January 31, 2005 Today's supreme court announcements are here. The court issued five decisions, which are summarized below. The court granted cert. in one case, listed below the summaries. C.R.S. § 13-80-104(1)(b) is a statute of limitations provision, not a ripeness provision. It does not bar cross-claims and third-party claims for indemnity or contribution brought by defendants in construction defect cases. Instead, the section permits indemnity or contribution claims to be brought also by separate lawsuit, but no later than 90 days after settlement or judgment in the construction defect suit. CLPF-Parkridge One v. Harwell Investments In a case arising out of the Summitville Mine, the Colorado Supreme Court applies to liability policies the notice-prejudice rule enunciated in Clementi v. Nationwide Mutual Fire Ins., 16 P.3d 223 (Colo. 2001). Under that rule, courts employ a two-step process under which the insurance company bears the burden of showing that (1) the insured's late notice of its claim and suit was unreasonable and (2) the late notice prejudiced the insurer. In addition, the supreme court added a third requirement for cases like this one, where the insured's delayed notice to the insurer of claim and suit occurred after the insurer settled the liability lawsuit. The court holds that notice after settlement of the liability lawsuit is unreasonable as a matter of law and the late notice is presumed to have prejudiced the insurer. Under those circumstances, the insured must go forward with evidence rebutting the presumption of prejudice in order to place the responsibility back on the insurer to prove prejudice. The court remanded the case for further proceedings. Justice Kourlis and Coats dissented, in separate opinions. Justice Kourlis would not extend the Clementi rule to this case. Justice Coats, in strong language, said "With its opinion today the majority deals a serious blow to the principle of stare decisis and, I believe, continued confidence in the legitimacy of court-made law." Justice Coats concluded the majority inappropriately ignored existing court precedence. Friedland v. The Travelers Indemnity Co. An illegal sentence does not commence the 120-day deadline for filing a Crim. P. 35(b) motion. Only legal sentences trigger the rule's timeliness requirement. Justice Coats, joined by Justice Kourlis, dissented, concluding that nothing in the rule limited the application of the deadline only to legal sentences. Delgado v. People Where declaration of mistrial was neither consented to nor justified by manifest necessity, double jeopardy barred retrial. Paul v. People In suit instituted to test whether the Colorado appellate courts would apply Clementi v. Nationwide Mutual Fire Ins., 16 P.3d 223 (Colo. 2001) to liability policies, the supreme court holds that the case was nonjusticiable. The court concluded that the General Assembly did not intend C.R.S. § 32-4-540 to override the constitutional authority of Colorado courts to decline to exercise jurisdiction in a nonjusticiable case. The issue presented to the district court was not ripe for resolution and therefore should have been dismissed by the district court. Metro Wastewater v. National Union Fire Ins. Co. The court granted cert. in No. 04SC691, Sleeping Indian Ranch, Inc. v. West Ridge Group LLC, on this issue:
Whether the court of appeals erred in concluding that the beneficial owner of Parcel A is precluded as a matter of law from adversely possessing a portion of adjoining Parcel B because the beneficial owner of Parcel A purchased, or is purchasing, Parcel A for the owner of Parcel B.
