Court Opinions- Feb 25, 2019

People v. Cooper

The principal issue in this appeal of a criminal prosecution for menacing, assault, harassment, and cruelty to an animal, is the propriety of the admission of “blind” expert testimony regarding the dynamics of abusive intimate relationships.

A “blind” or “cold” expert knows little or nothing about the facts of a particular case, often has not met the victim, and has not performed any forensic or psychological examination of the victim (or the defendant). 

Colorado courts repeatedly have recognized the value of blind expert testimony in appropriate cases. When the actions of a victim are counterintuitive to what an ordinary juror might expect, this type of expert testimony may be crucial in explaining to the jury what social science has learned about the behavior patterns of people who are involved in violent relationships. Without this testimony, jurors may well reach incorrect decisions because they do not have the background to understand such counterintuitive actions. 

The Court of Appeals didn’t question the admissibility of blind expert testimony but noted it carries risks. When blind expert testimony is used to persuade the jury to make findings of historical fact that are not supported by evidence presented to the jury, the trial process is corrupted, and the defendant may, as a result, be deprived of a fair trial, the court said.

The court concluded that virtually all of the blind expert testimony presented in this case was irrelevant to the issues before the jury. 

The court concluded that the admission of the evidence was highly prejudicial. The court reversed the convictions and remanded for a new trial.

People in the Interest of D.C.

D.C. and E.L. were committed to the Division of Youth Corrections, and during a DYC science class, D.C. exposed one of his testicles to E.L. 

E.L. reported the incident, and the prosecution filed a delinquency petition, alleging that D.C. committed an act that, if committed by an adult, would constitute public indecency. 

After a bench trial, the juvenile court adjudicated D.C. delinquent.

D.C. appealed, contending that insufficient evidence supported the adjudication. The Court of Appeals disagreed and affirmed the decision.

People v. Denhartog

Robert Denhartog was convicted of various felony, misdemeanor and traffic offenses after he suddenly reversed his vehicle during a traffic stop, striking a patrol officer’s motorcycle, then fled the scene and broke into an unoccupied apartment.

On appeal, he contended that the evidence was insufficient to support his conviction for first degree assault of a peace officer and that the court erred by admitting prior bad act evidence and by allowing prosecutorial misconduct in closing argument. He also argued that various convictions must merge and that certain sentences must run concurrently.

The Court of Appeals agreed that the evidence did not establish that Denhartog threatened the patrol officer with a deadly weapon and therefore vacated his conviction and sentence for first degree assault. The court also agreed that the second degree assault convictions must be merged. The court otherwise rejected Denhartog’s challenges to his convictions and sentences.

The court affirmed the judgment in part, vacated it in part and remanded for resentencing.

In the Interest of Ray v. People

A physician certified Joshua Ray Sr. for involuntary short-term mental health treatment.

That certification caused Colorado officials to report Ray to the National Instant Criminal Background Check System as a person subject to federal firearm prohibitions. Ray argued that because he was involuntarily certified by a physician, rather than a court, Colorado officials should not have reported his certification to the NICS.

The Brady Handgun Violence Prevention Act prohibits certain categories of people from possessing a firearm, including those who have been “committed to a mental institution.” The Brady Act created a federally administered database of people barred from possessing a firearm, the NICS. 

Colorado law requires certain people and entities to make NICS reports — the State Court Administrator must report to the Colorado Bureau of Investigation the name of each person with a court-ordered involuntary certification for short-term treatment of a mental health disorder so that they are listed in the NICS. 

The issue before the Colorado Court of Appeals was: When a professional person certifies someone for involuntary short-term mental health treatment, is that certification the equivalent of a court order, thus requiring reporting to the NICS?

The Court of Appeals answered no.  The plain meaning of the term court order cannot encompass a certification by a professional person, the court held.

The court reversed the order and directed the probate court, SCA, and CBI, as applicable, to take reasonable steps to cause any record of Ray’s certification submitted by them under section 13-9-123(1)(c) to be rescinded.

In Re the Estate of Yudkin

Viacheslav Yudkin died intestate. Appellant Tatsiana Dareuskaya claimed that she was Yudkin’s common law wife and was entitled to his property under the law of intestate succession. 

