Cases of Note Archive 2011

People v. Simon, Colorado Supreme Court No. 09SC665 (December 19, 2011)

The defendant was convicted of ten counts of sexual assault by one in a position of trust as part of a pattern of abuse and other related offenses. The court imposed ten ten-year consecutive sentences on the "pattern of abuse" convictions. The defendant appealed arguing that he could not be convicted of more than one "pattern of abuse" offense. The Court of Appeals agreed finding that the multiple "pattern of abuse" convictions violated double jeopardy. The Supreme Court heard this case and a companion case in which a different panel of the Court of Appeals reached the opposite conclusion. The question before the Supreme Court was whether "pattern of abuse" is a separate offense or a provision that enhances the sentence. 

The Supreme Court reversed the Court of Appeals finding that the "pattern of abuse" provision is not a separate offense. Rather, it allows each incident to be elevated from a class 4 felony to a class 3 felony. The Supreme Court noted that the definition of "pattern of sexual abuse" does not establish a separate offense; the unit of prosecution remains the substantive crime. Rather, the plain language of the statute authorizes greater punishment for the substantive crime, in this case, sexual assault on a child by one in a position of trust.

The Supreme Court went on to find that the "pattern of abuse" provision does not violate the double jeopardy protection against multiple punishments. The Court stated that separate convictions and punishments authorized by the legislature never violate double jeopardy. In the "pattern of abuse" provision, the General Assembly intended to authorize separate convictions for each incident of sexual assault on a child by one in a position of trust and authorized enhanced punishment of each assault that is committed as part of a "pattern of sexual abuse".

People v. Poage, Colorado Court of Appeals No. 09CA1400 (December 8, 2011)

Defendant was convicted of failure to register as a sex offender. Defendant registered his mother's home as his home address on his annual sex offender registration form. When a law enforcement officer attempted to verify the registration address, the deputy found the home vacant. As a result, the defendant was charged with two counts of failure to register as a sex offender and two counts of failure to register as a sex offender, second offense. 

At trial, defendant testified he moved out of the home, because it was foreclosed on, and then stayed with various friends and in his car. He stated he did not change or cancel his registration because he did not have a new address. He denied that he stayed in another county after moving out of his mother's home. 

In a trial to the court, the court found the defendant guilty of failure to register based on the fact that he failed to complete a cancellation form in the county in which he no longer resided. The defendant appealed his conviction to the Court of Appeals. The Court of Appeals vacated the conviction because section 18-3-412.5 (1) (i), C.R.S., requires that the prosecution prove that the defendant moved away from the county of his or her last registration. The prosecution presented no evidence at trial that defendant, who was homeless, had moved out of the county. 

The Court of Appeals in a footnote, noted that the statute does not indicate what a homeless or transient person should do to continue his or her registration or to comply with the registration requirements. The Court of Appeals pointed out that other states have amended their registration statutes to address the situation of a homeless person who is required to register as a sex offender.  The Colorado statute does not address this situation.

In re Reapportionment of Gen. Assembly, Colorado Supreme Court No. 11SA282 (November 15, 2011)

As required by Article V, Section 48 of the state constitution, the Supreme Court reviewed and considered objections to the finalized Reapportionment Plan for Colorado General Assembly House and Senate districts adopted by the Colorado Reapportionment Commission. The various objectors to the Plan generally argued that the Plan violated Article V, Section 47 (2) of the state constitution because it did not give sufficient attention to preservation of county boundaries or minimize the splitting of the City of Colorado Springs into multiple districts. The Court agreed with the objectors and held that the Plan was not sufficiently attentive to county boundaries and that the Commission had not made an adequate showing that a less drastic alternative could not have satisfied the equal population requirement of Article V, Section 46 of the state constitution. The Court directed the Commission to submit a new House and Senate district Plan to it by December 6, 2011.

