Slip opinions decided 2019 — Colorado Court of Appeals

Criminal Law—Attorney—Colorado Office of Attorney Regulation Counsel—Evidence—Opening the Door Doctrine—Hearsay—Relevance—Sixth Amendment—Rules of Professional Conduct. Defendant, a former attorney, was charged with multiple counts of theft related to mishandling client funds. A significant portion of defendant's trial focused on her ethical obligations under the Colorado Rules of Professional Conduct (Colo. RPC), and the district court admitted evidence concerning the Colorado Office of Attorney Regulation Counsel's (OARC) case against her. Defendant was convicted of 13 counts of theft. On appeal, defendant first contended that the district court erred by admitting three OARC complaints into evidence. The prosecution argued that defendant "opened the door" by claiming the complaints weren't based on her conduct with clients. The opening the door doctrine is limited, and any otherwise inadmissible evidence introduced after one party opens the door must be confined to preventing any unfair prejudice or misleading impression that might otherwise result. Here, certain statements introduced in defendant's trial went far beyond anything allowed by the opening the door doctrine. The prosecution used the complaints for the truth of the matters asserted therein, and the complaints were inadmissible on hearsay, relevance, and undue prejudice grounds. Further, allowing the hearsay evidence violated defendant's constitutional right to confrontation. The error in allowing this evidence was not harmless beyond a reasonable doubt. Defendant also argued that the district court erred by including a jury instruction about an attorney's ethical obligations in relation to earning fees and handling client funds. The district court gave an instruction that quoted provisions of the Colo. RPC and defined when an attorney "earns" the money a client pays her. The court didn't tell the jurors how to use the instruction and what its limits were, and the jury indicated it didn't understand how to apply it. The instruction was at best incomplete. The judgment was reversed and the case was remanded with directions.

Family Law—Stepparent Adoption—Termination of Parental Rights—Subject Matter Jurisdiction. Mother and father had a child, I.E.H., in 2008. Mother was wounded while serving in the military, and she suffers from post-traumatic stress disorder. In 2013 mother and father stipulated in father's paternity case that I.E.H. would live with father and mother would spend time with I.E.H. and pay child support to father. The juvenile court adopted the stipulation. Mother never paid any child support. In August 2016, the child's stepmother filed a petition to adopt the child and to terminate mother's parental rights. The juvenile court found that mother abandoned I.E.H. and entered a judgment terminating mother's legal relationship with the child, but did not issue an adoption decree. This appeal was filed before the adoption was finalized. As an initial matter, the Court of Appeals considered whether the juvenile court's order terminating mother's parental rights in anticipation of the stepparent adoption was final for appellate purposes, even though a final adoption decree had not been issued. CRS § 19-1-109(2)(b) governs appeals from proceedings under the Colorado Children's Code, including stepparent adoptions, and authorizes the appeal of specified termination orders that would not otherwise be final. The Court held that the order was final, and therefore appealable. On appeal, mother contended that the juvenile court did not have subject matter jurisdiction to terminate her parental rights because the court order in the paternity case allowed her to resume parental responsibilities when she was ready. A juvenile court has exclusive original jurisdiction in cases involving adoptions and cases involving the termination of parental rights. Here, the juvenile court had continuing jurisdiction over the child via the paternity proceeding. Mother also contended that the juvenile court did not make sufficient findings to support its decision that she had not provided reasonable support for the child. The record, which includes the fact that mother paid only $125 in the 12 months preceding the filing of the adoption petition, was receiving $1,300 per month in veterans benefits, and did not have any housing expenses for a portion of the time supports the juvenile court's findings that she did not provide reasonable support for the child and was unlikely to pay child support in the future. Mother also asserted that there was no record evidence that her failure to pay child support proved that she intended to abandon the child. There is no indication that the juvenile court considered mother's failure to provide reasonable support as evidence of abandonment. Rather, the court relied on record evidence that mother had not seen or otherwise contacted the child since 2013. The judgment terminating mother's parental rights was affirmed.

Business Organizations—Limited Liability Companies—Judicial Dissolution—In-Kind Distribution. Paula and Richard Gagne are mother and son. They agreed to a joint business venture in which Paula would buy apartment complexes and Richard would manage them. They created limited liability companies (LLCs) to buy and manage the properties. After years of acrimony, Richard sued, seeking judicial dissolution of the four LLCs and a declaratory judgment as to the parties' respective rights and obligations concerning the LLCs. Ultimately, the trial court ordered dissolution and an in-kind distribution of assets, with Richard and Paula each receiving two of the apartment buildings. On appeal, Paula contended that the court erred, both legally and factually, in ordering dissolution of the LLCs. A limited liability company may be dissolved if it is established that it is not reasonably practicable to carry on its business. A party seeking judicial dissolution must establish that the managers and members of the company are unable to pursue the purposes for which the company was formed in a reasonable, sensible, and feasible manner. In determining whether a party seeking judicial dissolution has met this burden, the court must consider seven nonexclusive factors. Here, the record reflects that the district court expressly addressed each of the seven factors and concluded that the factors weighed heavily in favor of dissolution. Therefore, the district court didn't abuse its discretion in ordering dissolution. Paula also contended that the district court erred in ordering an in-kind distribution of the LLCs' assets, rather than ordering the assets sold and the resulting proceeds distributed to the members. Here, the operating agreements don't bar in-kind distributions, and the process ordered by the court was appropriate. Therefore, the district court didn't abuse its discretion by ordering an in-kind distribution of the LLCs' assets. Next, Paula argued that the district court erred in ordering various adjustments to each member's side of the ledger. The district court's adjustments included payments to attorneys and other professionals, salary payments to Paula as manager, rent payments for office space at Paula's house, various payments for loans and travel expenses, the cost to repair one of the apartment buildings, improper distributions, and payments for vacation properties the LLCs didn't own. The court also ordered Paula to pay Richard's attorney fees. Paula's arguments on this point amount to an invitation to reweigh the evidence, which is not the appellate court's role. The judgment was affirmed and the case was remanded for a determination of Richard's reasonable attorney fees incurred on appeal.

Construction Performance Surety Bonds—Conditions Precedent—Balance of the Contract Price—Attorney Fees. Whiting-Turner Contracting Co. (Whiting-Turner) was the general contractor for an office building construction project (the Project). Whiting-Turner entered into an agreement with Klempco Construction (Klempco) for Klempco's construction of an anchor system at the Project's underground parking garage (the Subcontract). Klempco's work included the installation of sprayed concrete (shotcrete) to support the anchoring system. The Subcontract price was $1,785,783. Whiting-Turner required Klempco to furnish a performance bond and a payment bond. Klempco obtained the bonds from Guarantee Company of North America USA (GCNA). The bonds specified three conditions precedent that Whiting-Turner would have to satisfy to trigger GCNA's obligations as surety, one of which was to pay the balance of the contract price in accordance with the Subcontract to GCNA or a contractor selected to perform the Subcontract. The "balance of the contract price" was defined as the total amount payable by Whiting-Turner to Klempco under the Subcontract "after all proper adjustments have been made, . . . reduced by all valid and proper payments made to or on behalf of [Klempco] under the [Subcontract]." Klempco immediately fell behind schedule and stopped paying its sub-subcontractors, and directed Whiting-Turner to assume responsibility for the shotcrete installation and to work directly with two of its sub-subcontractors. Whiting-Turner sent Klempco and GCNA a letter declaring Klempco in default. Following a meeting between Whiting-Turner, Klempco, and GCNA, the Subcontract price was reduced by $553,707, which was the price of the shotcrete work to be performed by Whiting-Turner. Klempco then notified Whiting-Turner that it was demobilizing from the Project. Whiting-Turner requested advice from GCNA, but GCNA did not respond. Whiting-Turner terminated the Subcontract following Klempco's default. GCNA did not respond to Whiting-Turner's demands that it honor its obligations under the performance bond. Whiting-Turner provided GCNA with its calculation of the balance of the contract price. The balance was $720,819, but from that it deducted $256,897.90 for its payments to unpaid sub-subcontractors who were liening the Project and $553,707 for the shotcrete work, leaving a negative balance. Klempco sued Whiting-Turner for breach of the Subcontract. Whiting-Turner counterclaimed for breach of the Subcontract and filed third-party claims against GCNA for breach of the performance and payment bonds. GCNA asserted that Whiting-Turner failed to comply with a condition precedent of the performance bond by miscalculating the balance of the contract price and consequently failing to pay the correct sum to GCNA. The district court found that Klempco had breached the Subcontract Whiting-Turner had complied with the condition precedent in the performance bond and GCNA breached the performance and payment bonds. The district court awarded Whiting-Turner $832,260.24 in damages against Klempco and GCNA jointly and severally. It also awarded attorney fees and costs in the amount of $504,785.27 and $18,990.14 in interest. On appeal, GCNA argued that the trial court erred in finding that Whiting-Turner satisfied the condition precedent for the performance bond because it miscalculated the balance of the contract price and did not pay the correct amount to GCNA. Here, (1) no language in the performance bond or the subcontract barred Whiting-Turner from reducing the balance of the contract price by the amount of its post-termination payments to unpaid sub-subcontractors (2) Whiting-Turner and Klempco agreed to reduce Klempco's payment for the shotcrete work and (3) Whiting-Turner correctly subtracted the back charge from the balance of the contract price. The record supported the trial court's findings that Whiting-Turner satisfied this condition. GCNA further contended that Whiting-Turner sought the same dollars in three ways. The record does not reflect that the trial court awarded duplicative damages. Lastly, GCNA contended that the trial court erroneously awarded Whiting-Turner attorney fees under the performance bond or, alternatively, the trial court improperly failed to segregate the fees awardable to Whiting-Turner for its claim against GCNA from the fees attributable to Whiting-Turner's other claims and defenses. As stated above, Whiting-Turner complied with the performance bond, and the trial court did not abuse its discretion in awarding Whiting-Turner attorney fees under the performance bond. On the latter argument, all the claims in this case arose from a common core of facts. Therefore, the trial court did not err in finding that Whiting-Turner's fees could not be apportioned, and it correctly held that under the performance bond, GCNA was liable to Whiting-Turner for all of its attorney fees. The judgment was affirmed.

Easement—Irreparable Harm—Injunctive Relief. Rinker and Colina-Lee are neighbors on Galena Court, an unpaved roadway in the Soldier Canyon Estates subdivision (the subdivision) in Larimer County. The households on Galena Court entered into the Galena Court Property Owners' Association Road Maintenance Agreement (the Agreement), which established the Galena Court Property Owners' Association (the Association) and required the homeowners to pay annual dues to fund the maintenance of Galena Court. Rinker installed a culvert along the front of his driveway to divert runoff from the land above his home. About a decade later, Brewen reshaped a portion of Galena Court uphill from Rinker's property and placed recycled asphalt material on Galena Court. Brewen also increased the grade and altered the contour of Galena Court. These changes caused sediment and asphalt particles to run through the culvert and collect on Rinker's front yard. The Association also changed the shape of the section of Galena Court uphill from Rinker's property, allegedly exacerbating the asphalt deposits on his yard and increasing the difficulty of accessing his property. Rinker complained to the Association. The Association installed a filtration system to protect Rinker's property from the runoff, but neither that nor filters installed by Rinker solved the problem. Rinker then blocked the culvert to protect his property from further damage. This caused road sediment to flow onto, and to erode, Galena Court. Larimer County demanded Rinker unblock the culvert. Rinker sued Larimer County and Brewen. Larimer County moved for injunctive relief and an order requiring Rinker to join all property owners in the subdivision as necessary parties. The district court granted the motion, and Rinker amended his complaint to include claims against all the subdivision property owners, including Colina-Lee. Colina-Lee pleaded, as an affirmative defense, that Rinker had breached the Agreement. Before trial, Larimer County vacated the public right-of-way on Galena Court and Rinker agreed to dismiss his claims against Larimer County and Brewen, who dismissed their counterclaims. As part of the settlement, Rinker agreed to remediate portions of Galena Court that his culvert had damaged. The stipulated judgment, however, would have granted Rinker authority to alter Galena Court without consulting the other owners of property adjoining Galena Court. Rinker requested his claims against the other property owners be dismissed. Colina-Lee objected because the stipulated judgment would give Rinker authority to alter Galena Court without the approval of the remaining Galena Court owners, in violation of the Agreement. At a pretrial conference, the district court allowed Colina-Lee to assert counterclaims for breach of the Agreement without providing Rinker an opportunity to address this motion to amend. Rinker subsequently moved for reconsideration of the court's ruling allowing Colina-Lee leave to amend, which was summarily denied. In her counterclaims, Colina-Lee sought an injunction requiring Rinker to comply with the Agreement and open the blocked culvert and a declaratory judgment that, under the Agreement, Rinker had no right to make unilateral changes to Galena Court without the approval of the other owners. A new trial date was set. Two months before trial, Rinker sought leave to amend his complaint to join the Association as a defendant and to assert claims against it for nuisance and trespass as well as for a declaratory judgment that the Agreement required the Association to maintain Galena Court. The court denied the motion. Following trial, the court granted the relief requested by Colina-Lee, entering an injunction requiring Rinker to unblock the culvert and a declaratory judgment setting forth the rights under the Agreement. On appeal, Rinker first argued it was an abuse of discretion for the district court to grant Colina-Lee leave to amend to assert counterclaims because the motion was untimely. Colina-Lee did not unreasonably delay in moving for leave to amend, given the changed posture of the case following Rinker's settlement with Larimer County and Brewen, which significantly impacted Colina-Lee's ability to protect her interest in Galena Court. The trial court did not abuse its discretion. Rinker also argued that granting Colina-Lee leave to amend improperly deprived him of the benefits of his settlement with Brewen and forced him to start over in defending a claim for alleged breach of the agreement. Here, when Larimer County and Brewen settled with Rinker, Colina-Lee needed to protect her interests by asserting her own breach of contract counterclaims. Rinker conceded that Colina-Lee's counterclaims were substantially similar to Brewen's breach of contract counterclaim, which Rinker had litigated for months. Any possible prejudice was cured by the trial court's continuation of the trial date. Rinker then argued that the district court abused its discretion in not granting his request for leave to amend his complaint. Rinker was not merely moving to amend but sought to join the Association as a new party and to assert new claims against it just two months before trial. Case law supports the district court's decision that preservation of the trial date warranted denial of Rinker's motion for leave to amend. The district court did not abuse its discretion in denying Rinker's motion for leave to amend Rinker further contended that the injunction was improperly entered because it was overbroad and not based on proper findings as to three elements necessary for a permanent injunction: that (1) irreparable harm would result unless the injunction issued, (2) the threatened injury outweighs the harm to the opposing party, and (3) the injunction would not adversely affect the public interest. Because Colorado courts have not considered whether a court must satisfy the irreparable harm element before enjoining interference with an easement, the Court of Appeals looked to the Restatement (Third) of Property: Servitudes and held that a party seeking an injunction as a remedy for wrongful interference with an easement is not required to prove irreparable harm. As to the remaining two elements, the record reflected that the district court (1) properly balanced the injury that Rinker was causing to Colina-Lee's interest in Galena Court against the harm that the requested injunction would cause to Rinker and concluded that the benefit of remediating the damage to Galena Court outweighed the harm that Colina-Lee's injunction would cause to Rinker and (2) considered whether the public interest supported entry of the injunction when it found that Rinker's actions had degraded Galena Court so badly that operators of passenger vehicles had difficulty driving on it. Rinker then challenged the scope of the injunction, asserting that it was an abuse of discretion to require him to unblock the culvert rather than just to cease violating the terms of the Agreement. Under Colorado law, the traditional and preferred equitable remedy for a continuing trespass is a mandatory injunction requiring the removal of the encroachment. The district court did not abuse its discretion in ordering Rinker to unblock the culvert. The judgment was affirmed.

