Colorado Court of Appeals Opinions

July 03, 2019

2019 COA 100 No. 15CA2149, People v. Bott

In 2010, as part of his sex offender treatment for an unrelated crime, Bott confessed that he molested his infant daughter in 2004. Police did not file charges at that time. In 2014, after Bott’s treatment had been terminated, police received information that his computer was linked to the distribution of child pornography. Police searched Bott’s home and recovered a memory card containing nearly 300 images of child pornography and the questionnaire containing his written confession to having sexually abused his infant daughter. Bott was charged with five counts of sexual assault on a child by one in a position of trust, 12 counts of sexual exploitation of a child related to his possession of child pornography, and three additional counts of sexual exploitation related to his distribution of child pornography. At trial, the prosecution introduced Bott’s written confession and images of child pornography recovered from his computer. The jury convicted defendant as charged.

          On appeal, Bott argued that the evidence was insufficient to support his sexual assault on a child by one in a position of trust convictions because under the corpus delicti rule, he could not be convicted based on his confession alone and the prosecution did not present corroborating evidence that the crime occurred. Until 2013, Colorado adhered to the corpus delicti rule, which required that the prosecution present evidence independent of a defendant’s confession to establish that a crime occurred. But when Bott was charged in 2014, Colorado had abandoned the corpus delicti rule and adopted the trustworthiness standard. However, this change in rules did not apply retroactively. Here, the evidence of Bott’s possession of child pornography 10 years after the alleged offense, when considered together with the fact that he changed his daughter’s diaper, was insufficient to prove the corpus delicti of sexual assault on a child. Accordingly, the evidence was insufficient to sustain Bott’s convictions for sexual assault on a child by one in a position of trust.

Bott also argued that his 12 convictions and sentences for possessing 294 child pornography images violated his rights under the Double Jeopardy Clause. Under the sexual exploitation of a child statute, a single act of possession of hundreds of images of child pornography constitutes one crime of possession. Thus, Bott was subjected to only one conviction. Therefore, the multiplicitous convictions violated Bott’s rights under the Double Jeopardy Clause.

Bott’s convictions for sexual assault on a child by one in a position of trust and 11 of his convictions for sexual exploitation of a child (possession of child pornography) were vacated. One conviction of sexual exploitation of a child (possession of child pornography) and the three convictions of sexual exploitation of a child (distribution of child pornography) were affirmed. The case was remanded for resentencing.
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2019 COA 101 No. 16CA1468, People v. Hamilton

Hamilton bought a round of shots for J.F. and her friends at a bar. J.F. accused Hamilton of drugging her, separating her from her friends, taking her to an apartment without her consent while she was unconscious, and sexually assaulting her. Hamilton told the investigating detective, Slay, that J.F. had sent him multiple texts while they were drinking together at the bars and sent him texts the day after the alleged sexual assault.

At trial, J.F. testified she thought her drink had drugs in it because she could not remember much after she had taken the shot. J.F. told the jury the next thing she remembered was waking up on her stomach in an apartment, with her hands being held above her head, and Hamilton was having sex with her. J.F. testified that she did not agree to have sex with Hamilton. Hamilton claimed the sex was consensual.

Slay testified that police department personnel downloaded the contents of Hamilton’s and J.F.’s phones and generated reports (the reports) reflecting the phones’ contents. The prosecutor did not seek to introduce into evidence the reports or testimony of police department employees who had examined the phones or generated the reports. Instead, Slay testified that, based on his review of the reports, neither phone contained text messages from J.F. to Hamilton. Hamilton was convicted of one count of sexual assault and one count of distribution of a controlled substance.

On appeal, Hamilton argued that the district court erred in allowing Slay to testify about the contents of J.F.’s and Hamilton’s phones. Hamilton did not preserve his argument that the district court erred in admitting Slay’s testimony regarding the contents of Hamilton’s phone, but preserved his argument that the court erred in allowing Slay to testify regarding the contents of J.F.’s phone. A computer-generated report of a cell phone’s contents is not hearsay as long as it was created without human input or interaction. To qualify as a computer-generated report that does not constitute hearsay, the party seeking to introduce the report must lay a foundation that it was machine-generated without human input. Here, the district court erred in admitting Slay’s testimony regarding the contents of J.F.’s phone into evidence because both the reports and Slay’s testimony were hearsay and the prosecutor failed to prove that the reports were reliable and authentic. Further, there was a reasonable possibility that Slay’s testimony about the contents of J.F.’s phone contributed to Hamilton’s conviction of sexual assault.

