Colorado Court of Appeals 9-1-11 criminal law decision

People v. Boles            Internet Luring / Overbreadth and Vague

Facts: A jury convicted Mr. Boles of attempted Internet Sexual Exploitation of a Child, Internet Luring, and Obscenity. Because cops ain’t got enough to do, they conjure up crap like these internet cases. In these cases, police 'heroically' pretend, lie, and fraudulently assume the identity of some underage girl in an ADULT chat room – not the Disney chat room, not the Nickelodeon chat room, and not even the MTV chat room – an adult chat room where everyone pretends to be something they are not (do those cable channels really have chat rooms?) Further, these scam artist cops either entrap or ensnare folks into sending pictures of themselves nude, encourage the men to meet the fake underage girl, or encourage the men to prompt the girls to send pictures. Mr. Boles ran the defense of role playing - meaning that he knew the person was not really a teenage hussy, but instead an adult. Unfortunately, the detective claimed and a jury bought that Mr. Boles was not role-playing, and convicted him. Mr. Boles challenged the constitutionality of both the Internet Luring statute and the Obscenity statute.

Issue: Whether Colorado’s Internet Luring statute is overbroad, and thus unconstitutional?

Held: No.

Reasoning: The Court of Appeals cited the rule on overbroad First Amendment challenges by rote, “In a facial challenge asserting that a statute is unconstitutional under the First Amendment, however, a showing that the law is overbroad may be sufficient to invalidate its enforcement. Nevertheless, a statute is unconstitutionally overbroad only if it includes within its proscriptions a substantial amount of constitutionally protected speech.”

Thwarting the overbreadth challenge, the Court of Appeals wrote, “Here, because section 18–3–306(1) requires an actor, in connection with a description of explicit sexual conduct, to make a statement ‘persuading or inviting’ the minor to meet, it does not authorize criminal charges based solely on speech.”

Issue: Whether as applied to Mr. Boles, the Internet Luring statute is unconstitutional in that he made no obscene statements to the fake kid?

Held: No.

Reasoning: Simply put, the Court of Appeals found that the obscenity standard under the First Amendment is lessened when it involves some clown pretending to be a kid. Thus, fake kid plus description to the fake kid about explicit sexual conduct establishes obscene language unprotected under the First Amendment.

Issue: Whether the Internet Luring statute is vague, and thus unconstitutional?

Held: No.

Reasoning: Mr. Boles argued that the statutory language “in connection with that description” made the statute vague. The Court of Appeals disagreed, “The grammatical construction of this language is that the statement can be under the guise of ‘any purpose,’ so long as it is made ‘in connection with’ the description of explicit sexual conduct. Therefore, contrary to defendant's argument, a person of common intelligence would comprehend what conduct is prohibited by the statute and thus, it is not unconstitutionally vague.”

Issue: Whether the Internet Luring statute violated the dormant Commerce Clause?

Held: Nope.

Reasoning: First you gotta hand it to the appellate lawyer, Andrew T. Bethart, for not only coming up a Commerce Clause challenge, but jn general, for putting the Court of Appeals through the grinder and forcing it to address these arguments. The rule for a dormant Commerce Clause challenge, as stated by the Court of Appeals, “The negative or dormant implication of the Commerce Clause prohibits the states, through taxation or regulation, from discriminating against or unduly burdening interstate commerce.” And, unfortunately, Colorado’s Internet Luring statute does not discriminate against or unduly burned interstate commerce because the Court could not “ascertain any legitimate commerce that would be derived from these communications.”

Issue: Whether the Obscenity statute is unconstitutional?

Held: No.

Reasoning: “Here, in our view, a person of common intelligence, when reading ‘promote’ in the context of the rest of the statute and in light of the definition provided by the legislature, could readily understand its meaning and application” Thus, the statute is not vague.

Issue: Whether the evidence was sufficient to convict Mr. Boles attempted Internet Exploitation of a Child?

Held: Yes.

Reasoning: Despite this being an adult chat room, the Court found that because Mr. Boles did not specify he was role playing with the fake kid, that he was told many times the age of the fake teenager, and because Mr. Boles asked her to touch herself, the evidence was indeed sufficient.

Colorado Court of Appeals forfeiture decision from 8-18-11 People v. $ 11,200.00 U.S. Currency

People v. $ 11,200.00 U.S. Currency            Forfeiture

Facts: The police searched Mr. Strand’s home, seized drugs, and the $11,200.00. At a subsequent trial on drug charges, a jury convicted Mr. Strand, but the Court of Appeals reversed. There, the Court of Appeals held that the police violated Mr. Strand’s rights under the Fourth Amendment when they seized the money and drugs from his home (of course, no cajones dictates that the opinion went unpublished). Subsequently, the prosecution filed a motion to dismiss the criminal case. Parallel to the criminal case, the prosecution sought forfeiture of the $11,200.00. The trial court granted the motion, forfeited the money, and the state claims then to have spent the money. The trial court based its forfeiture ruling in part on Mr. Strand’s conviction in the underlying criminal case. However, after the reversal and dismissal of his case, Mr. Strand sought the $11,200.00 back from the government. The trial court granted Mr. Strand’s motion, and the state appealed.

