Summaries of Published Opinions, 0420 COBJ, Vol. 49, No. 4 Pg. 78

Position:Vol. 49, 4 [Page 78]

49 Colo.Law. 78

Summaries of Published Opinions

No. Vol. 49, No. 4 [Page 78]

Colorado Lawyer

April, 2020

February 6, 2020

COLORADO COURT OF APPEALS

2020 COA 19. No. 16CA0107. People v. Thomas.

Criminal Law—Evidence—Resisting Arrest—Criminally Negligent Bodily Injury to an At-Risk Adult—Third Degree Assault—Lesser Included Offense—Merger—Prosecutorial Misconduct—Habitual Criminal—Prior Convictions.

Defendant lived in a trailer on the victim's property. After receiving complaints that defendant was being loud and disruptive, the victim went to defendant's trailer where defendant grabbed her by the neck and slammed her into a nearby parked car, yelling that she "didn't belong in this world." Police arrived and arrested defendant. When police tried to handcuff him, defendant flailed his arms. When police attempted to put defendant in the patrol car, he went limp. A jury found defendant guilty of third degree assault, negligent bodily injury to an at-risk adult, and resisting arrest.

On appeal, defendant argued that there was insufficient evidence to convict him of resisting arrest. By going limp in physical surroundings that included glass and other debris, defendant knowingly attempted to prevent officers from proceeding with the arrest by using means that created a substantial risk of causing bodily injury to the officers through falling or contacting nearby objects or conditions. Therefore, there was sufficient evidence to convict defendant of resisting arrest.

Defendant next contended that his conviction for criminally negligent bodily injury to an at-risk adult should merge into his conviction for third degree assault because the former is a lesser included offense of the latter. However, proof of injury to an at-risk adult is not established by proof of the same or fewer facts than are required to prove injury to another person. Accordingly, criminally negligent injury to an at-risk adult is not included in the offense of knowing or reckless injury to a person.

Defendant also contended that the trial court erred by allowing prosecutorial misconduct during closing arguments. During rebuttal closing argument, the prosecutor implored the jury to evaluate each witness's credibility in this "he said, she said" case. The prosecutor's argument did not undermine the fundamental fairness of the trial. Therefore, the trial court did not err when it did not intervene and instruct the jury to disregard the prosecutor's argument.

Defendant further argued that the trial court lacked authority to sentence him as a habitual criminal. Defendant previously pleaded guilty to a class 6 felony for possession of a controlled substance and, in a separate case, pleaded guilty to class 4 felony possession of a controlled substance. In addition, the record contains ample proof that he also had a prior conviction for a class 4 felony theft. Therefore, there was sufficient proof of defendant's three prior convictions. Further, while CRS § 18-1.3-801(2)(b) eliminates level 4 drug felonies as triggering felonies for habitual criminal sentencing, it does not prohibit courts from considering level 4 drug felony convictions as predicate felony convictions. Thus, the trial court did not err when it applied the habitual criminal sentencing statute.

Lastly, the Court of Appeals rejected defendant's argument that Colorado's habitual criminal statutes are unconstitutional because they allow a judge rather than a jury to make necessary findings about whether a defendant was previously convicted.

The judgment and sentence were affirmed.

2020 COA 20. No. 18C Al 149. Korean New Life Methodist Church v. Korean Methodist Church of the Americas.

Religious Organizations— Property—Neutral Principles Approach—Polity Approach—Submission—First Amendment— Fourteenth Amendment.

Kim began a prayer group in his home and later incorporated the prayer group as a nonprofit corporation, the Korean New Life Church (the local church). Thereafter, the local church's board of directors passed a resolution stating that the local church "shall join the Korean Methodist Church" and changing the church's name to Korean New Life Methodist Church The Korean Methodist Church (the denomination) is based in South Korea and has specific rules governing its operations. The local church never amended its articles of incorporation to reflect the local church's new name, nor do die articles reference the denomination or its rules. Further, the local church did not register its property with die denomination.

