author: Judge NIETO. Judge TAUBMAN

text:
    Russ E. VERRIER, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF CORRECTIONS; John W. Suthers, Executive Director; Mary West, Deputy Director; Jerry Gasko, Deputy Director; and Edd C. Gillespie, Grievance Officer, Defendants-Appellees.
    Nos. 01CA1803, 01CA2306.
    Colorado Court of Appeals, Div. IV.
    July 31, 2003.

      Russ E. Verrier, Pro Se.
    Ken Salazar, Attorney General, Juliana M. Zolynas, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees.
   Opinion by

Judge NIETO.

Plaintiff, Russ E. Verrier, appeals the dismissal of his complaint against defendants, Colorado Department of Corrections; John W. Suthers, Executive Director; Mary West, Deputy Director; Jerry Gasko, Deputy Director; and Edd C. Gillespie, Grievance Officer. We affirm.

Plaintiff, an inmate in the Huerfano County Correctional Center, submitted a series of grievances seeking review of the denial of earned time credit for his participation in two inmate vocational programs. Plaintiff argued that he was entitled to earned time credit pursuant to §§ 17-22.5-802(1.5)(a) and 17-22.5-405, C.R.9.2002. Defendants denied plaintiff's grievances, concluding that he was not eligible for earned time credit under Department of Corrections (DOC) policy because of his educational classification level and that he was not entitled to such credit under §§ 17-22.5-302(1L.5)(a) and 17-22.5-405.

Plaintiff filed a complaint in the trial court seeking alternative relief pursuant to C.R.C.P. 106(a)(2) and (4). Under C.R.C.P. 106(a)(2), he sought an order compelling defendants to grant him earned time credit. Pursuant to C.R.C.P. 106(a)(d), he sought judicial review of the DOC's policy relating to earned time credit.

Defendants moved under C.R.C.P. 12(b)(5) to dismiss his complaint, and plaintiff failed to timely respond. The trial court dismissed plaintiff's complaint based on his failure to respond and based on "the authorities cited in the motion." Plaintiff appeals that ruling, as well as the trial court's subsequent denial of his motion for leave to file a response.

We reject plaintiff's contention that the trial court erred in dismissing his complaint.

A motion to dismiss pursuant to C.R.C.P. 12(b)(5) for failure to state a claim upon which relief can be granted serves as a test of the formal sufficiency of a plaintiff's complaint. Motions to dismiss are looked upon with disfavor and should not be granted unless it appears beyond a doubt that a plaintiff can prove no set of facts that would entitle the plaintiff to relief. Public Service Co. v. Van Wyk, 27 P.3d 377 (Colo.2001).

"When reviewing a motion to dismiss under C.R.C.P. 12(b)(5), all averments of material fact must be accepted as true, and all of the allegations in the complaint must be viewed in the light most favorable to the plaintiff." Also, the court may consider only matters stated within the complaint itself, An appellate court is in the same position as the trial court to rule on a motion to dismiss. Thus, the appellate court must determine whether the plaintiff has pleaded facts that, if true, are sufficient to support each claim asserted in the complaint. Public Service Co. v. Van Wyk, supra, 27 P.3d at 386.

L.

Plaintiff first contends he sufficiently alleged that defendants failed to grant him earned time credit to which he is entitled under §§ 17-22.5-302(1.5)(a) and 17-22.5-405, and therefore, he is entitled to mandamus relief pursuant to C.R.CP. 106(2)(2). We are not persuaded.

C.R.C.P. 106(a)(2) provides that relief may be obtained "[where the relief sought is to compel a lower judicial body, governmental body, corporation, board, officer or person to perform an act which the law specially enjoins as a duty resulting from an office, trust, or station." Mandamus is appropriate only when the following three-part test is satisfied: (1) the plaintiff has a clear right to the relief sought; (2) the agency has a clear duty to perform the act requested; and (8) no other adequate remedy is available to the plaintiff. Sherman v. City of Colorado Springs Planning Comm'n, 763 P.2d 292, 295 (Colo.1988); Lazuk v. School Dist. No. 1, 22 P.3d 548 (Colo.App.2000).

"Mandamus lies to compel the performance of a purely ministerial duty involving no discretionary right and not requiring the exercise of judgment. It does not lie where performance of a trust is sought which is discretionary or involves the exercise of judgment." Bd. of County Comm'rs v. County Road Users Ass'n, 11 P.3d 432, 437 (Colo.2000).

Plaintiff contends that defendants have failed to perform their duty to award him earned time credit as required by § 17-22.5-302(1.5)(a). However, this section provides that earned time credits are to be awarded pursuant to § 17-22.5-405. Section 17-22.5-405(8), C.R.98.2002, provides that the department "may grant, withhold, withdraw, or restore, consistent with the provisions of this section, an earned time deduction from the sentence imposed." Further, § 17-22.5-302(d), C.R.98.2002, states that the DOC "may grant, withhold, withdraw, or restore" earned time deductions and such a deduction "shall not vest upon being granted and may be withdrawn once it is granted."

Plaintiff argues that the phrase "shall receive earned time pursuant to section 17-22.5-405" in § 17-22.5-302(1.5)(a) creates a mandatory duty of the DOC to grant him earned time if he makes positive progress in a correctional education program. We disagree.

When construing a statute, we must ascertain and give effect to the intent of the General Assembly. The statute must be read and considered as a whole and interpreted to give sensible and harmonious effect to all its parts. Further, we must avoid an interpretation that leads to an absurd result. State v. Nieto, 993 P.2d 493 (Colo.2000). Words and phrases should be read in context and construed according to their common usage. Section 24-101, C.R.8.2002.

The word "shall" used in a statute generally has a mandatory connotation. People v. Guenther, 740 P.2d 971 (Colo.1987).

When § 17-22.5-802(1.5)(a) is read in conjunction with the broad discretionary language in §§ 17-22.5-802(4) and 17-22.5-4058), it is clear that the legislative intent was to give the DOC broad authority to "grant, withhold, withdraw, and restore" earned time deductions. This interpretation is consistent with other appellate opinions that have considered the DOC's authority over earned time deductions. Renneke v. Kautzky, 782 P.2d 343 (Colo.1989)(General Assembly granted DOC discretion to withhold, withdraw, or restore earned time ered-its); People v. Frank, 30 P.3d 664, 666 (Colo.App.2000)("granting of earned-time by the DOC is discretionary").

"Shall," in addition to its mandatory meaning, also can mean "should," "may," or "will." Black's Law Dictionary 1379 (7th ed.1999). To read "shall" in § 17-22.5-802(1.5)(a) in a mandatory sense would lead to an absurd result. The statute would then require a mandatory grant of credit based upon an exercise of discretion. We are directed to avoid such a result. See State v. Nieto, supra.

Thus, we conclude that granting of earned time credit under § 17-22.5-8302(1.5)(a) lies in the discretion of the DOC, and plaintiff has no clear right to receive, and defendants have no clear duty to grant, earned time credit. Accordingly, plaintiff is not entitled to mandamus relief.

Plaintiff argues that defendants are obligated to review his performance records and determine whether he is entitled to earned time credit. However, plaintiff did not make such a claim in his complaint. Therefore, the issue was not properly raised, and we will not consider it here. See People v. Frank, supra (issue not raised in the district court not considered on appeal); see also County of Adams v. Hibbard, 918 P.2d 212 (Colo.1996)(appellate courts may consider only issues actually determined by another court or agency and properly presented for review).

IL

Plaintiff also contends that defendants' refusal to grant him earned time credit was a quasi-judicial determination, and therefore, he is entitled to relief pursuant to C.R.C.P. 106(a)(d). We disagree.

C.R.C.P. 106(a)(4) provides that relief may be obtained "[wJhere any governmental body or officer or any lower judicial body exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provided by law."

Quasi-judicial actions generally involve a determination of the rights, duties, or obligations of specific individuals based on the application of existing legal standards to facts developed at a hearing,. Legislative action, on the other hand, usually relates to a public policy matter of a permanent or general character, prospective in nature, and usually not restricted to an identifiable person or group. Cherry Hills Resort Development Co. v. City of Cherry Hills Village, 757 P.2d 622 (Colo.1988). Actions necessary to carry out existing legislative policies are deemed to be administrative. City of Aurora v. Zwerdlinger, 194 Colo. 192, 571 P.2d 1074 (1977). Legislative and administrative actions are not reviewable pursuant to C.R.C.P. 106(a)(4). Prairie Dog Advocates v. City of Lakewood, 20 P.3d 1203 (Colo.App.2000).

