Court Opinions: Colorado Court of Appeals Opinions for July 28

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

People v. Lancaster

The Colorado Court of Appeals unanimously affirmed a lower court’s ruling connected with sexual assault and bribery.

The appeals court was interpreting the meaning of “official proceeding” for the bribery statute in Colorado Revised Statute 18-8-703(1) in regards to its temporal proximity requirement for criminal conduct. The court was asked if the bribery statute requires a defendant to offer, confer or agree to confer a benefit with a victim, witness or person only after official proceedings have begun as defendant Larry Lancaster contends. 

The appeals court said no, holding bribery occurs when a defendant offers, confers or agrees to confer any benefit to someone he believes will be called, or may be called to testify in official proceedings covered under 18-8-501(3), C.R.S. with the goal of influencing testimony. 

Lancaster also appealed the judgment entered by a jury convicting him of sexual assault of a child less than 15, unlawful sexual contact of a child, sexual assault (victim incapable of appraising the nature of his conduct), contributing to the delinquency of a minor and two counts of bribery. The appeals court also affirmed.

Lancaster contended the prosecutor produced insufficient evidence to support his convictions of sexual assault (victim incapable of appraising the nature of his conduct) and bribery. Lancaster argued there was insufficient evidence showing the alleged victim J.C. was incapable of appraising the nature of his conduct. Lancaster also argued there wasn’t enough evidence to support his bribery convictions because Lancaster gave J.C. money in exchange for silence before any official proceedings began. 

The appeals court rejected each contention. The appeals court concluded the jury could determine beyond a reasonable doubt that Lancaster knew J.C. was incapable of appraising the nature of his conduct. The appeals court continued, writing a reasonable jury could conclude Lancaster believed J.C. would be called to testify in a future proceeding and he gave J.C. money to influence his testimony.

Lancaster also contended the trial court erroneously admitted prior act evidence claiming the evidence was too dissimilar and remote in time to be logically relevant to the case, that its prejudicial effect outweighed its probative value and it was insufficient to establish a pattern. The appeals court disagreed, writing the prior act evidence was highly probative of Lancaster’s motive and common plan.

People v. Garcia

The appeals court reversed a ruling in a case concerning a structural error connected with a statutorily disqualified judge presiding over a case.

Donald Garcia appealed the judgment by a jury verdict where he was found guilty of first-degree aggravated motor vehicle theft. The appeal focused on whether the judge who presided over the trial was statutorily disqualified from doing so because of her prior involvement in the case as counsel for the defendant and whether that amounts to structural error.

The appeals court ruled that it did and reversed the conviction. It also rejected Garcia’s challenge of the sufficiency of the evidence for his underlying conviction. The appeals court remanded for a new trial before a different judge.

Garcia was charged with theft in July of 2017. In April 2018, Amanda Hopkins, who was a deputy state public defender, appeared on behalf of Garcia at a pretrial readiness conference which Garcia didn’t show up to. Hopkins was then appointed to the district court bench in July of 2018 and presided over the remainder of Garcia’s case.

The appeals court ruled due to statute, Hopkins was presumed to be biased, which is a structural error. In a footnote, the appeals court did write that nothing in the record suggests Hopkins was actually biased in the case. The appeals court also ruled the jury was given enough evidence to convict.

Judge John Dailey concurred and dissented in part, agreeing in the sufficiency of evidence, but writing he wouldn’t reverse on the structural error grounds arguing multiple items including Garcia not objecting to his former attorney serving as the judge in the case.

People v. Whiteaker

The appeals court unanimously affirmed a decision in connection to a case involving whether a trial court violated a defendant’s right against double jeopardy.

Taunia Whiteaker contends a trial court violated her right against double jeopardy when it didn’t merge her conviction of first-degree criminal trespass into her conviction for second-degree burglary. The appeals court wrote the last time the Colorado Supreme Court addressed this issue was in 1997 in People v. Garcia; it held that “first degree criminal trespass is not a lesser included offense of second degree burglary.”

