Colorado Court of Appeals People v. Cardenas 11CA1954

Decision here.

   Cardenas was pimping a 17 year old and an 18 year old.  He got caught when the 18 year old got arrested, and was convicted of pimping an adult, pimping a child, pandering a child, inducing child prostitution, and trafficking in children.

   On appeal, his conviction for trafficking in children was reversed, because that statute prohibits the sale or lease of a child, but not of a child's services. Given that he wasn't selling the girl into slavery, the statute doesn't quite apply.  His other convictions were affirmed.

Tenth Circuit US v. Ko 13-3064

Decision here.

   I don't normally do statutory interpretation cases involving federal law, but I couldn't pass this one up.

   Ko was serving out the final chapters of a prison sentence at home with an ankle monitor.  He was allowed to leave each morning to go to work, but had to be home by 7 pm.  One day, he did not come home.  He was arrested in another city and charged with escape.

   The magistrate dismissed the indictment, ruling that because he was being allowed to serve his sentence at home with an ankle monitor, he wasn't really in custody of the BOP.  The prosecution appealed, arguing that he was in BOP custody because he hadn't finished his sentence yet, and the fact that the BOP was allowing him to serve his sentence in his own home (subject to their restrictions) didn't change anything.  The Tenth Circuit agreed that prisoners in custody are in fact in custody.  The dismissal of the indictment was reversed.

Colorado Supreme Court People v. Roggow 11SC597

Decision here.

   Roggow was a landlord who was on friendly terms with his tenants.  They lived a few blocks away, frequently socialized, and sometimes he would pay the tenants kids to do yardwork.  The friendly relationship soured quickly when he hit on his tenants' eight-year old daughter and felt her up a couple times while they were at the hardware store buying shower parts for the rental house.

   Roggow was arrested, and eventually convicted of sexual assault on a minor by a person in a position of trust.  The relevant statute defines a person in a position of trust as follows:

One in a "position of trust" includes, but is not limited to, [1] any person
who is a parent or acting in the place of a parent and charged with any of
a parent's rights, duties, or responsibilities concerning a child, including a
guardian or someone otherwise responsible for the general supervision of
a child's welfare, or [2] a person who is charged with any duty or
responsibility for the health, education, welfare, or supervision of a child,
including foster care, child care, family care, or institutional care, either
independently or through another, no matter how brief, at the time of the
unlawful act.

   Pay special attention to "includes, but is not limited to."

   Roggow appealed, arguing that he wasn't in a position of trust because he wasn't specifically charged with any supervisory responsibility by his victims' parents.  The court of appeals agreed, and reversed his conviction.  The people appealed.

   The Colorado Supreme Court held that the above definition of a person in a position of trust is meant to be illustrative, not exclusive.  The court further held that being in a position of trust isn't so much a matter of being charged with authority over the child, but rather of being given special access to the child because of a relationship.  In this case, Roggow was a family friend who took the kids on a shopping trip without the parent's foreknowledge, and the parents weren't alarmed when they found out about it (at least not until they found out about that one little detail...).  The court held that this was enough evidence of a position of trust to support a conviction.

   Roggow's conviction was reinstated.  Creep.

Colorado Court of Appeals People v. Smoots 11CA2381

Decision here.

   This is one of those cases where the appellate court sets aside its own previous reasoning.  As far as I know, that doesn't actually count as overturning the previous decision... but it does create the sort of conflict that might inspire the Supreme Court to step in at some point.  Until then... judges disagree.  

   So.  Smoots was driving drunk, swerved into oncoming traffic, and caused a crash.  The driver of the other car was seriously injured, and Smoot was eventually convicted of DUI, DUI per se (his BAC was .346), and vehicular assault.  He appealed his conviction.

   His argument about the vehicular assault charge was the sort of thing that'll make your brain hurt.  He argued that his drunk driving wasn't the proximate cause of the accident because there could have been an intervening cause if the victim driver had been the one to swerve into his lane, and that the jury instructions presented a burden of proof that was too low.  The short version of the appellate court's response is that fault isn't relevant for purposes of vehicular assault, the question is whether the defendant was driving drunk and this resulted in a crash.  If the other driver were somehow grossly negligent, then that might be an affirmative defense (gross negligence is defined as abnormal human behavior that constitutes an extreme departure from the ordinary standard of care... meaning a lot worse than just drifting out of your lane).  But even if the other driver is at fault (or could be at fault), the drunk driver can still be said to have caused the accident for purposes of this statute.  And the jury instructions may not have been the best, but they were ok.  So the vehicular assault condition stands.