January 27, 2005 Here are the court of appeals' announcements for today. The court issued 6 published decisions, which will be summarized below later today. Trial court did not deny defendant his constitutional right to proceed pro se, where defendant's request to represent himself was not an unequivocal request for self-representation. Defendant asked for appointment of conflict-free counsel to "try to amend the blunders" allegedly made by his counsel. Defendant said if the court refused his request, then "against his will" he would have to proceed pro se. The court of appeals concluded that this was not an unequivocal request to proceed pro se. In addition, the court held that the trial court did not err in admitting, as excited utterances, statements from the victim (who died before trial). The court also held that those excited utterances were not testimonial in nature and therefore were not excluded under Crawford v. Washington: "where, as here, the victim makes an excited utterance to a police officer, in a noncustodial setting without indicia of formality, the statement is noncustodial interrogation under Crawford." People v. King Remand required in commercial leasing case where trial court made no findings concerning the present value of excess rents anticipated from replacement tenants of defaulting tenant-defendant. The amount of offset from the excess rents had to be calculated. The court also held that to avoid a windfall to the prevailing landlord, the award of construction expenses (for a building the landlord constructed in place of the premises the defaulting tenant was to have leased) should be offset by the terminal value of the building, projected as of the termination date of the ground lease and reduced to present value, less any additional expenses incurred in constructing the building that were not already awarded by the trial court. Highlands Ranch University Park v. Uno of Highlands Ranch, Inc. Trial court erred in dismissing putative class action claims for declaratory and injunctive relief challenging Denver's practice of increasing parking fines if not paid within 20 days. The court upheld the dismissal of the Plaintiffs' other claims. Because of the court's ruling on the declaratory and injunctive claims, though, the court held that the trial court erred in awarding defendants' fees under C.R.S. 13-17-201, which requires that an action be dismissed in its entirety before fees may be awarded. Rector v. City and County of Denver The mere failure to provide prisoner aspirin for thirteen days, without more, does not constitute deliberate indifference to serious medical needs under the Eighth Amendment. Nor is it unreasonable to charge prisoners co-payments for their medical services, as provided for in CRS § 17-1-113(2). Negron v. Gillespie Colorado Sex Offender Lifetime Supervision Act does not prohibit the sentencing court from imposing an indeterminate sentence with a minimum sentence that exceeds the maximum term in the aggravated range for the felony class. People v. Vensor For purposes of Governmental Immunity Act, operation of a public hospital does not include the performance of functions that are only ancillary to, or remotely related to, the primary purpose of the facility. Plaintiff's claims that defendant's self-insurance trust and professional risk management division, in performing its contractual duties to supply risk analysis, claim review, and litigation assistance to Denver Health, obtained and circulated Plaintiff's medical records without authorization, were ancillary to primary purpose of hospital. Therefore, defendant was immune from suit under the GIA. Daley v. University of Colorado Health Sciences Center January 26, 2005 The court of appeals will release the following decisions tomorrow: Published Opinions No.: 02CA0201 People v. Jason A. King Unpublished Opinions No.: 02CA2032 People v. Robert E. Johnson January 24, 2005 Here are the supreme court's announcements for today. The court issued 2 published decisions, which will be summarized below. The court granted cert in one case, Grisbaum v. Industrial Claim Appeals Office, but remanded the case to the court of appeals for reconsideration in light of Anderson v. Longmont Toyota, Inc., 102 P.3d 323 (Colo. 2004). C.R.S. § 18-1.3-102 does not prohibit a trial court from accepting a plea of nolo contendere. The defendant and prosecution entered a written plea agreement under which defendant would plead nolo contendere to a misdemeanor subject to a two-year deferred sentence, restitution, fines and costs. The trial court refused to accept the plea agreement on the basis that § 18-1.3-102, which addresses deferred sentencing, is triggered only by a guilty plea, not a plea of nolo. The defendant brought an original petition in the supreme court under CAR 21 challenging that determination. The supreme court rejected the trial court's reasoning, concluding that there is no difference between a nolo plea and a guilty plea for sentencing purposes. People v. Darlington Plaintiff's
generic claims for pain and suffering and loss of enjoyment of life
did not constitute an implied waiver of the physician-patient privilege
for medical services wholly unrelated to his claimed injuries. Therefore,
the defense could not compel the plaintiff to authorize the release
of all his medical records unrelated to the claimed injuries. Weil
v. Dillon Companies January 21, 2005 The
supreme court will issue two decisions on Monday, No. 04SA186, People
v. Darlington, and No. 04SA356, Weil v. Dillon Companies. Neither of
those cases was argued orally. January 20, 2005 Here
are the court of appeals case announcements for today. The court issued
only unpublished decisions. January 19, 2005 The court of appeals will issue the following unpublished decisions tomorrow (no published decisions will come down): Unpublished Opinions No.: 02CA1100 People v. Alfredo Vasquez I have now fixed the link to Luttgen v. Fischer, decided last Thursday (1/13) in the court of appeals. Thanks to an observant reader who caught the bad link. Luttgen is an important case as it adopts the sham affidavit doctrine in Colorado. January 18, 2005 Here are the supreme court's announcements for today. The court issued 5 published decisions, which are summarized below. Woellhaf v. People. In analyzing whether double jeopardy is violated by multiple charges, the court engages in a two-part analysis to determine the legislatively-prescribed "unit of prosecution": (1) an examination of the scope of prosecution authorized by the statutory prescription; and (2) an examination of the factual components of each prosecution and the supporting evidence for each. Employing this analysis to the case at hand, the court concluded that the General Assembly did not, in the offense of sexual assault on a child by one in a position of trust (C.R.S. § 18-3-405.3), prescribe multiple offenses or otherwise alter the scope of the unit of prosecution. On the facts of the case, the petitioner's offense could not be split into multiple counts. In the Matter of the Application for Water Rights of Park County Sportsmen's Ranch. In a lengthy water law decision (is there any other kind of water law decision), the supreme court holds that the water court properly dismissed the Park County Sportsmen's Ranch's application for lack of an adequate augmentation plan, and properly awarded costs to the opposers. The court reversed the water court's award of fees to opposers, except for fees associated with applicant's claims for precipitation and irrigation run-off, which the court held to be frivolous from inception. And because the applicant was an agent for the City of Aurora, the water court properly joined Aurora as a party for the purposes of determining fees. In its opinion, the court found no error in the water court's exclusion of expert evidence under Shreck. The court also concluded that the trial court applied the proper analysis for dismissal under C.R.C.P. 41(b)(1).
