Court Opinions: Colorado Court of Appeals Opinions for Sept. 9

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

People v. Vasquez

The Colorado Court of Appeals unanimously affirmed and remanded a case involving arson.

The case presented two questions of first impression. Can someone be convicted of fourth-degree arson by lighting someone else’s clothing on fire while that person wears the clothes? If so, can such an arson work as a predicate felony for felony murder? The appeals court said yes and affirmed John Vasquez’s felony murder conviction.

Vasquez is accused of killing the victim after pouring gasoline on her and lighting her clothing on fire after an argument at a campground. She later died from her injuries. Vasquez was found guilty of multiple counts including felony murder (arson was a predicate felony), second-degree murder and fourth-degree arson.

Vasquez argued evidence at trial was insufficient for a conviction of arson or felony murder, contending a defendant cannot be convicted of arson for lighting another person’s clothing on fire when that person is wearing the clothing. He also argued the prosecution didn’t present enough evidence that Vasquez set fire to anyone’s property. The appeals court disagreed.

The court wrote for fourth-degree arson it doesn’t matter if the victim was wearing clothing and the defendant ignited it after dousing her with gas. Under the statute’s plain language, what does matter is the defendant started the fire on the property of another (a campground) and the fire placed the victim in danger of death or bodily harm. For the second argument, the appeals court wrote there was an ample amount of evidence to support the conviction.

The case was remanded to vacate the second-degree murder conviction, leaving the felony murder conviction intact. 

People v. Castro

The appeals court unanimously reversed and remanded a case involving Miranda warnings.

The appeals court contended someone arrested and advised of their Miranda rights sometimes says something to police and then testifies somewhat differently at trial. The prosecutor may want to ask about that and comment during the closing argument about why the suspect didn’t tell police what they told the jury. In some instances, the prosecutor’s questions and commentary could impermissibly penalize the accused for not saying something after being advised they don’t have to. 

The appeals court ruled that was the case in this situation and Fidel Castro’s conviction of sexual assault was reversed and remanded for a new trial. Castro is accused of sexually assaulting C.V. at a New Year’s Eve party. Castro appealed, contending the prosecutor’s use of his post-advisement silence violated his due process rights. The appeals court agreed.

Castro declined to talk with law enforcement after being arrested and advised of his Miranda rights, but later claimed the sexual encounter with C.V. was consensual. During the trial, the prosecutor asked Castro why he didn’t tell a deputy everything Castro said in court while making similar comments in closing arguments.

The appeals court concluded Castro’s credibility in the case was vital and there’s a reasonable possibility the prosecutor’s alleged improper questions and comments contributed to the jury’s guilty verdict, meaning a new trial is required.

People v. Sellers

The appeals court unanimously affirmed in part, vacated in part and remanded a case involving murder.

Wayne Sellers IV and his companions were accused of robbing two drug dealers at gunpoint. One of Sellers’ companions allegedly shot and killed the second victim. Sellers was convicted on five counts in relation to the victim that was killed: felony murder, three counts of aggravated robbery and conspiracy to commit aggravated robbery. Sellers was also convicted of aggravated robbery in connection to the other victim.

The appeals court affirmed his conviction and sentence for felony murder, but vacated his consecutive sentence for aggravated robbery. The appeals court rejected Sellers’ argument on the life sentence without parole for felony murder, concluding the felony murder conviction is proportional after conducting an abbreviated proportionality review. 

The appeals court noted a sentence of life without parole for felony murder isn’t categorically unconstitutional. The appeals court also held that when the trial court doesn’t specify whether Sellers’ contemporaneously announced sentences are concurrent or consecutive to one another, they are presumed to run concurrently. 

The appeals court vacated the consecutive sentence for aggravated robbery and remanded to the trial court to impose a concurrent sentence. The court affirmed the conviction for felony murder.

Mohammadi v. Kinslow

The appeals court reversed and remanded a case involving a car and bicycle accident.

Daniala Mohammadi appealed a district court’s judgment dismissing her complaint against Mark Kinslow, as time-barred. In 2015 Mohammadi, who was 16 at the time, was injured when Kinslow allegedly hit her bicycle with his car. Mohammadi turned 18 in January 2017 and sued Kinslow almost three years later in December 2019, alleging negligence and negligence per se.

