Court Opinions- May 13, 2019

Bermel v. BlueRadios, Inc. 

In this case, the court was asked to determine whether the economic loss rule bars a statutory claim for civil theft where the theft also constitutes a breach of the parties’ contract. The court concluded it does not. 

Chris Bermel contracted to provide engineering services for BlueRadios, Inc., a wireless data and voice communications company. In 2014, Bermel knowingly forwarded thousands of company emails containing proprietary information to his personal email account without authorization. For this conduct, the trial court found Bermel liable for breach of contract and for civil theft under section 18-4-405, C.R.S. (2018) (titled “Rights in stolen property” and also referred to as the “civil theft” statute). The statute allows the rightful owner of stolen property to recover the greater of $200 or three times the actual damages sustained, as well as costs and reasonable attorney fees. 

Bermel argued that BlueRadios’ remedies were limited to those for breach of contract, and that Colorado’s economic loss rule bars BlueRadios’ claim for civil theft. The court disagreed and held that the judge-made economic loss rule cannot bar a statutory cause of action. Accordingly, the court affirmed the judgment of the court of appeals and remand the case for further proceedings consistent with this opinion. 

Sheek v. Brooks 

In 2008, defendant-appellees Roger Brooks and Veryl Goodnight (together “Brooks”) filed an application in the water court to change the point of diversion of their water right from the Giles Ditch to the Davenport Ditch. The application and the required notice published in the local newspaper misidentified the section and range in which the Davenport Ditch headgate is located. Both, however, referred repeatedly to the Davenport Ditch. Brooks successfully moved to amend the application with the correct section and range shortly afterward. The water court, finding that “no person [would] be injured by the amendment,” concluded that republication of the notice was unnecessary. 

Eight years later, plaintiff-appellant Gary Sheek filed this action in the water court, seeking judgment on five claims for relief: (1) declaratory judgment that Brooks’ decree was void for insufficient notice; (2) quiet title to a prescriptive access easement for the Davenport Ditch, including ancillary access rights; (3) trespass; (4) theft and interference with a water right; and (5) a permanent injunction prohibiting Brooks from continued use of the Davenport Ditch. After concluding that sufficient notice was provided, the water court granted Brooks’ motion for summary judgment and deemed the trespass and injunction claims moot in light of that ruling. The court then dismissed the prescriptive easement claim as well as the theft and interference claim for lack of subject-matter jurisdiction. 

The Supreme Court agreed with the water court’s conclusion that the published notice was sufficient. As a result, all of the remaining claims should have been dismissed for lack of subject-matter jurisdiction. The court therefore affirmed the judgment of the water court, but on other grounds. 

People v. Cline 

In this interlocutory appeal, the court addressed whether the trial court erred in suppressing a statement made by the defendant, Justin Cline, following a search of his residence by his parole officer and a member of the Craig Police Department. The search yielded a zippered pouch containing a glass pipe and a small piece of straw with white powdery residue that tested presumptively positive for methamphetamine. 

The trial court found that when Corporal Grant Laehr confronted Cline with the zippered pouch and questioned him, Cline was “effectively under arrest” and “not free to leave.” In a written order, the trial court reiterated that once Cline was confronted with the zippered pouch, “a reasonable person in [his] position would not have believed he was free to leave.”

The trial court ruled that any subsequent questions should have been preceded by an advisement pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Since no such advisement was provided, the trial court suppressed a statement made by Cline. 

The Supreme Court reversed and held that the trial court applied the wrong legal standard. It further held that, under the totality of the circumstances, a reasonable person in Cline’s position would not have considered himself deprived of his freedom of action to a degree associated with a formal arrest. 

People v. Sims

Eighteen years after defendant Samuel Sims and three accomplices committed a brutal home invasion, the People charged Sims with murder, attempted murder and sexual assault in connection with the incident. A jury convicted him of all charges. 

On appeal, Sims challenges his convictions on three grounds: (1) the “superseding” indictment, which contained only a single, amended sexual assault charge, divested the district court of subject matter jurisdiction over the charges contained in the original indictment; (2) the sexual assault charge was barred by the statute of limitations; and (3) the district court erred in excluding testimony, under the rape shield statute, that one of the victims was a prostitute who had traded sex for drugs. The court rejected Sims’s challenges and therefore affirmed his convictions. 

A division of the court of appeals rejected that argument, concluding that because each count of an indictment operates as its own indictment, the prosecutor may supersede any individual count. The mere fact that the prosecutor labeled the charging document a “superseding indictment” did not deprive the court of jurisdiction over the original charges, as the appellation of a document is not dispositive. 

The division also rejected the defendant’s arguments that the sexual assault charge was barred by the statute of limitations and that the court erred in excluding evidence under the rape shield statute. Accordingly, the division affirmed the defendant’s convictions. 

People In Interest of A.N.

Appellant, A.N., appealed the trial court’s order overruling his objection to the Judicial Department’s method of calculating and assessing monthly interest on his unpaid restitution balance and denying his motion for an order specifying that interest will be assessed on a yearly basis. The court affirmed the trial court’s order. 

A division of the Court of Appeals considered whether the trial court erred when it overruled a juvenile defendant’s objection to the Judicial Department’s method of calculating and assessing monthly interest on his unpaid restitution balance and denied the juvenile defendant’s motion for an order specifying that interest will be assessed on a yearly basis. Relying on the reasoning in People v. Ray, 2018 COA 158, the division concluded that section 18-1.3- 603(4)(b)(I), C.R.S. 2013, permits the Judicial Department to compute and assess interest at a rate of 1% per month. The division further rejected the juvenile defendant’s contention that because the statute is ambiguous as to the frequency with which interest may be assessed, it is void for vagueness under the U.S. and Colorado Constitutions. Accordingly, the division affirmed the trial court’s order. 

