Justia Colorado Supreme Court Opinion Summaries

A jury convicted Victor Mosley of sexually assaulting his youngest daughter. The court of appeals later reversed his convictions and remanded the case for a new trial. Mosley argued on appeal that the trial court violated his statutory speedy trial right on retrial when it granted the prosecution’s request for a continuance. Consequently, he argued, the charges against him should have been dismissed. The issue this case presented for the Colorado Supreme Court’s review was whether the exclusions listed in subsection (6) of the applicable statute applied to the six-month speedy trial calculation for a new trial following reversal of a defendant’s convictions on appeal. Subsection (6) listed circumstances that were excluded from the speedy trial calculation, including delay resulting from a continuance granted because material evidence is unavailable despite the prosecutor’s diligent efforts to obtain such evidence. Moseley contended that his speedy trial right was violated because his new trial was held beyond the six-month deadline in subsection (2), and therefore, the charges against him had to be dismissed. In the alternative, Mosley contended that, even assuming the exclusions in subsection (6) applied to the speedy trial calculation for a new trial under subsection (2), the continuance in this case was unjustified because the prosecution failed to act with due diligence to locate the complaining witness, as required by subsection (6)(g)(I). The Court of Appeals rejected Mosely’s arguments on appeal, and finding no error in the Court of Appeals’ judgment, the Supreme Court affirmed. View "Mosley v. Colorado" on Justia Law

This case concerned the design and construction of a single-family residence in Pitkin County, Colorado. Heritage Builders, Inc. (“Heritage”) was retained as the general contractor by the original owners of the property, Karen and Courtney Lord. Pitkin County issued a certificate of occupancy for the home in September 2006. In November 2011, Richard Goodman purchased the property from the Lords. Then, sometime between March and June 2012, Goodman discovered the alleged construction defects in the home. Goodman gave Heritage informal notice of his construction defect claims in July 2013. In this original proceeding, the issue presented for the Colorado Supreme Court’s review was whether the statute of repose in section 13-80-104(1)(a), C.R.S. (2016), barred a general contractor’s third-party claims brought in response to a homeowner’s claim for construction defects discovered in the fifth or sixth year following substantial completion of an improvement to real property. The Court held that such claims are timely, irrespective of both the two-year statute of limitations in section 13-80-102, C.R.S. (2016), and the six-year statute of repose in section 13-80-104(1)(a), so long as they are brought at any time before the ninety-day timeframe outlined in section 13-80-104(1)(b)(II). View "In re Goodman v. Heritage Builders" on Justia Law

Petitioner Austin Veith pleaded guilty to theft and securities fraud. He asked the trial court to sentence him to probation instead of a term of incarceration. The trial court rejected his request for probation with no incarceration and sentenced Veith to ten years of incarceration on the theft count, and twenty-five years of probation on the securities fraud count. Veith did not object when the judge announced his sentence.  But, he did not sign the probation order acknowledging and accepting the terms and conditions of his sentence of probation. Instead, he filed a motion to correct his sentence pursuant to Crim. P. 35(a), arguing that the probationary portion of his sentence must be vacated because he did not consent to it. The trial court denied the motion, and Veith appealed.  The court of appeals affirmed in part and reversed in part, concluding that Veith had consented to the terms and conditions of the sentence of probation by requesting probation prior to the hearing, but that his consent did not include certain terms of probation added by the court. As a result, the court of appeals remanded the case to the trial court to remove the terms of probation from his sentence that Veith had not requested before sentencing.I t did not order any modification of the prison sentence. The Colorado Supreme Court granted certiorari to determine the legality of Veith’s sentence of probation, and reversed the appellate court's judgment. The Supreme Court held that a trial court cannot impose a sentence of probation without the defendant’s consent. In this case, Veith consented to probation in lieu of incarceration; therefore, the trial court exceeded the scope of Veith’s consent when it imposed a ten-year sentence of incarceration in addition to probation. The trial court lacked authority to impose the sentence of probation.  Accordingly, the Court vacated Veith’s sentence in its entirety, reversed the judgment of the court of appeals, and remanded the case to that court to return the case to the trial court for resentencing consistent with Veith’s plea agreement. View "Veith v. Colorado" on Justia Law