We review de novo a trial court's determination whether a plaintiff was seeking review of a quasi-judicial function of a governmental body. Jones v. Colo. Dep't of Corrections, 53 P.3d 1187 (Colo.App.2002).

Here, plaintiff filed a grievance challenging the denial of earned time credit, and at each step in the grievance process, it was denied because plaintiff was not eligible for such credit pursuant to DOC policy. In the third step of the grievance process, plaintiff clarified the nature of his complaint.

I wish to clarify my position.... It is the underlying CDOC policy which renders me ineligible for the educational earned time.... It is [due tol the fact that the CDOC policy does not conform to the mandated statutory requirement that I am not eligible for the educational earned time.

Plaintiff's C.R.C.P. 106(a)(4) complaint is ambiguous as to what DOC action he sought to have reviewed. He alleged that the DOC policy is arbitrary and capricious, violates equal protection guarantees, and renders those most in need of vocational programs ineligible. He also alleged that defendants abused their discretion by unreasonably applying statutes and implementing policies that deny him educational earned time. When the allegations in his C.R.C.P. 106(a)(4) complaint are read in the light of the grievance he is appealing, it is clear that he is seeking review of the DOC's educational earned time policy, rather than review of the application of that policy to his situation.

The DOC's action establishing policies concerning earned time deductions was not quasi-judicial in nature. In establishing its policies, the DOC did not determine the rights, duties, or obligations of plaintiff, nor did it apply existing legal standards to plaintiffs situation as it was demonstrated by facts developed at a hearing. Therefore, the creation of this policy was not a quasi-judicial action because the policy applies to all inmates and was not directed specifically at plaintiff. See Jones v. Colo. Dep't of Corrections, supra (DOC's regulation to withhold deposits from inmates' accounts was applied to and enforeed against all prisoners owing restitution, was not specifically directed against the plaintiff, and therefore, was not a quasi-judicial action). Therefore, plaintiff failed to state a claim under C.R.C.P. 106(a)(d4).

Even if plaintiff's complaint could be read to seek review of defendants' application of DOC policy to his situation, it still would fail because he did not seek this relief in his grievance. As noted above, plaintiff's grievance, which was incorporated into his C.R.C.P. 106(a)(d) complaint, asserted that the DOC educational earned time policy did not comply with the statutory requirements. The grievance did not assert that defendants abused their discretion in the application of the policy to plaintiff.

C.R.C.P. 106(a)(4) proceedings are limited to review of whether the decision of the governmental body was an abuse of disceretion or was made without jurisdiction, based on the evidence in the record before that body. C.R.C.P. 106(a)(4)(I); Liquor & Beer Licensing Advisory Bd. v. Cinco, Inc., 771 P.2d 482 (Colo.1989). Thus, because they were not asked to apply the DOC policy to plaintiff's situation, defendants made no such decision, and there can be nothing in the record for the trial court to review. See Hessling v. City of Broomfield, 193 Colo. 124, 563 P.2d 12 (1977)(when conducting review under C.R.C.P. 106, district court may not uphold a city council's decision on a basis not considered by the city council); Spencer v. Bd. of County Comm'rs, 39 P.3d 1272 (Colo.App.2001)(district court review under C.R.C.P. 106(a)(4) limited to review of the record, and therefore, court cannot grant relief under C.R.C.P. 60 based on matters not considered by the board).

Further, C.R.C.P. 106(a)(4) does not provide for judicial review of the sufficiency and validity of an agency's legislative acts, including challenges for constitutional sufficiency. Liquor & Beer Licensing Advisory Bd. v. Cinco, Inc., supra. Therefore, plaintiff's claim that the DOC policy violates equal protection guarantees cannot be reviewed pursuant to C.R.C.P. 106(a)(4).

Accordingly, the trial court did not err in dismissing plaintiff's claim brought under C.R.C.P. 106(a)(d). See Stuart v. Bd. of County Comm'rs, 699 P.2d 978, 980 (Colo.App.1985)(trial court had no jurisdiction under C.R.C.P. 106(a)(d) to review decision that was neither judicial nor quasi-judicial).

Because of our determination of the issues addressed above, we do not consider whether the trial court properly dismissed plaintiff's complaint based on his failure to respond to defendants' motion.

The judgment is affirmed.

Judge CASEBOLT concurs.

Judge TAUBMAN concurs in part and dissents in part.

Judge TAUBMAN

concurring in part and dissenting in part.

I concur with part I of the majority opinion. However, because I agree with plaintiff, Russ E. Verrier, that defendants' refusal to grant him earned time was a quasi-judicial determination, I disagree with part II of the majority opinion and respectfully dissent.

After Verrier received the initial denial of his request for earned time credit, he filed a grievance with DOC and completed the three-step grievance process. His grievances alleged he satisfied the requirements for educational earned time provided by statute because he had taken horticultural and painting classes and made "positive progress" as required. He also alleged that the underlying DOC policy, which rendered him ineligible, did not conform with the statutory requirements. Similarly, Verrier's complaint in the district court alleged that DOC's regulation concerning earned time was improperly applied to him.

One test for determining quasi-judicial actions focuses on three factors. See, e.g., Jones v. Colo. Dep't of Corr., 53 P.3d 1187, 1191 (Colo.App.2002); Baldauf v. Roberts, 37 P.3d 483, 484 (Colo.App.2001). However, as the majority acknowledges, another test for determining a quasi-judicial action focuses on the governmental decision and whether it was based on the application of criteria to a specific cireumstance. Under this test, in the absence of statutory notice and hearing requirements, an action may nevertheless be quasi-judicial if "the governmental decision is likely to adversely affect the protected interests of specific individuals, and if a decision is to be reached through the application of preexisting legal standards or policy considerations to present or past facts." Prairie Dog Advocates v. City of Lakewood, 20 P.3d 1203, 1207 (Colo.App.2000)(quoting Cherry Hills Resort Dev. Co. v. City of Cherry Hills Village, 757 P.2d 622, 627 (Colo.1988)).

An inmate has no fundamental or constitutional right to time off for good behavior, and any entitlement to such a sentence reduction exists only as created by statute. People v. Alderman, 720 P.2d 1000, 1001 (Colo.App.1986).

The earned time statutes, §§ 17-22.5-302 and 17-22.5-405, C.R.8.2002, do not provide for notice or a hearing before action is taken. Section 17-22.5-802(1.5)(a) specifically mandates that if an inmate makes positive progress in a correctional education program, he or she "shall receive earned time pursuant to section 17-22.5-405." Section 17-22.5-405(1), in turn, provides that earned time "may be deducted from the inmate's sentence upon a demonstration to the department by the inmate, which is certified by the inmate's case manager or parole officer, that he has made consistent progress in the following categories as required by the department of corree-tions," and correctional education programs are a enumerated category.

Under DOC policy, only vocational student inmates classified as level 5 are eligible for education earned time, and "[nljo other vocational students are eligible[ ]" based upon their academic and vocational initial needs assessment level, which is administered to all DOC inmates. See Correctional Education Program Memorandum from Eric Brookeres, Director of Academic Education, and Tony Romero, Director of Vocational Education, to Program Managers, Academic and Voeational Teachers, Colorado Department of Corree-tions (Sept. 27, 2000)(CEP Memo.). Level 5 is defined as "SPECIAL NEEDS-Has some form of disability which prevents full-time employment. May be eligible to receive disability payments." CEP Memo. 2. Verrier's vocational classification was level 1. Level 1 is defined as "ESTABLISHED VOCATIONAL CAREER Has a vocational career established for at least four years, to which he/she plans to return upon release from the D.0.C. Has a journeyman's or master's license in a trade to which he/she can return. Is retired. Has no need of vocational programs." CEP Memo. 2.

DOC Admin. Reg. No. 850-04 provides a grievance process for inmate complaints, and all inmates are given written notification of the procedure upon entering the DOC. An inmate must first attempt to resolve his or her complaint informally. After that, the grievance procedure involves a three-step process. Inmates are given a grievance form for description of the complaint, which states, "If you are dissatisfied with the response to this Step 1 or Step 2 grievance, you may obtain further review by submitting the next step to your [clase manager or the [glrievance [o]lfficer{ ]." Finally, the regulation provides a time limit for DOC to respond to all inmate grievances.

In Baldauf a division of this court held that DOC's administrative segregation action constituted quasi-judicial action subject to review under CR.C.P. 106(a)(d). There, DOC's regulations required notice and a hearing before an inmate could be placed in administrative segregation and required a determination made at a hearing. Baldauf v. Roberts, supra.

