Defendant and C.A. attended the same party. C.A. alleges that she took shots of alcohol and remembers nothing after that until she woke up with no pants on with defendant attempting to have sex with her. Defendant claims he had consensual sex with C.A. and when she told him she didn’t want to have sex again, he left. Defendant was charged with two counts of sexual assault. The trial court denied defense counsel’s challenge for cause as to Juror S, and a jury found defendant guilty of sexual assault, victim incapable of appraising conduct.

On appeal, defendant contended that the trial court erroneously denied his challenge for cause to Juror S. Juror S had disclosed on her questionnaire that she was molested by a family member when she was young and her father had not believed her allegation. After lengthy voir dire by defense counsel, the prosecution, and the judge, Juror S was still unsure of her ability to be a fair and impartial juror. The trial court found that Juror S could hold the prosecution to its burden of proof and concluded that she should not be removed unless she would credit the victim no matter what the rest of the evidence established. However, a prospective juror does not need to unequivocally state her partiality for one side to be deemed unfit to serve on a jury. Accordingly, the court erred in denying the challenge for cause.

Defendant had an altercation with the victim and the victim’s brother. Defendant shot the victim six times with a pistol and injured him, and he hit the victim’s brother over the head with the pistol. The issue at trial was whether defendant acted in self-defense. The jury acquitted defendant of attempted first degree murder but convicted him of attempted second degree murder and first degree assault and menacing.

On appeal, defendant contended that the trial court reversibly erred in rejecting proposed self-defense instructions on apparent necessity and defense against multiple assailants. Although the stock jury instruction on self-defense was not sufficient in this case, the supplemental instruction cured any deficiency by adequately informing the jury that it must consider the reasonableness of defendant’s beliefs and actions under the totality of the circumstances. Accordingly, the trial court did not err by declining to give the proposed self-defense instructions.

Defendant also argued that the trial court should not have given an instruction on the initial aggressor or provocation exceptions to defendant’s self-defense. In the alternative, defendant argued that the court should have instructed the jury that they must unanimously agree on which exception, if either, was applicable. Here, there was sufficient evidence that defendant may have initiated the physical conflict by using or threatening the imminent use of unlawful physical force, so the initial aggressor instruction was warranted. Further, defendant’s statement “If you want to [expletive] with me, try it” could have been interpreted as a warning or invitation provoking an attack. Therefore, there was sufficient evidence to instruct the jury on the provocation exception. Finally, the exceptions are not mutually exclusive, and jury unanimity is not required with respect to alternate means of satisfying an element of an offense. Thus, the trial court did not err.

The judgment of conviction was affirmed.

The State charged defendant with one count of second degree assault and six counts of child abuse. The prosecutor and defendant negotiated a plea agreement allowing defendant to plead guilty to the assault charge in exchange for dismissal of the remaining charges. The parties also agreed to a suspended prison sentence conditioned on defendant’s successful completion of probation. The court accepted the agreement. Defendant thereafter missed her probation intake appointment, and the probation department filed a complaint recommending revocation of probation. The court believed it did not have discretion to continue probation and sentenced defendant to six years in the Department of Corrections pursuant to the plea agreement.

On appeal, defendant contended that the sentencing court erred by finding that it lacked the discretion to impose a sentence other than the suspended sentence, upon finding a probation violation. A sentencing court, after accepting a plea agreement and imposing a suspended prison sentence conditioned on the successful completion of probation, has discretion to continue probation, revoke probation, or impose any sentence that it might originally have imposed. Further, in those circumstances, a sentencing court’s decision not to impose a suspended sentence does not breach the parties’ plea agreement. Accordingly, the sentencing court erred.

J.P. observed defendant’s truck straddling lanes and speeding up and slowing down erratically. J.P. called 911 to report his observations and followed the truck to a 7-Eleven. After defendant went into the store, J.P approached a sheriff’s deputy who had just pulled into the parking lot. J.P. told the deputy what he had seen, and the deputy approached defendant. The deputy noticed that defendant’s eyes were red and watery, he smelled of alcohol, and his speech was “thick-tongued.” Defendant made inconsistent statements about whether he had driven to the store or his girlfriend had driven him there and told the officer that he had consumed several mixed drinks the night before. Another deputy arrived and administered roadside field sobriety tests, including the horizontal gaze nystagmus (HGN) test. Defendant failed the roadside tests and was arrested. Defendant was originally charged with driving under the influence (DUI) and driving under restraint. He went to trial on the DUI charge and a jury convicted him of the lesser included driving while ability impaired (DWAI) offense. The court then determined that defendant had at least three prior alcohol-related driving convictions and sentenced him for felony DWAI.

On appeal, defendant contended that the district court erred by finding that he had at least three prior alcohol-related driving convictions by a preponderance of the evidence rather than submitting the issue to the jury for it to decide beyond a reasonable doubt. Defendant’s prior convictions are elements of the crime, so reversal is required.

Defendant also contended that his statements to the deputy at the scene should have been suppressed because they were involuntary. Defendant asserted that his statements were coerced because more than one deputy was present, the two deputies stood close to him, the encounter lasted 20 to 30 minutes, he wasn’t given a Miranda advisement, and he wasn’t free to leave. However, based on the totality of the circumstances, these facts don’t constitute coercion. Therefore, defendant’s will wasn’t overborne by coercive police conduct and his statements were voluntary.

