Steve Bernard

The case concerned an eleven-year-old boy with significant mental and developmental disabilities who was charged with sex-related delinquent acts equivalent to aggravated incest and other offenses; after he was found incompetent to proceed and unrestorable to competency, a magistrate included a psychosexual evaluation in the resulting management plan to assess community risk and appropriate supervision, but the district court reversed that requirement on constitutional grounds and the prosecution appealed. The Colorado Court of Appeals reversed the district court and reinstated the evaluation requirement. It held that the order did not violate the privilege against self-incrimination because a statute expressly bars any statements made during the evaluation from being used in later criminal proceedings, and it did not violate due process by undermining the presumption of innocence. The court declined to address the argument that the evaluation results might later be used to restrict the juvenile’s liberty, deeming that claim premature.

criminal law

This case involved an intervenor's claim under the Colorado Consumer Protection Act (CCPA) alleging that JetAway engaged in deceptive trade practices by advertising fuel and related aircraft services it was not authorized to provide at Montrose Regional Airport. The central issue on appeal was whether the CCPA element requiring a significant public impact from the deceptive practice presents a question of law for the court or a question of fact for the trier of fact. The court held that it is a question of fact to be reviewed for clear error when facts are disputed, and it affirmed the trial court's finding that the intervenor had not proven significant public impact. The decision rested on the absence of evidence showing actual consumer deception or likely future harm, applying a balancing of relevant factors such as consumer sophistication and advertising reach rather than treating any single factor as dispositive.

business & regulatoryprocedure

The case involved a plaintiff suing a defendant for negligence after a car accident, seeking damages for injuries, medical expenses, and lost income; the defendant admitted liability but disputed the damages amount. Before trial, the defendant made a $145,000 settlement offer that referenced including any subrogation interests or liens, which the plaintiff rejected. The jury awarded the plaintiff $98,000 plus interest, for a total judgment under the offer amount, prompting the trial court to award post-offer costs to the defendant under Colorado's section 13-17-202. The appellate court affirmed, holding that the offer's language about subrogation and liens did not impose invalid nonmonetary conditions but instead clarified its value to promote settlements, making the cost-shifting statute applicable.

proceduretorts & liability

In People v. Cardenas, the defendant, who had pleaded guilty to first degree criminal trespass and been ordered to pay $3,640 in restitution plus 12% annual postjudgment interest starting at sentencing, raised an as-applied constitutional challenge claiming the interest requirement constituted an excessive fine because his incarceration left him unable to earn wages. The trial court rejected the challenge, holding that restitution serves to make victims whole rather than to punish and must be imposed in full without regard to ability to pay. On de novo review, the appellate court affirmed, concluding that the statutory interest mechanism—designed to encourage prompt payment and compensate for delay—likewise does not offend the Eighth Amendment or Colorado Constitution article II, section 20, because it is not equivalent to a fine and does not violate proportionality principles even when applied to an indigent, incarcerated defendant. The court noted that current statutes require restitution orders and minimum payments during incarceration, distinguishing older precedent based on prior statutory language.

criminal lawprocedure

The case involved defendant Ronald Owen Smith, who was convicted by a jury of conspiracy to commit theft after being accused of assisting his codefendant in using stolen credit cards and checks from four victims' purses to make fraudulent purchases in Jefferson County. The trial court denied the defendant's request to continue the trial until after the codefendant's sentencing so she could testify without invoking her Fifth Amendment rights, and it allowed the codefendant to decline to testify at trial on self-incrimination grounds related to potential sentencing issues. On appeal, the court affirmed the conviction, holding that the trial court did not abuse its discretion in denying the continuance due to docket constraints and that the defendant was not prejudiced because a letter from the codefendant containing exculpatory statements was admitted into evidence for the jury's consideration. The core reasoning centered on the balance of scheduling needs, the codefendant's valid Fifth Amendment concerns given her pending sentencing, and the lack of actual prejudice from the rulings.

criminal lawprocedure

This case involved a dispute over the priority of liens on a judgment awarded to a contractor in a breach of contract lawsuit. The bank had a perfected security interest in the contractor's accounts receivable and proceeds under the UCC, while the attorneys who represented the contractor in the lawsuit claimed a statutory attorney's lien on the judgment for their fees. The court held that the attorney's lien took priority over the bank's security interest. It reasoned that the Colorado attorney's lien statute expressly establishes the lien as a "first lien," that the UCC does not govern such liens, and that the UCC therefore cannot be used to resolve the priority question between the two interests.