Dependency and Neglect—Attorney–Client Privilege for Expert Report. Based on a report from neighbors, the Jefferson County Division of Children, Youth, and Families (the Division) removed the children in this case and placed them with their maternal grandfather, where they remained throughout the proceedings. The Division filed a petition in dependency and neglect based on the fact that mother left the 3-year-old twins home alone for over six hours. This family had been involved with child protective services on two prior occasions due to physical abuse and severe injuries to the children. Before the hearing, mother requested appointment of a child psychology expert to evaluate her parenting time. Because mother was indigent, the court appointed the expert at the state's expense. Based on the expert's report, mother elected not to call the expert as a witness, but the guardian ad litem (GAL) requested the expert's report. The juvenile court ordered the report disclosed and allowed the GAL to call the expert to testify at the termination hearing. The juvenile court adjudicated the children dependent and neglected and adopted treatment plans for the parents. The GAL subsequently filed a motion to terminate the parent–child relationships, and the court terminated mother's and father's parental rights. On appeal, mother argued that the juvenile court violated her attorney–client privilege when it required disclosure of the expert's report and admitted the report and the expert's testimony at the termination hearing. Under CRS § 19-3-610(1), when an indigent parent's attorney requests appointment of an expert, the attorney–client privilege generally protects communications between the parent and the expert. However, here much of the expert's report and testimony concerned observations of the children, and thus fell outside the privilege. In addition, the expert advised mother, orally and in writing, that the evaluation and interview would not be considered confidential and were being conducted to inform the juvenile court with respect to the dependency and neglect proceeding, so mother had no expectation of privacy in the evaluation. The juvenile court did not violate mother's attorney–client privilege when it required disclosure of the expert's report and admitted the report and the expert's testimony. Mother also argued that she reasonably complied with her treatment plan. Here, the record supports the findings that (1) mother was unable to provide nurturing and safe parenting adequate to meet the children's needs and conditions, and (2) mother's treatment plan was not successful because she continued to exhibit the same problems addressed in the treatment plan without adequate improvement. Mother and father argued that the juvenile court erred when it terminated their parental rights without allowing them a reasonable time to comply with their treatment plans. The juvenile court found that mother would need a lot more therapy before it would be safe to return the children to her. Testimony from the children's therapists indicated that they were suffering from post-traumatic stress disorder, and father's caseworker indicated that it was not in the children's best interests to maintain a relationship with father. Further, this case was subject to expedited permanency planning because the children were under 6 years old. The juvenile court did not err. Lastly, mother and father contended that the juvenile court erred when it found that an allocation of parental responsibilities (APR) to the maternal grandfather was not a viable less drastic alternative to termination of their parental rights. Here, the record supports the juvenile court's finding that an APR to the grandfather was not a viable less drastic alternative to termination of parental rights. The judgment was affirmed.

Workers' Compensation—Maintenance Medical Benefits—Intervening Cause. Claimant sustained admitted work-related injuries when she fell backward to the ground. Physicians diagnosed a concussion as well as cervical and lumbar strains. Within a few months claimant developed clinical depression related to the work injury. Employer admitted the compensability of the depression treatment. In October 2015, a physician who performed a division-sponsored independent medical examination placed claimant at maximum medical improvement. Pursuant to a settlement agreement that was approved by an administrative law judge (ALJ), employer paid claimant a lump sum for her permanent partial disability award. In addition, employer agreed to continue paying for maintenance care through authorized providers that was reasonable, necessary, and related to the compensable injury. The primary care that claimant was receiving was psychological. Several months later, employer retained a psychiatrist to examine claimant, and he and several other health care providers concluded claimant had returned to baseline and required no further maintenance care related to the work injury. Employer petitioned to terminate claimant's maintenance medical benefits. An ALJ agreed that claimant had returned to baseline and that any further treatment was related to claimant's pre-injury condition, not to her work-related injury. A panel of the Industrial Claim Appeals Office (the Panel) affirmed. On appeal, claimant argued that because her claim had closed, employer could only modify her maintenance medical benefits by first seeking to reopen the claim. Future maintenance medical benefits are by their nature not yet awarded, so those benefits remain open and are not closed by an otherwise closed final admission of liability. Here, claimant was entitled to receive future ongoing maintenance medical benefits for her depression. The issue was not closed, and reopening was not required to assess the continuation of those benefits. Further, the evidence supports the ALJ's factual finding that claimant's continuing need for medical care was no longer work-related. The Panel correctly determined that employer was not required to reopen the claim to challenge claimant's need for continuing medical care. Claimant also contended that the Panel improperly attributed her need for continuing treatment to an intervening cause. While the Panel erred by addressing the concept of intervening cause, any error was harmless. Substantial evidence supported the ALJ's finding that claimant's continuing need for medical care was not work related. The order was affirmed.

Extraction Oil and Gas, Inc. (Extraction) filed two Form 2A applications with the Colorado Oil and Gas Conservation Commission (the Commission) seeking approval to conduct oil and gas operations at an existing drilling site. The proposed site was approximately 1,360 feet from a middle school. The Commission accepted public comments on the applications and subsequently approved the applications. Weld Air & Water, Sierra Club, NAACP Colorado State Conference, and Wall of Women (petitioners) are organizations that have aesthetic, recreational, health, and environmental interests in the proposed development location and sued in district court. The district court affirmed the Commission's decision. On appeal, the Commission asserted that the district court erred when it held that petitioners had standing to seek judicial review of the Commission's authorization of Extraction's Form 2A permit applications. Petitioners offered declarations from members on how the expected air and noise pollution from Extraction's proposed development would negatively impact their interests. Petitioners thus established injuries-in-fact to legally protected interests under the Colorado Administrative Procedure Act (the APA) and the Oil and Gas Conservation Act (the Act), which authorizes judicial review of the Commission's permit approvals via the APA. The district court did not err in holding that petitioners had standing to seek judicial review of the Commission's permit approvals. Petitioners argued that the district court erred when it found that the Commission did not act arbitrarily and capriciously by failing to consider public comments. They contended that the Commission was obligated to respond to substantive public comments because its rules require it to make a record of its decision-making process to show that it considered public comments. The record shows that the Commission considered and responded to public concerns regarding (1) the students' health, (2) Extraction's emergency response plan, and (3) alternative siting. The district court did not err in concluding that the Commission did not act arbitrarily or capriciously in granting the challenged permits. Petitioners also argued that the district court erred when it found that the Commission complied with its own setback rules because it did not require Extraction to conduct an alternative site analysis before granting the permits. Dep't of Nat. Res. Rule 604.c.(2)(E)(i) does not require an alternative site analysis before the Commission can grant a Form 2A permit. Here, the Commission complied with its own regulations in authorizing Extraction's permits and did not act arbitrarily or capriciously. The judgment was affirmed.

The permanent orders in the parties' dissolution of marriage required them to share their daughter's tutoring expenses in proportion to their incomes. Father subsequently refused to pay his share of the daughter's tutoring costs. Mother moved for remedial sanctions in the form of tutoring expenses and attorney fees. The magistrate found father in contempt and imposed sanctions consisting of the tutoring expenses and mother's attorney fees incurred in connection with the contempt proceeding. Father objected to the attorney fees award and requested a hearing. The magistrate has not yet set a hearing or ruled on father's objection. Father also petitioned for district court review of the contempt order. The district court adopted the magistrate's order awarding the tutoring expenses to mother. Father appealed the district court's ruling. The parties were ordered to show cause why the appeal should not be dismissed, without prejudice, for lack of a final, appealable judgment. The Court of Appeals determined that CRCP 107(d)(2) allows a district court to award reasonable attorney fees as a remedial sanction. Thus, a contempt order is not final until the attorney fees portion of the remedial sanction has been resolved, and father appealed too soon. The appeal was dismissed without prejudice.

Babion owned a car. With Babion's permission, Forster was driving the car with Ryser as a passenger. A one-car accident occurred and Ryser suffered serious injuries. When the accident occurred, Babion, Forster, and Ryser were Walmart employees acting in the course and scope of their employment. According to Ryser, Forster's negligence caused his injuries. Ryser received workers' compensation benefits and obtained uninsured/underinsured motorist (UM/UIM) benefits under his own auto policy. Ryser also submitted a claim for UM/UIM benefits from Babion's policy with Shelter Mutual Insurance Co. (Shelter). Shelter rejected the claim, and Ryser sued. Shelter moved for summary judgment. The trial court ruled for Shelter based on co-employee immunity. On appeal, Ryser contended that the trial court erred in finding that he was not entitled to UM/UIM benefits under Babion's policy. The exclusivity provision of the Workers' Compensation Act of Colorado, and the related co-employee immunity rule, bar a person who was injured in the course and scope of employment by a co-employee's negligence in driving a car from receiving UM/UIM benefits under an insurance policy maintained by another co-employee who owned the car. Therefore, Ryser was not legally entitled to recover damages from Forster and, as a result, cannot recover UM/UIM benefits from Babion. The trial court properly granted summary judgment in favor of Shelter on Ryser's claim for UM/UIM benefits. The judgment was affirmed.

In 2001, when T.B. was 12 years old, he was adjudicated for unlawful sexual contact, a class 1 misdemeanor if committed by an adult. In 2005, he pleaded guilty to sexual assault. Following the 2005 adjudication, T.B. successfully completed probation and offense-specific treatment. He has no other criminal record. In 2010, T.B. filed a pro se petition to discontinue sex offender registration in both cases, which the trial court granted as to the 2005 case and denied as to the 2001 case. About five years, later T.B. filed another petition to discontinue registration, arguing that lifetime registration violated due process and constituted cruel and unusual punishment. After a hearing, the juvenile court denied the petition. On appeal, the People asserted that T.B.'s constitutional arguments were procedurally barred. T.B.'s claims are not barred as successive because he did not seek relief under Crim. P. 35(c), and the legal landscape involving juvenile sentencing generally, and lifetime registration in particular, has evolved substantially since his 2010 petition. Further, the law of the case doctrine does not bar review because no other Court of Appeals division has addressed T.B.'s first petition. T.B. contended that when applied to juveniles, automatic lifetime registration under the Colorado Sex Offender Registration Act (CSORA) for repeat offenders violates the Eighth Amendment's prohibition against cruel and unusual punishment. CSORA requires that juveniles who have more than one adjudication for unlawful sexual behavior must register as sex offenders for life, unless a court entered an order discontinuing the registration requirement. The Court of Appeals analyzed the factors in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), for determining whether a statute's punitive effect overrides its declared civil intent, and concluded that requiring a juvenile, even one who has been twice adjudicated for offenses involving unlawful sexual behavior, to register as a sex offender for life without regard to whether he or she poses a risk to public safety is an overly inclusive, and therefore excessive, means of protecting public safety. Therefore, CSORA operates as a punishment within the meaning of the Eighth Amendment. Here, the juvenile court specifically found that T.B. "successfully addressed all issues related to his sexual offending behavior" and that he was "not likely to reoffend." However, the juvenile court did not reach the issue of whether the lifetime registration requirement is cruel and unusual on its face or as applied to T.B. The order denying T.B.'s petition to discontinue the requirement that he register as a sex offender was reversed and the case was remanded for the juvenile court to determine whether the lifetime registration requirement is cruel and unusual on its face or as applied to T.B.