   The DUI per se conviction also stands, but the DUI conviction... acknowledging that another division of the court had recently held that DUI is not a lesser included offense of vehicular assault, this division now held that it is.  In Medrano-Bustamante, the court had held that because each statute relies on slightly different definitions of motor vehicle, the elements are distinct and so are the offenses.  In Smoots, the court now has held that this would be an issue if we were talking about behavior that potentially met one definition but not the other (like driving a boat whilst drunk and hurting someone, which would meet the vehicle definition for vehicular assault but not the one for DUI), but since the behavior in this case meets the definition of motor vehicle use by each statute, the elements are now identical and therefore DUI is a lesser included offense of vehicular assault.

   I guess it doesn't really matter much for our purposes, since we can still charge both offenses.  One of them would have to be dropped before conviction in order to comply with this decision, but that's something for prosecutors to worry about.  

Colorado Court of Appeals People v. Stell 13CA0492

Decision here.

   Stell's father executed a power of attorney which gave Stell broad authority to act on his behalf in dealing with his finances and property.  Stell used this authority to rip his father off to the tune of half a million.  He was subsequently indicted for multiple counts of theft, which the district court dismissed.  The reasoning was that the people would be unable to meet the "without authorization" element of theft.  The prosecution appealed.

   The Court of Appeals held that even though the POA granted Stell broad authority, the law which governs such things (UPAA) imposed a duty on Stell to act in his father's interests rather than to liquidate his holdings and keep the profits.  Therefore, there was evidence to support that he acted without authorization.  The dismissal of the indictment was reversed, and the case may proceed to trial.

Colorado Court of Appeals People v. Medrano-Bustamante 10CA0791

Decision here.

   Medrano-Bustamante was driving drunk with two passengers, when he was involved in a single-vehicle accident.  One of his passengers (the adult, who was also drunk) suffered a broken femur.  The other passenger (a juvie) died several hours after the accident.  Being a real stand-up guy, Medrano-Bustamante claimed that the dead juvie had been driving.  DNA evidence and the pattern of everybody's injuries said otherwise, though, and Medrano-Bustamante was eventually convicted of DUI, vehicular assault, vehicular homicide, and two counts of hit and run (one for leaving the scene of an accident involving death, the other for leaving the scene of an accident involving serious bodily injury).

   On appeal, Medrano-Bustamante argued that DUI was a lesser included offense of vehicular assault and vehicular homicide.  Another division of the court of appeals had agreed with him in a previous case, but different divisions of the court of appeals aren't bound by each others' decisions.

   This time, the court held that DUI is not a lesser included version of vehicular assault or vehicular homicide, because of an extremely subtle difference in the elements.  On first glance, vehicular assault and vehicular homicide both contain all of the elements of DUI, but in order to be guilty of vehicular assault or homicide a defendant must drive a motor vehicle as that term is defined in the criminal code.  In order to be convicted of DUI, a person must drive a motor vehicle as that term is define in by the Uniform Motor Vehicle Law.  The criminal code definition basically describes anything designed to move someone by land, water, or air (unless supported by tracks or cables), and the traffic code version says any vehicle designed for use on highways.

   Long story short: the difference is minor, but enough that the elements of the offenses aren't actually the same.  So the DUI conviction stands as a separate offense from the vehicular assault and vehicular homicide convictions.  The hit and run convictions, on the other hand, had to be merged.  Hit and run crimes are charged per accident, not per victim.  So instead of charging our hero with one count of leaving the scene of an accident involving death and one of leaving the scene of an accident involving SBI, the prosecution should have charged him with just one count of leaving the scene of an accident involving death.

   Other than the two merged convictions, the trial court's decision stands.

Colorado Court of Appeals People v. Johnson 11CA2366

Decision here.

   Charles Ray Johnson escaped from prison in 1975, after being convicted of second degree murder.  He was apparently arrested in 1990 in California for public intoxication, but that went nowhere.  Other than that, he evaded capture until 2007.