However, in Jones, a division of this court held that DOC's regulation requiring withholding of twenty percent of the deposits in inmate accounts to satisfy outstanding restitution obligations was not a judicial or quasi-judicial action. The Jones division based its conclusion on the fact that this regulation applied generally to all prisoners owing restitution. Thus, DOC's enforcement of the regulation was not specifically targeted at the inmate. Jones v. Colo. Dep't of Corr., supra.

Here, unlike Jones, Verrier's DOC grievance and the complaint filed in district court challenged DOC's earned time policy as it applied to him. Thus, Jones is distinguishable from the present case.

In my view, DOC's determination was a quasi-judicial action. By statute, earned time may be deducted from an inmate's sentence where he or she makes consistent progress in a correctional education program. See § 17-22.5-405(1)(g), C.R.8.2002. To the extent that the earned time statutes provide criteria for a sentence reduction, Verrier has a protected interest in earned time, even though he does not have entitlement to earned time. See People v. Alderman, supra. Additionally, DOC applied its policy concerning education earned time eredit to Verrier's particular cireumstances and concluded that he was not eligible for earned time.

Therefore, DOC's decision constituted quasi-judicial action because it was likely to adversely affect Verrier's protected interest, and the decision was based upon application of DOC's policy to Verrier. See Prairie Dog Advocates v. City of Lakewood, supra.

Consequently, I would conclude that the trial court erred in not addressing Verrier's claim on the merits. See Morgan v. Colo. Dep't of Health Care Policy & Fin., 56 P.3d 1136, 1141 (Colo.App.2002)(under delegation doctrine, sufficient statutory and administrative standards must be provided to ensure agency action is rational and consistent and must provide for meaningful appellate review).

Accordingly, I would remand the matter to the trial court for a determination on the merits.


source: Caselaw Access Project

author: Judge TAUBMAN.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Henry Guadalupe RIVAS, Defendant-Appellant.
    No. 00CA1948.
    Colorado Court of Appeals, Div. I.
    Aug. 14, 2003.

      Ken Salazar, Attorney General, John J. Fuerst, III, Assistant Attorney General, Denver, Colorado, for Plaintiff~Appellee.
    David S. Kaplan, Colorado State Public Defender, Julie Iskenderian, Deputy State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Henry Guadalupe Rivas, appeals the judgment of conviction entered upon a jury verdict finding him guilty of second degree assault and engaging in a riot. He also appeals the trial court's denial of his postconviction motion alleging ineffective assistance of counsel. We affirm.

Evidence at trial established the following facts, The victim and several of his friends were walking along a street when a van carrying defendant and several others drove by. The victim was a member of a gang, and defendant was a member of a rival gang. The groups yelled their gang names at each other. The van stopped, and a group of boys jumped out, including defendant. There was testimony that defendant got out of the van carrying a baseball bat.

As fights broke out, several girls who were with the victim's group ran away and hid. One fight involving the driver of the van took place in an alley. The main fight involved the victim and four or five occupants of the van, including the defendant. The victim testified that he picked up a large rock and was hit when he ran toward the van. There was testimony that the victim fell to the ground and the group continued to kick and hit him until he was unconscious. One witness testified that defendant hit the victim with a bat. The police recovered several shattered bottles, three or four large rocks, and blue and red bandanas at the scene. However, the police did not recover a baseball bat.

After a trial, a jury convicted defendant of the crimes charged.

I. Second Degree Assault

Defendant contends the jury instruction on second degree assault did not accurately re-fleet the charge or the law, thus violating his fundamental constitutional rights. We disagree.

When no contemporaneous objection is made to an asserted error, appellate review is limited to determining whether there is plain error. Plain error "casts serious doubt upon the basic fairness of the trial itself...." Wilson v. People, 743 P.2d 415, 419-20 (Colo.1987).

A trial court must instruct the jury correctly on the law applicable to the case. People v. Stewart, 55 P.3d 107, 120 (Colo.2002). "Failure to instruct properly on an element of a crime does not constitute plain error where that element is not contested at trial[.]" People v. Cowden, 735 P.2d 199, 202 (Colo.1987).

The second degree assault instruction given to the jury provided, in pertinent part:

The elements of the crime of assault in the second degree with a deadly weapon are:
1. That the defendant....
3. with the intent to cause bodily injury to another person,
4. caused or attempted to cause such injury to any person,
5. by means of a deadly weapon.

(Emphasis added.)

A. Attempt

Defendant argues that the jury instruction lessened the prosecution's burden of proof, requiring it only to prove that defendant attempted to commit second degree assault. We conclude there was no reversible error.

Our review is limited to plain error because defendant did not object to this jury instruction. See Wilson v. People, supra.

The People agree that the trial court improperly included the "attempted to cause" language in the instruction. The instruction given here followed the pattern jury instruction for second degree assault. See CJI-Crim. 10:08 (1988). However, in 1995, the second degree assault statute was amended to omit attempt. See Colo. Sess. Law 1995, ch. 240, § 18-8-208(1)(b) at 1251.

At trial, neither the prosecution nor the defense argued about whether defendant attempted to assault the victim. The disputed factual issue at trial was whether defendant was guilty of second degree assault as a principal or as a complicitor, not for having attempted to assault the victim,. As noted, one witness testified that she saw defendant hit the vietim with a baseball bat.

Further, at trial, defendant's theory of defense was mistaken identity. He did not dispute that the victim had been assaulted. Thus, defendant did not contest the attempt element at trial, and the attempt language in the assault jury instruction was surplusage under the cireumstances. See People v. Cowden, supra.

In light of our disposition, we need not address defendant's related contentions that reversal is required because (1) the second degree assault charged in the information was broadened when the court instructed the jury on attempted assault; and (2) the trial court did not define "attempt" for the jury.

B. Verdict

Defendant also contends that the verdict form for second degree assault failed to require the jurors to agree unanimously on a theory of culpability. In particular, he argues that, pursuant to the erroneous instruction on second degree assault, he was charged with assault based on four theories of culpability: (1) as the principal; (2) as one who made an attempt; (8) as a complicitor; and (4) as a complicitor to attempt. We are not persuaded.

"[Wlhile the jury must unanimously agree on all the elements of a crime, the jury is not required to unanimously agree on the evidence or theory by which a particular element is established." People v. Palmer, - P.3d -, -, 2003 WL 21403220 (Colo.App. No. 01CA0937, June 19, 2003).

Here, the jury was specifically instructed that, "In order to reach a verdict, it is necessary that each juror agree to it. Your verdicts must be unanimous." Thus, the jury was not required to agree unanimously on a theory of culpability. See People v. Palmer, supra.

C. Serious Bodily Injury

Defendant next contends the trial court erred in not defining "serious bodily injury" to supplement the instruction defining the term "deadly weapon." We do not agree.

Defendant relies on the notes on use in the Colorado Criminal Jury Instructions, which state that when the deadly weapon instruction is given, "it should be followed by Instruction 5:01-5(23), Serious Bodily Injury." CJI-Crim. 5:01-5(10) (1998 Supp.).

However, as noted, defendant did not object to the second degree assault instruction at trial. Additionally, at trial, defendant did not request a definition of serious bodily injury, nor did he contest that the victim sustained serious bodily injury. Evidence was presented that the victim was knocked unconscious, suffered blunt trauma to the face and head, and complained of pain in his head and ribs.

Because defendant did not contest that the victim suffered serious bodily injury, any failure to instruct the jury on that point did not amount to plain error. See People v. Cowden, supra.

II. Culpable Mental State

Defendant next contends the jury instructions on engaging in a riot and second degree assault erroneously limited the application of the mental state requirements in violation of his constitutional right to due process of law. Again, we disagree.

When a statute includes as an element of the offense a specific culpable mental state, "that mental state is deemed to apply to every element of the offense unless an intent to limit its application clearly appears." Section 18-1-508(4), C.R.8.2002.

A. Engaging in a Riot

Defendant contends that the jury instruction on engaging in a riot erroneously limited the application of the culpable mental state of "knowingly" to engaging in a riot, and did not apply the mental state to the term "employing a deadly weapon." We find no error.

At the outset, we note that the jury instruction given here for engaging in a riot followed the language of the pattern jury instruction. See CJI-Crim. 80:08 (1983). Here, the elemental instruction required, in pertinent part, that defendant "3. knowingly engaged in a riot, 4. and employed a deadly weapon during the course of rioting."

In Whitaker v. People, 48 P.3d 555, 558-59 (Colo.2002), the supreme court held that the culpable mental state of knowingly did not apply to the quantity of drugs the defendant distributed, manufactured, dispensed, sold, or possessed under the controlled substance statute, § 18-18-405, C.R.S.2002. In that statute, the offense and punishment levels are set out in separate provisions. The Whitaker court concluded that the statutory structure demonstrated the General Assembly's intent to separate sentencing factors, such as drug type or quantity, from the elements of the crime.

