2020 COA 76. No. 17CA0972. People v. Houser. Criminal Procedure, Patronizing a Prostituted Child, Unconstitutionally Vague, Ineffective Assistance of Counsel, Hearing.

Defendant paid 16-year-old A.J. $240 to engage in sexual acts with him. He was charged with patronizing a prostituted child. Defendant filed a pretrial notice of intent to assert an affirmative defense under CRS § 18-1-503.5 that he reasonably believed A.J. was at least 18 years old. Following a hearing, the trial court prohibited defendant from arguing at trial that he believed A.J. was at least 18. A jury found defendant guilty as charged. The trial court sentenced him to a jail term and sex offender intensive supervised probation for an indeterminate term of 10 years to life.

Six years later, defendant failed to comply with his probation terms and the trial court resentenced him to two years to life in the custody of the Department of Corrections. A division of the Court of Appeals affirmed defendant’s conviction (Houser I). Defendant then filed a Crim. P. 35(c) motion challenging the constitutionality of his conviction and sentence, and alleging ineffective assistance of counsel. The postconviction court denied defendant’s motion without a hearing, finding that Houser I precluded defendant’s constitutional arguments and even if defendant could present such arguments, they fail on the merits. It also held that defendant failed to establish prejudice and deficient performance and therefore is not entitled to a hearing on his ineffective assistance of counsel claims.

On appeal, defendant argued that the offense of patronizing a prostituted child is unconstitutionally vague because it includes certain actions performed by a child. CRS § 18-7-406(1)(a) requires that a defendant perform one of the prohibited acts with a child, and the statute’s plain language makes clear that the child’s actions alone do not constitute an offense. Therefore, CRS § 18-7-406(1) is not void for vagueness and defendant was not entitled to a hearing on this claim.

Defendant next contended that the postconviction court erred in denying his request for a hearing on his ineffective assistance of counsel claims. Defendant contended that his counsel was ineffective by failing to raise four arguments that were not established by precedent at the time: (1) that CRS § 18-7-407 is unconstitutional; (2) that defendant’s sentence under the Colorado Sex Offender Lifetime Supervision Act is unconstitutional; (3) that CRS § 18-7-406(1) is void for vagueness; and (4) that CRS § 18-7-406(1) violates equal protection. As a matter of law, defendant’s counsel was not ineffective for failing to raise these novel arguments. Therefore, the postconviction court did not err in denying these claims without a hearing.

Defendant also contended that he is entitled to a hearing on his claim that his counsel was ineffective by offering a theory of defense that admitted his guilt without his consent. However, defendant’s counsel’s theory of defense did not, as a matter of law, admit his guilt.

Defendant also argued that he is entitled to a hearing on his claim that his trial counsel was ineffective for failing to (1) sufficiently challenge A.J.’s out-of-court identification of him, and (2) file a motion to suppress the search warrant for his home premised on that identification. Defendant contended that he was prejudiced because his counsel did not call the detective to testify whether he showed A.J. a single photo, which may have been impermissibly suggestive and could have invalidated the search warrant, or six photographs, as the prosecution contended. Because this allegation, if true, could support a claim that his counsel’s conduct was deficient for failing to challenge a potentially improper out-of-court identification based on a prosecutor’s reputation, defendant is entitled to a hearing on the merits of this claim.

Defendant further contended that he is entitled to a hearing on his claim that his counsel was ineffective for failing to challenge the prosecution’s alleged “outrageous conduct” in investigating defendant’s first attorney for alleged witness intimidation of A.J. This allegation, if true, would provide a basis for an ineffective assistance of counsel claim.

The denial of the Crim. P. 35(c) motion was affirmed, except as to defendant’s right to a hearing on his claims that his counsel was ineffective for not challenging A.J.’s out-of-court identification and the search warrant resting on such identification, and not challenging the prosecution’s alleged outrageous conduct. The case was remanded to the postconviction court for a hearing on these claims.

