November 2016: Summaries of Published Opinions, 0117 COBJ, Vol. 46 No. 1 Pg. 103
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").
November 3, 2016
2016 COA 159. Nos. 14CA1435 & 14CA1436. People v. Harris. Cruelty to Animals—Warrant-Probable Cause-Statutory Authority-Constitutional-Double Jeopardy—Unit of Prosecution-Circumstantial Evidence-Indictment-CRE 404(b)-Photographs.
Responding to a call to animal control, state animal protection agents and employees of the Humane Society discovered dozens of malnourished and dead animals on defendant's ranch Two of the searches of defendant's property were pursuant to search warrants (a horse warrant and a dog warrant) and a third was made with defendant's permission Defendant was charged in two cases with cruelty to animals and aggravated cruelty to animals for needlessly killing an animal.
The cases were consolidated for trial. Defendant moved to bifurcate the trial. The trial court initially denied this motion, but reconsidered its ruling and announced that the animal cruelty charges would be determined by the jury and the existence of prior convictions would be determined separately by the court. The prosecution did not present evidence of the prior convictions to the jury.
Defendant also moved to suppress all evidence obtained from the search on grounds that the animal protection agents were not statutorily authorized to obtain a livestock warrant and that both warrants lacked probable cause. The court denied the motion to suppress.
At trial, the prosecution presented multiple witnesses, including an expert in veterinary medicine, who were on the property during the search and testified that the animals appeared severely malnourished and there was no evidence of food on the property. The prosecution also submitted numerous pictures of the animals. Defendant was convicted of 15 counts of animal cruelty (second offense) and seven counts of aggravated animal cruelty.
On appeal, defendant renewed her arguments that the animal protection agents were not statutorily authorized to obtain a livestock warrant, both warrants lacked probable cause, and the district court erred in not suppressing the evidence obtained from the illegal warrants. Under the plain language of the statute, the investigation of livestock cases is restricted to employees of the Division of Agriculture, brand inspectors, and sheriffs. Here, the animal protection agent was an employee of the Humane Society, a private nonprofit organization, and was not authorized to investigate livestock cases or to obtain the horse warrant. Although the animal protection agent exceeded her statutory authority in procuring the horse warrant, it was supported by probable cause and the statutory violation did not implicate constitutional concerns. Therefore, it did not require the suppression of evidence obtained from the search.
Defendant also contended that the court violated CRS § 18-1-408(1)(e) and double jeopardy principles by entering judgment and imposing sentence on each count of conviction for what amounted to a single course of conduct. Based on the language and purpose of CRS § 18-9-202, the unit of prosecution in animal cruelty cases is each animal abused or killed. Accordingly, the unit of prosecution permits the charging of multiple offenses.
Defendant further contended that there was insufficient evidence to convict her of the seven counts of aggravated cruelty to animals for needlessly killing an animal. While there was no direct evidence that the horses died because defendant did not feed them, there was substantial circumstantial evidence from which the jury could have drawn this inference and reached this conclusion beyond a reasonable doubt.
Defendant also argued that the charging documents filed in the two cases failed to charge an offense. Here, the indictment set forth the prohibited conduct—killing and mistreating specific animals by failing to provide necessary sustenance and care. Therefore, the indictment was sufficient to put defendant on notice of the charges against her and to allow her to prepare an adequate defense.
Defendant further contended that the trial court erred by initially denying her motion for bifurcation. However, there was no evidence presented that defendant had prior convictions; the court properly instructed the jury; and the weight of the evidence was significant, so it is unlikely that a mere reference to prior misdemeanor convictions substantially affected the verdict. Further, the court offered to give the jury a curative instruction, which defense counsel declined.
Defendant also contended that the trial court improperly admitted evidence of other bad acts under CRE 404(b). Evidence that animal protection agents previously seized horses from defendant in 2007, and that these horses were in poor condition and not being fed regularly, was logically relevant to defendant's claim that she did not cause their malnourishment.
Defendant additionally argued that the trial court erred in excluding photographs of the horses that were not malnourished. Because there was testimony about the condition of the other horses, however, the photographs were cumulative and had no additional probative value.
The convictions and sentences were affirmed.
2016 COA 160. No. 14CA2409. Red Flower, Inc. v. McKown.
Tax Liens—Redemption Period—Notice—Occupant—Diligent Inquiry—Actual Notice.
Plaintiff, Red Flower, Inc., bought tax liens on farmland owned by defendant, McKown. After the redemption period expired, the county treasurer issued a real property deed and a mineral deed (the deeds) to Red Flower. McKown subsequently challenged the validity of the deeds on the ground that the treasurer had failed to provide actual notice to a tenant farmer who grew crops on the property. The district court ruled that unlike owners and other interested parties who are subject to a "diligent inquiry" standard of notification, the occupant is entitled to actual notice of the issuance of the treasurer's deed. The court voided the deeds because the tenant farmer had not received actual notice.
On appeal, Red Flower contended that the court's interpretation of the notification requirement in CRS § 39-11-128(1)(a) adds a "diligent inquiry" element to the clause referring to actual possessors or occupants. McKown argued that the district court could have granted summary judgment in his favor for the additional reason that the treasurer's publication notice was deficient and therefore the deeds were void. CRS § 39-11-128 does not require actual notice to any of the listed persons. If the person is on the property, the statute presumes no real burden on the treasurer to locate the person. If the person is off the property, the statute requires the treasurer to make a "diligent inquiry" to find the person. Here, the real property deed, unlike the mineral deed, could not be issued until the treasurer published notice of its impending issuance. Because the publication notice was deficient, the district court's entry of summary judgment in favor of McKown on the real property deed was affirmed.
The summary judgment in favor of McKown was affirmed in part and reversed in part, and the case was remanded for the district court to determine, with respect to the mineral deed only, whether the treasurer used diligent efforts to notify the tenant of the issuance of the deed.
2016 COA 161. No. 15CA0652. People v. Sena. Attempt to Influence a Public Servant—Police Officer —Judicial Notice—Warrant.
Defendant was a passenger in his cousin's vehicle when a police officer stopped the vehicle for a traffic infraction. When asked to identify himself, defendant provided the name of a relative and a birth date that was not defendant's. When the officer discovered that defendant was lying about his identify and had an active arrest warrant, defendant was arrested...
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