Colorado Court of Appeals Opinions

April 23, 2020

2020 COA 71 No. 17CA0026, People v. Maloy

Defendant met 17-year-old M.C. at a bus stop after she had run away from a group home. Defendant introduced M.C. to prostituting herself. He let M.C. stay with him and his girlfriend at their apartment on the condition that M.C. prostitute herself to pay them. Defendant’s girlfriend helped M.C. find men who would pay to have sex with her. A jury found defendant guilty of patronizing a prostituted child, pimping of a child, keeping a place of child prostitution, and inducement of child prostitution. The court sentenced defendant to four years in Department of Corrections custody on all counts except patronizing a prostituted child, for which he was sentenced to four years to life under the Colorado Sex Offender Lifetime Supervision Act.

On appeal, defendant contended that CRS § 18-7-406(1)(a), which criminalizes patronizing a prostituted child, is unconstitutional as applied. He argued that the statute violated his right to equal protection because it prohibits essentially the same conduct, or less culpable conduct, as soliciting for child prostitution, pandering of a child, and inducement of child prostitution, while carrying a much higher sentence. As applied to defendant’s conduct, soliciting for child prostitution does not proscribe the same conduct as patronizing a prostituted child, but defendant’s conviction for patronizing violates equal protection because pandering and inducement penalize the same or more culpable conduct with lighter sentences. Further, this violation was obvious and substantial because it resulted in defendant’s potential lifetime imprisonment rather than a determinate sentence of four to 12 years.

Defendant also contended that the district court erred by refusing to allow him to introduce evidence that he thought M.C. was at least 18 and assert a reasonable mistake of age defense. However, CRS § 18-7-407 specifically provides that in criminal prosecutions under CRS §§ 18-7-402 to -407, mistake of age is not a defense. Therefore, the district court did not err by ruling that the affirmative defense of reasonable mistake of age wasn’t available to defendant.

Defendant further argued that disallowing a mistake of age defense for child prostitution crimes but allowing it for other crimes involving minors as victims violates equal protection. The state has an interest in protecting the welfare of minors, and imposing harsher penalties for prostitution-related offenses involving minors is directly related to this goal. There is thus a rational basis for disallowing a mistake of age defense for child prostitution crimes while not precluding such a defense to other offenses involving minors as victims.

Defendant also argued that applying CRS § 18-7-407 violated his substantive due process rights because it creates a strict liability offense. The child prostitution statutes are not strict liability crimes (which have no culpable mental state requirement) merely because defendants can’t present an affirmative defense to the age element. The inability to defend against one element of a crime through an affirmative defense does not mean the entire offense lacks any mens rea. Therefore, defendant’s substantive due process rights were not violated.

Defendant also contended that the district court erred by refusing to give the jury his tendered instructions relating to complicity. A court has no obligation to give the jury specific instructions, even if they are legally accurate and appropriate given the evidence. Here, the district court correctly determined that the other instructions already covered the concepts in defendant’s tendered instructions.

Lastly, defendant contended that the prosecutor committed prosecutorial misconduct by referring to him as the protection, the muscle, and the enforcer; by referencing M.C.’s trauma; and by misstating the evidence about where defendant was living. A prosecutor has wide latitude to make arguments based on facts in evidence and reasonable inferences drawn from those facts, and the prosecutor did not go outside of those bounds here.

The conviction and sentence on patronizing a prostituted child were vacated. The judgment was otherwise affirmed.

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2020 COA 72 No. 17CA2267, People v. Roddy

Defendant and the victim are divorced. For years they have engaged in post-dissolution litigation. In 2014, defendant filed a motion to temporarily restrict parenting time and included photographs of the victim’s home, which he obtained by illegally entering the home. Defendant and his wife also accessed the victim’s personal emails and digital files by using the victim’s son’s iPad. Defendant and his wife were each ultimately charged in separate cases with one count of stalking and one count of computer crime. After defendant pleaded guilty in this case to an added count of first degree criminal trespass, he was given a two-year deferred judgment. About 15 months after his deferred judgment was entered, the trial court ordered him to pay restitution of $688,535 to reimburse the victim’s attorney fees and investigation costs incurred in connection with defendant’s conduct in the civil and criminal proceedings. No restitution was sought or ordered in defendant’s wife’s case following her guilty plea to a computer crime.

            As an initial matter, the People contended that defendant waived his right to appeal the restitution order because, as part of the deferred judgment, he successfully withdrew his guilty plea and obtained dismissal of the criminal charge against him, and payment of restitution was a condition of that deferred judgment. Because restitution can be enforced after completion of a deferred sentence, and restitution is a separately appealable order, a defendant does not waive the right to appeal a restitution order by withdrawing a guilty plea. Therefore, defendant was entitled to appeal his restitution order.

