Criminal Law—Evidence—Authentication—Voicemail Recording—Photographs.

Gonzales grew up down the street from the victim. He was sexually attracted to the victim from a young age. Gonzales eventually moved away from the neighborhood. Years later, Gonzales broke into the victim’s house and waited a substantial time for the victim to return. When the victim returned, Gonzales repeatedly stabbed him in the neck, killing him. Gonzales then sexually assaulted the victim’s dead body and attempted, unsuccessfully, to set the house on fire to destroy the evidence. Gonzales fled the scene with a credit card, a debit card, and cash that he had taken from the victim’s wallet. Gonzales was charged and convicted of first degree murder with intent and after deliberation, first degree felony murder, abuse of a corpse, stalking, arson, burglary, and aggravated robbery.

On appeal, Gonzales argued that the trial court erred in admitting a tape recording of a voicemail that he allegedly left for the victim because the prosecution did not properly authenticate the recording of the voicemail. Here, the victim’s sister found the recording in his house after the premises were released to her by the police. A police officer who interrogated Gonzales at length testified that Gonzales’s voice was heard on the voicemail. Gonzales did not claim that the recording was falsified or manipulated. These uncontested facts supported a CRE 901 finding that the voicemail was what the prosecutor purported it to be, a voicemail left by Gonzales for the victim. Accordingly, the trial court did not abuse its discretion in admitting the voicemail.

Gonzales also argued that the trial court abused its discretion in admitting a photograph showing Gonzales’s tattoos because it was both irrelevant and highly prejudicial. The tattoo on one arm says “CHUBBY” and the tattoo on the other says “CHASER.” Gonzales admitted both that he was he was attracted to larger men and that he killed a person who fit that physical description. On these facts, the jury was entitled to consider the probative value of the tattoos.

The judgment was affirmed.

Criminal Law—Judge—Recusal—Personal Knowledge—Extrajudicial Source Doctrine— Colorado Code of Judicial Conduct Rule 2.11(A)(1)—Appearance of Impropriety—Disqualification.

Roehrs was an interested party in a dependency and neglect hearing at which Judge Cisneros presided. At the hearing, Sergeant Couch testified concerning Roehrs’s presence at the scene of an investigation that he was conducting. During Sergeant Couch’s testimony, Roehrs stood up, walked toward the witness stand, and said, “You’re a liar. I am going to have your job.” Judge Cisneros asked Roehrs to leave the courtroom, which Roehrs did. After Sergeant Couch’s testimony, Roehrs threatened him in the courtroom hallway. Judge Cisneros later called Sergeant Couch and the attorneys into her chambers to discuss what had happened outside the courtroom.

The People charged Roehrs with retaliation against a witness, harassment, and intimidating a witness. Before trial, Roehrs’s counsel moved to recuse Judge Cisneros. Judge Cisneros denied the motion, ruling that Roehrs failed to prove bias or personal knowledge of the disputed facts. Judge Cisneros presided over Roehrs’s criminal trial. Roehrs contested a number of factual issues. A jury found Roehrs guilty of retaliation against a witness and harassment.

On appeal, Roehrs contended that the trial court erred in denying her motion to recuse because she had personal knowledge of disputed facts and was a material witness to Roehrs’s conduct; thus, there was an appearance of bias or prejudice. Judge Cisneros was not a likely material witness. But under Colorado Code of Judicial Conduct Rule 2.11(A)(1), a judge need not be a likely material witness for disqualification to be mandated; all that is required is personal knowledge of the facts that are in dispute. The Court of Appeals examined the scope of the extrajudicial source doctrine and concluded that although knowledge gained in the course of a judge’s courtroom duties does not normally prevent a trial judge from presiding over subsequent, related proceedings, when a trial judge witnesses all or part of a crime in the courtroom, she has personal knowledge of facts that are in dispute within the meaning of Rule 2.11(A)(1). Here, the judge witnessed part of the crime and thus had personal knowledge of disputed facts. Accordingly, Roehrs’s motion was sufficient to raise an appearance of bias or prejudice and Judge Cisneros’s continued participation in the trial was improper.

The judgment of conviction was reversed and the case was remanded with directions to grant appellant a new trial before a different judge.

Criminal Law—Photo Lineup—Sixth Amendment—Motion to Continue—Sentencing—Habitual Criminal.

Defendant robbed the victim, an Uber driver, at knifepoint in a Denver alleyway. After the jury returned its verdict, the trial court held a hearing to determine whether defendant was a habitual criminal. Based on defendant’s prior convictions for first degree assault (heat of passion) and two prior convictions for distribution of a Schedule II controlled substance, the trial court adjudicated him a habitual criminal and sentenced him to 64 years in prison.