Engaging in a riot is committed under § 18-9-104(1), C.R.8.2002, when a person engages in a riot, a term defined by statute. "Riot" means "a public disturbance involving an assemblage of three or more persons which by tumultuous and violent conduct cere-ates grave danger of damage or injury to property or persons or substantially obstructs the performance of any governmental function." Section 18-9-101(2), C.R.8.2002.

The culpable mental state of knowingly applies to the offense of engaging in a riot. People v. Bridges, 620 P.2d 1 (Colo.1980). The statute further provides that engaging in a riot is a class 4 felony if, among other things, the actor employs a deadly weapon in the course of rioting. Otherwise, the offense is a class 2 misdemeanor. Section 18-9-104(1).

The engaging in a riot statute defines the offense in the first sentence. The second sentence sets forth the applicable punishment levels. See § 18-9-104(1). As did the supreme court in Whitaker, we conclude this statutory structure demonstrates that the General Assembly did not intend that a culpable mental state apply to the sentence enhancing factors, including employing a deadly weapon. See § 18-9-104(1); Whitaker v. People, supra.

Accordingly, we find no error.

B. Second Degree Assault

Defendant further contends that the see-ond degree assault instruction erroneously limited the intentional mens rea to element 4, which required the jury to find he acted with intent to cause bodily injury to another person. The instruction did not specify that the mental status of "intentionally" applied to each element of the offense. We agree the instruction was deficient, but conclude there was no plain error.

As relevant here, "A person commits the erime of assault in the second degree if:; ... [wiith intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon." Section 18-3-2083(1)(b), C.R.8.2002.

In jury instructions, when the mens rea requirement is offset from the other elements, it modifies all succeeding conduct elements. See People v. Rodriguez, 914 P.2d 230, 272 (Colo.1996).

In ascertaining whether there was plain error, courts must consider the jury instructions as a whole to determine whether the jury was properly advised as to the law. "The failure to include the culpable mental state in the instruction defining the offense is not plain error as long as the instructions, read and considered in their entirety, clearly instruct the jury as to the required mens rea." People v. Caldwell, 43 P.3d 663, 671 (Colo.App.2001).

Here, in addition to the second degree assault instruction, the jury was instructed on the definition of intentionally, which tracked the statutory language of § 18-1-501(5), C.R.S.2002. Specifically, the instruction stated, "A person acts "intentionally when his conscious objective is to cause the specific result proscribed by the statute defining the offense. It is immaterial whether or not the result actually occurred."

While the better practice would be to offset the mens rea requirement so that it modifies all the conduct elements, we nevertheless conclude that the jury instructions as a whole adequately informed the jury as to the required culpable mental state of second degree assault. See People v. Caldwell, supra.

Accordingly, we find no plain error in the jury instructions given here.

III. Juror Question

Defendant contends the trial court denied him due process protections by failing to respond unequivocally to the jurors that they could convict him only if he intended to commit the crime charged, not any offense. Again, we disagree.

Our review is again limited to plain error because defendant did not object to the trial court's response to questions from the jury.

-If a jury asks for information during deliberations, the trial court should provide it with an additional instruction unless: (1) the jurors can be adequately informed by directing their attention to the original instructions; (2) the question concerns matters not in evidence or does not pertain to the law of the case; or (8) the question would require the court to express an opinion on the factual matters that the jury should determine. Leonardo v. People, 728 P.2d 1252, 1255 (Colo.1986).

Here, defendant argues that the trial court's response to the jurors' questions did not adequately inform them of the exact crimes charged. During deliberations, the jury sent two sets of questions to the court. The first set read, "On [the elemental instruction for complicity], can we get clarification on #3 and 4, specifically what constitutes intent to promote or facilitate. What is intent? What is definition of promote and facilitate. What size was the van (minivan, full-size van etc.)." (Emphasis in original.) The second set of questions stated:

[Complicity instruction] We need clarification of intended in #8 and intent to promote in #4[.] Does the intent to commit the crime specify the exact assault charge or can it mean to commit a crime in general? Does intent to commit a crime constitute intending to commit the crime as charged?
The trial court responded as follows:
1. Regarding the definition of intent, you are referred to [the culpable mental state instruction, which defined intentionally].
2. Regarding the definition of promote and facilitate, you are instructed that [the] meaning of these terms is that of their common everyday meaning.
3. Regarding the size of the van, you are instructed that you must rely on your recollection of the testimony.
4. Regarding your Question 2, you are referred to [the culpable mental state instruction, which defined intentionally].

(Emphasis in original.)

The jury's questions reflected a general lack of understanding of intent. Thus, the trial court properly referred the jury back to the original jury instructions. See Leonardo v. People, supra.

IV. Complicity Instruction

Defendant also contends the trial court erroneously instructed the jury on complicity because the court, not the prosecutor, advocated inclusion of a complicity instruction and thus violated his right to due process of law. Again, we do not agree.

A. Trial Court's Comments

Defendant argues that reversal is required because during the conferences on jury instructions, the court, not the prosecutor, advocated going forward against defendant on a complicity theory. We are not persuaded.

"[Clourts must meticulously avoid any appearance of partiality, not merely to secure the confidence of the litigants immediately involved, but to retain public respect and secure willing and ready obedience to their judgments." People v. Hrapski, 718 P.2d 1050, 1054 (Colo.1986).

Here, during the conference on jury instructions, the trial court stated, "Next we need, I'm not telling you how to try your case, but [a] complicity instruction I think might be the thing to do here. That's your choice. If you don't want it, don't." The court then moved on to the other instructions. Defendant did not object to the court's comment.

A fair reading of the trial court's comment is that it was made in passing during the jury instruction conference. Additionally, the trial court also suggested to defense counsel that duress was a possible defense and suggested language to defense counsel for a theory of the case instruction before he had drafted one. Based on our review of the record, we conclude there was no partiality or appearance of partiality by the trial court.

Therefore, we find no reversible error under the cireumstances presented.

B. Failure to Charge Complicity

Defendant maintains he was deprived of any opportunity to defend himself against a complicity theory because it was not charged in the information. He also argues that he was deprived of an opportunity to raise the defense of defense of others. We are not convinced.

We are limited to plain error review because defendant did not raise these objections at trial.

Complicity is not a separate offense; rather, it is a legal theory of liability. Palmer v. People, 964 P.2d 524, 528 (Colo.1998).

Here, defendant concedes that, "While Colorado cases have previously rejected that complicity must be charged, these cases ultimately rely on the case of Mulligan v. People, 68 Colo. 17, 189 P. 5 (1919), and the [dJefendant urges this court to reconsider that [1919] opinion." Defendant also relies on Wright v. State, 101 Nev. 269, 701 P.2d 743 (1985), for the proposition that reversal is required where the state charges and proceeds against the defendant as the principal, but the jury is instructed on aiding and abetting.

Even if we were to conclude that Wright is persuasive authority, we are bound to follow the precedent established by the supreme court in Mulligan.

Further, at trial, defendant's theory of defense was mistaken identity. Defendant would have presented the jury with inconsistent theories if, on the one hand, he argued mistaken identity, and, on the other hand, he argued that if he was involved, he was acting in defense of others. The defense of mistaken identity was not viable if defendant was the principal or a complicitor.

Thus, we find no error.

C. Apprendi Violation

Defendant contends that giving the complicity instruction violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the fact of accomplice lability increases the penalty for a crime beyond the prescribed statutory maximum, and therefore, it must be charged in the indictment, submitted to the jury, and proved beyond a reasonable doubt. Again, we disagree.

In Apprendi, the Supreme Court stated, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, supra, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455.

However, contrary to defendant's contention, accomplice liability does not increase the penalty for a crime; complicity is only a theory of liability. See Palmer v. People, supra. Accordingly, Apprendi does not apply.

V. Engaging in a Riot

Defendant further contends the trial court erroneously allowed the jury to find him guilty of engaging in a riot as a principal or a complicitor. Once again, we do not agree.

A. Sufficiency of the Evidence

Defendant maintains his conviction for engaging in a riot must be vacated because there was insufficient evidence presented to support the conclusion, required by statute, that more than one person was at grave risk of danger or injury. We disagree.

When determining a challenge to the sufficiency of the evidence, appellate courts consider whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support the conclusion by a reasonable person that the defendant is guilty of the offense charged beyond a reasonable doubt. People v. Beatty, - P.3d -, -, 2003 WL 548705 (Colo.App. No. 00CA2090, Feb. 27, 2003).