Martinez was a resident of Casa Loma Apartments, a low-income housing facility. He slipped and fell on a walkway leading to the apartment building and sued CSG Redevelopment Partners, LLLP (CSGR), Casa Loma's management company and the building's owner, under the Premises Liability Act, CRS § 13-21-115, and alternatively, for negligence, alleging that CSGR had allowed snow and ice to accumulate on the walkway. CSGR moved to dismiss the complaint, arguing that it was an "instrumentality" of the Denver Housing Authority (DHA), a public entity, and thus immune from tort liability under the Colorado Governmental Immunity Act (CGIA). The trial court granted the motion. On appeal, Martinez argued that the district court erred by concluding that CSGR is an instrumentality of DHA. He contended that CSGR's status as a private partnership precludes its treatment as a public entity. The DHA created CSGR and other instrumentalities to finance Casa Loma and other low-income properties. CSGR was made up entirely of public entities when it was founded, and it only became a "private" partnership when an investor joined as a limited entity. Because of both DHA's extensive control over CSGR and CSGR's public purpose, CSGR is an instrumentality of a public entity within the meaning of the CGIA, and therefore a public entity itself entitled to governmental immunity. Martinez also contended that even if CSGR is a public entity under the CGIA, its immunity was waived because Casa Loma is a "public building open for public business." Based on the district court's findings that only residents and staff have key cards to enter the building, no public events take place on the premises, and no public business is conducted there, this exception to governmental immunity in the CGIA doesn't apply. Finally, Martinez contended that the district court erred by not addressing his argument that the recreation area waiver to CIGA immunity applies. Martinez presented no evidence that Casa Loma is a "public facility located in a park or recreation area." Therefore, the district court did not err.

Massihzadeh held one of three winning lottery tickets for a Lotto $4.8 million jackpot. He received one-third of the jackpot prize after taxes. A decade later, the other two tickets were invalidated based upon fraud. Massihzadeh sued the Colorado State Lottery Division (the Division), alleging breach of contract, and sought to obtain the other two-thirds of the jackpot with interest. The trial court dismissed the case for failure to state a claim because CRS § 44-40-113(4) discharges the Division from liability upon the payment of any prize. On appeal, Massihzadeh contended that the district court erred in granting the motion to dismiss because his claims against the Division were not precluded he asserted that the statute only pertains to claims against the Division by third parties. Here, the Division tendered a prize, and Massihzadeh accepted it. Based on the plain language of CRS § 44-40-113(4), Massihzadeh's acceptance of the payment constituted "any prize" sufficient to discharge the Division of liability. Thus, the district court did not err in granting the motion to dismiss. The judgment was affirmed.

Ann and Jim Ferguson adopted 25-year-old Marty in 1995. Jim predeceased Ann, who died after being examined or treated by defendants. Marty brought a wrongful death lawsuit against Ann's medical providers. Defendants moved to dismiss under CRCP 12(b)(5), contending that Marty lacks standing to sue because an adult adoptee isn't an heir within the meaning of the Wrongful Death Act (WDA). The district court converted the motion to dismiss into a motion for summary judgment and granted the motion. On appeal, Marty argued that the district court erred in finding that as an adult adoptee, she's not an heir and doesn't have standing to sue under the WDA. The WDA provides that in the second year after the death of a person, the deceased's heirs may sue to recover on behalf of a decedent who died from an injury caused by another's negligence. The Court of Appeals concluded that an adult adoptee is a lineal descendant of a decedent, and therefore an heir, so Marty is entitled to sue under the WDA. Therefore, the district court erred in dismissing Marty's complaint. The judgment was reversed and the case was remanded.

Baum sustained work-related injuries that caused him to be temporarily totally disabled. United Airlines (UAL) paid Baum full pay under its wage continuation plan after he sustained an admitted work-related injury, but UAL also claimed a credit on its final admission of liability (FAL) for the comparable temporary total disability (TTD) benefits it would have otherwise been statutorily required to pay Baum. This credit increased Baum's reported TTD benefits, pushing them over the statutory cap. Baum challenged UAL's right to take the credit. The Division of Workers' Compensation director concluded that benefits paid under the wage compensation plan are not similar to vacation or sick leave. Therefore, their accrual and exercise did not bar UAL from taking the claimed TTD credit. A panel of the Industrial Claim Appeals Office (the Panel) affirmed on review. On appeal, Baum argued that CRS § 8-42-124 is unconstitutional on its face and as applied because the plan was approved by the director without the opportunity for injured workers to challenge it in court. UAL's plan was adopted and approved before Baum sustained any injury. Baum could not meet the threshold test of being deprived of a property interest without due process when the plan was approved because he had no such interest when the plan was approved. Baum also argued that this absence of appellate review of wage continuation plans violates separation of powers. The separation of powers doctrine does not guarantee that the judicial branch will be given oversight over every action taken by a governmental entity. In adopting CRS § 8-24-124, the legislature made wage continuation plans subject to the director's, not its own, approval. Further, the judicial branch is not excluded from reviewing these plans through court review of agency actions. The approval of CRS § 8-42-124 did not violate the separation of powers doctrine. Baum next contended that the Panel erroneously affirmed the director's grant of summary judgment to UAL. He argued that the director misinterpreted CRS § 8-42-124 when he concluded that UAL's wage continuation program benefits did not fall under the statute's residual provision of "other similar benefits." Earned benefits that an employee can exercise only if he or she suffers a work-related injury and that cannot otherwise be converted to any other use or cashed out at separation do not fall within the scope of "other similar benefits" as used in CRS § 8-42-124(2)(a). Finally, Baum contended that UAL gains a windfall unless it is barred from taking a credit for TTD benefits. The legislature sought to encourage employers to implement wage continuation plans so workers could receive a full salary even while disabled by a work-related injury. By taking the statutorily authorized credit, UAL did not enjoy a windfall. The order was affirmed.

Defendant pleaded guilty to menacing and child abuse in a plea agreement. Pursuant to the plea agreement, the sentence to be imposed would be at the district court's discretion, but if the district court sentenced defendant to the custody of the Department of Corrections (DOC), the sentences would be in the presumptive range of one to three years and would run concurrently to each other. Defendant requested a sentence to probation, and the district court sentenced him to five years of probation. After defendant violated probation the first time, the court revoked and reinstated defendant's probation. After defendant violated probation the second time, the court revoked probation and imposed concurrent four-year terms in the DOC on each count. On appeal, defendant argued that the court erred by imposing an aggravated range sentence when his probation was revoked because the original plea agreement mandated a presumptive range sentence for his crimes. Here, the plea agreement prescribed the sentence to be imposed following defendant's guilty plea, but it did not expressly address the sentence to be imposed after the initial sentencing. Defendant could have bargained for language to cover this contingency, but he did not. After revoking defendant's probation, the district court was free to resentence defendant to any sentence authorized by statute, including an aggravated prison sentence. Defendant also argued that the sentence was aggravated in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). Here, as part of the plea agreement, defendant waived his Blakely rights and agreed to judicial factfinding as to facts that could result in an aggravated range sentence, and the court could impose an aggravated range DOC sentence of up to six years on a finding of exceptional circumstances. The district court properly sentenced defendant in the aggravated range based on its finding that extraordinary aggravating circumstances were present due to the original crimes. The sentence was affirmed.

The parties' marriage was dissolved. The court ordered equal parenting time for the parties' three children and ordered father to pay mother child support based on the child support schedule. Subsequently, father moved for an order requiring mother to pay the first $250 of uninsured medical expenses per child per year, which was initially granted by the court. Mother moved for relief under CRCP 59(a), requesting the court to allocate the expenses in proportion to the parties' incomes. The district court ruled that neither party can request reimbursement of uninsured medical expenses from another party for amounts less than $250 per child per year. Father appealed the district court's ruling, arguing that mother should bear the uninsured medical expenses because she receives child support. CRS § 14-10-115(10)(h)(II) specifically excludes from the definition of "extraordinary medical expenses" the first $250 of uninsured medical expenses per child per year. Thus, the Court of Appeals concluded that the first $250 of uninsured medical expenses per child per year is included in the shared basic child support obligation. Where the parties share parenting time equally, each parent must pay uninsured medical expenses incurred during his or her parenting time, until the total for each child reaches $250, at which time the parents may seek reimbursement in proportion to their adjusted gross incomes. The order was affirmed.

Nieto worked for Clark's Market, Inc. (the Market) and accrued vacation time pursuant to the vacation policy in the Market's employee handbook. The handbook stated that an employee is entitled to payment for accrued but unused vacation time if she voluntarily resigns and gives at least two weeks' notice, but if the Market discharges an employee for any reason or for no reason, or if the employee fails to give two weeks' notice before quitting, the employee forfeits all earned vacation pay benefits. The Market discharged Nieto and refused to pay her for accrued but unused vacation time pursuant to its policy. Nieto sued for payment for accrued vacation time, alleging that the Market's policy violated CRS §§ 8-4-101(14)(a)(III) and -121 of the Colorado Wage Claim Act (CWCA). The district court granted the Market's motion to dismiss for failure to state a claim. On appeal, Nieto argued that CRS § 8-4-121 voids the Market's policy because her accrued vacation pay was earned and determinable, so she has a right to payment for vacation time under the CWCA, and the Market's policy is an illegal waiver of her right to payment. CRS § 8-4-101(14)(a)(III) explicitly includes vacation pay in the definition of wages, but it also provides that no amount is to be considered wages until it is earned, vested, and determinable. Further, nothing in the CWCA creates a substantive right to payment for accrued but unused vacation time rather, an employee's right to such compensation is determined by the parties' employment agreement. Here, the agreement conditioned payment for accrued but unused vacation time, and Nieto did not meet those conditions. Therefore, she did not assert a plausible claim that she was entitled to accrued but unused vacation time. Further, the anti-waiver provision does not create any substantive entitlement to payment independent of the parties' agreement it only applies to rights conferred by the CWCA, which looks to the parties' agreement as the sole potential source of any substantive right to payment. The judgment was affirmed.

R.C. was committed to the Colorado Mental Health Institute at Pueblo (CMHIP) after being found incompetent to proceed in a criminal case. A CMHIP staff psychiatrist diagnosed R.C. with bipolar disorder mania with psychosis and treated him with Zyprexa. Following R.C.'s assault of a CMHIP staff member, the People filed a petition seeking a court order authorizing the involuntary administration of six other drugs. At the hearing, the staff psychiatrist testified that R.C. was voluntarily taking Zyprexa but he might refuse to continue taking it. The district court granted the petition. On appeal, R.C. argued that insufficient evidence supported the order. An order for involuntary medication administration must be supported by clear and convincing evidence of the four elements set forth in People v. Medina, 705 P.2d 961, 973 (Colo. 1985). R.C. contended that the third element of the test, that no less intrusive treatment alternative was available, was not met. He argued that he was voluntarily taking Zyprexa at the time of the hearing, which clearly showed a less intrusive option was available. Here, the psychiatrist's testimony established that continued administration of Zyprexa is a less intrusive treatment alternative than administration of the six medications. Therefore, the record does not support the district court's determination of the third Medina factor. The order was reversed.

In 2010, as part of his sex offender treatment for an unrelated crime, Bott confessed that he molested his infant daughter in 2004. Police did not file charges at that time. In 2014, after Bott's treatment had been terminated, police received information that his computer was linked to the distribution of child pornography. Police searched Bott's home and recovered a memory card containing nearly 300 images of child pornography and the questionnaire containing his written confession to having sexually abused his infant daughter. Bott was charged with five counts of sexual assault on a child by one in a position of trust, 12 counts of sexual exploitation of a child related to his possession of child pornography, and three additional counts of sexual exploitation related to his distribution of child pornography. At trial, the prosecution introduced Bott's written confession and images of child pornography recovered from his computer. The jury convicted defendant as charged. On appeal, Bott argued that the evidence was insufficient to support his sexual assault on a child by one in a position of trust convictions because under the corpus delicti rule, he could not be convicted based on his confession alone and the prosecution did not present corroborating evidence that the crime occurred. Until 2013, Colorado adhered to the corpus delicti rule, which required that the prosecution present evidence independent of a defendant's confession to establish that a crime occurred. But when Bott was charged in 2014, Colorado had abandoned the corpus delicti rule and adopted the trustworthiness standard. However, this change in rules did not apply retroactively. Here, the evidence of Bott's possession of child pornography 10 years after the alleged offense, when considered together with the fact that he changed his daughter's diaper, was insufficient to prove the corpus delicti of sexual assault on a child. Accordingly, the evidence was insufficient to sustain Bott's convictions for sexual assault on a child by one in a position of trust. Bott also argued that his 12 convictions and sentences for possessing 294 child pornography images violated his rights under the Double Jeopardy Clause. Under the sexual exploitation of a child statute, a single act of possession of hundreds of images of child pornography constitutes one crime of possession. Thus, Bott was subjected to only one conviction. Therefore, the multiplicitous convictions violated Bott's rights under the Double Jeopardy Clause.

Hamilton bought a round of shots for J.F. and her friends at a bar. J.F. accused Hamilton of drugging her, separating her from her friends, taking her to an apartment without her consent while she was unconscious, and sexually assaulting her. Hamilton told the investigating detective, Slay, that J.F. had sent him multiple texts while they were drinking together at the bars and sent him texts the day after the alleged sexual assault. At trial, J.F. testified she thought her drink had drugs in it because she could not remember much after she had taken the shot. J.F. told the jury the next thing she remembered was waking up on her stomach in an apartment, with her hands being held above her head, and Hamilton was having sex with her. J.F. testified that she did not agree to have sex with Hamilton. Hamilton claimed the sex was consensual. Slay testified that police department personnel downloaded the contents of Hamilton's and J.F.'s phones and generated reports (the reports) reflecting the phones' contents. The prosecutor did not seek to introduce into evidence the reports or testimony of police department employees who had examined the phones or generated the reports. Instead, Slay testified that, based on his review of the reports, neither phone contained text messages from J.F. to Hamilton. Hamilton was convicted of one count of sexual assault and one count of distribution of a controlled substance. On appeal, Hamilton argued that the district court erred in allowing Slay to testify about the contents of J.F.'s and Hamilton's phones. Hamilton did not preserve his argument that the district court erred in admitting Slay's testimony regarding the contents of Hamilton's phone, but preserved his argument that the court erred in allowing Slay to testify regarding the contents of J.F.'s phone. A computer-generated report of a cell phone's contents is not hearsay as long as it was created without human input or interaction. To qualify as a computer-generated report that does not constitute hearsay, the party seeking to introduce the report must lay a foundation that it was machine-generated without human input. Here, the district court erred in admitting Slay's testimony regarding the contents of J.F.'s phone into evidence because both the reports and Slay's testimony were hearsay and the prosecutor failed to prove that the reports were reliable and authentic. Further, there was a reasonable possibility that Slay's testimony about the contents of J.F.'s phone contributed to Hamilton's conviction of sexual assault. Hamilton also argued that the district court erred in admitting evidence of the acts underlying his two prior sexual assault charges (he was acquitted of one of the charges and the other charge was withdrawn). This evidence was relevant to prove intent and to rebut Hamilton's consent theory by showing a common plan, scheme, design, modus operandi, and preparation. Further, though the other acts evidence was undoubtedly prejudicial to Hamilton, the record supports the district court's finding that the probative value of that evidence in proving the elements of the offense was not substantially outweighed by any danger of unfair prejudice to Hamilton. Therefore, the district court did not err in admitting this evidence. Hamilton next contended that the district court violated his right to due process by informing the jury in the acquittal instruction that (1) it should not presume he was "factually innocent" of sexually assaulting M.D., the victim in one of the two prior sexual assault cases, even though he had been acquitted on this charge and (2) he had been convicted of kidnapping M.D. The "factually innocent" language in the instruction mirrored the language for acquittal instructions that the Supreme Court has approved, so the district court did not err in adding the factually innocent language to the acquittal instruction. However, while the jury could consider Hamilton's kidnapping conviction in weighing his credibility, the court erred in adding the conviction language to the acquittal instruction because it made no reference to credibility and unnecessarily highlighted Hamilton's prior conviction. The judgment of conviction for sexual assault was reversed and the case was remanded.

