Colorado Court of Appeals, 0816 COBJ, Vol. 45, No. 8 Pg. 109
Summaries of Published Opinions
Summaries of Published Opinions
The summaries of Colorado Court of Appeals published opinions are written for the CBA by licensed attorneys Teresa Wilkins (Englewood) and Paul Sachs (Steamboat Springs). They are provided as a service by the CBA; are not the official language of the Court; and are available only in The Colorado Lawyer and on the CBA website, www.cobar.org (click on “Opinions/Rules/Statutes”). The CBA cannot guarantee their accuracy or completeness. The full opinions, the lists of opinions not selected for official publication, the petitions for rehearing, and the modified opinions are available both on the CBA website and on the Colorado Judicial Branch website, www.courts.state.co.us (click on “Courts/Court of Appeals/Case Announcements”).
June 2, 2016
2016 COA 85. No. 11CA2514. People v. Nardine. CRS § 186.5-103(7)(c)-Mens Rea Element-At-Risk Juvenile-Prosecutorial Misconduct-Character Evidence-Other Acts Evidence.
Nardine was convicted of unlawful sexual conduct on an at-risk juvenile. On appeal, Nardine contended that CRS § 18-6.5-103(7)(c) has an implied mens reaelement that requires the prosecution to prove that a defendant knew of the victim’s at-risk status. He thus argued that the evidence was insufficient to convict him and the trial court erroneously instructed the jury by submitting a special interrogatory that did not include a mens rea for the at-risk element. The Court of Appeals disagreed with his interpretation of the statute. A defendant need not know that the victim is “at-risk” to be convicted of unlawful sexual contact on an at-risk juvenile. Consequently, Nardine’s challenges to the sufficiency of the evidence and the special interrogatory were rejected.
Nadine also contended that numerous instances of prosecutorial misconduct during closing argument, in their totality, rose to the level of plain error and required reversal of his conviction Under the circumstances of this case, the prosecutor improperly (1) characterized the defense theory as a disingenuous scheme commonly perpetuated by defense attorneys to take advantage of victims with mental illness to obtain wrongful acquittals; (2) appealed to the jurors’ religious beliefs and “lambasted” the defense theory by characterizing it as an attack on these beliefs; (3) argued that defense counsel did not believe his own client; (4) argued facts outside the record; and (5) vouched for witness credibility. Because the misconduct so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the verdict, reversal was required.
Additionally, Nardine contended that the trial court should have excluded CRE 404(a) character evidence that he was “a sexual predator” and “not a very good person, ” and CRE 404(b) evidence of specific other acts of sexual misconduct. The witness statements about Nardine being “not a good person” and a “sexual predator” were inadmissible under CRE 404(a). Evidence of other acts of sexual misconduct against others, however, was permissible to show that Nardine had a similar intent, motive, common plan, scheme, and method of operation.
The judgment was reversed and the case was remanded.
2016 COA 86. No. 13CA1215. People v. Mountjoy, Jr.
Consecutive Sentencing—Aggravated Range—Jury—Evidence.
Defendant was convicted of manslaughter, illegal discharge of a firearm (reckless), and tampering with physical evidence. The trial court imposed a sentence in the aggravated range on each count, to be served consecutively.
On appeal, defendant first contended that each of his aggravated range sentences violated Apprendi v. New Jersey and Blakely v. Washington. Answering a novel question, the Court of Appeals determined that if a trial court sentences in the aggravated range based on facts not found by a jury, the sentence may be affirmed based on harmless error if the record shows beyond a reasonable doubt that a reasonable jury would have found those facts had the jury been requested to do so by special interrogatory. Based on the overwhelming evidence of guilt in this case, a jury would have found the facts on which the trial court relied in imposing aggravated range sentences, and therefore any error was harmless beyond a reasonable doubt.
