author: Judge METZGER.

text:
    Peter BRUCHA, Plaintiff-Appellant, v. CRUISE AMERICA, INC., a Florida corporation, Defendant, Appellee.
    No. 01CA0057.
    Colorado Court of Appeals, Div. I.
    Dec. 6, 2001.
    Certiorari Denied Sept. 3, 2002.

      Law Offices of Tim LaFrance, Tim A. LaFrance, Durango, CO, for Plaintiff-Appellant.
    Antonio Bates Bernard, P.C., John L. Wheeler, Denver, CO, for Defendant-Appel-lee.
   Opinion by

Judge METZGER.

Plaintiff, Peter Brucha, appeals the judgment that held he was not entitled to personal injury protection (PIP) benefits under his motor vehicle insurance and rental contract with defendant, Cruise America, Inc. We reverse and remand for further proceedings.

Defendant is a self-insured corporation in the business of renting vehicles. On September 25, 1995, plaintiff rented a motor home and four motorcycles from defendant in Las Vegas, Nevada, and was listed as an "authorized driver" in the contract. Not having other insurance, he arranged for insurance coverage with defendant. A week later, on October 2, 1995, while riding one of the rented motorcycles in Durango, plaintiff was injured in an automobile-motoreyele accident. Plaintiff made a claim for PIP benefits under his insurance and rental contract with defendant, but defendant denied liability.

Plaintiff then sued defendant for breach of contract and bad faith breach of contract, and also asserted claims under the Colorado Auto Accident Reparations Act, § 10-4-701, et seq., C.R.8.2001 (the No-Fault Act). Later, the trial court entered summary judgment in his favor on the issue of coverage. On defendant's motion for reconsideration, another judge concluded that, because plaintiff was not the "named insured" under the insurance and rental contract, he was not, entitled to PIP coverage; therefore, it entered summary judgment in defendant's favor. The parties then stipulated to entry of final judgment and the trial court so ordered.

Plaintiff contends the entry of summary judgment for defendant on the coverage issue was error. He argues that he was the named insured on the insurance and rental contract with defendant covering the rented motor home and, therefore, was entitled to PIP coverage for his motorcycle accident. We agree.

An insurance policy is a contract, and its interpretation is a question of law that we review de novo. See State Farm Mutual Automobile Insurance Co. v. Stein, 940 P.2d 384 (Colo.1997).

One of the purposes of Colorado's No-Fault Act is "to avoid inadequate compensation to vietims of automobile accidents." Section 104-702, C.R.S.2001. See also Metropolitan Property & Casualty Insurance Co. v. Hertz Corp., 981 P.2d 1091 (Colo.1999); Thompson v. Budget Rent-A-Car Systems, Inc., 940 P.2d 987 (Colo.App.1996). The No-Fault Act is to be liberally construed to effectuate its remedial and beneficent purposes. See Metropolitan Property & Casualty Inswrance Co. v. Hertz Corp., supra.

Every insurance policy covering use of a motor vehicle in Colorado, even if it is issued in another state, must provide coverage at least as extensive as the minimum coverage required by §§ 104-706 and 10-4-707, C.R.98.2001. Section 10-4-711(4), C.R.S.2001; see also Ranger v. Fortune Insurance Co., 881 P.2d 394 (Colo.App.1994). Defendant's insurance and rental contract complied with those requirements.

Under § 10-4-705(8), C.R.S8.2001, the minimum coverage for motorcycles does not include PIP coverage as set out in § 10-4-706. Therefore, unless a motorcycle owner specifically purchases PIP coverage, he or she cannot recover PIP benefits for an injury incurred while operating his or her own mo-toreycle. Thompson v. Dairyland Insurance Co., 618 P.2d 736 (Colo.App.1980); see also Martinez v. Allstate Insurance Co., 961 P.2d 531 (Colo.App.1997).

However, § 10-4-707(1)(a), C.R.S.2001, mandates PIP coverage for a named insured who is injured while operating a vehicle that does not belong to him or her. See also Brennan v. Farmers Alliance Mutual Insurance Co., 961 P.2d 550 (Colo.App.1998). Mo-toreycles are included in the definition of vehicles for purposes of that section. See § 10-4-707(2), C.R.$.2001' see also DeHerrera v. Sentry Insurance Co., 30 P.3d 167 (Colo.2001).

Thus, as the parties agree, the insurance and rental contract was an insurance contract for purposes of the No-Fault Act. The parties also agree that, if plaintiff was the named insured on the insurance and rental contract for the motor home, he is entitled to PIP coverage for the expenses he incurred in the motorcycle accident.

The trial court relied on Nelson v. Strode Motors, Imc., 198 Colo. 866, 600 P.2d 74 (1979), in determining that plaintiff was not a named insured. In Nelson, the plaintiff was injured in a pedestrian accident that did not involve his rented vehicle. He submitted a claim to the rental company, contending he was the named insured under the automobile rental contract and therefore was entitled to PIP benefits. The supreme court rejected this argument, holding that the policy insured the plaintiff for bodily injuries and property damage incurred only while he was using the rented automobile.

Later, a division of this court relied on Nelson in reasoning that, because an automobile rental contract was a bailment, not an insurance contract, the rental company was not required to provide uninsured motorist coverage. The division held that the rental company was the named insured. Passamano v. Travelers Indemmity Co., 835 P.2d 514 (Colo.App.1991). However, the supreme court rejected this analysis and determined that the rental contract was not merely a bailment but was also a contract of insurance. Therefore, it held, the rental agency was an insurer, and the plaintiff was the named insured for purposes of Colo. Sess. Laws 1988, ch. 92, § 10-4-609(1) at 454, which required insurers to offer uninsured/underinsured motorist coverage. Passamano v. Travelers Indemmity Co., 882 P 2d 1312 (Colo.1994).

While the General Assembly has superseded the Passamano decision by amending § 10-4-609(1), to provide that rental agencies are not required to provide customers the opportunity to purchase or reject optional uninsured/underinsured motorist coverage, Colo. Sess. Laws 1995, ch. 51, § 10-4-609(1)(b) at 148, the issue here concerns PIP coverage, which is compulsory. Section 10-4-705, C.R.S.2001; see Ortiz v. Hawkeye, Security Insurance Co., 971 P.2d 233 (Colo. App.1998). Thus, the Passamano court's holding that the named "authorized driver" in the rental contract is the "named insured" remains viable.

This conclusion is buttressed by the decision in Thompson v. Budget Rent-A-Car Systems, Inc., supra. There, a division of this court concluded the renter was entitled to accept or reject supplemental PIP coverage under § 10-4-710(@)(@a), C.R.S.2001, an option exclusively reserved to the named insured.

Defendant urges us to limit Passamano's holding that a renter is the named insured to situations involving uninsured/underinsured motorist coverage. However, that distinction was rejected by the division in Thompson, which reasoned that the purpose of both uninsured /underinsured motorist coverage and PIP coverage is to "ensure adequate compensation for persons injured in car accidents." Thompson v. Budget Rent-A-Car Systems, Inc., supra, 940 P.2d at 991.

Moreover, Colorado courts have generally rejected the proposition that different rules should apply to PIP coverage. The supreme court in Metropolitan Property & Casualty refused to distinguish PIP coverage from lability coverage regarding permissive use, holding that the distinction "would do violence to the broad purposes of the No-Fault Act," one of which is to "remedy issues of inadequate compensation to victims of automobile accidents by requiring minimum no-fault PIP insurance, as well as legal liability coverage." Instead, the court suggested that different treatment for PIP coverage would be appropriate in situations where insurers of the owner and those of the operator dispute whose coverage should be primary. Metropolitan Property & Casualty Insurance Co. v. Herts Corp., supra, 981 P.2d at 1095 & n. 1. Such a question of primary . coverage is not the issue here.

Consequently, we hold that plaintiff, as an authorized driver of the motor home and motorcycles, was the named insured under his insurance and rental contract with defendant. Accordingly, the entry of summary judgment for defendant was error.

In light of this holding, we need not address plaintiff's remaining contentions.

The judgment is reversed, and the case is remanded for further proceedings on plaintiff's complaint.

Judge NEY and Judge TAUBMAN concur.


source: Caselaw Access Project

author: Judge TAUBMAN.

license: Public Domain

text:
    GE LIFE AND ANNUITY ASSURANCE COMPANY, formerly The Life Insurance Company of Virginia, a Virginia corporation, Plaintiff and Counterclaim-Defendant-Appellee, v. FORT COLLINS ASSEMBLAGE, LTD., Defendant and Counterclaim-Plaintiff-Appellant.
    No. 01CA0081.
    Colorado Court of Appeals, Div. I.
    Dec. 6, 2001.
    Certiorari Denied Aug. 19, 2002.

      Isaacson, Rosenbaum, Woods & Levy, P.C., Pamela A. Johnson, Denver, CO, for Plaintiff and Counterelaim-Defendant-Ap-pellee.
    Fairfield & Woods, P.C., John M. Tanner, Anna S. Itenberg, Denver, CO, for Defendant and Counterclaim-Plaintiff-Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Fort Collins Assemblage, Ltd. (FCAL), appeals the trial court's order granting the request of plaintiff, GE Life and Annuity Assurance Company (GE), to appoint a receiver. FCAL also appeals the judgment entered against it and in favor of GE. We reverse and remand for further proceedings.

