September 06, 2018
2018 COA 127. No. 14CA2242. People v. Welborne.
Welborne and his mother were charged with setting fire to their rented house and then filing false insurance claims based on the fire damage. Welborne was convicted of first degree arson, criminal mischief, theft, and attempted theft. The Court of Appeals previously rejected his challenges to his convictions based on Reyna-Abarca v. People, 2017 CO 15. After this decision, the Colorado Supreme Court clarified Reyna-Abarca and vacated the Court’s judgment here as to the included offense statute and remanded this case.
On appeal, Welborne contended that criminal mischief is an included offense of first degree arson and, therefore, those convictions must merge under both statutory and double jeopardy dictates. Criminal mischief is included in first degree arson where both offenses are based on the same conduct. Here, when Welborne knowingly burned the rented house without the owner’s consent, he committed both criminal mischief and first degree arson. The failure to merge the convictions was plain error.
The criminal mischief conviction and sentence were vacated. The judgment was affirmed in all other respects. The case was remanded for the trial court to correct the mittimus.
2018 COA 128. No. 15CA0868. People v. Jompp.
Jompp, the victim, and an acquaintance, B.B., were driving around one evening in a stolen car while high on methamphetamine. After they picked up C.P., they later pulled the vehicle over and a fight broke out between Jompp and the victim. Jompp, B.B., and C.P. left the victim unconscious on the ground, and the victim later died of his injuries. Days later, police found Jompp. After the police handcuffed Jompp, he took off running. After a short chase he was caught and taken to jail. A jury convicted Jompp of third degree assault, robbery, and escape. The trial court adjudicated Jompp a habitual criminal and sentenced him to 48 years in prison.
On appeal, Jompp contended that the court violated his speedy trial rights by continuing his jury trial, over his objection, beyond six months after he pleaded not guilty and 13 months after he was arrested. Here, the trial court acted within its discretion by relying on the prosecution’s offer of proof that they were diligently trying to find B.B. to secure her testimony at trial and by finding that there was a reasonable possibility that B.B. would be available to testify. Therefore, there was sufficient record evidence to support the court’s granting of the prosecution’s request for a continuance. Further, the trial court didn’t plainly err because Jompp’s constitutional right to a speedy trial wasn’t obviously violated.
Jompp also contended that the prosecution presented insufficient evidence that he committed robbery, as either a principal or accomplice. Here, after Jompp attacked the victim, B.B. said she then saw C.P. get out of the car, go over to the victim, and start digging through his pockets. C.P. admitted that she went through the victim’s pockets to get money at Jompp’s direction and she gave him the money she found. Further, the Court of Appeals rejected Jompp’s argument that the prosecution had to show that the force he used against the victim was calculated to take the victim’s money. The record contained sufficient evidence to support the jury’s conclusion beyond a reasonable doubt that Jompp robbed the victim.
Jompp next contended that the court erred by failing to instruct the jury that it could convict him of the lesser nonincluded offense of resisting arrest. Here, the undisputed record evidence showed that Jompp was in custody. He had already submitted to the police officer’s instructions, was handcuffed, searched, and led by the arm to a patrol car for transport to jail before he ran from the officer. Therefore, the court didn’t abuse its discretion by declining to instruct the jury on the crime of resisting arrest.
Finally, Jompp contended that the court convicted him in violation of his Sixth Amendment right to a jury trial when, at sentencing, it, not the jury, found that he had prior convictions and increased his sentence under the habitual criminal sentencing statute. Jompp failed to preserve this issue at trial, and the prior conviction exception remains well-settled law, so the trial court did not err.
Finally, Jompp contended that his sentence is illegal because his noncustodial escape conviction can’t be deemed a current offense under the habitual criminal statute. The Court held that CRS § 18-1.3-801(5) (2013) precluded a noncustodial escape conviction from being used as a current conviction for adjudicating a defendant a habitual criminal under subsection (2) of that section. Therefore, the trial court erred in adjudicating Jompp a habitual criminal on his noncustodial escape conviction.