Lobato v. ICAO. To apply 1999 Amendment to Workers' Compensation Act (which retroactively altered the timeline for claimants' selection of a division independent medical examiner (DIME)) to claimants whose final admission of liability was filed before September 1, 1999, claimants must have received notice of the change in the timeline. Because petitioner received no notice, he had no time limit to select a DIME. The court's decision concluded that Division Rule IV(L)(3) correctly harmonized the General Assembly's policies. Justice Coats dissented, concluding that the rule should be rejected and the statute applied as written. He would have affirmed the court of appeals (on other grounds). In re People v. Baker. Supreme court finds good cause and orders court of appeals to accept late-filed notice of appeal. Errors by the trial court and by the defendant's trial counsel, combined with the lack of prejudice to the prosecution, the inadequacy of Crim. P. 35(c) as a substitute for a direct appeal, and judicial economy, excused the late filing of the notice of appeal. Justice Coats, joined by Justice Kourlis, dissented. Here is the text of Chief Justice Mullarkey's State of the Judiciary remarks to the General Assembly on January 14. The court granted cert. in one case, Griffin v. State Farm, No. 04SC627, on this question: Whether the application
and statements made by the agent for respondent were an offer to petitioner
that she properly accepted in the manner requested. January 17, 2005 Happy Martin Luther King, Jr. Day. The supreme court will issue these 5 decisions tomorrow morning: 03SC664
Woellhaf v. People January 13, 2005 Here are today's case announcements from the court of appeals. The court issued 12 published decisions and many more unpublished ones. The published decisions are summarized below. I will be in court most of the morning, so try back if the all the summaries are not yet posted. Defendant waived statutory speedy trial right by entering guilty plea. In so holding, the court of appeals disagreed with a prior panel's interpretation of the supreme court's decision in Hampton v. District Court, 605 P.2d 54 (Colo. 1980). (See People v. McMurtry, decided Dec. 2003, cert. granted in Nov. 2004). The court noted that McMurtry created the anomalous result that a guilty plea waives the constitutional speedy trial right but not the statutory right. People v. Owen It was improper for the prosecutor to ask, on cross-examination of the defendant, whether other witnesses were "lying" when their testimony contradicted defendants. But the court held the error to be harmless, as the trial was a bench trial, not a jury trial. People v. Liggett On appeal from a conditional guilty plea, the court of appeals concluded that the trial court should have granted the defendant's motion to suppress. In so holding, the court concluded that police officers need have only a reasonable belief, not probable cause, to believe the defendant, who was wanted on outstanding arrest warrants, was in the apartment an anonymous caller identified and that the apartment was defendant's residence. The court held that the officers did have a reasonable belief that the defendant was inside the apartment when they made a warrantless entry into the apartment. But the court held that the officers did not have a reasonable belief that the apartment was the defendant's residence. The court rejected the argument that the plain view doctrine justified entry into the apartment. The court noted that plain view is not sufficient in itself to justify a warrantless entry into a residence. Therefore, the warrantless entry into the apartment was unlawful and the evidence seized inside had to be suppressed. People v. Aarness Trial court did not abuse its discretion in ordering prejudgment interest as part of restitution order. The court concluded that the pertinent statutes define restitution to include interest and loss of use of money. People v. Roberts Insurer
did not violate statutory requirements under C.R.S. § 8-43-501(2)(b)
for a medical utilization review, which resulted in change of providers.