In this case, the issues presented for the Colorado Supreme Court’s review implicated: (1) whether a defendant may raise his or her unpreserved double jeopardy claim for the first time on appeal and, if so, what standard of review applies; and (2) whether driving under revocation (“DUR”) is a lesser included offense of aggravated driving after revocation prohibited (“aggravated DARP”). The Colorado Supreme Court addressed similar issues in four cases at the same time as this case, captioned as “Reyna-Abarca v. Colorado,” (2017 CO 15, ___ P.3d ___). In “Reyna-Abarca,” the Court concluded that unpreserved double jeopardy claims could be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error. Applying those rulings here, the Court concluded that the appellate court in “Zubiate v. Colorado,” (2013 COA 69, ___ P.3d ___), correctly (1) conducted plain error review of Vanessa Zubiate’s unpreserved double jeopardy claim and (2) determined that DUR was not a lesser included offense of aggravated DARP (although the Supreme Court’s analysis differed somewhat). View "Zubiate v. Colorado" on Justia Law

These cases presented issues of whether double jeopardy claims could be raised for the first time on direct appeal and, if so, what standard of review applied. The Colorado Supreme Court addressed these same issues in four cases at the same time as these, captioned as “Reyna-Abarca v. Colorado,” (2017 CO 15, ___ P.3d ___). In “Reyna-Abarca,” the Court concluded that unpreserved double jeopardy claims could be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error. Applying that ruling here, the Court concluded that the divisions in “Colorado v. Zadra,” (2013 COA 140, ___ P.3d ___), and “Colorado v. Adams,” (No. 12CA339 (Colo. App. Mar. 12, 2015)), correctly conducted plain error review of the defendants’ unpreserved double jeopardy claims and merged certain of the defendants’ convictions. Accordingly, the Court affirmed the judgments in both cases. View "Colorado v. Zadra" on Justia Law

A jury convicted petitioner Anthony Marsh of sexually assaulting three of his granddaughters and possessing more than twenty images depicting child pornography. Marsh appealed, and the court of appeals affirmed his conviction. The Colorado Supreme Court granted certiorari to consider whether the presence of temporary internet cache files stored on a person’s hard drive could constitute evidence of “knowing possession” as used in Colorado’s child pornography statute, 18-6-403, C.R.S. (2016). The Court held: when a computer user seeks out and views child pornography on the internet, he possesses the images he views. Here, since the evidence presented at trial established that Marsh’s cache contained images that a computer user had previously viewed on the web browser, the Court concluded that the internet cache images qualified as relevant evidence that Marsh had previously viewed, and thus possessed, those images. Therefore, when considered as a whole and in the light most favorable to the State, the evidence was sufficient to support the jury’s conclusion that Marsh possessed more than twenty images depicting child pornography. In addition, the Court held that even if the trial court improperly admitted the forensic interviewers’ testimony as lay opinion, the error was harmless. View "Marsh v. Colorado" on Justia Law

Four cases raised the ultimate question of whether driving under the influence (“DUI”) was a lesser included offense of either vehicular assault-DUI or vehicular homicide-DUI, and presented the Supreme Court with an opportunity to address: (1) whether a double jeopardy claim could be raised for the first time on direct appeal; and (2) what test courts should apply in evaluating whether one offense is a lesser included offense of another. The Supreme Court concluded that unpreserved double jeopardy claims could be raised for the first time on appeal, and appellate courts should ordinarily review such claims for plain error. With respect to the applicable test for determining whether one offense is a lesser included offense of another, the Supreme Court reiterated that the “strict elements test” was the proper test, but the Court acknowledged that prior iterations of that test had arguably been inconsistent. An offense is a lesser included offense of another offense if the elements of the lesser offense are a subset of the elements of the greater offense, such that the lesser offense contains only elements that are also included in the elements of the greater offense. Applying this test to the cases here, the Court concluded that DUI was a lesser included offense of both vehicular assault-DUI and vehicular homicide-DUI, and thus, defendants’ DUI convictions had to merge into the greater offenses. The Court further concluded that in not merging such offenses, the trial courts here plainly erred and that reversal of the multiplicitous convictions was therefore required. View "Reyna-Abarca v. Colorado" on Justia Law