The judgment of conviction was affirmed. The part of the sentence based on Jompp’s escape conviction was vacated and the case was remanded for resentencing on that conviction. The remainder of the sentence was affirmed.
2018 COA 129. No. 16CA1298. People v. Ramirez.
Ramirez was the victim’s foster father. When the victim was 4 years old, Ramirez ordered her and her sister to approach him. He placed their hands in front of him, pulled down his pants and underwear, and masturbated. Ramirez ejaculated into their hands and made them drink the semen. A jury convicted Ramirez of sexual assault on a child (SAOC), sexual assault on a child by one in a position of trust (SAOC-POT), and indecent exposure.
On appeal, Ramirez contended that there was insufficient evidence to support the charges of SAOC and SAOC-POT. To prove the crimes of SAOC and SAOC-POT the prosecution must prove, beyond a reasonable doubt, that “for the purposes of sexual arousal, gratification, or abuse” the defendant knowingly touched the victim’s intimate parts or the victim touched the defendant’s intimate parts. Semen is not an “intimate part” within the meaning of CRS § 18-3-401(2). Here, the victim testified that Ramirez never touched any of her “private parts” and that she never touched his “private parts.” The evidence was insufficient to prove beyond a reasonable doubt that Ramirez committed SAOC or SAOC-POT.
The SAOC and SAOC-POT convictions were vacated and the case was remanded for the trial court to dismiss those charges with prejudice. The convictions for indecent exposure were affirmed.
2018 COA 130. No. 16CA1884. People v. Gwinn.
Gwinn rear-ended another car while driving home from work and was arrested for driving while under the influence of alcohol (DUI). Gwinn admitted drinking four beers before the accident occurred. After a jury convicted Gwinn of DUI and careless driving, the trial court, in a separate proceeding, found that Gwinn had three prior DUI convictions, adjudicated him a felony DUI offender, and sentenced him to 30 months of probation, two years of work release, and 90 days in the county jail.
On appeal, Gwinn first contended that the trial court’s refusal to allow the testimony of eight current and former Colorado Department of Public Health and Environment (CDPHE) employees deprived him of his constitutional right to present a defense. Gwinn sought to introduce this testimony to show that the Intoxilyzer 9000 breath test machine did not produce accurate results. The trial court did not err when it granted CDPHE’s motion to quash the witness subpoenas, finding that the testimony was irrelevant to Gwinn’s refusal because it failed to establish Gwinn’s knowledge of the Intoxilyzer 9000’s alleged deficiencies at the time he refused to submit to chemical testing. Because the accuracy of the breath test machine was not relevant, Gwinn was not deprived of the right to present a defense.
Gwinn next contended that the trial court erroneously permitted the prosecutor to lead a friendly witness, Officer Perez, “under the guise of impeachment” where no impeachment occurred. Because Officer Perez’s direct testimony that Gwinn’s speech “sounded normal” was contradicted by his previous statement in the sobriety examination report that Gwinn’s speech was “mumbled,” no error occurred when the trial court allowed impeachment with leading questions about a prior statement.
Gwinn next argued that the trial court erroneously admitted People’s Exhibit 1, an express consent affidavit and notice of revocation form, under CRE 403. Officer Perez testified that he reviewed the express consent affidavit with Gwinn, which made the affidavit relevant to Gwinn’s knowledge of the consequences of his refusal to take a chemical test. Here, the trial court properly admitted the exhibit under CRE 803(6).
Gwinn also contended that the trial court erroneously rejected a tendered instruction informing the jury that law enforcement may obtain a search warrant to compel a defendant to submit to a blood test and instructing the jury that it was permitted to draw an inference from an officer’s failure to employ this procedure that the officer did not believe there was evidence to support a search warrant. However, the officer was not required to obtain a search warrant, and the officer testified that he does not usually do so in DUI cases. Therefore, there was no error.