The physician-provider argued on appeal that a nurse's medical chronology
was not sufficient to qualify as a report under the statute. The court
of appeals rejected that argument. Trial
court erred in instructing jury on duty to mitigate damages, where plaintiff
was a 10-year-old minor at the time of auto accident. Any failure by
the minor's parent to take steps to seek medical treatment in order
to mitigate damages could not be imputed to the minor plaintiff. The
case was remanded for a new trial on damages. For purposes of restitution order, an entity is a person and therefore can be a victim to which restitution is owed under CRS § 18-1.3-602(3)(a). People v. Webb-Johnson Trial court properly dismissed, for failure to state a claim, plaintiff's complaint for wrongful termination. Plaintiff argued that she was fired when she filed a motion for temporary restraining order (to bar her employer from requiring a hair sample for a drug test) and that such firing violated the public policy of the Freedom of Legislative and Judicial Access Act, CRS § 8-2.5-101. The court of appeals disagreed, concluding that there was no basis to conclude that the statute clearly expresses a public policy that forbids an employer from terminating an employee for filing a motion or a lawsuit against an employer. The court also concluded that her firing did not violate public policy protecting her rights to privacy. Slaughter v. John Elway Dodge Southwest/AutoNation C.R.S. § 42-4-1601, which prohibits leaving the scene of an accident involving serious bodily injuries, requires that to be found guilty, the defendant must have known that he was involved in an accident. Defendant's Crim P. 11 advisement failed to advise him of the culpable mental state, and therefore was deficient. Accordingly, the defendant's conviction could not stand. Judge Russel dissented, concluding that the statute did not contain a culpable mental state and thus the offense was a strict liability crime. I suspect the supreme court may review this one. People v. Manzo Court of appeals adopts sham affidavit doctrine in affirming summary judgment for defendant in legal malpractice case. The court concluded that the plaintiff's affidavit was a sham given her deposition testimony. Luttgen v. Fischer Motion for review by district court of magistrate's order entered without consent of parties is not governed by C.R.C.P. 59, and therefore is not deemed denied if not ruled on within 60 days. (See C.R.C.P. 59(j).) Because the district court had not ruled on the merits of the motion to review, there was no final appealable order, and the appeal had to be dismissed. Marriage of Moore Rejecting both the Panel and hearing officer's interpretations, the court concluded that the phrase "reductions in service by an air carrier" is not limited to a decrease in the number of flights offered or provided by such carrier, but is broad enough to include reductions in other services offered or provided by an air carrier. Therefore, the court remanded for further proceedings on whether airline employee was entitled to Temporary Extended Unemployment Compensation benefits. Judge Carparelli dissented. Seltzer v. Industrial Claim Appeals Office January 12, 2005 The court of appeals' oral argument calendar for March 2005 is here. The United States Supreme Court issued its much anticipated decision in United States v. Booker. Following in the Apprendi/Blakely line of cases, Booker held that the Sixth Amendment as construed in Blakely does apply to the federal sentencing guidelines. The Court said: "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." The Court then concluded that in light of its holding, two provisions of the Sentencing Reform Act of 1984 that had the effect of making the sentencing guidelines mandatory must be invalidated in order to allow the Act to operate in a manner consist with congressional intent. In other words, the sentencing guidelines are now advisory. The court was split 5-4 on both issues, though the lineups were different. I'll leave it to you to wade through the opinion. The court of appeals will issue the following decisions tomorrow: Published Opinions No.: 02CA2369 People v. Robert Owen Unpublished Opinions No.: 02CA1992 People v. Dennis Spencer January 11, 2005 Here is the supreme court's oral argument calendar for January and February. Arguments will take place January 31-February 2. January 10, 2005 The supreme court case announcements for today are here. The court issued 6 decisions, which are summarized below. The court also granted cert. in 6 cases. The questions presented in those appeals are below the summaries: To prevail in a proceeding before the state Board of Assessment Appeals, the taxpayer must prove an assessment is incorrect. The supreme court rejected the court of appeals' conclusion that the taxpayer had the burden of establishing an appropriate basis for an alternative reduced valuation of the property under the applicable statutory scheme. The supreme court concluded that the taxpayer need not prove an alternative valuation. Board of Assessment Appeals v. Sampson In cases where the evidence may support multiple convictions, concurrent sentencing under C.R.S. § 18-1-408(3) is not mandatory unless multiple convictions must necessarily have been rendered on the basis of the same evidence. The court overruled