propertybusiness & regulatory

The case involved defendant Juan G. Loyas, who was convicted of second degree burglary of a dwelling, unlawful sexual contact, first degree trespass, two counts of third degree assault, and as a habitual criminal after evidence showed he broke into the victim's home, chased her, and forcibly touched her while assaulting her until bystanders intervened. On appeal, the court affirmed all convictions and the sentence. The core reasoning was that amending the burglary charge to specify unlawful sexual contact as the underlying offense was permissible under Crim. P. 7(e) because it qualifies as a lesser included offense of sexual assault under the strict elements test and related statutes, and an abbreviated proportionality review confirmed the habitual criminal sentence was not unconstitutionally disproportionate given the gravity of the offenses and the defendant's prior violent felonies.

criminal law

The case involved defendant Charlotte Bowerman's appeal from the denial of her Crim. P. 35(a) and 35(c) motion challenging a restitution order imposed after her guilty plea to providing false information to a pawnbroker and attempted theft. The district court had ordered her to pay over $14,000 in restitution based on the victim's statements about missing items, including amounts reimbursed to an insurer, despite the defendant's contention that she was only responsible for about $3,000 in losses tied to the charged conduct. On appeal, the defendant argued that the restitution constituted an illegal sentence because the prosecution failed to prove by a preponderance of the evidence that her convicted conduct proximately caused all the claimed losses, including those from alleged subsequent misconduct. The Colorado Court of Appeals affirmed the denial of the motion, though on grounds different from the trial court's waiver ruling, while noting that restitution must be limited to losses proximately caused by the conduct underlying the conviction.

criminal lawprocedure

In this garnishment action, real estate broker CB Richard Ellis sought to collect a disputed sales commission from the two owners of judgment debtor CLGP, LLC, after the LLC sold its property, distributed nearly all net proceeds to the owners, and created a $200,000 reserve asset based on their personal guarantees to cover any eventual commission liability. The broker argued the distribution constituted a fraudulent transfer under Colorado's Uniform Fraudulent Transfer Act, rendering the owners liable as garnishees. The trial court denied the broker's traverse of the garnishees' answers, and the court of appeals affirmed. The appellate court held that the trial court properly applied the statute's tests for actual and constructive fraud, finding no intent to hinder creditors and that the reserve was reasonable and adequate at the time of distribution given the uncertain contingent liability, so the LLC was not rendered insolvent for purposes of the fraudulent-transfer claims.

business & regulatoryproperty

This case involved an insurance company's subrogation claim against an electrician and his company for negligently installing an exit sign that allegedly caused a fire damaging a salon. The trial court granted summary judgment to the defendants on the ground that the claim was barred by the two-year statute of limitations under the Construction Defect Action Reform Act. The appellate court affirmed, ruling that the limitations period began to run on the date of the fire because that was when the physical manifestation of the defect was discovered, and that principles of subrogation did not change the accrual date from the insured's discovery of the fire.

proceduretorts & liability

This case arose from the Colorado Attorney General's efforts to enforce an administrative subpoena against CB Services Corporation under the Uniform Consumer Credit Code and Consumer Protection Act, including contempt proceedings against its officer Michael Hicks for noncompliance. The trial court quashed an arrest warrant for Hicks due to lack of personal service and imposed monetary sanctions on the State and a senior assistant attorney general under C.R.C.P. 11, while refusing to bar future contempt actions against Hicks. The State appealed the quashing of the warrant and the sanctions, and Hicks cross-appealed the denial of broader relief. The Colorado Court of Appeals dismissed the appeal and cross-appeal, holding that it lacked jurisdiction because the trial court's orders were not final and appealable, as no judgment of contempt had been entered against Hicks and the sanctions did not conclude the underlying action.

procedurebusiness & regulatory

In People v. Everett, defendant Barry Alan Everett was convicted by a jury of sexual assault under section 18-3-402, C.R.S. 2009, after evidence showed he forcibly assaulted an 18-year-old victim in Fort Collins in 2002, including DNA matching, physical injuries, and a jail inmate's testimony. The trial court admitted evidence of a similar 2003 sexual assault in Pennsylvania under CRE 404(b) to rebut the defendant's consent defense and to show motive, intent, common plan, and modus operandi. On appeal, the court affirmed the conviction, holding that the prior act evidence was properly admitted for those limited purposes after the defendant raised consent. However, the court vacated the 32-years-to-life sentence because the offense was not properly classified or pled as a crime of violence and because the trial court improperly considered the defendant's silence as lack of remorse, remanding for resentencing within the presumptive range for a class 3 felony sexual assault.

criminal lawprocedure

In People v. Ford, the defendant pled guilty to identity theft under a negotiated plea agreement and later filed a postconviction motion claiming that the identity theft statute violated his equal protection rights as applied to him. The trial court denied the motion, and the defendant appealed. The Colorado Court of Appeals dismissed the appeal, holding that a valid guilty plea generally bars constitutional challenges to the conviction unless the claim involves a jurisdictional defect, such as the facial invalidity of the statute, or relates directly to the plea's validity. Because the defendant's challenge was an as-applied equal protection claim that could not be resolved from the face of the charging document and plea record alone, it did not fall within any exception to the general rule.

