Court Opinions- Feb 15, 2021

People v. Blassingame


Daniel Blassingame appealed his conviction of sexual assault — victim incapable of appraising conduct. 

A division of the Colorado Court of Appeals considered the appropriate legal standard to be applied in determining whether a prospective juror exhibits bias sufficient to sustain a challenge for cause, and held the trial court erred when it stated that a juror only evinces an excusable bias in favor of a victim if they declared they will believe the victim “no matter what the rest of the evidence is.”

Because it concluded the trial court erroneously denied a challenge for cause to a juror who sat on the jury, the division reversed the conviction and remanded the case for a new trial.

People v. Roberts-Bicking

Philo Roberts-Bicking appealed his conviction of attempted second-degree murder, first-degree assault and menacing. To resolve his appeal, a division of the Colorado Court of Appeals needed to determine whether the trial court, when instructing the jury regarding Roberts-Bicking’s claim of self-defense, was required to specifically instruct them on principles regarding multiple assailants or apparent necessity. The division also needed to address whether a jury must unanimously agree on which exception to self-defense the prosecution has proven.

The division concluded the instructions here sufficiently informed the jury regarding all applicable principles of self-defense — and only those principles applicable to this case — including the jury’s obligation to consider the totality of the circumstances. It further concluded, disagreeing with another division of the court in People v. Mosely, that a jury need not unanimously agree on which self-defense exception the prosecution proved. The division affirmed.

People v. Propst

In this sentence appeal, a division of the Colorado Court of Appeals was asked to decide whether a sentencing court, after accepting a plea agreement and imposing a suspended prison sentence conditioned on the successful completion of probation, has discretion to continue or revoke probation after finding a violation.

Another division considered this question in 1999 in People v. Frye. That case held that the suspended sentence was the original sentence and that upon finding a violation of probation, the court was required to impose the suspended sentence. The division disagreed with the Frye division and held that section 16-11-206(5) of the 2020 Colorado Revised Statutes, and the Colorado Supreme Court’s holding in Fierro v. People, provide a sentencing court with the discretion to continue probation, revoke probation or impose any sentence that it might originally have imposed. The division further held that, under such circumstances, a sentencing court’s decision not to impose a suspended sentence does not breach the parties’ plea agreement. 

Elisa Propst appealed her prison sentence following the court’s finding of a probation violation. She contended the court was not required to impose the suspended prison sentence because of the plea agreement and because the court retained the discretion to continue her on probation, reinstate probation with new terms or sentence her to any sentence that it could originally have imposed. Because it agreed, the division vacated the sentence and remanded the case for resentencing. 

People v. Marston

Shawn Marston appealed his conviction of driving while ability impaired. One of the issues he raised is whether the district court was required to hold a Shreck hearing before allowing a police officer to testify about the results of a horizontal gaze nystagmus test the officer administered to him immediately before he was arrested. 

A division of the Colorado Court of Appeals previously issued an opinion holding no such hearing was required; the results of such a test are generally admissible, if relevant, as evidence of impairment, so long as the person testifying about the administration and results of the test is competent to give such testimony. The officer in this case was, so the court didn’t err by allowing the officer’s testimony. The division also rejected Marston’s other challenges to the judgment, including his contention that the district court erred by finding by a preponderance of the evidence that he had at least three prior alcohol-related driving convictions rather than submitting that issue to the jury for it to decide beyond a reasonable doubt.

The Colorado Supreme Court vacated that opinion and remanded the case for reconsideration in light of its decision in Linnebur v. People. In Linnebur, the Supreme Court held the requirement of three or more prior qualifying offenses is an element of felony DWAI that must be found by a jury beyond a reasonable doubt. Following Linnebur, the division reversed Marston’s conviction for felony DWAI and remanded for further proceedings.

State Farm Mutual Automobile Insurance Company v. Gary Griggs and Susan Goddard

In this insurance bad faith case, a division of the Colorado Court of Appeals considered whether the district court erred by denying a motion for a directed verdict on the insurer’s claim for breach of contract against its insured; denying a motion for a directed verdict on the insurer’s affirmative defense of collusion; and admitting irrelevant and prejudicial evidence at trial. 

The division refused to adopt a blanket rule that an insured cannot, as a matter of law, breach an insurance policy by entering into an agreement like the one contemplated by the Colorado Supreme Court in Nunn v. Mid-Century Insurance Co. Instead, the division holds that, before an insured is justified in stipulating to a judgment and assigning its claims against its insurer to a third-party claimant, it must first appear that the insurer has unreasonably refused to defend the insured or to settle the claim within policy limits. Whether an insurer appears to have acted unreasonably and whether an insured has breached an insurance contract by entering into such an agreement are questions of fact. The division also concluded any error by the district court in allowing the jury to consider the insurer’s collusion affirmative defense was harmless because the jury found the bad faith claim failed on its elements and never reached the merits of the defense. Finally, the division concluded the district court did not erroneously admit irrelevant or prejudicial evidence. For these reasons, the division affirmed the judgment.

Marriage of Callison

A division of the Colorado Court of Appeals considered whether the district court may award retroactive temporary maintenance under section 14-10-114 of the 2020 Colorado Revised Statutes, which was repealed and reenacted in 2014. 

The division concluded the reenacted maintenance statute does not prohibit the district court from awarding retroactive temporary maintenance, and thus, the court may order retroactive temporary maintenance within its discretion. 

The division also concluded the district court may order retroactive temporary maintenance for the time in which the spouses resided together in the same home after the dissolution proceedings were initiated. In this case, the division concluded the district court made insufficient findings in support of its order for retroactive temporary maintenance. Accordingly, the division reversed the court’s order and remanded the case to the district court for further findings.

Tug Hill Marcellus LLC v. BKV
Chelsea LLC

Tug Hill Marcellus LLC, Radler 2000 LP, and Chief Exploration & Development LLC appealed the district court’s order denying their petition to consolidate BKV Chelsea LLC’s three separate arbitration proceedings against them in a dispute about leases for oil and gas assets. 

Because orders denying petitions to consolidate arbitration proceedings are not one of the two pre-award court orders that may be appealed under the Colorado Revised Uniform Arbitration Act, a division of the Colorado Court of Appeals determined it lacked jurisdiction over the matter and dismissed the appeal. 

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