Latest 3 Cases: Colorado in the Interest of B.D. (Constitutional Law), Colorado v. Bott (Constitutional Law), Linnebur v. Colorado (Constitutional ...

Joe, Joey, Joe-Baby, Sexist: Where’s Your Imposter Syndrome?

JOANNA L. GROSSMAN

SMU Dedman School of Law professor Joanna L. Grossman responds to a recent Wall Street Journal op-ed criticizing soon-to-be First Lady Jill Biden for using the academic title she earned. Professor Grossman dissects the op-ed, penned by a retired lecturer at Northwestern University, and explains the deep and pervasive sexism behind it.

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Colorado in the Interest of B.D.

Citation: 2020 CO 87

Opinion Date: December 14, 2020

Judge: William W. Hood, III

Areas of Law: Constitutional Law, Criminal Law, Juvenile Law

Several boys broke into two homes, one of which was owned by a man old enough to be considered an “at-risk” victim. When that man returned home, he happened upon one of the boys holding the "spoils of an ill-conceived, juvenile burglary." The others, including B.D., remained outside, oblivious to the elderly man’s arrival. All the boys quickly fled. By this opinion, the Colorado Supreme Court addressed the scope of complicitor liability for a fact that aggravates the punishment for theft; namely, an at-risk victim’s presence. Based on the plain language of the controlling statutes, the Supreme Court concluded that a complicitor need not be aware that an at-risk victim was present because it was a strict liability sentence enhancer and not an element of the offense. Accordingly, the Court reversed the judgment of the court of appeals and remanded the case for the district court to reinstate the adjudication and sentence.

Colorado v. Bott

Citation: 2020 CO 86

Opinion Date: December 14, 2020

Judge: Coats

Areas of Law: Constitutional Law, Criminal Law

The Court of Appeals vacated eleven of Joshua Bott's twelve convictions for sexual exploitation of a child by possession of sexually exploitative material. Relying on language from the statute's legislative declaration and appellate decisional law predating then-current amendments to the statute, the trial court denied Bott’s motion to dismiss all but one of these exploitation counts as multiplicitous, finding that the legislature intended to permit conviction for each single incident of victimization. The court of appeals disagreed, finding instead that the applicable unit of prosecution was determined by the legislature when it chose to amend the statute to designate the act of possessing more than twenty different items qualifying as sexually exploitative material a class 4 felony. Accordingly, the court of appeals held Bott’s conviction of multiple class 4 felonies for possessing separate items numbering multiple times greater than twenty violated his constitutional protection against being subjected to jeopardy more than once for the same crime. Finding that the statute at issue "makes clear" the legislature's intent that possession of any number of items exceeding twenty that qualified as sexually exploitative material constituted a single offense. Accordingly, the appellate court's judgment was affirmed.

Linnebur v. Colorado

Citation: 2020 CO 79M

Opinion Date: December 14, 2020

Judge: Hart

Areas of Law: Constitutional Law, Criminal Law

In March 2016, law enforcement contacted Charles Linnebur after receiving a call that he had crashed his vehicle into a fence and might be driving under the influence of alcohol. Although he initially denied that he had been drinking, Linnebur eventually admitted that he had consumed whiskey that day. He was arrested, and a blood test revealed that his blood alcohol level was well above the legal limit. The State charged Linnebur with DUI and DUI per se, and sought felony convictions under sections 42-4-1301(1)(a) and (2)(a), C.R.S. (2020), which provided that DUI and DUI per se were felonies if they “occurred after three or more prior convictions” for, among other things, DUI, DUI per se, or DWAI. Prior to trial, Linnebur filed a motion in limine arguing that the fact of his prior convictions was a substantive element of felony DUI that had to be found by a jury beyond a reasonable doubt. The trial court denied the motion, concluding instead that Linnebur’s prior convictions were “merely sentence enhancers or aggravating factors” and could be proved to the court by a preponderance of the evidence. The Colorado Supreme Court concluded the fact of prior convictions as an element of the crime had to be proved to the jury beyond a reasonable doubt, not as a sentence enhancer, which a judge might find by a preponderance of the evidence. Because the court of appeals erred in arriving at the opposite conclusion, judgment was reversed and the matter remanded for further proceedings.