the court of appeals' earlier decision in People v. Page, 907 P.2d 624 (Colo. App. 1995), concluding that it conflicted with People v. Qureshi, 727 P.2d 45 (Colo. 1986). The court said that although § 18-1-408(3) imposes some restrictions on the trial court's sentencing discretion, "it does so only when multiple convictions involving a single victim are returned and it is clear that they were based on identical evidence." People v. Muckle Night manager of liquor store, who was the sole person in control of the store, had a reasonable expectation of privacy in the back room of the store (from which the public was excluded) despite use of video surveillance system by store's owner. Therefore, suppression of marijuana found in warrantless intrusion into the back room by police officers was required. Chief Justice Mullarkey dissented, and would have held that the manager had no reasonable expectation of privacy, or, alternatively, that the officers entered the room under the emergency aid exception to the warrant requirement and therefore properly seized the marijuana that was in plain view. People v. Galvadon In a 4-3 decision in a post-conviction appeal, the court affirmed the court of appeals' grant of a new trial to the defendant because of a defective Curtis advisement, where the People did not produce any evidence at the post-conviction proceedings to attempt to establish that the defendant's waiver was knowing, voluntary and intelligent. During defendant's trial, the trial court had advised that if he testified, the jury would be instructed to consider his felony conviction as it bore on his character. Since a felony conviction is not admissible to show character, the Curtis advisement was defective. Justice Kourlis, joined by Justices Rice and Coats, dissented, concluding that the Curtis advisement was not defective. People v. Harding Supreme court reverses a suppression order, concluding that the evidence was seized in an objectively reasonable search incident to arrest. A police officer stopped a car with a "shattered" windshield, and later impounded the car because the driver had no insurance. In a consent search of the driver, the officer found suspected methamphetamine in the driver's pocket. After that discovery, the officer advised the defendant, who was a passenger in the car, that the car was going to be impounded for lack of insurance. The defendant told the officer that the car was insured and that her insurance card was somewhere in the car. The officer allowed her to search through the car, and she allegedly found her insurance card, but not before the tow truck had arrived and the impound process had begun. During an inventory search of the car, the officers found defendant's purse, and inside the purse was suspected methamphetamine. The trial court concluded that because the car was insured, the impound order was improper, and therefore the inventory search was unlawful and the evidence had to be suppressed. The supreme court disagreed, concluding that even if the inventory search was unlawful, the evidence was properly seized as a search incident to the arrest of the driver. Sounds like a good question for a law school exam. People v. Kirk In
a Rule 21 proceeding arising out of a medical malpractice case, the
supreme court ordered the trial court to reinstate the verdict in favor
of the defendant physician. After a defense verdict at trial, the jury
was excused and the trial judge spoke informally with the jurors. During
that conversation, one of the jurors commented that the verdict was
not unanimous, and that the jury entered a verdict for the defendant
only because they couldn't agree. Several other jurors confirmed this
statement. The judge immediately left the jury room and notified the
attorneys. Over defense objection, the judge returned to the jury room
and polled the jury, finding that 4 of the jurors found that plaintiff
had not proven her case, while 2 found she had. The trial court granted
the plaintiff's motion for a new trial. The defense objected that CRE
606(b) precluded use of the post-verdict juror statements to impeach
the verdict, and that the law precluded recalling a jury to amend or
reconsider its verdict once it's entered. The supreme court held that
Rule 606(b) precluded the trial court from considering the jurors' post-verdict
statements to impeach the verdict, and therefore ordered the defense
verdict reinstated. Hall
v. Levine The court granted cert. in the following cases: Harris v. The Denver Post Corp., No. 04SC133 (arising from the Columbine tragedy), on these issues:
Whether the court of appeals erred in holding that privately owned personal property seized from a private home by the government pursuant to search warrant is a “public record” subject to the Colorado Open Records Act (“CORA”).
Whether the recordings seized from private homes by virtue of search warrants and for the purposes of criminal investigation are “criminal justice records” subject to the Colorado Criminal Justice Records Act, sections 24-72-301 to -309, C.R.S. (2004). People v. Summit, No. 04SC396, on these questions:
Whether the admission of a defendant’s refusal to submit to a warrantless arrest while in his home for the purpose of proving his consciousness of guilt should be decided under the Colorado Rules of Evidence rather than on constitutional grounds.