After an evidentiary hearing, the magistrate found that, even though the putative spouses agreed to be married, cohabitated for eight years and had a reputation in their community as a married couple, no common law marriage existed because they did not file joint tax returns among other indicators of a common law marriage. 

The Court of Appeals concluded that the magistrate misapplied the controlling law set forth in People v. Lucero and reversed the order, directed entry of a decree of common law marriage, and remanded for further proceedings.

Wagner v. Planned Parenthood

Samantha Wagner, Ashley Stewart, A.S., Mandy Davis and Ammar Laskarwala, are the victims or survivors of other victims killed by Robert Dear at a Planned Parenthood on Nov. 27, 2015. The plaintiffs claimed that they were invitees of Planned Parenthood of the Rockies  under Colorado’s Premises Liability Act and filed a common law negligence claim against Planned Parenthood Federation of America.  

Following discovery, the trial court granted summary judgment in favor of PPRM and PPFA on both claims. The court determined that “the predominant cause was plainly Robert Dear’s actions, not the actions or inactions of PPRM,” and that “‘a reasonably thoughtful person’ would not have predicted that a deranged man would appear at PPRM seeking to commit a mass murder.” 

The plaintiffs appealed the trial court’s entry of summary judgment in favor of defendants. The Colorado Court of Appeals affirmed the summary judgment as to PPFA but reversed the summary judgment as to PPRM and remanded for further proceedings.

People v. Slaughter

A prosecutor seeking to charge an accused with felony strangulation has multiple charging options available under Colorado criminal statutes. The crime can be charged under the first degree assault statute. To obtain a conviction under that statute, the prosecution would have to prove that the accused caused serious bodily injury to the victim.

If the prosecution wants to dispense with the requirement to prove serious bodily injury, it can charge the accused under the second-degree assault statute, 18-3-203, C.R.S. 2018. Two charging options are available for a strangulation crime under that statute, neither of which would require proof of serious bodily injury: subsection (1)(b) or under subsection (1)(i).

A charge under subsection (1)(b) would require proof of use of a deadly weapon. Unless charged with a crime of violence sentence enhancer, a strangulation charge under subsection (1)(i) would not require proof of use of a deadly weapon.

The penalty available for a strangulation charged under subsection (1)(i) if charged as a crime of violence under section 18-1.3-406(2)(a)(I)(A), C.R.S. 2018, is substantially  more severe than if an accused is charged merely under subsection (1)(b), even though conviction for both crimes would require proof of use of a deadly weapon.

The prosecution charged Darius Slaughter, with strangulation under the second degree assault statute, section 18-3-203(1)(i). If it were allowed to charge Slaughter under subsection (1)(i) and also charge a sentence enhancer under the crime of violence sentencing statute, such charging would subject him to harsher and disparate sentencing, as compared with other persons accused of engaging in the same conduct, based solely on the prosecution’s charging decision. Thus, his right to equal protection under the Colorado Constitution would be violated. The Colorado Court of Appeals concluded that the district court did not err in denying the prosecution’s motion to add a charge under the crime of violence statute and affirmed the court’s order dismissing the added crime of violence charge.

People v. Melnick

Hunter Adam Melnick appealed the trial court’s denial of his Crim. P. 35(c) motion. The Court of Appeals affirmed in part, reversed in part and remanded for a hearing on Melnick’s challenges to his parole revocation.

Neppl v. Department of Revenue

Daniel Earl Neppl appealed the district court’s judgment affirming the revocation of his driver’s license by the Colorado Department of Revenue. The department revoked Neppl’s license based on a test result showing that he his blood alcohol content exceeded the legal limit.

Neppl contended that the test result was inadmissible because the paramedic who drew his blood did not have a supervisor physically present. He asks the court to interpret the words “under the  supervision” in the express consent statute, section 42-4-1301.1(6), C.R.S. 2018, to require on-the-spot supervision, an issue of first impression. The court rejected his contention for two reasons. First, the plain language does not require a doctor’s supervision of a paramedic. Second, even assuming it did, the court concluded that, consistent with the Colorado Supreme Court’s interpretation of the same language in a prior version of Colorado’s driving under the influence/implied consent statute, “under the supervision” is not synonymous with “on-the-spot” supervision. The court affirmed the judgment.

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