Colo. Republican Party v. Benefield Colorado Court of Appeals No. 10CA2327 (November 10, 2011)

The Colorado republican party ("CRP") sued several democratic state representatives ("representatives")  under section 24-72-204 (5), C.R.S., of the "Colorado Open Records Act" for recovery of attorney fees and costs on the ground that the public records custodian had improperly withheld inspection of public records. The Court of Appeals held that a party who brings an action against a public records custodian to inspect public records under section 24-72-204 (5), C.R.S., and obtains any improperly withheld public record as a result of the action is a prevailing applicant who must be awarded court costs and reasonable attorney fees unless another statute prohibits such an award. The court also held that section 24-72-204 (6), C.R.S., which prohibits an award of attorney fees under section 24-72-204 (5), C.R.S., if the public records custodian proves that, after exercising reasonable diligence and making reasonable inquiry, he or she was unable to determine whether public records needed to be disclosed, did not apply given the facts of the case. Accordingly, because the CRP succeeded in obtaining the right to inspect documents it sought from the representatives and no statute otherwise barred an attorney fees award, the court held the CRP to be a prevailing applicant entitled to an award of court fees and reasonable attorney fees and remanded the case to the district court for a determination of the amounts of costs and attorney fees to be awarded.

Averyt v. Wal-Mart Stores, Inc., Colorado Supreme Court No. 11SA66 (November 7, 2011)

The Court reversed the trial court's order that the defendant, Wal-mart, be granted a new trial based on violation of rules of discovery and disclosure.

In 2007, Holly Averyt, a commercial truck driver, was delivering goods to the Wal-mart store in Greeley, Colorado, when she slipped on a grease spill and fell. The injuries sustained by Ms. Averyt required multiple surgeries and caused long-term physical and mental health issues. As a result, Ms. Averyt was no longer able to work and lost her truck. She sued Wal-mart for damages. 

At trial, during Wal-mart's opening statement, the store denied any existence of a grease spill at the time of Ms. Averyt's fall. While those statements were taking place, Ms. Averyt's attorneys obtained a memo from the county ("Greeley Report") documenting that a grease spill had in fact occurred. The information in the Greeley Report was used by Ms. Averyt's attorneys to question the spokeswoman for Wal-mart the following day and impeach her testimony. Wal-Mart asked Ms. Averyt's attorneys if the information used during questioning had come from a document, at which point Ms. Averyt's attorneys shared the Greeley Report. The Report was entered into evidence and the following day Wal-Mart changed the strategy of their case to admit to the existence of the spill, but that they had taken the proper steps to clean it up before Ms. Averyt's fall.

The jury found Wal-mart at fault and awarded Ms. Averyt $15 million in damages (reduced to approximately $10 million due to Colorado's cap on non-economic damage awards). Wal-Mart appealed the ruling and requested a new trial, citing that Ms. Averyt's attorneys violated disclosure rules outlined in C.R.C.P. 26 (a) (1) and 26 (e) when they did not disclose the Greeley Report in a timely manner after it was discovered. Wal-mart was awarded a new trial, but that decision was reversed by the Colorado Supreme Court. The court found that a party does not need to automatically disclose public documents that are equally available to all parties. Because the Greeley Report was a public document, it was not necessary for the Averyt attorneys to automatically disclose the Report to the Wal-Mart attorneys. In addition, the Supreme Court held that enough evidence was presented to support the jury's verdict and the award for damages was sustained. The $15 million award is the largest slip-and-fall judgment in the United States to date.

Jackson v. Unocal Corp., Colorado Supreme Court No. 09SC668 (October 31, 2011).

Plaintiffs filed a class action lawsuit alleging that defendant's removal of an oil pipeline had contaminated their properties with asbestos. Pursuant to Colorado Rule of Civil Procedure (CRCP) 23, the trial court certified two classes of property owners. The Court of Appeals reversed the trial court's class certifications, holding that a trial court must apply the preponderance of evidence (more likely than not) standard to each CRCP 23 requirement and that the trial court had abused its discretion by certifying the classes on the lesser basis of "some evidence" or "some reasonable evidence". The Court of Appeals also held that a trial court must resolve factual or legal disputes relevant to class certification, including disputes between expert witnesses, regardless of any overlap with the merits of the class's claims.

The Supreme Court reversed the Court of Appeals, holding that CRCP 23 is a trial court case management tool, that neither CRCP 23 nor Colorado case law impose a specific burden of proof on a trial court's class certification decisions, and that a trial court must instead rigorously analyze the evidence and determine to its satisfaction whether the party seeking class certfication has satisfied each CRCP 23 requirement. The Supreme Court also held that a trial court may consider factual or legal disputes, including expert witness disputes, to the extent necessary to determine that CRCP 23 requirements for class certification have been met, but may not resolve such disputes to screen out or prejudge the merits of a case.