1950 Logan, LLC (1950 Logan) was a single-member, single-purpose LLC created for the sole purpose of building the Tower on the Park condominium building and selling the units in that building. Hinds is a disabled person who uses a wheelchair and owns a unit in the building. In 2013, the Colorado Civil Rights Commission (Commission) sued 1950 Logan, claiming that it violated Hinds's rights as a disabled person by selling the building's handicapped parking spaces to non-handicapped buyers years before Hinds bought his condominium unit. Hinds intervened in the suit. Both the Commission and Hinds obtained default judgments against 1950 Logan. By the time Hinds sought to collect on the judgment, 1950 Logan had wound down operations and no longer had any assets. Hinds filed a garnishment proceeding seeking to pierce the corporate veil of 1950 Logan to recover the judgment from Sedgwick, a developer services company that was hired under a contract to manage 1950 Logan and to oversee the development and marketing of the project. The district court entered judgment against Sedgwick. On appeal, Sedgwick argued that its procedural due process rights were violated because it did not receive adequate notice of Hinds's attempt to pierce the corporate veil to reach Sedgwick's assets. Nothing in Colorado law prohibits a judgment creditor from asserting a claim to pierce the corporate veil in a garnishment proceeding to collect on the judgment. No due process violation arises from such a procedure because a garnishment proceeding adequately allows the garnishee to contest the garnishment. The proceedings adequately protected Sedgwick's due process rights. Sedgwick also argued that the district court erred in piercing the corporate veil and holding it responsible for 1950 Logan's debts. To determine whether it is appropriate to pierce the corporate veil, a court must first determine whether the corporate entity is the alter ego of the person or entity at issue. A court determining whether to pierce an LLC's corporate veil, particularly a single-member LLC, must consider whether traditionally applied veil-piercing factors are applicable in the context of such a company. The district court addressed the various factors generally pertinent to piercing the corporate veil, assuming that a single-member, single-purpose LLC is subject to the same veil-piercing analysis generally applied to corporations. But some of these factors, such as the usual corporate formalities of a board of directors and minutes of its meetings, do not apply in the context of single-member LLCs. Here, the uncontradicted evidence before the district court was that 1950 Logan is a single-member LLC whose sole member is 1950 Logan II, LLC. No evidence was presented that Sedgwick had the type of ownership or control over 1950 Logan necessary to establish alter ego status. The district court erred in piercing the corporate veil and holding Sedgwick responsible for 1950 Logan's debts. The judgment was reversed and the case was remanded for entry of judgment for Sedgwick.

Medina pleaded guilty to second degree assault and was sentenced to four years in the custody of the Department of Corrections (DOC). Medina filed two motions requesting dismissal of his conviction under the Uniform Mandatory Disposition of Detainers Act (UMDDA). The district court construed both motions as a petition for postconviction relief pursuant to Crim. P. 35(c) and denied the motions. On appeal, Medina argued that the district court lacked jurisdiction to accept his guilty plea because he was not brought to trial within the statutorily required time period under the UMDDA. The UMDDA allows persons in DOC custody to request a final disposition of any untried indictment, information, or criminal complaint. The request must be in writing and delivered to the superintendent where the person is confined. The superintendent must send a registered copy to the court and prosecutor. Under the UMDDA, a court loses jurisdiction over a complaint if it is not brought to trial within 182 days after the receipt of the request by the court and the prosecuting official, or within such time as the court for good cause shown in open court may grant. Because these requirements are jurisdictional, the defect is not waived by a guilty plea. Medina contended that he properly submitted the request for disposition by providing it to his superintendent, but he did not contend that the district court and the prosecution ever received the request. Here, the record does not show that the court or prosecution ever received or were otherwise made aware of Medina's request, so the 182-day period was never triggered and the court never lacked jurisdiction to accept his guilty plea. Thus, the district court properly denied Medina's motions. Medina also contended that he delivered a proper request under the UMDDA to the DOC superintendent, so the charges against him should be dismissed. Medina did not properly raise this issue in the district court, and regardless of whether the superintendent failed to properly forward Medina's request, Medina waived his right to dismissal when he entered a guilty plea. The order was affirmed.

Husband moved to modify or terminate his maintenance obligation to wife. He alleged a loss of income resulting from a shoulder injury that rendered him no longer able to perform labor-oriented work. He also alleged he had been diagnosed with stenosis, which would require surgery and affect his ability to work for the rest of his life. Following a hearing, the court denied husband's motion based on its calculation of his monthly income, including imputed rental income from husband's primary residence. On appeal, husband argued that the district court abused its discretion in determining his income for purposes of calculating maintenance. He contended the court miscalculated his self-employment income because it did not accurately calculate the ordinary and necessary business expenses that needed to be deducted from his gross receipts. Here, the district court found that husband's business expenses were offset by in-kind payments he received from his girlfriend's construction company. The court essentially added those payments to his salary and then deducted his business expenses from his salary. Because his monthly business expenses were nearly the same as the monthly in-kind payments for a vehicle, fuel, and cell phone, the district court did not err in calculating husband's self-employment income. Husband also argued that the district court erred in imputing $1,500 per month in rental income to him. Following the parties' dissolution, husband continued living in the marital residence with his girlfriend and her three children as a family. Husband paid the mortgage and his girlfriend paid for utilities and groceries. The district court found that this arrangement was not a fair market exchange and imputed to husband $1,500 per month rental income that he could have generated by renting the house, which was much larger than he needed for himself. No statutory provision addresses whether (1) potential rental income can be imputed to a party for purposes of calculating maintenance, or (2) potential rental income from a party's primary residence that has never before earned rental income can be imputed to that party for purposes of calculating maintenance. The Court of Appeals concluded that where a party has not historically earned rental income from his or her primary residence, potential rental income from that asset cannot be imputed to the party for purposes of calculating maintenance. Accordingly, the district court abused its discretion. The part of the district court's order calculating husband's self-employment income was affirmed. The part of the order imputing rental income to husband was reversed and the case was remanded for redetermination of maintenance.

Garibay reported to police that while he was driving, his car approached a Cadillac, and the Cadillac driver stepped on his brakes, switched lanes, yelled profanities at Garibay, and pointed a gun at him. A police officer gave chase, but the Cadillac driver eluded the officer. During its investigation, police determined that the Cadillac's temporary tag was not associated with the Cadillac, but with a Buick registered to defendant's father. Garibay then identified defendant in a photographic array as the Cadillac driver. The police never located the Cadillac or the gun. A jury found defendant guilty of menacing, vehicular eluding, reckless endangerment, failure to stop at a red light, and speeding. On appeal, defendant contended that a new trial was required because the trial court erred by denying his motion to continue his trial to obtain substitute defense counsel. Here, although defendant expressed a general interest in retaining a specific lawyer, he had not taken any steps to retain the lawyer. Therefore, the trial court did not abuse its discretion in denying defendant's request for a continuance. Defendant next argued that the trial court erred in determining that no due process violation occurred when the prosecution suppressed exculpatory, material evidence. At trial, a detective testified about his efforts to locate the Cadillac or connect it to defendant. He testified that for a couple weeks he drove by defendant's house, but never saw the Cadillac in front of the house. He also testified that he checked Division of Motor Vehicles (DMV) records and failed to find a Cadillac registered to defendant's address. The detective admitted that he failed to report these efforts in any police report, and as a result, neither was disclosed to the defense during discovery. Therefore, the prosecution suppressed this evidence. However, the detective's observations of defendant's house were not exculpatory, favorable to the defense, or material. But evidence of the DMV search was unable to connect the Cadillac to defendant or his residence thus, this evidence was exculpatory because it mitigated, albeit only slightly, the likelihood that defendant was the driver of the Cadillac. Nevertheless, the DMV search evidence was disclosed to the jury at trial and the jury still returned a guilty verdict, so it was not material. Therefore, the trial court did not err in finding no violation of due process. Lastly, defendant contended that the trial court erred by giving instructions to the jury that lowered the prosecution's burden of proof. Here, the trial court read the correct definitions of beyond a reasonable doubt and presumption of innocence contemporaneously with using hypotheticals and examples to explain several legal concepts to the jury. The comments did not lower the burden of proof in this case. The judgment was affirmed.

Defendant was charged with first degree criminal trespass, aggravated sexual assault on a child, and sexual assault on a child. His trial on the latter two charges ended with a hung jury. In a separate proceeding, defendant pleaded guilty to second degree criminal trespass, and the prosecution dismissed the first-degree trespass charge. Defendant was retried on the sexual assault charges. Six days before his retrial, and again on the first day of trial, defendant requested a continuance to retain private counsel. The trial court denied the request. On appeal, defendant contended that the district court abused its discretion when it denied his motion to continue. Here, defendant suggested that his representation was substantially definite he stated he selected a particular attorney and his family had saved nearly all the funds required for a retainer. However, the trial court failed to inquire further, so the record is insufficient to determine whether defendant invoked the right to hire private counsel or whether, if invoked, his right to counsel of choice outweighed the public's interest in the efficiency and integrity of the judicial system. The case was remanded for further findings regarding the definiteness of defendant's retention of chosen counsel.

Franklin Credit Management Corp. (Franklin Credit) obtained a default judgment against Galvan in 2007 and recorded a transcript of the default judgment with the Adams County Clerk and Recorder (the Clerk), creating a judgment lien on Galvan's nonexempt real property in Adams County. However, Franklin Credit didn't execute on the judgment, and the judgment lien expired in 2013. In 2016, Franklin Credit re-recorded the transcript of judgment with the Clerk but did not revive its judgment. Two years later, Franklin Credit obtained a writ of execution and delivered it to the Adams County Sheriff. The Sheriff recorded a certificate of levy with the Clerk and personally served Galvan with the notice of levy and writ of execution. Galvan moved to set aside the writ of execution. The district court granted the motion, set aside the writ of execution, and awarded Galvan attorney fees and costs. On appeal, Franklin Credit contended that the district court erred in setting the writ aside based on the expired judgment lien. A valid judgment lien is not a necessary prerequisite to obtain a writ of execution. Further, the writ of execution issued here makes no reference to a judgment lien it refers only to Franklin Credit's judgment. The district court thus erred in setting aside the writ of execution because Franklin Credit's judgment lien had expired. Franklin Credit also contended that the district court erred in setting aside the writ of execution because Colorado recognizes an execution lien independent of a judgment lien and it had a valid execution lien. Though a judgment creditor may obtain a judgment lien and an execution lien, they are independent statutory liens. And although Franklin Credit's judgment lien expired, its judgment has not. But the district court has not yet addressed the validity of the execution lien, nor has it addressed Galvan's claim for homestead exemption. The order setting aside the writ of execution and awarding Galvan attorney fees and costs was reversed and the case was remanded.

A group of investors formed Camel Point Ranch, Inc. (Camel) to purchase acreage for hunting and recreation. Years of discord ended in a corporate management deadlock and failure to elect officers at two consecutive annual meetings. Plaintiffs, three of the nine shareholders, filed a claim for judicial dissolution under CRS § 7-114-301(2). Following a bench trial, the trial court entered a merits order dissolving Camel and stating that it would appoint a receiver. The trial court subsequently entered an order appointing a receiver to exercise and manage all the business and affairs of Camel and wind up and liquidate its assets. Camel did not appeal the order appointing the receiver, but the attorneys working on behalf of one or more of Camel's officers timely filed a notice of appeal of the district court's final order on the merits. However, the notice of appeal was filed without the approval of either the receiver or the trial court. Plaintiffs filed a motion to dismiss the appeal due to the receiver's lack of involvement and the officers' lack of authority to act on behalf of the dissolved corporation. Upon the receiver's appointment, Camel's corporate officers and directors lost all authority to control the corporation, and the receiver was vested with title to all corporate property and the power to represent the interests of Camel's shareholders, including the right to appeal. Any shareholders who wanted to appeal the dissolution order on Camel's behalf were first required to make a demand on the receiver to appeal, which appellants failed to do. The appeal was dismissed.