Lannie and his wife own two contiguous parcels of land in Eagle County. One parcel has a home on it (the residential parcel) and the other is undeveloped (the subject parcel). For tax years 2014 and 2015, Lannie held title to the subject parcel solely in his name, while he and his wife held title to the residential parcel as joint tenants. Before the valuation for tax year 2016, Lannie conveyed the subject parcel to himself and his wife as joint tenants. The county assessor classified the subject parcel as vacant land. The Lannies appealed the classification for the 2014 and 2015 tax years to the Board of County Commissioners of Eagle County and the classification for 2016 to the Board of Equalization of Eagle County (collectively, the County). The County upheld the assessor’s classification. The Board of Assessment Appeals (BAA) concluded that the subject parcel was not used as a unit in conjunction with the improvements on the residential parcel for any of the tax years in question, and for tax years 2014 and 2015, the parcels were not under common ownership. Accordingly, the BAA upheld the County’s rulings.

On appeal, the Lannies argued that the BAA erred in failing to reclassify the subject parcel as residential for property tax purposes. For vacant land to be reclassified as residential land, a taxpayer must show that (1) the vacant parcel is contiguous with the residential parcel, (2) the parcels are under common ownership, and (3) the parcels are used as a unit. Common ownership requires identical record title owners, which means that the taxpayer for each parcel must be identical. Because the two parcels were not under common ownership for tax years 2014 and 2015, the BAA did not err in denying reclassification for those years. As to tax year 2016, while the parcels were under common ownership in that year, it is not clear whether the BAA assessed the testimony under the proper standard for “used as a unit” announced in Mook v. Board of County Commissioners, 2020 CO 12.

The order denying reclassification for the 2014 and 2015 tax years was affirmed. The order denying reclassification for the 2016 tax year was reversed and the case was remanded to the BAA for reconsideration in accordance with this opinion.

A police officer observed defendant backing out of a parking space and noticed that one brake light on his car was out. The officer tried to initiate a traffic stop by activating the vehicle’s emergency lights and sounding his siren, but defendant kept driving. Another officer joined the pursuit with lights and sirens. Defendant never exceeded the speed limit but kept driving, and after pursuing him for three miles, the officers discontinued the pursuit at the city limits pursuant to their department policy.

            A sergeant with the county sheriff’s department then picked up the pursuit and activated his lights and sirens, including a very loud air horn. Defendant continued to drive at the speed limit but would not pull over. After two miles, the sergeant conducted a precision immobilization technique maneuver, causing defendant’s car to spin off the road, and he arrested defendant. At trial, defendant testified that he was driving with loud music on and an earbud in one ear and he did not see or hear any police cars. The jury found him guilty of eluding or attempting to elude a police officer and aggravated driving after revocation prohibited (DARP).

            On appeal, defendant argued that the evidence was insufficient to sustain his conviction for eluding or attempting to elude a police officer because eluding or attempting to elude requires a “trick” or “evasive action” that makes it harder for the police to follow. He contended that the prosecution had to show that he did something more than simply refuse to stop. However, depending on the circumstances, “elude” may simply be defined as to avoid, escape, or not be caught. Here, the officers and the sergeant pursued defendant in marked vehicles, sounded sirens, and activated their emergency lights, yet defendant continued to drive for five miles until the sergeant was able to stop him. The evidence was sufficient to support a conclusion by a reasonable juror that defendant was guilty beyond a reasonable doubt of willfully eluding or attempting to elude a police officer.

            Defendant also argued that his conviction for eluding or attempting to elude a police officer is a lesser included offense and therefore should merge into his conviction for aggravated DARP. Eluding or attempting to elude a police officer is a lesser included offense of aggravated DARP.

            The conviction for aggravated DARP was affirmed. The conviction for eluding or attempting to elude a police officer was vacated. The case was remanded to merge the conviction for eluding or attempting to elude a police officer into the DARP conviction.