Summaries of Published Opinions, 0718 COBJ, Vol. 47, No. 7 Pg. 82

Position:Vol. 47, 7 [Page 82]
 
FREE EXCERPT

47 Colo.Law. 82

Summaries of Published Opinions

Vol. 47, No. 7 [Page 82]

The Colorado Lawyer

July, 2018

COLORADO COURT OF APPEALS

May 3, 2018

2018 COA 60. No. 14CA1390. People v. Kessler.

DUI—Evidence—Possession of a Controlled Substance—Search and Seizure—Search Incident to Arrest—Motor Vehicle—Reasonable Suspicion—Cross-Examination.

Defendant was pulled over by the police for speeding. Upon approaching the car with a flashlight, an officer spotted a half-empty schnapps bottle on the floor behind the passenger’s seat. The officer asked defendant for his license, registration, and proof of insurance multiple times before defendant presented his registration and proof of insurance. Defendant admitted he did not have a valid driver’s license. Because defendant showed signs of intoxication, the officer asked him to step out of the vehicle. Defendant needed to use the car door for support to get out of the car, and he eventually admitted he had drunk from the schnapps bottle. Defendant performed roadside sobriety maneuvers unsatisfactorily, and his breath test registered .154g/210L. Defendant was arrested for DUI and placed in the back of the police car. Two other officers then searched the car for further evidence of alcohol consumption and found a bag of cocaine in the console, inches from where defendant sat. Among other things, defendant was convicted of possession of a controlled substance (cocaine).

On appeal, defendant contended that the evidence was insufficient to convict him of possessing a controlled substance (cocaine). He argued that he was not in exclusive possession of the car on the date in question and denied knowing the cocaine was in the car. The possibility that someone else was in the car earlier that day does not change the fact that defendant was in exclusive possession of the vehicle when it was stopped and searched, making him subject to the inference that he knowingly possessed the cocaine. Further, the location of the cocaine and defendant’s testimony that no one else had interacted with the console support the inference. There was sufficient evidence for the jury to convict him on this charge.

Defendant next contended that the trial court should have suppressed evidence related to the recovery of cocaine from his car because the police lacked sufficient grounds to search the car once they seized the half-empty schnapps bottle. The police are permitted to search a vehicle incident to a lawful arrest. Here, the officer had probable cause to arrest defendant on a DUI charge, defendant initially denied consuming alcohol, and it was likely the officers would find evidence of alcohol while searching defendant’s vehicle. The officers’ reasonable suspicion that the car contained alcohol did not evaporate once the officers found some alcohol. Therefore, the search that uncovered the cocaine was proper.

Finally, at trial, the amount of alcohol in the schnapps bottle when the officer discovered it was contested: the officer said it was half full, while defendant testified it was two-thirds full. During cross-examination, the prosecution asked defendant if the officer “made up” the amount of schnapps in the bottle. Although the prosecution’s question was improper, it did not cast doubt on the reliability of the conviction. The error was not substantial and did not warrant reversal under the plain error rule.

The judgment of conviction was affirmed.

2018 COA 61. No. 15CA2082. People v. Cali.

Theft—Theft by Receiving—Appeal—Statutory Amendment—Collateral Attack—Crim. P. 35(c) (2)(VI)—Postconviction Remedies.

Cali was convicted of theft and theft by receiving, both class 4 felonies, as well as two habitual criminal counts. The trial court sentenced him to 18 years in the custody of the Department of Corrections. Cali directly appealed his convictions, and his theft conviction was vacated. After Cali had fled his notice of appeal in the direct appeal and while the appeal was still pending, the legislature reclassified theft by receiving, as committed by Cali, to a class 6 felony. After his direct appeal became final, Cali timely fled a pro se Crim. P. 35(c) motion asserting, as relevant here, that he was entitled to the benefit of the changed statute. The postconviction court denied Cali’s motion without a hearing.

On appeal, Cali argued that the trial court erred by analyzing his postconviction claim as a request for retroactive application of the statutory amendment. He contended that because the amendment took effect while his direct appeal was pending and before his conviction became final, he is entitled to the benefit of the amendment. The amended statute applied to Cali because before Cali’s conviction became final, the State lost the authority to prosecute him for committing the class 4 felony of theft by receiving. That a different statute classifying theft by receiving as a class 6 felony could then be applied to Cali does not change the fact that the State lost the authority to enforce the statute under which Cali had been convicted. Although Cali did not raise the State’s loss of authority to prosecute him before his conviction became final on appeal, he could collaterally attack his conviction under Crim. P. 35(c)(2)(VI). Cali asserted a timely postconviction claim that entitles him to reversal of his conviction. But the trial court must convict him of the class 6 felony and sentence him accordingly.

The postconviction order was reversed. Cali’s conviction was vacated, and the case was remanded with directions.

2018 COA 62. No. 16CA0192. People v. Madison.

Restitution Agreement.

Madison stole scores of bottles of expensive wine from multiple liquor stores. He pleaded guilty, and the court sentenced him to a two-year term of probation and ordered restitution. As p art of the restitution agreement, Madison was permitted to take possession of the stolen property if he paid restitution to the victims within a contractual period of time. (The liquor stores declined to accept the recovered wine because the storage method could not be confirmed, and thus the wine was not marketable.) Madison and the prosecution also entered into an “Evidence Disposition Agreement.” Defendant did not pay the restitution and, five years later, the sheriff's office moved for an order authorizing it to destroy the stolen property. The motion was granted by the court.

On appeal, Madison argued that he had an ownership interest in the wine. He contended that the court should have either permitted him to sell the wine or ordered the sheriff’s office to sell it, with any proceeds applied to his restitution obligation. Disposition of the wine was governed by the restitution agreement, which expressly provided for the destruction of the wine if Madison failed to both pay the restitution and pick up the wine within 90 days. Because Madison failed to meet that deadline, the sheriff's office had the right to dispose of the wine without seeking approval from the court or notifying Madison. Further, the agreement did not give Madison the right to determine the particular disposition of the wine or to demand that any proceeds from the disposition be distributed to the victims and then applied to reduce his restitution balance.

Madison also contended that the agreement gave him an ownership interest in the wine, notwithstanding his failure to satisfy its requirements, based on the Uniform Commercial Code (UCC) and conversion principles. Disposition of the stolen property is governed by the agreement, not by the UCC or conversion principles. Madison had a right to obtain the property only upon satisfaction of conditions precedent, which he failed to satisfy.

The order was affirmed.

2018 COA 63. No. 16CA0428. In re Parental Responsibilities Concerning W.C. Parental Responsibilities—Jurisdiction—Appeal—Motion to Modify—Changed Circumstances.

In this allocation of parental responsibilities case, father appealed the district court’s permanent orders granting mother sole decision-making authority and majority parenting time. Tough his appeal is pending with this court, father fled verified motions to modify parenting time and decision-making in the district court. The district court concluded that it lacked jurisdiction to consider those motions while the appeal was pending; it decided to take no action on father’s motions unless and until the Court of Appeals finds that the district court has jurisdiction or remands and gives the court authority to consider the motions.

The Court determined that under Colorado’s Uniform Dissolution of Marriage Act, a district court retains continuing jurisdiction over motions to modify parental responsibilities while the current allocation order is on appeal, as long as those motions are based on a material change in...

To continue reading

FREE SIGN UP