Summaries of Published Opinions, 1218 COBJ, Vol. 47, No. 11 Pg. 86
| Position | Vol. 47, 11 [Page 86] |
COLORADO COURT OF APPEALS
October 4, 2018
2018 COA146. No. 15CA1722. People v. Oliver.
Criminal Law—Possession of a Weapon by a Previous Offender—Right to Jury Trial—Waiver.
Defendant was tried on two felony menacing charges. Before trial, the parties agreed to bifurcate a possession of a weapon by a previous offender (POWPO) count. However, near the end of the trial, defense counsel agreed with the court's suggestion of using a special interrogatory on possession instead of having a separate trial on the POWPO count after the jury returned its verdict on the menacing counts. Counsel also stipulated that defendant was a previous offender. The jury was not instructed on the POWPO charge. The jury acquitted defendant on one count and hung on the other. Based on the stipulation and the jury's "yes" answer to the special interrogatory that asked whether defendant had possessed a firearm, the trial court entered a judgment of conviction for POWPO.
On appeal, defendant argued that the trial court directed a verdict on the POWPO charge in violation of his federal and state constitutional rights to a jury trial, which he did not personally waive. To return a verdict, a jury must have been instructed on the offense. Here, even if counsel stipulated to the prior offender element, defendant did not personally waive his right to have the jury return a verdict on the POWPO charge, and the trial court never told the jury that it was deciding the POWPO charge. Therefore, the judgment of conviction on the POWPO charge violated defendant's constitutional right to a jury trial.
The judgment was reversed and the case was remanded for a new trial on this charge.
2018 COA 147. No. 17CA1605. BigSurWaterbeds, Inc. v. City of Lakewood. Sales and Use Tax—Displayed Furniture—Primary Purpose of Purchase.
The City of Lakewood (Lakewood) imposes use tax on tangible personal property purchased at retail and use din the city. The use tax does not apply to wholesale purchases (i.e., purchases for resale to others). Big Sur Waterbeds, Inc., Denver Mattress Co., LLC, and Sofa Mart, LLC (collectively, plaintiffs) purchase furniture tax-free from wholesalers worldwide and resell it in stores, including in Lakewood. At each Lakewood store, plaintiffs provide a showroom where they display furniture for customers to peruse and try out. Plaintiffs also maintain warehouses where they store the bulk of their inventory. Plaintiffs ultimately sell all the furniture, including the displayed furniture, and fill customer orders from either the warehouses or the showrooms. Plaintiffs' customers pay Lakewood's sales tax on each purchase.
Lakewood assessed use tax on plaintiffs' purchases of...
To continue reading
Request your trial