People v. Gabriesheski, Colorado Supreme Court No. 08SC945 (October 24, 2011)

Reversing the appellate court, the Supreme Court held that the trial court improperly granted the defense's motion to exclude the testimony of the guardian ad litem (GAL) as privileged pursuant to section 13-90-107(1)(b), C.R.S.

The stepfather was charged with 2 counts of sexual assault on a child by one in a position of trust for allegedly fondling and digitally penetrating his sixteen-year-old stepdaughter on approximately 15 occasions. In addition to the criminal charges, a dependency and neglect (D & N) petition was filed in juvenile court naming the mother as the respondent and the stepfather as a special respondent. As required pursuant to section 19-3-203, C.R.S., the court appointed a GAL for the stepdaughter in the D & N case.

Prior to the criminal trial, the stepdaughter recanted her accusations, and the prosecution gave notice of its intent to call the GAL and the social worker in the D & N case as witnesses. At the hearing on the defendant's motion to exclude this testimony, the prosecutor indicated that the GAL would testify that the stepdaughter stated it would make things easier for the stepdaughter if she admitted to lying about the sexual abuse and it would make her mother happy if she simply stated that the abuse never occurred. The trial court ruled that the GAL could not testify because Colorado Rule of Professional Conduct (CRPC) 1.6, in conjunction with Chief Justice Directive (CJD) 04-06 imposed a duty of confidentiality on the GAL which could only be waived by the stepdaughter.  The trial court also ruled that the social worker could not testify concerning the mother's statements to the social worker concerning the mother's argument with the stepdaughter.

The Supreme Court held that the stepdaughter's statements to the GAL were not privileged because, even though the rules of ethics and the statutes on privilege prevent the disclosure of statements made in an attorney-client relationship, neither the rules nor the statute dictate whether an attorney-client relationship, neither the rules nor the statute dictate whether an attorney-client relationship exists.  Although a GAL is an attorney, the statute is silent as to whether a GAL holds an attorney-client relationship with the protected child, and the relationship of a GAL to the protected child is one of guardianship rather than advocacy.  The GAL is required by statute to assess and make recommendations to the court concerning the protected child's best interests, and the GAL does not hold an attorney-client relationship with the child.  Therefore, the trial court erred in excluding the GAL's testimony.

The Supreme Court further found that the trial court erred in excluding testimony by a social worker concerning statements made by the stepdaughter.  Section 19-3-207, C.R.S., the statute the trial court relied on in excluding the statements, prohibits a professional from testifying concerning statements made pursuant to compliance with court-ordered treatment.  The Supreme Court held that the trial court erred in excluding the social worker's testimony without first determining whether the mother's statements were made pursuant to compliance with court-ordered treatment.

Finally, the Supreme Court held that the prosecution could appeal the trial court's ruling on the motion even though the prosecution had already moved to dismiss the charges without prejudice.  Section 16-12-102, C.R.S., authorizes the prosecution to appeal decisions of trial courts in criminal cases concerning questions of law, but only if there is a final judgment in the case, as required in Colorado Appellate Rule (CAR) 1.  Dismissal of the case constituted a final judgment for purposes of CAR 1 even though the prosecution may, at some point in the future, reinstate charges.
 
DISSENT:  Justice Martinez dissented, Chief Justice Bender joining in the dissent.  With respect to the attorney-client relationship,  Justice Martinez argued that Colorado statutes are not silent on the issue, that under the majority opinion, without the protection of the attorney-client privilege, GAL's will be required to disclose information about their wards even when it is not in the best interests of the child to do so, and that the better outcome intended by the statutory scheme is to recognize the attorney-client privilege, but permit the GAL to decide whether to assert the privilege on behalf of the child.

Marks v. Koch, Colorado Court of Appeals No. 10CA1111 (September 29, 2011)

The Court of Appeals held that digital images of ballots are subject to the "Colorado Open Records Act" so long as the digital images do not reveal voters' identities.

Following its May 2009 mayoral election, the City of Aspen implemented a new computerized ballot tabulation system designed for instant runoff voting procedures. Part of the new tabulation system involved scanning the paper ballots from the election to create digital photographic images, which were then processed into data strings. The end result was a digital copy of each paper ballot that contained a record of the votes cast but in almost all cases contained no information that could identify the individual voter.