The Mesa County Department of Human Services (the Department) filed a petition in dependency or neglect alleging that R.J., M.J., and A.J. (the children) lacked proper parental care and their environment was injurious to their welfare. After a three-day trial, the jury returned a special verdict finding the children dependent and neglected. A magistrate later entered dispositional orders as to both father and mother that continued out-of-home placement for the children and adopted treatment plans for both parents. Father asked for more time to file a petition for review of the magistrate's dispositional order with the district court. The district court granted the request, but no petition for review is in the record. Father subsequently filed a request with the Court of Appeals to file his notice of appeal of the adjudicatory order out of time. He observed that C.A.R. 3.4(b)(1) and CRS § 19-1-109(2)(c), read together, require a party to file a notice of appeal of an adjudicatory order and designation of transcripts within 21 days after entry of the dispositional order, but C.R.M. 7(a)(11) requires a party to seek district court review of a magistrate's dispositional order before seeking appellate review. Father asked the Court to resolve this uncertainty and decide whether it has jurisdiction to review an adjudicatory order when a magistrate later enters the dispositional order but no one seeks district court review of that order. Mother also filed a notice of appeal and asked that she be allowed to join father's briefs. The plain language of CRS § 19-1-109(2)(c) provides that an adjudicatory order is final and appealable after entry of the disposition, but the statute does not require that the dispositional order also be final. Nor does the statute require district court review of a dispositional order before a parent may appeal the adjudicatory order. Further, if no one asserts error, requiring the district court to review dispositional findings as a prerequisite to a parent's appeal of the adjudication would unnecessarily expend judicial resources and hinder the state's interest in expeditiously resolving dependency and neglect proceedings. Thus, a parent may appeal a juvenile court's order adjudicating a child dependent and neglected without first seeking district court review of a magistrate's subsequent dispositional order. On the merits, father argued that the juvenile court's active participation in jury selection, by exercising peremptory challenges allocated to but unused by one of the parties, violated his due process rights and rendered the jury trial fundamentally unfair. Following voir dire, no one challenged any prospective juror for cause, and the parties began using their peremptory challenges. The Department's counsel asked the court if all parties were required to use all their peremptory challenges. The court responded that if the parties waived and accepted, the court would exercise their unused challenges to get the number of jurors down to six. The parties didn't object to this procedure. The Department and the parents used all their peremptory challenges, and the court then apparently used the guardian ad litem's (GAL) remaining challenges to excuse two potential jurors. Here, while the trial court may have erred by using the GAL's two peremptory strikes, any error was harmless because (1) the court was required by C.R.J.P. 4.3(a) to pare the jury to six (2) the court's reasons for dismissing the two jurors were pragmatic and didn't suggest court bias (3) neither parent objected to the dismissal of the jurors and (4) neither parent articulated how the court's strikes resulted in a proceeding that was fundamentally unfair, or how they were otherwise prejudiced. The judgment was affirmed.

R.F. was charged with second degree assault. Following a competency evaluation, he was diagnosed with psychosis and found incompetent to stand trial. After other restoration efforts proved unsuccessful, the People petitioned the district court for permission to involuntarily administer antipsychotic medications to R.F. and to monitor any side effects. Following an evidentiary hearing, the court found that the People had met their burden to show that administration of the medication was necessary to advance the state's interest in restoring R.F. to competency and granted the People's petition. On appeal, R.F. argued that the People failed to prove that the involuntary administration of drugs will significantly further the important governmental interest at stake and that involuntary medication is necessary to further those interests. R.F.'s argument is based on People in the Interest of Hardesty, 2014 COA 138, which adopted an eight-factor test for determining the propriety of the involuntary administration of medication. The Due Process Clause recognizes an interest in avoiding involuntary administration of antipsychotic drugs. Thus, the government may only administer such medication to a defendant to render him or her competent to stand trial in cases that are sufficiently exceptional to warrant such extraordinary measure. To satisfy this "sufficiently exceptional" test, rather than meeting the eight-factor Hardesty test, the People must satisfy the four-part test articulated in Sell v. United States, 539 U.S. 166 (2003). Under Sell, the state must prove by clear and convincing evidence that (1) important governmental interests are at stake (2) involuntary medication will significantly further those interests (3) involuntary medication is necessary to further the governmental interests and (4) administration of the drugs is medically appropriate. Here, R.F. conceded that all four Sell factors were proved by clear and convincing evidence. The order was affirmed.

A jury convicted defendant of first degree assault for stabbing the victim. The prosecutor timely sought restitution to compensate the Crime Victim Compensation Fund (CVCF). Defense counsel filed a general objection and appeared at the restitution hearing without defendant, requesting the court to proceed with the restitution hearing. The prosecutor called the CVCF coordinator as the sole witness. Defense counsel neither cross-examined her nor presented any evidence. The court awarded the amount requested. On appeal, defendant argued that the trial court erred by proceeding with the restitution hearing in his absence. A defendant has the right to be present at a restitution hearing, and defense counsel cannot unilaterally waive a defendant's presence at the hearing. The record here does not show that defendant authorized his counsel to waive his presence, nor that he even knew of the restitution hearing. Based on these facts, the trial court plainly erred by holding the restitution hearing in defendant's absence. Defendant also argued that he was denied due process because CRS § 18-1.3-603(10) creates a rebuttable presumption, and the information submitted to the Crime Victim Compensation Board is confidential so he could not contest the restitution request. The record is unclear whether the trial court applied this rebuttable presumption, or whether it will apply the presumption if it conducts a new hearing. Thus, to the extent defendant asserted the unconstitutionality of the statute as applied, the Court of Appeals declined to address the argument. However, in the interest of judicial economy, the Court addressed the argument to the extent the challenge is facial and determined that the facial challenge failed. The order was vacated and the case was remanded.

The child's mother is deceased and the father was incarcerated in Las Vegas, Nevada. A court appointed the child's aunt and uncle guardians for the child in Utah. The aunt and uncle later filed petitions for kinship adoption and to terminate father's parental rights. Father, who was not represented by counsel, objected to the adoption via written correspondence and requested the appointment of a guardian ad litem (GAL) for the child. The court took no action on father's request for a GAL because father did not appear at the termination and adoption hearing. After a brief hearing, the court terminated father's parental rights and entered a final decree of adoption. On appeal, father contended that he was denied his right to counsel because he was incarcerated out-of-state and had no ability to participate in the proceedings. The parental right to raise one's child is a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment. In Colorado, an indigent parent does not have a statutory right to court-appointed counsel in kinship adoption proceedings. The presumption against a right to counsel is weighed against (1) the private interests at stake, (2) the government's interest, and (3) the risk that the procedures used will lead to an erroneous decision. Here, although father did not formally request counsel, his petition to appoint a GAL indicated that he was a pretrial detainee, indigent, and unable to afford court costs associated with the case. The juvenile court should have considered father's communications as a request for the appointment of trial counsel, or at least asked father if he wanted counsel. In reviewing father's right to counsel, the Court of Appeals concluded that (1) his interests were strong (2) the state's interests in not appointing counsel were weak and (3) the risks of error were significant for father in defending his rights without the assistance of counsel. Therefore, the presumption against the right to counsel was overcome and father had a due process right to counsel. Father also contended that the juvenile court abused its discretion when it failed to appoint a GAL. He contended that the court erred by not making factual findings on whether a GAL appointment was in the child's best interest. Although appointment of a GAL is not statutorily required, nothing prohibits such appointment should a parent fail to appear. On remand, if father or another party requests a GAL appointment, the juvenile court must make findings on whether such appointment is in the child's best interest and, if not, why. The judgment terminating father's parental rights and decreeing the child's adoption was vacated and the case was remanded.

Herman worked as a legal recruiter for 23 LTD, d/b/a Bradsby Group (Bradsby). When she was hired, Herman signed an employment agreement with a nonsolicitation provision and a noncompete provision. Bradsby terminated Herman's employment and she thereafter founded a company that did some legal recruiting and law firm succession planning. Bradsby sued Herman for breach of the noncompete and nonsolicitation provisions. A jury determined that Herman had not breached the noncompete provision, but returned a verdict in favor of Bradsby on the nonsolicitation claim and awarded nominal damages of one dollar. The district court set aside that verdict and entered judgment in favor of Herman because the nonsolicitation provision violates Colorado law and the court declined to narrow the provision to render it enforceable. The court denied Herman's request for attorney fees under the employment agreement's fee-shifting provision. On appeal, Bradsby argued that the district court erred in declining to blue pencil the nonsolicitation provision. Parties to an employment, noncompete, or nonsolicitation agreement cannot contractually obligate a court to blue pencil noncompete or nonsolicitation provisions to render unenforceable terms enforceable. But a trial court has broad discretion to blue pencil an otherwise offensive restrictive covenant. Here, the district court gave substantial reasons why it declined to exercise its discretion to blue pencil the agreement, including the general Colorado public policy against noncompete provisions, authority in other jurisdictions, and the significant overbreadth of the nonsolicitation provision. Thus, the district court did not err. Bradsby next argued that the jury's verdict that Herman did not form a competing company in violation of the noncompete provision is not supported by the evidence. The noncompete provision stated that, upon her termination, Herman would not become involved in a company that competed with Bradsby within a defined restricted area. Although the parties presented conflicting evidence, Herman testified that her company was not primarily a recruiting company, any recruiting work was undertaken outside the restricted area, and the company maintained a business address outside the restricted area. Therefore, the record supported the jury's verdict. On cross-appeal, Herman argued that the court abused its discretion in declining to award her attorney fees under the agreement's fee-shifting provision. Because Herman was the prevailing party in this matter, she was entitled to attorney fees. The merits judgment in favor of Herman was affirmed. The order denying attorney fees to Herman was reversed and the district court was directed to enter an order awarding Herman reasonable attorney fees.

In 1999 Piñon Ridge Mining (Piñon) obtained a permit for a uranium mining operation (the site), releasing the company's predecessor from its permit. The site last produced ore in 1989. In 2014, the Division of Reclamation, Mining, and Safety (the Division) approved an initial period of temporary cessation for the site effective in June 2012. Piñon had not extracted minerals since taking over the site because the depressed market price of uranium made production unprofitable. Piñon filed a request for approval of a second period of temporary cessation for the site in May 2017. Information Network for Responsible Mining, Earthworks, and Sheep Mountain Alliance (collectively, the objectors) objected to the request. The Colorado Mined Land Reclamation Board (the Board) granted the request. The district court affirmed the Board's order. On appeal, the objectors asserted that the district court erred in affirming the Board's order, which ignored the plain language of the Colorado Mined Land Reclamation Act (MLRA) when approving a second period of temporary cessation. Under the MLRA, a mining permit may continue in effect even if the mining operation temporarily ceases production for 180 days or more if the operator files a notice of temporary cessation with the Office of Mined Land Reclamation. Production must be resumed within five years of temporary cessation or the operator must file a report requesting an extension of the temporary cessation period. But temporary cessation may not be continued for more than 10 years without terminating the operation and fully complying with the MLRA's reclamation requirements. Under the MLRA, temporary cessation is a factual status, rather than a legal one. A mine is in temporary cessation status once 180 days have passed without production, even if the Division or the Board has not received or acted upon the required notice. Here, because the site's period of temporary cessation began no later than 1999, production had to resume by 2009 to prevent termination of the operation. However, the site never recommenced production. Therefore, the Board abused its discretion in approving the second temporary cessation period. Further, because temporary cessation of the site has continued for more than 10 years, the operation must be terminated and the operator must fully comply with MLRA's reclamation requirements. The judgment was reversed and the case was remanded with directions.

The Department of Justice (DOJ) brought an antitrust suit against SG Interests I, Ltd. and SG Interests VII, Ltd. (collectively, SGI) and Gunnison Energy Corporation (GEC) for illegal joint bidding at Bureau of Land Management (BLM) auctions. The district court rejected the parties' first proposed settlement, but the case was resolved by a second settlement agreement. Thereafter, defendant Kolbenschlag, an environmental activist, posted a reader comment to the online version of a newspaper article about SGI. In the comment, he stated that SGI "was actually fined for colluding (with GEC) to rig bid prices and rip off American taxpayers," and he included a link to the DOJ press release describing the first settlement agreement. SGI sued Kolbenschlag for defamation. Kolbenschlag moved to dismiss, and the district court converted the motion to one for summary judgment. SGI filed a response and sought leave to take Kolbenschlag's deposition concerning his factual basis for stating the comments were substantially true. The district court granted the motion for summary judgment and denied SGI's request to depose Kolbenschlag. On appeal, SGI first contended that the district court erroneously concluded that Kolbenschlag's comments were substantially true and immaterial. Here, Kolbenschlag's comment that SGI and GEC "colluded to rig bid prices," as understood by the average reader, is substantially true and is well supported by the record. Further, Kolbenschlag's comment that SGI was "actually fined" is not problematic. The undisputed record demonstrates that SGI paid 12 times the actual amount of damages to settle two civil claims related to its illegal bidding practices and it agreed to additional restrictions to its bidding practices in future joint bidding ventures. Thus, plaintiffs failed to prove the elements of defamation. SGI next contended that the district court erroneously denied its discovery request to depose Kolbenschlag. Because Kolbenschlag's subjective belief in the truth of his comment is not relevant and SGI failed to allege additional facts it could have discovered through a deposition, the district court did not abuse its discretion by denying the request. Kolbenschlag requested attorney fees and costs on appeal. Because SGI's appeal was groundless and frivolous, Kolbenschlag is entitled to attorney fees and costs. The judgment was affirmed and the case was remanded for the district court to determine and award reasonable appellate attorney fees.

A police officer executed a search warrant of defendant's home and found four guns that defendant owned. Defendant had a prior felony conviction and was charged with possession of a weapon by a previous offender (POWPO). Before trial, defendant endorsed the affirmative defense of mistake of law. The court rejected the affirmative defense, found defendant guilty of the POWPO count, and sentenced him to 18 months of probation. On appeal, defendant argued that he was entitled to the affirmative defense of mistake of law because the Colorado Bureau of Investigation (CBI) gave him permission to possess all the guns when he passed background checks before purchasing two of them at Walmart. A mistake of law defense arises from the mistaken belief that conduct does not, as a matter of law, constitute a criminal offense. It is not a defense unless the conduct is permitted by certain law, persons, or entities under specific circumstances. As the state point of contact for the national instant criminal background check system, the CBI is required to deny a background check if the transfer of a firearm would violate state law. But even if passing a background check could be construed as a "grant of permission," the CBI doesn't have the authority or duty to interpret, apply, or grant exemptions from the POWPO statute. Defendant presented no evidence of an administrative regulation, order, or grant of permission by anyone authorized or empowered to give such permission that would have permitted him to possess firearms. Nor did he present evidence of an official written interpretation of the POWPO statute by anyone empowered to make such an interpretation giving him permission to possess a firearm. Therefore, defendant was not entitled to have the fact finder consider the affirmative defense. The judgment was affirmed.

