The Colorado Supreme Court announced last week that it will analyze whether a person can be convicted of attempting to influence a public servant when they enlist another party to perform the deceit, and whether vehicle rental companies can be held legally liable as insurers when they choose to offer insurance policies.

At least three of the court’s seven members must agree to hear a case on appeal.

The justices also will decide whether the state’s Court of Appeals correctly identified when experts can testify to child victims’ truthfulness, whether a trial judge improperly excluded evidence of a murder defendant’s mental illness and whether a man was unconstitutionally convicted of separate offenses for the same criminal conduct.

Opining on other witnesses

Gustavo Lopez stood trial in Boulder County in 2019 for multiple child sex assault-related charges against three victims who were relatives of his. Jurors found him guilty and he received an indefinite prison sentence of at least 50 years.

There was no physical evidence of the crimes and the victims’ stories had many inconsistencies. Jurors also heard that two of the children wanted to live with their grandmother, who did not like Lopez.

During trial, the defense suggested family members can “influence” children into believing “something that’s not true.” Lopez’s attorneys also suggested the victims’ stories changed during the time spent with their grandmother.

Jurors heard testimony from Kim Grimm, a forensic interviewer who talked to two of the victims in recorded conversations. She described multiple tactics professionals use to discern if a child has been coached, including asking for details about their experience. At the end of Grimm’s testimony, the jury had a question for her: “In your expert opinion,” the question read, were the children’s behaviors “consistent with interviews where coaching was present?”

Over the defense’s objection, the trial judge allowed her to answer. Grimm said she did not “feel like I saw huge red flags with that or anything.”

On appeal, a three-judge panel for the Court of Appeals acknowledged witnesses may not testify about others’ truthfulness. However, wrote Judge Elizabeth L. Harris for herself and Judge Lino S. Lipinsky de Orlov, the defense had “opened the door” by arguing the victims were influenced by an adult.

Although Harris stressed the ruling was “narrow,” Judge Timothy J. Schutz dissented, believing the panel had itself opened the door to experts vouching for victims’ credibility in numerous sex abuse cases.

“In the typical case involving allegations of sex assault on a child, the defendant must either contest the veracity of the alleged victim or effectively confess,” Schutz wrote. “But the logical extension of a broad ‘opening the door’ rationale would permit an expert to opine whether the accusing witness was being truthful every time a defendant suggests that an accuser was coached.”

The Supreme Court agreed to review whether the Court of Appeals correctly deemed such testimony acceptable.

The case is Lopez v. People.

Who needs to deceive?

Michael Thomas Hupke was on parole when law enforcement arrested him for unrelated charges. In jail, Hupke talked to his mother over the phone, asking her to contact his parole officer about getting him released. However, Hupke’s parole terms required him to get permission from his parole officer before changing addresses, and Hupke had recently moved apartments in Aurora without doing so.

Hupke, on the recorded jail call, asked his mother to tell the parole officer he was in the process of moving or was planning to move.

A Mesa County jury subsequently convicted Hupke of attempting to influence a public servant, a felony that requires the intent to alter a public official’s actions “by means of deceit.“

On appeal, Hupke challenged his conviction on the grounds that he was not the one who deceived anybody. Rather, his mom did.

A Court of Appeals panel disagreed, believing the law criminalized the act of using “some sort of plan or method” to deceive.

“Thus, we conclude, contrary to Hupke’s argument, that the statute does not require that the offender commit the deception themself,” wrote Judge Rebecca R. Freyre. 

Hupke appealed to the Supreme Court. In an unusual move, the Colorado Attorney General’s Office indicated its support for a review. Both sides argued the Court of Appeals had created uncertainty because the prior year, a different three-judge panel ruled the opposite way — that the law criminalizes a person’s own deceit, not a third party’s. Adding to the confusion, Freyre sat on both panels and signed on to the divergent outcomes.

The Supreme Court will review the issue.

The case is Hupke v. People.

The excluded mental health evidence

In 2015, Maria Laida Day ran over her boyfriend, John Martinez, in Leadville. She fled the scene in her vehicle and Martinez later died of his injuries. After a lengthy delay for mental health issues and after the first trial ended in a mistrial, jurors found Day guilty of second-degree murder and other offenses in 2020.

