Summaries of Published Opinions, 1019 COBJ, Vol. 48, No. 9 Pg. 111

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48 Colo.Law. 111

Summaries of Published Opinions

Vol. 48, No. 9 [Page 111]

Colorado Lawyer

October, 2019

COLORADO COURT OF APPEALS

July 3, 2019

2019 COA100. No. 15CA2149. People v. Bott.

Criminal Law—Child Pornography—Sexual Assault on a Child by One in a Position of Trust— Sexual Exploitation of a Child—Corpus Delicti Rule—Trustworthiness Standard—Confession— Retroactive—Possession—Double Jeopardy.

In 2010, as part of his sex offender treatment for an unrelated crime, Bott confessed that he molested his infant daughter in 2004. Police did not file charges at that time. In 2014, after Bott's treatment had been terminated, police received information that his computer was linked to the distribution of child pornography. Police searched Bott's home and recovered a memory card containing nearly 300 images of child pornography and die questionnaire containing his written confession to having sexually abused his infant daughter. Bott was charged widi five counts of sexual assault on a child by one in a position of trust, 12 counts of sexual exploitation of a child related to his possession of child pornography, and three additional counts of sexual exploitation related to his distribution of child pornography. At trial, the prosecution introduced Bott's written confession and images of child pornography recovered from his computer. The jury convicted defendant as charged.

On appeal, Bott argued that the evidence was insufficient to support his sexual assault on a child by one in a position of trust convictions because under the corpus delicti rule, he could not be convicted based on his confession alone and the prosecution did not present corroborating evidence that the crime occurred. Until 2013, Colorado adhered to the corpus delicti rule, which required that the prosecution present evidence independent of a defendant's confession to establish that a crime occurred. But when Bott was charged in 2014, Colorado had abandoned the corpus delicti rule and adopted the trustworthiness standard. However, this change in rules did not apply retroactively. Here, the evidence of Bott's possession of child pornography 10 years after the alleged offense, when considered together with the fact that he changed his daughter's diaper, was insufficient to prove the corpus delicti of sexual assault on a child. Accordingly, the evidence was insufficient to sustain Bott's convictions for sexual assault on a child by one in a position of trust.

Bott also argued that his 12 convictions and sentences for possessing 294 child pornography images violated his rights under the Double Jeopardy Clause. Under the sexual exploitation of a child statute, a single act of possession of hundreds of images of child pornography constitutes one crime of possession. Thus, Bott was subjected to only one conviction. Therefore, the multiplicitous convictions violated Bott's rights under the Double Jeopardy Clause.

Bott's convictions for sexual assault on a child by one in a position of trust and 11 of his convictions for sexual exploitation of a child (possession of child pornography) were vacated. One conviction of sexual exploitation of a child (possession of child pornography) and the three convictions of sexual exploitation of a child (distribution of child pornography) were affirmed. The case was remanded for resentencing.

2019 COA 101. No. 16CA1468. People v. Hamilton.

Sexual Assault—Distribution of a Controlled Substance—Testimony—Hearsay— Hearsay Exceptions—Authentication—Computer Generated Report—Other Acts Evidence—Jury Instructions—Due Process.

Hamilton bought a round of shots for J.F. and her friends at a bar. J.F. accused Hamilton of drugging her, separating her from her friends, taking her to an apartment without her consent while she was unconscious, and sexually assaulting her. Hamilton told the investigating detective, Slay, that J.F. had sent him multiple texts while they were drinking together at the bars and sent him texts the day after the alleged sexual assault.

At trial, J.F. testified she thought her drink had drugs in it because she could not remember much after she had taken the shot. J.F. told the jury the next thing she remembered was waking up on her stomach in an apartment, with her hands being held above her head, and Hamilton was having sex with her. J.F. testified that she did not agree to have sex with Hamilton. Hamilton claimed the sex was consensual.

Slay testified that police department personnel downloaded the contents of Hamilton's and J.F.'s phones and generated reports (the reports) reflecting the phones' contents. The prosecutor did not seek to introduce into evidence the reports or testimony of police department employees who had examined the phones or generated the reports. Instead, Slay testified that, based on his review of the reports, neither phone contained text messages from J.F. to Hamilton. Hamilton was convicted of one count of sexual assault and one count of distribution of a controlled substance.

On appeal, Hamilton argued that the district court erred in allowing Slay to testify about the contents of J.F.'s and Hamilton's phones. Hamilton did not preserve his argument that the district court erred in admitting Slay's testimony regarding the contents of Hamilton's phone, but preserved his argument that the court erred in allowing Slay to testify regarding the contents of J.F.'s phone. A computer-generated report of a cell phone's contents is not hearsay as long as it was created without human input or interaction. To qualify as a computer-generated report that does not constitute hearsay, the party seeking to introduce the report must lay a foundation that it was machine-generated without human input. Here, the district court erred in admitting Slay's testimony regarding the contents of J.F.'s phone into evidence because both the reports and Slay's testimony were hearsay and the prosecutor failed to prove that the reports were reliable and authentic. Further, there was a reasonable possibility that Slay's testimony about the contents of J.F.'s phone contributed to Hamilton's conviction of sexual assault.

Hamilton also argued that the district court erred in admitting evidence of the acts underlying his two prior sexual assault charges (he was acquitted of one of the charges and the other charge was withdrawn). This evidence was relevant to prove intent and to rebut Hamilton's consent theory by showing a common plan, scheme, design, modus operandi, and preparation. Further, though the other acts evidence was undoubtedly prejudicial to Hamilton, the record supports the district court's finding that the probative value of that evidence in proving the elements of the offense was not substantially outweighed by any danger of unfair prejudice to Hamilton. Therefore, the district court did not err in admitting this evidence.

Hamilton next contended that the district court violated his right to due process by informing the jury in the acquittal instruction that (1) it should not presume he was "factually innocent" of sexually assaulting M.D., the victim in one of the two prior sexual assault cases, even though he had been acquitted on this charge; and (2) he had been convicted of kidnapping M.D. The "factually in no cent" language in the instruction mirrored the language for acquittal instructions that the Supreme Court has approved, so the district court did not err in adding the factually innocent language to the acquittal instruction. However, while the jury could consider Hamilton's kidnapping conviction in weighing his credibility, the court erred in adding the conviction language to the acquittal instruction because it made no reference to credibility and unnecessarily highlighted Hamilton's prior conviction.

The judgment of conviction for sexual assault was reversed and the case was remanded.

2019 COA102. No. 17CA2102. Sedgwick Properties Development Corp. v. Hinds. Business Organizations—Piercing the Corporate Veil— Single-Member LLC.

1950 Logan, LLC was a single-member, single-purpose LLC created for the sole purpose of building the Tower on the Park condominium building and selling the units in that building. Hinds is a disabled person who uses a wheelchair and owns a unit in the building. In 2013, the Colorado Civil Rights Commission (Commission) sued 1950 Logan, claiming that it violated Hinds's rights as a disabled person by selling the building's handicapped parking spaces to non-handicapped buyers years before Hinds bought his condominium unit. Hinds intervened in the suit. Both the Commission and Hinds obtained default judgments against 1950 Logan.

By the time Hinds sought to collect on the judgment, 1950 Logan had wound down operations and no longer had any assets. Hinds filed a garnishment proceeding seeking to pierce...

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