Whether it was constitutional error for the trial court to admit evidence that a defendant refused to submit to a warrantless arrest while in his home for the purpose of proving his consciousness of guilt. Archangel Diamond Corp. v. Lukoil , No. 04SC455, on this issue:
Whether the court of appeals erred in concluding a trial court may decide a C.R.C.P. 12(b)(2) motion by weighing and resolving factual issues without an evidentiary hearing. Ma v. People, No. 04SC570, on this question: Whether the court of appeals erroneously concluded that the trial court properly denied Petitioner’s statutory challenge for cause to a juror that regularly testified as a military police officer in various cases, including “domestic situations,” without addressing the propriety of the trial court’s finding that the Petitioner waived the challenge. People v. Rockwell, No. 04SC584, on this issue: Whether a postconviction challenge to the factual basis for a guilty plea constitutes a challenge to an illegal sentence under Crim. P. 35(a) that can be raised at any time. Winter v. People, No. 04SC654, on these questions:
Whether the court of appeals erred in concluding that the prosecution presented sufficient evidence that the Petitioner entered a “vault” or “apparatus or equipment” under the third degree burglary statute, C.R.S. Section 18-4-204(1).
Whether, as construed by the court of appeals, the third degree burglary statute violates due process of law because it is unconstitutionally vague both on its face and as applied to the Petitioner. January 7, 2005 The supreme court will issue the following 6 decisions on Monday, 3 of which were argued: 03SC451 Bd of Appeals v. Sampson & Teller County Here is the link to the court's oral argument docket for October 2004, when the 3 cases were argued. The questions presented can be found there. I will try to have summaries of all 6 cases on Monday, but I'm supposed to be in depositions all day Monday, so I may not be able to update until Tuesday. January 6, 2005 Here are today's case announcements from the court of appeals. The court issued only unpublished decisions. January 5, 2005 The court of appeals will release the following unpublished decisions tomorrow (no published ones this week): Unpublished Opinions No.: 02CA1586 Dept of Transportation, et al. v. Craig R. Stapleton January 3, 2005 For those of you who receive the Colorado Lawyer, please see the January issue at pages 133-34 for proposed changes to the Colorado Appellate Rules. The changes include word limits and requiring 14-point type, along the lines of what the Federal Rules of Appellate Procedure already require. Word limits will apply to briefs, petitions for rehearing and petitions for certiorari (and associated briefs). The supreme court will receive comments until February 8. Unfortunately, I don't have a link to the proposed rules. The supreme court has no case announcements today. But so you won't go away empty-handed, here are the summaries of last week's court of appeals published decisions (I'm updating in groups, so check back if the list is not complete): Defendant was not required to be sentenced by the same judge who accepted his guilty plea--Crim. P. 25 does not apply to probation revocation proceedings. The court also held that the trial court lacked jurisdiction over the defendant's Crim. P. 35(c) motion because that motion was filed while defendant's appeal was pending in the court of appeals. People v. Rivera-Bottzeck Declining to follow Hyland v. Pikes Peak Capital Corp., 714 P.2d 914 (Colo. App. 1985), the court held that the prevailing party (the defendant) was entitled to attorney fees in a wage claim act case, despite the fact that the jury had rejected Plaintiff's argument that she was an employee of the defendant. In allowing an award of fees, the court held that former C.R.S. § 8-4-114 (now repealed) permitted an award of fees even if the wage claim is asserted by one who is found to not be an employee. Judge Taubman dissented on this point, concluding that Hyland was properly decided. In light of the conflict with Hyland, this may be a case that receives supreme court review. Voller v. Gertz Protections of C.R.S. §19-2-511 do not require that parent or responsible adult be present when samples (e.g., blood, saliva) are collected from minor defendant. In addition, when the jury is instructed as to deadly weapon sexual assault, it need not be instructed that deadly weapon was used and that submission was obtained by "the actual application of physical force of physical violence or by the application of "means of sufficient consequence reasonably calculated to cause submission." If a deadly weapon was used to cause submission, that alone is sufficient to sustain a conviction. The court also held that Apprendi and Blakely did not require the jury to find that the defendant's crimes of violence were the result of the same incident (a fact which triggers mandatory consecutive sentences and sentences at least in the midpoint of the presumptive range). Instead, the trial judge could make that determination. People v. Lehmkuhl C.R.S. § 