Subsequently, Pastor Cha began working at the local church. Pastor Cha developed a conflict with die board when he attempted to register die local church's property with die denomination and attempted to take control of the local church's finances, contrary to die board's resolutions. The district superintendent, acting on behalf of the denomination, fired the board members and authorized Pastor Cha to install a new church board under the denomination's authority. The old board passed resolutions terminating Pastor Cha and dissociating from die denomination, and it filed this declaratory judgment and injunctive relief action asking die district court to declare that the old board was die lawful church board in control of the local church, including the local church's property and finances. The old board also requested injunctive relief to preserve the status quo and bar Pastor Cha from the local church property. Applying a neutral principles approach, die court found insufficient evidence to show that die local church had submitted to the denomination's authority. Following die preliminary injunction hearing, the parties entered into a stipulation making the injunction order permanent. The court accepted the stipulation and entered a final judgment under CRCP 65(a).

On appeal, die denomination challenged the district court's decision to apply the neutral principles approach rather than the polity approach to the submission question, and its application of the neutral principles approach to die hearing facts to find there was no submission. The First and Fourteenth Amendments to the U.S. Constitution preclude civil courts from resolving religious disputes involving religious law and decisions of ecclesiastical tribunals, including disputes involving church governance (polity approach). But when a dispute involves the ownership and control of church property, civil courts are permitted and required to apply neutral principles of law in resolving them (neutral principles approach). This approach includes inquiring into whether die local church has submitted to the authority of a national denomination.

The submission to authority question arises from the local church's organizational intent as evidenced by church documents, testimony, and conduct Neutral principles of general corporate law must be applied to resolve it. Here, die district court did not err in its application of neutral principles to die evidence, which included die local church's articles of incorporation, bylaws, resolutions, board meeting minutes, property conveyance actions, and the denomination rules, to conclude that die local church did not submit to die denomination's authority.

The local church's request for appellate attorney fees and costs was denied because die question here was one of first impression and die parties stipulated that neither would be awarded attorney fees.

The judgment was affirmed.

2020 COA 21. No. 18CA2136. DIA Brewing Co., LLC v. MCE-DIA, LLC.

Civil Procedure—Right to Amend Complaint—Responsive Pleading—Motion to Dismiss—Final Judgment—CRCP 15(a).

DIA Brewing Co., LLC (Brewing) unsuccessfully bid for a contract to establish restaurants and related businesses at Denver International Airport. Brewing then sued several public and private defendants, alleging a bid-rigging conspiracy. The nongovernmental defendants moved to dismiss. In a series of dismissal orders, die district court dismissed Brewing's claims based on lack of standing and failure to plead fraud with particularity. The dismissal orders did not indicate whether die case was dismissed with or without prejudice. Brewing then filed an amended complaint under CRCP 15(a). The trial court entered an order denying the filing of the amended complaint because, among other reasons, die complaint failed under die futility of amendment doctrine.

On appeal, Brewing contended that it had die right to amend its complaint as a matter of course, even after dismissal of its original claims, because the defendants never filed a responsive pleading. CRCP 15(a) allows a complaint amendment as a matter of course any time before a responsive pleading is filed. Here, defendants filed a motion to dismiss, which is not a responsive pleading.

Brewing also contended that it had die right to amend its complaint as a matter of course because die court dismissed its original claims without prejudice. CRCP 41(b)(3) presumes that a dismissal order that does not specify with or without prejudice must be construed as a dismissal without prejudice, so the dismissal here was construed to be without prejudice. A dismissal without prejudice is not a final judgment if the plaintiff can cure deficiencies through an amended complaint. Here, Brewing could have amended its complaint to cure the deficiencies noted in the dismissal orders. Further, die futility of amendment doctrine does not apply to amended pleadings filed as a matter of course. Therefore, the district court erred.

The judgment was reversed and the case was remanded for further proceedings.

2020 COA 22. No. 19CA0033. Ruiz v. Chappell.

Civil Procedure—Amended Complaint—CRCP 15(c)—Summary Judgment—Statute of Limitations—Relation Back of Amendments.

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