Colorado Revised Statute 13-81-103(1)(c) provides when the disability of anyone is terminated, like when a minor turns 18, that person is allowed to take action within a fixed period authorized by the statute of limitations or within two years after the removal of a disability, whichever expires later. No published Colorado opinions have addressed the application of section 13-81-103(1)(c) to a situation like this, where Mohammadi turned 18 before the applicable statute of limitations expired.

The district court ruled the three-year statute of limitations wasn’t tolled because Mohammadi’s disability was terminated because she turned 18, before the limitations period expired. That court contended Mohammadi had either three years from the date of the suspected accident or two years after she turned 18, whichever was later to bring a lawsuit. Since Mohammadi didn’t meet the later deadline, Kinslow’s motion to dismiss was granted.

Mohammadi’s complaint was reversed and remanded by the appeals court to be reinstated. The appeals court cited the precedent set by the Colorado Supreme Court which held the applicable statute of limitations is tolled during a plaintiff’s period of disability and begins to run when a minor reaches 18. It further concluded the state’s high court hasn’t recognized any exception to the rule when the disability ends before the statute of limitations expires. 

In dissent, Judge Craig Welling wrote he disagreed with the outcome and said, “Under such circumstances, section 13-81-103(1)(c) required Mohammadi to file suit within three years from the date of her injury, or two years from the date she turned eighteen, whichever was later. Because she didn’t file her complaint before this deadline, the district court properly dismissed her case.”

Argo v. Hemphill et al.

The appeals court unanimously affirmed in part, reversed in part and remanded a property rights case.

Angela Argo appealed a district court’s judgment in favor of Christina Hemphill, Dianna Hemphill and Steven Rein, and its order awarding attorneys fees and costs to the Hemphills. The case involves a property rights dispute in Otero County. Don Argo, who died in 2018, owned the property. Angela Argo is Don Argo’s wife and the Hemphills are Don Argo’s nieces. 

Don Argo’s last will and testament left the property to the Hemphills upon his death. Don Argo also executed and recorded a beneficiary deed giving the property to the Hemphill’s once he died. After Don Argo died, the title of the property went to the Hemphills who attempted to sell the property to Rein. The sale was completed in March 2019. The Hemphills argue the sale fell through because Angela Argo recorded a lifetime lease agreement for the property. When the sale didn’t go through, the property was leased to Rein.

Angela Argo contends she has the leasehold interest in the property. According to court records, three days before Don Argo’s death the Argos executed an agreement granting Angela Argo a lifetime lease of the property. That agreement stated it supersedes the beneficiary deed if Don Argo dies. The agreement stipulated that even if the property is transferred to the new owners upon Don Argo’s death, the lifetime lease agreement needs to be honored. It also specified upon Angela Argo’s death all uses of the land will then be transferred to the Hemphills. Neither Don Argo nor Angela Argo recorded the lifetime agreement at or shortly after it was created.

About five months after Don Argo’s death, Angela Argo delivered the lifetime lease agreement to the Hemphills at a family gathering. The Hemphills weren’t given notice of the lifetime lease before that day. Angela Argo tried to persuade the Hemphills to honor the lifetime lease, but was unsuccessful. Later, the Hemphills’ attorney sent a letter to Angela Argo saying the lifetime lease agreement was unenforceable. Angela Argo then recorded the lifetime lease agreement in Otero County. 

The district court found the lifetime lease agreement was unenforceable because the Hemphills weren’t given notice of the agreement until more than four months after Don Argo’s death (which is required under section 15-15-407). The district court ruled Angela Argo has no right to the property. The court also found the lifetime lease agreement to be a spurious document, ruled in favor of the Hemphills’ spurious document counterclaim and awarded attorneys fees for $36,318.20 to the Hemphills.

Angela Argo asserted the district court erred by finding the lifetime lease agreement was unenforceable. The appeals court disagreed as she missed the four-month window to record evidence or notice of the lifetime lease agreement.

Angela Argo contended the district court also erred in determining the lifetime lease agreement is a spurious document. One of Angela Argo’s contentions is that the court made insufficient findings to enable appellate review. The appeals court agreed with that contention. The appeals court found the judgment and decree quieting the title doesn’t explain the statutory basis for finding the lease agreement to be spurious and doesn’t contain specific findings that provides insight into the court’s reasoning. Therefore, the appeals court concluded that a portion of the judgment doesn’t permit meaningful appellate review and the judgment regarding the spurious document was reversed and remanded.