The plaintiff, Marilyn Marks, requested the release of the digital copies of ballots cast in the May 2009 City of Aspen mayoral election under the "Colorado Open Records Act" (CORA). The defendant, Kathryn Koch, the city clerk of Aspen, denied the CORA request based on the grounds that the release of the digital copies would violate the secrecy-in-voting requirement of Article VII, Section 8 of the state constitution.

The Court of Appeals held that the secrecy-in-voting requirement protects the identity of the voter, not the record of votes cast on the ballot. The court also held that the digital copies of ballots in this case are not themselves "ballots" for purposes of the state election laws and therefore are not exempt from release under CORA. The court ordered the release of all digital copies of ballot contents pursuant to the CORA request other than those few digital copies that contained content that could identify an individual voter.

People v. Palomo, Colorado Court of Appeals No. 09CA1095 (August 4, 2011)

Following a bar confrontation, the defendant, Vincent Palomo, was charged with criminal attempt to commit first degree murder, second degree assault (deadly weapon), vehicular eluding, and a crime of violence. At trial, he was convicted on the charges of vehicular eluding and the lesser, nonincluded charge of eluding or attempting to elude a police officer.

Pursuant to the provisions section 18-1.3-701 (7) (a), C.R.S., governing costs of prosecution, "Where any person...is convicted of an offense...the court shall give a judgment in favor of the state of Colorado, the appropriate prosecuting attorney, or the appropriate law enforcement agency and against the offender..for the amount of the costs of prosecution...". 
Here, the prosecution's costs totalled $1,785.65, for travel, lodging, expert witnesses, and costs of subpoenas.

The defendant appealed, arguing that he is only liable for the costs actually incurred in the prosecution of the convicted charges. As the defendant was only convicted of vehicular eluding and eluding or attempting to elude a police officer, he argued, any costs relating to the prosecution of the murder and assault charges should be dismissed.

In considering the appeal, the Court of Appeals first considered the costs statute and found it ambiguous with regard to cases where the defendant is convicted on same, but not all, counts.  The Court of Appeals writes that, "The statute is certainly capable of more than one reasonable interpretation when a defendant is charged in a multi-count indictment or consolidated cases, but convicted of fewer than all of the counts...In addition, the statute is silent on, and appears to not contemplate, the issue presented here."

The Court of Appeals therefore looks to the application of similar statues or rules in other jurisdictions, which hold that the costs incurred in an unsuccessful prosecution cannot be assessed against a defendant. Based on these holdings, the Court of Appeals reverses the order for costs and remands the case to the trial court to determine the amount of costs associated with the counts on which the defendant was convicted.

Henderson v. City of Fort Morgan, Colorado Court of Appeals No. 10CA1409 (August 4, 2011).

The case arose out of the Fort Morgan City Council's use of anonymous written ballots for the purpose of filling two vacancies on the city council and appointing a municpal judge during public meetings in 2009 and 2010. Although the ballots were completed in the public meeting, and the results were announced at the meeting after the ballots were collected and tabulated, the written ballots did not identify the council member who cast each vote, nor was this identifying information otherwise available or recorded.

A resident of Fort Morgan filed a complaint alleging that the council members' use of anonymous written ballots violated the Colorado Open Meetings Law ("COML"), sections 24-6-401-402, C.R.S. This resident sought to invalidate the appointments and enjoin the city council from using such ballots in the future. The court of appeals affirmed an order of the trial court dismissing the complaint on the ground that the city council's voting procedure is not prohibited by the COML.

The court of appeals reasoned that the COML does not impose any specific voting procedures on local public bodies or prohibit the use of anonymous ballots. The COML is silent as to whether votes taken need to be recorded in a way that identifies which elected official voted for which candidate. Rather, the law requires only that the public have access to meetings of local public bodies and an opportunity to observe the decision-making process. The court declined the opportunity to read additional terms into or modify the plain terms of the statute, reasoning that expanding the requirement for open meetings to include a particular voting procedure at those meetings would amount to judicial legislation.

Pellman v. People, Colorado Supreme Court No. 09SC375 (June 6, 2011).

(The Supreme Court interprets significant term in criminal law statute). The Court affirmed the Court of Appeals' holding that the defendant, Pellman, was in a "position of trust" for purposes of sections 18-3-405.3 and 18-3-401 (3.5), C.R.S., at the time of the unlawful sexual contact. 

