Court of Opinions- Apr 23, 2018

People v. Figueroa- Lemus


Eswin Figueroa-Lemus appealed the district court’s order denying his Criminal Procedure 32(d) motion to withdraw his guilty plea. The Colorado Court of Appeals first considered whether the court has jurisdiction to consider the appeal given that the guilty plea involved a deferred judgment that was still in effect. 

The Court of Appeals concluded that the court does because the Supreme Court in Kazadi v. People expressly provided that a defendant may challenge such a plea under Criminal Procedure 32(d). 

Next, the Court of Appeals considered the merits and reject Figueroa-Lemus’s argument that counsel was constitutionally ineffective for failing to advise him of the immigration consequences of his plea. The Court of Appeals affirmed the district court’s order. 

People v. Margerum 

Lance Margerum was convicted of unlawful sexual contact without physical force, third-degree assault and menacing with a deadly weapon. On appeal, he challenged the unlawful sexual contact and menacing convictions. Margerum’s arguments raised two issues of first impression in Colorado. First, he argued that the trial court violated his rights under the Confrontation Clause by not allowing him to cross-examine a witness concerning her probationary status. 

The Court of Appeals concluded that a witness’ probationary status alone does not implicate a defendant’s constitutional right to cross-examine the witness on potential motive, bias or prejudice. Rather, the facts of the case must show a logical connection between the probationary status and the witness’ motive to testify in favor of one party.

Second, he argued that there was insufficient evidence to support his menacing conviction because the physical conduct underlying his assault conviction is the same single act underlying his menacing conviction. Answering a novel question in Colorado, the Court of Appeals concluded that a single physical act supporting an assault conviction, with no additional physical action or verbal threat, can be sufficient to also support a menacing conviction.

Accordingly, the Colorado Court of Appeals affirmed the judgment. 

People v. Bryant

A division of the Court of Appeals considered whether a police officer’s testimony defining a street slang term for an illegal drug constitutes lay or expert testimony under the test set forth in Venalonzo v. People. 

The division concluded that the testimony in this case was expert testimony.

When, as in this case, there is testimony defining a term that is not likely to be known by someone with ordinary experiences and knowledge, the testimony is expert testimony. 

Under the circumstances here, the division concluded that the police officer’s testimony defining the term “sherm” as “PCP” constituted expert testimony and was, thus, inadmissible.

Although the trial court erred by improperly admitting the police officer’s testimony as lay testimony, the division further concluded that the error was harmless.

The division also considered and rejected the defendant’s arguments that his statements to police were involuntary, that his Miranda waiver was invalid, and that the trial court improperly instructed the jury.

Accordingly, the Court of Appeals affirmed the judgment of conviction. 

People v. Butcher

Often, when an appellate court identifies an obvious but unpreserved trial error, the court will reverse under the plain error doctrine of Criminal Procedure 52(b). 

Yet, if the error does not seriously affect the fairness, integrity or public reputation of judicial proceedings, may the court, exercising its discretion, still decline to reverse? The Colorado Court of Appeals answered this novel question in Colorado “yes,” and do so here.

A jury convicted David Butcher of two counts of securities fraud and two counts of theft from at-risk adults. Butcher appealed only the trial court’s amended restitution order, and on the sole ground that the court erred in its award of prejudgment and postjudgment interest. 

But he failed to raise the alleged errors in the trial court, which limits relief to plain error. Because the trial court’s single obvious error — accruing post judgment interest from the date of conviction rather than from the date of the operative restitution order — does not seriously affect the fairness, integrity or public reputation of judicial proceedings, the Court of Appeals exercised its discretion and affirmed. 

Paradine v. Goei

A division of the Court of Appeals held that the Colorado Wage Claim Act does not categorically bar a plaintiff from piercing the corporate veil to hold an individual liable for unpaid wages. 

In the course of reaching that conclusion, the opinion disagreed with the defendant’s assertion that language in Leonard v. McMorris, established such a bar. 

Because the plaintiff pleaded sufficient facts to establish a plausible claim that the plaintiff could pierce the corporate veil, the trial court erred when it granted defendant’s motion to dismiss on the pleadings. The division therefore reversed the trial court’s judgment and remanded the case with instructions. 

Peña v. American Family 

A division of the Court of Appeals considered whether a provision of an insurance policy permitting recovery for damages from an uninsured motorist applies when a third party’s insurer denies liability but not coverage. In this case, the same insurer insured both Marissa Peña and the third party. 

