Summaries of Published Opinions, 0618 COBJ, Vol. 47, No. 6 Pg. 96

PositionVol. 47, 6 [Page 96]

47 Colo.Law. 96

Summaries of Published Opinions

Vol. 47, No. 6 [Page 96]

The Colorado Lawyer

June, 2018

COLORADO COURT OF APPEALS

April 5, 2018

2018 COA 46. No. 15CA0413. People v. Fort-son. Sexual Assault on a Child—Prosecutorial Misconduct—Character Evidence—Other Acts Evidence.

A jury found Fortson guilty of one count of sexual assault on a child and one count of sexual assault on a child as a part of a pattern of abuse.

On appeal, Fortson contended that the prosecutor improperly referenced and elicited evidence of other acts of sexual assault and sexual misconduct for propensity purposes and that she did so without first seeking to admit the evidence, presenting an offer of proof, or obtaining a ruling. The prosecutor committed misconduct when she repeatedly introduced, referenced, and argued to the jury that defendant previously committed uncharged sexual assaults against four other girls and the victim. The prosecutor did not seek the admission of the alleged uncharged sexual assaults for a proper purpose and improperly used this evidence for propensity purposes. The prosecutor’s pervasive misconduct undermined the fundamental fairness of the trial and cast serious doubt on the reliability of the judgment.

The judgments of conviction were reversed and the case was remanded.

2018 COA 47. No. 15CA1175. People v. Short.

Sexual Assault on Child—Testimony—Credibility—Rule of Completeness—Exculpatory Statement—Hearsay Exceptions—Sentence.

A jury found Short guilty of sexual assault on a child and sexual assault on a child as a pattern of abuse.

On appeal, Short contended that the testimony of three witnesses improperly bolstered the victim’s credibility. Short did not object to any of this testimony. It was not improper for the therapist to testify as an expert as to the typical demeanor and behavioral traits displayed by a sexually abused child. It was also not improper for the detective to testify concerning his observations about child victim disclosures; he rendered no opinion about whether a child’s difficulty in disclosing something made it more or less likely that he or she was telling the truth. Finally, although the grandmother’s testimony that the victim “normally would not lie about something like that” was improper, it did not warrant reversal.

Short also argued that the trial court erroneously compelled him to forgo admitting an exculpatory part of a statement he gave to the police by telling him that, if that part of the statement was admitted, the prosecution would be permitted to expose the jury to the fact that he had previously been convicted of a felony. The trial court properly determined that Short’s otherwise inadmissible self-serving hearsay was admissible under the rule of completeness to qualify, explain, or place into context the evidence proffered by the prosecution. However, a defendant’s exculpatory statement to the police admissible under the rule of completeness is not subject to impeachment under CRE 806. Although the trial court erred, the error was harmless.

Short also contended and the People conceded that only one judgment of conviction and sentence should have been imposed in this case. The trial court incorrectly entered separate convictions for sexual assault on a child and sexual assault on a child as a pattern of abuse. The pattern of abuse count acts only as a sentence enhancer.

The judgment was affirmed in part and vacated in part, and the case was remanded with directions.

2018 COA 48. No. 16CA0826. People v. Henry.

Restitution—Victim Compensation Board— Rebuttable Presumption—In Camera Review.

A jury convicted defendant of third degree assault. The trial court imposed a two-year jail term and ordered defendant to pay $900 in restitution. Defendant objected to the amount, requesting additional documentation to support the restitution request and a hearing. The court denied the request for additional documentation and granted the hearing request. After an evidentiary hearing, the court upheld its order regarding the restitution amount because defendant failed to offer any evidence rebutting the compensation board director’s testimony.

On appeal, defendant contended that the record did not contain sufficient evidence to support the trial court’s decision to order him to pay $230 in restitution to the compensation board for the victim’s lost wages. CRS § 18-1.3-603(10)(a) creates a rebuttable presumption: once the compensation board has established that it paid a victim a set amount, the defendant has the burden of introducing evidence to show that the amount paid was not the direct result of his criminal conduct. Here, the prosecution proved by a preponderance of the evidence that the victim had lost $230 in wages and that the compensation board had paid that amount to her, and defendant did not rebut the presumption.

Defendant also asserted that the trial court should have conducted an in camera review of the compensation board’s records. Because defendant’s request for an in camera review was speculative and not based on an evidentiary hypothesis, the court did not err in denying defendant’s request for an in camera review.

The order was affirmed.

2018 COA 49. No. 17CA0405. Preferred Professional Insurance Co. v. The Doctors Company. Medical Malpractice—Primary Insurance Policy—Excess Insurance Policy— Equitable Subrogation—Bad Faith.

A medical malpractice suit was fled against Dr. Singh and other parties. The Doctors Company (TDC), the primary insurer, defended Dr. Singh in the suit as required by its primary liability policy. Preferred Professional Insurance Company’s (PPIC) insurance policy was an “excess policy,” which would cover any losses that exceeded TDC’s $1 million coverage up to an additional $1 million. As an excess insurer, PPIC did not have any duty to defend Dr. Singh in the suit. The plaintiff in the medical malpractice suit offered to settle the case with Dr. Singh for $1 million, the amount of TDC’s policy limits. Dr. Singh conveyed his desire to accept the settlement offer to both insurers, but TDC declined to settle the case. PPIC told Dr. Singh he should accept, and it paid the $1 million settlement. PPIC then fled suit against TDC for equitable subrogation to recover the amount paid. The district court granted summary judgment in PPIC’s favor without addressing TDC’s argument that PPIC was required to prove that TDC refused to settle in bad faith.

On appeal, TDC contended that the district court erred as a matter of law because an equitable subrogation claim brought by an excess insurer against the primary insurer to recover the amount paid in settlement can only be derivative of the insured’s rights. Thus, PPIC’s refusal to plead and present evidence that TDC acted in bad faith...

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