GE was the holder of a promissory note in the original principal sum of $1,000,000. Originally executed by a third party in 1985, the promissory note was secured by a deed of trust on a property in El Paso County. In ~ 1989, FCAL purchased the property from the third party and subsequently made monthly payments to GE pursuant to the note until early 2000.

The deed of trust provided that:

in the event of a default in any of the Loan Documents, Trustees and Noteholder, individually or collectively, as Noteholder shall determine, are hereby vested with the power to seek and obtain the appointment of a receiver as a matter of right and regardless of the adequacy of the security for the indebtedness hereby secured.

FCAL did not make monthly payments for the first two months of 2000. In March, GE sent FCAL a notice of default indicating that it was accelerating the amount due under the note and that, if the default were not corrected, GE would initiate foreclosure proceedings and seek appointment of a receiver.

FCAL submitted a partial payment to GE in the amount of $238,449 on March 28. No payment was made in April.

On April 28, GE filed a verified complaint and an ex parte motion for appointment of a receiver. In its motion, GE stated, among other things, that FCAL was in default on the promissory note, that GE had initiated foreclosure proceedings, that GE was entitled to appointment of a receiver as a matter of right, and that GE had faxed FCAL notice of the motion on April 27. The trial court granted GE's motion and appointed a receiver on April 28, 2000; the receiver took charge of the property pursuant to the order. However, the trial court did not approve the bond of the receiver until May 9, 2000.

FCAL filed a motion to dismiss on May 26, 2000, alleging that the receiver was improperly appointed for several reasons, including that it had not received any notice from GE, by fax or otherwise, before GE filed its motion for appointment of a receiver. Shortly thereafter, FCAL obtained a loan to cure the alleged default on the property. In June 2000, the parties filed a joint motion to vacate the order appointing the receiver. The trial court granted the motion but kept the action open until the receiver made a final accounting. After the receiver submitted his final report, GE moved to discharge the receiver, and the trial court did so.

On August 5, 2000 FCAL filed an objection to the discharge of the receiver and also filed two counterclaims against GE and a third-party complaint against the receiver. FCAL alleged that the receiver had breached his fiduciary duties and that GE had initiated a wrongful foreclosure and a wrongful receivership. GE subsequently filed a motion to dismiss, which the trial court treated as a summary judgment motion and granted, dismissing all claims against the receiver and GE. On appeal, FCAL only appeals the judgment with respect to GE.

I. Appointment of Receiver

FCAL contends that the trial court abused its discretion when it appointed a receiver upon GE's ex parte motion. We agree.

The appointment of a receiver is within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion. Jouflas v. Wyatt, 646 P.2d 946 (Colo.App.1982)

However, under Colorado law, a receiver should not be appointed unless the requesting party can demonstrate that the security is clearly inadequate or that the subject property is in danger of being dissipated. § 38-38-601, C.R.98.2001.

An exception to this rule occurs when a contract allows the parties to appoint a receiver under different circumstances. Bank of Am. Nat'l Trust & Sav. Ass'n v. Denver Hotel Ass'n, 830 P2d 1138 (Colo.App.1992)(trial court did not abuse its discretion in appointing a receiver ex parte where based on contract, bank was entitled to such appointment in the event of default).

Relying on Bank of America, GE argues that it was entitled to the ex parte appointment of a receiver pursuant to a provision in the deed of trust. However, we conclude that Bank of America is distinguishable because the deed of trust language there allowed for the appointment of a receiver "without notice to Grantor." Bank of America, supra, 830 P.2d at 1139.

Here, although the deed of trust permitted the appointment of a receiver, it did not contain similar language allowing appointment of a receiver without notice.

Furthermore, Colorado courts generally disfavor the ex parte appointment of a receiver in the absence of any emergency or exigent cireumstances. See Oberto v. Moore, 93 Colo. 93, 97, 23 P.2d 578, 580 (1988)("[A] receivership should not be created unless upon notice that gives ample time for all interested parties to attend and be heard. If there be exceptional cases that require ex parte action, they are limited to momentous emergencies which manifestly threaten dire destruction of health, safety, or irretrievable estate."); Belknap Sav. Bank v. Lamar Land & Canal Co., 28 Colo. 326, 64 P. 212 (1901)(before appointing a receiver, notice must be given to those entitled to be heard); Johnson v. McCaughan, Carter & Scharrer, 672 P.2d 221 (Colo.App.1983)(noting that the ex parte appointment of a receiver may be permissible in emergency situation or where notice is impractical).

While we recognize that the above cases do not consider the ex parte appointment of a receiver in connection with a deed of trust allowing such appointment, other jurisdictions have noted that in enforcing contractual and statutory provisions, a receiver should not be appointed without prior notice and the opportunity to be heard, in the absence of exigent circumstances, See Fed. Home Loan Mortgage Corp. v. Spark Tarrytown, Inc., 813 F.Supp. 234 (S.D.N.Y.1993)(party seeking ex parte appointment of receiver must demonstrate that notice is impractical because the party involved eannot be found, because there is a bona fide emergency situation, or because prior notice would be likely to result in disappearance of critical evidence or property); Braun v. Pepper, 224 Kan. 56, 578 P.2d 695 (1978)(appointment of a receiver without notice is improper); Indep. Am. Sav. Ass'n v. Preston 117 Joint Venture, 753 S.W.2d 749 (Tex.App.1988)(appointment of a receiver without notice should be exercised with extreme caution and only where great emergency or imperative necessity requires it).

We conclude that these principles should guide us in considering whether the trial court abused its discretion in appointing a receiver, ex parte, where the deed of trust did not provide for such appointment without notice.

Here, FCAL asserts, and GE does not dispute, that it received no notice of GB's motion to appoint a receiver, even though GE asserted in its motion that it had given FCAL notice. Indeed, GE asserts in its brief on appeal that even if it was mistaken in asserting in its complaint that it had sent a fax to FCAL regarding the appointment of a receiver, it was nevertheless entitled to the appointment of a receiver in the event of a default by FCAL. Given this state of the record, we will assume that no prior notice was faxed to FCAL before GE sought the appointment of a receiver. Therefore, without notice, FCAL had no opportunity to request a hearing to contest the appointment of a receiver. In addition, a review of the record demonstrates that GE made no showing of an emergency situation or exigent cireumstances. The only ground that GE asserted was that it was entitled to the appointment of a receiver as a matter of right based on the language in the deed of trust. However, we conclude that absent any express language in the deed of trust allowing the appointment of a receiver without notice, the trial court should not have granted GE's ex parte motion without notice, an opportunity to be heard, or some showing of emergency cireumstances threatening the value of the property.

GE argues that any errors regarding procedural irregularities in the appointment of the receiver were harmless because GE had an unequivocal right under the deed of trust to the appointment of a receiver. We disagree.

Because the trial court could have determined, in the exercise of its discretion, that GE had waived or was estopped from initiating any foreclosure proceedings, and was therefore not entitled to a receiver as a matter of right, we conclude that whether the ex parte appointment was harmless depends on the validity of FCAL's waiver and estoppel defenses. Indeed, FCAL has raised waiver and estoppel arguments in the trial court and this appeal.

Finally, although we conclude that the trial court abused its discretion in granting GB's ex parte motion, we note that it might not have granted GE's request to appoint a receiver had it known that FCAL had in fact not received prior notice of such request.

Thus, because FCAL received no notice and was not given an opportunity to be heard, and GE made no demonstration of exigent cireumstances, we conclude that the appointment of a receiver under these circumstances was improper. However, we re-jeet FCATL's request that we declare that the appointment of the receiver was void. Rather, we remand the case for determination of whether GE was entitled to appointment of a receiver as a matter of right or, if not, whether FCAL is entitled to damages for improper appointment of a receiver.

II. Summary Judgment

FCAL contends that the trial court erred in granting summary judgment in favor of GE on FCAL's two counterclaims related to wrongful foreclosure and appointment of a receiver. We agree.

Appellate review of summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995).

Summary judgment will be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c).

A material fact is one that will affect the outcome of the case, and all doubts are resolved against the movant. Moffat County State Bank v. Told, 800 P.2d 1320 (Colo. 1990).

In determining whether summary judgment was appropriate, a reviewing court must view the facts in the light most favorable to the nonmovant. Colorado Civil Rights Comm'n v. N. Washington Fire Prot. Dist., 772 P.2d 70 (Colo.1989).

It is error for the trial court to grant summary judgment when pleadings and affidavits show material facts in dispute. McCormick v. Diamond Shamrock Corp., 175 Colo. 406, 487 P.2d 1333 (1971).

Here, a review of the affidavits submitted by GE in its motion to dismiss and by FCAL in its response to GE's motion reflects that disputed issues of material fact remained with regard to: (1) whether GE gave FCAL adequate notice of default or foreclosure; (2) whether GE was estopped or had waived its right to foreclosure because it accepted a partial loan payment; and (3) whether GE accelerated the note, and, if so, whether such acceleration was wrongful.

GE argues that we may not consider the foreclosure issue on appeal because none of the pleadings related to the foreclosure are included in the record. We disagree; the parties' affidavits addressing the foreclosure counterclaim support our conclusion that disputed issues of material fact remained.

