May 03, 2018
2018 COA 60. No. 14CA1390, People v. Kessler
DUI—Evidence—Possession of a Controlled Substance—Search and Seizure—Search Incident to Arrest—Motor Vehicle—Reasonable Suspicion—Cross-Examination.
Defendant was pulled over by the police for speeding. Upon approaching the car with a flashlight, an officer spotted a half-empty schnapps bottle on the floor behind the passenger’s seat. The officer asked defendant for his license, registration, and proof of insurance multiple times before defendant presented his registration and proof of insurance. Defendant admitted he did not have a valid driver’s license. Because defendant showed signs of intoxication, the officer asked him to step out of the vehicle. Defendant needed to use the car door for support to get out of the car, and he eventually admitted he had drunk from the schnapps bottle. Defendant performed roadside sobriety maneuvers unsatisfactorily, and his breath test registered .154g/210L. Defendant was arrested for DUI and placed in the back of the police car. Two other officers then searched the car for further evidence of alcohol consumption and found a bag of cocaine in the console, inches from where defendant sat. Among other things, defendant was convicted of possession of a controlled substance (cocaine).
On appeal, defendant contended that the evidence was insufficient to convict him of possessing a controlled substance (cocaine). He argued that he was not in exclusive possession of the car on the date in question and denied knowing the cocaine was on the car. The possibility that someone else was in the car earlier that day does not change the fact that defendant was in exclusive possession of the vehicle when it was stopped and searched, making him subject to the inference that he knowingly possessed the cocaine. Further, the location of the cocaine and defendant’s testimony that no one else had interacted with the console support the inference. There was sufficient evidence for the jury to convict him on this charge.
Defendant next contended that the trial court should have suppressed evidence related to the recovery of cocaine from his car because the police lacked sufficient grounds to search the car once they seized the half-empty bottle of schnapps. The police are permitted to search a vehicle incident to a lawful arrest. Here, the officer had probable cause to arrest defendant on a DUI charge, defendant initially denied consuming alcohol, and it was likely the officers would find evidence of alcohol while searching defendant’s vehicle. The officers’ reasonable suspicion that the car contained alcohol did not evaporate once the officers found some alcohol. Therefore, the search that uncovered the cocaine was proper.
Finally, at trial, the amount of alcohol in the schnapps bottle when the officer discovered it was contested: the officer said it was half full, while defendant testified it was two-thirds full. During cross-examination, the prosecution asked defendant if the officer “made up” the amount of schnapps in the bottle. Although the prosecution’s question was improper, it did not cast doubt on the reliability of the conviction. The error was not substantial and did not warrant reversal under the plain error rule.
The judgment of conviction was affirmed.
2018 COA 61. No. 15CA2082, People v. Cali
Theft—Theft by Receiving—Appeal—Statutory Amendment—Collateral Attack—Crim. P. 35(c)(2)(VI)—Postconviction Remedies.
Cali was convicted of theft and theft by receiving, both class 4 felonies, as well as two habitual criminal counts. The trial court sentenced him to 18 years in the custody of the Department of Corrections. Cali directly appealed his convictions, and his theft conviction was vacated. After Cali had filed his notice of appeal in the direct appeal and while the appeal was still pending, the legislature reclassified theft by receiving, as committed by Cali, to a class 6 felony. After his direct appeal became final, Cali timely filed a pro se Crim. P. 35(c) motion asserting, as relevant here, that he was entitled to the benefit of the changed statute. The postconviction court denied Cali’s motion without a hearing.
On appeal, Cali argued that the trial court erred by analyzing his postconviction claim as a request for retroactive application of the statutory amendment. He contended that because the amendment took effect while his direct appeal was pending and before his conviction became final, he is entitled to the benefit of the amendment. The amended statute applied to Cali because before Cali’s conviction became final, the State lost the authority to prosecute him for committing the class 4 felony of theft by receiving. That a different statute classifying theft by receiving as a class 6 felony could then be applied to Cali does not change the fact that the State lost the authority to enforce the statute under which Cali had been convicted. Although Cali did not raise the State’s loss of authority to prosecute him before his conviction became final on appeal, he could collaterally attack his conviction under Crim. P. 35(c)(2)(VI). Cali asserted a timely postconviction claim that entitles him to reversal of his conviction. But the trial court must convict him of the class 6 felony and sentence him accordingly.
The postconviction order was reversed. Cali’s conviction was vacated, and the case was remanded with directions.
2018 COA 62. No. 16CA0192 People v. Madison
Madison stole scores of bottles of expensive wine from multiple liquor stores. He pleaded guilty, and the court sentenced him to a two-year term of probation and ordered restitution. As part of the restitution agreement, Madison was permitted to take possession of the stolen property if he paid restitution to the victims within a contractual period of time. (The liquor stores declined to accept the recovered wine because the storage method could not be confirmed, and thus the wine was not marketable.) Madison and the prosecution also entered into an “Evidence Disposition Agreement.” Defendant did not pay the restitution and, five years later, the sheriff’s office moved for an order authorizing it to destroy the stolen property. The motion was granted by the court.