Hamilton also argued that the district court erred in admitting evidence of the acts underlying his two prior sexual assault charges (he was acquitted of one of the charges and the other charge was withdrawn). This evidence was relevant to prove intent and to rebut Hamilton’s consent theory by showing a common plan, scheme, design, modus operandi, and preparation. Further, though the other acts evidence was undoubtedly prejudicial to Hamilton, the record supports the district court’s finding that the probative value of that evidence in proving the elements of the offense was not substantially outweighed by any danger of unfair prejudice to Hamilton. Therefore, the district court did not err in admitting this evidence.

Hamilton next contended that the district court violated his right to due process by informing the jury in the acquittal instruction that (1) it should not presume he was “factually innocent” of sexually assaulting M.D., the victim in one of the two prior sexual assault cases, even though he had been acquitted on this charge; and (2) he had been convicted of kidnapping M.D. The “factually innocent” language in the instruction mirrored the language for acquittal instructions that the Supreme Court has approved, so the district court did not err in adding the factually innocent language to the acquittal instruction. However, while the jury could consider Hamilton’s kidnapping conviction in weighing his credibility, the court erred in adding the conviction language to the acquittal instruction because it made no reference to credibility and unnecessarily highlighted Hamilton’s prior conviction.

The judgment of conviction for sexual assault was reversed and the case was remanded.

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2019 COA 102 No. 17CA2102, Sedgwick Props. Dev. Corp. v. Hinds

1950 Logan, LLC (1950 Logan) was a single-member, single-purpose LLC created for the sole purpose of building the Tower on the Park condominium building and selling the units in that building. Hinds is a disabled person who uses a wheelchair and owns a unit in the building. In 2013, the Colorado Civil Rights Commission (Commission) sued 1950 Logan, claiming that it violated Hinds’s rights as a disabled person by selling the building’s handicapped parking spaces to non-handicapped buyers years before Hinds bought his condominium unit. Hinds intervened in the suit. Both the Commission and Hinds obtained default judgments against 1950 Logan.

By the time Hinds sought to collect on the judgment, 1950 Logan had wound down operations and no longer had any assets. Hinds filed a garnishment proceeding seeking to pierce the corporate veil of 1950 Logan to recover the judgment from Sedgwick, a developer services company that was hired under a contract to manage 1950 Logan and to oversee the development and marketing of the project. The district court entered judgment against Sedgwick.

On appeal, Sedgwick argued that its procedural due process rights were violated because it did not receive adequate notice of Hinds’s attempt to pierce the corporate veil to reach Sedgwick’s assets. Nothing in Colorado law prohibits a judgment creditor from asserting a claim to pierce the corporate veil in a garnishment proceeding to collect on the judgment. No due process violation arises from such a procedure because a garnishment proceeding adequately allows the garnishee to contest the garnishment. The proceedings adequately protected Sedgwick’s due process rights.

Sedgwick also argued that the district court erred in piercing the corporate veil and holding it responsible for 1950 Logan’s debts. To determine whether it is appropriate to pierce the corporate veil, a court must first determine whether the corporate entity is the alter ego of the person or entity at issue. A court determining whether to pierce an LLC’s corporate veil, particularly a single-member LLC, must consider whether traditionally applied veil-piercing factors are applicable in the context of such a company. The district court addressed the various factors generally pertinent to piercing the corporate veil, assuming that a single-member, single-purpose LLC is subject to the same veil-piercing analysis generally applied to corporations. But some of these factors, such as the usual corporate formalities of a board of directors and minutes of its meetings, do not apply in the context of single-member LLCs. Here, the uncontradicted evidence before the district court was that 1950 Logan is a single-member LLC whose sole member is 1950 Logan II, LLC. No evidence was presented that Sedgwick had the type of ownership or control over 1950 Logan necessary to establish alter ego status. The district court erred in piercing the corporate veil and holding Sedgwick responsible for 1950 Logan’s debts.