Defendant also argued that the district court erred by refusing to hold a Shreck hearing on the science, reliability, and margin of error of the HGN test and the deputy’s expertise on those issues. Evidence of HGN test results is admissible as evidence of impairment if offered through a qualified expert witness. Here, the deputy was sufficiently qualified to testify about the administration and interpretation of the test, and there was overwhelming evidence against defendant independent of the HGN test results. Therefore, the court did not abuse its discretion in denying defendant’s request for a Shreck hearing or admitting the evidence at trial.

The judgment was reversed and the case was remanded for proceedings consistent with this opinion.

State Farm Mutual Automobile Insurance Co. (State Farm) insured Griggs under an auto insurance policy (the policy). Griggs injured Goddard and two others in a four-vehicle accident. Goddard and the other injured persons each made a claim under the policy. State Farm made an offer to settle Goddard’s claim, but Goddard did not respond. State Farm settled with the other injured persons.

In the meantime, Goddard sued Griggs. State Farm did not learn of the lawsuit until after its settlement offer. State Farm hired an attorney to defend Griggs against Goddard’s claims. Griggs and Goddard entered into an agreement whereby Griggs admitted liability, agreed to have Goddard’s damages determined in arbitration, and assigned any claims he might have against State Farm to Goddard (the agreement). An arbitrator entered an award against Griggs for $837,193.36. After arbitration, State Farm sued Griggs seeking a declaration that Griggs breached his insurance contract by entering into the agreement with Goddard. Goddard brought a bad faith counterclaim against State Farm. A jury returned a verdict in favor of State Farm.

            On appeal, Goddard argued that the district court erred by denying her motion for directed verdict on State Farm’s breach of contract claim because the claim raised exclusively legal questions and it failed on the facts. Whether there has been a breach of contract is a question of fact to be determined by a jury, absent undisputed evidence that compels a jury to find one way or the other. Before an insured is justified in stipulating to a judgment and assigning its claims against its insurer to a third-party claimant, it must first appear that the insurer has unreasonably refused to defend the insured or to settle the claim within policy limits. And whether an insurer has acted unreasonably is a question of fact. Here, whether State Farm appeared to have acted unreasonably in denying Goddard’s policy-limits settlement offer and, consequently, whether Griggs breached the insurance contract by entering into the assignment agreement were questions of fact to be determined by the jury. Further, the relevant facts were vigorously disputed at trial, and a jury found in State Farm’s favor. Therefore, the district court did not err in denying the directed verdict motion.

            Goddard further contended that it was error to deny her motion for a directed verdict on State Farm’s collusion affirmative defense because the evidence was insufficient to allow the jury to consider it. Even if this was error, any such error was harmless, because the jury found that Goddard had not proved her counterclaim for bad faith breach of insurance contract and thus did not reach the merits of the collusion defense.

            Lastly, Goddard argued that the district court erred by admitting her attorney fees agreement because it was irrelevant and prejudicial. However, the fee agreement was relevant to the causation element of Goddard’s counterclaim for bad faith breach of insurance contract and to State Farm’s collusion affirmative defense, and it was not unfairly prejudicial. Accordingly, the court did not abuse its discretion in admitting it. Further, there was no evidence in the record that other similar firm agreements were admitted, and to the extent Goddard contended that the district court erred by admitting one witness’s testimony about assignment agreements from another case, she did not preserve the issue.

            The judgment was affirmed.

Husband and wife were common law married for over 30 years. Wife petitioned for divorce, and the district court issued temporary orders awarding temporary maintenance to wife of $12,000 per month retroactive to the commencement of the parties’ dissolution proceeding. This resulted in husband owing $144,000 in arrearages.

            On appeal, husband argued that the district court lacked authority to award retroactive temporary maintenance. However, the legislature’s 2014 reenactment of the maintenance statute gave broad authority to the district court to award temporary maintenance in its discretion, including retroactively. Further, the record supports the court’s determination that wife could not meet her reasonable needs as established during the marriage and an award of retroactive temporary maintenance was appropriate.

            Husband also argued that the district court did not make sufficient findings under CRS § 14-10-114(3) or (4) to support its award of $12,000 per month. While the district court made certain required statutory findings, it made insufficient findings on wife’s reasonable financial needs and whether $12,000 per month would meet those needs, and it did not make findings related to husband’s payment of shared expenses and debts or other required statutory factors.

The award of retroactive temporary maintenance was reversed and the case was remanded for additional findings.

Tug Hill Marcellus LLC, Radler 2000 LP, and Chief Exploration & Development LLC (collectively, Sellers) entered into substantially similar agreements with BKV Chelsea LLC (BKV) for the sale of interests in oil, gas, and mineral leases and related assets. The agreements included identical arbitration provisions. BKV alleged that Sellers breached their agreements and served each Seller with a separate demand for arbitration. Sellers proposed that the arbitration proceedings be consolidated, but BKV refused. Sellers petitioned the district court to consolidate the three arbitration proceedings. The district court entered an order denying Sellers’ petition on grounds that the agreements’ arbitration provisions did not indicate that BKV had consented in advance to consolidate the separate arbitration proceedings.

            Sellers appealed, and BKV moved to dismiss for lack of jurisdiction. Under CRS § 13-22-228(1), a party may only appeal two types of arbitration-related court orders entered before an arbitrator enters an award, an order denying a motion to compel arbitration, and an order granting a motion to stay arbitration. An order denying a motion to consolidate separate arbitration proceedings is not appealable because it is not one of the listed pre-award orders. Further, contrary to Sellers’ argument, the district court’s order is not an appealable final judgment. Accordingly, the Court of Appeals lacked jurisdiction to hear the appeal.

            The appeal was dismissed.