The City of Littleton (the City) approved a planned development plan amendment that would allow for assisted living, memory care, and accessory uses commonly associated with assisted living and memory care facilities. Burger Investments Family Limited Partnership (Burger) owns property adjacent to the subject parcel and filed a complaint in district court under CRCP 106(a)(4) to review the City Council's decision, alleging that the decision violated the City's code. The City moved to dismiss Burger's complaint for lack of subject matter jurisdiction, arguing that pursuant to section 58 of the City's charter, Littleton municipal courts have exclusive original jurisdiction to address the City Council's decision. The court granted the motion. On appeal, Burger argued that the district court erred in interpreting the City's charter as vesting the municipal court with exclusive original jurisdiction over Burger's appeal of the City Council's decision. A municipal court may only exercise the jurisdiction expressly granted to it in a charter or ordinance. As a home rule municipality, the City has the authority to vest its municipal court with jurisdiction over matters of local and municipal concern. Though Burger's action raises issues of local or municipal concern, the City Council's and voters' intent was to limit the jurisdiction of the Littleton municipal courts to criminal matters. Thus, the district court erred in concluding that the municipal court has exclusive original jurisdiction over Burger's complaint and in dismissing the complaint. The judgment was reversed and the case was remanded for the court to reinstate Burger's complaint.

Pro's Closet, Inc. is licensed in Boulder as a secondhand dealer under the Boulder Revised Code. It sells used bicycles, bicycle parts, and bicycle gear. Though it has a warehouse in Boulder, Pro's Closet does most of its business online. The Twentieth Judicial District's District Attorney's Office advised the Boulder Police Department to treat Pro's Closet as a "pawnbroker" under state law. Pro's Closet filed suit, seeking a declaratory judgment that it isn't subject to state pawnbroker laws. The district court concluded that Pro's Closet is a pawnbroker under state law and granted the City of Boulder's motion for summary judgment. On appeal, Pro's Closet argued that the district court erred in ruling that it is a pawnbroker under CRS § 29-11.9-101. A "pawnbroker" within the meaning of CRS § 29-11.9-101(1), (7), and (8) is an entity that regularly engages either in the business of making contracts for purchase or in the business of making purchase transactions. Here, it is undisputed that Pro's Closet regularly engages in the business of making purchase transactions. It is therefore a "pawnbroker" under state law. Pro's Closet also argued that Colorado's secondhand dealer statutes are more specifically applicable to its business, so it isn't subject to state pawnbroker laws. There is no conflict between the record-keeping requirements for secondhand dealers in the criminal code and the record-keeping and holding requirements for pawnbrokers in CRS Title 29. The judgment was affirmed.

Avicanna Inc. is a Canadian corporation with its principal place of business in Ontario. It contracted with St. J Distribution LLC, a Colorado company, and several of its members to purchase certain assets. The asset purchase agreement included a choice of law and forum selection clause in favor of the laws of the Province of Ontario and the federal laws of Canada. Avicanna sued the contractual counterparties and Laughing Dog Group, LLC, which was owned and/or managed by one or more members of St. J Distribution. Two of the defendants, St. J Distribution and Robinson, then filed cross-claims against the remaining defendants, Mewhinney, Garcia, and Laughing Dog Group (collectively, the Mewhinney defendants) for breach of contract. The Mewhinney defendants moved to dismiss both the complaint and cross-claims for failure to state a claim upon which relief may be granted. Neither motion mentioned the forum selection clause. But in their reply to support their motion to dismiss, the Mewhinney defendants argued the forum selection clause deprived the trial court of jurisdiction over the dispute. Because the forum selection argument was raised in a reply, the district court declined to consider it. But the court sua sponte later invited briefing on the issue, and it granted the motion to enforce the forum selection clause and dismissed the case without prejudice. On appeal, Avicanna argued that the forum selection clause was intended for its sole benefit and Avicanna was therefore entitled to unilaterally waive its protections and file suit in Colorado. A forum selection clause in a contract will be enforced unless the party seeking to avoid its effect proves that enforcement of the clause would be unfair or unreasonable. Avicanna did not argue that the clause would be unfair or unreasonable or that the clause was ambiguous. Rather, Avicanna asserted that it was entitled to unilaterally waive enforcement of the clause because it was the only party that was an Ontario resident, so the clause was included exclusively for its benefit. Here, the court could not discern the substance of the parties' negotiations from the four corners of the contract defendants may have wanted Canadian law to apply for any number of reasons. Second, the forum selection clause applied to "Each Party," indicating an intent to apply it to each contract signatory. Finally, the clause provided that each party agreed to irrevocably submit to the exclusive jurisdiction of Ontario courts. Thus, the district court did not err in concluding that Avicanna failed to carry its burden of showing that it was the sole beneficiary of the forum selection clause. Avicanna also contended that the Mewhinney defendants waived any opportunity to enforce the forum selection clause by failing to timely raise the issue in the district court. Here, the record does not suggest that the Mewhinney defendants intentionally failed to assert defenses under Canadian law or intended to waive the choice of law provision. The judgment was affirmed.

The prosecution charged defendant with two counts of second degree assault under CRS § 18-3-203(1)(i) (strangulation subsection), one count of child abuse under CRS § 18-6-401(1)(7)(b)(I), and a crime of violence sentence enhancer under CRS § 18-1.3-406(2)(a)(I)(A). The prosecution later added a habitual child abuser sentence enhancer and two second degree assault charges under CRS § 18-3-203(1)(b) (deadly weapon subsection). It also amended the crime of violence count to attach to all four second degree assault counts. While this case was pending, a Court of Appeals' division decided People v. Slaughter, 2019 COA 27. The Slaughter division held that charging a defendant with second degree assault by strangulation under CRS § 18-3-203(1)(i) and a crime of violence count under CRS § 18-1.3-406(2)(a)(I)(A) violates his or her right to equal protection because the penalty is substantially more severe than if the defendant were charged with second degree assault under CRS § 18-3-203(1)(b), a per se crime of violence, for the same conduct. Consequently, the division affirmed the district court's order dismissing the crime of violence counts attached to the strangulation charges. Following Slaughter, defendant moved to dismiss the second degree assault deadly weapon counts and the crime of violence sentence enhancer. The court concluded that conviction under the deadly weapon subsection could produce a more severe penalty than a conviction under the strangulation subsection for the same conduct, and thus a potential equal protection violation existed. The court dismissed the second degree assault deadly weapon and crime of violence counts. On appeal, the People argued that the court misinterpreted Slaughter. The Court of Appeals concluded that charging strangulation under both the deadly weapon and strangulation subsections of the second degree assault statute would violate a defendant's right to equal protection because the subsections carry different maximum penalties. Further, based on the legislative history, when the General Assembly amended the second degree assault statute to add the strangulation subsection, it intended all strangulation conduct to be charged under this specific subsection, rather than under the more general deadly weapon subsection. The order was affirmed.

A grand jury indicted defendant on two counts of murder and related felonies arising from a series of pipe bombs detonated in Grand Junction. At defendant's trial, the prosecution relied primarily on the testimony of O'Neil, an expert in firearms and toolmark identification, who described the unique marks made by each cutting tool to support the theory that defendant constructed each of the bombs with tools in his possession. Defendant was convicted of two counts of first degree murder and other felonies. Years later, defendant moved under Crim. P. 35(c) for a new trial based on newly discovered evidence, which consisted of an expert opinion that there was no scientific basis for most of O'Neil's opinions. The expert relied on a 2009 report commissioned by Congress and published by the National Academy of Sciences, National Research Council of the National Academies, that found toolmark identification evidence had not been scientifically validated. The motion was denied without a hearing. On appeal, defendant contended that the district court erred in denying him an evidentiary hearing. For newly discovered evidence to warrant a new trial, the new evidence must demonstrate sufficient materiality to suggest that, when considered with all evidence presented at trial, a reasonable jury would likely conclude there was a reasonable doubt as to defendant's guilt and thereby reach an acquittal verdict. If the facts alleged in a Crim. P. 35(c) motion, taken as true, may entitle a defendant to a new trial, the court must conduct an evidentiary hearing. Here, the expert opinion that there was no scientific basis for most of O'Neil's opinions did not exist at the time of trial. And although defendant proffered his own expert to rebut O'Neil's testimony, the toolmark identification methods used by O'Neil were generally accepted at the time. Further, most of the other evidence against defendant was arguably insufficient to establish his guilt. Given the proffered expert testimony presented in defendant's Rule 35(c) motion, which, if true, would undermine the cornerstone of the prosecution's case, defendant is entitled to an evidentiary hearing on his motion. The order denying the Crim. P. 35(c) motion was affirmed as to all of defendant's convictions other than his convictions for class 1 felonies. The order was reversed as to the class 1 felonies and the case was remanded for an evidentiary hearing and for findings of fact and conclusions of law following the hearing.

A jury found defendant guilty of sexual assault on a child, sexual assault on a child as a pattern of abuse, and sexual assault on a child by one in a position of trust. At defendant's sentencing hearing, R.H., a cousin of the victim's mother, spoke with defense counsel's investigator and made new allegations. Specifically, R.H. stated that the victim had asked her what would happen if she lied and stated that the victim's grandmother had offered to pay R.H. to make false allegations of sexual assault against others. Defense counsel didn't move for a new trial based on R.H.'s allegations. Defendant's convictions were affirmed on direct appeal. Defendant later filed a pro se motion for postconviction relief under Crim. P. 35(c). He sought a new trial based on newly discovered evidence (the information R.H. had given the investigator) and his counsel's ineffective assistance. After an evidentiary hearing, the court found that trial counsel provided ineffective assistance that prejudiced defendant by (1) failing to move for a new trial after R.H. came forward, and (2) failing to investigate defendant's assertion that he had taken the victim to a hospital to be examined during the same period he was allegedly assaulting her. The postconviction court vacated defendant's convictions and ordered that defendant be allowed to file a motion for a new trial if the Court of Appeals vacated the convictions. On appeal, the People challenged both of the postconviction court's bases for finding ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel under Rule 35(c), a defendant must show that counsel's deficient performance prejudiced him. As to the first basis, defendant failed to show that the evidence probably would have resulted in an acquittal if presented at trial. Therefore, there wasn't a reasonable probability that defendant would have been granted a new trial had counsel brought the motion for new trial, and defendant isn't entitled to move for a new trial. As to the second basis, defense counsel's failure to investigate the hospital visit and related evidence did not undermine the court's confidence in the trial outcome. The postconviction court therefore erred in setting aside defendant's convictions and ordering a new trial on that basis. The order was reversed and the case was remanded with instructions to reinstate defendant's judgment of conviction and sentence.

Centennial Airport (the airport) is owned by the Arapahoe County Airport Authority (Authority), a tax-exempt political subdivision of the State of Colorado. The Authority leased about 70 acres of the airport land in Douglas County to Denver jetCenter (DJC) pursuant to a Master Lease. The Master Lease requires DJC to construct or contract for the construction of various improvements, including an aircraft hangar. DJC entered into a sublease (Ground Lease) with Rare Air Limited, LLC to satisfy its obligation to construct the hangar facility. The hangar facility was constructed in 2012 and is located on tax-exempt land owned by the Authority. For tax year 2015, the Douglas County Assessor's Office issued a notice of valuation to Rare Air for the value of the hangar facility of $2,871,708. Rare Air sought and obtained an abatement from Douglas County for the tax assessment, claiming that the hangar facility should be assessed to DJC's leasehold interest under the Master Lease. Due to the size of the abatement, the Property Tax Administrator's review was required. The Tax Administrator overruled the abatement, stating that all property in the State of Colorado on the assessment date is taxable unless it is expressly exempted by the Constitution or state statutes. Rare Air appealed the Tax Administrator's decision to the Board of Assessment Appeals (BAA), which determined that Rare Air had been correctly assessed for its interest in the hangar and upheld the Tax Administrator's decision. On appeal, Rare Air contended that the BAA erred in upholding the tax assessment on the hanger facility because DJC, not Rare Air, holds a taxable interest in the hangar facility. Buildings and structures are improvements subject to taxation as real property unless exempted. Here, Rare Air holds title to the hangar facility, which it constructed at its own expense. It has exclusive use of the facility, has the right to all depreciation and tax advantages, retains all profits generated, and retains the rights to encumber the improvements and assign or transfer them with proper authorization. Rare Air also bears the burdens of ownership, including duties to maintain the facility at its own expense, pay any assessed taxes pursuant to the Ground Lease terms, and insure the facility at its own expense. Therefore, Rare Air possessed a taxable ownership interest in the hangar facility and was properly assessed taxes on that interest. Rare Air further contended that CRS § 39-1-103(17) is the sole authority for assessing taxes on possessory interests and the assessment on Rare Air is not within the statutory grant of authorization for taxation of possessory interests. As stated above, Rare Air has a direct ownership interest in the hangar facility. But even assuming, without deciding, that Rare Air's interest in the hangar facility should be assessed as a possessory interest, its assessment is not barred by CRS § 39-1-103(17) because the statute addresses the valuation of taxable possessory interests it does not provide the authority for taxing such interests, nor does it dictate whether an interest is taxable. And no special legislative authorization is required to tax possessory interests because they are, in and of themselves, real property interests subject to taxation unless exempted. Lastly, Rare Air contended that the unit assessment rule applied and its application required any assessment on the hangar facility to be made to DJC. Where, as here, the landowner is tax exempt, the rule operates to assess one tax on the various subordinate private possessory interests, such as leasehold interests. However, the unit assessment rule does not apply when separate and distinct interests in the property exist or have been created. Here, the tax assessment covers a single property interest, Rare Air's ownership of the hangar facility, and the record contains no evidence that any other taxpayer had an ownership interest in the hangar facility in 2015. Given the absence of multiple taxpayers with interests in the hangar facility, the unit assessment rule has no application. The order was affirmed.