Later state Supreme Court opinions called that into question, but the Supreme Court never expressly overruled Garcia. The appeals court wrote it is bound to follow Garcia and it rejects Whiteaker’s merger argument. 

Due to this, the appeals court affirmed Whiteaker’s conviction from a jury finding her guilty of second-degree burglary, first-degree criminal trespass, third-degree assault and harassment.

Whiteaker also contended the trial court reversibly erred by denying the defense counsel’s request that jury instructions should refer to Whiteaker by name. The appeals court ruled the defendant is not entitled to be referred to by name because the trial court was not required to grant it. The jury instructions accurately stated the governing law and three females named Whiteaker were involved in the case, which could have confused the jury. The appeals court wrote that nothing in the opinion should be construed as precluding a trial judge from referring to a defendant’s name in jury instructions.

Giron, et al. v. Hice and Town of Olathe

The appeals court unanimously reversed and remanded a case connected with when immunity should be applied when considering an emergency vehicle being in pursuit of a suspect.

The case required the appeals court to analyze the Colorado Supreme Court’s 2003 ruling from Tidwell v. City and County of Denver. That case held immunity is waived when an operator of an emergency vehicle, while pursuing an actual or suspected violator of the law, doesn’t activate the vehicle’s emergency lights or siren.

This case asked the question left unanswered in Tidwell: Does an officer operating an emergency vehicle have protection under sovereign immunity when they are in pursuit of an actual or suspected violator of the law, but only activates his emergency lights or siren for part of the pursuit? The appeals court said the answer to that question is no.

Nichele Giron, individually and as the personal representative of the estate of Walter Giron, Amanda Giron and Thomas Short, as personal representatives of the estate of Samuel Giron appealed a district court’s ruling dismissing their tort action against Officer Justin Hice and the Town of Olathe for lack of subject matter jurisdiction involving the Colorado Governmental Immunity Act.

Hice’s patrol car while chasing a speeder had collided with the van driven by Walter Giron with Samuel Giron as the passenger. Walter Giron and Samuel Giron died from the injuries and Hice was seriously injured. The family of the Girons’ complaint asserts the sovereign immunity involving Hice and Olathe was waived because Hice didn’t activate his emergency lights or sirens, and even if he did, he drove in a way that endangered life or property.

The district court, which followed Trinity Broadcasting v. Westminster, dismissed the complaint claiming Hice and Olathe were immune in the suit because Hice activated his emergency light five to 10 seconds before the collision occurred. The district court also concluded Hice did exceed the speed limit, but didn’t operate the vehicle in a manner endangering life or property.

The appeals court reversed the dismissal and reinstated the Girons’ complaint. One issue brought forward by the appeals court was Hice’s emergency lights only being activated for five or 10 seconds prior to the collision. That court concluded if an officer and public entity want governmental immunity, the officer must activate lights or a siren when exceeding the speed limit. It’s not enough to activate lights or sirens sometime after the speed limit is exceeded.

Portley-El v. Colorado Department of Corrections

The appeals court unanimously reversed and remanded a case involving the Colorado Department of Corrections and the Religious Land Use and Institutionalized Persons Act.

The Colorado Department of Corrections has a policy requiring the inmates use their “commitment name” on all prison documents. A “commitment name” is what appears on the mittimus when an inmate is committed to the DOC.

Patrick Portley-El sued the DOC alleging, among other items, this naming policy violates his rights under the Religious Land Use and Institutionalized Persons Act. That act serves to protect people, along with houses of worship and other religious institutions from discrimination when considering zoning and landmark laws.

During litigation, the DOC voluntarily stopped enforcing the policy against Portley-El. Following up, the DOC moved for a summary judgment concluding Portley-El’s RLUIPA claim was now moot. The trial court granted the motion in favor of the DOC.