Gwinn last contended that his prior DUI convictions trial, conducted by the trial court, violated his federal constitutional right to a jury trial. The General Assembly intended prior DUI convictions to constitute a sentence enhancer rather than an element of DUI. A defendant is not entitled to have a jury determine the existence of the prior DUI convictions used to enhance his sentence from a misdemeanor to a felony. Further, the prosecution’s burden of proving prior convictions is by a preponderance of the evidence not, as Gwinn argued, beyond a reasonable doubt.
The judgment was affirmed.
2018 COA 132. No. 17CA1109. Hansen v. Barron’s Oilfield Services, Inc.
Wife died in an automobile collision with Hierro, an employee of Barron’s Oilfield Services, Inc. (Barron’s). At the time of her death, Wife was married to Husband and had no children. A law firm filed a wrongful death action on Husband’s behalf, naming Barron’s and Hierro as defendants. However, apparently unbeknownst to the attorneys, Husband had died of natural causes before the complaint was filed. Upon learning of Husband’s death, the law firm filed an amended complaint substituting Hansen, Wife’s father (Parent), as the plaintiff. Barron’s moved to dismiss under CRCP 12(b)(5) arguing that Parent lacked standing under the Colorado Wrongful Death Act (WDA). The trial court granted the motion.
On appeal, Parent argued that the district court erred in dismissing his wrongful death action because it interpreted the WDA too strictly. He further argued that fairness and public policy dictate that he should be allowed to file a wrongful death action for the death of Wife under the circumstances here. Parents of an adult deceased have the right to bring a wrongful death action only if the decedent is unmarried and without descendants. Under CRS § 13-21-201(1)(c)(I), the relevant time for determining if an adult deceased is “unmarried” is the decedent’s date of death. Here, it was undisputed that when Wife died, she was married to Husband, and Husband survived her.
The Court of Appeals also granted Barron’s request for attorney fees.
The judgment was affirmed and the case was remanded with directions for a determination of the appropriate amount of attorney fees incurred on appeal.
2018 COA 133. No. 17CA1200. Bailey v. State Farm Mutual Automobile Insurance Co.
Plaintiff was in a car accident and sued the other driver for negligence and State Farm Mutual Automobile Insurance Co. for underinsured motorist (UIM) benefits. Plaintiff’s policy covered him up to $100,000 for damages caused by underinsured motorists. The other driver’s insurance company covered him for $100,000 in damages and also agreed to pay the full extent of a jury’s verdict. At trial, State Farm presented evidence that plaintiff had not cooperated with claims adjusters and had committed fraud, and therefore plaintiff voided the insurance contract and he was not entitled to UIM benefits.
The jury rejected State Farm’s affirmative defenses of fraud and failure to cooperate and awarded plaintiff $300,000 in damages. State Farm moved for entry of judgment based on a letter from the other driver’s insurance company that effectively provided unlimited liability insurance coverage for him. State Farm argued that because there was no difference between the coverage limit and the amount of damages, plaintiff was not entitled to UIM benefits. The other driver did not object. The trial court granted the motion and the other driver’s insurance company paid the entire judgment.
On appeal, plaintiff argued that it was error to grant State Farm’s motion for entry of judgment. Plaintiff contended that the trial court should not have considered the merits of State Farm’s motion because the motion raised an affirmative defense that State Farm waived by not presenting before trial. An affirmative defense must be in the nature of a confession and avoidance. Here, State Farm did not contend that it owed UIM benefits but could avoid its obligation to pay them for some other reason; rather, the motion asserted that it did not owe benefits at all. State Farm’s motion did not raise an affirmative defense. The motion was properly made and the trial court did not err by entertaining it.