On appeal, defendant argued that the pretrial photo lineup, from which the victim identified him, was impermissibly suggestive. He contended that he was older than the other men in the photo array and there were impermissible differences in the clothing and tattoos depicted. Here, defendant’s photo matched the victim’s description and the filler photos depicted men who generally fit the witness’s description. The number of photos in the array (six) and the details of the photos did not render the lineup impermissibly suggestive.

Defendant also contended that the trial court abused its discretion and violated his Sixth Amendment right to his counsel of choice by denying his motion for a continuance. The trial court considered the appropriate factors in balancing defendant’s right to have counsel of his choosing against the efficient and effective administration of justice. The trial court’s findings were supported by the record, and the court did not abuse its discretion in denying defendant’s motion for a continuance.

Defendant next contended that the trial court abused its discretion by denying his motion for a continuance to allow the People to complete fingerprint testing and that completed testing would have allowed for the production of exculpatory evidence. Here, the fingerprint results were inconclusive and the prosecution did not have possession or control of any exculpatory fingerprint comparison results. Considering the totality of the circumstances, there was no error in the trial court’s ruling on the motion.

Defendant further contended that the trial court erroneously sentenced him under the habitual criminal sentencing statute because two of his three prior felony convictions were permissively joined for trial. Defendant argued that because the two cases charging him with distribution of a Schedule II controlled substance were joined for trial under Crim. P. 13, they would have been tried together had he not entered guilty pleas, so his previous convictions for distribution should be treated as one conviction for habitual criminal purposes. Here, the offenses were joined for trial and would not have been tried separately. The prosecution failed to meet its burden to prove beyond a reasonable doubt that defendant’s predicate felonies were separately brought and would have been separately tried had defendant not entered guilty pleas. The guilty pleas resulted in one conviction for purposes of the habitual criminal sentencing statute and the trial court erred in sentencing defendant under that statute.

The judgment of conviction was affirmed. The case was remanded for the trial court to impose a new sentence and to correct the mittimus.

Administrative Law—Real Estate License—Transaction-Broker—Mandatory Duties—Federal Antitrust Law—Due Process—Sanctions.

Vizzi entered into contracts in 2013 and 2014 with three clients to provide unbundled real estate brokerage services in exchange for a flat fee. In one instance, he contracted only to list the client’s property on the Multiple Listing Services (MLS) list. In two other instances, he contracted only to provide a yard sign, a lock box, and centralized showing services, and to list the properties on the MLS. An anonymous informant notified the Colorado Real Estate Commission (Commission) of Vizzi’s practices and the Commission charged Vizzi with failing to fulfill his statutory duties under CRS § 12-61-807(2). An administrative law judge (ALJ) found that Vizzi was required to provide his clients all of the services listed CRS § 12-61-807(2) and failed to do so in the transactions at issue. The Commission adopted the ALJ’s findings of fact and conclusions of law and modified the discipline imposed on Vizzi to include public censure.

On appeal, Vizzi maintained that he was permitted by statute to contract out of many of the duties imposed on transaction-brokers under CRS § 12-61-807(2) and the contracts in question successfully accomplished that goal. A transaction-broker’s statutory duties are mandatory and cannot be contracted away. Here, the record supports the ALJ’s findings that Vizzi intended not to act as a transaction-broker and manifested that intent by inserting language into the contracts disclaiming the duties of such a broker, and Vizzi violated CRS §§ 12-61-113(1)(k), 12-61-113(1)(n), and 12-61-803(1).

Vizzi also argued that the Commission’s policy prohibiting the provision of limited real estate services violates federal antitrust law. The Commission’s discipline of defendant for failing to perform his statutory duties fell within the Commission’s statutory authority and is properly considered state sovereign action. Therefore, it did not violate federal antitrust laws.

Vizzi next maintained that the ALJ violated his due process rights by denying his motion to compel disclosure of the identity of the anonymous complainant. Vizzi did not show how the complainant’s identity was relevant to his ability to defend against the Commission’s charges. Therefore, the Commission did not err in upholding the ALJ’s denial of Vizzi’s motion to compel disclosure of the anonymous complainant.

Vizzi further contended that the Commission exceeded its statutory authority and thus violated his due process rights when it imposed public censure after the ALJ had imposed only a fine and continuing education. Alternatively, Vizzi argued the decision to impose public censure was arbitrary and capricious. Vizzi violated his statutory duties multiple times after the Commission’s December 2010 position statement put him on notice that the listing contracts he prepared in 2013 and 2014 were improper. And the public censure penalty was sought in the initial charge against Vizzi. Therefore, the Commission acted within its statutory authority by imposing a sanction beyond that imposed by the ALJ, and the Commission’s sanction bore some relation to Vizzi’s misconduct and to the needs of the public.

