Colorado Court of Appeals Court Opinions Sept. 6, 2018

by Law Week

People v. Welborne

Christopher Wesley Welborne appealed the judgment of conviction entered on jury verdicts finding him guilty of first-degree arson, criminal mischief, theft and attempted theft. Welborne and his mother were charged with setting fire to their rented house and then filing false insurance claims based on the fire damage.

The jury convicted him as charged. Both the first-degree arson and the criminal mischief convictions were based on his (or his mother’s) setting fire to the house. Both were Class 3 felonies given the amount of damage. The trial court sentenced Welborne to concurrent prison terms for the arson, criminal mischief, theft and attempted theft.

Welborne contended that criminal mischief is an included offense of first-degree arson and, therefore, those convictions must merge under both statutory and double jeopardy dictates. He found support in People v. Abeyta. The court previously rejected his challenges to his convictions in People v. Welborne.

Among other holdings, the court concluded that criminal mischief is not an included offense of first-degree arson and relied on the Colorado Supreme Court’s ruling in Reyna-Abarca v. People. After its decision, however, the Supreme Court clarified Reyna-Abarca in People v. Rock and Page v. People.

The higher court, without opinion, then vacated the appellate court’s judgment as to the included-offense issue and remanded it to the Court of Appeals for reconsideration in light of Rock and Page.

Upon that reconsideration, the appellate court held that Welborne’s criminal mischief conviction is an included offense of his first-degree arson conviction because they are based on the same conduct. Therefore, the court vacated the criminal mischief conviction and sentence, remand for the trial court to amend the mittimus accordingly and otherwise affirmed the judgment.


People v. Jompp

Christopher Allen Jompp appealed the judgment of conviction entered on jury verdicts finding him guilty of third-degree assault, robbery and escape. He also appealed his sentence. The court affirmed the judgment but vacated his sentence on the escape conviction and remanded the case for resentencing on that conviction.

Jompp and his acquaintance, B.B., were high on methamphetamines and driving around town the night of the event. They got into a fight with another acquaintance whom they picked up at a house and ran from police when arrested. The victim died approximately one month later from the injuries he sustained in the fight.

Jompp was charged with second-degree murder, second-degree assault, robbery, escape and several habitual criminal counts. At trial, Jompp’s defense theories were that B.B. killed the victim and that the prosecution otherwise failed to prove the charges.

The jury convicted Jompp of third-degree assault, robbery and escape. The trial court adjudicated Jompp a habitual criminal and sentenced him to 48 years in prison. Jompp contended the court violated his speedy trial rights by continuing his jury trial, over his objection, beyond six months after he pleaded not guilty and 13 months after he was arrested.

The court disagreed. The state agreed that Jompp preserved his statutory speedy trial claim, but argued that he didn’t preserve his constitutional speedy trial claim. A division of the Colorado Court of Appeals concluded that section 18-1.3-801(5), C.R.S. 2013, precludes noncustodial escape convictions from being used as a current conviction for adjudicating a defendant a habitual criminal. The court affirmed the trial court’s judgment of conviction and vacated the part of the sentence based on Jompp’s escape conviction and remand for resentencing on that conviction. The Court of Appeals affirmed the remainder of the sentence.


People v. Ramirez

In this sexual assault on a child case, a division of the Court of Appeals held that semen is not an “intimate part” as defined by section 18-3-401(2), C.R.S. 2017.

A jury convicted defendant Senon Louis Ramirez of sexual assault on a child, sexual assault on a child by one in a position of trust and indecent exposure, based on testimony that he ejaculated into the hands of his foster child and then required the child to swallow the semen.

Ramirez claimed that there was insufficient evidence to support his convictions. To commit the crimes of SAOC and SAOC-POT the defendant must have “sexual contact” with a child. § 18-3-405(1), C.R.S. 2017; § 18-3-405.3(1), C.R.S. 2017.

Because the evidence presented at trial did not prove that the defendant touched an intimate part of the victim or that the victim touched the defendant’s intimate part, the division concluded that there was insufficient evidence to support the defendant’s convictions for SAOC and SAOC-POT. The division therefore vacated those convictions and affirmed the defendant’s convictions for indecent exposure.

