Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Christopher Poot-Baca appealed his convictions of robbery of an at-risk person, identity theft and criminal possession of a financial device. He also appealed the district court’s restitution order. The Colorado Court of Appeals affirmed the judgment and order. In doing so, the court held that criminal possession of a financial device is not a lesser included offense of identity theft.
On the night of Jan. 14, 2019, 81-year-old Minnie Sheppard was waiting at a bus stop when a man pushed her to the ground, took her purse and bag and ran away. Police and paramedics arrived at the scene and transported Sheppard to the hospital, where she was diagnosed with a knee fracture. While at the crime scene, Sheppard described her assailant’s physical appearance to the officers and said he had been drinking out of a Coke bottle, which he dropped before attacking her. At the hospital, she clarified that it was actually a Coke can. An officer collected a Coke can from the crime scene, and a DNA sample taken from it matched Poot-Baca.
Sheppard’s credit card was in her purse when it was stolen. The following day, three unauthorized charges were made online with the credit card. A few hours later, two men shopped at a Foot Locker store, and one tried to use her card. The transactions were declined, and the interaction was recorded on surveillance video.
Poot-Baca was later arrested wearing a sweatshirt very similar to the one worn by the man in the surveillance video. The prosecution charged Poot-Baca with robbery of an at-risk adult, a crime of violence, identity theft and criminal possession of a financial device. A jury convicted him as charged.
On appeal, Poot-Baca contended that the district court erred by admitting evidence of Sheppard’s pretrial identification of him and her identification of him during trial, failing to merge the possession of a financial device conviction with the identity theft conviction and ordering restitution for uncharged conduct.
The court determined the prosecution presented overwhelming evidence that Poot-Baca was the robber, independent of Sheppard’s identifications of him. Given this other evidence identifying him as the culprit, the court concluded that the guilty verdicts were surely unattributable to the alleged error in admitting Sheppard’s identifications. Therefore, the court judged the alleged error harmless beyond a reasonable doubt.
Poot-Baca next contended that criminal possession of a financial device is a lesser included offense of identity theft. The court disagreed.
The appeals court found that criminal possession of a financial device prohibits the possession itself, while identity theft prohibits the use of the financial device. Although use necessarily includes possession, that does not mean the prohibited conduct is the same, the opinion noted.
Poot-Baca also contended the district court erred by ordering him to pay restitution to Discover Card for losses resulting from transactions that he was not convicted of executing.
The appeals court disagreed, stating there was sufficient evidence to support the court’s finding that he was the proximate cause of those losses.
The court affirmed the district court’s judgment.
Clinton Cooper appealed the postconviction court’s order denying his supplemental Criminal Procedure Rule 35(c) motion. The post conviction court denied the supplemental motion after concluding that Rojas v. People, which eliminated res gestae as an independent theory of evidentiary relevance, “did not amount to” a watershed rule of criminal procedure that applied retroactively to postconviction proceedings under Teague v. Lane. The Colorado Court of Appeals affirmed the order but with different reasoning.
Cooper was charged with one count of sexual assault on a child by one in a position of trust, based on allegations that he had assaulted his stepdaughter. The stepdaughter’s sister witnessed the alleged assault, but she delayed reporting it because she had told the stepdaughter she would not tell anyone.
To help explain the delayed disclosure, the prosecution sought to introduce as res gestae evidence that, almost a year after the alleged assault, the sister saw Cooper “approach her bedroom window and attempt to look at her while she was changing,” which prompted her to come forward. At a motions hearing, Cooper’s attorney conceded that this evidence could be introduced as res gestae.
After a second trial, Cooper was convicted as charged. A division of this court affirmed the conviction on direct appeal, and his conviction became final when the Colorado Supreme Court denied his petition for a writ of certiorari.
Approximately one year later, Cooper filed a timely Rule 35(c) motion for postconviction relief, in which he argued that both his trial and appellate attorneys provided ineffective assistance.
Before the court could hold an evidentiary hearing, Rojas announced a new rule abolishing res gestae as a theory of relevance in criminal cases. During the hearing, the court granted Cooper’s request to file a supplemental briefing to address Rojas.
In his supplemental motion, Cooper argued that if Rojas announced a new rule abandoning the res gestae doctrine, then it should be applied retroactively to his case, and his conviction should be reversed because “inadmissible res gestae testimony tainted his trial.”
In a detailed written order, the court denied the postconviction motion in its entirety, including the supplemental motion. In denying the supplemental motion, the post conviction court concluded that, although Rojas established a new rule, it did not “amount to one of the rare and small watershed core rules that call into question [Cooper’s] underlying conviction” and did not apply retroactively to Cooper’s case. Cooper appealed the decision.
Cooper argued that the post conviction court erred by concluding that Rojas did not announce a watershed rule of criminal procedure that should be applied retroactively to his case. The appeals court disagreed that the post conviction court erred.