Defendant contended on appeal that the trial court lacked authority to enter the restitution order against him because it was entered more than 91 days after entry of his deferred sentence. The 91-day time limit in CRS § 18-1.3-603(1) limits only the time within which the prosecution must present its restitution request. Further, the court may extend the 91-day time limit for good cause. Here, the court found that good cause was shown (1) to allow the People to file their amended restitution requests, because the victim continued to incur and pay attorney fees; and (2) to allow defendant to lodge his objections to the restitution request. Given these good cause findings, the court had good cause to likewise extend its own determination of restitution.

Defendant next argued that the court erred in concluding that his unlawful conduct proximately caused the victim’s losses because he pleaded guilty only to the physical trespass of her home and did not plead guilty to any computer crimes. A defendant is only liable for restitution for the losses caused by the conduct to which he pleaded guilty. Here, the deferred judgment agreement did not detail the charges for which defendant would be required to pay restitution, so it is unclear whether the district court awarded restitution only for the losses proximately caused by defendant’s conduct.

Defendant also argued that the trial court erred in concluding that the attorney-client privilege applied to the victim’s attorney billing records and the victim waived it by placing the records at issue. The holding that restitution may not be ordered with respect to conduct for which defendant did not plead guilty renders the court’s previous restitution award obsolete, and to the extent some of the billing records relate only to conduct for which he was not convicted, those records are irrelevant.

Defendant next contended that the prosecution abdicated its constitutional and statutory responsibility to independently determine whether restitution is proper by relying on the victim’s civil attorney’s representations. The prosecution is statutorily required to compile all information pertaining to restitution through victim impact statements or other means. Accordingly, there was no error in the prosecution’s reliance on assistance from the victim’s counsel in determining her losses.

Defendant also argued that he should have been provided with email communications between the prosecution and the victim’s civil attorney because they were relevant to the basis of the restitution request and whether the prosecution independently determined that restitution was proper. Given the other rulings here, to the extent this issue remains relevant on remand the district court must determine whether and to what extent such disclosure should be granted.

The restitution order was reversed and the case was remanded for further proceedings.

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2020 COA 73 No. 19CA0191, Aurora Public School District v. Stapleton Gateway LLC

Stapleton Gateway LLC (Stapleton) purchased a commercial property (property) that is adjacent to the Aurora Public School District (APS) school and parking lot. APS adopted a resolution to expand the school by purchasing Stapleton’s property. Stapleton refused the purchase offer. APS filed a condemnation petition but did not seek immediate possession.

            While the parties were scheduling the valuation trial, APS informed Stapleton that it needed to demolish the structures on the property no later than spring 2018 and requested “limited possession of the property” for any lawful purposes. The parties filed a stipulation for limited purposes with the court that allowed APS, upon depositing $2.7 million into the court registry, to take limited possession of the property several weeks before the valuation trial. The stipulation also allowed Stapleton to withdraw 100% of the deposit without notice or consent from APS. APS deposited the money into the registry. Stapleton then moved, with APS’s consent, to withdraw the entire deposit. The court granted the motion, and the deposit was disbursed. Stapleton used the money to fund two new real estate purchases.

            APS then abandoned the condemnation and filed a motion for return of the deposit to the court registry. Stapleton moved to preclude abandonment based on equitable estoppel. The district court denied Stapleton’s attempt to preclude abandonment and a division of the Court of Appeals affirmed the order. The parties then filed a joint motion agreeing that Stapleton had a claim for abandonment damages and the right to pursue all consequential damages in a separate action. The district court granted the joint motion and denied APS’s motion for return of the deposit.

The only issue on appeal was whether Stapleton must return the $2.7 million to the registry before the court determines abandonment damages as part of a separate case. The Court decided that the deposit did not have to be returned because (1) a condemnation deposit functions as security for payment of damages suffered by a landowner due to abandonment; (2) the district court retains jurisdiction and control over the deposit, whether it resides in the registry or is invested in real estate; and (3) CRS § 38-1-105(6)(b) recognizes a relationship between the deposit and the total value of the condemned property and permits the court clerk to offset withdrawals from the deposit against compensation due or damages awarded to a condemnee in the event of abandonment of the condemnation proceeding. Further, as a practical matter, it makes little sense for Stapleton to incur additional expenses to sell the property that it acquired to replace the parcel that APS condemned just to return the $2.7 million to the registry, given that Stapleton may be entitled to some of the deposit following the damages hearing.

            The judgment was affirmed.

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April 23, 2020

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