The dissent disagreed and held that, under the particular circumstances of the case, semen is part of the external genitalia as included in the statutory definition of intimate parts.

Accordingly, the dissent concluded that the evidence was sufficient to support the defendant’s convictions for sexual assault on a child.

“The evident purpose of the [sexual assault on a child statute] was to protect children under a certain age from those acts which would tend to corrupt their morals . . . because its prime object is to protect the morals of youth by punishing those committing acts having a tendency to corrupt them.”

The legislature intended the sexual assault on a child statute to prohibit and punish all sexual acts performed on children, according to the dissent.

The court concluded that there can be no dispute that what defendant did here, ejaculating onto a child’s hands, is a sexual act that would corrupt a child’s morals. But a narrow interpretation of “intimate parts” rendered this particular sexual act unpunishable as a sexual assault.


People v. Gwinn

In this DUI case, a division of the Court of Appeals concluded, as a matter of first impression, that a defendant is not entitled to have a jury determine the existence of prior DUI convictions used to enhance his or her sentence from a misdemeanor to a felony.

The division further concluded that the prosecution’s burden of proving prior convictions is by a preponderance of the evidence.

Michael Can Gwinn appealed his conviction for driving while under the influence of alcohol as a felony. He contended that the trial court erred in (1) quashing eight subpoenas for witnesses who would have testified about problems with the Intoxilyzer 9000; (2) allowing the prosecution to impeach its own witness using leading questions; (3) admitting the express consent form; (4) refusing a jury instruction; and (5) denying his right to have a jury determine the existence of his prior DUI convictions beyond a reasonable doubt.

The court addressed and rejected his first four contentions, and, as a matter of first impression, concluded that he was not entitled to have a jury determine the existence of his prior DUI convictions. Accordingly, the court affirmed his conviction.

The division also affirmed the trial court’s orders granting a motion to quash witness subpoenas, allowing impeachment testimony, admitting a trial exhibit, and rejecting a tendered jury instruction.


Hansen v. Barron’s Oilfield Service

Arik Hansen appealed the district court’s dismissal of his wrongful death action against Barron’s Oilfield Services, Inc. and its employee Victor Hierro for negligently causing the death of Hansen’s daughter. The court affirmed the judgment.

Hansen’s attorneys originally filed a wrongful death action on behalf of the deceased’s husband. However, unbeknownst to the attorneys, the husband died prior to their filing the complaint. The attorneys then filed an amended complaint on Hansen’s behalf.

Barron’s argued that the deceased was married at the time of her death and that, therefore, Hansen, as the deceased’s father, did not have standing to bring a wrongful death action under section 13-21-201(1), C.R.S. 2018, which provides that a parent has standing to sue for the death of an adult child only when the adult child was unmarried and had no children.

Hansen argued that the relevant time for determining whether a deceased adult was unmarried is when the wrongful death action is filed. The district court agreed with Barron’s and dismissed Hansen’s case with prejudice.

The court affirmed the district court’s judgment of dismissal because it concluded that the relevant time to determine a decedent’s marital status and familial relationships under section 13-21-201(1) is the time of the decedent’s death.

Thus, here, Hansen did not have standing to bring a wrongful death action for his daughter’s death because she was married when she died.


Bailey v. State Farm Mutual Automobile Insurance

Bruce Bailey appealed the trial court’s order granting a motion for entry of judgment in favor of defendant, State Farm Mutual Automobile Insurance Company. In this appeal, the court was asked to determine whether an underinsured motorist policy is triggered under Colorado’s UIM statute, section 10-4-609, C.R.S. 2017, if the negligent driver’s insurance company agrees to pay the full extent of a jury’s verdict.

The court answered that question as “no” because (1) the legislature did not intend to allow a plaintiff to recover UIM benefits in excess of the damages awarded by a jury and (2) the language of the statute does not prevent an insurer from effectively increasing a driver’s liability coverage by offering to pay any damages awarded at trial.

The appellate court therefore affirmed the trial court’s judgment.


Bill Barrett Corporation v. Robert Lembke

This case addressed the denial of a preliminary injunction for failure to show a reasonable probability of success on the merits, to prevent a special district from taxing minerals held by owners of a severed mineral estate and extracted by their surface lessees.

