Summaries of Published Opinions, 0921 COBJ, Vol. 50, No. 8 Pg. 81
| Position | Vol. 50, 8 [Page 81] |
August, 2021
COLORADO COURT OF APPEALS
June 3, 2021
2021 COA 77. No. 19CA0879. People v. Williamson. Sexually Violent Predator—Sexually Violent Predator Assessment Screening Instrument—Due Process—Prior Sex Offense Conviction—Cruel and Unusual Punishment.
Defendant pleaded guilty to sexual exploitation of a child and was given probation. While on probation, defendant communicated in a sexually explicit manner via social media with an undercover police detective who he believed was a 14-year-old girl. Defendant pleaded guilty to attempted sexual assault on a child. Defendant was evaluated under a Sexually Violent Predator Assessment Screening Instrument (SVPASI) and met the criteria for designation as a sexually violent predator (SVP) under Part 3 A based on his prior sexual offense. The district court considered the SVPASI, among other factors, and designated defendant as an SVP.
On appeal, defendant argued that the district court erred by relying on Part 3 A of the SVPASI to designate him an SVP and violated his right to due process. Here, the SVPASI met the relevant statutory requirements, and the district court did not err by deferring to the evaluator's recommendation under Part 3A. Further, a prior sex offense conviction is not too speculative to support the district court's findings and conclusions regarding potential recidivism. Therefore, there was no due process violation.
Defendant further argued that even if the district court's designation was proper, SVP designation violates constitutional prohibitions on imposing cruel and unusual punishments. However, the SVP designation is not punishment; its purpose is to protect the community through notification and registration requirements. Because an SVP designation is not a punishment, constitutional provisions prohibiting cruel and unusual punishments do not apply.
The order was affirmed.
2021 COA 78. No. 19CA2052. Briargate at Seventeenth Avenue Owners Ass'n v. Nelson.
Homeowners' Association—Colorado Common Interest Ownership Act—Accord and Satisfaction—Setoff.
Briargate at Seventeenth Avenue Owners Association (Briargate) is the homeowners' association (HOA) for certain condominiums. Nelson has owned a condominium with a Briargate HOA since 2002. The parties previously engaged in litigation, resulting in money judgments in favor of Nelson. Briargate brought the present action to recover from Nelson alleged unpaid assessments, interest, collection costs, and attorney fees. After determining that Nelson had unjustifiably breached his contractual obligations, the district court entered judgment for Briargate for $21,467.48 plus 8% per annum prejudgment interest. It also ordered Nelson to pay Briargate attorney fees and costs.
On appeal, Nelson contended that the trial court erred by rejecting his defense of accord and satisfaction. However, Nelson failed to act in good faith by writing "HOA Account—Payment in Full" on every check, regardless of the existence of a dispute over the outstanding balance of his HO A account, and despite accruing late charges, interest, and fees on an unpaid special assessment. Therefore, the trial court did not abuse its discretion in concluding that Nelson had not carried his burden of establishing a proper accord and satisfaction.
Nelson also argued that the trial court erred by holding that Briargate was entitled to sue and recover damages for payments it received, but refused to accept, during two months. Here, Nelson directed Briargate to apply his payments contrary to the manner in which late payments were to be allocated by Briargate under a Resolution it had adopted. Therefore, Briargate was under no duty to accept the checks. However, Nelson was not obligated to pay late fees, interest, and penalties from the time Briargate received the checks until it returned them to Nelson.
Nelson further contended that the trial court erred by not offsetting what he owed Briargate against what it owed him from prior judgments. Any common law right in the homeowner to offset damages is barred by the public policy of Colorado's Common Interest Ownership Act. Therefore, the trial court did not err by denying Nelson's setoff defense.
Nelson further argued that the trial court erred by admitting evidence of a check for impeachment purposes only. However, Nelson failed to make a contemporaneous objection to this evidence at trial, so reversal is not warranted.
The judgment was affirmed in part and reversed in part, the order was affirmed, and the matter was remanded to the trial court with directions.
2021 COA 79. People in the Interest of E.S.
Dependency and Neglect—Visitation—Treatment Plan—Termination of Parental Rights.
The juvenile court adjudicated the children dependent and neglected and adopted a treatment plan for father, and it later terminated father's parental rights under CRS§ 19-3-604(1) (c).
On appeal, father argued that the Arapahoe Department of Human Services (department) failed to make reasonable efforts to rehabilitate him because it prohibited him from visiting his children while he had outstanding warrants. In determining whether a parent is unfit under CRS § 19-3-604(l)(c), the juvenile court must consider whether the department made reasonable efforts to rehabilitate the parent. Efforts are reasonable when services are provided in accordance with CRS§ 19-3-208, which requires, among other things...
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