waived his Miranda rights. Defendant was convicted of unlawful possession of a controlled substance and two counts of third degree assault.

On appeal, defendant contended that the trial court erred by ruling that his statements to the police were voluntary. He argued that the police exploited his intoxicated state during their interrogation. Here, by the time they reached the police station, defendant was calm, coherent, and cooperative. The interview lasted no more than 15 minutes; there was no evidence that defendant’s demeanor changed during the interview; and there was no evidence of psychological coercion. The trial court did not err by finding that defendant’s statements to police were voluntary.

Defendant also contended that his statements should have been suppressed because police failed to obtain a valid waiver of his Miranda rights. Defendant contended that he was so intoxicated and confused when he was advised of his Miranda rights that he did not make a knowing and intelligent waiver of those rights. The record supports the trial court’s finding that defendant was not intoxicated when he waived his Miranda rights. The trial court did not err by finding that defendant validly waived his Miranda rights.

Defendant also contended that the trial court reversibly erred by allowing Officer Fink to testify as a lay witness regarding the meaning of the term “sherm.” This testimony was not based on Officer Fink’s personal knowledge or investigation of defendant’s case, but was based on his training and experience as a police officer. Although the trial court erred by allowing Officer Fink to testify as a lay witness, the error was harmless because the testimony was cumulative of other evidence presented at trial that served to prove the “knowingly” element of the possession charge.

Defendant next contended that the trial court erred by improperly instructing the jury. First, the instruction that voluntary intoxication was not a valid defense to the charged crimes could not have confused the jury, particularly because it was a brief and correct statement of the law. Second, the pattern instruction on mens rea was legally correct and informed the jury to apply a subjective standard rather than on objective standard. There was no error in the manner in which the trial court instructed the jury.

The judgment was affirmed.

 

Read More..

2018 COA 54. No. 15CA1816. People v. Butcher

Restitution—Post-Judgment Interest—Crim. P. 52(b)—Plain Error.

A jury convicted Butcher of two counts of securities fraud and two counts of theft from at-risk adults, and he was ordered to pay restitution.

On appeal, Butcher argued that the trial court erred in its award of prejudgment and post-judgment interest in its amended restitution order. The Court of Appeals reviewed the appeal for plain error and found that the trial court erred by calculating post-judgment interest from the date of conviction rather than from the date of the operative restitution order. However, although this error was obvious, it did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.

The Court exercised its discretion under Crim. P. 52(b) and affirmed the order.

Read More..

2018 COA 55. No. 16CA1909, Paradine v. Goei.

Wage Claim Act—Corporations—Piercing the Corporate Veil.

Plaintiff served as the chief financial officer and vice president of administration for Aspect Technologies, Inc. (Aspect), a corporation. Defendant Goei was the chief executive officer. Plaintiff sued Goei and Aspect, raising a claim under the Colorado Wage Claim Act (the Act), for fraud, and for breach of contract. He alleged that defendants owed him unpaid wages. The trial court granted Goei’s motion for judgment on the pleadings and dismissed the three claims against him individually with prejudice.

On appeal, plaintiff asserted that he was not barred from piercing the corporate veil and holding Goei personally liable under the Act. The Act does not categorically bar a plaintiff from piercing the corporate veil to hold an individual liable for unpaid wages. Plaintiff’s fraud claim made allegations in support of his request that the trial court pierce the corporate veil to impose liability on Goei, and plaintiff’s breach of contract claim incorporated the allegations in the fraud claim. Because plaintiff pleaded sufficient facts to establish a plausible claim that plaintiff could pierce the corporate veil, the trial court erred when it granted Goei’s motion to dismiss on the pleadings.

The judgment was reversed and the case was remanded with directions.

Read More..

2018 COA 56. No. 17CA0098, Peña v. American Family Mutual Insurance Co.

Uninsured Motorist—Denial of Liability—Denial of Coverage—CRCP 12(b)(5) Dismissal.

