Court Opinions- Jul 27, 2020

People v. Newman


After a jury convicted Damon Newman of sexual assault, but before he was sentenced, Newman filed a motion for a new trial, asserting that one of the jurors — a lawyer — introduced extraneous prejudicial information during deliberations. The trial court denied the motion without a hearing.

A division of the Court of Appeals addressed for the first time the definition of “legal content” as that term is used to define what constitutes “extraneous prejudicial information” under CRE 606(b).The division concluded that, in the context of CRE 606(b), extraneous “legal content” refers to a statement of law that is inconsistent with or supplemental to the instructions provided by the trial court. Because Newman presented credible evidence that extraneous prejudicial information may have been introduced to the jury, the division concluded that the trial court erroneously denied his motion for a new trial without affording him an evidentiary hearing.

People v. Abdulla

After a jury found Sharif Abdulla guilty of unlawful sexual contact and third-degree assault, he appealed for reversal on three major contentions: tThe trial court erred by granting the prosecution’s request to instruct the jury on the lesser included offense of unlawful sexual contact; the jury instructions failed to ensure that the jury’s verdict was unanimous as to the act underlying the unlawful sexual contact conviction; and the trial court erred by admitting various hearsay statements. 

As a matter of first impression, a division of the Court of Appeals considered whether striking a person with an implement or object can constitute “touching” under Colorado’s unlawful sexual contact statute. 

The division concluded that it can. Because record evidence would support that Abdulla struck his victim, the division concluded that the trial court did not err by instructing the jury on unlawful sexual contact as a lesser included offense of sexual assault. 

The division also rejected Abdulla’s contention that the jury instructions failed to ensure that the jury’s verdict was unanimous as to the act underlying the unlawful sexual contact conviction. The division further concluded that any error by the trial court in admitting various hearsay statements was harmless and affirmed the judgment of conviction.

People In the Interest of K.D.W.

A division of the Court of Appeals considered whether the district court erroneously denied K.D.W.’s motion to suppress evidence obtained during an investigatory stop. The district court previously denied the motion to suppress on the grounds that the stop was supported by reasonable suspicion and a search of K.D.W.’s backpack was a search incident to lawful arrest. 

The division disagreed and held the evidence found in the backpack during the investigatory stop should have been suppressed. Accordingly, the division reversed K.D.W.’s adjudications for possession of a handgun by a juvenile, attempt to carry a concealed weapon and possession of marijuana, and remanded for further proceedings. The division also considered whether K.D.W.’s actions in the course of the illegal stop — namely, trespass and obstruction of peace officers — rendered the search of his pockets sufficiently attenuated from the police misconduct. The division concluded that the attenuation exception to the exclusionary rule applies. The division concluded that the motion to suppress was properly denied as to the search of K.D.W.’s pockets and the statements he made to the officer after his arrest, and affirmed K.D.W.’s adjudications for obstruction and trespass.

People v. McBride

In this criminal case, a division of the Court of Appeals addressed two issues of first impression in this state: whether section 42-4-206(1), C.R.S. 2019, which requires motor vehicles to be equipped with tail lamps emitting red light, prohibits tail lamps from emitting some white light along with red light; and whether section 42-4-903(1), C.R.S. 2019, which requires the use of a turn signal before turning or moving right or left upon a roadway, requires drivers to signal when navigating a roundabout. 

The division concluded that the answer to the first question is “yes” and the answer to the second is “no.” It also concluded that the evidence doesn’t support a finding that Timothy McBride knew about the gun found in the car he was driving. The division affirmed McBride’s traffic infraction for a tail lamp violation but reversed his traffic infraction for failure to signal and his conviction for possession of a weapon by a previous offender.

People v. Ambrose

William Ambrose appealed the judgment entered after a jury convicted him of felony driving while ability impaired. He contended that the trial court reversibly erred by finding the arresting officer had reasonable suspicion; failing to remove a biased juror for cause; refusing to submit the issue of prior alcohol convictions to the jury to determine beyond a reasonable doubt; failing to grant an evidentiary hearing on the admissibility of the Intoxilyzer 9000 breath test results; allowing a deputy’s expert testimony disguised as lay testimony concerning the I-9000’s operations; admitting the I-9000 certificate document contrary to the relevant statute’s requirements and in violation of his confrontation rights; and imposing the persistent drunk driver surcharge after sentencing in violation of his right to be free from double jeopardy.

In this impaired driving case, a division of the Court of Appeals was asked to decide a novel issue related to the I-9000 machine. Each time the I-9000 is used to measure a person’s breath alcohol content, it generates a BAC result and a separate document that certifies the machine is working properly and is certified for use during a specific range of dates. 