D.L.C. pleaded guilty to aggravated motor vehicle theft and agreed to pay restitution. The juvenile court magistrate sentenced D.L.C. to probation and ordered restitution of $59,417.07. The magistrate later revoked probation after D.L.C. pleaded guilty to other offenses in a different case and committed him to the Division of Youth Services (DYS). The magistrate ordered D.L.C. to pay restitution in this case and made it a condition of his parole in his other case after his commitment to DYS. D.L.C. filed a motion requesting suspension of postjudgment interest on restitution while he is committed to DYS. The magistrate denied the request and the district court upheld the denial. On appeal, D.L.C. argued that the district court erred in refusing to suspend accrual of postjudgment interest on his restitution obligation while he is committed to DYS because CRS § 19-2-918(2) authorizes suspension of postjudgment interest "to ensure that restitution is ordered to be paid in a reasonable manner." D.L.C. argued that it is unreasonable to accrue postjudgment interest while he is committed to DYS and can't pay restitution. However, the plain language of the adult criminal restitution statute is unambiguous and compels the accrual of simple interest from the date of a restitution order. Further, the juvenile court lacked discretion to suspend postjudgment interest because the plain language of the adult criminal restitution statute applies equally to juveniles and suspending postjudgment interest would not be in accordance with this plain language. D.L.C. also contended that the statute's postjudgment interest provision is unconstitutional as applied to him because it is fundamentally unfair and violates constitutional due process requirements. The Court of Appeals reviewed this claim for plain error and concluded that no authority exists that should have caused the district court, on its own motion, to find the statute unconstitutional as applied. Therefore, any possible error would not have been obvious and thus not plain. The order was affirmed.

Mother had an intellectual disability. Shortly after her child was born, hospital staff contacted the Denver Department of Human Services to report that mother's low functioning impaired her ability to provide proper care for the child. The Department filed a petition in dependency or neglect, and the juvenile court placed the child in a foster home upon his release from the hospital. The juvenile court adjudicated the child dependent and neglected and adopted a treatment plan for mother. One year later, the juvenile court held an evidentiary hearing and terminated mother's parental rights, and father confessed the motion to terminate his parental rights. On appeal, mother argued that it was error to deny her motion to remove her guardian ad litem (GAL). A court may appoint a GAL for a respondent parent who has an intellectual or developmental disability, but the parent's GAL has no statutory right to participate as a party or to make recommendations to the court concerning the parent's welfare in dependency and neglect proceedings. The GAL's role is to facilitate communication between the parent and counsel and help the parent participate in the proceeding. Here, the GAL improperly participated in the proceeding when she purported to represent mother's best interests in court hearings and pleadings, standing apart from mother and her counsel. She also undermined mother's constitutional interest in preventing the destruction of the parent-child relationship by advocating for a reduction of parenting time and supporting a concurrent permanency goal of adoption. Thus, it was an abuse of discretion to deny mother's motion to dismiss her GAL. Mother also argued that it was error to allow her GAL to give closing argument. Here, the GAL made a closing argument that included improper testimony, including statements that mother refused to engage in necessary services and that her disabilities made it impossible for her to parent the child. Further, the GAL advocated for the termination of mother's rights over mother's objection. Accordingly, the juvenile court erred when it allowed mother's GAL to give closing argument and testify in opposition to mother's interests. However, because there was no reasonable possibility that the outcome of the proceeding would have been different if the juvenile court had dismissed mother's GAL or precluded the GAL from giving closing argument, any error was harmless. The Court of Appeals also rejected mother's arguments that (1) the juvenile court erred in denying her motions to continue the termination hearing, and (2) her second attorney rendered ineffective assistance. The judgment was affirmed.

The accuser alleged that defendant had sexually assaulted her on multiple occasions when she was a teenager. Defendant was convicted of sexual assault on a child (position of trust as part of pattern of abuse), sexual assault on a child (position of trust), and aggravated incest. On appeal, defendant argued that the trial court erred by allowing improper expert testimony. An expert may not offer a direct opinion on a child victim's truthfulness or an opinion on whether children tend to fabricate sexual abuse allegations. Here, the trial court allowed the prosecutor to introduce expert testimony on the percentage of children and teenagers who fabricate allegations of sexual abuse, the percentage of girls who are sexually abused by family members, and the percentage of women who have been sexually assaulted. The testimony regarding the small percentage of children and teenagers who make false allegations of sexual assault improperly bolstered the victim's credibility. The testimony about the percentages of women and children who are victims of sexual assault was irrelevant and inadmissible to the extent it suggested that the accuser's claims were truthful. Therefore, the trial court erred in permitting this testimony, and the error required reversal of defendant's judgment of conviction. Defendant also contended that the trial court erred by excluding a neighbor's testimony challenging the accuser's truthfulness. The trial court disallowed the neighbor's testimony that the accuser was "sneaky and attention seeking," had abused animals, and was "untrustworthy." This testimony focused on issues that had nothing to do with credibility, was of questionable relevance, and was not probative of a character for untruthfulness under CRE 608. Therefore, the trial court correctly excluded the neighbor's statements. Defendant further argued that the trial court erred by rejecting the defense's request under the Rape Shield statute for an evidentiary hearing to determine whether he could introduce at trial evidence of the victim's purported history of falsely accusing classmates of sexual assault. To determine whether a defendant charged with sexual assault may introduce evidence of the victim's alleged history of falsely reporting sexual assaults, the Rape Shield statute requires the defendant to make an offer of proof through a written motion and a supporting affidavit, and if the court finds that the offer of proof is sufficient, the defendant is entitled to an in camera pretrial evidentiary hearing on the admissibility of the evidence of the alleged false reporting. Here, defendant made a sufficient offer of proof regarding the accuser's alleged false reports of sexual assault, including referencing multiple witnesses who would testify as to those false reports and the school's findings that the victim had previously made false allegations of sexual assault. Thus, the facts described in the affidavit sufficiently established that defendant could demonstrate at an evidentiary hearing, by a preponderance of the evidence, the falsity of the accuser's multiple previous allegations of sexual assault, and the trial court erred. The judgment was reversed, and the case was remanded with directions.

Defendant was convicted of unlawful sexual contact and sentenced to sex offender intensive supervised probation for an indeterminate term of 10 years to life. On appeal, defendant contended that the evidence was insufficient to support his conviction for unlawful sexual contact under CRS § 18-3-404(1.5), arguing that the statute applies to sexual contact involving a third person other than the victim and the defendant. Specifically, he contended that because the State did not prove that defendant induced or coerced the victim to engage in sexual contact with another person for defendant's own sexual gratification, the conviction cannot stand. The phrase "another person" as used in CRS § 18-3-404(1.5) is ambiguous. The Court of Appeals construed it to be viewed from the perspective of the victim, so the perpetrator is "another person" in relation to the victim. Consequently, CRS § 18-3-404(1.5) does not require the participation of an additional person beyond the victim and the defendant. Therefore, sufficient evidence supported defendant's conviction. The judgment was affirmed.

Defendant submitted three applications for Medicaid and Child Health Plan Plus benefits to the Garfield County Department of Human Services (Department) between 2008 and 2011. The applications contained inaccurate household income information. Based on her applications, defendant and her children received $31,417.65 in benefits. In 2016, a Department fraud investigator questioned defendant about her financial information. The documentation produced showed that defendant had owned her own housecleaning business and her husband owned his own electrical contracting business during the entire time defendant received benefits, and each owned significant unreported property. At trial, the fraud investigator opined that the applications did not accurately describe defendant's financial state, but she was unable to opine on the amount of benefits defendant would have been entitled to had her application been accurate, nor that the inaccurate application forfeited all rights to benefits. Defendant was convicted of one count of class 4 felony theft, $20,000 to $100,000 and three counts of forgery. On appeal, defendant argued that there was insufficient evidence to support a conviction because the prosecution failed to present evidence sufficient to prove her intent or to establish the value of the purportedly stolen benefits. As to her intent, ample evidence created a reasonable inference that defendant understood the generally inverse relationship between income and eligibility. As to the value, the prosecution was required to prove how much defendant was overpaid. However, while the evidence established the total value of benefits defendant received, it did not show the value she would have been entitled to had she fully disclosed her household income. Further, the prosecution did not present sufficient evidence to prove that the overpayment amount exceeded $20,000. But because there was sufficient evidence for a reasonable juror to determine that defendant obtained some benefits by deceit, the conviction need only be downgraded to a class 1 petty offense, which is the only grade of theft that does not require proof of value. Defendant also argued as to the forgery counts that the prosecution failed to present sufficient evidence to prove either that she intended to defraud the Department or that any false assertions on the applications were material. Based on the same evidence presented from which the jury could have found that defendant intended to commit theft, a reasonable jury could have found that she intended to commit forgery and that her false assertions affected the Department's eligibility determination and thus were material. The prosecution presented sufficient evidence to prove the felony forgery counts. Defendant further contended that the trial court abused its discretion when it accepted one of the Department's witnesses as an expert and overruled objections during the expert's testimony. The witness had more than 10 years of experience in public assistance administration as a case manager, benefits technician, and fraud investigator, and extensive training from the Colorado Department of Human Services. The witness had sufficient experience and training in fraud investigations to satisfy CRE 702's threshold, and her testimony served to aid the jury's understanding of defendant's finances. The trial court's decision to overrule defendant's objections to portions of the witness's testimony was not manifestly arbitrary, unreasonable, or unfair. Defendant further argued that that the probative value of the expert's testimony was substantially outweighed by its unfair prejudice. Given CRE 403's strong preference for admissibility and the relevance of the expert's testimony, the trial court did not abuse its discretion. Defendant also contended that statements the prosecutor made during voir dire, witness examination, and closing arguments denied her a fair trial. The trial court did not abuse its discretion in overruling the burden-shifting objection, and there was no plain error in other statements made by the prosecutor. Lastly, defendant argued that the combined impact of numerous errors denied her right to a fair trial. The two unpreserved errors in the prosecutor's closing argument, which were not plain, did not deprive defendant of a fair trial. The felony conviction was reversed, and the case was remanded for the trial court to enter a conviction of class 1 petty theft. The judgment was affirmed in all other respects.

A group of homeowners sued LB Rose Ranch, LLC (Rose), Hansen Construction, Inc. (Hansen), and other defendants for damages caused by defects in the design, construction, and repair of 20 single-family homes. Hansen and other defendants compelled arbitration, but Rose did not. The arbitrator awarded damages to the homeowners and found that Hansen, Rose, and other defendants jointly caused the damages. Rose and the homeowners went to a jury trial. The jury found defendants jointly and severally liable for damages and found Rose 30% at fault and Hansen 15% at fault. The arbitrator attributed 20% fault to Rose and 18% to Hansen. Both the arbitrator and jury awarded damages on a lot-by-lot basis, rather than a single aggregate award. The trial court confirmed and entered judgment on the arbitration awards against Hansen and others. Hansen satisfied the judgment as to each homeowner, paying a total of over $9 million. The trial court found that Rose was bound by the jury's findings and Hansen by the arbitrator's findings, and the homeowners could not receive double recovery for damages already paid by Hansen. The court held that Rose had to pay each homeowner only those damages awarded by the jury that exceeded those awarded by the arbitrator and already paid by Hansen. It entered judgment against Rose for the entire amount of the jury award but found the judgment satisfied to the extent Hansen had already paid the damages. For many lots this extinguished Rose's duty to pay. Only $698,548.93 had not been satisfied by Hansen. Rose then settled with the homeowners for approximately $1 million and they released Rose from all claims, and both waived their right to appeal. Hansen sought a contribution judgment against Rose for the amount of common liability to the homeowners that Hansen had satisfied. The court applied the jury's finding as to Rose's percentage of fault and concluded Rose should pay Hansen 30% of the joint liability, or $1,774,369.91. On appeal, Rose argued that Hansen's satisfaction of the arbitration judgment did not extinguish Rose's liability to the homeowners because Rose was not a party to the arbitration and therefore Hansen had no right of contribution. However, Rose was a party to the jury trial, and the court found that Hansen had already satisfied over $5.9 million of Rose's common liability, meaning that Rose did not have to pay that amount to the homeowners. The right of contribution under CRS §13-50.5-102(2) exists in favor of a tortfeasor who has paid more than his or her pro rata share of the common liability. Hansen paid all of the common liability it shared with Rose and was entitled to contribution from Rose. Rose then argued that the release it obtained from the homeowners precluded Hansen's contribution claim. Here, Rose settled only its individual liability to the homeowners, not its common liability shared with Hansen. The judgment on the jury verdicts identifies the parties' common liability by noting the amount of the judgment that Hansen had already satisfied. It was thus appropriate to hold Rose to the assessment of the common liability of $5.9 million, and because Hansen had fully paid this common liability before Rose settled with the homeowners, Rose's settlement did not resolve any common liability. The district court correctly concluded that Hansen was entitled to contribution from Rose. Finally, Rose argued that the contribution judgment violated its right to due process because the district court held Rose to the arbitrator's findings even though it did not have a full and fair opportunity to litigate damages in the arbitration. Rose was not bound by the arbitration judgment because it was not a party to the arbitration, and the trial court did not bind Rose to those findings. Instead, the court held Rose to only the jury verdicts when determining Rose's joint liability with Hansen, and it used only the percentage of fault found by the jury, not the arbitrator. Thus, there was no due process violation. The judgment was affirmed.