The appeals court also reversed the order awarding attorney fees and costs. Angela Argo argued the district court erred by awarding attorney fees and costs to the Hemphills contending the court’s order had inadequate findings and challenged the ultimate conclusion the Hemphills were entitled to attorney fees and costs. The appeals court agreed and wrote that on remand the district court should make factual findings determining whether the lifetime lease agreement is a spurious document. That would then determine who should receive statutory attorney fees and costs.

The Hemphills also requested appellate attorney fees and costs, but the appeals court denied that.

Parental Responsibility Concerning S.Z.S

The appeals court unanimously dismissed in part, affirmed in part and remanded a case involving parental responsibility.

Zofia Tisue appealed a district court’s order adopting a magistrate’s rulings modifying parenting time and decision-making responsibility. The appeals court asks the question: can a parent be found to have consented to a child’s integration into another parent’s family even though the parents only agreed the child would live with and be cared for by the other parent on a temporary basis?

The appeals court said yes and affirmed the order concerning parenting time, and dismissed as moot the portion of Tisue’s appeal involving decision-making responsibility. The case was remanded on Tisue’s request for appellate attorney fees and costs.

Tisue had one child, S.Z.S., with Christopher Smith and in 2017 a magistrate entered permanent orders allocating parental responsibilities. Tisue was given primary residential care and sole-decision making responsibility for S.Z.S. and Smith received parenting time on alternating weekends and school breaks.

About six months later, Tisue relocated to Minnesota with S.Z.S. and the parties stipulated a modified parenting time plan. S.Z.S. would live with Tisue during the school year and Smith had parenting time during school breaks. It was approved by the magistrate. 

The following summer, Tisue’s partner had health problems and she was struggling to provide for S.Z.S. and her partner. The parties agreed S.Z.S. would live mainly in Colorado with Smith and attend first grade there. Tisue had limited parenting time with S.Z.S. during that period. 

In 2019, the parties agreed S.Z.S. would remain with Smith in Colorado to finish second grade. Smith and Tisue had a written agreement that asserted in the fall of 2020, S.Z.S. would return to school in Minnesota with Tisue. The magistrate also approved that. 

In August 2020, Smith sought to have S.Z.S. remain in Colorado, but the magistrate ordered S.Z.S. return to Minnesota following the previous parenting time plan. Shortly after Smith filed a motion to modify parenting time, requesting primary residential care of S.Z.S. Smith argued over the two years, S.Z.S. had been integrated into his family with Tisue’s consent and it was in S.Z.S.’s best interest to reside primarily with Smith during the school year.

A magistrate granted Smith’s motion to modify parenting time, citing concerns with Tisue’s alleged instability and risks for an eight-year-old child. The magistrate also found Smith could better provide for S.Z.S.’s long-term needs. The magistrate allocated Tisue parenting time generally over the S.Z.S.’s school breaks and modified decision-making responsibility directing the parents to make them jointly. 

Tisue contends the magistrate erred by modifying parenting time because the magistrate didn’t apply the legal standard for consensual integration when issuing his ruling and the record didn’t establish S.Z.S. had been integrated with Smith’s family with Tisue’s consent. The appeals court disagreed citing multiple items including S.Z.S.’s close relationship with Smith and other members of the household. According to court records, the magistrate also found Tisue was somewhat disengaged from S.Z.S’s life in Colorado.

Tisue also argued the record fails to support findings S.Z.S. was integrated into Smith’s family and Tisue consented to any integration. The appeals court found Tisue consented, including voluntarily transferring primary care of S.Z.S. in 2018, extending it into the 2019-2020 school year

Tisue also contended the magistrate erred by modifying decision-making responsibility. Smith argues the joint decision-making responsibility stipulation that was adopted by the district court, made the issue moot. The appeals court agreed. 

As for Tisue’s request for appellate attorney fees, based on the financial disparity between parties, the appeals court disagreed with Smith that Tisue’s request fails to set for a factual basis for the request. The appeals court wrote the lower court is better equipped to handle factual issues regarding the parties’ finances, so the issue was remanded.

The appeals court dismissed the appeal in part and affirmed the court’s order adopting the magistrate’s rule modifying parenting time. The case was remanded for further proceedings concerning Tisue’s request for appellate attorney fees and costs.

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