Nevertheless, an appellate court may not substitute its judgment for that of the jury and reweigh the evidence or the credibility of witnesses. "However, more than a modicum of evidence is required to prove an element beyond a reasonable doubt." People v. Mandez, 997 P.2d 1254, 1263 (Colo.App.1999).

Here, defendant argues that there was no evidence to support the conclusion that anyone besides the named victim was at grave risk or in danger of injury. On the contrary, one witness testified that he saw a second fight in a nearby alley involving the driver of the van and one of the people in the victim's group. One of the girls in the vie-tim's group testified she was chased by a person in the van who threw a large beer bottle at her. Additionally, another girl testified that when she was assisting the vietim, someone said to her that he was going to kill the victim and she would be next.

Therefore, considering the evidence in the light most favorable to the prosecution, we conclude that a reasonable juror could have concluded that more that one person was at grave risk of danger or injury. See People v. Beatty, supra; People v. Mandez, supra.

B. Number of People

Defendant also contends that the complicity instruction erroneously reduced the prosecution's burden of proof for the crime of engaging in a riot,. We find no error.

Our review is limited to plain error because defendant did not object.

Generally, all jury instructions must be read and considered as a whole, and there is no reversible error if they adequately inform the jury of the law. People v. Galimanis, 944 P.2d 626, 630 (Colo.App.1997).

Here, defendant argues that although engaging in a riot requires at least three people, the jury might have found that fewer than three people participated in the riot because the complicity instruction contained the phrase "another person."

However, reading the complicity instruction in conjunction with the elements instruetion for engaging in a riot, we conclude the jury was instructed that complicity liability attaches where the complicitor has aided, abetted, advised, or encouraged one of three or more people engaging in a riot. Additionally, the jury was instructed that (1) it "must follow all of the rules" as explained by the court; (2) "[nlo single rule describes all the law which must be applied"; and (8) "the rules must be considered together as a whole."

Thus, the jury instructions as a whole adequately informed the jury of the law. See People v. Galimanis, supra.

VI. Prior Criminality

Defendant contends he was denied his rights to due process and a fair trial because the prosecutor unfairly elicited evidence of his prior criminality and engaged in repeated misconduct during closing argument. We disagree.

A. Officer's Testimony

A trial court has broad discretion in admitting evidence of other crimes, wrongs, or acts for a proper purpose. Masters v. People, 58 P.3d 979, 996 (Colo.2002). While CRE 404(b) excludes evidence of a person's other crimes, wrongs, or acts to establish his or her character for the purpose of showing that the person acted in conformity with that character, such evidence may be admissible for other purposes, such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." People v. Thompson, 950 P.2d 608, 614 (Colo.App.1997).

In response to a question whether defendant admitted gang membership, the investigating officer testified, "It was a long time ago. It was a crime. It was an incident I contacted him for, and he was dressed in gang attire with another individual he was with. And we asked him what gang he was claiming. And that's when he said '18th Street'"

Defendant did not object to this testimony. Thus, our review is limited to plain error.

Here, the investigating officer's statements were ambiguous, vague, and brief and did not even state that defendant had committed a erime. Thus, there was no error.

B. Prosecutorial Misconduct

Defendant further contends the prosecution deprived him of his right to a fair trial and trial by a fair and impartial jury by its repeated misconduct during closing and rebuttal arguments. Specifically, he asserts the prosecutor improperly: (1) stated he believed defendant was guilty; (2) vouched for witness credibility; (8) appealed to the jury's passion and prejudice; (4) mischaracterized the evidence; and (5) argued facts not alleged. Once again, we disagree.

A prosecutor may argue the facts in evidence and reasonable inferences from those facts. People v. Williams, 996 P.2d 237, 243-44 (Colo.App.1999). However, a prosecutor may not assert his or her personal opinion about the guilt of a defendant or the truthfulness of the witnesses. People v. Dunlap, 975 P.2d 723, 760 (Colo.1999). Courts evaluate allegations of improper argument by a prosecutor in the context of the argument as a whole and in the light of the evidence presented. People v. Davalos, 30 P.3d 841, 844 (Colo.App.2001).

Here, defendant alleges various remarks by the prosecutor during closing argument were improper. Because defense counsel did not object to these statements, our review is once again limited to plain error.

Defendant first asserts the prosecutor improperly expressed his personal belief as to defendant's guilt by asking the jury to return a guilty verdict, stating, "'cause I believe the evidence has been proven beyond a reasonable doubt." However, this statement refers to the evidence, not defendant's guilt. Thus, considering the argument as a whole and in light of the evidence, we conclude it does not constitute plain error.

Second, defendant maintains the prosecutor improperly vouched for witnesses' credibility by stating (1) "Oliver was honest with you, he didn't remember a whole lot"; and (2) the witnesses stories had "slight dis-erepan[cies], but were consistent, that speaks of honesty. And I think that's what you have here from the witnesses that you did hear from, from the State." However, these comments related to reasonable inferences as to the credibility of witnesses. Therefore, these comments were proper.

Third, defendant argues that, during rebuttal argument, the prosecutor mischarac-terized "critical evidence" by stating that a witness recalled telling police she saw defendant hitting the victim. However, the record reflects that after the witness said she did not remember making such a statement to the police, she agreed that her memory was better on the night of the assault. Thus, the prosecutor's statement was a fair comment on the evidence.

Fourth, defendant alleges the prosecution improperly played on the sympathies of the jury by arguing that it was intimidating for the witnesses to testify and asking the jury to consider the ramifications of testifying. Specifically, the prosecutor stated:

Now if you think that's intimidating when you are walking along the street and see guys coming at you with beer bottles and bats, how do you think it was to come in here yesterday and sit in front of a group of strangers and tell your story again?
What are you looking at? What is going to happen the next time you walk down the street and some 18th Streeters see you?
No, this was chaotic, and this was scary, but the one thing that never changed [was] all three of those girls' testimony.

While it was inappropriate for the prosecutor to comment on the ramifications of testifying, this comment was brief and made in the context of discussing the evidence. Therefore, it does not rise to the level of plain error.

Finally, defendant maintains the prosecutor improperly argued that the victim was beaten with objects other than those listed in the information, including a fist, foot, beer bottle, or chain. However, the prosecution had consistently argued that the evidence showed defendant hit the victim with a baseball bat. To the extent that the jury could have relied on another object as a deadly weapon, this was at most a simple variance of the offense listed in the information and not a basis for reversal. See People v. Rodriguez, supra, 914 P.2d at 257.

Accordingly, we find no plain error under the cireumstances presented.

VII. Cumulative Error Doctrine

Defendant contends the combined errors deprived him of his fundamental constitutional rights and require reversal of his convictions. Once again, we disagree.

The cumulative error doctrine applies only if the trial court committed numerous errors, and mere assertions of error by the defendant are insufficient, People v. Rivers, 727 P.2d 394, 401 (Colo.App.1986).

Here, we have found three errors based on defendant's allegations. However, these errors are insufficient to warrant reversal under this doctrine. Under these cireum-stances, there was no cumulative error.

VIII. Ineffective Assistance of Counsel

Finally, defendant contends he must be granted a new trial because he was denied his right to effective assistance of counsel. Again, we do not agree.

Courts use a two-prong test to determine claims of ineffective assistance of counsel. First, a defendant must show that trial counsel's performance was deficient because it fell below the level of reasonably competent assistance. Second, the defendant must show that the deficient performance prejudiced the defense, resulting in a reasonable likelihood that, absent counsel's errors, the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); People v. Fulton, 754 P.2d 398 (Colo.App.1987).

However, the court can determine an ineffective assistance of counsel claim solely on the basis of prejudice. If the defendant is unable to establish prejudice, the court does not need to determine whether there was deficient performance by counsel. People v. Naranjo, 840 P.2d 319, 324 (Colo.1992).

Here, defendant filed a postconviction motion for a new trial asserting ineffective assistance of counsel. Defendant alleged that his trial counsel failed to investigate the case fully by not contacting witnesses who said they were at the scene of the erime and were willing to testify that defendant was not involved in the assault.

After a hearing, the trial court denied the motion. The trial court applied the test in Strickland v. Washington, supra, and found there was no prejudice to defendant. It further found that one of the eyewitnesses may have given testimony favorable to defendant, but his testimony was self-contradieto-ry and he had a prior felony conviction. The court concluded that there was not a reasonable probability that his testimony would have changed the outcome of the trial.

At the hearing, defendant, one of the four alleged eyewitnesses, and the investigating officer testified. Defendant testified that he told his attorney he wanted to call the four eyewitnesses and his attorney did not contact them. The eyewitness testified that (1) he was at the scene on the night of the incident; (2) defendant did not get out of the van; and (3) defendant's attorney never contacted him. The witness also testified that he had felony convictions.

