People v. Washam
Prosecutors charged James Washam with 12 counts of sexual assault on a child. In the information, a portion of the charged date range fell outside the statute of limitations. After trial began, the prosecution successfully moved to amend the information, narrowing the date range so that it fell completely within the statute of limitations. Ultimately, Washam was convicted on all 12 counts.
He appealed, arguing that under Rule of Criminal Procedure 7(e), the amendment to the date range was a substantive amendment, and thus, the trial court abused its discretion in permitting the amendment after the trial began.
A majority of a division of the Court of Appeals agreed, vacating Washam’s convictions and ordering the charges against him to be dismissed with prejudice.
The state petitioned the Colorado Supreme Court for review and was granted certiorari. The Supreme Court concluded that because the amendment simply narrowed the date range in the information, and thereby did not add an essential element to the offense or raise issues of inadequate notice, the amendment to the information was one of form, not substance. The Supreme Court also concluded that because the form amendment did not prejudice Washam’s substantial rights, the trial court did not abuse its discretion in permitting the amendment after trial began.
The Court of Appeals judgment was reversed and remanded for consideration of the remaining issues raised but unresolved on appeal.
Love v. Klosky
Carole Bishop and Mark Klosky and Shannon and Keith Love own adjacent parcels of land in Denver’s Washington Park neighborhood. Klosky wanted to remove a large tree sitting primarily on Klosky’s property and partly on the Loves’ property. The Loves wanted to keep the tree. The Colorado Supreme Court was asked to decide what analytical framework should govern the dispute.
Rhodig v. Keck held that when a tree encroaches onto a neighbor’s land, the tree remains the sole property of the owner of the land where the tree first grew, unless the tree was jointly planted, jointly cared for or treated as a partition between the two properties. Any such joint activity implies a shared property interest.
Applying Rhodig, the lower courts determined that the Loves could not prevent Klosky from removing the tree because the Loves failed to prove any such shared property interest in the tree.
The Supreme Court concluded that there was no sound legal basis for abandoning Rhodig. After surveying the early common law on which Rhodig was premised, the Supreme Court instead clarified that Rhodig governed “encroachment trees,” which are those that begin life entirely on one person’s property only to migrate partially to another’s. Under Rhodig, a landowner may remove such a tree without first securing the approval of his neighbor, unless the landowners jointly planted, jointly cared for or treated the trees as a partition between the properties. Here, the Loves did not prove such joint activity implying shared ownership of the encroaching tree. So, Klosky was allowed to remove the tree.
The Supreme Court affirmed the judgment of the Court of Appeals and remanded for further proceedings consistent with the opinion.
People v. Wakefield
A division of the Court of Appeals considered whether a trial court must give a self-defense instruction where a defendant testifies that a gun discharged accidentally, killing the victim, but there is also evidence that the shooting was in self-defense. The division concluded that the trial court must give the self-defense instruction in that circumstance.
Article II, Section 3 of the Colorado Constitution recognized the right of a person to act in self-defense, and under binding case law, when a defendant presents at least a scintilla of evidence in support of a self-defense instruction, the court must instruct the jury on self-defense.
The defendant’s claim of accident in the course of self- defense was not so inconsistent as to deprive him of the right to have the jury instructed on self-defense.
The Court of Appeals also concluded that statements made by the defendant to a private security guard and the police were admissible under Miranda v. Arizona, but the trial court was required to conduct a distinct due process analysis of whether the statements to the police were voluntary. Finally, photos of marijuana in the defendant’s apartment should not have been admitted at trial because they posed a danger of unfair prejudice that outweighed their probative value.
The conviction was reversed, and the case was remanded for a new trial.
People v. Palmer
Danielle Palmer was charged by information with first-degree arson. After the trial was already underway, the trial court granted the prosecution’s motion to amend the information to add a crime of violence designation. The amended information alleged that Palmer committed first-degree arson by means of a deadly weapon. By virtue of the amendment, Palmer faced a longer prison sentence if convicted.
Also, during trial it came to light that the state had failed to disclose the reports of two fire investigators. This discovery violation emerged after one of the investigators had testified but before the other had. Palmer moved for a mistrial. The trial court denied the motion but imposed lesser sanctions.
On appeal, Palmer contended that the trial court erred by granting the people’s motion to amend the information during the course of trial and by denying her motion for a mistrial. The Colorado Court of Appeals agreed with the first contention, but disagreed with the second.
The court concluded that the addition of the crime of violence designation was a substantive amendment to the information and, therefore, pursuant to Rule of Criminal Procedure 7(e), could not be granted after the start of trial. In addition, the Court of Appeals concluded that the trial court did not abuse its discretion in imposing less severe sanctions than granting Palmer’s motion for a mistrial.
Accordingly, the Court of Appeals affirmed in part, reversed in part and remanded for further proceedings.
Colorado Medical Board v. Boland
In this subpoena enforcement action, James Boland appealed the district court’s judgment enforcing a subpoena issued by the Colorado Medical Board.
The Colorado Medical Board issued the subpoena after the Colorado Department of Public Health and Environment referred Boland to the board.
On appeal, Boland contended the board subpoena was not issued for a lawful purpose because the Colorado Department of Public Health and Environment adopted the policy prompting the board’s investigation in violation of Colorado’s Open Meetings Law, the State Administrative Procedure Act and the Colorado and U.S. constitutions.