Plaintiff also contended that under the plain language of CRS § 10-4-609, State Farm is required to provide him with the full amount of UIM benefits. Plaintiff argued that even though he recovered the full amount of the jury’s verdict from the other driver’s insurer, he should still be allowed to recover an additional $100,000 in UIM benefits. UIM benefits are intended to cover the difference between the negligent driver’s liability limits and the damages. The plain language of the statute does not allow a plaintiff to recover UIM benefits in excess of the total amount of actual damages. Further, the statute does not prevent an insurer from effectively increasing a driver’s liability coverage by offering to pay any damages awarded at trial. Here, there is no difference between the amount of damages and the amount of coverage, so UIM benefits are not triggered.
The Court of Appeals also found no statutory support for plaintiff’s arguments that (1) the letter from the other driver’s insurance company does not meet the requirements of a complying policy, and so it is not legal liability coverage; and (2) the determination of whether a driver is underinsured is made at the time of the accident.
The judgment was affirmed.
2018 COA 134. No. 17CA1616. Bill Barrett Corp. v. Lembke.
In 2009, the Sand Hills Metropolitan District (Sand Hills) included the 70 Ranch within its boundaries and began assessing ad valorem taxes on the oil and gas extracted from the mineral estate. Plaintiffs Bill Barrett Corporation and Bonanza Creek Energy, Inc., and intervenor Noble Energy, Inc. (lessees), challenged these taxes and obtained summary judgment in Weld County District Court. Both sides appealed. In that appeal, the division agreed with the district court that when Sand Hills included the 70 Ranch it was a material departure from its 2004 service plan, which required approval from the Weld County Board of County Commissioners. Because that approval had not been obtained, the division held that Sand Hills lacked taxing authority after 2009.
Following entry of the summary judgment and before the Sand Hills appeal was filed, Lembke and 70 Ranch, LLC (the LLC) (collectively, defendants) petitioned South Beebe Draw Metropolitan District (South Beebe) to include the 70 Ranch. Defendants owned the surface estate where all of lessees’ well heads are located. Lessees were not notified of this action. South Beebe resolved to include the 70 Ranch, and the Adams County District Court approved the inclusion. Lessees filed a motion for a preliminary injunction to prevent South Beebe from taxing oil and gas that lessees produce from the mineral estate underlying the 70 Ranch. The trial court denied the motion and entered summary judgment that under CRS § 32-1-401, the severed mineral estate underlying the 70 Ranch could not be included within South Beebe because all the owners and lessees of that estate did not petition for and consent to inclusion. Lessees obtained a temporary restraining order in the Weld County District Court that prohibited the Weld County Treasurer, who had collected the disputed taxes, from disbursing the monies to South Beebe. Venue was transferred to Adams County and, following an evidentiary hearing on lessees’ motion for a preliminary injunction, the court found lessees had not shown a reasonable probability of success on the merits and denied the motion. Later, the court entered a final judgment against lessees on their CRS § 32-1-401 claim. Lessees appealed and asked that the status quo be preserved by enjoining the treasurer from disbursing taxes collected to South Beebe. A motions division granted the request.
On appeal, lessees argued that without their consent and that of the other mineral estate owners, the 70 Ranch, or at least the underlying mineral estate, could not have been included within South Beebe. South Beebe responded that because the mineral and surface estates were severed, only the surface owners needed to petition for and consent to inclusion, and all of them did. The Court of Appeals first held that mineral estate owners are “fee owners,” but lessees are not. Next, because the parties agreed and the record supports that not all of the mineral estate owners consented to the 70 Ranch’s inclusion, the Court considered whether South Beebe’s services can benefit the mineral estate. Because lessees did not argue that the mineral estate owners would benefit from the inclusion, the Court concluded that lack of consent by all mineral estate owners did not preclude South Beebe from taxing lessees. Consequently, the Court affirmed the trial court’s entry of summary judgment as to lessee’s CRS § 32-1-401(1)(a) claim.