The defendant, Pellman, age 44, initiated a romantic relationship with the victim, age 15. Pellman attended the church at which the victim's father was pastor, and Pellman and his wife were personal friends of the victim's parents, joining the victim's family for dinners, helping the victim and her sister with their school work, and, on several occasions, babysitting the victim and her sister while the parents were out of town. Pellman taught the victim's Sunday school class at the church from 2000 to 2003. Starting in May, 2005, Pellman initiated sexual contact with the victim, and over the next several weeks, the victim went to Pellman's house, with her parents' permission, between four and six times to ride horses. At the beginning of July, 2005, Pellman was a chaperone on a church field trip that included the victim. On the field trip, Pellman kissed the victim. During July and August, 2005, the victim met Pellman without her parents' knowledge three to four times per week, and Pellman engaged in unlawful sexual contact with the victim in the nature of fondling and inappropriate touching with and without clothing. At the end of August, 2005, the victim told her parents about the nature of her relationship with Pellman, and Pellman was arrested and convicted pursuant to section 18-3-405.3 (1), C.R.S., of sexual assault on a child victim aged fifteen to seventeen by a person in a position of trust, a class 4 felony. 

Pellman appealed the conviction, arguing that, to be acting in a position of trust, a defendant must be performing a specific supervisory task at the time the unlawful sexual contact occurs. Specifically, he argued that he was only in a position of trust at a specific time, the last of which was when he chaperoned the church field trip at the beginning of July 2005, and section 18-3-401 (3.5), C.R.S., requires that a defendant be in a position of trust "at the time of the unlawful act".

The Colorado Supreme Court affirmed the Court of Appeals' holding that a defendant need not be performing a specific supervisory task at the time of the unlawful sexual contact in order to occupy a position of trust. Instead, a defendant may assume a position of trust through ongoing and continuous discrete acts of supervision of the victim. Pellman had assumed an ongoing and continuous supervisory role in relation to the victim in his capacity as a church youth volunteer and family friend, and the unlawful sexual contact occurred while Pellman occupied that role. As long at the unlawful sexual contact occurred while the supervisory relationship existed, the unlawful sexual contact occurred "at the time of the unlawful act" pursuant to section 18-3-401 (3.5), C.R.S. A position of trust for purposes of sections 18-3-405.3 and 18-3-401 (3.5), C.R.S., may be a supervisory position that exists for a brief period, a matter of hours or days, or it may extend over a long relationship. The Court reasoned that the General Assembly intended "position of trust" to be broadly interpreted and to apply to those instances in which a defendant has gained access to a child through the position of trust that he or she holds.

People v. Griffin, Colorado Court of Appeals No. 08CA2694 (March 17, 2011).

(The court of appeals finds a statute to be ambiguous and significantly reinterprets that statute.)  The court held that a sex offender is not required to register in a location in which he or she has stated a mere intention to reside.

The defendant, Carey Andre Griffin, was convicted of failure to register as a sex offender under the Colorado Sex Offender Registration Act (Act), sections 16-22-101 to 16-22 -115, C.R.S. The Act requires an offender to notify the state of his or her intent to reside at a location and then to register as a sex offender at that location once he or she establishes a residence there. Section 16-22-102 (5.7), C.R.S., defines "residence" as "...a place or dwelling that is used, intended to be used, or usually used for habitation by a person who is required to register...". Further, section 16-22-105 (3), C.R.S., states that an offender "establishes a residence through an intent to make any place or dwelling his or her residence".

In 2006, Griffin cancelled his registration in Denver and gave notice to authorities that he intended to reside in Adams County. But, Griffin never moved to Adams County and so never registered as a sex offender there. In 2007, Griffin was arrested in another state and returned to Colorado, where he was convicted of failure to register as a sex offender. The prosecution argued Griffin was required to register in Adams County because he had stated his intent to reside there, even if he never physically resided there.

The Colorado Court of Appeals overturned Griffin's conviction, stating that "the phrase 'establish a residence' requires...a physical presence or occupancy". While the Act requires an offender to notify the state of his or her intent to reside at a location, it does not require the offender to register at this intended location until he or she actually makes it a residence. Further, the provisions of the Act provide no structure for enforcing the registration requirement against an offender at the location where he or she merely intends to reside. "...[W]e would expect such an unusual requirement to have been stated clearly and directly (instead of implicitly, by defining "establish a residence" in a manner that defies common understanding)."