Colorado Court of Appeals Opinions

August 09, 2018

2018 COA 110. No. 13CA1604. People v. Monroe.

Monroe boarded a city bus and sat down next to Faulkenberry. The two almost immediately began to argue. Eight to 10 minutes after the dispute began, Monroe stabbed Faulkenberry in the neck. At trial, Monroe did not testify, but her counsel asserted that Monroe had been acting in self-defense. During closing and rebuttal arguments, the prosecution made several references to Monroe’s ability to retreat from the situation. Defense counsel’s objections to these statements were overruled. The jury was formally instructed regarding the duty to retreat. Monroe was convicted of attempted first degree murder and first degree assault. The trial court adjudicated her a habitual criminal and sentenced her to concurrent prison terms of 96 years on the attempted murder count and 48 years on the assault count.

On appeal, Monroe argued that the trial court committed reversible error when it permitted the prosecution to argue that the jury should consider Monroe’s failure to retreat when deciding whether she had acted in self-defense. A person who reasonably perceives an imminent use of unlawful physical force by another may use force in defending himself or herself without first retreating and does not have to consider whether a reasonable person in the situation would choose to retreat rather than to resort to physical force in defense. Here, the prosecution raised the issue of the availability of retreat five times during its closing and rebuttal arguments, and the prosecution’s argument inappropriately imposed a duty to retreat. The trial court permitted the jury to believe that it could consider whether a reasonable person would have retreated, in direct contravention of its instruction that no such duty exists. Thus, the trial court abused its discretion. Further, although the court and the prosecutors themselves repeatedly stated that Monroe had no duty to retreat, there was a reasonable probability that the jury was misled and that the misleading arguments contributed to the verdict, so the error was not harmless.

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

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2018 COA 111. No. 14CA0478. People v. Halaseh.

Defendant assisted his father in setting up a joint bank account for depositing his father’s Supplemental Security Income (SSI) checks from the Social Security Administration (SSA). A month later, defendant’s father left the United States to live in Jordan and never returned. Though the SSI application and award notice informed defendant’s father that he had to report to the SSA if he left the United States for more than 30 days, he never reported. From January 2008 to January 2011, the SSA deposited checks monthly into the joint account, and defendant withdrew the funds to pay for household expenses. When the SSA realized that defendant’s father had been outside the country for years, defendant confessed to SSA’s agents that it was wrong for him to take the funds. Defendant received a letter from the SSA informing him that $24,494 had been overpaid to his father. Defendant was convicted of a single count of theft of $20,000 or more from the SSA.

On appeal, defendant contended that the prosecution failed to present sufficient evidence to prove beyond a reasonable doubt that he committed theft. Here, the prosecution presented sufficient evidence for a reasonable juror to find beyond a reasonable doubt that defendant committed theft from the SSA, including evidence that defendant helped his father apply for SSA benefits, set up a joint account with his father, and admissions that he knew retaining the funds after his father left for Jordan was wrong.

Defendant also argued that the court failed to properly instruct the jury (1) on the definition of the word “another” in the theft statute, and (2) on its requirement to find that the “aggregate value” exceeded $20,000 within one of the prescribed units of prosecution. There is no statutory requirement to define “another,” and the SSA’s possessory or proprietary interest in the funds was not a disputed issue in this case. Although the trial court plainly erred when it instructed the jury that it could find defendant guilty of stealing $20,000 or more, the error was harmless because a proper jury instruction would not have changed the jury’s findings.

Defendant also contended that the prosecution failed to prove that he took $20,000 or more within any prescribed unit of prosecution permitted under the theft statutes in effect on the offense dates. The People conceded and the Court of Appeals concluded that the trial court erred by entering judgment for a class 3 felony theft on the jury’s verdict.

The judgment of conviction for one class 3 felony theft count was vacated and the case was remanded to the trial court to enter judgment of conviction for four class 4 felony theft counts and to resentence defendant accordingly.

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2018 COA 112. No. 15CA1365. People v. Jones.

Late one night Jones opened the unlocked door of an apartment located in a large, gated apartment complex. He turned on the hall light and walked into one of the bedrooms. The apartment was occupied by two brothers and their two cousins (the homeowners). Jones and the homeowners had never met each other. Jones and the occupants fought until Jones was finally subdued. At trial, Jones argued that he had entered the apartment by mistake, and when the homeowners used force against him, he justifiably defended himself using the knife he carried for protection. A jury convicted Jones of one count of second degree assault and one count of third degree assault.

