Summaries of Published Opinions, 0521 COBJ, Vol. 50, No. 5 Pg. 82

PositionVol. 50, 5 [Page 82]

50 Colo.Law. 82

Summaries of Published Opinions

No. Vol. 50, No. 5 [Page 82]

Colorado Lawyer

May, 2021


March 4, 2021

2021COA26. No. 20CA0691. Prairie Mountain Publishing Co., LLP v. Regents of the University of Colorado. Colorado Open Records Act—Open Meetings Law—State Entities—Executive Position—Finalist.

The University of Colorado (CU) president announced his retirement, and the CU Board of Regents (Regents) adopted procedures to select his successor. After narrowing the search and interviewing several candidates, the Regents announced Kennedy as the sole finalist and ultimately voted 5-4 to appoint him.

Prairie Mountain Publishing Company, LLP, d/b/a Daily Camera, requested documents regarding the applicants for the CU presidency under the Colorado Open Records Act (CORA) and the Open Meetings Law (OML). CU produced documents regarding Kennedy only. The Daily Camera sued, and the district court ordered disclosure of the requested documents for the six candidates who the Regents interviewed.

On appeal, CU contended that only Kennedy was a finalist, and the district court erred in ordering disclosure of documents for any other applicants. The parties agreed that disclosure is required only with respect to finalists. Under CORA's plain language, a "finalist" is a person who is publicly disclosed by the appointing entity as a finalist, and the OML does not specify the number of finalists that must be named. Here, the Regents announced Kennedy as the only finalist. Therefore, the district court overstepped its bounds in rewriting CORA to provide that the Regents had a mandatory legal duty to disclose the records of all six interviewees.

The judgment was reversed.

2021 COA 27. No. 20CA0732. Fisher v. Industrial Claim Appeals Office. Workers' Compensation—Permanent Impairment Rating—Normalization.

Claimant worked as a correctional officer for the Colorado Department of Corrections (department) and injured his knee. The department admitted the injury occurred while claimant was on duty. Claimant's authorized treating physician determined that he was at maximum medical improvement and the injury was permanent, and he calculated the net permanent impairment to be 13% of the lower leg. The department filed a final admission of liability based on the maximum medical improvement date and the impairment rating. Claimant challenged the physician's methodology of "normalizing" the impairment to his knee because it had not been based on the third edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (Guides). An administrative law judge (ALJ) rejected claimant's objection and awarded benefits based on the physician's impairment determination. A panel of the Industrial Claim Appeals Office (panel) affirmed the ALJ's order.

On appeal, claimant contended that CRS §§ 8-42-101(3)(a)(I) and -101(3.7) require impairment ratings to be based on the revised third edition of the Guides, and the panel erred in affirming the ALJ's order because the ALI allowed the physician to use the normalization process discussed in a Desk Aid published by the Department of Labor and Employment, Division of Workers' Compensation (Desk Aid). However, the plain language of subsections (3)(a)(I) and (3.7) does not bar a physician from employing the normalization process, and the Desk Aid supplies guidance for doctors who are determining permanent impairment ratings. Further, the Desk Aid does not reject the revised third edition of the Guides; rather, it expands on the factors upon which doctors may, in their discretion, base impairment ratings. Therefore, the panel did not err.

The order was affirmed.

March 11, 2021

2021 COA 28. No. 17CA0720. People v. Grosko. Criminal Law—Prostitution—Continuing Offense—Multiplicitous—Double Jeopardy—Unit of Prosecution—Expert Testimony.

Defendant recruited E.W. To work for him as a prostitute. ST., a confidential FBI informant who had previously worked for defendant as a prostitute, contacted defendant to arrange a "threesome." Defendant sent E.W. to join ST. for the threesome, which was a sting operation. At the same time as the sting, defendant met with A.W., another girl he recruited to work for him as a prostitute, who was also undercover law enforcement. The prosecution charged defendant with two counts of attempted pimping (one each for E.W. and A.W.) and one count of pimping ST.

On defense counsel's motion, the court severed trials for the pimping count from the attempted pimping counts. Juries convicted defendant of two counts of attempted pimping and two counts of the lesser non included offense of solicitation, and one count of pimping and the lesser non included offense of pandering.

On appeal, defendant contended that the trial court lacked jurisdiction as to the pimping charge and conviction because pimping is not a continuing offense and the alleged date range fell outside of the statute of limitations. However, the plain language of CRS § 18-7-206 makes pimping a continuing offense, and defendant's last act in the series of acts that constituted pimping ST. fell within the statute of limitations. Therefore, the court did not err.

Alternatively, defendant argued that if pimping is a continuing offense, his convictions for attempted pimping were multiplicitous in violation of double jeopardy. The unit of prosecution for pimping is each person from whom a defendant knowingly derives support through acts of prostitution. The unit of prosecution for attempted pimping is conduct that constitutes a substantial step toward living on money earned by another individual through that individual's prostitution. Here, the record supported defendant's separate convictions on attempted pimping with respect to E.W. and A.W. Therefore, the convictions were not multiplicitous and did not violate double jeopardy.

Defendant next contended that the district court erred by admitting expert testimony that improperly profiled pimps. However, the expert's testimony was proper modus operandi testimony relevant to rebutting defendant's theory of defense that he was merely pretending to be a pimp to entice women to sleep with him. Further, the testimony was not unduly prejudicial under CRE 403. Therefore, the trial court did not abuse its discretion by admitting it.

The judgment of conviction was affirmed.

2021 COA 29. No. 17CA2331. People v. Carter. Criminal Law—Driving Under the Influence—Felony—Prior Convictions—Burden of Proof—Constructive Amendment—Waiver— Structural Error.

The prosecution alleged that defendant drove drunk and had a series of hit and run accidents over several hours. When police contacted defendant later that day, he was at a friend's house with his car parked outside. Defendant declined both a blood and breath test and didn't provide insurance information for the vehicle. He was charged with felony driving under the influence (DUI), leaving the scene of an accident, and failure to present pro of of insurance. A jury found him guilty of the first two offenses and of operating a motor vehicle without insurance.

On appeal, defendant argued that the requirement of three prior convictions is an element of felony DUI and the district court violated his constitutional right to have a jury decide that element beyond a reasonable doubt. DUI is ordinarily a misdemeanor, but it becomes felony DUI if it occurs after three or more prior convictions for DUI, DUI per se, or driving while ability impaired. Consequendy, the prosecution must prove the three prior convictions as an element of felony DUI. Here, defendant filed a motion requesting that the prosecution be required to prove the three prior convictions to a jury beyond a reasonable doubt. The district court ruled that the requirement of three prior...

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