Thus, we conclude that it was error for the trial court to grant GE's motion for summary judgment. On remand, if the trial court determines that GE was entitled to the appointment of a receiver, notwithstanding its failure to give prior notice to FCAL, it must enter judgment for GE. If it determines that GE was not entitled to the appointment of a receiver, it must enter judgment for FCAL and determine the amount of damages to which FCAL is entitled.

IIL Costs Associated with Receivership

FCAL argues that GE is liable for all expenses incurred by the receiver because GE was not entitled to the appointment of a receiver. We remand for further proceedings. -

Relying on Miller v. Hepmer, 132 Colo. 395, 292 P.2d 968 (1955)(Miller II), FCAL argues that the party who improperly obtains the appointment of a receiver is Hable for the costs of the receivership.

In Hepner v. Miller, 130 Colo. 243, 274 P.2d 818 (1954)(Miller I ), the supreme court held that, in the absence of a permissive statute, a court of equity has no power to dissolve a going business corporation and appoint a receiver. The court also determined the trial court's appointment of a receiver was improper.

In Miller II, the supreme court held that a plaintiff who improperly secures the appointment of a receiver, and not the defendant whose property is wrongfully taken from him or her, is liable for the legitimate expenses of such receivership.

Here, as discussed in Part I, although the trial court improperly appointed a receiver, GE nevertheless may have been entitled to the appointment of a receiver under the deed of trust.

We perceive no reason why the rule articulated in Miller II should not be applied when a trial court determines that a party was not entitled to a receiver as a matter of right. However, whether that rule applies in this case depends on what the trial court determines upon remand.

Therefore, on remand, the trial court must determine if GE was entitled to a receiver as a matter of right; and if it was not, the court must direct GE to pay FCAL for the costs and fees associated with the receivership, with interest.

Finally, to the extent that FCAL argues in the alternative that the trial court erred by (1) improperly awarding receiver fees without a hearing or finding that the fees were reasonable, (2) improperly awarding fees for the period of time before the trial court approved the receiver, and (8) improperly discharging the receiver when the receiver had not submitted a proper accounting, we conclude that we lack jurisdiction to address these issues because the receiver was not named a party on appeal. See Flatiron Paving Co. v. Wilkin 725 P.2d 103 (Colo.App.1986)(appellate review precluded because dismissed defendant was not named a party to the appeal).

The order appointing the receiver and the judgment in favor of GE are reversed, and the case is remanded for further proceedings consistent with this opinion.

Judge METZGER and Judge NEY concur.


author: Judge CASEBOLT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John WATSON, Defendant-Appellant.
    No. 99CA0779.
    Colorado Court of Appeals, Div. V.
    Dec. 20, 2001.
    Rehearing Denied Feb. 7, 2002.
    Certiorari Denied Sept. 9, 2002.
   Opinion by

Judge CASEBOLT.

Defendant, John Watson, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree sexual assault. We affirm.

The victim and defendant spoke briefly while at a bar. At the end of the evening and apparently without invitation, defendant joined the victim and her roommates in a car. When the group arrived at the victim's home, the victim ignored defendant and proceeded into the house. She put on her nightelothes, went to her bedroom, and fell asleep.

According to the prosecution's evidence, the victim awoke and discovered that defendant was attempting to have anal intercourse with her. Before the victim fully realized what was occurring, defendant began to have vaginal intercourse with her. Defendant appeared surprised to see that she was awake. The victim pushed defendant away, went into the bathroom, and discovered that her ni-ghtelothes had been removed. She spent the remainder of the evening in a different room and reported the sexual assault to the police later the next day.

At trial, the victim testified that she was taking prescribed antidepressants on the night of the assault and that she had consumed three beers and part of a mixed drink. The victim testified she was not intoxicated from the alcohol but had been sleeping and was in a "semicomatose" state before the sexual assault.

I.

Defendant first argues that the trial court erred in denying his motion to suppress evidence allegedly obtained through violation of the Wiretapping and Eavesdropping Act, § 16-15-101 et seq., C.R.8.2001. We are not persuaded.

After the victim reported the assault to the police, she met with a detective and agreed to call defendant to ask him a series of seripted questions about what had occurred. Although the detective monitored the call and was able to hear portions of the conversation, the tape recording equipment malfunctioned and failed to record defendant's statements.

The trial court denied defendant's motion to suppress the contents of the telephone call. However, at trial, the prosecution did not introduce any evidence concerning the call. The jury first learned of the call, although not the substance of defendant's statements, when defense counsel elicited the information during cross-examination of the victim. Defense counsel again raised the issue of the call during direct examination of defendant. The prosecution then cross-examined defendant concerning the statements he had made during the call.

The Wiretapping and Eavesdropping Act requires law enforcement officers to obtain orders of authorization before intercepting certain wire and oral communications, and the Act limits the particular offenses for which such orders may be issued. See § 16-15-102, C.R.S.2001.

In People v. Morton, 189 Colo. 198, 539 P.2d 1255 (1975), the supreme court held that the Act does not require suppression of intercepted communications if one party to the communication consented to the interception. The court explained that the Act is not a proscriptive statute and that suppression of "unlawfully" intercepted communications under § 16-15-102(10), C.R.S.2001, is therefore only appropriate if the interception violated the criminal statutes prohibiting wiretapping and eavesdropping, §§ 18-9-803, 18-9-304, C.R.S.2001. The court concluded that, because those criminal statutes do not make unlawful the interception of a communication where one party to the communication consents to the interception, the Act does not require suppression of such intercepted communications.

Defendant acknowledges that Morton, if applicable, forecloses his suppression claim. However, he argues that Morton was legislatively overruled by a 1991 amendment that removed the citation to the criminal wiretapping and eavesdropping statutes that was previously included in § 16-15-1021). We disagree.

Before the 1991 amendment, the introductory clause to § 16-15-102(1) provided: "An ex parte order for wiretapping or eavesdropping, or both, as those offenses are described in sections 18-9-802 to 18-9-304, C.R.S. may be issued...." As amended, it now provides: "An ex parte order authorizing or approving the interception of any wire, oral, or electronic communication may be issued...." Colo. Sess. Laws 1991, ch. 81, § 16-15-102(1) at 483.

In Morton, the court relied on the criminal wiretapping and eavesdropping statutes as the basis for determining whether an interception of a communication was unlawful under the Act, without making reference to the citation to those criminal statutes then contained in § 16-15-1021). The 1991 amendment to the Act that removed the citation to the criminal wiretapping and eavesdropping statutes from the introductory clause of § 16-15-102(1) was not an alteration to a section of the Act upon which the Morton court based its holding. Aceordingly, the Morton decision is still binding authority. We thus uphold the trial court's denial of defendant's motion seeking suppression of communications intercepted with the consent of the victim.

IL

Defendant next contends the trial court erred by qualifying a psychologist as an expert witness regarding the psychological ef-feets of drugs and aleohol and permitting him to give testimony concerning the victim's physiological condition on the night of the assault. We perceive no abuse of discretion in the trial court's rulings.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. CRE 702.

The foeus of a Rule 702 inquiry is whether the scientific evidence proffered is both reliable and relevant. People v. Shreck, 22 P.3d 68 (Colo.2001). In determining whether the evidence is reliable, a trial court should consider (1) whether the scientific principles as to which the witness is testifying are reasonably reliable, and (2) whether the witness is qualified to opine on such matters. In determining whether the evidence is relevant, a trial court should consider whether the testimony would be useful to the jury. People v. Shreck, supra.

Whether opinion testimony is within a particular witness's expertise generally is a matter addressed to the sound discretion of the court. People v. Gomez, 632 P.2d 586, 593 (Colo.1981).

Trial courts possess broad discretion to allow testimony by expert witnesses in criminal cases. To establish that a court has abused its discretion, it must appear that the court's decision was manifestly arbitrary, unreasonable, or unfair. People v. Williams, 790 P.2d 796 (Colo.1990).

A.

Concerning the expert's qualifications, the psychologist held a master's and a doctorate degree in educational psychology, with spe-clalty areas in substance abuse treatment and diagnosis and treatment of alcoholism. He had gained extensive knowledge concerning the effects of alcohol and other drugs and interactions of such substances in the brain through his position as the director of a treatment center for alcohol and drug abuse. The prosecution offered him as an expert in substance abuse including alcohol and other drugs and their interaction.

Defense counsel objected to the expert's qualifications and his voir dire focused on the expert's lack of a medical degree and the lack of expertise concerning the manner in which drugs chemically interact within the body. Defense counsel continued his objection "with respect to any testimony regarding the chemical manner in which drugs react in the human body."

Over that objection, the trial court granted the prosecution's request to qualify the witness as an expert "in the field of aleohol and substance abuse counseling" who could "testify about the psychological effects of the interactions of drugs." The court ruled that the psychologist could not testify concerning "the chemical reaction or interactions of drugs and aleohol" but that he could describe "his clinical observations regarding the interactions of drugs." After further foundation, the court qualified the expert to testify to his clinical observation of people who use interacting drugs.

In his testimony, the psychologist stated that, based on his review of a transcript of the victim's testimony given at an earlier proceeding, it was his opinion that the victim was in a "semicomatose" state during the sexual assault that would not have been caused by the amount of alcohol she said she bad consumed or by the prescription medication she was taking. The psychologist further testified that a semicomatose state was more consistent with ingestion of a sedative or a barbiturate.