This case presented two issues for the Supreme Court’s review: (1) whether a double jeopardy claim can be raised for the first time on appeal; and (2) whether defendant William Costello Scott’s convictions for both aggravated robbery-menaced with a deadly weapon (“aggravated robbery-menaced victim”) and menacing amounted to plain error. In light of the Court’s opinion in “Reyna-Abarca v. Colorado,” (2017 CO 15, ___ P.3d ___),the Court concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that courts should ordinarily review such claims for plain error. Furthermore, the Court concluded that in the circumstances presented here, any error that might have occurred when the trial court entered judgment on Scott’s convictions for both aggravated robbery-menaced victim and menacing was not obvious and thus, did not amount to plain error. Accordingly, although the Court concluded that the division erred in declining to review Scott’s unpreserved double jeopardy claim, the Court nonetheless affirmed the judgment. View "Scott v. Colorado" on Justia Law

Plaintiff Jessica Ferrer and her companion, Kathryn Winslow, were injured when a taxicab driven by Tesfamariam Okbamicael struck them as they crossed a street in Denver. Okbamicael worked for Colorado Cab Company (“Yellow Cab”), which owned the taxicab. Ferrer brought this suit against Okbamicael and Yellow Cab (collectively, “Defendants”), alleging that Okbamicael was negligent and that Yellow Cab was vicariously liable for his negligence under the doctrine of respondeat superior. Ferrer also alleged that Yellow Cab was liable for her injuries suffered in the collision under theories of direct negligence (negligence as a common carrier) and negligent entrustment, hiring, supervision, and training. In an amended answer to the complaint, Yellow Cab admitted that Okbamicael was an employee acting within the course and scope of his employment with Yellow Cab at the time of the accident. Defendants then moved for partial judgment on the pleadings, seeking to dismiss Ferrer’s direct negligence claims against Yellow Cab. The trial court granted Defendants’ motion, applying the rule from “McHaffie v. Bunch,” (891 S.W.2d 822 (Mo. 1995)), that an employer’s admission of vicarious liability for an employee’s negligence bars a plaintiff’s direct negligence claims against the employer. Agreeing with the trial court’s application of the “McHaffie” rule, the Supreme Court affirmed. View "In re Ferrer" on Justia Law

This case centered on the design and construction of a single-family residence in Pitkin County, Colorado. Heritage Builders, Inc. (“Heritage”) was retained as the general contractor by the original owners of the property, Karen and Courtney Lord. Pitkin County issued a certificate of occupancy for the home in September 2006. In November 2011, Richard Goodman purchased the property from the Lords. Then, sometime between March and June 2012, Goodman discovered the alleged construction defects in the home. Goodman gave Heritage informal notice of his construction defect claims in July 2013. In this original proceeding, the issue presented for the Colorado Supreme Court’s review was whether the statute of repose in section 13-80-104(1)(a), C.R.S. (2016), barred a general contractor’s third-party claims brought in response to a homeowner’s claim for construction defects discovered in the fifth or sixth year following substantial completion of an improvement to real property. The Court held that such claims were timely, irrespective of both the two-year statute of limitations in section 13-80-102, C.R.S. (2016), and the six-year statute of repose in section 13-80-104(1)(a), so long as they are brought at any time before the ninety-day timeframe outlined in section 13-80-104(1)(b)(II). View "In re Goodman v. Heritage Builders" on Justia Law