Summaries of Published Opinions, 0120 COBJ, Vol. 49, No. 1 Pg. 96

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49 Colo.Law. 96

Summaries of Published Opinions

Vol. 49, No. 1 [Page 96]

Colorado Lawyer

January, 2020

COLORADO COURT OF APPEALS

November 7, 2019

2019 COA165. No. 16CA1545. People v. Baker. Criminal Law—Expert Witness—Securities Fraud—Theft—Opinion on Ultimate Issue— Simple Variance.

Defendant sought investors for a business venture to buy a controlling interest in a bank, purchase the bank's distressed assets, and then sell those assets at a profit when the real estate market improved. Defendant was charged with securities fraud and theft based on his misrepresentations to the investors. The People indicated that Alves, the deputy commissioner for the Colorado Division of Securities, would testify at trial. Defense counsel filed a motion in limine to exclude her testimony, arguing (among other things) that her proposed testimony would usurp the jury's role as fact finder. The district court denied the motion. A jury found defendant guilty of three counts of securities fraud (fraud in the sale of a security); three counts of theft ($20,000 or more); and one count of filing a false tax return.

On appeal, defendant contended that the district court erred by allowing Alves to testify because her testimony wasn't helpful, was speculative, misstated the law, and usurped the functions of the judge and jury. Alves testified as an expert in securities law about what she believed defendant had told the investors, whether defendant's statements were material, and whether the promises defendant had made to investors were fulfilled. She testified in the form of conclusions rather than hypotheticals. Her testimony was improper because she phrased her opinions about what had happened as if there was no dispute about the truth of her statements, and she indicated a belief in a particular version of the facts and applied the law to those facts to make conclusions reserved for the jury. Therefore, the district court erred in admitting her testimony. Further, the error was not harmless because there was a reasonable possibility that her improper testimony contributed to defendant's convictions.

Defendant also contended that the district court erred by allowing the prosecution to present evidence at trial that conflicted with the indictment The prosecution presented evidence that defendant had said that he would register the securities, but the indictment alleged that defendant indicated to at least one investor that he didn't believe he needed to register the securities. Because these allegations arguably conflict, there was a simple variance in this case. However, the variance didn't substantially influence the verdict or prejudice defendant, so reversal was not required.

The securities fraud and theft convictions and sentences were reversed, and the case was remanded for a new trial on those counts. In all other respects, the judgment was affirmed.

November 14, 2019

2019 COA 166. No. 16CA1569. People v. Worosello.

Criminal Procedure—Postconviction Remedies—Tolling—Statute of Limitations— Collateral Attack—Disability.

Defendant pleaded guilty to one count of enticement of a child, a class 4 felony. The plea agreement included a stipulation to Sex Offender Intensive Supervision Probation (SOISP). In May 2006, the district court sentenced defendant to 10 years to life in SOISP. In July 2006, the prosecution moved to revoke defendant's probation, and following a contested probation revocation hearing, the district court found that defendant had violated the terms and conditions of his probation. He was sentenced to two years to life in the custody of the Department of Corrections. In 2015, defendant filed a Crim. P. 35(c) motion with attached documentation from a doctor who opined that defendant was incompetent when he entered into the plea agreement. The district court denied the motion as untimely.

On appeal, defendant contended that his motion was timely because he labored under a disability that toiled the statute of limitations for filing the motion. A Crim. P. 35(c) motion must comply with the time limits in CRS § 16-5-402, which provides that defendant had three years from the date of sentencing to challenge the validity of his conviction. Therefore, defendant's opportunity to collaterally attack the validity of his conviction under Crim. P. 35(c) expired in 2009. Further, CRS § 13-81-103(1)(a) does not toll the statute of limitations for collateral attacks on convictions.

Defendant argued alternatively that his untimely motion should have been accepted because his failure to timely file was due to justifiable excuse or excusable neglect. Defendant contended that he was not competent to proceed when he entered his plea and has not been competent to proceed since. Here, defendant underwent multiple competency evaluations and was found competent to proceed before he entered his plea and again before he was sentenced. And neither of defendant's attorneys raised the issue of his competence during the probation revocation proceedings. Defendant failed to allege facts sufficient to warrant a hearing on justifiable excuse or excusable neglect.

The order was affirmed.

2019 COA 167. No. 18CA0283. People v. Payne. Criminal Law—Lay Witness—Testimony—Lawfully Confined or in Custody—Jury Instruction—Closing Argument.

A jury found defendant guilty of resisting arrest, disorderly conduct, and second degree assault while lawfully confined or in custody.

On appeal, defendant contended that the trial court reversibly erred by admitting lay witness testimony by the arresting officer that defendant was "lawfully confined or in custody," thereby usurping the jury's role to decide whether he was confined or in custody. Whether defendant was in custody for purposes of committing second degree assault was a factual determination for the jury to decide. However, the officer's description of defendant's arrest was useful for the jury to determine whether he was in custody at the time of the charged assault. Accordingly, the trial court did not abuse its discretion by allowing the officer's testimony.

Defendant also argued that the trial court erred by failing to give a jury instruction defining "lawfully confined or in custody."...

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