The appeals court agreed with Portley-El that his claim isn’t moot, reversing the judgment and remanding it for further proceedings.

After Portley-El was incarcerated, he converted to the Moorish Science Temple of America faith, which is a sect of Islam. In accordance with those religious beliefs, Portley-El added the suffix “El” to his former last name. He didn’t legally change his name though.

Later he sued the DOC and some prison employees for denying him services for failing to comply with the naming policy. 

The appeals court continued, writing that although declarations were made by three DOC employees that Portley-El’s claim is moot, some of the declarations are not clear the DOC will not resume the enforcement of the naming policy and the DOC hasn’t amended the relevant regulation concerning the naming policy.

The appeals court also concluded the DOC is not entitled to a judgment as a matter of law on the RLUIPA claim. The appeals court reversed the judgment and remanded for further proceedings.

Scholle v. Ehrichs, et al.

The appeals court affirmed in part and reversed in part a case involving the damages cap for the Health Care Availability Act.

In 2015 Daniel Scholle was injured severely as a result of elective back surgery by Dr. Edward Ehrichs and Dr. Michael Rauzzino. Scholle filed a medical malpractice suit and was awarded $9,292,887 for damages. 

The HCCA only allows for $1 million in damages, but the trial court found good cause allowing for damages to exceed the cap. After about 10 months of post litigation, the trial court determined judgment would be entered as of that date (rather than the day the jury returned the verdict), prejudgment interest was part of the damages. The court found Scholle was entitled to just over $5 million in pre-judgment (prefiling, post-filing and post-verdict) interest which led to the judgment being nearly $15 million.

The appeals court ruled that by entering into a judgment in excess of the damages cap, the trial court didn’t consider that the injured party wouldn’t have to repay any third-party providers or payers for about $6 million in past medical expenses. The majority of the appeals court wrote this is a reversible error.

The judgment was affirmed in part and reversed in part. The matter was remanded to the trial court to reduce the amount of the jury’s award for past medical expenses to $5,543,152 and to recalculate the amount of pre-filing and prejudgment interest and include it with the jury’s award as damages. It’s also asked to reconsider whether Scholle has shown good cause to conclude the application of HCAA’s $1 million damages cap is unfair and enter a judgment, nunc pro tunc, as of the date of the jury’s verdict, Nov. 21, 2019.

Judge Michael Berger concurred in part and dissented in part.

“I agree with nearly all the majority’s analysis in this difficult case,” Berger wrote. “But, for two independent reasons, I respectfully disagree that a remand is necessary for a re-assessment of whether to exceed the $1 million cap under the Health-Care Availability Act (HCAA). Instead, I believe the trial court’s decision was within its broad discretion, and, in any event, any error was harmless. I would therefore affirm the judgment subject to the specific reductions addressed in the majority opinion.”

People in the Interest of T.W.

The appeals court unanimously vacated and remanded a case involving allocated parental responsibilities under a deferred adjudication of dependency or neglect.

In the dependency and neglect proceeding, A.M.E., appealed a juvenile court’s judgment that allocates parental responsibilities of her child, T.W., to the father, G.U. In order to resolve A.M.E.’s appeal, the appeals court decided whether a juvenile court can permanently allocate parental responsibilities when those parties are under a deferred adjudication. 

The appeals court ruled the juvenile court doesn’t have the legal authority to enter that type of order when the child hasn’t been adjudicated dependent or neglected. The appeals court vacated the judgment.

The appeals court cited multiple issues, including that A.M.E. made no admission T.W. should be or had been adjudicated dependent or neglected. Since no admission was made and no order of adjudication was entered against A.M.E., the appeals court concluded the juvenile court lacked the legal authority to enter a permanent order which allocated parental responsibilities. 

The judgment was vacated and the case was remanded to the juvenile court. Before the court can consider granting a permanent APR order for T.W., it must first enter an order adjudicating the child being dependent or neglected if there is a factual basis for doing so.

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