Between the first and second trials, the prosecution sought to bar the testimony of the defense’s expert witness, a doctor who opined Day’s mental illness might have accounted for Day’s behavior on the day of the hit-and-run. District Court Judge Catherine J. Cheroutes granted the request, reasoning Day failed to cooperate with a state-provided mental health evaluation.

A Court of Appeals panel concluded most of the expert’s opinions should have been allowed at Day’s second trial. Judge Terry Fox noted Day’s noncooperation with the state mental hospital was actually attributable to lengthy delays, mental deterioration in jail and the facility’s failure to follow the trial judge’s orders.

“While the record reveals that the court and the parties used their best efforts to have an evaluation done,” she wrote, “we cannot hold (the Colorado Mental Health Hospital in Pueblo’s) failure to complete the evaluation against Day.”

The government appealed to the Supreme Court, arguing the panel was mistaken in finding most of the expert’s testimony should have been allowed. The court agreed to hear that issue, and also elected to reopen the question of Day’s noncooperation with her court-ordered mental health evaluation.

The case is People v. Day.

One crime, two penalties

Colorado courts have interpreted the constitutional guarantee of equal protection to forbid the state from creating two laws that criminalize identical conduct, but impose a harsher consequence for one. The Court of Appeals determined Javier Vega Dominguez’s dual convictions for attempt to patronize a prostituted child and attempted inducement of child prostitution violated that prohibition.

In the appellate panel’s reading of the case, both of Vega Dominguez’s convictions in El Paso County relied upon his attempt to pay a 15-year-old boy for sexual acts. In reality, Vega Dominguez’s offers by text message were part of an undercover police operation, with an officer pretending to be the boy.

Although attempted patronizing and attempted inducement are the same class of felony, attempted patronizing carries a much harsher penalty — an indefinite prison sentence of up to life behind bars. The panel reviewing Vega Dominguez’s case noted he was serving up to life in prison for one offense and only four years for the other, despite the underlying crime being identical.

“We therefore conclude that Vega Dominguez’s conviction for attempted patronizing a prostituted child violates his right to equal protection,” wrote Judge Ted C. Tow III.

The Supreme Court will review whether the panel correctly overturned Vega Dominguez’s more serious conviction. It will also analyze whether it was problematic that the jury instructions for Vega Dominguez’s trial neglected to include a mental state for one of the other child prostitution charges.

The case is People v. Vega Dominguez.

Is a car rental company an insurer?

After a hit-and-run driver caused two passengers to sustain more than $700,000 in medical bills, they sought payment from the company that owned the car they were riding in, Hertz. The driver, upon renting the vehicle, opted to purchase insurance covering injuries up to $1 million and the injured passengers alleged Hertz breached that contract.

Hertz insisted it was not the insurer, but the entity being insured. By purchasing extra coverage, the driver and the passengers similarly became insured by Hertz’s own insurer.

But the Court of Appeals concluded nothing in state law prevented car rental companies from also being recognized as insurance companies.

“Accordingly, although Hertz was not required to offer (insurance) coverage to its customers, it did. And by offering that and other coverages to customers, it could qualify as an insurer,” wrote Judge David J. Richman.

On appeal to the Supreme Court, Hertz maintained it was a car rental company, not an insurer. The trade associations representing car and truck rental companies also submitted supportive briefs warning of the consequences to consumers if the Court of Appeals’ decision stood and rental agencies become liable for inadequate insurance payouts.

“Companies will be left with two choices: pass those costs on to Coloradans (and increase the cost of renting a moving van or truck) or discontinue incidental insurance coverage. Coloradans deserve better,” wrote the Truck Renting and Leasing Association.

The plaintiffs, meanwhile, encouraged the Supreme Court to reject the appeal.

“Far from announcing new law, the Court of Appeals appropriately (and unanimously) held that an entity acting like an insurer can be held liable like an insurer,” wrote their attorneys.

The Supreme Court will review the appellate panel’s conclusions.

The case is Hertz Corporation v. Babayev et al.