Following a car accident, the insurer took the third party’s position that he was not liable for the damage to plaintiff’s car. 

Peña sued the insurer for unreasonably delaying her claim for uninsured motorist property damage. Under her policy, Peña argued she was entitled to treat a denial of liability as a denial of coverage. Her insurer asserted, and the division agreed, that Peña’s uninsured motorist property damage coverage did not apply because a denial of liability does not amount to a denial of coverage. 

People in the Interest of L.M.

In this dependency and neglect proceeding, K.M., the father appealed the juvenile court judgment terminating his parent-child legal relationships with his children, L.M. and M.M.

This case posed an unusual situation. The juvenile court adjudicated the children dependent and neglected, finding by a preponderance of the evidence that the father had sexually abused L.M. and that M.M. was suffering secondary trauma as a result of the abuse. 

The court granted temporary custody of the children to the mother, E.L., and prohibited the father from having any contact with the children during the pendency of this case.

The father’s treatment plan was premised on his guilt. But he was later acquitted in the companion criminal case, and, following the termination hearing, the juvenile court could not find that the assault allegations had been established by clear and convincing evidence.

Even so, the juvenile court terminated the father’s parental rights. In so doing, it found that there were no less drastic alternatives to termination because the children continued to experience trauma specific to the father, which he did not recognize. On appeal, the father challenged this finding.

To address the father’s challenge, the Colorado Court of Appeals examined the legal standard for determining whether there is a less drastic alternative to termination. As shown by the record in this case, the standard for considering less drastic alternatives to termination is often intertwined with a determination of whether an appropriate treatment plan can be devised for a parent and whether the parent is fit or can become fit in a reasonable time.

Because the record did not support the juvenile court’s decision to terminate the father’s parental rights, the Court of Appeals reversed the judgment and remanded. 

People in the Interest of E.R. (E.M.)

In this appeal of an adjudication that a child was dependent and neglected, a division of the Court of Appeals addressed the admissibility under Colorado Rule of Evidence 803(4) of test results contained in the child’s medical records demonstrating that the child’s mother had tested positive for methamphetamine at the child’s birth. 

The division rejected the mother’s contention that the test results were inadmissible, concluding that the statements were made for purposes of medical diagnosis or treatment, described past medical history and were reasonably pertinent to the testifying physician’s diagnosis or treatment of the child’s condition. 

The division also addressed the application of the Indian Child Welfare Act of 1978 and held that the Indian Child Welfare Act applies to a child custody proceeding even when, following a shelter hearing, the child is returned to the mother’s home, because the hearing could have resulted in foster care placement. The division affirmed the admission of the test results, reversed the court’s finding concerning the Indian Child Welfare Act and remanded for further proceedings regarding the Indian Child Welfare Act applicability. 

Franklin Drilling v. Lawrence Construction 

Franklin Drilling and Blasting Inc. was a subcontractor on a Colorado Department of Transportation road project. Lawrence Construction Company was the general contractor. Although Lawrence was paid in full by CDOT, Lawrence refused to pay Franklin Drilling. 

That failure led Franklin Drilling to sue Lawrence Construction Company on a variety of claims. All but one of Franklin Drilling’s claims,  a claim for civil theft, were arbitrated in favor of Franklin Drilling.

After the arbitration, the parties tried Franklin Drilling’s civil theft claim to the court. 

That claim was premised on Lawrence Construction Company’s violation of the Public Works Trust Fund statute, section 38-26-109 of the Colorado Revised Statutes 2017. At the conclusion of Franklin Drilling’s case-in-chief, the trial court granted Lawrence Construction Company’s motion for directed verdict, finding that Franklin Drilling had not proved that Lawrence Construction Company intended to permanently deprive Franklin Drilling of the monies it was owed.

The theft statute, section 18-4-401(1) of the Colorado Revised Statutes 2017, provides, as relevant here, two separate ways that Lawrence Construction Company could possess the culpable mental state required for civil liability under the theft statute: intent to deprive or knowing use. Because the trial court’s findings and conclusions either addressed only the first of the two alternatives, or the trial court misconstrued the second, the Court of Appeals reversed that portion of the judgment and remanded for the court to address the second alternative. The Court of Appeals affirmed that the portion of the judgment that rests on the trial court’s finding regarding intent to permanently deprive.  

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