On appeal, Jones contended that the trial court erred in instructing the jury that the make-my-day statute is triggered upon any unlawful entry into a dwelling, rather than upon a “knowingly” unlawful entry, and as a result the erroneous make-my-day instruction negated his otherwise valid claim of self-defense. When the make-my-day statute applies it operates as a bar to a trespasser’s claim of self-defense, so if it applied here, Jones would not be justified in using physical force against the homeowners. An instruction clarifying the meaning of “unlawful entry” is necessary where the evidence supports a theory that the defendant accidentally entered the dwelling or otherwise entered without the requisite mental state. Here, the court erred in failing to instruct the jury that the make-my-day statute’s unlawful entry element requires that the unlawful entry be made knowingly. Additionally, the instructional error was not harmless. The evidence supported Jones’s theory that he entered the apartment accidentally under the mistaken belief that he was entering the apartment of his cousin, who lived in the complex. Therefore, the language of the make-my-day instruction improperly abridged Jones’s claim of self-defense and created a reasonable probability that the jury could have been misled in reaching a verdict.

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

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2018 COA 113. No. 15CA1713. People v. Davis.

When Davis was 17 years old, he and McGrath robbed the victim, McGrath’s former coworker. The victim was transporting money to a bank from the restaurant at which he and McGrath had worked. In the course of the robbery, the victim was shot and killed. Davis was convicted of first degree murder after deliberation, felony murder, aggravated robbery, aggravated motor vehicle theft, conspiracy to commit first degree murder, and conspiracy to commit aggravated robbery. As required by statute, the trial court sentenced him to life in the custody of the Department of Corrections with the possibility of parole after 40 years (LWPP-40) on the murder after deliberation count. Additionally, the trial court imposed a consecutive sentence of eight years and one day on the aggravated robbery count. The sentences imposed for the remaining counts were ordered to run concurrently with the sentences to life plus eight years and a day. The felony murder conviction was merged with the conviction for murder after deliberation. Davis filed two Crim. P. 35(c) motions, which the district court denied in a series of orders.

On appeal, Davis contended that the trial court violated his constitutional rights when it denied his motion to suppress statements he made during police interrogation, arguing that the Denver detective violated his right to counsel by continuing an interrogation after he asked for an attorney. Davis’ statements were admissible because although Davis had previously asked for an attorney, he had voluntarily reinitiated the interrogation by asking the Denver detective whether McGrath had been arrested. Even assuming that the trial court erred in denying the motion, any error was harmless beyond a reasonable doubt in light of the relative insignificance of the statements to the People’s case and the substantial evidence of guilt.

Davis also argued that reversal is required because he never executed an on-the-record waiver of his right to testify. Where the trial court’s on-the-record advisement includes the five essential elements set forth in People v. Curtis, 681 P.2d 504, 514 (Colo. 1984), as occurred here, the record conclusively demonstrates that defendant made a valid waiver of the right to testify. Further, Davis did not present any evidence to show that despite the Curtis advisement, his waiver was nonetheless invalid. Thus, the district court did not err in concluding that Davis knowingly, voluntarily, and intelligently waived his right to testify.

Davis next contended that his sentence of LWPP-40 together with a sentence of eight years plus one day is unconstitutional. LWPP-40 is a constitutional sentence, and the trial court did not abuse its discretion in sentencing Davis to eight years and one day to run consecutively to his LWPP-40 sentence. Further, Colorado’s parole system provides juveniles sentenced to LWPP-40 a meaningful and realistic opportunity for release based on demonstrated maturity and rehabilitation.

The orders were affirmed.

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2018 COA 114. No. 15CA2008. People v. McGlaughlin.

McGlaughlin pleaded guilty to third degree assault and violation of a protection order. He was represented by a law student extern practicing under CRCP 205.7. Thereafter, McGlaughlin moved to vacate his plea and the resulting convictions claiming that he was deprived of his Sixth Amendment right to effective assistance of counsel when he was represented only by a law student, not a licensed lawyer, at his plea hearing. The postconviction court denied McGlaughlin’s Crim. P. 35(c) motion without a hearing, concluding that the record disproved McLaughlin’s claim.

On appeal, McGlaughlin argued that his plea was constitutionally invalid under the Sixth Amendment because he was not represented by a licensed lawyer at a critical stage of his criminal case. When a criminal defendant is represented by a student attorney under CRCP 205.7, a supervising attorney must be physically present in the courtroom during all critical stages of the criminal case. If the supervising attorney is not present during a critical stage, the defendant is denied his Sixth Amendment right to counsel. The record here did not clearly establish that the supervising attorney was present during defendant’s plea hearing.

The order was reversed and the case was remanded to the postconviction court for an evidentiary hearing and further findings.

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2018 COA 115. No. 16CA0875. People v. Joosten.

After Joosten and his girlfriend broke up, Joosten moved out of their shared apartment, but continued to frequently spend the night there and keep some of his belongings there.  Joosten subsequently returned to the apartment and kicked down the door, which hit the girlfriend’s new roommate in the face. After the girlfriend escaped, Joosten went back into his girlfriend’s room, where he cut up her driver’s license and bank card and cut the cords of her hair dryer and curling iron. The trial court denied Joosten’s tendered theory of the case instruction regarding the burglary charge. A jury convicted Joosten of second degree burglary, first degree criminal trespass, one count of third degree assault, and two counts of class 3 misdemeanor criminal mischief.

