Summaries of Published Opinions
| Publication year | 2022 |
| Pages | 82 |
COLORADO COURT OF APPEALS
July 7, 2022
2022 COA 71. No. 19CA1364. People v. Archer.
Child Abuse Resulting in Death—Sufficiency of Evidence—Expert Scientific Evidence—Co-Conspirator Statements.
Defendant was part of an itinerant religious group comprising five adults and four children traveling in two vehicles. Ceus and defendant are the biological parents of two of the children. The other two children (the victims) were the daughters of another group member. Ceus was the group's spiritual head, but she made decisions with defendant. The group met Blair, who owned undeveloped land and invited the group to stay there. The victims were banished to a vehicle in an isolated part of the property to work on their spiritual development and died after being deprived of food, water, and other assistance. Defendant and Blair then covered the car with a tarp to hide the bodies. By the time authorities learned what had happened, the victims' bodies were so badly decomposed that the medical examiner was unable to determine the cause of death. However, the medical examiner testified that the deaths were likely due to starvation, dehydration, hypothermia, or some combination of these factors. Defendant was convicted of two counts of child abuse resulting in death and one count of accessory to a crime.
On appeal, defendant argued that the evidence presented at trial was insufficient to sustain his convictions for child abuse resulting in death because (1) he did not take actions that injured the victims and (2) he had no special relationship with the victims requiring him to act to save them. A child abuse conviction requires that the defendant knowingly or recklessly caused serious bodily injury to a child. Here, there was sufficient evidence that defendant engaged in affirmative acts of mistreatment. Therefore, his relationship with the victims was irrelevant. Further, the prosecution presented sufficient evidence to establish that defendant's actions were knowing or reckless because he was aware that the victims were confined to a car during the summer and then abandoned there without food or water, but he did nothing to help them. Accordingly, the evidence presented at trial was sufficient to support the convictions.
Defendant also argued that the trial court abused its discretion by admitting, and then declining to strike, expert scientific evidence on hair follicle analysis. CRE 702 favors admissibility of scientific evidence if it is reliable and relevant. Here, the trial court held a two-day hearing pursuant to People v. Shreck, 22 P.3d 68, 77, 79 (Colo. 2001), on the admissibility of the hair follicle analysis, which purported to show that the victims died of starvation. The trial court's decision was well within its broad discretion. Defendant's further argument that the expert testimony should have been excluded under CRE 403 because it was unreliable and therefore prejudicial was similarly rejected because the trial court's reliability determination was not an abuse of its broad discretion.
Lastly, defendant contended that the trial court erred in relying on CRE 801(d)(2)(E) to admit out of court statements made by Ceus as a co-conspirator. However, the trial evidence and the prosecutor's offer of proof supported the trial court's finding of a conspiracy, and even if the rulings were incorrect, defendant did not challenge the court's alternative grounds for admitting each statement.
The judgment of conviction was affirmed.
2022 COA 72. No. 21CA1768. People in the Interest of M.W.
Dependency and Neglect— Remote Testimony—Sex Offender Management Board Evaluation—Appealable Orders.
The Mesa County Department of Human Services (Department) filed a dependency and neglect proceeding based on allegations that father had sexually assaulted his daughter M.W., that she lacked proper parental care, and that her environment was injurious to her health and welfare. An adjudicatory hearing was held before a jury. Father filed a motion for permission to call two out-of-state witnesses to testify via Webex. The juvenile court denied the motion. Based on the jury verdict and mother's admission that M.W. was dependent or neglected, the court entered an order adjudicating M.W. dependent or neglected as to both parents. Before the dispositional hearing, the Department filed a treatment plan requiring father to complete a Sex Offender Management Board (SOMB) evaluation. Father objected, arguing that it was not reasonably calculated to render him a fit parent and violated his constitutional rights against self-incrimination and to be free from criminal sanctions absent a criminal conviction. The juvenile court rejected father's argument and adopted the treatment plan.