   He was convicted of escape, and appealed his conviction.  He argued that the statute of limitations had expired (since his escape was completed over 30 years ago).  The Colorado Court of Appeals ruled that escape is a continuing offense, and that as long as an escaped prisoner has not yet been returned to custody in Colorado, he is still committing the crime of escape.  Accordingly, the statute of limitations didn't start until Johnson was caught in 2007, and his conviction stands.

Colorado Court of Appeals People v. Reed 08CA2700

Decision here.

   Reed was convicted of killing his girlfriend, stealing her car, and criminally possessing four or more financial transaction devices with two different victims (because when he was caught he had a bunch of her credit cards and also a gift car which belonged to someone else).  He appealed, arguing prosecutorial misconduct over witnesses alluding to his criminal history.  That argument didn't work out for him, but it isn't really within the scope of this blog.

   Reed also argued that because there were no funds available on the gift card, the evidence was not sufficient to support his criminal possession of a financial transaction device conviction.  The Colorado Court of Appeals agreed, because there was no evidence presented that the gift card was usable (and without that, it didn't meet the statutory definition of a financial transaction device).  The court ruled that the evidence did support a conviction on the lesser included charge of criminal possession of a financial transaction device (four or more devices, one victim).  The case was sent back to the lower court for resentencing on that one charge, everything else about his conviction stands.

Colorado Court of Appeals People v. Poindexter 09CA0434

Decision here.

   Poindexter attacked a woman and stole her car, then led the police on a chase.  At the end of that, he jumped out of the car, broke into an apartment building and hid from the police in there.

   After he was caught, he was charged with burglary (among other things).  In order to meet the elements of burglary in Colorado, a person has to unlawfully enter or remain in a building or occupied structure with the intent to commit a crime against another person or property.  The prosecution's theory was that he broke into the apartment building with the intent to commit obstructing a peace officer.

   He was convicted, and appealed.  The Court of Appeals held that under these circumstances, obstructing a peace officer is not a crime against a person.  Rather than broadly classifying all crimes as either being against a person/property or not, the court decided to take a case-by-case approach, and look at whether or not the circumstances of the crime at issue support the definitions found in Black's Law Dictionary:

Against a person: A crime against the body of
another human being. The common-law offenses against
the person were murder, manslaughter, mayhem, rape,
assault, battery, robbery, false imprisonment, abortion,
seduction, kidnapping, and abduction.

Against property: a category of criminal offenses in which the
perpetrator seeks to derive an unlawful benefit from — or do damage
to — another's property without the use or threat of
force. Examples include burglary, theft, and arson (even
though arson may result in injury or death).

   In this case, Poindexter committed obstruction by hiding from the police: using an obstacle (the building) to hinder or impair the officers' enforcement of the penal law.  Not a crime against a person or property.  If he had committed obstruction by using force against the officers, that would have been a crime against a person, which would mean under those circumstances obstruction could be a predicate offense for burglary.

   Since in this case obstruction could support a burglary charge, that conviction was vacated.  His other convictions (vehicular eluding and aggravated motor vehicle theft) were upheld.  He had argued that the evidence didn't support the requisite recklessness for the vehicular eluding charge, and that without the eluding charge the aggravated motor vehicle theft charge couldn't stand.  The court recognized that driving at a high rate of speed and jumping from a car (which still had a passenger and then crashed into a snowplow) is reckless.

Colorado Court of Appeals People v. McMinn 10CA0734

Decision here.

   McMinn ran over a deputy while he was driving away from a domestic violence call.  Over the next 20 minutes, he led other deputies on a series of short pursuits, getting away from them each time... except the last.  At the end of that pursuit, he slid off the roadway into the snow, and the deputy who was chasing him at the time crashed into him to push him further down the hill and pin his car.  Then they arrested him.

   He was charged with four counts of vehicular eluding, and he argued that they should be merged into one count because it was one continuous attempt to get away.  The prosecution argued that there were a separate set of facts (including different times, locations, deputies, and actions taken by McMinn) to support each of the four separate counts, and the trial court agreed.  McMinn moved to add four counts of eluding a peace officer (apparently hoping that the jury would convict him of the four misdemeanors instead of the four felonies).  McMinn was convicted on all counts.

   He appealed, renewing his argument that the four counts of vehicular eluding (and now also the four counts of eluding a peace officer) should be merged into one.  The Colorado court of appeals held that the four separate pursuits supported four separate charges, and his convictions were upheld.