Contrary to defendant's contention, we cannot say that only a medical doctor could proffer such an opinion. This expert had sufficient education, background, knowledge, training, and experience to testify concerning the interactions of drugs and their effects on the brain.

Further, based on our review of the ree-ord, we cannot say that the trial court abused its discretion in qualifying the psychologist as an expert witness in the topics set forth above. Nor can we conclude that the court abused its discretion in determining that the witness had limited his testimony to topics within his area of expertise without giving opinions on subjects requiring expertise in medical science or toxicology.

B.

Defendant argues the court failed to assess whether the expert testimony would assist the jury. We first note that he did not raise that objection in the trial court. Accordingly, review proceeds under the plain error standard. See People v. Morrison, 985 P.2d 1 (Colo.App.1999), aff'd, 19 P.3d 668 (Colo.2000). Thus, we may reverse the jury's determination of defendant's guilt only if we are convinced that the reception of the evidence so undermined the fundamental fairness of the proceeding as to cast serious doubt on the reliability of the judgment of conviction. See Wilson v. People, 743 P.2d 415 (Colo.1987).

In determining usefulness, some of the factors a court may consider include the elements of the particular offense charged, the nature and extent of other evidence in the case, the expertise of the proposed witness, the sufficiency and extent of the foundational evidence upon which the witness's ultimate opinion is based, and the scope and content of the opinion itself. See Lonari v. People, 827 P.2d 495 (Colo.1992).

As pertinent here, to establish first degree sexual assault, the prosecution had to prove that defendant knowingly inflicted sexual intrusion or sexual penetration on the victim while the victim was physically helpless, the defendant knew the victim was physically helpless, and the victim did not consent. Section 18-3-402(1)(e), C.R.8.2001.

Here, defendant testified that the victim was intoxicated, but not so intoxicated as to be unable to consent to the contact. His theory was that she may have experienced a temporary aleohol blackout, and that she did not remember inviting him to her room or recall consenting. The victim denied consenting to any contact and denied drinking to exeess. Hence, the expert's evidence was relevant to the elements of the offense at issue.

The scope and content of the opinions offered and the expertise of the witness were appropriate and well-established. The other evidence in the case tended to support either the defendant's version of events or the vice-tim's. Therefore, the evidence was helpful.

Concerning the foundational evidence, defendant argues that the psychologist's review of the victim's transcribed testimony from an earlier trial was an improper and insufficient foundation for his testimony as an expert witness. We disagree.

The victim's prior testimony concerned the substances she ingested and described her psychological condition at the time of the assault. The expert could rely on this testimony in forming his opinion. See CRE 703 ("[the facts or data in the particular ease upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing"); People v. Manier, 184 Colo. 44, 49, 518 P.2d 811, 814 (1974)("the fact that the expert witness had not examined the accused does not necessarily disqualify him from expressing his opinion based upon a hypothetical question" but "such opinion must be based on facts in evidence").

Further, the expert testified that experts in his field reasonably relied upon such information. Thus, the opinion was appropriately grounded.

Accordingly, we find no error, plain or otherwise.

C.

Defendant also argues that the prosecution improperly used the expert's testimony as a basis to suggest that defendant laced the victim's drink at some point during the evening with gamma hydroxybutyrate, the "date-rape" drug. We disagree.

As defendant asserts, the expert stated that he was unable to explain why the victim was in a semicomatose state and that "something else happened there ... such as the addition of another drug or substance." However, the prosecution did not ask what such a substance could be. Instead, the defense, on cross-examination, asked what other kind of drug in combination with aleohol might have had such an effect. The expert opined that a sleeping pill, a barbiturate, possibly a narcotic, or an analgesic painkiller could have had that effect.

On rebuttal, the prosecutor noted that defense counsel had asked what other drugs could contribute to a semicomatose state and queried whether "rohipnal or GHP [sic]" was that type of drug. The expert responded affirmatively.

Defendant did not object to this testimony; hence, plain error is again the appropriate standard of review. See Wilson v. People, supra.

The record contains no description or explanation of what "rohipnal or GHP" is. While defendant asserts that it is gamma hydroxybutyrate, which incapacitates the user, there is no indication that the jury was so informed or that the jurors would be likely to know, from common parlance, what those terms meant. Furthermore, contrary to defendant's suggestion, the trial court prevented the prosecution from using the psychologist's testimony as a basis for suggesting that defendant may have slipped such a substance into the victim's drink when it sustained defendant's objection in closing argument. Accordingly, we find no plain error.

Because we reject defendant's claim that the trial court erred in its evidentiary rulings, we also reject his related claim that the improper admission of this evidence violated his due process right to a fair trial.

IIL

Finally, defendant argues that the trial court erred by giving the deadlocked jurors a "modified-A¥Allen " instruction and then submitting two of the prosecution's exhibits for their consideration. Here again, we conclude the court acted within its discretion.

Upon receiving information that a jury cannot agree on a verdict, a trial court may not give an instruction with a potentially coercive effect, but may, in its discretion, give a "modified-4len" instruction. Such an instruction informs the jurors that: (1) jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement if it can be done without violence to individual judgment; (2) each juror must decide the case for himself or herself, but only after impartial consideration with fellow jurors; (8) in the course of deliberation, a juror should not hesitate to re-examine his or her own views and change an opinion if convinced it is erroneous; and (4) no juror should surrender an honest conviction as to the weight and effect of the acts solely because of the opinion of fellow jurors or for the mere purpose of returning a verdict. Allen v. People, 660 P.2d 896, 898 (Colo. 19883); see CJI-Crim. 38:14 (1988).

A prerequisite to giving such a modified-Aller instruction is that the trial court inquire of the jurors whether further deliberations would be productive. People v. Raglin, 21 P.3d 419, 428 (Colo.App.2000). Although the trial court's inquiry should not be directed to determining how many jurors favor one verdict or the other, the fact that a jury makes an unsolicited disclosure of that information does not deprive a trial court of discretion to decide whether to give a modified-Allen instruction. People v. Saltray, 969 P.2d 729, 733 (Colo.App.1998){no abuse of discretion where jurors revealed they were deadlocked nine to three in favor of convietion and trial court gave a modified-Allen instruction; this revelation did not establish coercion absent any showing that the jurors ignored the instruction's admonition concerning how to break a deadlock without sacrificing honest convictions); see also People v. Harris, 914 P.2d 425, 482 (Colo.App.1995)(no abuse of discretion where trial court gave a modified-Allen instruction after jurors revealed, without solicitation, that they were deadlocked eleven to one in favor of an unspecified outcome).

Here, after several hours of deliberation, the jury foreperson informed the court that the jury was having difficulty reaching a unanimous verdict. The court directed the foreperson to communicate the difficulty to the court in writing. Approximately one hour later, the foreperson submitted a note to the court stating that the jurors were deadlocked eleven to one in favor of conviction. The court called the jury into the courtroom and asked the foreperson whether there was likelihood of progress toward a unanimous verdict. The foreperson stated that there was not. The court excused the jurors and conferred with counsel.

The court decided, over defendant's objection, to give the jurors a modified-Allen instruction. The court then brought the jurors back into the courtroom, read them the instruction, and informed them that the bailiff would check on their progress in approximately fifteen minutes.

When the bailiff went to check on the jurors, they informed her that they would soon be sending out a note. Twenty additional minutes passed without any further communication from the jurors. The court next directed the bailiff to ask the jurors whether they were deadlocked, whether they wanted to continue deliberating and, if so, whether they would rather order dinner and deliberate further that evening or adjourn for the evening and return the next day. Over defendant's objection, the court also granted the prosecution's request to have the bailiff provide the jurors with two trial exhibits depicting the floor plan of the victim's residence.

Shortly thereafter, the bailiff returned to the courtroom and stated that the jurors wanted to continue deliberating that evening but that they did not want to order dinner. Moments later, the jury returned its verdict finding defendant guilty as charged.

This record does not establish that the trial court abused its discretion. The trial court allowed the jurors to deliberate another hour after it learned that they were having difficulty reaching a verdict. Only then did the court ascertain that the jurors were deadlocked and give them a modified-4llien instruction. Although the trial court knew that the jurors' preliminary vote was eleven to one in favor of conviction, such knowledge does not establish that the instruction had a coercive effect. See People v. Harris, supra.

Nor will we presume juror coercion resulting from the trial court's decision to provide the deliberating jurors with two exhibits that had been admitted at trial but that were, apparently, inadvertently omitted from the packet of exhibits given to the jurors when they began deliberating. Likewise, we will not presume jury coercion merely because the deliberations occurred two days before Christmas; it is evident from the record that the jurors knew that an additional day for deliberations was available prior to the holiday. See People v. Harris, supra, 914 P.2d 425, 432 (refusing to presume coercion merely because the modified-Allen instruction was given to the jury late on a Friday afternoon).

The judgment is affirmed.

Judge KAPELKE and Judge VOGT concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald R. HONEYSETTE, Defendant-Appellant.
    No. 00CA0331.
    Colorado Court of Appeals, Div. I.
    Jan. 3, 2002.
    Certiorari Denied Sept. 9, 2002.

      Ken Salazar, Attorney General, Lauren Edelstein-Park, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Pamela A. Dayton, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Donald R. Honeysette, appeals the judgment of conviction entered upon jury verdicts finding him guilty of sexual assault on a child, sexual assault on a child as part of a pattern of sexual abuse, and sexual assault on a child by one in a position of trust. We affirm.