Defendant was living with his parents when he got into an argument with his father, who has health issues. His father threatened to call police if he didn't leave, and defendant grabbed him by the wrists and made him sit down on the couch. Then defendant grabbed some of his belongings and left the house. Several hours later his parents called the police. Defendant was convicted of third-degree assault of an at-risk victim and harassment and sentenced to three years of supervised probation. On appeal, defendant argued that the trial court committed reversible error by taking the verdict while he was not present. To proceed with trial in a criminal defendant's absence, a trial court is required to find that the defendant is voluntarily absent. Here, rather than attempt to find out why defendant was late, the trial court assumed that the unexplained absence was voluntary. Therefore, the court erred. However, because nothing in the record suggested any juror was conflicted in this case, there was no reasonable possibility that defendant's absence contributed to the verdict. Accordingly, the error was harmless. Defendant next argued that the trial court erred when it allowed the prosecution to introduce evidence that defendant's mother consulted with a mental health professional before deciding to call the police because the evidence was not relevant, and even if it was, any probative value was outweighed by the danger of unfair prejudice. The evidence presented was that defendant's mother called a colleague who was both a psychiatrist and a psychologist and was familiar with defendant, and the colleague recommended she call the police. No testimony was presented that defendant was dangerous or had been diagnosed or treated for mental illness. Therefore, the trial court did not act arbitrarily, unreasonably, or unfairly in admitting the evidence. Defendant also contended that the trial court did not properly respond to a jury question during deliberations requesting a definition of third degree assault. Here, the trial court's response properly directed the jury to the appropriate instruction and informed the jury that assault in the third degree and third degree assault refer to the same crime. Therefore, there was no error. Lastly, defendant claimed that the trial court erred when it denied his motion for a mistrial after the prosecutor, in his opening statement, improperly referred to defendant's invocation of his Fifth Amendment rights. Not every reference to a defendant's exercise of his or her right to remain silent requires reversal. Here, the prosecutor did not directly argue that defendant's silence reflected guilt, nor did he provide any detail about the specific questions defendant refused to answer. The prosecutor's comment was brief and not repeated. Although the prosecutor's comment was improper, the court gave a curative instruction and the prosecutor's comment did not so prejudice defendant as to warrant a mistrial. The judgment was affirmed.

Officers removed defendant from a strip club after he exhibited confrontational and aggressive behavior toward other patrons. A short while later, in the club's parking lot, an argument and physical altercation erupted between defendant and a group of men attending a bachelor party. During the fight, defendant stabbed T.K. in the abdomen with a small folding knife. A jury found him guilty of second degree assault and felony menacing. On appeal, defendant asserted that the trial court violated his right to due process when, in response to a juror's question, it erroneously instructed the jurors that they need not unanimously agree on the basis on which the prosecution disproved defendant's affirmative defense of self-defense. When a defendant presents sufficient evidence to raise an affirmative defense, the prosecutor must prove not only that the defendant committed the charged offense, but also the nonexistence of the affirmative defense. In this case, the jury had to agree unanimously as to the applicability of either the provocation or initial aggressor exception to self-defense. Accordingly, the trial court abused its discretion in permitting the prosecution to prove felony menacing without instructing the jury that it must unanimously agree on which exception to self-defense it relied. Further, the juror's question suggested that some jurors may have believed defendant was the initial aggressor, while others may have believed that he goaded members of the bachelor party into fighting with him. Accordingly, the error was not harmless beyond a reasonable doubt and the menacing conviction cannot stand. Defendant also contended that the trial court erred in admitting as res gestae evidence an incident that took place inside the strip club before the altercation at issue. The evidence explained why defendant left the strip club and gave the jury some idea of why he verbally confronted the bachelor party members in the parking lot, and thus helped the jury understand the circumstances surrounding the charged offenses. The trial court did not abuse its discretion in concluding that defendant's conduct in the strip club contextualized the altercation in the parking lot. The second degree assault conviction was affirmed. The felony menacing judgment was reversed and the case was remanded for a new trial on this conviction.

Defendant and his fellow gang member Flores went to a house where a known drug dealer was staying. For reasons that are unclear, Flores shouted at the drug dealer and then shot and killed him and two juveniles who worked for him. Defendant and Flores then took from the house guns, a toolbox, and a curling iron box thought to contain money and eventually left the house. When police arrested defendant, the gun used in the murders fell out of his pants. A jury found defendant guilty of aggravated robbery and three counts of accessory to first degree murder. On appeal, defendant argued that the district court erred by denying his motion to suppress the video-recorded statements he made after he invoked his right to counsel because the detectives didn't honor his request. A defendant who is being interrogated by a law enforcement officer may revoke his or her request for an attorney by reinitiating discussion about the investigation immediately after having made the request. Here, defendant invoked his right to counsel and the detectives stopped questioning him. But defendant immediately continued the conversation, volunteering general information about the incident and indicating a willingness to discuss it. Therefore, the totality of the circumstances indicates that defendant knowingly and intelligently waived his previously invoked right to counsel, and the district court did not err in denying his motion to suppress. Defendant next contended that the district court erred by failing to instruct the jury on theft as a lesser nonincluded offense of aggravated robbery. Given the undisputed evidence showing the use of deadly force, the district court concluded that there was no rational basis for defendant's requested theft instruction, and it correctly denied the request. Defendant also contended that he was entitled to an instruction on the affirmative defense of duress for the aggravated robbery counts because there was credible evidence showing a specific and imminent threat that Flores would harm him. However, there was no evidence to support a finding that Flores threatened defendant in the house or elsewhere. Therefore, the district court didn't err in refusing to instruct the jury on the affirmative defense. Lastly, defendant contended that prosecutorial misconduct during closing argument required reversal because the prosecutor improperly appealed to the sympathy of the jury and misstated the law of complicity. Although the prosecutor showed pictures of the victims to the jury, nothing indicated that the prosecutor's statements were calculated to inflame the passions or prejudice of the jurors or ask them to determine guilt based on emotion rather than evidence. Additionally, the prosecutor didn't misstate the law of complicity to the jury. Therefore, there was no prosecutorial misconduct. The judgment was affirmed.

Claimant is a firefighter for the City and County of Denver (the City). In July 2013, he was diagnosed with cancer, and on July 24, 2013, he advised the City of his cancer diagnosis and asserted his belief that the melanoma was related to or caused by his work as a City firefighter. Claimant filed an application for hearing on October 6, 2017, seeking medical and temporary total disability benefits. The City admitted compensability, but asserted a statute of limitations defense, arguing that the claim was barred because claimant filed his application more than four years after learning of his melanoma and reporting it to the City. A panel of the Industrial Claim Appeals Office (Panel) agreed with the City, and the claim was dismissed as time barred. On appeal, claimant contended that the Panel misinterpreted the applicable statute of limitations, CRS § 8-43-103(2). He argued that the City had adequate notice of his intent to pursue compensation through the Division of Workers' Compensation's (Division) assignment of a claim number to the case, the City's filing of certain forms, and his filing of several documents. CRS § 8-43-103(2) requires a claimant seeking workers' compensation to file a "notice claiming compensation" within two years of discovering the work-related nature of the claimant's injuries, or within three years if the claimant can establish a reasonable excuse for late filing and the employer suffered no prejudice as a result. The Division's assignment of a claim number does not satisfy a claimant's obligation to notify the Division and the employer of his or her intent to seek compensation, and none of the documents claimant points to specifies that claimant was seeking compensation as that term is defined in CRS § 8-43-103. Based on claimant's admission that he knew in 2013 that his firefighting duties may have caused his melanoma, he needed to file his claim by 2015 to comply with the two-year statute of limitations, or by 2016 if he could establish a reasonable excuse for failing to file within two years. Because claimant did not file his application for a hearing with the Division until October 2017, his claim was barred. Claimant also argued that the firefighter cancer presumption statute, CRS § 8-41-209, does not have a statute of limitations, and the Panel frustrated the legislature's intent by imposing a limit on firefighters. By its express language, CRS § 8-43-103(2) makes clear that, with the exception of certain injuries caused by radioactive materials, it applies to all claims for compensation and benefits under CRS title 8, articles 40 to 47. Thus, the Panel did not violate the Act's legislative declaration. Claimant next contended that the City should have been required to show prejudice before his claim was dismissed as time barred. Contrary to claimant's assertion, this provision only applies when a claimant files a claim after the two-year statute of limitations has expired but before a third year has elapsed. Claimant filed outside the three-year limit, so the City was not required to show prejudice. Lastly, claimant contended that the City should have been estopped from asserting a statute of limitations defense because the notice of contest form it filed "informed [claimant] that the only requirement for his moving forward with his claim was to apply for hearing." Claimant failed to prove the elements of equitable estoppel, and this language did not estop the City from raising the statute of limitations. Further, claimant implicitly conceded that his decision to file his application for hearing after the statute of limitations had expired was unrelated to the advisement addressing expedited hearings in the City's notice of contest form. The order was affirmed.

EAGLE-Net was formed to deploy and operate a broadband Internet network, funded by a federal grant, to provide rural schoolchildren with Internet access. Affiniti Colorado, LLC is a limited liability company that provides broadband technology to rural communities. It negotiated and executed a management agreement with EAGLE-Net, based on an Opinion Letter provided by Fellman, acting as EAGLE-Net's general counsel. Under the agreement's terms, Affiniti agreed to manage EAGLE-Net's network and to provide capital funding for the project in exchange, in part, for EAGLE-Net's agreement to grant Affiniti a security interest in its assets. Affiniti later sued EAGLE-Net for breach of the agreement and obtained a judgment. Due to a depletion of assets, EAGLE-Net dissolved and ceased to exist, and Fellman no longer represented EAGLE-Net. Affiniti then brought a negligent misrepresentation action against Fellman premised on alleged misrepresentations in the Opinion Letter, and the court approved discovery of attorney-client communications between Fellman and EAGLE-Net. On interlocutory appeal under C.A.R. 4.2, Fellman challenged the court's discovery ruling, claiming that the attorney-client privilege survives the dissolution of a corporation. The attorney-client privilege does not survive a corporation's dissolution when (1) no one with the authority to assert or waive the privilege remains, and (2) there are no ongoing post-dissolution proceedings. Here, the record supports the district court's finding that EAGLE-Net is a dissolved corporation with no management to act on its behalf and Fellman lacks the authority to invoke the privilege. The order was affirmed.

In 2005, a developer purchased 12.5 acres of real property adjacent to the Buffalo Run Golf Course in Commerce City (the Property) through FD Interests, LLC (FDI) and Fairways Land, LLC for a residential development of patio homes. The developer carried out the project through several entities: FDI Fairways Builders, Inc. (Builders) Buffalo Run Fairways, LLC (BRF) and Fairways Homes, LLC (Homes) (collectively, the Developer Entities). In January 2006, Builders recorded the "Amended and Restated Declaration of Covenants, Conditions and Restrictions for Fairways at Buffalo Run Homeowners Association, Inc." (the CCR), which created the homeowner's association (HOA) for the common interest community, "The Fairways at Buffalo Run." As required by CRS § 38-33.3-205(1)(h), the CCR set a deadline for development activity, which provided that development rights would expire if there was a gap of more than five years between construction projects. Development of the Property began after the CCR was recorded, but construction stalled during the Great Recession. On December 31, 2009, the Developer Entities recorded their most recent supplemental declaration, thereby starting the five-year clock on the development deadline. When the Developer Entities were ready to resume construction, the time limit to develop the Property had expired. After development began again in January 2016, the HOA blocked the developers from entering the Property. The Developer Entities sued the HOA, seeking, among other things, a declaratory judgment that FDI and Homes owned the undeveloped portion of the property. The HOA and the unit owners, who were HOA members, filed counterclaims for a declaratory judgment determining ownership of the undeveloped portion of the Property and reformation of the CCR and other documents governing the common interest community. The trial court concluded that the CCR encompassed the entire Property when the community was established, including both the developed and undeveloped portions. But after identifying inconsistencies in the Property's chain of title, the court reformed the CCR by adding BRF to the CCR's signature line, because despite its sole ownership of the Property at the time, it had not executed the CCR. The court reasoned that this reformation would cure the title defects. On appeal, the Developer Entities argued that the trial court incorrectly interpreted the CCR because the undeveloped portions of the Property were never annexed into the common interest community and are therefore not subject to the CCR. Here, Exhibit A to the CCR identified the entire Property as belonging to the community from its creation. Therefore, the entirety of the Property, including both the developed and undeveloped portions, was encumbered by the CCR at the time the community was formed, and the trial court correctly interpreted the CCR. The Developer Entities also contended that the trial court lacked the power to reform the CCR by adding BRF as a signatory because equity may not be employed to cure defects in a declaration to conform with the parties' intent. Here, CCR section 1.1 affirmatively stated that Builders owned the Property, even though BRF did. Because the CCR's Exhibit A encumbers the entire Property, and given the parties' general historical compliance with the CCR's requirements, the inaccuracy in CCR section 1.1 is an insubstantial failure and thus does not affect the marketability and security of the titles of the individual unit owners or the Property as a whole. Because this interpretation of the CCR resolves any concerns created by the discrepancies between the statements in the CCR and the actual chain of title, reformation was unnecessary, and the trial court erred by acting in equity and adding BRF to the signature line of the CCR. However, this error was harmless because it did not affect the substantial rights of the parties. The Developer Entities further argued that the trial court erred by ordering FDI to convey the Property's roads to the HOA. Their argument relied on a dedication on the final plat recorded that has language granting Commerce City easements for public use. However, there is no record evidence that Commerce City was ever offered or accepted this public dedication, so no public right was created in the Property's roads. Because the Property's roads are not public roads and the CCR designated them as "Common Elements" in the common interest community, the trial court did not err in conveying the roads to the HOA. The judgment was affirmed. The case was remanded for the trial court to determine the HOA's reasonable attorney fees and award that amount to it against the Developer Entities and, in its discretion, to address the HOA's request for costs.