The investigating officer testified that the eyewitness told him that defendant got out of the van. He also testified that he had contacted two of the other alleged witnesses, who told him they were not present during the fight. Finally, the investigating officer testified that the name of the fourth eyewitness never came up during the investigation.

Thus, the record supports the trial court's ruling. Several witnesses testified at trial that defendant had gotten out of the van. Additionally, the eyewitness presented by defendant had previously told the investigating officer that he was not present when the fight took place. Therefore, the eyewitness's testimony was impeachable on multiple grounds.

Because defendant has not established prejudice, we need not consider whether defense counsel's performance was deficient. See People v. Naranjo, supra.

Accordingly, we find no reversible error.

The judgment and order are affirmed.

Judge KAPELKE and Judge LOEB concur.


author: Judge GRAHAM.

text:
    In the Matter of the Petition of GF GAMING CORPORATION, Petitioner-Appellant, v. HYATT GAMING MANAGEMENT, INC.; Windsor Woodmont Black Hawk Resort Corporation, Respondents-Appellees, and Colorado Limited Gaming Control Commission, Appellee.
    No. 02CA0319.
    Colorado Court of Appeals, Div. IV.
    Aug. 14, 2003.

      Burg Simpson Eldredge Hersh & Jardine, P.C., David P. Hersh, Diane Vaksdal Smith, Englewood, Colorado, for Petitioner-Appellant.
    Roger M. Morris, LLC, Roger M. Morris, Denver, Colorado, for Respondent-Appellee Hyatt Gaming Management, Inc.
    Dill Dill Car Stonbraker & Hutchings, P.C., Patrick D. Tooley, Denver, Colorado, for Respondent-Appellee Windsor Wood-mont Black Hawk Resort Corporation.
    Ken Salazar, Attorney General, Ceri Williams, Assistant Attorney General, Denver, Colorado, for Appellee Colorado Limited Gaming Control Commission.
   Opinion by

Judge GRAHAM.

Petitioner, GF Gaming Corporation, a Colorado gaming licensee with casinos in Central City, appeals from the order of the Colorado Limited Gaming Control Commission dismissing its petition for a hearing. We affirm.

Respondents, Hyatt Gaming Management, Inc. and Windsor Woodmont Black Hawk Resort Corporation, applied for gaming licenses to operate Black Hawk Casino by Hyatt in the City of Black Hawk. In connection with its license application, Hyatt and Windsor sought the city's approval of the proposed structure of the casino. The Black Hawk Historical Architectural Review Commission (HARC) determined, pursuant to Colo. Const. art. XVIII, $ 9(8)(b), that the structure conformed to the architectural styles common to the city before World War I. GF Gaming did not challenge HARC's determinations.

The Commission then approved the gaming licenses of Hyatt and Windsor in public session after the Commission considered confidential investigative and licensing reports presented by the Colorado Division of Gaming in an executive session.

GF Gaming filed a petition requesting a hearing before an administrative law judge pursuant to the Dep't of Revenue Reg. 47.1-213, 1 Code Colo. Regs. 207-1, concerning the licensure of Hyatt and Windsor. The petition alleged that the proposed Black Hawk Casino did not conform to the architectural styles required by the constitution.

Windsor and Hyatt filed objections to the petition and requested a more definite statement of the issues and relief requested. Hyatt also requested an order disallowing the petition because GF Gaming failed to demonstrate that it was an aggrieved party and therefore lacked standing to petition for a hearing under Dep't of Revenue Reg. 47.1-208, 1 Code Colo. Regs. 207-1.

In a supplemental statement, GF Gaming requested a hearing before the Commissioner pursuant to Reg. 47.1-208. GF Gaming alleged that it had standing to seek such relief because it was aggrieved by the Commission's decision to grant gaming licenses to Hyatt and Windsor in that it could not "fairly compete" if some licensees were issued licenses without having to comply with the same architectural standards GF Gaming was required to meet. GF Gaming also requested public disclosure of the Commission's review process underlying its decision to grant Hyatt and Windsor gaming licenses.

The Commission dismissed GF Gaming's petition, concluding that it was not an aggrieved party and lacked standing to pursue a hearing in this matter. The Commission also concluded that GF Gaming failed to state a claim upon which relief could be granted because the Commission lacked authority to review decisions by municipalities concerning conformity with historical structures. This appeal followed.

GF Gaming contends that the Commission erred in concluding that it was not an aggrieved party under Reg. 47.1-208 and thus lacked standing to seek an adjudicatory hearing. We disagree.

Our review is limited by the standard set forth in the State Administrative Procedure Act (APA), § 24-4-106(7), C.R.S.2002. Thus, the agency action must be affirmed unless the court finds that the agency exceeded its constitutional or statutory authority, made an erroneous interpretation of law, acted in an arbitrary or capricious manner, or made a determination that is unsupported by the evidence in the record. Ainsworth v. Colo. Ltd. Gaming Control Comm'n, 45 P.3d 768 (Colo. App.2001).

"In sum, the courts may not overturn agency actions unless such actions are arbitrary, capricious, legally impermissible, or an abuse of discretion." Colo. Real Estate Comm'n v. Hanegan, 947 P.2d 933, 935 (Colo.1997).

Regulation 47.1-208 provides that "A person aggrieved by an action of the Commission ... that was taken without a hearing may ... petition the Commission for a hearing. The Commission may in its discretion, disallow the petition."

This jurisdictional prerequisite is similar to the requirement for standing to obtain judicial review of an agency action under the APA, which provides that the party must be "adversely affected or aggrieved" by the agency action. Section 24-4-106, C.R.8.2002. We note, however, that even if GF Gaming would have standing as an aggrieved party, the Commission still has the discretion under the regulation to disallow its petition.

To have standing, a petitioner must assert a legal basis on which a claim for relief can be grounded and must allege an injury in fact to a legally protected or cognizable interest. Ainsworth v. Colo. Ltd. Gaming Control Comm'n, supra.

GF Gaming asserts that it is an aggrieved party because "[the Commission by its failure to make any review of compliance [with Colo. Const. art. XVIII, § 9] has made it economically impossible for those casinos that do comply with the Constitution to fairly compete." GF Gaming maintains that the massive size and design of Black Hawk Casino is in sharp contrast to the original goal of revitalizing existing historic buildings enunciated in the legislative history of the Limited Gaming Act. Seeking to question the supervisory role of the Commission charged with approving licenses, GF Gaming argues that, as a competitor, it is aggrieved by the grant of a license to an applicant whose plans do not comport with the historical controls that should have been enforced by the local authorities, but were not. Whatever the merits of this argument may be, we nonetheless conclude that GF Gaming was not harmed by the grant of a license to Black Hawk Casino.

Although the economic impact of lawful competition may, as a practical matter, inflict an injury, it cannot confer standing unless the economic interest harmed is protected by a statutory or constitutional provision. A legislative intent to protect the economic interest from competitive harm must be explicit in or fairly inferable from the statutory provisions under which an agency acts, or the legislature must expressly confer standing on competitors to seek review of agency action. Cloverleaf Kennel Club, Inc. v. Colo. Racing Comm'n, 620 P.2d 1051 (Colo.1980).

The Commission does not have authority to enforce the historical guidelines, and the city was clearly the proper forum in which to wage this dispute. Once the plans were approved, the issuance of a license by the Commission cannot interfere with "a legally protected or cognizable interest" of GF Gaming. See Ainsworth v. Colo. Ltd. Gaming Control Comm'n, supra, 45 P.3d at 772, Although the city of Black Hawk may have improvidently approved the plans for Black Hawk Casino, we know of no rule that would allow the Commission to supervise or correct the city's action.

Beyond the competition with a non-historic business, GF Gaming expressed no particularized harm. GF Gaming did not expressly allege any direct economic losses or injuries traceable to the Commission's action in issuing a casino license to its nonconforming competitor. Similarly, although patrons conceivably may choose Black Hawk Casino over GF Gaming's casinos, any injury that may be inferred from that hypothetical preference is both too speculative and too indirect to be actionable. See Cloverleaf Kennel Club, Inc. v. Colo. Racing Comm'n, supra. Thus, the Commission's decision does not directly affect GF Gaming's rights as a licensee. Cf. Ainsworth v. Colo. Ltd. Gaming Control Comm'n, supra.

Therefore, even if we were to construe the Limited Gaming Act and the regulations to protect licensees against competitive economic injury, GF Gaming failed to allege that it suffered an injury in fact or threat to a legally protected interest essential to state a claim for relief. We thus conclude that the Commission did not abuse its discretion by dismissing GF Gaming's petition for a hearing.

