Summaries of Published Opinions, 0219 COBJ, Vol. 48, No. 2 Pg. 80

PositionVol. 48, 2 [Page 80]

48 Colo.Law. 80

Summaries of Published Opinions

Vol. 48, No. 2 [Page 80]

The Colorado Lawyer

February, 2019

COLORADO COURT OF APPEALS

December 13, 2018

2018 COA 170. No. 14CA0505. People v. Godinez.

Juvenile Law—Delinquency—Direct Filing—Statutory Amendment—Retroactive Application—In-Court Identification—Hear-say—Constitutionality.

A jury convicted Godinez of two counts of second degree kidnapping, two counts of sexual assault, and two counts of conspiracy to commit sexual assault. Godinez committed the crimes when he and some of his brothers used a deadly weapon to kidnap and forcibly sexually assault two women in two separate incidents. Godinez was 15 years old when he committed the crimes. The district court sentenced him to a controlling term of imprisonment of 32 years to life in the custody of the Department of Corrections.

On appeal, Godinez argued that the district court did not have jurisdiction to try him as an adult because the amendments made by the General Assembly in 2012 to the statute that authorizes criminal direct fling in district court against a juvenile (the 2012 Amendments) increased the direct-fling age from 14 to 16. The 2012 Amendments are only applicable to cases fled on or after the effective date of the 2012 Amendments. It is undisputed that Godinez committed and was charged with the crimes before the enactment of the 2012 Amendments. The 2012 Amendments (1) did not divest the court of jurisdiction over Godinez; (2) do not apply retroactively; and (3) are not applicable to Godinez.

Godinez next contended that the trial court committed reversible error when it permitted S.R., one of the victims, to identify him during trial, because her in-court identification was tainted by a suggestive out-of-court identification procedure. It was for the jury, not the court, to assess the reliability of the in-court identification in light of the parties’ stipulation that S.R. was unable to identify Godinez in a prior out-of-court identification procedure. Thus, the court did not err in allowing S.R.’s spontaneous in-court identification of Godinez.

Godinez also contended that the court violated his confrontation, fair trial, and due process rights by admitting the testimonial hearsay of four declarations. Because the statements of Edgar, one of Godinez’s brothers and co-conspirators, were offered for their falsity rather than their truth, they were not hearsay and were therefore admissible. Further, the district court did not err in admitting the statements of A.G., one of Godinez’s brother’s, and A.G.’s girlfriend’s statements over a hearsay objection, because those statements were not offered for their truth but for their effect on the police investigation. Finally, the prosecution offered the stepmother’s statement to prove the falsity of A.G.’s statements. Even if this evidence was erroneously admitted, it was harmless given the other substantial evidence against Godinez.

Godinez last contended that Colorado’s related sentencing statutes were unconstitutional as applied to him under the Sixth and Eighth Amendments to the U.S. Constitution. The thrust of his contention was that his aggregate sentence is the functional equivalent of a life without parole sentence. Godinez was convicted of multiple offenses for which he was sentenced to imprisonment for 32 years to life. He will be eligible for his first parole hearing in 32 years. Therefore, Godinez’s sentence was not unconstitutional.

The judgment of conviction and sentences were affirmed.

2018 COA 171. No. 16CA0138. People v. Rigsby.

Criminal Law—Second Degree Assault—Third Degree Assault—Inconsistent Verdicts—Mens Rea—Double Jeopardy.

During a bar fight, Rigsby struck the victim in the face with a glass. Rigsby was charged and convicted of two counts of second degree assault and one count of third degree assault, a lesser included offense. The trial court sentenced him to five years in the custody of the Department of Corrections for the second degree assault convictions and 66 days in jail for the third degree assault conviction, with all sentences running concurrently.

On appeal, Rigsby contended that the jury verdicts are logically and legally inconsistent. Rigsby could not have simultaneously acted with knowledge to cause bodily injury while also acting without knowledge, unaware of the risk of causing bodily injury. Because the second degree assault convictions required the jury to determine he was aware of the risk of bodily injury, and thus acted with intent or recklessly, while the third degree assault conviction required the jury to find he was unaware of the risk of bodily injury, the jury verdicts were legally and logically inconsistent. Logically and legally inconsistent verdicts require a new trial because the jury’s findings cannot be reconciled to determine its intent.

Rigsby also contended, and the people conceded, that his three convictions must merge because they are multiplicitous and violate the Double Jeopardy Clause. A defendant is constitutionally protected from multiple convictions for the same offense when the relevant statute does not create separate offenses for the same criminal conduct. If, on remand, the jury again convicts Rigsby of both second degree assault counts, Rigsby’s three convictions must merge because they are multiplicitous and violate the Double Jeopardy Clause.

The convictions were reversed and the case was remanded for a new trial.

2018 COA 172. No. 16CA0385. People in re C.M.D.

Juvenile Law—Sex Offender—Colorado Sex Offender Registration Act—Constitutional Law—Eighth Amendment—Cruel and Unusual Punishment—Fourteenth Amendment—Due Process.

C.M.D. was adjudicated delinquent based on an incident involving unlawful sexual contact when he was 17 years old. At the time of the incident, C.M.D. was serving a sentence in the Department of Youth Corrections based on prior adjudications, one of which was also for sexual assault. At sentencing, he was ordered to register as a sex offender under the Colorado Sex Offender Registration Act (CSORA).

On appeal, C.M.D. contended that, as applied to him and similarly situated juveniles, CSORA violates constitutional prohibitions against cruel and unusual punishment. Under the facts of this case, the Court of Appeals was not persuaded to depart from Colorado precedent holding that the sex offender registration requirement is not punishment. It therefore did not reach the questions whether such requirement is cruel or unusual. C.M.D. had a previous adjudication for unlawful sexual contact, so the magistrate was statutorily precluded from waiving the registration requirement.

C.M.D. also argued that mandatory, lifetime sex offender registration under CSORA, as applied to him and similarly situated juveniles, violates due process. CSORA’s stated purpose of protecting the public is rational, and C.M.D.’s claim does not implicate a fundamental right. C.M.D. did not show that CSORA violates due process or fundamental fairness when applied to juveniles in the circumstances presented here.

The order was affirmed.

2018 COA 173...

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