            Peña was involved in a three-car collision. Both Peña and Garner, another driver involved in the accident, were insured by defendant American Family Mutual Insurance Company (American Family). Peña sent a letter to American Family asserting a claim under the uninsured motorist provisions of her policy. American Family denied Peña’s claim, asserting that Garner was not responsible for the damage to her vehicle and Garner had coverage at the time of the accident, so Peña’s uninsured motorist property damage (UMPD) provision would not apply.

            Peña sued Garner and American Family in separate actions. In this action, she sued American Family under CRS § 10-3-1115 for the unreasonable delay and denial of benefits due under the UMPD provisions of her policy. American Family moved to dismiss, arguing that Peña’s complaint failed, as a matter of law, to state a claim upon which relieve could be granted because Peña’s UMPD coverage applied only if American Family, as Garner’s insurer, denied coverage, rather than liability, for Garner in connection with the accident. The district court agreed with this interpretation of Peña’s policy and the distinction made between denial of coverage and denial of liability. But because American Family had only denied liability and the issue of liability had not yet been determined, the court concluded that Peña’s UMPD coverage did not apply at that point and the lawsuit was premature. The district court dismissed the case without prejudice.

            On appeal, Peña contended that the district court erred in dismissing her case. She argued that the district court erred in not considering whether American Family unreasonably delayed or denied her claim before dismissing her action. Because American Family denied liability but not coverage, her policy’s UMPD provision was inapplicable, and there were no benefits that could have been delayed or denied. Peña had no claim as a matter of law. The district court’s determination that Peña’s lawsuit was premature was in error because Peña will never have a claim against American Family under her policy for unpaid UMPD benefits from the accident; Garner’s insurer has not denied coverage, which is the circumstance that would trigger Peña’s UMPD coverage. If Garner is ultimately found liable, Peña will have a claim against American Family under the liability provisions of his policy.

            The judgment was affirmed.

Read More..

2018 COA 56. No. 17CA0098, Peña v. American Family Mutual Insurance Co.

Uninsured Motorist—Denial of Liability—Denial of Coverage—CRCP 12(b)(5) Dismissal.

            Peña was involved in a three-car collision. Both Peña and Garner, another driver involved in the accident, were insured by defendant American Family Mutual Insurance Company (American Family). Peña sent a letter to American Family asserting a claim under the uninsured motorist provisions of her policy. American Family denied Peña’s claim, asserting that Garner was not responsible for the damage to her vehicle and Garner had coverage at the time of the accident, so Peña’s uninsured motorist property damage (UMPD) provision would not apply.

            Peña sued Garner and American Family in separate actions. In this action, she sued American Family under CRS § 10-3-1115 for the unreasonable delay and denial of benefits due under the UMPD provisions of her policy. American Family moved to dismiss, arguing that Peña’s complaint failed, as a matter of law, to state a claim upon which relieve could be granted because Peña’s UMPD coverage applied only if American Family, as Garner’s insurer, denied coverage, rather than liability, for Garner in connection with the accident. The district court agreed with this interpretation of Peña’s policy and the distinction made between denial of coverage and denial of liability. But because American Family had only denied liability and the issue of liability had not yet been determined, the court concluded that Peña’s UMPD coverage did not apply at that point and the lawsuit was premature. The district court dismissed the case without prejudice.

            On appeal, Peña contended that the district court erred in dismissing her case. She argued that the district court erred in not considering whether American Family unreasonably delayed or denied her claim before dismissing her action. Because American Family denied liability but not coverage, her policy’s UMPD provision was inapplicable, and there were no benefits that could have been delayed or denied. Peña had no claim as a matter of law. The district court’s determination that Peña’s lawsuit was premature was in error because Peña will never have a claim against American Family under her policy for unpaid UMPD benefits from the accident; Garner’s insurer has not denied coverage, which is the circumstance that would trigger Peña’s UMPD coverage. If Garner is ultimately found liable, Peña will have a claim against American Family under the liability provisions of his policy.

            The judgment was affirmed.

Read More..

2018 COA 56. No. 17CA0098, Peña v. American Family.

Read More..