The order was affirmed.

Criminal Procedure—Restitution—Sentence Imposed in Illegal Manner—Timeliness—Due Process.

Defendant pleaded no contest to third degree assault and was sentenced to probation. As part of the plea agreement, he agreed to pay restitution. At the time of the agreement, the prosecution did not have complete information regarding restitution, so the district court reserved the restitution determination for 90 days. The prosecution moved for an order imposing restitution 100 days later. Defendant filed no response, and the district court granted the motion, stating that the amount was not final because the amount of restitution owed to the victim compensation fund had yet to be determined. The prosecution later moved to amend the restitution amount, reducing the total amount due. Defendant again filed no response, and the district court granted this motion as well. More than three years later, defendant filed a motion to vacate the restitution order, which was denied.

On appeal, defendant claimed that the district court did not address good cause in a timely fashion, thus ignoring essential procedural rights or statutory considerations. Defendant’s claim was a challenge to the manner in which the sentence was imposed rather than a claim that his sentence was not authorized by law. A claim that a sentence was imposed in an illegal manner must be raised within 126 days of the imposition of the sentence. Because defendant filed his motion to vacate the restitution order well beyond the 126-day limit, his motion was time barred.

Defendant also asserted that the district court violated his due process right by making a post hoc finding of good cause in permitting the tardy restitution request and relying on information presented by the prosecution long after the restitution order was entered. This is a challenge to the constitutionality of the restitution component of the sentence. As such, this claim is cognizable under Crim. P. 35(c). However, a Rule 35(c) challenge to a misdemeanor conviction or sentence must be brought within 18 months of the conviction. Because defendant’s motion was filed after this deadline, his due process challenge is also time barred.

The order was affirmed.

Teacher’s License—CRS § 19-3-304(2)(l) Reporting Duties—Constitutionality.

          Several months before the expiration of her teacher’s license, Hoetis submitted a renewal application to the Colorado State Board of Education (the Board). The Board denied her application because while Heotis was employed as a public school teacher, she did not report to authorities that her then-husband had sexually abused their daughter. The Board determined her failure to report the abuse was unethical under Colorado’s Teacher Licensing Act, CRS § 22-60.5-107(4) (the Act). An administrative law judge (ALJ) upheld the Board’s decision, and the district court upheld the Board’s final order.

          On appeal, Heotis argued that the Act violates due process on its face and as applied because the disciplinary options provided to the Board by the Act are too limited as compared to the greater disciplinary flexibility provided to other licensing boards. The Court of Appeals found no authority to support the proposition that the greater flexibility in other licensing statues represents a constitutional minimum. Hoetis failed to establish that the Act is unconstitutional.

          Hoetis also contended that there was insufficient evidence to support the conclusion that she engaged in unethical behavior. She argued that she was not required to report the abuse of her daughter. CRS § 19-3-304(2)(l) required Heotis, as a public school teacher, and thus a mandatory reporter, to immediately report any known or suspected child abuse or neglect. This duty applies irrespective of the circumstances in which the reporter learns of or suspects abuse or neglect. The statute reflects a moral standard in the community for teachers. Substantial evidence in the record supported the Board’s conclusion that Heotis engaged in unethical conduct through her failure to report because it offended the morals of the community.

          Hoetis further argued that she was excused from reporting based on evidence that she suffered from battered woman syndrome. The statute does include an exception for persons suffering from battered woman syndrome. Moreover, there was substantial evidence in the record that Hoetis did not report because she was trying to keep her family together, not because of battered woman syndrome.

          The judgment was affirmed.

Americans with Disabilities Act—Reasonable Accommodations—Termination of Parental Rights—Dependency and Neglect—Rehabilitation Act of 1973.

          The Gunnison County Department of Health and Human Services (Department) received reports that S.K. was failing to thrive. The Department initiated a dependency and neglect case and took custody of S.K.

          The parents stipulated that the child was dependent and neglected because she was without proper care through no fault of their own. The juvenile court adopted treatment plans for the parents and appointed a guardian ad litem for each parent. Ultimately, the Department moved to terminate the legal relationships between S.K. and the parents. Mother and father filed a joint motion requesting (1) a finding that the Department had not made reasonable efforts to reunify them with the child, (2) dismissal of the termination motion, and (3) amendment of the treatment plans to provide reasonable accommodations under the Americans with Disabilities Act (ADA). Following a hearing, the court rejected the parents’ arguments and terminated their parental rights.