Lessees also challenged the trial court’s ruling that lessees had not shown a reasonable probability of successfully establishing that South Beebe had violated CRS § 32-1-207(2)(a) by failing to obtain Board of County Commissioners (BOCC) approval for a material change in its service plan, because it had obtained approval from the planning commission. However, the Court found that the actions of the planning commission and other officials did not satisfy the requirement that South Beebe had to obtain BOCC approval for a material modification of its service plan. Therefore, lessees have a reasonable probability of success in establishing that South Beebe did not obtain the requisite BOCC approval. Further, the trial court dissolved the temporary restraining order and denied a preliminary injunction on this ground alone, without considering the other factors set forth in Rathke v. MacFarlane, 648 P.2d 648, 651 (Colo. 1982).
Lessees also argued that it was error to conclude that South Beebe’s inclusion of the 70 Ranch was not a material modification. Boundary changes alone are presumptively not material modifications, and the Court found that inclusion of the 70 Ranch was just a boundary change. Thus, the trial court acted within its discretion in ruling that lessees had not shown a reasonable probability of success in challenging inclusion of the 70 Ranch as an unapproved material modification.
Finally, lessees argued that under CRS § 32-1-107(2), South Beebe could not levy and collect taxes to support services if those services are already being provided by another special district (in this case, Sand Hills). The Court agreed with the trial court that the statute prohibits overlapping services, not merely overlapping territory. Here, no party asked the court to resolve the factual question of overlapping services, thus the question of whether the services were overlapping was not properly before the Court.
The summary judgment on lessees’ CRS § 32-1-401(1)(a) claim was affirmed. The order denying lessees’ motion for a preliminary injunction was vacated. The case was remanded for the trial court to make findings on the remaining Rathke factors and reconsider whether to enter a preliminary injunction. The temporary injunction will remain in effect until the trial court enters its renewed ruling on the motion for preliminary injunction.
2018 COA 136. No. 18CA0499. Cummings v. Arapahoe County Sheriff’s Department.
Cummings was a deputy sheriff in Arapahoe County. The Sheriff terminated Cummings’ employment, asserting that he violated the Sheriff’s employee manual (the Manual) and was dishonest during the investigation of the original charges against him. Cummings exhausted his remedies within the Sheriff’s department and sued for (1) wrongful discharge in violation of public policy, and (2) breach of an implied contract of employment, based on the policies in the Manual. The Sheriff moved to dismiss the wrongful termination claim based on governmental immunity, and the district court dismissed the claim with prejudice. The district court denied the Sheriff’s motion to dismiss the implied contract claim, and the Sheriff moved for summary judgment. The district court denied the motion for summary judgment, holding that there was an implied contract of employment and disputed issues of material fact existed. The Sheriff brought an interlocutory appeal under C.A.R. 42 challenging the denial of summary judgment.
On appeal, the Sheriff contended that the trial court erred in denying his motion for summary judgment. He argued that the at-will employment concept in CRS § 30-10-506 requires the court to hold that all policies promulgated by a sheriff relating to termination of deputy sheriffs’ employment are only precatory, and to conclude otherwise would mean that the sheriff lacks the power to terminate at-will employees. CRS § 30-10-506 requires a sheriff to promulgate written employment policies, and the sheriff must give deputies the rights of notice and opportunity to be heard. A sheriff’s other employment policies may be, but are not required to be, binding. If the sheriff elects to confer binding employment rights on his deputies, those rights are enforceable according to their terms.
The Sheriff next argued that even if CRS § 30-10-506 allows sheriffs to promulgate binding personnel policies, the disclaimers in the Manual and the yearly disclaimers that Cummings signed preclude, as a matter of law, the formation of an implied contract of employment. Except with respect to the rights expressly granted to deputy sheriffs by statute, these clear and conspicuous disclaimers preclude, as a matter of law, Cummings’ implied contract claims. But here, material facts are disputed on whether Cummings received the required notice of the charges that led to his dismissal.
The part of the summary judgment order permitting Cummings to pursue an implied contract claim based on rights conferred in the Manual that effectuate the due process rights granted by CRS § 30-10-506 was affirmed. In all other respects, the summary judgment order was reversed and the case was remanded.