The victim, defendant's eight-year-old stepdaughter, testified that defendant had molested her on more than forty separate occasions. The victim deseribed the nature of the abuse in great detail. Although the victim was unable to specify the time period during which the abuse occurred, she testified that it happened when defendant was living with her in her present home.

The victim's mother testified that defendant lived with them in their present home from August 1998 until the victim disclosed the abuse on April 8, 1999.

L.

Defendant argues that the trial court's instructions defining a "pattern of abuse" were flawed because they did not require the jury to make a specific finding that he had sexual contact with the victim during the ten-year period preceding the dates of abuse alleged in the information, "on or between September 1, 1997, and April 8, 1999." We are not persuaded.

A.

The relevant statute defining sexual assault on a child provides as follows: "Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child if the victim is less than fifteen years of age and the actor is at least four years older than the victim." Seetion 18-3-405(1), C.R.S.2001. The jury was instructed accordingly.

Section 18-3-405(2)(d), C.R.S.2001, provides that sexual assault on a child is a class 4 felony, but it is a class 8 felony if:

The actor commits the offense as a part of a pattern of sexual abuse as described in subsection (1) of this section. No specific date or time must be alleged for the pattern of sexual abuse; except that the acts constituting the pattern of sexual abuse must have been committed within ten years prior to the offense charged in the information or indictment. The offense charged in the information or indictment shall constitute one of the incidents of sexual contact involving a child necessary to form a pattern of sexual abuse as defined in section 18-3-401(2.5).

Under § 18-8-405(2)(d), a "pattern of sexual abuse" is a sentence enhancement that, like the substantive predicate offense, must be proven beyond a reasonable doubt. People v. Hansen, 920 P.2d 831, 834 (Colo.App. 1995).

A "pattern of sexual abuse" is defined as "the commission of two or more incidents of sexual contact involving a child when such offenses are committed by an actor upon the same victim." Section 18-8-401(2.5), C.R.S. 2001. The jury was instructed accordingly.

However, the trial court instructed the jury on "pattern of sexual abuse" without referring to the ten-year period specified in § 18-8-405(2)(d):

In order to find a pattern of sexual abuse, you must unanimously agree that either of the following [has] been proved beyond a reasonable doubt.
1. The defendant committed all of the incidents of sexual contact with the vie-tim described by the evidence occurring between September 1, 1997, and April 8, 1999.
2. The defendant committed two or more incidents of sexual contact with the victim described by the evidence occurring between September 1, 1997, and April 8, 1999. The jurors must unanimously agree that the same two or more incidents occurred.

In another instruction, the court directed the jurors to begin by considering the charge of sexual assault on a child. The instruction told the jury that if it found defendant not guilty of that charge, then it had to acquit him of the position of trust charge as well as the pattern of abuse charge. The instruction further explained that if the jury found defendant guilty of the charge of sexual assault on a child, then it was to consider the other two counts separately.

In response to a question from the jury during deliberations concerning the unanimity requirement in the pattern of abuse instruction, the trial court submitted the following supplemental instruction:

The court further instructs you that before the defendant may be convicted of sexual assault on a child-pattern of abuse, the evidence must prove beyond a reasonable doubt that more than one incident of sexual contact occurred within the time period charged. It is not enough that all jurors agree that two or more incidents occurred. It is necessary that all jurors agree that the identical incidents occurred.

In response to a second question from the jury, the trial court explained that, in order to find defendant guilty under the pattern of abuse instruction, it was not necessary that the "nature or form" of the underlying incidents of sexual contact be identical to each other.

B.

Defendant did not object to any of these instructions on the specific ground he now raises on appeal, that is, that the instructions lacked language requiring the jury to find that the act of sexual contact establishing the "pattern" occurred "within ten years prior to" the predicate act. Accordingly, we review his claim pursuant to the plain error standard. See People v. Hansen, supra, 920 P.2d at 838 (an objection pertaining to instructions must be sufficiently specific to bring the alleged error to the trial court's attention). Under that standard of review, reversal is only required if the instructional error affected a substantial right and the record reveals a reasonable possibility that the error contributed to the defendant's conviction. People v. Hansen, supra.

C.

Recently, in People v. Melillo, 25 P.3d 769, 779 (Colo.2001), the supreme court held that an information charging a pattern of sexual abuse was sufficient where it alleged that the defendant had committed the offense during a fifteen-month period. The court concluded that the information was sufficient, even though the prosecution was not required to elect the specific dates or times of the acts of abuse on which to base the charge, because the jury instructions required the jury to agree unanimously that the defendant committed all, or the same two, acts of abuse described by the evidence. The Melillo court recognized that a "pattern of abuse" is established where there is sufficient proof that the defendant committed at least two discrete acts of sexual contact against the same child within a ten-year period and within the period alleged in the information. In so holding, it assumed that, because one of those acts of abuse must necessarily have preceded the other, both acts may occur within the period alleged in the information.

Based on this reasoning, we now expressly hold that both the predicate act and the earlier pattern act or acts may occur within the period alleged in the pattern of sexual assault count of the information. See People v. Melillo, supra.

Here, under the instructions given, it would have been impossible for the jury to find defendant guilty of the pattern of abuse enbancer unless it found beyond a reasonable doubt that he had committed at least two separate acts of sexual contact upon the same victim within the period alleged in the information. Because that period was less than ten years, and because the victim was under the age of ten when she testified at trial, the requirements in § 18-8-405(2)(d) for finding a pattern of sexual abuse were necessarily satisfied because the later occurring act of abuse constituted the predicate act and the earlier act (or acts) of abuse constituted the "pattern" act (or acts) within the prior ten years.

D.

In People v. Gholston, 26 P.3d 1, 14 (Colo. App.2000), a division of this court found plain error requiring reversal of the defendant's conviction for child sexual assault as part of a pattern of sexual abuse because the elemental instruction failed to require that the jury make a finding whether the act of sexual contact establishing the "pattern" act occurred "within ten years prior to" the predicate act. However, we conclude defendant's reliance on G@hoilston is misplaced.

In Ghoiston, the victim was able to specify the date of the act of abuse that was alleged as the predicate act in the pattern of abuse charge. Although the division found that there was evidence of acts of sexual abuse that occurred after the date of that predicate act, it concluded that those incidents of abuse could not be substituted as the predicate act for the pattern of abuse charge because they had been specifically charged and prove under a separate statute as sexual assaults on a child committed by one "in a position of trust." See § 18-3-405.3, C.R.8.2001. Thus, the division determined that the error in the instructions, which was compounded in closing argument when the prosecutor suggested that the sequence of the incidents of abuse was irrelevant to a determination of the pattern of abuse charge, required reversal because there was no evidence presented establishing an incident of abuse occurring in the ten-year period preceding the predicate act. Significantly, however, nothing in Gholston suggests that a pattern of abuse charge cannot be established by proof of two separate incidents of sexual contact with the same child occurring within ten years of each other and also within the time period alleged in the count of the information setting out the pattern of abuse charge.

The fact that defendant was separate ly charged with, and convicted of, sexual abuse on a child by one in a position of trust does not alter our determination that the "pattern of sexual abuse" instructions were adequate. Although defendant correctly asserts that a conviction of sexual assault on a child by one in a position of trust under § 18-3-405.3 cannot constitute the predicate act of sexual abuse for purposes of the "pattern of sexual abuse" enhancer of § 18-3-405(2)(d), see People v. Gholston, supra, 26 P.3d at 14, we are not aware of any reason why such a conviction cannot constitute the earlier-occurring "pattern" act.

Here, the information alleged that defendant committed the crime of sexual assault on a child by one in a position of trust during the same period alleged in the counts charging sexual assault on a child and sexual assault on a child as part of a pattern of abuse. The elements of sexual assault on a child and the elements of sexual assault on a child by one in a position of trust are identical except that the latter offense requires proof that the defendant was in a "position of trust" with respect to a victim under the age of eighteen. Compare § 18-3-405 with § 18-3-405.3. Because defendant did not dispute the vie-tim's age or the fact that he was a person in a "position of trust," the jury could have found defendant guilty of sexual assault on a child by one in a position of trust based on evidence of any of the incidents of sexual contact. Thus, there is no reason for us to presume that the jury based its verdict as to that charge on evidence of an incident that occurred after the incident of sexual contact that it found constituted the predicate act for the "pattern of sexual abuse" charge. Absent such a presumption, defendant is unable to demonstrate that he was prejudiced by the omission of language in the "pattern of sexual abuse" instruction requiring a finding that the "pattern" act occurred "prior to" the predicate act.

For the foregoing réasons, we reject defendant's claim of instructional plain error.

IL

In a related argument, defendant asserts that there is insufficient evidence in the ree-ord to support the jury's finding of a "pattern of sexual abuse." Again, we disagree.

When sufficiency of the evidence is the basis for an appeal of a jury verdict, we must determine whether the evidence, when viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty beyond a reasonable doubt. In making this determination, we must give the prosecution every reasonable inference that can be fairly drawn from the evidence. People v. Johnson, 923 P.2d 342, 346 (Colo.App.1996).

