Monday, April 30, 2012

Colorado Court of Appeals People in the Interest of C.F., a child 11CA0928

Decision here.

   C.F. made calls to various schools over Thanksgiving break, each threatening that he would blow them up (he did say in a couple of the calls that he would back off if they delivered 40 lbs of crack, or if the person he was calling shot themself).  He was eventually charged with making a false report of a bomb, and with interference with staff, faculty, or students of educational institutions.

C.R.S. 18-8-110
Any person who reports to any other person that a bomb
or other explosive, any chemical or biological agent, any
poison or weapon, or any harmful radioactive substance
has been placed in any public or private place or vehicle
designed for the transportation of persons or property,
knowing that the report is false, commits a class 6 felony.

C.R.S. 18-9-109
(2)  No person shall, on the premises of any
educational institution or at or in any building or other
facility being used by any educational institution,
willfully impede the staff or faculty of such institution in
the lawful performance of their duties or willfully impede
a student of the institution in the lawful pursuit of his
educational activities through the use of restraint,
abduction, coercion, or intimidation or when force and
violence are present or threatened.

   He was acquitted of the first charge because the trial court held that in order to violate 18-8-110 C.F. would have had to report that a bomb was already in place, rather than just that a bomb would be in place at some future time.  He was acquitted of the second charge because the trial court held that in order to meet that statute C.F. would have to be on the premises of the school at the time of the offense.  The people appealed, and the court of appeals held affirmed.  The court of appeals pointed out (in a nice little "Fuck you" to the prosecutor) that they should have charged C.F. with a violation of a different subsection of interference with staff, faculty, or students of educational facilities:

C.R.S. 18-9-109
(6)(a)  A person shall not knowingly make or convey
to another person a credible threat to cause death or to
cause bodily injury with a deadly weapon against:
(I)  A person the actor knows or believes to be a
student, school official, or employee of an educational
institution; or
(II)  An invitee who is on the premises of an
educational institution.
(b)  For purposes of this subsection (6), "credible
threat" means a threat or physical action that would
cause a reasonable person to be in fear of bodily injury
with a deadly weapon or death.
(c)  A person who violates this subsection (6)
commits a class 1 misdemeanor.

   Too late for that now.

Saturday, April 14, 2012

Colorado Court of Appeals People v. Douglas 09CA0781

Decision here.

   Douglas lived in Pennsylvania, and met "Marsha" on the internet.  Unbeknownst to Douglas, Marsha was an undercover officer.  Marsha and Douglas arranged for Douglas to visit them in Colorado, where he would have sex with both Marsha and her nine year old daughter, and where they would be a family.  There's a lot of nasty stuff in the decision, such as Douglas talking about having a "no clothes" rule in the house, and suggesting that he sit between mother and daughter on the couch and Marsha could teach her daughter how to suck.

   Douglas flew out to Colorado to meet Marsha and start his new life.  He was arrested upon arrival, and eventually convicted of attempted sexual assault on a child, enticement of a child, Internet luring of a child, Internet sexual exploitation of a child, and solicitation to commit sexual assault on a child by one in a position of trust.  He appealed his conviction.

   Regarding Internet luring of a child and Internet sexual exploitation of a child... the prosecution sorta dropped the ball on those ones.  He was charged as a complicitor in those crimes.  Colorado's complicity statute holds that a defendant is legally accountable for crimes committed by another person if the defendant aids, abets, advises, or encourages the other person in committing the offense.  Douglas was charged as Marsha's complicitor, but the Court of Appeals held that since Marsha didn't actually commit any crime, the evidence was insufficient to convict Douglas as her complicitor in anything.  Those two convictions were reversed.

   Regarding enticement of a child, Douglas argued that the evidence was insufficient to prove that as well.  Someone is guilty of that if "he or she invites or persuades, or attempts to invite or
persuade, a child under the age of fifteen years to enter any vehicle, building, room, or secluded place with the intent to commit sexual assault or unlawful sexual contact upon said child.  It is not necessary to a prosecution for attempt under this subsection (1) that the child have perceived the defendant's act of enticement."  Douglas argued that he was not guilty because he did not communicate directly with the child, and because the "secluded place" in question was Marsha's house (where Douglas was invited and the child was already going to be).  The court held that this was still a secluded place under the statute, and that acting through an intermediary (in this case, Marsha) to invite or persuade a child also satisfied the statute.

   Douglas argued that since he never arranged for Marsha to directly engage in sexual assault on her daughter, he never committed solicitation to commit sexual assault on a child by one in a position of trust.  The court held that since Douglas was trying to enter a familial relationship with the nine year old who he was going to have sex with, the trial court could have convicted him of the position of trust crime either for the acts he was arranging to engage in or for the acts he was arranging for the mother to engage in.

