Court Opinions- Apr 13, 2020

People v. Rojas

A jury found Brooke Rojas guilty of two counts of theft under the theft statute after she misrepresented her work income on a Jan. 14, 2013, food stamp application and then received food stamp benefits for six months. 

A division of the Court of Appeals reversed the judgment of conviction. The majority concluded that Rojas “could only be prosecuted under [section 26-2-305(1)(a), C.R.S. 2019, which criminalizes] the theft of food stamps by a fraudulent act,” not under the general theft statute. 

On review, the Colorado Supreme Court concluded that the “legislature didn’t create a separate crime” of theft of food stamps by a fraudulent act “by enacting section 26-2-305(1)(a).” The court reversed the division’s opinion and remanded the case to the division “to consider any unresolved issues raised by Rojas on direct appeal.” 

The division considered whether a trial court may admit evidence of a subsequent misrepresentation of income as res gestae evidence of theft by deception of food stamps. The majority concluded Rojas’ subsequent misrepresentation is admissible as res gestae evidence of her mental state and intent to knowingly provide false information on food stamp applications. The dissent concluded that the trial court reversibly erred in admitting this evidence as res gestae, and it directed attention to the shortcomings of the common law res gestae doctrine. The dissent explained that res gestae is vague and unhelpful, adds nothing to the rules of evidence and threatens to erode CRE 404(b).

People v. Ornelas-Licano

Jose Ornelas-Licano appealed his conviction for attempted second-degree murder, arguing that his conviction violated equal protection guarantees because attempted second-degree murder is indistinguishable from the lesser offense of attempted first-degree assault – extreme indifference. He also argued that the trial court abused its discretion by admitting expert testimony of a police officer analyzing the shape of a bullet hole in a windshield to determine where the shot came from. 

A division of the Court of Appeals first concluded that the conduct proscribed by the second-degree murder statute and first-degree assault – extreme indifference statute is distinguishable for equal protection purposes. 

The division also concluded that the trial court abused its discretion by admitting the officer’s expert testimony because his experience did not qualify him to opine on the relationship between the angle of impact and shape of the bullet hole, and there is nothing in the record beyond the officer’s own assertions to show that someone can determine from the shape of a bullet hole in a windshield where the bullet came from. Because this error was not harmless, the division reversed the judgement.

People v. Espinosa

Alberto Espinosa was charged with having sexual contact with his then-15-year-old daughter, A.E. 

At the suggestion of the police, A.E. tried to get Espinosa to confess to the assault. Espinosa maintained that he had simply been trying to wake her up. In December 2014, Espinosa was arrested and charged with sexual assault on a child by one in a position of trust. Following a jury trial, Espinosa was convicted as charged. The trial court sentenced Espinosa to a term of 10 years to life on sex offender intensive supervised probation. 

Espinosa appealed this judgment. For the first time in the context of jury instructions, a division of the Court of Appeals addressed the definition of “sexual abuse” as that term is used to define “sexual contact.” Because the trial court incorrectly instructed the jury that Espinosa’s motivation was not relevant in determining whether an act constituted sexual abuse, the division reversed and remanded for a new trial. 

People v. McDonald

Marquis McDonald confessed that he and three other men drove from Michigan to Colorado to steal Rolex watches from a retail jeweler in an Arapahoe County shopping mall. The plan was to have three men enter the jewelry store and steal watches and have a fourth man wait in a getaway vehicle outside the mall.

The police apprehended the four men after they had smashed open display cases at a mall jewelry store and stole several watches. A jury convicted McDonald of theft, criminal mischief, aggravated motor vehicle theft, conspiracy to commit theft and engaging in a pattern of racketeering in violation of Colorado Organized Crime Control Act. The trial court adjudicated McDonald a habitual offender and this resulted in the quadrupling of McDonald’s 24-year COCCA sentence to 96 years.

In his appeal, McDonald contended the prosecution failed to present sufficient evidence to prove the existence of, and his participation in, an “enterprise associated in fact” under COCCA because the prosecution did not present evidence to satisfy the additional three factors required in prosecution of federal Racketeer Influenced and Corrupt Organizations Act offenses. 

McDonald asked a division of the Court of Appeals to reexamine, for the first time since People v. James in 2001, if the court construed the definition for an “enterprise” under COCCA, in the same way that federal courts construe “enterprise” under RICO. 

Under the federal RICO scheme, two U.S. Supreme Court cases require a prosecutor to demonstrate three factors to prove that there is an “enterprise associated in fact.” The division in James, however, rejected this approach, concluding that “enterprise” under COCCA is a complete definition that doesn’t require the prosecution to demonstrate the three factors required under federal RICO precedent. The division, in a split decision, declined to depart from James and affirmed.

Adoption of J.D.

In this stepparent adoption proceeding, the biological mother contended that the juvenile court erred by not applying the Indian Child Welfare Act after finding that the child and father were eligible for enrollment. 

A division of the Court of Appeals disagreed, saying an “Indian child” means “any unmarried person who is under age 18 and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe[.]” Although the child is eligible for enrollment, because the child is not a biological child of a member of an Indian tribe, the child does not meet ICWA’s definition of Indian child. 

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