Here, the evidence, when viewed with the benefit of all inferences favorable to the prosecution, establishes that defendant subjected the victim to numerous separate incidents of sexual contact within the time period alleged in the information. Accordingly, we conclude there is sufficient evidentiary support for the jury's verdict finding defendant guilty of sexual assault on a child as part of a pattern of sexual abuse.

IIL.

Finally, defendant argues that the trial court erred by denying his challenge for cause to a prospective juror. .We conclude the trial court acted within its discretion.

The right to challenge a juror for cause is an integral part of a fair trial. A prospective juror should be disqualified for cause if he or she is biased and cannot render a fair and impartial verdict according to the laws and evidence presented at trial. Section 16-10-108(1)(j), C.R.S.2001. Under § 16-10-103(1)(j), the trial court must sustain a challenge for cause to a prospective Juror if the juror has a state of mind "evine-ing enmity or bias toward the defendant or the state." However, this section further provides that no juror

shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that he [or shel will render an impartial verdiet according to the law and the evidence subm1tted to the jury at the trial.

Moreover, a prospective juror's indication of a preconceived belief as to some facet of the case does not warrant exclusion for cause. People v. Veechiarelli-McLaughlin, 984 P.2d 72, 75-76 (Colo.1999).

A trial court's ruling denying a challenge for cause may be reversed on appeal only if the trial court abused its discretion. This high standard gives deference to the trial court's assessment of the credibility of a prospective juror's responses and recognizes the trial court's unique perspective in evaluating the demeanor and body language of live witnesses, thereby discouraging an appellate court from second-guessing those judgments on the basis of a cold record. The trial judge is the only judicial officer able to assess fully the attitudes and state of mind of a potential juror by personal observation of the significance of what linguistically may appear to be inconsistent or self-contradieto-ry responses to difficult questions. People v. Veechiarelli-McLaughlin, supra.

Here, the prospective juror at issue stated that, although she understood that defendant was presumed innocent, she "would like to hear both sides." Defense counsel then asked whether she would be able to follow the trial judge's instruction concerning a defendant's right to remain silent. The prospective juror replied, "He's the boss." Upon further inquiry, the prospective juror stated that the absence of testimony from the defendant was something she would "probably" wonder about during deliberations.

Defendant challenged the prospective juror for cause. The trial court denied the challenge, finding that the prospective juror's statement indicating that she would follow the court's instructions was sufficient to demonstrate her ability to serve as a fair and impartial juror. Defendant used a peremptory challenge to remove the prospective juror from the panel and then exhausted his remaining peremptory challenges.

We cannot say that the trial court abused its discretion by relying on the prospective juror's assurance that she would respect the authority of the trial court and follow its instruction not to draw any adverse inference based on defendant's exercise of his right to remain silent. See Morrison v. People, 19 P.3d 668, 670-73 (Colo.2000)(no abuse of discretion where trial court denied defendant's challenge for cause to a prospective juror who stated that she would have to hear "both sides" before she would render her verdict because the juror also indicated that she would base her verdict on the evidence presented at trial and follow the court's instruction concerning the presumption of innocence).

The judgment is affirmed.

Judge METZGER and Judge NEY coneur.


author: Judge KAPELKE.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jack SKINNER, Defendant-Appellant.
    No. 00CA0522.
    Colorado Court of Appeals, Div. V.
    Jan. 3, 2002.
    Certiorari Denied Aug. 26, 2002.

      Ken Salazar, Attorney Geﬂeral, Roger G. Billotte, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David §. Kaplan, Colorado State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.
   Opinion by

Judge KAPELKE.

Defendant, Jack Skinner, appeals from the judgment of conviction entered upon jury verdicts finding him guilty of attempted first degree murder, first degree assault, two counts of erime of violence, and two counts of being a habitual criminal, He also challenges the sentence imposed. We affirm.

Prior to trial, defendant filed motions seeking to exclude certain types of evidence. The first motion requested that a photograph of the tattoo on the back of his neck reading "DEATH TO NIGGERS" be excluded because such evidence was inflammatory and prejudicial. Further, defendant argued, it was irrelevant because he had not been charged with a hate crime or ethnic intimidation. The second motion sought to prohibit the prosecution from introducing any evidence of witness intimidation. The victim is an African-American.

At the hearing on the motions, defendant, who was a prison inmate at the time of the incident, asserted that the prosecution might attempt to introduce evidence of an "inmate code" to explain why the victim and another witness, who were also inmates, had changed their stories. Under the purported code, one inmate will not testify against another for fear of retaliation. Defendant asked the court to exclude such evidence absent specific evidence at trial that defendant had had something to do with the witnesses changing their accounts of the assault.

The prosecution argued first that the tattoo evidence should be admitted to show motive or intent for the assault and to establish the identity of the attacker. The prosecutor also argued that if any evidence were introduced concerning the existence of an inmate code, he should be allowed to pursue that line of questioning to impeach the eredi-bility of the witnesses and provide an explanation for the victim changing his story.

At the conclusion of the hearing, the court denied the first motion, finding that the tattoo evidence was relevant to the issues of identity, motive, and intent. The court also found that the relevance and probative value of the tattoo evidence was not outweighed by its prejudicial effect.

As to the motion to exclude evidence of witness intimidation or the inmate code, the court found that the prosecution should not be limited in its ability to cross-examine witnesses. The court further found that the prosecution was not to introduce the topic of the "Inmate code" or use that term. However, the court also ruled that if evidence were presented to support the existence of such a code, the prosecution could use the term in questioning the witnesses and in argument. Finally, the court ruled that unless specific evidence of witness tampering by defendant were introduced, the prosecution would not be allowed to refer to that subject.

During cross-examination of defendant at trial, the prosecutor questioned him about a tattoo depicting the Norse goddess Freya. Defendant denied it was a symbol of white supremacy and said it was a symbol of love and fertility. To rebut this explanation, the prosecutor, over defendant's objection, presented the testimony of an expert witness who opined that while the Freya tattoo could be considered a symbol of fertility, it also could be viewed as a symbol of & person's belief in the supremacy of the white race. Further, the expert stated his opinion that a person with tattoos such as defendant's would be likely to hold a white supremacist philosophy.

During the prosecution's case-in-chief, the court revisited the motion concerning the inmate code and found that specific reference had been made to such a code by a number of the witnesses. The court then allowed the prosecution to use the term and make further inquiry. However, the court found no evidence that defendant had intimidated any witness and therefore prohibited any mention or insinuation to that effect.

Defendant was convicted of the offenses charged and was sentenced to concurrent sentences of seventy-two years for attempted first degree murder and thirty-six years for first degree assault.

L.

Defendant first contends that the trial court erred in admitting evidence of his tattoos. He further contends that the court improperly allowed evidence of an "inmate code." We perceive no abuse of discretion in the trial court's rulings.

Relevant evidence is evidence having any tendency to make the existence of any material fact more probable or less probable. CRE 401. Although relevant evidence generally is admissible, it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. CRE 408.

The trial court has broad discretion in determining the admissibility of evidence and in weighing its probative value against its prejudicial effect under CRE 408. Absent an abuse of such discretion, the court's rulings will not be disturbed. The defendant seeking to show an abuse of discretion must show that the court's decision to admit or reject evidence was manifestly arbitrary, unreasonable, or unfair. People v. Ibarra, 849 P.2d 33 (Colo.1998); People v. Eggert, 923 P.2d 230 (Colo.App.1995).

Similarly, the trial court has broad discretion to determine the extent to which a proffered expert opinion would be helpful to the jury, and its decision whether to admit such testimony will not be overturned on appeal absent an abuse of discretion. People v. Williams, 790 P.2d 796 (Colo.1990).

On review, we must assume the maximum probative value that a reasonable fact-finder might give to the evidence and the minimum unfair prejudice that might reasonably be expected. People v. Gibbens, 905 P.2d 604 (Colo.1995).

A.

Defendant argues that the court erred in admitting evidence of the tattoo on his neck to show identity, motive, or intent. We disagree.

Other courts have held evidence of racial prejudice admissible where it supplies a possible motive for the defendant's actions. See O'Neal v. Delo, 44 F.3d 655 (8th Cir.1995)(evidence of defendant's membership in racist organization admissible as probative of defendant's motive); State v. Henke, 954 S.W.2d 685 (Mo.Ct.App.1997)(defendant's use of derogatory racial term admissible to show motive for unprovoked assault); State v. Novak, 949 SW.2d 168 (Mo.Ct.App.1997)(evidence of defendant's "white pride" tattoo admissible to show motive for murder). Further, evidence of tattoos can be relevant to the issue of identity. State v. Kendrick, 47 Wash.App. 620, 736 P.2d 1079 (1987)(evidence of tattoo depicting skull piereed with sharp object relevant to identity and motive in trial for murder where victims' heads similarly mutilated).

Here, the victim testified that, two days before the assault, he had confronted defendant about the offensive tattoo on his neck. Under the cirenmstances, evidence of defendant's tattoo was logically relevant to the issue of intent because it made it more probable that defendant possessed the intent to commit the assault than without such evidence. Further, it was relevant to the issue of motive, providing an explanation for defendant's actions.

We perceive no abuse of discretion in the trial court's finding that the probative value of the tattoo evidence was not substantially outweighed by its prejudicial effect. Defendant was able to explain the cireum-stances under which he got the tattoo and also to state that he was not proud of it and did not believe in its message. In addition, he testified that he had made inquiries about getting it removed but had been unable to afford the cost of doing so. Under these cireumstances, the trial court did not abuse its discretion in admitting evidence of the tattoo on defendant's neck.