In view of our resolution, we need not address GF Gaming's remaining contentions.

The order is affirmed.

Chief Judge DAVIDSON and Judge NIETO concur.


author: Chief Judge DAVIDSON. Judge ROY

text:
    Julio C. SULCA, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
    No. 02CA0511.
    Colorado Court of Appeals, Div. III.
    Aug. 14, 2003.

      Ledbetter & Thomas, P.C., Seott C. Thomas, Greenwood Village, Colorado, for Plaintiff-Appellant.
    Walberg, Dagner & Tucker, P.C., Deana R. Dagner, Wendelyn K. Walberg, Engle-wood, Colorado, for Defendant-Appellee.
   Opinion by

Chief Judge DAVIDSON.

In this action to recover uninsured motorist benefits, plaintiff, Julio C. Sulea (insured), appeals from the trial court's summary judgment in favor of defendant, Allstate Insurance Company (insurer), determining that the action was barred by § 13-80-107.5(1)(a), C.R.S$.2002, the applicable statute of limitations. We affirm.

In May 1996, insured was involved in an automobile accident with another vehicle. At the scene of the accident, the other driver advised insured that he did not have automobile insurance and he did not own the car he was driving. The driver then left the scene. At that time, insured bad uninsured and underinsured motorist (UIM) coverages through insurer.

Three years later, in May 1999, insured timely sued the driver for personal injury and property damage resulting from the accident. No discovery was undertaken in that case.

Two years later, in 2001, insured commenced this action against insurer for UIM benefits. Insurer filed a motion for summary judgment, arguing that the case was untimely filed and should be dismissed. The trial court granted the motion.

On appeal, insured contends that the trial court erred in determining that his claim was barred under § 13-80-107.5(1)(a). We disagree.

Our review of the trial court's order granting a motion for summary judgment is de novo. See Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251 (Colo.1995).

Summary judgment is proper only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." C.R.C.P. 56(c). Summary judgment is appropriate when there is no doubt concerning material facts. See Roderick v. City of Colorado Springs, 193 Colo. 104, 563 P.2d 3 (1977). All doubts as to the existence of an issue of material fact must be resolved against the moving party. See Ridgeway v. Kiowa Sch. Dist. C-2, 794 P.2d 1020 (Colo.App.1989).

The purposes of statutes of limitations are to promote justice, discourage unnecessary delay, and preclude the prosecution of stale claims. See Colo. State Bd. of Med. Exam'rs v. Jorgensen, 198 Colo. 275, 599 P.2d 869 (1979).

The interpretation of when a claim accrues under a statute of limitations is an issue of law. Middelkamp v. Bessemer Irr. Ditch Co., 46 Colo. 102, 103 P. 280 (1909). Whether the statute of limitations bars a particular claim is usually a fact question, see Keller Cattle Co. v. Allison, 55 P.3d 257 (Colo.App.2002), but if the undisputed facts clearly show that the plaintiff had, or should have had the requisite information as of a particular date, the issue may be decided as a matter of law. See Winkler v. Rocky Mountain Conference of United Methodist Church, 923 P.2d 152 (Colo.App.1995).

If statutes are clear and unambiguous, they require no construction and are to be applied as written. Holliday v. Bestop, Inc., 23 P.3d 700 (Colo.2001). The purpose of statutory construction is to determine and give effect to the intent of the General Assembly, giving words their plain and commonly accepted meaning. Russell v. Pediatric Neurosurgery, P.C., 15 P.3d 288 (Colo.App.2000), aff'd in part and rev'd in part, 44 P.3d 1063 (Colo.2002). Any construction that would render any clause or provision unnee-essary, contradictory, or insignificant should be avoided. Bowland v. Indus. Claim Appeals Office, 984 P.2d 660 (Colo.App.1998), aff'd sub nom. United Airlines, Inc. v. Indus. Claim Appeals Office, 993 P.2d 1152 (Colo.2000).

Section 18-80-107.5(1)(a) provides, in pertinent part, for two related periods of limitation as follows:

An action or arbitration of an "uninsured motorist" insurance claim ... shall be commenced or demanded by arbitration demand within three years after the cause of action accrues; except that, if the underlying bodily injury liability claim against the uninsured motorist is preserved by commencing an action against the uninsured motorist within [three years], then an action or arbitration of an uninsured motorist claim shall be timely if such action is commenced or such arbitration is demanded within two years ofter the insured knows that the particular tort-feasor is mot covered by any applicable insurance. In no event shall the insured have less than three years after the cause of action accrues within which to com-mencee such action or demand arbitration.

(Emphasis added.)

As to accrual for purposes of the first three-year period of limitation, § 18-80-107.5(3), C.R.S.2002, provides that: "An uninsured or underinsured motorist cause of action accrues after both the existence of the death, injury, or damage giving rise to the claim and the cause of the death, injury, or damage are known or should have been known by the exercise of reasonable diligence." The claim accrues for the purposes of the two-year period of limitation pursuant to § 13-80-107.5(1)(a), when the insured "knows that the particular tortfeasor is not covered by any applicable insurance." See also § 13-80-107.5(1)(b), C.R.S.2002 (pertaining to underinsured motorists).

Thus, under the first clause of § 183-80-107.5(1)(a) and the accrual definition, an insured has three years from the date of the accident in which to sue the UIM carrier. Under the second clause, if the insured has brought an action against the tortfeasor within the three-year period of limitation for that action, and the insured only discovers that the tortfeasor is uninsured sometime after the accident, then the insured has at least two years from the date of that discovery in which to sue the UIM carrier. The interplay between these two clauses may, but does not necessarily, afford the insured more than three years from the date of the accident in which to sue the UIM carrier. However, if the insured has not timely commenced an action against the tortfeasor, three years after the accident he is time-barred from seeking relief against the UIM carrier, regardless of when he discovered that the other driver was uninsured.

Insured argues that the trial court erred in determining on summary judgment that his UIM claim was untimely because, according to insured, the period within which to sue his UIM carrier was not triggered under § 13-80-107.5(1)(a) until he had doen-mented proof that no applicable policy insured the other driver. Until he obtained such proof, he contends, he did not "know" that the tortfeasor was uninsured. We disagree.

Dictionaries define "knowledge" as "an awareness or an understanding" and "actual knowledge" as "[an awareness or an understanding] of such information as would lead a reasonable person to inquire further." E.g., Black's Law Dictionary 876 (7th ed.1999); Webster's Third New International Dictionary 1252 (1986) (defining "knowledge" as "the act, fact, or state of knowing; awareness [or] understanding").

Most statutes of limitations require that a plaintiff know or, after the exercise of reasonable diligence, should have known of the triggering event or cireumstance. See § 13-80-108, C.R.S.2002; see also Miller v. Armstrong World Indus., Inc., 817 P.2d 111 (Colo.1991)(products liability); Fin. Assocs., Ltd. v. G.E. Johnson Constr. Co., 723 P.2d 135 (Colo.1986) (negligence or defects in improvements to real property); Colburn v. Kopit, 59 P.3d 295 (Colo.App.2002)((breach of fiduciary duty or negligence); Stjernholm v. Life Ins. Co., 782 P.2d 810 (Colo.App.1989)(conversion based upon payment of instrument on forged endorsement).

The requirement that a plaintiff use due diligence in discovering the relevant cireumstance or event imposes an objective standard and does not reward denial or self-induced ignorance. Therefore, we conclude that the limitation period in which to bring a claim against a UIM carrier under § 13-80-107.5(1)(2a) commences to run when the insured knew or, in the exercise of reasonable diligence, should have known that there was no applicable insurance.

Here, insured brought an action against the tortfeasor within the three-year limitation period set forth in § 13-80-107.5. However, at the time of the accident insured also "knew" that there was no applicable insurance.

Insured argues that, because he timely commenced suit against the other driver, he had at least another two years to sue insurer even if he knew of the lack of applicable insurance prior to suing the other driver, According to insured, the three-year and two-year periods of limitation can only run consecutively, not concurrently. We are not persuaded.

Insured's interpretation would render the last sentence of §$ 18-80-107.5(1)(a), which establishes a minimum period of limitation of three years, meaningless. If the two-year and the three-year periods of limitation run concurrently because the insured knew that there was no applicable insurance during the three-year period, this last sentence would protect the insured by precluding the two-year period from, in effect, shortening the three-year period. However, if the periods of limitation only run consecutively, then either: (1) the last sentence would never pertain because the insured would always have the three-year period of limitation within which to act; or, (2) the two-year limit of the second period would be surplusage because that period would always be extended to three years by the application of the last sentence.