Colorado Court of Appeals People v. Moore 11CA2338

Decision here.

   Roger Moore was arrested after an altercation with a private security guard at the Denver City and County Building.  According to the prosecution, he cut in front of someone else in line, put some belongings on the conveyor belt for the x-ray machine, walked through the metal detector, and then tried to collect his property which had not yet been passed through the x-ray.  When a 65 year old security guard tried to stop him, he grabbed her and shoved her (causing an injury to her shoulder).

   Moore was charged with third degree assault on an at-risk adult and with impeding a public official or employee at a public building.  He was acquitted of the assault charge and convicted of the impeding charge, but he appealed his conviction.

   The relevant text in § 18-9-110(2) says:"[n]o person shall, at or in any such public building, willfully impede any public official or employee in the lawful performance of duties or activities through the use of restraint, abduction, coercion, or intimidation or by force and violence or threat thereof." 

   The Colorado Court of Appeals held that a private security guard working at a public building is not a public employee for the purposes of this statute, and vacated Moore's conviction.

Colorado Court of Appeals People v. Perez 10CA0587

Decision here.

   Some lady who was on unemployment got a call from her caseworker because she was supposedly working at a barbecue restaurant.  Turned out that it was just Perez working at said restaurant using her social security number, and that he had been doing this for a few years at various restaurants.  Perez was arrested.

   He was charged with identity theft and criminal impersonation.  He was convicted, and he appealed.

   The court of appeals reversed his conviction.  Regarding identity theft, there was never any evidence presented that he actually knew the social security number belonged to someone (as opposed to simply being fictitious).  Without that proof, they were missing an element.

   The court's reasoning for reversing criminal impersonation was that the prosecution never presented evidence that he couldn't have been employed without providing a social security number, so therefore he wasn't using the fake number in a fictitious capacity.  Yeah, I know.  It doesn't make sense to me, either.  In any event, after Perez was charged the Criminal Impersonation statute has been updated, effectively closing this weird little loophole for all future cases.

Colorado Court of Appeals People v. Luna 11CA1085

Decision here.

   Luna got himself arrested for disorderly conduct.  Short version: he was being detained for an assault and attempted robbery, but the victim decided not to press charges.  While being detained, he was acting the fool.  Once he was released, he hung around to act the fool some more.  And then he was arrested.

   While in the back seat of a patrol car, he spat in the face of one of the arresting officers.  He was charged with (among other things) Second Degree Assault.  The relevant portion of 18-3-203(1)(f.5)(I) says:

[w]hile lawfully confined in a detention facility within this
state, a person with intent to infect, injure, harm, harass,
annoy, threaten, or alarm a person in a detention facility
whom the actor knows or reasonably should know to be
an employee of a detention facility, causes such employee
to come into contact with . . . saliva.

   He was convicted, and he appealed.  His argument was that the back seat of a police car is not a detention facility for the purposes of this statute.  The Court of Appeals disagreed with him, and his conviction was upheld.

Colorado Court of Appeals People v. Chase 09CA1908

Decision here.

   This is one of those cases where some idiot defendant makes every conceivable argument to escape the consequences of his actions, no matter how ridiculous he may sound.  Since the court has to address them all, it's really long.  Painful reading.

   Anyway, the facts: Jerry Chase was (is) a crazy 60 year old who lived in a trailer park.  After we was charged with criminal tampering (for pouring sugar in his neighbor's gas tank) and with violating a protection order (for shouting a racial slur at the same neighbor), he was evicted from the trailer park.  Apparently, he was out of state when he found out about the eviction.  Like any rational adult would do, he fired off a series of six emails over two days to the trailer park manager, the maintenance worker who posted the notice, the neighbor who he had been harassing, and a bunch of other people.  These were wickedly threatening emails which alluded to Chase's past arson convictions, included a picture of someone pointing a gun at a judge (not sure why a judge...), had a lot of profanity-laden threats and demands to lift the eviction.  The threats were primarily directed against the couple who managed the park and the maintenance worker.  Two of them also happened to be out of state when they received the emails, but not the third.  They were all pretty freaked out about the threats.