Issue: Whether, under C.R.C.P. Rule 60, the trial court had the authority to reverse a forfeiture order?

Held: Yes.

Reasoning: The Court of Appeals looked Rule 60(4) of the Colorado Rules of Civil Procedure, which states: “the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application…” Specifically, the Court of Appeals found because the trial court based its ruling in part on the conviction, subsequent reversal of that conviction requires the state return the money. Further, the Court of Appeals followed One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702 (1965); and United States v. One Hundred Forty–Nine Thousand Four Hundred Forty–Two & 43/100 Dollars ($149,442.43), 965 F.2d 868, 872 (10th Cir.1992) to hold that the exclusionary rule applies to forfeiture proceedings.

            Other specious arguments by the Attorney General and the government that the Court of Appeals rejected: that because they already spent the money, the state should not be required to return the money; that Mr. Strand did not say he wanted the money back after the trial court granted the forfeiture motion; that Mr. Strand waited an unreasonably long time (3 months) to file his motion to return the money.

Colorado Court of Appeals criminal law decision 8-18-11 People v. Alvarado

People v. Alvarado             Complicity and Supplemental Instructions / Presentence Report and Aggravated Sentences

Facts: A jury convicted Mr. Alvarado of two counts of aggravated robbery and one count of kidnapping. During jury deliberations, the jury posed three questions to the trial court regarding complicity. After the trial court referred the jury back to the original instructions, the jury asked: “On complicity—does someone have to have knowledge of the intent prior to the act being committed or can the person watching the act happen be complicit by observing the act happen know [sic] that at the time the act is occurring that they [sic] are intending to do the act[?]”

The trial court answered with: “The defendant must have had knowledge of the other person's intent to commit all or part of the crime either before or at the time the other person committed all or part of the crime.”

Further, during sentencing, the trial court relied upon the presentence investigation report to justify its sentence. Specifically, that Mr. Alvarado had a pending juvenile case during the commission of these offenses.

Issue: Whether the trial court impermissibly lessened the prosecution’s burden with the supplement instruction on complicity?

Held: No

Reasoning: The Court of Appeals simply found no abuse of discretion. The Court found that the trial court should provide a supplemental instruction unless:

(1) the jury may be adequately informed by directing its attention to some portion of the original instructions;

(2) the request concerns matters not in evidence or questions which do not pertain to the law of the case; or 

(3) the request would call upon the judge to express an opinion upon factual matters that the jury should determine.

Mostly because the jury could not follow the reasonable doubt instruction and continued to machinate about how to convict, the jury kept inquiring about complicity – seemingly, hoping for direction to convict. The trial court provided it with the above instruction. The Court of Appeals held because the defense did not point to any authority that the instruction lessened the prosecution’s burden of proof, the trial court did not abuse its discretion (pretending of course that there would be any on anything so specific such as this instruction). Clearly, the case hinged on when the Mr. Alvarado realized the co-defendant started robbing the place. Apparently, the jury decided that because Mr. Alvarado did not thwart or prevent the co-defendant from carrying through once he saw what was happening, Mr. Alvarado then became a complicitor to the crimes. Utterly unfair.

Issue: Whether the trial court impermissibly relied upon facts in the PSI when sentencing Mr. Alvarado?

Held: No.

Reasoning: The Court of Appeals really did not analyze the issue very well. The Court forgot that the tribunal is an unbiased referee – not a prosecutor. Nevertheless, the Court of Appeals held that because the trial court could easily verify that Mr. Alvarado had a juvenile case pending during the commission of these offenses, the trial court did not abuse its discretion in relying on such facts from the PSI. Contrast that holding with People v. Isaaks, 133 P.3d 1190 (Colo. 2006), where the Colorado Supreme Court held that the trial court abused its discretion relying on facts in the PSI that were not admitted by Mr. Isaaks. Thus, here the trial court acted like a prosecutor, did not make the prosecution prove that the juvenile case was actually pending during the commission of this offense, and Mr. Alvarado never admitted that the juvenile case was pending at the time. The Court of Appeals confused prior convictions with proof of the prior convictions. Unfortunately, the trial court can take into account any prior conviction at sentencing. However, the prosecution still had the burden of proving any prior conviction or pending case. Isaaks, supra. Thus, because Mr. Alvarado never admitted to the pending juvenile case, the trial court abused its discretion. However, the Court of Appeals disagreed, and thankfully, the point is moot because the trial court still sentenced Mr. Alvarado within the presumptive range.