criminal lawprocedurecivil rights

This case involved a defendant charged with weapon possession offenses after a warrantless vehicle search, who entered a conditional guilty plea preserving the right to appeal the denial of his motion to suppress evidence. The Colorado Court of Appeals dismissed the appeal, holding that conditional guilty pleas are not authorized in Colorado. The court reasoned that, absent a statute or court rule allowing them, the general rule applies that a valid guilty plea waives nonjurisdictional objections including challenges to pretrial suppression rulings, as established by prior Colorado Supreme Court precedent and the lack of any authorizing provision despite the federal rule's existence for decades. The defendant was permitted to withdraw the plea on remand, with the prosecution then able to reinstate charges or renegotiate.

criminal lawprocedure

In Hice v. Lott, a buyer who held a lease-purchase option sued real estate appraisers for professional negligence, negligent misrepresentation, and breach of contract after their appraisals valued the property at $336,000 and $410,000 and classified the dwelling as modular rather than a former mobile home, allegedly causing the buyer to incur unnecessary expenses before a later appraisal valued it below $252,500. The trial court granted summary judgment to the appraisers, and the court of appeals affirmed. The court held that expert testimony was required as a matter of law to establish the applicable standard of care for distinguishing mobile and modular homes and assessing effects on fair market value under USPAP guidelines, which the buyer's non-appraiser expert could not supply, and that the buyer had not timely raised any distinction between her tort and contract claims before the summary judgment ruling.

propertytorts & liabilityprocedure

The case concerned the Colorado Division of Insurance fining Auto-Owners Insurance Company $500 for failing to provide a complete copy of an insurance policy and other requested information in response to a July 2006 letter investigating a homeowner's complaint about nonpayment of a construction defect judgment. The insurer appealed the Commissioner's order upholding the fine under DOI Regulation 1-1-8, contending that its partial responses were sufficient and that the DOI lacked authority to penalize an incomplete reply during an informal investigation. The court affirmed, concluding that the regulation expressly requires a complete written response to any DOI inquiry within 30 days and that section 10-3-109(8) supplies express statutory authority to impose the penalty for failure to file such documents.

business & regulatory

This case involved Brent Walden, who was convicted by a jury of first degree criminal trespass and harassment after entering his estranged wife's apartment without permission and assaulting her and her boyfriend. Walden appealed, arguing that the trial court erred in its jury instructions regarding his defense of involuntary intoxication from medication and in giving a modified-Allen instruction to a deadlocked jury. The Colorado Court of Appeals affirmed the convictions, holding that any omissions in the intoxication instructions did not constitute plain error and that the modified-Allen instruction was not coercive.

criminal lawprocedure

The case involved Sir Mario Owens, who was convicted in Colorado of two counts of first-degree murder (resulting in death sentences) along with lesser felony offenses. Owens appealed his convictions on the lesser charges to the Colorado Court of Appeals and sought a ruling on jurisdiction, while the prosecution moved to dismiss. The court dismissed the appeal, holding that it lacked jurisdiction. The core reasoning was that the state's unitary review statute establishes an exclusive appellate process for death penalty cases, vesting sole jurisdiction in the Colorado Supreme Court over all challenges to convictions and sentences in such cases, including related lesser offenses, to ensure expedited and consolidated review.

criminal lawprocedure

The case involved a Nevada resident whose Colorado driver's license was revoked after an administrative hearing determined she drove with excessive blood alcohol content. She petitioned for judicial review in Larimer County District Court, but the department moved to dismiss, arguing lack of subject matter jurisdiction under the statute requiring petitions to be filed in the district court of the person's residence. The district court dismissed the petition, finding the filer was not a Larimer County resident and lacked authority to transfer venue. The appeals court reversed, holding that the district court had jurisdiction under the Administrative Procedure Act to hear the petition and, pursuant to C.R.C.P. 98 and precedent, should change venue to Denver District Court rather than dismiss the action.

procedure

In People v. DeBella, the defendant was convicted by a jury of two counts of sexual assault on a child (one as part of a pattern of abuse), two counts of enticement of a child, and marijuana possession, based on allegations involving a thirteen-year-old victim. The defendant appealed, arguing that the trial court erred by allowing the jury unrestricted access during deliberations to a videotaped interview of the victim that had been admitted as a prior inconsistent statement. The Colorado Court of Appeals affirmed the convictions, holding that under controlling precedent such as Frasco v. People, trial courts have discretion to permit juries to review such testimonial exhibits without special restrictions or supervision. The court rejected claims of ineffective assistance of counsel in plea negotiations as well. A dissent argued that unrestricted access risked giving the videotape undue emphasis compared to other evidence.

criminal lawprocedure