   All Douglas' convictions (other than the two internet crimes) were upheld.

   Douglas also challenged the admission of certain evidence of previous acts (some child porn on his computer, and a sexually explicit chat with a juvie).  Douglas wasn't being charged with crimes for these (probably since he was charged under Colorado law and those acts didn't occur in Colorado), but they were admitted to show his intent for the current crimes.  The court held that since Douglas was arguing that his primary interest in the child was companionship, this evidence was relevant to show his intent; and that it wasn't unduly prejudicial because there was other evidence related to his attempted sex crimes against Marsha's daughter.  Douglas also argued that "Marsha" shouldn't have been allowed to testify as an expert to the sexual meaning of certain parts of their on-line communications.  The court held that cops are frequently qualified as expert witnesses, but that in this case Marsha could testify as a lay witness to her understanding of the meaning of the statements.

   There's also some sentencing discussion in this decision, for those who are interested.

Friday, April 13, 2012

Colorado Court of Appeals People v. Oslund 10CA2049

Decision here.

   Oslund was at a party where one of the other guests (Maez) got really drunk, and broke into the host's car.  The host caught Maez as he was getting out of the car with some of her property, but didn't recognize him.  Maez took off running, dropping some of the stuff as he went.

   Oslund and his brother went looking for the suspect.  When the came back, Oslund was carrying a bloody stick and had blood on his hands.  They told the other party goers that the suspect had been Maez, and they had found him  and recovered the property he had stolen from the car.  Oslund also said that he had punched Maez.  Some of Maez's friends went looking for him.  They found him suffering from blunt force trauma to the head.  He was taken to the hospital.  He died.

   Oslund was eventually arrested, and was later convicted of reckless manslaughter and aggravated robbery, and sentenced to life without parole.  He appealed his conviction, based on insufficient evidence and on the trial court's denial of his affirmative defense.

   Oslund argued that there was insufficient evidence to support his aggravated robbery conviction, because a reasonable jury couldn't have found that he intended to kill, maim, or wound Maez if resisted (never mind that he did exactly that...).  Oslund's argument was that there was no evidence at all that he knew Maez's identity when he started chasing him, that he (Oslund) had injuries to his fists consistent with punching Maez hard enough to kill him, or that he had a stick or other weapon when he began chasing Maez.  The Court of Appeals ruled that none of these things were elements of the crime, and that there was sufficient evidence to support Maez's conviction.

   Oslund also argued that the trial court erred by denying him an affirmative defense of defense of property.  Basically, in order to claim an affirmative defense, a defendant only has to offer some credible evidence (the court uses the word "scintilla") that the affirmative defense applies, and then the prosecution would have to disprove the affirmative defense in addition to proving all the other elements of the crime.  Defense of property is defined in CRS 18-1-706:

A person is justified in using reasonable and
appropriate physical force upon another
person when and to the extent that he 7
reasonably believes it necessary to prevent
what he reasonably believes to be an attempt
by the other person to commit theft, criminal
mischief, or criminal tampering involving
property, but he may use deadly physical force
under these circumstances only in defense of
himself or another as described in section 18-

   The Court of Appeals held that Maez had completed the theft when he exercised control over the stolen property and removed it from the car.  Therefore, Oslund and his brother were trying to apprehend Maez, and could no longer prevent any theft.

   Oslund's conviction was affirmed.

Tuesday, April 3, 2012

US Supreme Court Florence v. Board of Chosen Freeholders of County of Burlington 10-945

Decision here.

   This one is more directly relevant to jail staff than to police, but it's still worth knowing about.  Florence was arrested for a warrant for failure to pay fines, detained for a few days between two different jails, and then released when it was determined that he had paid his fine (just a little late) and the warrant should have been quashed.  At each of the jails where he was detained, he was strip searched prior to being admitted to the general population of the jail.

   Florence filed a §1983 suit for violation of his 4th & 14th Amendment Rights, claiming that the strip searches were unreasonable because he was arrested for such a minor offense.  He proposed guidelines that would require detention officers to refrain from such invasive searches except for serious offenses or cases where there was reasonable suspicion that the prisoner possessed contraband.

   The Supreme Court held that the jail policy of strip searching all prisoners who will be admitted to general population (regardless of their behavior, the crime they were being detained for, or the presence or lack of individualized suspicion) was reasonable.  The decision explains that the court should defer to jail and prison officials in matters of security unless there's some showing that the officials are exaggerating the threat or overreacting, and that the across-the-board strip search policy struck a reasonable balance between the prisoner's privacy rights and the government's interest in keeping jails secure.

   The court did not address whether or not strip searches would be reasonable for prisoners who will not be interacting with other prisoners, but strongly hinted that the government shouldn't push its luck with that one.