B.

Defendant also argues that the trial court erred in admitting evidence of the Norse goddess tattoo and in allowing an expert witness to testify about the significance of the tattoos. Defendant argues that the substance of the expert's testimony about the tattoos was so overwhelmingly prejudicial that it warrants reversal of his conviction. We disagree.

The expert witness did not offer an opinion as to whether defendant was a white supremacist or was likely to attack a person of a different race. See People v. Masters, 33 P.3d 1191 (Colo.App.2001) (upholding admission of expert witness testimony when, inter alia, expert did not opine on ultimate issue of whether defendant had committed the crime). Further, any prejudice resulting from the testimony was mitigated by the expert's own acknowledgment that the Norse goddess tattoo could have various meanings, including that described by defendant. We thus conclude that the trial court did not abuse its discretion.

C.

We also disagree with defendant's contention that the trial court abused its discretion in admitting evidence of the existence of an "inmate code."

The prosecution sought to introduce evidence of an unwritten "inmate code" to explain why the victim changed his account of who had attacked him and why another inmate also had changed his story. The victim's first description of his attacker matched that of defendant. The victim then claimed he did not know who had attacked him. The victim later prepared and signed an affidavit stating he did not know who his attacker had been, but that it had not been defendant. At trial, however, the victim identified defendant as the person who had assaulted him.

The record supports the trial court's finding that evidence showing the existence of an inmate code had been brought out and supported by the witnesses' testimony. The vice-tim testified, without objection, that he had filled out an affidavit recanting his earlier statement naming defendant as the person who had assaulted him because he feared the consequences if he "ratted" on defendant. The prosecutor asked the victim, also without objection, what the word "snitch" meant to him, and he answered, "Death." The prosecutor then asked the victim if he was familiar with a convict code. The victim replied that inmates do not testify against other inmates for fear of physical attack.

The DOC chief investigator also testified without objection that it was common for inmates who were victims of attacks to withhold the attacker's identity or refuse to give information to investigators because of a "code of silence." However, he also stated during cross-examination that he was not aware of any evidence that defendant had threatened the victim.

The witnesses' testimony was sufficient to demonstrate the existence of an inmate code and to permit the prosecutor to use the term in his case and argument. Further, the prosecutor followed the court's instruction not to use the term "inmate code" until other evidence had been introduced to support the use of that term, and the prosecutor did not claim that defendant had intimidated any witnesses.

Such testimony was relevant to explain why the victim and other inmates had given conflicting statements as to who had committed the assault. We thus perceive no error in its admission. Cf. People v. Hampton, 746 P.2d 947 (Colo.1987)(allowing expert testimony on rape trauma syndrome to explain vie-tim's delay in reporting); People v. Lafferty, 9 P.3d 1182 (Colo.App.1999)(allowing expert testimony regarding victim's recantations as part of "cycle of violence" associated with domestic violence}.

IL

Defendant also contends that the sentences imposed after the trial court adjudicated him a habitual criminal are illegal. Specifically, he argues that under § 16-13-103(4)(b), C.R.S.2001, he was deprived of his constitutional right to due process and trial by jury because the trial court, and not the jury, determined whether he was a habitual criminal,. We do not agree.

Because this challenge to the constitutionality of Colorado's statutory scheme for adjudicating habitual eriminality was not raised in the trial court, we decline to address it on appeal. See People v. Lesney, 855 P.2d 1364 (Colo.1993) (constitutionality of statute not raised before trial court and, therefore, not preserved for review); People v. Boyd, 30 P.3d 819 (Colo.App.2001)(challenge to constitutionality of statute cannot be raised for first time on appeal under constitutional plain error doctrine); People v. Shepherd, 43 P.3d 693 (Colo.App. 2001)(declining to address constitutionality of habitual eriminal statute).

IIL

Finally, defendant contends that first degree assault is a lesser included offense of attempted first degree murder, that his convictions for attempted first degree murder and first degree assault merge, and that the conviction for first degree assault therefore must be vacated. We reject this contention.

Although a defendant may be convicted of multiple offenses arising out of a single transaction, the defendant cannot be convicted of an offense that is a lesser included offense of another crime of which he or she is convicted. A lesser offense is included within a greater offense when the proof of the essential elements of the greater offense necessarily establishes all the elements required to prove the lesser offense. If a defendant is convicted of both a greater offense and a lesser included offense, the convictions "merge." Merger requires a comparison of the elements of the applicable statutes, not of the evidence presented on those elements. People v. Rodrigues, 914 P.2d 230 (Colo.1996); People v. Webster, 987 P.2d 836 (Colo.App.1998).

In Webster, a division of this court determined that first degree assault is not a lesser included offense of attempted first degree murder. The division reasoned that the crime of first degree assault requires proof that defendant either (1) inflicted serious bodily injury, either with a deadly weapon or under cireumstances manifesting extreme indifference to human life, or (2) had the specific intent to disfigure the victim seriously and permanently. See $ 18-3-202(1), C.R.S. 2001. Because neither of these elements is an element of attempted first degree murder, the division concluded that first degree assault is not a lesser included offense of attempted first degree murder.

We agree with the reasoning in Webster and thus conclude that defendant's convie-tions for first degree assault and attempted first degree murder do not merge.

The judgment and sentence are affirmed.

Judge CASEBOLT and Judge VOUT, concur.


author: Judge VOGT.

text:
    CITY OF BOULDER, a municipal corporation of the State of Colorado, Petitioner-Appellant, v. FOWLER IRREVOCABLE TRUST 1992-1, Respondent-Appellee.
    No. 01CA0224.
    Colorado Court of Appeals, Div. V.
    Jan. 3, 2002.
    Certiorari Denied Aug. 26, 2002.

      Opperman & Associates, P.C., Marlin D. Opperman, William M. Schell, Denver, CO; Joseph N. deRaismes, III, City Attorney, Jerry P. Gordon, Assistant City Attorney, Boulder, CO, for Petitioner-Appellant.
    Weiner, Schiller and May, P.C., Mark E. May, Englewood, CO, for Respondent-Ap-pellee.
   Opinion by

Judge VOGT.

The City of Boulder appeals from a judgment entered in condemnation proceedings brought by it to acquire property owned by the Fowler Irrevocable Trust 1992-1 (the Trust). Boulder challenges the trial court's rulings on the parties' pretrial motions in limine and on Boulder's request at trial to present testimony of a surrebuttal witness. We affirm.

Boulder filed a petition in condemnation to acquire a 3.01 acre parcel of undeveloped land owned by the Trust and needed for a project to construct flood control and drainage facilities along Goose Creek.

At the time the petition was filed, most of the parcel was designated on the flood insurance rate map of the Federal Emergency Management Agency (FEMA) as being in Zone A, the floodway of Goose Creek, an area of high flood hazard. The property was also identified in Boulder's floodplain ordinances as being predominantly in a high flood hazard zone. Development of the property was essentially prohibited because of these designations.

Before the valuation trial, both parties filed motions to have the trial edurt determine whether the limitation on development of the property arising out. of these designations could be considered in valuing the property. The Trust argued that the high hazard and floodway designations were the result of the project for which the property was being taken and thus, under the project influence rule, could not be considered in determining the property's value. Boulder argued that the designations did not arise from the Goose Creek channelization project for which the property was being acquired and that their effect on the property's value could therefore be taken into account.

In a bench ruling following a two-day evi-dentiary hearing, the trial court stated at the outset that resolution of the issue required it to define the project and its scope and to determine the relationship of the floodway and high hazard designations to the project. Based on the evidence, the court defined the project as a two-track flood control effort, begun in the 1970s, that involved both (1) effectuating physical changes on the land such as channelization to mitigate flood damage, and (2) conforming Boulder's floodplain regulations to federal standards so that city residents could take advantage of federal insurance programs. The two tracks were characterized by the court as "inextricably intertwined and intersecting," with Track 1 physical changes affecting FEMA designations and Track 2 efforts to meet FEMA requirements affecting Track 1 decisions.

The court found that, before the 1980s, the Trust's property was designated by Boulder as being in a floodplain and by FEMA as being in Zone B, which meant that it was subject to some flooding but that the owner was free to develop and build on the property without significant limitation. The court further found that, as a direct result of Boulder's flood control project, the property had been reclassified by FEMA as being in the Goose Creek floodway (Zone A) and by Boulder as being in a high hazard area. The parties had stipulated that these designations "essentially prohibited" development.

The trial court concluded that, because the designations reducing the value of the property resulted from the project for which the property was being taken, they could not be considered in valuing the property.

Consistent with the trial court's ruling, the parties' evidence of value at the valuation trial did not take into account the effect of the floodway and high hazard designations. The commissioners were instructed that they could consider "the existence of flooding and drainage which may occur on the property," but could not consider any regulatory limitations on development of the property arising out of its classification as a floodplain, flood-way, or high hazard area. The commission awarded the Trust $2,092,351 as compensation for the taking of its property, and the court entered judgment in that amount.

I.

Boulder contends that the trial court erred in ruling that the designations limiting development of the property were part of the same channelization project for which the property was being acquired and, accordingly, precluding consideration of those limitations in valuing the property. We disagree.

