December 2016: Summaries of Published Opinions, 0217 COBJ, Vol. 46 No. 2 Pg. 109


46 Colo.Law. 109

December 2016: Summaries of Published Opinions

Vol. 46, No. 2 [Page 109]

The Colorado Lawyer

February, 2017

Colorado Court of Appeals

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, (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, (click on "Courts/Court of Appeals/Case Announcements").

December 1, 2016

2016 COA 174. No. 13CA2024. People v. Delgado. Robbery-Theft-Force-Inconsistent Verdicts.

Defendant allegedly beat the victim unconscious and took items from his pockets. Defendant was convicted of robbery and theft from the person of another.

On appeal, Delgado argued that his conviction should be reversed because the trial court erred in finding that there could be simultaneous convictions for robbery and theft from the person of another for the same act. On the one hand, robbery requires that a person take "by the use of force." On the other, theft from the person of another requires that a person take "by means other than the use of force." Because the force elements of robbery and theft from the person of another negate each other, guilty verdicts on both are legally and logically inconsistent.

Defendant also contended that he was acquitted of both crimes because "each verdict included a jury finding that effected an acquittal on the other count." The Court of Appeals determined that the proper remedy when guilty verdicts are legally and logically inconsistent is to remand for a new trial so a jury can determine which conviction the evidence supports.

The judgment and sentence were reversed and the case was remanded for trial.

2016 COA 175. No. 14CA0710. People v. Hardin.

Robbery-Murder-Postconviction Motions-Delay-Due Process—Prejudice—Ineffective Assistance of Counsel—Right to Testify—Waiver.

Defendant was convicted of two counts of aggravated robbery and two counts each of felony murder and murder after deliberation. Defendant spent the next several years filing postconviction motions and appeals through a succession of private attorneys. He also filed a pro se Crim. P. 35(c) motion for postconviction relief raising numerous claims, including ineffective assistance of counsel. About 24 years after trial and 12 years after defendant filed his original Crim. P. 35(c) motion, the court denied the motion.

On appeal, defendant argued that the court erred in concluding that the proper remedy for the 12-year delay in resolving his postconviction claims, which violated his right to due process, was to finally address his Crim. P. 35(c) motion rather than grant him a new trial. The Court of Appeals employed a four-part balancing test that considers (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) whether the defendant suffered prejudice as a result of the delay. The length of the delay must be presumptively prejudicial to the defendant before further inquiry into the other factors is warranted. The Court concluded that the 12-year delay was presumptively prejudicial. Regarding the second factor, any negligence of defendant's counsel is attributable to him, even though his attorneys were appointed by the court. The third factor weighed in defendant's favor. However, defendant did not demonstrate prejudice resulting from the delay sufficient to establish a due process violation. The proper remedy for the delay was to address the Crim. P. 35(c) motion rather than grant a new trial.

Defendant next argued that the court erroneously denied his motion for postconviction relief. The record shows that defendant did not suffer prejudice as a result of any alleged ineffective assistance of trial counsel.

Lastly, defendant contended that the court erred in finding that he validly waived his right to testify at trial. Although defendant initially decided to testify, he was again given the proper advisement when he decided not to testify hours later, and he remained firm in his decision to forgo testifying. Therefore, defendant's waiver was voluntary, knowing, and intelligent.

The order was affirmed.

2016 COA176. No. 14CA1321. Hawg Tools, LLC v. Newsco International Energy Services, Inc. Design—Trade Secret—Conversion—Defense—Waiver—Standing—Breach of Contract .

Hawg Tools, LLC (Hawg) rents mud motors to oil and gas drilling companies. Newsco International Energy Services, Inc. (Newsco) uses mud motors to provide drilling services. Gallagher owned Hawg. Before he formed this company, he operated a similar business called New Venture. In 2008 Gallagher asked a machinist to manufacture sealed bearing packs for use in New Venture's mud motors. The machinist arranged for a designer, defendant Ficken, to design the sealed bearing packs for the machinist as a favor. The designer assigned his rights in the design to the machinist, who assigned them to Gallagher for compensation. Gallagher later assigned the rights to Hawg. The designer later designed a sealing bearing pack for Newsco. After determining that the Newsco design was similar to the Hawg design, Gallagher filed this lawsuit alleging (1) misappropriation of a trade secret concerning the design of a sealed bearing pack, (2) conversion of a trade secret, and (3) breach of contract. The trial court entered judgment in favor of plaintiff. The trial court denied defendants motions for directed verdict and judgment notwithstanding the verdict.

On appeal, defendants contended that the trial court erred when it denied their motions for directed verdict and judgment notwithstanding the verdict on Hawg's claim for misappropriation of a trade secret. CRS § 7-74-102(4) defines a trade secret as "the whole or any portion . . . of any . . . design . . . which is secret and of value." To determine whether a trade secret exists, the fact finder considers (among other thing) the extent to which the information is known outside the business. Here, Hawg did not establish that its design, in whole or in part, was substantially different from designs that were publicly available at the time of its creation. The Court of Appeals concluded that (1) the record does not support a conclusion that the Hawg design was secret and (2) the record does not contain sufficient evidence to support the trial court's decision to deny defendants' motions for a directed verdict and for judgment notwithstanding the verdict.

Defendants also contended that the trial court erred when it denied their motion for judgment notwithstanding the verdict on Hawg's conversion claim, asserting that the Uniform Trade Secrets Act preempts claims for conversion of trade secrets. This was a preemption defense based on choice of law, which defendants waived because they raised it for the first time in their motion for judgment notwithstanding the verdict.

Ficken appealed the judgment against him on Hawg's breach of contract claim, contending that the trial court erred when it rejected his assertion that Hawg lacks standing to bring suit against him for breach of contract based on his violation of a confidentiality agreement. Here, the designer and the machinist entered into an assignment agreement with Gallagher. Later, Gallagher fully assigned his rights under this agreement to Hawg. Therefore, Hawg had standing to bring suit for breach of that agreement.

The judgment on Hawg's claim for misappropriation of a trade secret was reversed and the case was remanded for the trial court to enter judgment in favor of defendants on that claim and to vacate the award of damages on that claim. The judgment on Hawg's claims for conversion and breach of contract were affirmed.

2016 COA 177. No. 15CA1327. Przekurat v. Torres. Dram Shop Act—Intoxication—Knowledge— Evidence.

Sieck drove Przekurat home from a party in Przekurat's car. Sieck, who was highly intoxicated at the time of the accident and was under age 21, drove at speeds in excess of 100 miles per hour before losing control of the car and colliding with an embankment. Przekurat sustained catastrophic injuries, including brain damage. Przekurat's father sued the four hosts of the party, claiming they "knowingly provided [Sieck] a place to consume an alcoholic beverage" and thus were liable for his damages under the 2005 amendments to the Dram Shop Act. The trial...

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