          On appeal, the parents challenged the appropriateness of their treatment plans, the efforts the Department made to reunify them with the child, and the extent of reasonable accommodations required under the ADA. An appropriate treatment plan is one that is approved by the court and is reasonably calculated to render the parent fit to provide adequate parenting within a reasonable time and that relates to the child’s needs. When evaluating parental unfitness and the likelihood that a parent’s conduct or condition will change, the court must consider whether reasonable efforts have been unable to rehabilitate the parent. The reasonable efforts standard is met when services are provided in accordance with CRS § 19-3-208, including appropriate assessments and referrals and mental health and substance abuse treatment services, if funding is available. Title II of the ADA prohibits a public entity from discriminating against a qualified individual with disabilities in the provision or operation of public services, programs, or activities. Section 504 of the Rehabilitation Act of 1973 applies the same requirement to entities that receive federal financial assistance. There is an affirmative duty placed on a public entity to make reasonable accommodations for qualified individuals with disabilities.

          Whether a parent is a qualified individual with a disability under the ADA is a case-by-case determination. When a parent in a dependency and neglect proceeding has a disability under the ADA, the Department and the juvenile court must make reasonable accommodations for the parent’s disability in the treatment plan and the rehabilitative services provided. When deciding whether to terminate parental rights, the juvenile court must consider whether reasonable accommodations were made for the parent’s disability in determining whether the parent’s treatment plan was appropriate and reasonable efforts were made to rehabilitate the parent. The juvenile court’s primary concern is the child’s health and safety.

Here, it was undisputed that both parents had serious intellectual and developmental disabilities. Though these were disabilities under the ADA, the ADA does not restrict a court from terminating parental rights when the parent, even after reasonable accommodations, is unable to meet his child’s needs. The juvenile court considered the many services offered to the parents in concluding that the Department provided services that reasonably accommodated the parent’s limitations; the parents’ treatment plans were appropriate; and the Department made reasonable efforts to rehabilitate the parents. These conclusions were supported by the record.

Mother contended that the juvenile court erred in finding that she was an unfit parent and her conduct or condition was unlikely to change in a reasonable time. The record evidence, including the opinions of professional evaluators, did not support this argument. The juvenile court did not err in concluding that mother was an unfit parent and her conduct or condition was unlikely to change in a reasonable time.

Father argued that placing the child with the paternal grandmother was a less drastic alternative to termination. The record showed that a home study resulted in the paternal grandmother being denied placement for the child and otherwise supported the juvenile court’s determination that there was no less drastic alternative to termination.

The judgment was affirmed.

Burren sustained admitted work-related injuries to her arm and shoulder in 2014. Several physicians treated her for her injuries into 2017, but Burren complained that her pain continued to worsen and that none of the treatment improved her condition. None of her physicians placed her at maximum medical improvement (MMI).

In 2015 employer retained Dr. Fall to perform a medical examination of Burren. She did not find Burren at MMI, but in 2016 she found Burren had reached MMI. Employer then requested Dr. Henke to perform a 24-month division-sponsored independent medical examination (DIME) because no treating physician had placed Burren at MMI. Dr. Henke determined that Burren was not at MMI.

Employer then applied for a hearing to dispute Dr. Henke’s DIME opinion. The ALJ ruled that employer had clearly and convincingly overcome the DIME and found MMI was reached in 2016. An Industrial Claim Appeals Office panel (the Panel) upheld the ALJ’s order.

On appeal, Burren argued that the Panel and the ALJ misinterpreted CRS § 8-42-107(8)(b) because an ALJ cannot determine a claimant’s MMI as a matter of fact without an authorized treating physician (ATP) placing her at MMI. She contended that if a DIME performed under the statute finds a claimant is not at MMI, treatment should proceed until an MMI determination is made. The Court of Appeals analyzed the statute and the Panel’s historical practices and concluded that when the DIME and the ATP agree that a claimant is not at MMI, treatment should continue until either the DIME or the ATP places the claimant at MMI. Thus, the ALJ and the Panel misinterpreted CRS § 8-42-107(8)(b)(II). While the Court’s conclusion effectively precludes an employer from challenging a 24-month DIME when the DIME agrees with the ATP that a claimant is not at MMI, it does not prohibit an employer from re-invoking the 24-month DIME process at an appropriate future time.

The order was set aside and the case was remanded to the Panel with directions to return it to the ALJ to enter an order consistent with the opinion.