   Surprisingly, acting like an immature ass didn't help Chase's cause.  Instead of getting the eviction notice lifted, it got him arrested for three counts of stalking.  He was convicted by a jury and sentenced to 12 years in prison.  He appealed.  Here are a few of his arguments:

   First, he argued that since he was out of state when he wrote the emails, and two of his victims were out of state when they read the emails, Colorado didn't have jurisdictio because none of the elements of the crime occurred in Colorado.  The Court of Appeals held that although the emails were neither written or read in Colorado, the result of the emails (causing his victims to fear for their safety) did occur in Colorado.  And since that result is one of the elements of Stalking, that means that part of the offense occurred in Colorado.  And if part of an offense occurs in Colorado, then Colorado has jurisdiction.  The court also noted that although email can be accessed from anywhere, Chase sent the threats to accounts of people who he knew lived in Colorado, and who he thought would be in Colorado.

   Chase also argued that the evidence was insufficient to prove that he made a credible threat.  The content of the emails and the effect that the emails had on the victims was held to be enough to demonstrate a credible threat.  Chase argued that there was insufficient evidence to show that he made repeated communications because (get this) his victims opened all the emails at the same time.  The court held that six separate emails over the course of two days constituted repeated communications.  He also argued that he should have been convicted of misdemeanor harassment instead of felony stalking, and that convicting him of a felony when his conduct met the elements of a misdemeanor violated his equal protection rights.  The court pointed out that harassment and stalking are related offenses, but that they have different elements and are different crimes.

   Also, Chase argued that his emails were protected by the First Amendment.  The court pointed out that freedom of speech is not absolute, and does not protect true threats (speech that a reasonable speaker and a reasonable recipient would perceive as an actual threat of harm).  Since Chase's emails were true threats, they were not protected speech.

   Chase's conviction was upheld.

Colorado Supreme Court Webb v. Black Hawk 11SC536

Decision here.

   This is one of those decisions where you would swear that judges are paid by the word... here's the short version: Black Hawk had a law which prohibited people from riding bikes through their city.  The ordinance only applied to people who entered the city on bicycles.  People whose trip originated within the city could ride wherever they wanted, but people who rode in from somewhere else weren't allowed to pass through Black Hawk.  Pretty stupid, right?  It's even stupider considering that it conflicts with state traffic regulations (you can't prohibit bikes on a street unless you provide an alternate path, which Black Hawk did not.  Black Hawk's solution was to simply un-enact that portion of the state law within their boundaries).

   Anyway, some cyclists did ride through Black Hawk as part of a long distance ride that began in Golden.  They were stopped and ticketed.  They fought the charges, and the muni court found them guilty (although it did strike down the exception for local cyclists, meaning that now the law would have to apply to everyone).  They appealed all the way to the state Supreme Court.

   The Supreme Court held (using every conceivable rationale, and a lot of extraneous information) that bicycle regulation is a matter of both local and statewide concern, that the Black Hawk bike ban was in conflict with state law, and that since this is not a purely local matter the state law trumps the local law.  Therefore the bike ban is unconstitutional.

   ...but the Supreme Court said it in 7,681 words!

Tenth Circuit US v. Rutland 11-8049

Decision here.

   In this case, Rutland (a tweaker) robbed a meth dealer at his home.  During the robbery, the dealer sustained injuries which prevented him from working for two months.  Rutland was convicted in federal court under the Hobbs act, which makes it a crime to interfere with interstate commerce by threats or violence.  The idea is that even though selling meth is illegal, it's still commerce (and since the dealer's source was in another state, it's interstate commerce).

   I'm not sure what to say about that, but the Tenth circuit was good with it.  Rutland also argued that he was robbing the dealer in his individual capacity rather than in his capacity as a drug dealer (I'm not making this up!), but the Tenth observed that 1- the evidence showed the dealer was targeted in part because of his meth-dealer status, and 2- even if that weren't true, intestate commerce was affected because the dealer couldn't run his business for two months and his assets were therefore depleted.

Colorado Court of Appeals People v. Fuentes-Espinoza 08CA1231

Decision here.

   Most of this case has more to do with prosecution than law enforcement.  In the most police-relevant part of the case, Fuentes-Espinoza appealed his conviction for violating Colorado's human smuggling statute.  The statute says the following:

A person commits smuggling of humans if, for the purpose

of assisting another person to enter, remain in, or travel

through the United States or the state of Colorado in

violation of immigration laws, he or she provides or agrees   

to provide transportation to that person in exchange for

money or any other thing of value.

