Summaries of Published Opinions, 1219 COBJ, Vol. 48, No. 11 Pg. 76

PositionVol. 48, 11 [Page 76]

48 Colo.Law. 76

Summaries of Published Opinions

Vol. 48, No. 11 [Page 76]

Colorado Lawyer

December, 2019


October 3, 2019

2019 COA150. No. 18C A1613. People v. N.T.B.

Evidence—Admissibility—Authentication— Hearsay—Business Records Exception—Cloud Storage.

Dropbox flagged a cloud-storage account that it suspected contained child pornography. It provided the National C enter for Missing and Exploited Children (the Center) with a video and an account identification number, email address, account activity log, and Internet protocol (IP) address tied to the upload. The Center forwarded this information to local police, who traced the Dropbox account to defendant and traced the IP address to Comcast. Defendant was charged with three counts of sexual exploitation of a child.

Defendant moved in limine to exclude the Dropbox and Comcast records (the records) because the prosecution had not endorsed a records custodian to testify as to the CRE 803(6) authentication requirements nor provided an affidavit and notice under CRE 902(11). The trial court held that the records were business records that it could not admit without testimony or an affidavit from the custodians, and even if the prosecution could have authenticated these records, they contained inadmissible hearsay. The court granted defendant's motion to dismiss and sealed the case.

On appeal, the district attorney challenged the trial court's pretrial order dismissing all charges against defendant, asserting that the investigating officer's testimony provided a sufficient foundation from which the jury could reasonably find that the records were documents generated by the business entities. Where a law enforcement investigator has personal knowledge that proffered evidence was produced in response to a search warrant, courts have allowed the investigator to authenticate that evidence. Here, the prosecutor made an offer of proof that the investigating detective would testify that he caused search warrants to be issued and served on Dropbox and Comcast; these entities provided him with the records in response to the warrants; and defendant acknowledged to the detective that he owned a Dropbox account tied to his work email address. Thus, the investigating detective had sufficient personal knowledge indicating that the records were authentic. However, the records may have included human-generated input and interpretation, and thus include statements that constitute hearsay. Because the prosecution did not list a custodian to provide the necessary CRE 803(6) foundation, the trial court properly excluded the records as inadmissible hearsay. The ruling was approved.

2019 COA 151. No. 19CA0244. People in the Interest of I.J.O. Juvenile Law—Dependency and Neglect—Termination of Parental Rights—Interstate Compact on Placement of Children—Home Study—Reasonable Efforts.

The Adams County Human Services Department (Department) filed a petition in dependency and neglect regarding 8-year-old I.J.O. The Department alleged that the child's father was unstable and was planning to take the child back to Ohio to live with mother. The juvenile court adjudicated I.J.O. dependent and neglected and adopted a treatment plan for mother. Pursuant to the Interstate Compact on Placement of Children (ICPC), Ohio authorities conducted a home study and disapproved mother's home based on her extensive history with the Ohio child protection agency and her and her boyfriend's drug use. Based on this determination, the Colorado caseworker concluded that the child could not be lawfully placed with mother. The caseworker did not make any drug treatment recommendations, and the Department did not provide mother with any assistance in obtaining therapy to reintegrate with the child. The Department subsequently moved to terminate mother's rights and the juvenile court granted the motion.

On appeal, mother contended that the juvenile court erred by relieving the Department of its obligation to exercise reasonable efforts to rehabilitate mother and to reunify the family based solely on the ICPC home study. When an out-of-state natural parent fails an ICPC home study, the Department is obligated to make reasonable efforts to help that parent rectify the problems so that a home study can be passed. Here, it is unclear whether the juvenile court concluded that conducting the home study itself was sufficient reasonable efforts.

The case was remanded for the limited purpose of allowing the court to clarify its findings supporting the termination of mother's parental rights.

October 10, 2019

2019 COA 152. No. 16CA0048. People v. Knox. Criminal Law—Attempt to Influence a Public Servant—Criminal Extortion.

Diedrichs-Giffin was turning left in her car when she heard a “bang” as defendant forcefully placed her hands on the hood of the car. Defendant declined to contact law enforcement. Diedrichs-Giffin provided defendant her insurance and contact information and defendant walked away, apparently uninjured. Later that day, defendant sent Diedrichs-Giffin a series of text messages asking for money in exchange for not filing a court action. Six days later, defendant walked to an area close to where the incident occurred and called 911, claiming that she had just been hit and the driver refused to wait for police. Defendant later admitted to lying to police about the timing. A jury found defendant guilty of criminal extortion, false reporting, and three counts of attempt to influence a public servant.

On appeal, defendant contended that the district court erred in concluding that police officers are public servants under CRS § 18-8-306. The Court of Appeals determined that the statute is ambiguous and construed it to include police officers in the public servant category.

Defendant also contended that her convictions for attempting to influence a public servant violate her right to be free from double jeopardy. A defendant may be charged with multiple offenses of attempting to influence a public servant arising from a single criminal episode when the discrete offenses were separated in time and location and comprised separate volitional departures. Here, defendant’s report to the dispatcher and her accounts to two officers were three separate incidents because each took place at distinct times, were recited to different public servants, and were separated by intervening events. Therefore, the evidence supports defendant’s convictions.

Defendant further argued that the prosecution failed to meet its burden of proving that she committed three attempts to influence a public servant because (1) the prosecution failed to prove that police officers are public servants, and (2) she did not have the necessary mens rea to influence the dispatcher. As stated above, police officers are public servants. As to the mens rea requirement, when the dispatcher responded to defendant’s call and dispatched police officers and emergency responders, the dispatcher was working for the police department in accordance with her official duties. Viewing the evidence in the light most favorable to the prosecution, reasonable jurors could conclude that the dispatcher was a public servant and defendant intended to influence the dispatcher’s actions, not merely convey information.

Defendant further argued that her threats of litigation to cause economic hardship were insufficient to prove she committed criminal extortion. The threat of litigation does not constitute criminal extortion. Defendant’s threat to sue Diedrichs-Giffin did not suggest that she intended to act unlawfully; instead, she gave Diedrichs-Giffin the option to settle her alleged claim to avoid litigation.

The judgment was affirmed in part and the criminal extortion conviction was vacated.

2019 COA153. No. 18CA0915. In re Parental Responsibilities Concerning N.J.C. Family Law—Uniform Parentage Act—Child Support— Gross Income—Deferred Compensation—Joint Trial Management Certificate—Attorney Fees.

Mother and father are the unmarried parents of N.J.C. In the initial paternity proceeding concerning N.J.C, father's child support calculation was based on his salary as a cardiologist for his own medical practice. Subsequently, father accepted another job with a $150,000 annual salary and $200,000 of yearly deferred compensation in a non qualified plan. Mother moved to increase child support and asked the magistrate to include the deferred compensation as income to father. The magistrate modified father's child support obligation by including in father's income his salary and nominal dividend and interest income but not the deferred compensation. The juvenile court judge adopted the magistrate's decision not to include the deferred compensation.

On appeal, mother argued that the juvenile court erred in rejecting her argument that deferred compensation in a non qualified plan is income for child support purposes if it is being earned during a period when a parent is obligated to pay child support. Deferred compensation is income only if the parent can use it to pay his or her expenses, including child support. Here, father could not contribute to the plan, had no control over the funds, and had no guarantee he would ever receive the funds. Accordingly, father's deferred compensation plan is not income, and...

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