The Colorado Court of Appeals disagreed and concluded the board issued the subpoena for a lawful purpose, and it affirmed the district court’s judgment.
Maralex Resources, Inc., a Colorado corporation; A.M. O’Hare; and Mary C. O’Hare v. Colorado Oil and Gas Conservation Commission
In this appeal of an administrative agency decision, Maralex Resources, Inc., A.M. O’Hare and Mary C. O’Hare, appealed a district court order affirming an order finding a violation issued by the Colorado Oil and Gas Conservation Commission.
On appeal, Maralex and the O’Hares contend that a COGCC ruled permitting random, warrantless searches of oil and gas properties violates the U.S. and Colorado constitutions.
As a matter of first impression, the Court of Appeals concluded that the COGCC rule is constitutional because it permits searches falling within the administrative search exception to the warrant requirement.
Maralex also appealed the district court’s order enforcing COGCC’s findings that it violated several rules at two of its oil and gas locations.
Because the Court of Appeals agreed with Maralex that one of COGCC’s findings were arbitrary and capricious in one respect, the court reversed the district court’s order in part and affirmed in part.
Colorado Medical Board v. McLaughlin
In this subpoena enforcement action, Scott McLaughlin appealed the district court’s judgment enforcing a subpoena issued by the Colorado Medical Board. The board’s subpoena sought the medical records of patients for whom McLaughlin had recommended the use of medical marijuana. On appeal, McLaughlin contended that the subpoena was not issued for a lawful purpose because the policy prompting the board’s investigation was adopted in violation of Colorado’s Open Meetings Law, the State Administrative Procedure Act and the Colorado and U.S. constitutions. The Colorado Court of Appeals agreed with McLaughlin that the subpoena did not have a lawful purpose, and therefore reversed the district court’s judgment.
CAW Equities v. City of Greenwood
Village
In this private condemnation action under Colorado Constitution Article XVI, Section 7, the Colorado Court of Appeals addressed the question: Does the “prior public use” doctrine of eminent domain law apply to private condemnations under Section 7?
The Court of Appeals answered “yes” and affirmed the district court’s judgment related to that doctrine.
The court also concluded that while Section 7 is self-executing, it is not limitless. Consistent with numerous Colorado cases, the constitutional right, as others, is subject to reasonable legislative regulation.
CAW Equities appealed from the district court’s judgment denying its private condemnation of a public trail belonging to the City of Greenwood Village.
CAW contended that the district court erred when it placed statutory limitations on the constitutional right to private condemnation for water use, determined that CAW needed to make a showing of necessity for the condemned property without first addressing the bad faith issue, required CAW to make a showing of “absolute” necessity, admitted testimony regarding the feasibility of CAW’s water plan and awarded the city attorney fees.
Because the Court of Appeals concluded that Section 7 may be limited by statute, and that the prior public use doctrine provides an alternate basis to affirm the district court’s judgment, the court did not address the necessity issue, the bad faith issue or the admissibility of the feasibility evidence. The Court of Appeals affirmed its award of attorney fees.
Johnson v. City and County of Denver
In this officer discipline case, a division of the Court of Appeals held, as a matter of first impression, that under the standards of review set forth in the Denver City Charter and the Denver Civil Service Commission Rules, the Civil Service Commission must defer to a hearing officer’s findings of evidentiary fact and may not rely on a video exception not contained in those standards of review because that exception is contrary to law.
The division further held that the Denver Police Department’s use of force policy articulates a single standard for reviewing an officer’s use of force and that separate standards do not exist for deadly and non-deadly force. The division finally concluded that while the Civil Service Commission erred in relying on the video exception to reverse the hearing officer’s decision, it nonetheless reached the correct result for two reasons.
First, the hearing officer erroneously concluded that separate standards for deadly and non-deadly force existed and erroneously applied that standard. Second, the hearing officer did not properly defer to the manager of safety’s findings as required by the standard of review applicable to hearing officers and set forth in the Denver Civil Service Commission Rules.
Accordingly, the Colorado Court of Appeals affirmed the district court’s judgment affirming the order of discipline.
Minshall v. Johnston
The district court entered a default judgment against David Johnston when he failed to respond to a complaint filed by Richard Minshall and Vicky Minshall.
Johnston was not personally served with process; instead, the court permitted substituted service under Colorado Rule of Civil Procedure 4(f) on the registered agent of Aries Staffing, a corporation of which Johnston was a co-owner and shareholder.
Six months after he claimed that he learned about the entry of the default judgment, Johnston moved pro se to set it aside.
He vaguely asserted in the district court, and explicitly argued that the judgment was void because the Minshalls did not properly serve him with process.
The district court denied the motion and Johnston appealed.
The Colorado Court of Appeals agreed with most of the district court’s analysis.
However, the record was insufficient to determine whether service on Aries’ corporate agent for service of process, Incorp Services Inc, was “reasonably calculated to give actual notice” of the case to Johnston.
Because that was an essential condition of valid substituted service under Rule 4(f), the Court of Appeals vacated the district court’s order denying Johnston’s motion to set aside the judgment and remanded for the court to determine whether service on Incorp was “reasonably calculated to give actual notice” to Johnston.
The Court of Appeals rejected all of Johnston’s other contentions.