On appeal, Madison argued that he had an ownership interest in the wine. He contended that the court should have either permitted him to sell the wine or ordered the sheriff’s office to sell it, with any proceeds applied to his restitution obligation. Disposition of the wine was governed by the restitution agreement, which expressly provided for the destruction of the wine if Madison failed to both pay the restitution and pick up the wine within 90 days. Because Madison failed to meet that deadline, the sheriff’s office had the right to dispose of the wine without seeking approval from the court or notifying Madison. Further, the agreement did not give Madison the right to determine the particular disposition of the wine or to demand that any proceeds from the disposition be distributed to the victims and then applied to reduce his restitution balance.
Madison also contended that the agreement gave him an ownership interest in the wine, notwithstanding his failure to satisfy its requirements, based on the Uniform Commercial Code (UCC) and conversion principles. Disposition of the stolen property is governed by the agreement, not by the UCC or conversion principles. Madison had a right to obtain the property only upon satisfaction of conditions precedent, which he failed to satisfy.
The order was affirmed.
2018 COA 64. No. 17CA0435, Bringle Family Trust v. Bd. of Cty
The Bringle Family Trust (Trust) owns two parcels of land in Summit County that are platted lots in the Bills Ranch Subdivision. The “residential parcel” is separated from the “subject parcel” by a road. This road is a public right-of-way maintained by the Bills Ranch Subdivision Association. In early 2016, the Trust petitioned the Board of County Commissioners of Summit County (the County) for an abatement or refund of taxes, arguing that the subject parcel’s property tax assessment classification should be changed from vacant to residential for tax years 2013 to 2015. The County denied the Trust’s petitions. The Board of County Commissioners (Board) upheld this decision.
On appeal, the Trust contended that the Board erroneously denied its petition by misconstruing CRS § 39-1-102(14.4)(a) to conclude that the subject parcel was not contiguous to the residential parcel or “used as a unit in conjunction with the residential improvements located thereon.” The subject parcel must be contiguous to the residential parcel to be classified as residential property for tax purpose. Parcels are contiguous only if they touch. The Trust’s subject and residential parcels are distinct parcels separated by a public road that the Trust does not own. The Trust failed to show that the subject parcel meets the CRS § 39-1-102(14.4)(a) contiguity requirement, and thus the Board correctly declined to reclassify the subject parcel as residential property. Given this determination, the Court of Appeals did not address the Trust’s contention that the subject parcel meets the “used as a unit” requirement.
The Board’s order was affirmed.
2018 COA 66. No. 18CA0018, Curry v. Zag Built LLC —
Construction Defect Action Reform Act—CRCP 4(m)—Service—Notice—Notice of Claim—Statute of Limitations.
Defendants Zag Built LLC and its owner, Zagrzebski, (collectively, Zag Built) built a house for the Currys. Shortly after the Currys moved into the house in July 2013, they noticed signs of damage, such as cracks in the drywall and sagging doors. In late-June 2015, the Currys filed a complaint naming Zag Built (among others) as defendants and citing the applicability of the Construction Defect Action Reform Act’s (the Act) notice of claim process, CRS § 13-20-803.5. After filing a status report and two updates, the Currys filed an amended complaint in mid-May 2016. In early July 2017, Zag Built filed a motion for summary judgment, contending that the trial court should dismiss the case. The trial court denied the motion. Zag Built then filed a C.A.R. 4.2 motion for interlocutory review.
On appeal, Zag Built asserted that pursuant to CRCP 4(m) the trial court erred when it did not dismiss the case when the Currys had not served it within 63 days of the filing of the original complaint. CRCP 4(m) does not require a trial court to dismiss a case if the plaintiff does not serve the defendant within 63 days of when the plaintiff filed a complaint. Instead, applying the plain language of Rule 4(m), if the court is contemplating dismissing the case within that 63-day period, it must provide the plaintiff with (1) notice that it is contemplating dismissing the case, and (2) an opportunity to show good cause why the court should not dismiss the case. If the plaintiff shows good cause, the court must extend the deadline. If the plaintiff does not show good cause, the court has the discretion to dismiss the case without prejudice, or order that the plaintiff serve the defendant within a specified time. Here, the trial court did not give the Currys notice. Further, CRS § 13-20-803.5(9) stayed the case until mid-April 2016. Therefore, the trial court did not err in declining to dismiss the case.
Zag Built also contended that the trial court should have dismissed this case because the Currys did not send it a notice of claim under the Act until after the statute of limitations had run. First, the statute of limitations stops running once a case is commenced by filing a complaint. Here, the Currys filed their complaint in mid-June 2015, before the statute of limitations had expired. Second, the Act’s notice of claim process is not a prerequisite to filing a complaint or commencing an action. If a plaintiff files a complaint before completing the notice-of-claim process, the case is stayed until the plaintiff completes the process. Therefore, the trial court did not err in declining to dismiss the case on this basis.
The order was affirmed and the case was remanded.
May 3, 2018