Court Opinions: Colorado Court of Appeals Opinions for Dec. 8

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

People v. Johnson

The Colorado Court of Appeals unanimously vacated a judgment and remanded a case involving the sufficiency of evidence for enticement of a child.

Enticement of a child requires proof a defendant invited, persuaded or attempted to invite or persuade a child under the age of 15 to enter a vehicle, building room or secluded place with an intent to commit sexual assault or unlawful sexual contact upon the child.

The appeals court considered whether the evidence that James Johnson, who was accused of uttering sexually tinged words to a child that was standing on a sidewalk with her dog, while he was in a vehicle, was sufficient to prove he attempted to invite or persuade the child to enter the vehicle or had the intent to sexually assault or engage unlawful sexual contact with the child. 

Johnson was convicted by a jury for enticement of a child while a violation of bail bond conditions imposed in another case was dismissed. Johnson argued his conviction should be vacated because the evidence at trial wasn’t sufficient.

The appeals court held Johnson’s alleged words alone aren’t sufficient to establish the substantial step necessary to prove he attempted to invite or persuade the child to enter the vehicle. The appeals court further concluded the words Johnson is accused of uttering didn’t prove the wrongful conduct element of the offense. The appeals court also held Johnson’s alleged words were insufficient to establish he intended to commit sexual assault or engage in unlawful sexual contact.

Johnson’s conviction was vacated. The case was remanded to the trial court with the instruction to dismiss the charges against Johnson with prejudice. 

People v. Di Asio

The Colorado Court of Appeals unanimously affirmed a judgment in a record-sealing case.

Sean Di Asio appealed a district court’s order denying a motion to seal his conviction for getting drugs by fraud or deceit, which is a class 5 felony. In 2008, Di Asio was charged with two felony counts for distributing and selling prescription drugs using a prescription pad that belonged to his father, a retired physician. Di Asio pleaded guilty to one count of obtaining drugs by fraud or deceit in exchange for the dismissal of a class 3 felony distribution charge. 

The plea agreement contained a provision regarding record sealing, agreeing to waive and give up any right he may have now or in the future to request any records related to the case be sealed or have a court order such sealing, whether provided by 24-72-308, 24-72-308.5 or any other provision of the law. The waiver also applied to the sealing of any of the cases that have been disposed of or dismissed as part of the plea.

The court accepted the plea agreement, and Di Asio was sentenced to two years of supervised probation, which he completed in 2010. Di Asio didn’t incur any additional charges after his release from supervision.

In 2020, Di Asio filed a motion to seal his conviction record, arguing his record was eligible for sealing under Colorado Revised Statute 24-72-706(1)(g). That statute provides at any hearing to determine whether records could be sealed, other than basic identification information, a court must determine that the harm to the privacy of the defendant or the dangers of unwarranted, adverse consequences to the defendant outweigh the public interest in retaining public access to conviction records.

Di Asio argued the harm to his privacy, or the danger of the unwarranted, adverse consequences, outweighed the public interest in retaining public access to his conviction. Di Asio claimed since the information was public, he’d been denied employment and housing and lost his emergency medical technician license.

Prosecutors argued Di Asio waived his right to seal his conviction, and the recent amendments to 24-72-703(11) that prohibited such a waiver as part of a plea agreement didn’t retroactively apply to Di Asio’s waiver and the retroactive application would violate the contract clause in the state Constitution. Prosecutors also argued Di Asio didn’t meet the criteria for sealing under 24-72-706(1)(g) in consideration of the seriousness of the offense and the public need to be aware.

A district court denied Di Asio’s motion, finding section 24-72-703(11) didn’t apply retroactively to invalidate his waiver. Under the denial, that court declined to address whether Di Asio satisfied the criteria for sealing under section 24-72-706(1)(g) or if 24-72-703(11) violated the contracts clause in the state constitution.

Di Asio contended the district court misconstrued 24-72-703(11) as applying prospectively only and erroneously found he was ineligible under 24-72-706(1)(b)(III) because he waived his right to seal as part of the plea agreement. Di Asio also contended there’s no constitutional problem with the retroactive application of 24-72-703(11) and the prosecutors lacked standing to assert the constitutional argument.

The appeals court concluded 24-72-703(11) applies prospectively only and didn’t address Di Asio’s other contentions. The appeals court affirmed. 

Nguyen v. Lai

The Colorado Court of Appeals unanimously reversed a judgment in part, dismissed an appeal in part and remanded a domestic relations case.

Huyen Lai appealed a district court’s judgment declaring her marriage to Duoc Van Nguyen was invalid and it lacked jurisdiction to divide the parties’ jointly owned property.

Nguyen and Lai were married in 2017. Nguyen filed a petition to declare it invalid in 2020. Nguyen alleged, at the time of the marriage, Lai was legally married to someone else and she fraudulently represented to him the previous marriage had ended.

A district court entered a decree invalidating the marriage. The court also found Lai wasn’t eligible for putative spouse status. In an oral ruling, the court indicated it didn’t have jurisdiction over the parties’ property which included real estate, vehicles and bank accounts.

The appeals court concluded the legislature has granted the lower court jurisdiction authority over the parties’ jointly owned property in a situation like this. The appeals court reversed that portion of the judgment. 

The appeals court was then left with a non-final order and dismissed Lai’s appeal challenging the decree of invalidity as the appeals court argued absent exceptions, it has jurisdiction only over a district court’s final judgment. Due to the erroneous jurisdictional finding, the appeals court wrote, the district court hasn’t issued a final judgment that resolves the dispute — the division of property remains outstanding. The appeals court also declined Nguyen’s request for appellate attorney fees.

The case was remanded to the district court for more proceedings with the understanding it has jurisdiction over the division of the parties’ property. The appeals court said it expresses no opinion as to whether the district court should or must divide the parties’ property as the issue isn’t before it.

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