   Fuentes-Espinoza argued that the prosecution never proved that his passengers were in the country illegally.  The court of appeals held that the prosecution was not required to prove that the passengers were actually illegally present, only that Fuentes-Espinoza believed they were.  The court compared this to Vecellio, where another division of the court upheld conspiracy and child enticement charges in a case where the "child" was only a ruse by an undercover cop.

Colorado Court of Appeals People v. Allman 09CA1347

Decision here.

   Allman was a registered sex offender who lived in Colorado Springs, but found a job in Garfield County.  He would drive to Garfield County, spend the week sleeping in his car (in different locations every night), and then drive back to the Springs on the weekend.  This went on for a couple of months, when deputies were dispatched to a suspicious vehicle in a rec center parking lot.

   Deputies found the car, and found Allman sleeping in it.  During questioning, he admitted that he was staying in his car, and he was arrested for failing to register.  He was later convicted, and appealed.  He argued that because his car wasn't a permanent place with a fixed address, it wasn't a residence for the purposes of registration, and that his statements to the deputies should have been suppressed as a violation of Miranda.

   The Court of Appeals held that Allman's car was, in fact, a residence.  The statutory definition of "residence" includes any place if used, intended to be used, or usually used for habituation.  Given that Allman was sleeping in his car five or six nights per week, the car qualified as an additional residence which means he should have registered with Garfield County within five days.

   As far as Miranda goes, deputies asked Allman to get out of his car and give them his ID, and questioned him for about seven minutes (but it may have been as long as 20, depending on whose testimony you believe).  They used normal conversational tones, didn't point guns at him, etc, etc... you know the list.  Even though Allman apparently got pretty upset during the questioning, he was not in custody for Miranda purposes.  His conviction was upheld.

Colorado Court of Appeals People v. Van De Weghe

Decision here.

   Van De Weghe retired from the Denver police department in 1989, but still habitually carried a badge in his wallet.  Decades later, he was pulled over in Arapahoe county for failure to signal for a turn and not wearing his seatbelt.  Van De Weghe flashed his badge and told the deputy he was currently employed as a police officer.  The deputy asked a couple of follow up questions, and when Van De Weghe was unable to produce a commission card or give the name of his supervisor, he admitted to not actually being currently employed as a police officer.  The deputy would later testify that he thought Van De Weghe was trying to get professional courtesy (I think he'd have been able to pull that off with most cops if he hadn't lied).

   Van De Weghe was charged with Criminal Impersonation and Attempt to Influence a Public Servant.  This deputy is apparently not someone to be trifled with!

   After being convicted on both counts, Van De Weghe appealed.  His argument was that Attempt to Influence a Public Servant proscribed essentially the same conduct as Criminal Impersonation.  But in Colorado, the same behavior can violate multiple laws and you can be convicted of violations of all of them (unless one is a lesser included offense of the other, or unless one of the laws limits prosecution of the offense in some other way).  In this case, the Court of Appeals held that the crimes have different elements, and that the general assembly didn't intend to limit one statute by enacting the other.  Van De Weghe also tried to argue that only one of the statutes could be applied because Attempt to Influence is part of a comprehensive regulatory scheme, but that only tells us that Van De Weghe (or his lawyer) doesn't know what a comprehensive regulatory scheme is. The court didn't fall for it.

   Both convictions stand.  When I retire, I'm mounting my badge in a shadow box. 

Colorado Court of Appeals Young v. Hodges 11CA2193

Decision here.

   Hodges is a deputy sheriff who was transporting a couple of handcuffed juvies in a van, didn't seat belt them, and crashed.  The juvies were injured, and their parents sued.  Hodges tried to claim immunity under the Colorado Governmental Immunity Act, which sets the rules for suing the state (or any of its political subdivisions or employees).  Part of the Act says you can't sue the state in its own courts, unless the lawsuit arises from certain exceptions (such as operating a motor vehicle).  Think of it as Qualified Immunity's evil twin from a parallel universe.  Looks similar, works differently.

   Amidst discussion of the meaning of the word "operate," the court of appeals ruled that we can be sued for not seatbelting handcuffed prisoners.  There you go, don't forget to do that.