According to the appeals court, Colorado adopted the test established in Teague to determine whether a new constitutional rule of criminal procedure applies retroactively to cases on collateral review under Rule 35(c).
The appeals court opined that Teague applies only to “new constitutional rules of criminal procedure” citing Danforth v. Minnesota. It viewed this requirement as consistent with Colorado case law, which has applied the Teague test only to new rules of criminal procedure involving constitutional rights.
The appeals court then determined whether Rojas announced a new constitutional rule of criminal procedure. In Rojas, the Colorado Supreme Court abolished the common law res gestae doctrine, at least in criminal cases. In its place, the Supreme Court adopted an intrinsic-extrinsic framework to determine whether the admission of uncharged misconduct evidence must be analyzed under Colorado Rule of Evidence 404(b).
The appellate court, using this reasoning, found Rojas did not announce a new constitutional rule. Since Rojas did not implicate a constitutional rule, the court ruled Teague does not apply.
The appeals court noted there is an exception for a defendant to seek review outside these timeframes for an alleged constitutional violation. But it found the exception didn’t apply to Cooper’s case.
The Court of Appels affirmed the post conviction court’s order denying Cooper’s supplemental motion, albeit on different grounds.
Jennifer Lind-Barnett and Julie Davis filed a special motion to dismiss defamation claims brought by Tender Care Veterinary Center, Inc., pursuant to Colorado’s anti-SLAPP law. The district court denied their motion, and they appealed. The Colorado Court of Appeals affirmed the district court’s decision.
In January 2022, Lind-Barnett brought her puppy, Pinkerbell, to Tender Care for emergency veterinary services. A vet examined the puppy and released her back to Lind-Barnett’s care, according to Tender Care’s complaint. When the puppy didn’t appear better, Lind-Barnett administered her own treatment to the puppy at home.
The next morning, she brought the puppy to a different vet clinic, where the dog was diagnosed with pneumonia and successfully treated. Several days later, Lind-Barnett contacted Tender Care to inform it that it had improperly treated her puppy. Tender Care initiated a review of the puppy’s treatment and after determining the puppy had received the requisite standard of care, refused Lind-Barnett’s request for a refund.
In March 2022, Davis took her dog, Spicy, to Tender Care for ataxia. After an examination and bloodwork, Tender Care diagnosed the dog with a resolved seizure. Davis took her dog home, and when the dog continued to have symptoms overnight, Davis brought her to a different vet clinic, where the dog was diagnosed with vestibular disease and treated.
In February and March 2022, after Tender Care declined Lind-Barnett’s refund request, Lind-Barnett posted six online reviews about her experience with Tender Care on her personal Facebook page, Tender Care’s Facebook page and four different community-based Facebook pages.
In March 2022, Davis responded to several of Lind-Barnett’s posts with similar posts about the adequacy of care her pet received at Tender Care and Tender Care’s business practices.
In their posts, Lind-Barnett and Davis made numerous negative assertions about Tender Care.
After Lind-Barnett and Davis refused to remove their posts, Tender Care instituted the present action for defamation per se against each defendant, based on 104 of Lind-Barnett’s statements and 10 of Davis’s statements. Lind-Barnett and Davis responded, filing a special motion to dismiss under Colorado’s anti-SLAPP statute. After reviewing the parties’ briefs and accompanying materials and holding a nonevidentiary hearing, the district court denied their motion.
In its order, the district court concluded that defendants failed to establish their statements addressed “matters of public interest or a public issue,” so the matter didn’t fall within the protections of the anti-SLAPP statute.
In the alternative, the district court determined that even if the case had fallen within the scope of the statute, it could not be dismissed because Tender Care had demonstrated a reasonable likelihood of prevailing on its claims.
Lind-Barnett and Davis appealed, contending that the district court erred by denying their special motion to dismiss.
According to the appeals court, the resolution of a special motion to dismiss involves a two-step process. In the first step, the defendant has the burden to show that the conduct underlying the plaintiff’s claims falls within the anti-SLAPP statute.
If the conduct does not fall within the statute’s scope, then the special motion to dismiss must be denied. If, however, the conduct falls within the statute’s scope, then the analysis proceeds to a second step. In the second step, the burden shifts to the plaintiff to establish a reasonable likelihood of prevailing on the claim.
Lind-Barnett and Davis contended the district court erred by not granting their special motion to dismiss Tender Care’s defamation claims. They asserted that, contrary to the district court’s ruling, their statements qualified for protection under step one of the anti-SLAPP analysis because they addressed a “public issue” or an “issue of public interest” and Tender Care cannot show a reasonable likelihood of prevailing.
The appeals court disagreed with their first assertion and as a result declared that it didn’t need to address their second.
It affirmed the district court’s order.