Where, as here, a trial court's ruling in a condemnation case presents a mixed question of law and fact, we review its evi-dentiary findings of fact under a clear error standard and review its conclusions of law de novo. See E-470 Public Highway Authority v. 455 Co., 3 P.3d 18 (Colo.2000).

A.

Article II, section 15, of the Colorado Constitution provides, in relevant part, that "[plrivate property shall not be taken or damaged, for public or private use, without just compensation."

Under the principle referred to by the parties and the trial court in this case as the "project influence rule," just compensation cannot include any enhancement or reduction in value that arises from the very project for which the property is being acquired. See Williams v. City & County of Denver, 147 Colo. 195, 363 P.2d 171 (1961); see also Department of Health v. Hecla Mining Co., 781 P.2d 122 (Colo.App.1989)( in value attributable to decontamination project for which property was being acquired could not be considered in determining property's value); E-470 Public Highway Authority v. 455 Co., 983 P.2d 149 (Colo.App.1999){(reservation of highway right-of-way that diminished property's value could not be used to reduce compensation due landowner whose property was being taken for same highway project), rev'd on other grounds, 3 P.3d 18 (Colo. 2000); see generally 4 Julius L. Sackman, Nichols on Eminent Domain § 12B.17[1] (rev. 3d ed. 1999).

This principle promotes fairness in valuing property by preventing a windfall to the property owner based on speculative potential enhancements in value while, at the same time, protecting the property owner from the injustice of assessing against it a diminution in the property's value caused by the same project for which it is being taken. See Williams v. City & County of Denver, supra.

Application of the project influence rule often requires determining the scope of the project for which the property is being taken. The court must determine whether the property was probably within the scope of the project from the time the government was committed to the project. If it was, the property owner is not entitled to any increase in value, and is not charged with any decrease in value, occasioned by the government's undertaking the project. See, e.g., United States v. Reynolds, 397 U.S. 14, 90 S.Ct. 803, 25 L.Ed.2d 12 (1970), United States v. Land, 213 F.3d 830 (5th Cir.2000).

"Project seope" is not to be narrowly interpreted. United States v. 62.17 Acres of Land, 538 F.2d 670, 678 (5th Cir.1976). Further, if the property was within the scope of the project from the outset, the fact that it was acquired only in a later phase of the project does not preclude application of the project influence rule. See Board of County Commissioners v. Ferrebee, 844 P2d 308 (Utah 1992).

Like other cireumstances affecting a property's value, enhancements or reductions in value based on regulatory actions, such as rezoning or the imposition of use limitations, are excluded from consideration under the project influence rule if they result from the project. See Williams v. City & County of Denver, supra, 147 Colo. at 201, 363 P.2d at 174 (approving trial court ruling precluding evidence of probable zoning change if "such probability of change in zoning arose subsequent to the filing of this action as a result of the proposed construction or actual construction of the public work"); see also People ex rel. Department of Public Works v. Arthofer, 245 Cal.App.2d 454, 54 Cal.Rptr. 878, 885 (1966)(where subject property had been within scope of proposed freeway from the outset, "changes in land use, to the extent that they were influenced by the proposed improvement, were properly excluded from consideration in evaluating the property taken"); Masheter v. Kebe, 34 Ohio App.2d 32, 295 N.E.2d 429 (1978)(where interchange zoning was adopted as direct result of interstate highway improvement, parcel taken for construction of improvement had to be valued without consideration of the zoning change), aff'd, 49 Ohio St.2d 148, 359 N.E.2d 74 (1976); State v. Templeman, 39 Wash.App. 218, 693 P.2d 125 (1984)(rezoning and extension of utilities to property that were a direct result of proposed highway project for which property was taken were to be disregarded in determining compensation for property).

Conversely, the effect on value of such regulatory actions is not excluded from consideration under the project influence rule if the actions predated or were unrelated to the project. See Williams v. City & County of Denver supra, 147 Colo. at 201-02, 363 P.2d at 175 (noting that evidence of probable zoning change could be admitted where such change was "unrelated to the acquisition of the subject property"); Maricopa County v. Barkley, 168 Ariz. 234, 812 P.2d 1052 (Ct.App.1990)(error to instruct jury that it could ignore diminution in property value caused by floodplain regulations where evidence did not support claim that regulations were preliminary steps to the taking of the property); Kansas City Power & Light Co. v. Jenkins, 648 S.wW.2d 555 (Mo.Ct.App.1983)(rezoning that occurred pri- or to taking was done to permit an unrelated industry to relocate and was not result of project for which property was taken; therefore, evidence of rezoning was properly admitted).

B.

The trial court applied these legal principles here, recognizing that "[ilf the high hazard and floodway designations ... result from the project, [the Trust] must prevail, and if they do not, [Boulder] must prevail."

Boulder argues that the trial court's application of the project influence rule was legally erroneous because a "project" must be limited to construction or acquisition of property and cannot include regulatory actions taken by a public entity, even if such actions address the same public need. We disagree.

We are aware of no authority supporting the proposition that, as a matter of law, a "project" cannot be comprised of both physical activities on the land and related regulatory efforts to address the same problem. The trial court's determination that the project at issue here encompassed both kinds of efforts is, as the court observed, consistent with the principle that just compensation is essentially a matter of fairness, see Platte River Power Authority v. Nelson, 775 P.2d 82 (Colo.App.1989), and fairness is not served by a narrow interpretation of project. See United States v. 62.17 Acres of Land, supra.

Further, even if "project" were to be narrowly interpreted as Boulder proposes, the evidence discussed below could support a finding that the designations limiting development resulted from Boulder's physical activities on the land, not simply from its regulatory actions.

C.

The trial court's finding that the designations reducing value were "a direct result of [Boulder's] activities" is supported by evidence in the record.

Boulder's floodplain and wetland coordinator testified that the property was designated as a floodplain, and as being in FEMA's Zone B, in the 1970s and early 1980s, and that "you could build" on it under those designations.

In 1986, after Boulder completed a portion of the first phase of the channel improvements to Goose Creek, it submitted a Request for Letter of Map Revision (LOMR) and a formal appeal to FEMA, seeking a revision of FEMA's map of the area. The LOMR stated that the revision was being requested "in order to take into account the recent completion of the rough grading of the Goose Creek Channel Improvement Project," and the appeal similarly stated that it was "being made to account for certain construction activities that have altered the floodplain." Boulder's floodplain coordinator testified that the LOMR was filed "specifically in response to the completion of Phase I improvements."

FEMA issued a new map in 1988 that designated the property as being in Zone A, the floodway of Goose Creek, where construction of improvements was prohibited; Boulder subsequently adopted floodplain or-dinanees that identified the property as being predominantly in a high flood hazard zone in which development was prohibited. Boulder's floodplain coordinator conceded in his testimony that Boulder had not adopted such an ordinance, and FEMA did not have any official map identifying a floodway on the property, before the publication of the 1988 FEMA map.

Boulder cites contrary evidence that, it argues, establishes that there was no impact on the floodway or high hazard designation caused by its channelization project. However, the trial court, whose function it is to weigh the evidence and assess credibility, see M.D.C./Wood, Imc. v. Mortimer, 866 P.2d 1380 (Colo.1994), was not persuaded by Boulder's evidence. Because the court's finding that the designations resulted from the project is not clearly erroneous, it may not be set aside on appeal,. See E-470 Public Highway Authority v. 455 Co., supra, 3 P.3d a 22.

D.

In sum, the trial court applied a correct legal analysis in resolving the issue before it, and its factual findings are not clearly erroneous. Accordingly, we uphold its ruling that. the designations limiting use of the property resulted from the project and therefore could not be considered in valuing the property.

II.

Boulder next contends that the trial court abused its discretion in refusing to permit it to present a surrebuttal witness at the valuation trial. Again, we disagree.

Whether to allow a party to call a surrebuttal witness is within the sound discretion of the trial court, whose decision will not be disturbed absent an abuse of that discretion. See Rice v. Department of Corrections, 950 P.2d 676 (Colo.App.1997); see also E-470 Public Highway Authority v. 455 Co., supra, 3 P.3d at 23 (trial court has substantial discretion in deciding relevancy, probative value, and prejudicial impact of evidence; its ruling will be set aside as an abuse of discretion only if it is manifestly arbitrary, unreasonable, or unfair).

Here, after one of the Trust's experts had testified that the Trust property would not be subject to any major drainage or flooding issues, Boulder sought to present testimony from its own expert concerning flaws in the study and conclusions of the Trust's expert. The Trust's counsel objected, arguing that the proffered witness had not done any independent analysis, but had simply "picked apart" a portion of its witness's study that had not been put into evidence, and that the Trust had the right to have the final word on an issue on which it had the burden of proof.

The trial court excluded the testimony under CRE 403. It noted that the proceedings had been scheduled for three days and that it was 5:00 p.m. on the third day; that Boulder had already called two witnesses to testify that, contrary to the opinion of the Trust's expert, flood water would flow over the property; and that the interests of fairness and prevention of unfair prejudice or confusion of the issues warranted excluding the surrebut-tal testimony.

The ruling was not manifestly arbitrary, unreasonable, or unfair and therefore will not be set aside as an abuse of discretion.

The judgment is affirmed.

Judge KAPELKE and Judge CASEBOLT, concur.