Plaintiffs Bill Barrett Corporation and Bonanza Creek Energy, Inc., and intervenor Noble Energy, Inc., appealed the trial court’s order denying their motion for a preliminary injunction to prevent defendant South Beebe Draw Metropolitan District from taxing oil and gas the lessees produce from the mineral estate underlying an approximately 13,000-acre tract (the 70 Ranch) located in unincorporated Weld County. Defendants Robert Lembke and 70 Ranch own the surface estate, where all of the lessees’ well heads are located. The lessees also appealed the court’s entry of summary judgment on one of their claims.

The court affirmed the entry of summary judgment and vacated the denial of the motion for preliminary injunction and remanded for further findings consistent with its opinion. The division agreed with the trial court that section 32-1-401(1)(a), C.R.S. 2017, of the Special District Act does not require consent of mineral estate owners and their lessees to expand the boundaries of a special district. The division also agreed that the special district’s power to tax was not limited by an overlap in services with another district. However, the division concluded that a reasonable probability of success was shown as to the special district’s failure to obtain the board of county commissioners’ approval of a material change in its service plan as required by section 32-1-207(2)(a), C.R.S. 2017, of the Special District Act. The case was remanded for the trial court to make further findings under the other Rathke factors and to reconsider whether a preliminary injunction should be entered.


Colorado Health Consultants v. City and County of Denver

In this retail marijuana case, a division of the court of appeals interpreted the Denver Revised Municipal Code and the Denver Zoning Code to conclude that a retail marijuana business cannot cultivate the marijuana it sells as an accessory use when the Zoning Code precludes such cultivation as a primary use.

A Denver marijuana business must be located in a zone that permits both cultivation and retail sales, and it must obtain a zoning permit from Denver’s Zoning Authority. Additionally, such a business must obtain a retail marijuana cultivation license from the Director of the Denver Department of Excise and Licenses, which is subject to an annual renewal process.

This case involved the interplay between a zoning permit and a RMC license. Plaintiff Colorado Health Consultants, d/b/a Starbuds is a retail marijuana business located in an I-MX-3 zone — a special context zone for industrial mixed use. Starbuds, appealed from the district court’s judgment affirming the department’s decision to deny Starbuds’ 2016 RMC license renewal application. The court affirmed.

The district court found that the department had mistakenly renewed Starbuds’ 2016 RMC license without a hearing after it discovered emails sent before the renewal by persons requesting a hearing to protest the renewal. At that point, the department was required to hold a public hearing before it could approve Starbuds’ application. The court rejected Starbuds’ assertion that it had invested additional resources to operate its business during the period between initial approval and the hearing setting. It found that Starbuds provided no information identifying or explaining these additional resources and that it presented no facts to support its assertion. Further, the court found it “unlikely that Starbuds detrimentally changed its position in the nine days between the application approval and its revocation.” The record supported the district court’s findings.

The division further concluded that a marijuana business has no vested interest in the renewal of a cultivation license, and that the doctrine of equitable estoppel provides no basis for relief and an unconstitutional taking did not occur.


Cummings v. Arapahoe County Sheriff’s Department

This lawsuit pitted the Arapahoe County Sheriff against one of his former deputies, Michael Cummings, whose employment was terminated by the sheriff. Cummings contended that the written employment policies promulgated by the sheriff contained in the sheriff’s employee manual constituted an implied contract of employment that the sheriff breached when he fired Cummings. In denying the sheriff’s summary judgment motion, the district court agreed with Cummings. The sheriff brought an interlocutory appeal under C.A.R. 4.2, challenging the district court’s denial of summary judgment.

The division held that a 2006 amendment to section 30-10-506, C.R.S. 2017, preserves, to a large extent, the doctrine of at-will employment for deputy sheriffs, but also grants certain due process rights to those deputies. The division further holds that the statute authorizes sheriffs to grant other rights to sheriffs’ deputies, but they are not required to do so.

Finally, the division held that clear and conspicuous disclaimers preclude, as a matter of law, those portions of plaintiff’s implied contract claim that are not based on the due process rights granted by section 30-10-506. •