2018 COA 57. No. 17CA0404, People in Interest of L.M.

Dependency and Neglect—Juvenile Court—Termination of Parent-Child Legal Relationship.  

            The juvenile court found by a preponderance of the evidence that father had sexually abused L.M. and that M.M. was suffering secondary trauma as a result of the abuse. The court adjudicated L.M. and M.M. dependent and neglected. The court granted temporary custody to mother and prohibited father from having any contact with the children during the pendency of the case.

            Father’s treatment plan was predicated on his guilt, but he was later acquitted in the criminal case. The juvenile court could not find that the assault allegations had been established by clear and convincing evidence and further concluded that it could not discount the possibility that no abuse occurred. Even so, the juvenile court terminated father’s parental rights, finding there were no less drastic alternatives because the children continued to experience trauma specific to father, which he did not recognize.

            On appeal, father challenged the finding that there were no less drastic alternatives to terminating his parental rights. When considering termination under CRS § 19-3-604(1)(c), the court must also consider and eliminate less drastic alternatives. The determination of whether there is a less drastic alternative to termination is influenced by a parent’s fitness to care for his or her child. Here, there is no indication in the record that father was offered treatment or a path to becoming a fit parent other than to acknowledge sexual abuse of L.M. It was error to terminate his parental rights.

            Although not raised on appeal, the Court of Appeals also determined that the juvenile court failed to make the required inquiry of father under the Indian Child Welfare Act.

            The judgment was reversed and the case was remanded with instructions that before considering termination of parental rights, the court must adopt an appropriate treatment plan under CRS § 19-3-508(1)(e)(I) that relates to the children’s trauma and is reasonably calculated to render father a fit parent. If the court again considers termination of father’s parental rights, it must confirm whether he knows or has reason to know or believe that the children are Indian children.

Read More..

2018 COA 58. No. 17CA0460. People in the Interest of E.R., a/k/a E.M.

Dependency and Neglect—Admissibility of Evidence under CRE 803(4)—Indian Child Welfare Act.

            The child was born prematurely and spent six weeks in the hospital. The Mesa County Department of Human Services (Department) sought and received emergency custody after the hospital reported that it could not locate his parents to take him home. The Department later filed a petition in dependency and neglect. At a shelter hearing, the court granted the Department’s request to return the child to his parents’ care under the Department’s supervision.

            Three months later the court held an adjudicatory trial. As the sole basis for adjudication, the court found that the child had tested positive for a schedule II controlled substance at birth and that the positive test did not result from mother’s lawful use of prescribed medication. The court relied on testimony from a physician specializing in neonatal care who had cared for the child immediately after his birth.

            On appeal, mother argued that certain test results to which the child’s physician testified were inadmissible hearsay under CRE 803(4). CRE 803(4) creates a hearsay exception for statements that are made for purposes of medical diagnosis or treatment; describe medical history, symptoms, or the inception or cause of symptoms; and are reasonably pertinent to diagnosis or treatment. Here, the testifying physician was qualified, without objection, as an expert in neonatology and pediatrics. He gave comprehensive testimony regarding the child’s symptoms and treatment and mother’s positive toxicology screen for methamphetamine. The physician’s testimony conformed to the requirements of CRE 803(4).

            The Court also rejected mother’s contention that even if the test results were admissible it was error for the trial court to rely on them because they were only admitted as the basis of the expert’s testimony under CRE 703, not as substantive evidence. The trial court admitted the results under both CRE 803(4) and 703 and they were therefore substantive evidence on which the court could rely to conclude that the child had testified positive for a controlled substance at birth.

            Mother also argued that the trial court erred when it determined that the Indian Child Welfare Act (ICWA) does not apply to this proceeding because the child had been returned to mother’s home. The ICWA applies to a child custody proceeding even when, following a shelter hearing, the child is returned to the mother’s home, because the hearing could have resulted in foster care placement. The trial court did not conduct the proper ICWA inquiry.

            The part of the judgment adjudicating the child dependent or neglected was affirmed. The dispositional order was reversed and the case was remanded for the purpose of conducting a proper ICWA inquiry.

Read More..