The question presented here is whether that “working order” certificate is testimonial and implicates a defendant’s confrontation rights under the Sixth Amendment to the United States Constitution. 

The division concluded, consistent with every state to have considered this issue, that this certificate is not testimonial and, thus, does not implicate the Confrontation Clause. The division concluded that such I-9000 certificates are admissible if they comply with the requirements of section 42-4-1303, C.R.S. 2019, and that evidence related to the machine’s reliability goes to the weight of the evidence, not its admissibility.

 The division also concluded that a deputy’s opinion that the I-9000 was working properly constitutes an expert opinion that was erroneously admitted as a lay opinion, but that any error was harmless. The division rejected Ambrose’s remaining contentions. 

Moeller v. Ferrari Energy

Dana and Darrell Moeller and Ferrari Energy, LLC, both assert that they are the owners of minerals located on property in Weld County. The dispute arose from the relevant deed’s language reserving a “½ interest” in the minerals to the grantors. That language would not ordinarily present an interpretive challenge, but a predecessor grantor had already reserved a one-half interest in the minerals, so the grantors who conveyed the property to the Moellers’ predecessors-in-interest owned only a one-half interest to begin with. The district court concluded that the warranty deed unambiguously reserved to the grantors, who are Ferrari’s predecessors-in-interest, a one-half interest in the minerals. And because the grantors only owned a one-half interest, there was no remaining interest to convey, and the Moellers ultimately received no interest in the minerals. Accordingly, the district court quieted the title in the mineral interest in Ferrari. 

A division of the Court of Appeals concluded that in light of the prior reservation, the warranty deed is ambiguous because it is susceptible of two interpretations: that the warranty deed conveyed to the grantees the half of the mineral estate that had not previously been reserved; or that the warranty deed reserved one-half of the mineral estate to the grantors, in addition to the previous reservation, leaving no portion of the mineral estate for the grantees. 

People v. Deutsch

Keith Deutsch and his ex-wife, Alicia O’Sullivan, share custody of their daughter according to the terms specified in a court custody order. Deutsch and O’Sullivan talk about their daughter primarily through Talking Parents, an e-messaging system that keeps a record of communications to support co-parenting.

On September 8, 2017, O’Sullivan went to pick up her daughter from daycare and discovered that Deutsch had already picked her up. O’Sullivan contacted Deutsch via Talking Parents and informed him that this was not his parenting time and he needed to return their daughter to her. When Deutsch refused, O’Sullivan called the police. After a deputy arrived, O’Sullivan spoke with Deutsch on speakerphone. Deutsch threatened that he would not return their daughter until O’Sullivan paid him $1988, gave him additional parenting time, and allowed their daughter to take a vacation with him during her parenting time. O’Sullivan told him that she “would give him whatever he wanted if he would just bring her back.” Deutsch then brought their daughter to a park near O’Sullivan’s house. Deutsch was arrested and charged with criminal extortion (threat of economic harm) and violation of a custody order. Following a jury trial, he was found guilty as charged and sentenced to two years of probation on each count, to be served concurrently. Deutsch appealed his conviction and contended that he had a right to conflict-free representation after arguing with his attorney. 

A division of the Court of Appeals applied the concept of constructive amendment to the criminal extortion statute for the first time. The division concluded that because the instruction expanded the bases upon which the defendant could be convicted, the instruction constructively amended the complaint and information. The division also found no actual conflict of interest between an attorney and a client when the client has threatened the attorney.

Parental Responsibilities Concerning D.P.G.

Tammy Tatarcuk believed that she and Patrick Goldsworthy were common law married. A magistrate, however, determined that no common law marriage existed. In response, Tatarcuk attempted to attain putative spouse status under section 14-2-111, C.R.S. 2019, which allows a party, under certain circumstances, to obtain spousal rights even though no legal marriage existed. 

The magistrate denied her request, and the district court adopted the magistrate’s order.

This appeal raised a novel issue: May a party attain putative spouse status after a court determines that no common law marriage existed? A division of the Court of Appeals said “no.” The putative spouse statute affords spousal rights when a marriage is invalid due to some impediment to the existence of a legal marriage, and the absence of a common law marriage is not such an impediment. 

The division affirmed the district court’s judgment with respect to the magistrate’s denial of Tatarcuk’s motion to amend her petition. Tatarcuk also appealed the magistrate’s and district court’s rulings awarding attorney fees and costs to Goldsworthy. Because Tatarcuk’s claim presented an arguably meritorious legal theory on an issue of first impression in Colorado, the magistrate and the district court abused their discretion in awarding attorney fees and costs under sections 13-17-101 and 13-17-102, C.R.S.2019. The division reversed those portions of the judgment.

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