People v. Galvan

A jury convicted Jose Luis Galvan, Sr., of second degree assault. Galvan appealed, contending that the trial court erred in (1) instructing the jury on the provocation exception to self-defense; (2) not giving a self-defense instruction for each alleged victim; (3) failing to give a separate no duty to retreat instruction; and (4) permitting the prosecutor to suggest to the jury during voir dire that the alleged victims had rights to a fair trial that were equal to that of Galvan’s. Because no reversible error infected the judgment, the court affirmed. 

The division held that a defendant’s taunts at the alleged victims were “fighting words” and, thus, were not protected by the First Amendment. Those words, therefore, could be considered in determining whether there was some evidence that the defendant provoked the victims, thereby authorizing the giving of a provocation instruction. The division also concluded that a prosecutor may not imply to a jury venire that the alleged victims have rights that are equal to, or in conflict with, the rights of the criminal defendant. 

People v Neckel

Defendant Eric Alexus Neckel appealed his convictions for felony menacing and second-degree criminal tampering. He contended the trial court erred by not sua sponte correcting alleged misstatements by the victim and the prosecutor and by rejecting defense-tendered jury instructions. The court affirmed. 

A division of the Court of Appeals considered whether “No Trespassing” signs render a process server a trespasser the moment he enters a property to effectuate process. Relying in part on the reasoning in Florida v. Jardines, 569 U.S. 1, 8 (2013), the division concludes that a sign alone does not revoke the implied license to approach the front door of a home. Although the implied license may be revoked, a process server’s conduct remains statutorily privileged to the extent that it is consistent with the laws governing the execution of legal process. Therefore, a process server’s entry onto a property with “No Trespassing” signs does not automatically render him a trespasser. 

The division further rejected the defendant’s contentions that the trial court erroneously rejected his tendered jury instruction concerning the duty to retreat as it applies to the affirmative defense of defense of premises; and that the trial court should have provided supplemental instructions to the jury defining “unlawful trespass” in the context of the affirmative defense of defense of premises. Accordingly, the division affirmed the judgment. 

People In Interest of J.V.D.

A division of the Court of Appeals considers the requirements of a juvenile’s valid waiver of the constitutional right to counsel. The division concludes that a juvenile court has an expanded duty of careful inquiry into a juvenile’s understanding of his or her right to counsel before the court can find that a waiver is voluntary, knowing and intelligent. A juvenile must benefit not only from the constitutional standards that apply to adults — (1) presumptions against a waiver; (2) advisement regarding the many risks of self-representation; and (3) inquiry into his or her understanding of those risks and the reasons for the requested waiver — but also from the statutory requirements of section 19-2-706(2)(c), C.R.S 2018 — (4) an inquiry into the juvenile’s maturity; (5) an inquiry into the juvenile’s understanding that counsel will be provided regardless of a parent’s or guardian’s ability or willingness to do so; and (6) findings on the record. Relying on People v. Janis, 2018 CO 89, the division also concludes that in cases such as this one, where the challenge relies solely on the facts in the record, an appellate court can address waiver on direct appeal. 

Because the juvenile court did not fulfill its constitutional or statutory duties to secure an effective waiver, the division concludes that the juvenile’s right to counsel was violated. The division reversed the juvenile’s delinquency adjudication and remanded for a new trial. 

People In Interest of Z.C.

In this dependency and neglect action, S.C. (mother) appealed the juvenile court’s judgment terminating her parent-child relationship with her son, Z.C. Among the issues raised in her appeal, mother contended that the juvenile court and the El Paso County Department of Human Services Department did not comply with the notice requirements of the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963 (2018). 

After reviewing the record, the court agreed that the department did not meet its notice obligations with regard to eight tribes — namely, the three federally recognized Cherokee tribes, the Navajo Nation, and four of the federally recognized Apache tribes. Thus, the court issued a limited remand order directing the juvenile court to ensure compliance with ICWA. 

Notwithstanding the deficiencies, the juvenile court concluded that all eight tribes received adequate notice. The division concluded that notice was sufficient for six of the eight tribes and the defect with respect to one of the two remaining tribes was harmless. But because the division concluded that notice was insufficient and the deficiency was not harmless with respect to one of the tribes, the division remanded the case to the juvenile court for the limited purpose of complying with ICWA and, upon doing so, making further findings. The court remanded the case to the juvenile court for the limited purpose of directing the Department to (1) make continuing inquiries to determine whether the child is an Indian child; and (2) use due diligence to work with the White Mountain Apache Tribe to verify the child’s membership status. 

People In Interest of HT

In February 2017, the Larimer County Department of Human Services filed a petition in dependency or neglect after the 8-year-old child, H.T., acted out sexually with her sister and alleged sexual abuse by her father during a forensic interview. 

In this dependency and neglect proceeding, the Larimer County Department of Human Services appeals the juvenile court’s dispositional order directing the department to pay for the father’s offense specific treatment. Because the court concluded that initial dispositional orders, by themselves, are not final and appealable, the court dismissed the appeal. 

During the dispositional phase of a child dependency and neglect proceeding, a juvenile court addressed dispositional alternatives and adopts a treatment plan in an initial dispositional order. A division of the Court of Appeals considered whether such a dispositional order is final and appealable under section 19-1- 109(2)(c), C.R.S. 2018. The division concluded that a dispositional order, by itself, is not final and appealable.

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