On appeal, Joosten first contended that the evidence was insufficient to convict him of second degree burglary because the prosecution failed to prove that he (1) relinquished his possessory interest in the apartment; (2) knew his invitation to enter the apartment was revoked; and (3) knew his entry was unlawful. Here, there was sufficient evidence to support Joosten’s burglary conviction, including the fact that he always knocked before entering, did not have a key to the apartment, and kicked down the door on the occasion in question.

Joosten also argued that the court erred in rejecting his theory of the case instruction. A criminal defendant is entitled to a theory of the case instruction. None of the exceptions to that rule were applicable in this case. The trial court erred when it refused Joosten’s tendered instruction and failed to work with Joosten’s counsel to craft a permissible instruction. But the error was harmless given the evidence regarding the manner of Joosten’s entry into the apartment.

Lastly, Joosten contended and the Attorney General conceded that the mittimus incorrectly reflects that the jury convicted him of two counts of class 2 misdemeanor criminal mischief. The Court of Appeals agreed that the mittimus is incorrect.

The judgment of conviction was affirmed. The case was remanded for correction of the mittimus.

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2018 COA 116. No. 16CA1951. In re the Marriage of Morgan.

In this dissolution of marriage proceeding, mother notified the magistrate well before the permanent orders hearing that she wished to move with the children to California. She sought orders that would name her the children’s primary residential parent and decision-maker. Dr. Albert was appointed as an expert to conduct a parental responsibilities evaluation (PRE). He recommended that the children be allowed to relocate to California with mother and that she should have sole decision-making responsibility. At father’s request, the magistrate appointed Lieberman to perform a supplemental PRE. Lieberman recommended that the children remain in Colorado with father with shared decision-making responsibilities with mother. After a two-day evidentiary hearing, the magistrate ordered the children to remain in Colorado, finding that their best interests would be served if the parents exercised equal parenting time with mutual decision-making responsibilities.

On appeal, mother contended that the magistrate erred by entering a parenting time order requiring her to remain in Colorado. When, as here, a parent indicates before permanent orders that she intends to move, a district court has no statutory authority to order her to live in a specific location. Mother’s admission that she would not “abandon” her children and move without them did not relieve the magistrate of his obligation to make the difficult decision to allocate parenting time with mother in California and father in Colorado.

Mother also contended that the magistrate erred in ordering mutual decision-making responsibilities over her objection and in the absence of credible evidence that the parents could work together. However, the magistrate reviewed the evidence and did not abuse his discretion in finding that the parties could make joint decisions and in ordering joint decision making.

The part of the judgment allocating parenting time was reversed and the case was remanded with directions. The judgment was otherwise affirmed.

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2018 COA 117. No. 17CA1211. In re the Marriage of Williams and Tibbetts.

In this post-dissolution of marriage action father moved to have the parenting plan terminated to allow the parties’ 16–year-old child to determine her own parenting time schedule.  A district court magistrate denied father’s request, and while the appeal was pending, the child turned 18 years of age. On father’s petition for review to the district court, the court adopted the order.

Father filed his opening brief the day before the child turned 18. Mother moved to dismiss the appeal, contending that because the child is now an adult, the parenting time issues father raises on appeal cannot be resolved. Once the parties’ child turned 18, she attained the right to make her own decisions, including whether to visit her parents, rendering the issues father raises on appeal moot.

The appeal was dismissed.

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2018 COA 118. Nos. 18CA0664 & 18CA0665. People v. Soto-Campos and People v. Flores-Rosales.

The prosecution filed a grand jury indictment against several defendants, including Soto-Campos and Flores-Rosales, for their alleged involvement in a heroin distribution enterprise. Defendants’ attorneys filed motions requesting that the district court conduct a probable cause review under CRS § 16-5-204(4)(k) for count sixty-one, Special Offender,Within 1000 Feet of a School. After review, the court dismissed that count. The prosecution then asked the court to reconsider, arguing that defendants were not entitled to probable cause review of the sixty-first count because it was a sentence enhancer, not a substantive offense. The district court denied the motions.

On appeal, the People contended that the district court erred in conducting the probable cause review because, considering legal principles governing preliminary hearings, the sixty-first count is a “stand-alone” sentence enhancer, and thus not subject to review under CRS § 16-5-204(4)(k). CRS § 16-5-204(4)(k) is not limited to substantive offenses, but instead broadly requires a district court to dismiss “any indictment” based on a probable cause finding that lacks record support. Therefore, the district court properly reviewed the sixty-first count under CRS § 16-5-204(4)(k) and did not abuse its discretion in dismissing this count for lack of record support.

The orders were affirmed.

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