Court Opinions: Colorado Court of Appeals Opinions for July 22

By Jessica Folker and Clara Geoghegan

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

People v. Counterman 

Starting in 2014, Billy Counterman sent a series of frequently threatening direct Facebook messages to the Colorado singer-songwriter named in court documents as C.W. Despite blocking him multiple times, the artist received messages to both her personal and business accounts including bizarre memes that referenced alcohol and the “endless possibilities” of being unsupervised, references to the singer’s daily activities, threats and insults. 

After hiring an attorney at the behest of her loved ones and learning Counterman was serving probation for a federal offense, C.W. obtained a protective order and canceled multiple performances out of fear that he would show up at the concert venues. In 2016, Counterman was charged with multiple counts of stalking, convicted by a jury of serious emotional distress stalking and sentenced to four-and-a-half years in prison. 

Counterman appealed his conviction, arguing, among other claims, that the charges impermissibly criminalized protected speech under the Free Speech Clause of the Federal and Colorado Constitutions. The Court of Appeals reviewed and affirmed the trial court’s determination that Counterman’s messages were true threats and therefore unprotected speech. The state Court of Appeals cited federal Supreme Court rulings in Elonis v. United States and Virginia v. Black and state rulings in People in Interest of R.D. and People v. Chase to back its affirmation. 

Disagreeing with all of Counterman’s additional appeal claims — that the trial court plainly erred in not giving sua sponte instructions about true threats to the jury, that a finding deeming the messages as true threats was required as an additional element and that a trial court’s response to a jury question was a constructive amendment that lowered the burden of proof — the Colorado Court of Appeals affirmed his conviction. 

People v. Barajas

Jose Barajas appealed a jury conviction for possession of a weapon by a previous offender, arguing that the Colorado Uniform Jury Selection and Service Act prevented the second phase of his bifurcated trial from being heard by the same selection of jurors. 

Prior to his trial for possession of a weapon by a previous offender and possession of a controlled substance, Barajas moved to try each count separately. The trial court denied the motion, but instead bifurcated the trial to have the jury first hear the drug charge then hear the two weapons charges. The jury acquitted him of drug charges, but found Barajas guilty of the weapons offenses. Barajas appealed his conviction, claiming, among other arguments, that having the same jury hear both sections of the bifurcated trial violated the UJSSA which bars “a trial juror whose deliberation ended with a verdict” from participating in a second trial and disqualifying any potential jurors who have served on a panel within the last 12 months. He further asked the Colorado Court of Appeals to reverse his conviction since the alleged UJSSA violation was a structural error. 

The Court of Appeals firmly rejected Barajas’ interpretation of the UJSSA, pointing out that when taken to the extreme, it would hold “jurors who reach verdicts in a multiple-count case sequentially, rather than simultaneously ” in violation. “We decline to adopt an interpretation of the UJSSA that would lead to such an absurd result,” the court opinion read. 

In its de novo statutory interpretation, the court ruled that a bifurcated trial is distinctly separate from a severed trial since it creates only one appealable verdict, rather than multiple. Since his trial resulted in only one appealable verdict, the Colorado Court of Appeals held that the UJSSA was not applicable and upheld Barajas’ conviction. 

Although it agreed with one of Barajas’ appeal claims, that the trial court erred by allowing voir dire to start before he was present, the higher court found, beyond a reasonable doubt, that the error was harmless. 

In re Marriage of Vega

In 2019, Nancy Lynn Vega petitioned to divorce Abelardo Vega, her husband of 35 years. The husband didn’t file a response but did appear at an initial status conference. Despite his appearance, the magistrate entered default against him and stated on the default order that there was “no entry of appearance or response filed.” The case proceeded to a default permanent orders hearing.

Prior to the hearing, the wife filed a proposed decree, property spreadsheet, child support worksheet, exhibit list and sworn financial statement. At the hearing, the wife was represented by an attorney while the husband appeared pro se and was not allowed to participate because he remained in default. The husband repeatedly requested the magistrate give him a chance to hire a lawyer, noting that his wife’s proposed permanent orders, which listed more than $10 million in assets, asked for the division of property that the couple didn’t own.