Defendant also contended that the trial court abused its discretion in sentencing him consecutively on each conviction. A trial court may impose either concurrent or consecutive sentences where a defendant is convicted of multiple offenses. But when two or more offenses are supported by identical evidence, the sentences must run concurrently. Here, separate acts supported defendant’s convictions for manslaughter and illegal discharge of a weapon. Further, the facts supporting the tampering with evidence conviction did not involve the same acts as either the illegal discharge or manslaughter convictions. Because the record shows that each conviction was supported by distinct evidence, the trial court did not abuse its discretion in imposing consecutive sentences.
The sentences were affirmed.
2016 COA 87. No. 13CA1736. People v. Triplett.
Residential Community Correct ions Facility—Search —Reasonable Expectation of Privacy—Fourth Amendment—Fifth Amendment—Voluntary Statements.
Triplett was serving a sentence at a residential community corrections facility. A community justice officer conducted an unscheduled search of Triplett’s clothing while he was showering and discovered a vial of drugs. Triplett was convicted of possession of a controlled substance.
On appeal, Triplett contended that the trial court erred in denying his motion to suppress (1) the drugs found in his clothing, because this find resulted from an unconstitutional search, and (2) his statements to the police officer who questioned him about the drugs, because the statements should have been suppressed as “fruit of the poisonous tree” and were involuntary. The Court of Appeals found that the search was proper because, as an inmate, Triplett had no reasonable expectation of privacy in his clothing while at the residential community corrections facility, and the search was reasonable under the Fourth Amendment. Because the search was reasonable, Triplett’s argument that the statements he made to the police officer were fruit of the poisonous tree failed.
Alternatively, Triplett contended that his statements to the police officer should have been suppressed under the Fifth Amendment as involuntary under the totality of the circumstances. The Court disagreed, finding the statements were voluntary and admissible.
The judgment was affirmed.
June 16, 2016
2016 COA 88. No. 13CA1431. People v. Travis. Assault —Interview—Miranda—Motion to Suppress— Request for New Counsel— Continuance—Prosecutorial Misconduct .
Travis was convicted of second degree assault causing serious bodily injury, felony menacing, and third degree assault with a deadly weapon. She was sentenced to 10 years’ imprisonment and three years of mandatory parole.
On appeal, Travis argued that the trial court erroneously concluded that she was not in custody during the interview with police that occurred at her home and that, because she was not advised of her Mirandarights, the court erred in denying her motion to suppress the statements she made at that time. The Court of Appeals determined that (1) neither of the officers used physical restraint or force on Travis during the interview at her home; (2) Travis did not request to end the interview; (3) the interview was brief; (4) only two officers questioned Travis, the tone of the interview was conversational, and the questioning took place in Travis’s home with her husband in view; and (5) the interview took place in Travis’s kitchen, not in a secluded location. Thus, Travis was not in custody when she gave the statements at her home to the police, the statements were voluntary, and the trial court did not err in denying her motion to suppress them.
Travis also argued that the trial court abused its discretion when it denied her request for a continuance to seek new counsel on the morning of trial. Because there was insufficient information in the record to determine whether the trial court weighed the 11 essential factors or abused its discretion in denying the motion to continue, the case was remanded to the trial court for additional findings.
Additionally, Travis argued that the prosecutor’s closing argument was improper. However, the prosecutor’s remarks were a fair comment on the defense’s jury argument that while Travis was guilty of a crime, she was not guilty of the principal charges filed against her.
The judgment was affirmed in part and the case was remanded with directions.
2016 COA 89. No. 14CA0529. Lensky v. DiDomenico.
Adverse Possession—Quiet Title—Putative Adverse Possessor.
In 1998, Lensky purchased a one-acre parcel of property from the Valdezes. Title insurance could not be provided because all of the structures and improvements that Lensky had purchased from the Valdezes were “off the deed” and actually located on adjacent land rather than on the deeded property. In 2001, Lensky filed a quiet title action, claiming fee simple ownership to the approximately 23 acres adjacent to the property he had purchased from the Valdezes by adverse possession. Litigation continued for a number of years. The trial court ultimately found in favor of defendants and ordered Lensky to remove certain structures that restricted access to the subject property. It further ordered Lensky and his associates to refrain from confronting defendants as they entered or left the subject property.
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