24-10-110(5)(c) may be applied to Plaintiff's state common law claims without disrupting application of 42 U.S.C. § 1988 to Plaintiff's § 1983 claim. Section 1988 did not preempt the state statute and therefore the prevailing defendants could be awarded their attorney's fees under the state statute for Plaintiff's unsuccessful state common law claims. Meier v. McCoy The court of appeals, granting a petition for rehearing and withdrawing its prior unpublished opinion, vacated the defendant's 25-year sentence (an aggravated range sentence) on Apprendi/Blakely grounds where defendant agreed to a sentence not to exceed 25 years but did not agree that there were aggravating circumstances surrounding his crime and did not agree that the court could determine whether such aggravating circumstances existed. People v. Misenhelter Cross-claims can be barred by res judicata only if they were actually litigated in the earlier action, because cross-claims are permissive, not compulsory. But the court affirmed the trial court's grant of summary judgment on other grounds, specifically, concluding that the plaintiff insurer's claim against its insured was barred by the antisubrogation rule (i.e., insurer has no right of subrogation against its own insured). Continental Divide Ins. Co. v. Western Skies Management, Inc. Sufficiency of the evidence may be raised for the first time on appeal. Judgment of acquittal was required where the prosecution failed to present sufficient evidence to prove beyond a reasonable doubt that defendant failed to register as a sex offender within one business day after his birthday. In so holding, the court of appeals rejected the People's argument that the statute permitted registration on the business day after the defendant's birthday only if the birthday fell on a weekend or legal holiday. People v. Duncan Trial court properly rejected Crim P. 35(c) motion that challenged guilty plea on the ground that defendant's convictions were invalid because the elected district attorney was not authorized to prosecute the offenses. The defendant argued that the D.A. had failed to file an oath of office and public official's surety bond with the secretary of state and therefore could not prosecute. The court of appeals rejected that argument. People v. Scott In dispute over interpretation of deeds of trust and attached riders, court held that the rider language controlled and governed prepayment of the loan. Under the rider as applied to the facts of the case, a prepayment penalty was required. The court rejected the argument that the prepayment penalty provision violated HUD regulations. Preserve at the Fort, Ltd. v. Prudential Huntoon Paige Associates Negotiated settlement is not a favorable termination of litigation for purposes of a later malicious prosecution claim. In addition, the court held that C.R.S. § 13-17-201, which provides that attorney's fees must be awarded for tort claims dismissed on a Rule 12(b)(5) motion to dismiss, applies even if the complaint raises questions of first impression. Hewitt v. Rice Persons convicted
of sex crimes before July 1, 1991, have no obligation to register as
sex offenders under former C.R.S. § 16-22-103(1)(b) or (1)(c).
The court remanded for further proceedings to determine whether on the
facts of his case Petitioner was required to register as a sex offender
under former CRS§ 16-22-103(3). Fendley
v. People Brochure urged voters to vote for ballot initiative; therefore metro district boards' expenditure of funds for brochure violated the Fair Campaign Practices Act's prohibition on use of public money to urge voters to vote in favor (or against) a ballot measure. In the Matter of the Petition of Skruch CRS§ 25-1-802, which provides that patient records from a psychotherapist must be made available to the patient except for records "pertaining to mental health problems," recognizes a distinction between records pertaining to mental health problems and other records in the custody of a psychotherapist. Therefore, remand for a hearing (and, if requested, an in camera review) was necessary to determine whether records requested by plaintiff were records "pertaining to mental health problems" and therefore exempt from disclosure to plaintiff. The court declined to recognize a private common law tort action for breach of confidentiality. Dauwe v. Musante City council's failure to comply with the provisions of the Colorado Open Records Act for convening an executive session requires the court to open to public inspection the records from that executive session. Gumina v. City of Sterling Water park was a "swimming facility" under CRS § 24-10-106(1)(f) (governmental immunity waiver). But premises liability standard, not amusement ride standard, applied to negligence action brought by injured water park visitor. Anderson v. Hyland Hills Park and Recreation District Under CRS § 17-22.5-101, defendant's consecutive sentences for second degree assault and possession of contraband are one continuous sentence, with one period of mandatory parole. People v. Starcher
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