On appeal, father argued that it was reversible error to exclude the remote testimony, citing administrative orders encouraging trial courts to authorize remote appearances during the pandemic. However, a juvenile court has discretion to consider remote testimony under CRCP 43. Here, the court did not abuse its discretion because the proposed testimony was only marginally relevant, father failed to show that testimony concerning family dynamics was not available from other witnesses, and technology issues presented potential problems.
Father also argued that the juvenile court erred by adopting a treatment plan that required him to complete an SOMB psychosexual evaluation and comply with the resulting recommendations. He maintained that by doing so, the juvenile court imposed a criminal requirement without him having been convicted of a sex offense. As an initial matter, the Court of Appeals held that a parent may appeal the content of the initial dispositional order, including treatment plan provisions, simultaneously with an appeal of an adjudicatory order.
The Court then turned to the merits, noting that dependency and neglect proceedings are not criminal in nature and are not intended to punish parents, while SOMB evaluations and treatment protocols are designed for convicted sex offenders and are built around die premise of guilt. The treatment protocols also create significant dilemmas for parents who wish to exercise their constitutional right to remain silent with respect to matters that may incriminate them. Accordingly, the use of a psychosexual evaluation and treatment under SOMB standards does not fulfil the basic and essential purpose of the treatment plan, which is to address the issues that gave rise to the adjudication so parents and their children may be safely reunited. Therefore, a parent may not be required over their objection to complete an SOMB psychosexual evaluation as a condition of their treatment plan if the parent has not been convicted of a qualifying sexual offense. Accordingly, the juvenile court erred.
The adjudicatory order was affirmed. The SOMB evaluation and compliance portion of the treatment plan was vacated and the case was remanded for modification of the treatment plan.
July 14, 2022
2022 COA 73. No. 20C A0629. People v. Crab-tree.
DUI—Prior Convictions—Penalties for Traffic Offenses Involving Drugs and Alcohol.
Defendant was arrested and charged with DUI (fourth or subsequent offense). He waived his right to counsel after the trial court gave him an advisement pursuant to People v. Arguello, 772 P.2d 87,92 (Colo. 1989), and he proceeded to trial pro se. Defendant was convicted as charged. In a subsequent hearing, the court found by a preponderance of the evidence that he had four prior alcohol-related driving convictions, so it elevated the misdemeanor DUI conviction to a class 4 felony.
On appeal, defendant argued that his conviction must be reversed because the totality of the circumstances indicates he was unable to knowingly and intelligently waive his right to counsel. Here, while many of defendant's statements during trial seem nonsensical, they do not suggest he was unable to understand the proceedings. Rather, defendant's statements track the beliefs of the "sovereign citizenship" movement to which defendant adheres. Further, other statements defendant made during trial show that he understood the proceedings. In addition, defendant received a proper advisement. Accordingly, defendant's decision was knowing and voluntary, his waiver was valid, and the trial court did not err.
Defendant also argued that the trial court plainly erred by not requiring the People to prove the fact of his prior alcohol-related driving convictions to the jury beyond a reasonable doubt. Under controlling authority when defendant was tried, in a felony DUI prosecution the fact of a defendant's prior convictions was considered a sentence enhancer that didn't have to be submitted to a jury or proved beyond a reasonable doubt. Following defendant's trial, the Colorado Supreme Court decided Linnebur v. People, 2020 CO 79M, which clarified that, in a prosecution for felony DUI, the fact of a defendant's prior alcohol-related convictions must be proved to the jury beyond a reasonable doubt. Given Linnebur's holding, it is clear the trial court erred by not submitting the issue to the jury. Further, while the error was not obvious at the time of trial, it became obvious during the appeal. Accordingly, defendant can benefit from the law change on appeal.
The judgment was affirmed in part and reversed in part, and the case was remanded for further proceedings.
2022 COA 74. No. 20CA1669. In re Marriage of Wenciker and Bolen.
Post-Dissolution of Marriage Proceeding—Motion to Modify— Emergency Motion—Endangerment.
Father moved post-dissolution of marriage to modify parenting time and to change decision-making from joint decision-making to sole decision-making by him. His motion largely rested on allegations of endangerment that he had asserted and failed to prove...
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