The judgment was reversed and the case was remanded for entry of judgment for Sedgwick.

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2019 COA 103 No. 17CA2299, People v. Medina

Medina pleaded guilty to second degree assault and was sentenced to four years in the custody of the Department of Corrections (DOC). Medina filed two motions requesting dismissal of his conviction under the Uniform Mandatory Disposition of Detainers Act (UMDDA). The district court construed both motions as a petition for postconviction relief pursuant to Crim. P. 35(c) and denied the motions.

On appeal, Medina argued that the district court lacked jurisdiction to accept his guilty plea because he was not brought to trial within the statutorily required time period under the UMDDA. The UMDDA allows persons in DOC custody to request a final disposition of any untried indictment, information, or criminal complaint. The request must be in writing and delivered to the superintendent where the person is confined. The superintendent must send a registered copy to the court and prosecutor. Under the UMDDA, a court loses jurisdiction over a complaint if it is not brought to trial within 182 days after the receipt of the request by the court and the prosecuting official, or within such time as the court for good cause shown in open court may grant. Because these requirements are jurisdictional, the defect is not waived by a guilty plea.

Medina contended that he properly submitted the request for disposition by providing it to his superintendent, but he did not contend that the district court and the prosecution ever received the request. Here, the record does not show that the court or prosecution ever received or were otherwise made aware of Medina’s request, so the 182-day period was never triggered and the court never lacked jurisdiction to accept his guilty plea. Thus, the district court properly denied Medina’s motions.

Medina also contended that he delivered a proper request under the UMDDA to the DOC superintendent, so the charges against him should be dismissed. Medina did not properly raise this issue in the district court, and regardless of whether the superintendent failed to properly forward Medina’s request, Medina waived his right to dismissal when he entered a guilty plea.

The order was affirmed.

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2019 COA 104 No. 18CA0250, In re Marriage of Gibbs —

Husband moved to modify or terminate his maintenance obligation to wife. He alleged a loss of income resulting from a shoulder injury that rendered him no longer able to perform labor-oriented work. He also alleged he had been diagnosed with stenosis, which would require surgery and affect his ability to work for the rest of his life. Following a hearing, the court denied husband’s motion based on its calculation of his monthly income, including imputed rental income from husband’s primary residence.

          On appeal, husband argued that the district court abused its discretion in determining his income for purposes of calculating maintenance. He contended the court miscalculated his self-employment income because it did not accurately calculate the ordinary and necessary business expenses that needed to be deducted from his gross receipts. Here, the district court found that husband’s business expenses were offset by in-kind payments he received from his girlfriend’s construction company. The court essentially added those payments to his salary and then deducted his business expenses from his salary. Because his monthly business expenses were nearly the same as the monthly in-kind payments for a vehicle, fuel, and cell phone, the district court did not err in calculating husband’s self-employment income.

          Husband also argued that the district court erred in imputing $1,500 per month in rental income to him. Following the parties’ dissolution, husband continued living in the marital residence with his girlfriend and her three children as a family. Husband paid the mortgage and his girlfriend paid for utilities and groceries. The district court found that this arrangement was not a fair market exchange and imputed to husband $1,500 per month rental income that he could have generated by renting the house, which was much larger than he needed for himself.

          No statutory provision addresses whether (1) potential rental income can be imputed to a party for purposes of calculating maintenance, or (2) potential rental income from a party’s primary residence that has never before earned rental income can be imputed to that party for purposes of calculating maintenance. The Court of Appeals concluded that where a party has not historically earned rental income from his or her primary residence, potential rental income from that asset cannot be imputed to the party for purposes of calculating maintenance. Accordingly, the district court abused its discretion.

The part of the district court’s order calculating husband’s self-employment income was affirmed. The part of the order imputing rental income to husband was reversed and the case was remanded for redetermination of maintenance.

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July 3, 2019

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