January 2017: Summaries of Published Opinions, 0317 COBJ, Vol. 46 No. 3 Pg. 121

 
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46 Colo.Law. 121

January 2017: Summaries of Published Opinions

Vol. 46, No. 3 [Page 121]

The Colorado Lawyer

March, 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, 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”).

         January 12, 2017

         2017 COA 1. No. 13CA2117. People v. Garcia.

Protection Order-Sexual Assault-Knowingly-Jury Instructions-Sentence Enhancement-Force-Sexually Violent Predator.

         A protection order was issued prohibiting Garcia from contacting his wife, the victim One night, when Garcia went to the victim’s home to watch their children, he physically struggled with the victim, attempted to have sexual contact with her, and eventually left, taking her vehicle. During the altercation, he prevented the victim from calling 911. Garcia was convicted of first degree burglary, attempted sexual assault, violation of a protective order, and obstruction of telephone service. He was sentenced to 10 years and designated a sexually violent predator (SVP).

         On appeal, Garcia first contended that the trial court erred in not applying “knowingly” to every element of the offense of sexual assault, including the “caused submission” element. Based on the jury instructions that existed at the time of Garcia’s trial, which did not offset “knowingly” as a separate element to indicate that it applies to every other element of the offense, and the language of the statute, there was no plain error.

         Garcia next contended that his conviction and sentence for both class 4 attempted sexual assault and class 4 unlawful sexual contact must be vacated because the jury was not instructed and thus did not find that Garcia knowingly used force to cause submission such that elevation of the offense to a higher class felony is warranted. Statutory provisions that raise the felony level of an offense are generally regarded as sentence enhancement provisions, not elements of the offense, because a defendant may be convicted of the underlying offense without any proof of the enhancer. Because there is a published opinion that rejects Garcia’s contention, any error made b y the trial court in instructing the jury was not plain error because it was not obvious.

         Garcia next contended that the trial court’s interrogatory on force relating to attempted sexual assault and unlawful sexual contact was erroneous because the court did not define “force,” “intimidation,” and “threat.” The trial court was not required to separately define “force” in instructions for a charge under the sexual assault statute.

         Garcia further contended that the trial court erred by failing to instruct the jury that “knowingly” applied to every element of the crime of violation of a protective order. Although the trial court erred by failing to instruct the jury that “knowingly” applied to every element of the crime of violation of a protection order, there was no plain error because there was overwhelming evidence of Garcia’s guilt.

         Garcia next contended that the trial court erred in designating him an SVP because he neither established nor promoted his relationship with the victim for purposes of sexual victimization, as required by the statute. This issue was remanded to the trial court for reconsideration in light of two recent Colorado Supreme Court decisions that clarified the meaning of the phrase “established or promoted a relationship.”

         The judgment and sentences were affirmed and the SVP designation was remanded for reconsideration.

         2017 COA 2. No. 15CA0965. Denver Classroom Teachers Ass’n v. School District No. 1. Collective Bargaining Agreements—Damages—Statute of Limitations—Administrative Remedies.

         School District No. 1 and the Board of Education of School District No. 1 in the County of Denver and State of Colorado (collectively, the District) and the Denver Classroom Teachers Association (DCTA) entered into several collective bargaining agreements (CBAs) and extensions from 2005 to 2015. From the mid-1990s until the 2006–07 school year, the District compensated teachers for attending English Language Acquisition (ELA) training. ELA is a program to train teachers to work more effectively with students who have limited English language proficiency. A federal consent order requires the District to have teachers who are trained to teach such students. After the 2006–07 school year, the District stopped paying teachers for attending the training. DCTA filed a grievance against the District alleging violations of the 2005–08 CBA. DCTA subsequently filed suit for breach of the 2005–08 and 2008–11 CBAs and the extensions, and a jury returned verdicts in favor of DCTA for breach of contract, but it held the District not liable in special interrogatories regarding breach for teachers in the Professional Compensation (ProComp) system.

         On appeal, the District first contended that the CBAs and extensions were unambiguous and that they did not require the district to pay teachers for ELA training. Because the articles provide for payment for work beyond the 40-hour week, and because the ELA training may fall into that category, the contract was fairly susceptible to being interpreted to require payment for such work. Therefore, the CBAs were ambiguous, and the trial court properly let the interpretation go to the jury as a question of fact.

         The District next contended that additional evidence showed unambiguously that it was not required to compensate teachers for ELA training beyond that year because (1) ELA training was a special condition of employment and (2) the parties’ bargaining history indicates that any requirement to compensate teachers for ELA training was purposely excluded from the CBAs. First, the CBAs were ambiguous regarding whether ELA training is a “special condition” regarding assignment of the teacher, requiring the teachers, not the District to pay for the training. Second, the District’s past practice of paying teachers for ELA training supported DCTA’s position that the CBAs entitled teachers to receive pay for ELA training. Therefore, the question was properly given to the jury.

         The District also asserted that the trial court erred in not precluding recovery of damages that accrued before October 24, 2007, which was six years before the case was filed. The statute of limitations for breaching a CBA is six years. The District stopped paying teachers for ELA training starting with the 2007–08 school year, which began on August 13, 2007. DCTA filed its complaint on October 24, 2013. The trial court did not commit reversible error in deciding to award damages for the complete fall 2007 semester.

         Finally, the District contended that DCTA should...

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