The magistrate denied the request and entered default permanent orders as proposed by the wife. The permanent orders didn’t include the required notice of parties’ right to appeal for cases heard by a magistrate. After retaining counsel, the husband moved for post-trial relief, but the district court determined he should have petitioned for review of the default permanent orders and denied the motion.  

A division of the Court of Appeals found that Colorado law does not require a party to file a response to a divorce petition in order to participate in the proceeding and, therefore, the magistrate was wrong to enter default against the husband. The court also found that the permanent orders hearing was contested and thus required the parties’ consent for the magistrate to preside. Because the husband was not properly notified that a magistrate would be presiding, the division found he did not consent. 

The court reversed the default entry against the husband and the permanent orders judgment and remanded the case for further proceedings.

People in Interest of N.D.O. 

A group of teenagers stole a car and committed armed robberies of four gas stations. Prosecutors alleged N.D.O was the getaway driver for other teenagers who entered the stores and demanded money at gunpoint, and he was charged with several aggravated robbery counts, including aggravated robbery while possessing a deadly weapon, and one count of conspiracy to commit aggravated robbery with a deadly weapon. The prosecution also alleged he was a violent juvenile offender because the robberies involved use, or possession and threatened use, of a deadly weapon.

At trial, the prosecution argued N.D.O committed the aggravated robbery offenses as a complicitor. The jury was instructed on the elements of complicitor liability and that complicitor liability could apply to the aggravated robbery offenses. The jury was also asked to answer interrogatories about whether N.D.O. used, or possessed and threatened the use of, a deadly weapon, thereby constituting a crime of violence, which is a sentence enhancer.

The prosecutor asked the court to instruct the jury that complicitor liability applied to the deadly weapon interrogatories, but the court disagreed and told the jury that the theory of complicity did not apply to the deadly weapon interrogatories.

The jury found N.D.O. guilty on all counts but found that he did not use, or possess and threaten use of, a deadly weapon to commit any offense. N.D.O was adjudicated delinquent and sentenced to two years of probation.

The prosecution appealed, arguing the trial court incorrectly instructed the jury that complicitor liability cannot support a crime of violence finding. A division of the Court of Appeals agreed, citing the state supreme court’s decisions in People v. Swanson and People in the Interest of B.D., and disapproved of the trial court’s ruling on the instruction.

On appeal, the prosecution also argued N.D.O.’s sentence is illegal because the trial court failed to designate him as a violent juvenile offender. The prosecution asked that the case be remanded so that he could be sentenced as a violent juvenile offender. However, the division denied that request, concluding that his sentence is not illegal because the jury’s verdicts don’t establish a crime of violence.

Marriage of Martin 

​​James Arthur Martin and Sharon Rose Dumas divorced in 2014. Two years later, Martin moved for post-judgment relief, alleging that he was entitled to a share of the proceeds from a property known as the Stagecoach property.

The district court found that the Stagecoach proceeds were a marital asset and that certain retirement assets had been overlooked at dissolution. The lower court reopened the property division to address the omitted assets, divided the assets equally and awarded Martin prejudgment interest and attorney fees.

On appeal, Dumas argued that the district court erred when it reopened the property division and allocated the Stagecoach property and the individual retirement account. A division of the Court of Appeals agreed, finding that during divorce proceedings, neither spouse disclosed an interest in the Stagecoach property, which was owned by a trust belonging to Dumas’ parents. Both spouses also failed to disclose the IRA, according to the division, and Martin never alleged that Dumas violated a disclosure obligation regarding the IRA.

The division concluded that C.R.C.P. Rule 16.2(e)(10) doesn’t provide Martin a post-decree allocation remedy and the district court erred by invoking the rule to reopen property division. Citing the Colorado Supreme Court’s decisions in Durie and Runge, the division said the rule does not entitle an ex-spouse to “the legal equivalent of a mulligan.” Martin “effectively asked for a redo of the separation agreement,” the division said, not because Dumas misrepresented the Stagecoach and IRA assets but because they were mistakenly omitted from the separation agreement. “Rule 16.2(e)(10) is not intended for this purpose,” states the division’s opinion.

The Court of Appeals reversed the lower court’s order to reopen property division. The court also affirmed in part and reversed in part Martin’s attorney fee award and remanded the case for reconsideration of the fee awards.

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