Accordingly, we conclude that insured had three years from the date he "knew" that there was no applicable insurance within which to commence this suit. Here that date was the day of the accident. Therefore, the trial court properly determined that his complaint, filed about five years after that date, was untimely.

The judgment is affirmed.

Judge WEBB concurs.

Judge ROY dissents.

Judge ROY

dissenting.

I respectfully dissent.

Let me start with that with which I agree. I agree with the majority that the word "knows" in the second clause of § 183-80-107.5(1)(a), C.R.8.2002, should be construed to mean that the insured knew or, with the exercise of reasonable diligence, should have known, of the aceruing circumstance or event. I also agree that the statute is ambiguous, and the majority has cited the applicable rules of construction. However, I conclude that the second period of limitation must run consecutively and, therefore, conclude the action was timely.

Let me also state at the outset that I recognize an incongruity which results from my construction and application of the statute, namely, the insured's claim against the UIM earrier does not accrue based on his or her knowing that there is no applicable insurance unless an action is commenced against the uninsured driver, triggering the second period of limitation.

Section 18-80-107.5(1)(a) provides, in pertinent part, for two related periods of limitation as follows:

An action or arbitration of an "uninsured motorist" insurance claim shall be commenced or demanded by arbitration demand within three years after the cause of action accrues; except that, if the underlying bodily injury liability claim against the uninsured motorist is preserved by commencing an action against the uninsured motorist within [three years] then an action or arbitration of an uninsured motorist claim shall be timely if such action is commenced or such arbitration is demanded within two years, after the insured knows that the particular tortfeasor is not covered by any applicable insurance. In no event shall the insured have less than three years after the cause of action accrues within which to commence such action or demand arbitration. (Emphasis added.)

It is significant to me that the two periods of limitation are separated by the phrase "except that," which generally means that the provision preceding that phrase is supplanted in its entirety if the event or circumstance triggering the exception has occurred or exists. See Bd. of County Comm'rs v. City & County of Denver, 194 Colo. 252, 571 P.2d 1094 (1977). Under § 13-80-107.5(1)(a), the triggering event for the second period of limitations is the commencement of an action against the uninsured motorist within the period of limitations applicable to that action, three years. See § 18-80-101(1)(a)(1), C.R.S.2002 (three years from acerual).

It is also significant to me that for purposes of the initial three-year period of limitation, the claim accrues without reference to any knowledge or notice of the unavailability of other applicable insurance. It is only the second period of limitation that requires knowledge or notice of the absence of other applicable insurance for the claim against the UIM insurer to accrue. Hence the incongruity. The two periods of limitation are independent and mutually exclusive and, in my view, must run independently and, upon the triggering events consecutively.

In one scenario, the one apparently contemplated by the statute, the insured, not knowing whether there is other applicable insurance or having been misled in that regard, brings an action against the other driver within the three-year period of limitations and becomes aware through discovery that there is no applicable insurance. The insured then has not less than three years from discovery to request arbitration or to commence an action against the UIM carrier.

However, another, perhaps more common scenario is that the insured knows, or should have known, on the date of the accident that the other driver is uninsured. The law requires that all motor vehicles be insured with minimum coverages. Sections 10-4-705, 10-4-706, C.R.S8.2002. The law also requires that insurers provide their insureds with proof of insurance for each motor vehicle insured. Section 10-4-706.5, C.R.8.2002. It is a serious traffic offense, with a mandatory minimum sentence, for a person to operate a motor vehicle in this state without a complying insurance policy or to fail to provide proof of insurance in the event of an accident or upon request of a peace officer following any lawful traffic contact. Section 42-4-1409, It is also a serious traffic offense to fail to stop and render assistance to injured parties after an accident. See §§ 42-14-1601, 42-14-1608, C.R.8.2002.

Therefore, assuming the vast majority of motor vehicle owners, drivers, and insurers comply with the law, it is most likely that, as here, the insured would be immediately informed of the absence of other applicable insurance.

It is important that the statute of limitations for claims against an uninsured motorist carrier is identical in every pertinent respect to the statute of limitations for claims against an underinsured motorist carrier. Compare § 13-80-107.5(1)(a) with § 13-80-107.5(1)(b), C.R.S.2002. In the case of the underinsured motorist, however, the insurer may require that the insured obtain judgment against, or enter into a good faith settlement with, the underinsured motorist after giving the UIM carrier notice and an opportunity to participate. The underin-sured motorists benefit is the difference between the amount recovered from the under-insured motorist and the damages sustained by the insured, not to exceed the underin-sured motorist policy limit. See, Freeman v. State Farm Mut. Ins. Co., 946 P.2d 584 (Colo.App.1997). The two statutes have identical language, and presumably the same meaning. It would not make sense for the two periods to run concurrently when bringing an action against the underinsured driver is, or may be, a condition precedent to obtaining underinsured motorist benefits.

It is a well established rule that when two statutes of limitations apply the longer prevails. Fishburn v. City of Colorado Springs, 919 P.2d 847 (Colo.App.1995). A logical corollary to this rule should be that when, as here, a statute of limitations is ambiguous, it must be construed to provide the maximum period of limitation, not the minimum.

Here, insured "knew" that there was no applicable insurance coverage on the date of the accident. He waited almost exactly three years to sue the other driver, undertook no discovery in that action, and, almost exactly two years later, commenced this action against his UIM carrier. This procedural history may appear to be an abuse of the statute; it should not, however, force a strained construction of it.

I would reverse the judgment and remand for further proceedings on the insured's complaint.


text:
    E-470 PUBLIC HIGHWAY AUTHORITY, Petitioner-Appellant and Cross-Appellee, v. Rick Lynn WAGNER, individually and as personal representative of the estate of Wilbert E. Wagner; Gary Ron Wagner; and Terry Don Wagner, Respondents-Appellees and Cross-Appellants.
    No. 02CA0569.
    Colorado Court of Appeals, Div. I.
    Aug. 14, 2003.

      Duncan, Ostrander & Dingess, P.C., Robert R. Duncan, Donald M. Ostrander, James Birch, Denver, Colorado, for Petitioner-Appellant and Cross-Appellee.
    Hale Hackstaff Friesen, LLP, Timothy M. Tymkovieh, Allan L. Hale, Amanda S. Atkinson, Denver, Colorado, for Respondents-Ap-pellees and Cross-Appellants.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge TAUBMAN.

In this eminent domain proceeding, petitioner, E-470 Public Highway Authority, appeals the trial court's judgment awarding attorney fees to respondents, Rick Lynn Wagner, Gary Ron Wagner, and Terry Don Wagner (collectively Wagners). The Wag-ners cross-appeal the trial court's award of prejudgment interest in the amount of $4,890.54 to E-470. We affirm.

Before filing a condemnation action, E-470 made a last written offer of $607,000 to the Wagners. E-470 initiated this lawsuit seeking immediate possession and condemnation of thirty-nine acres of the Wagners' property to construct a public highway. Several months later, E-470 and the Wagners entered into a stipulation concerning immediate possession of the property, which was approved by the trial court. E-470 took possession of the thirty-nine acres and deposited $704,150 into the registry of the court. The amount of deposit was based upon E-470's appraised value of, and its estimate of just compensation for, the property. The stipulation allowed the Wagners to withdraw the money deposited into the registry of the trial court, and in return they agreed to pay interest on any amount taken to which they were not entitled. The Wagners withdrew $703,852.20 and left $797.80 in the registry for property taxes due.

The trial court appointed three commissioners to determine the value of the property taken. Two months before trial, E-470 filed a motion to amend the petition in condemnation, decreasing the amount of the property sought by condemnation by about ten acres. Specifically, the amended petition sought 27.7 acres in fee simple and two mul-ti-use easements affecting about one acre. The Wagners did not object to the motion to amend the petition, subject to two conditions not relevant here. The trial court granted the motion on the first day of trial.

After a trial, the commissioners determined that the value of the twenty-nine acres taken was $574,070 and that there was no damage to the residue. The trial court also awarded attorney fees to the Wagners.

The trial court found that the Wagners must refund to E-470 the difference between the amount deposited into the registry and the amount awarded, as well as interest on the refunded amount. Only the award of prejudgment interest is the subject of this cross-appeal.

I. Attorney Fees

E-470 contends the trial court erred in awarding attorney fees to the Wagners. We disagree, and conclude that the trial court properly applied the pertinent statute to the cireumstances presented by E-470's seeking condemnation of a smaller parcel of property in its amended petition than it had originally sought.

Section 48-4-506(1)(h)(ID(B), C.R.S.2002, provides in pertinent part, "the court shall award the owner ... reasonable attorney fees and the reasonable costs of litigation incurred by such owner where the award by the court ... equals or exceeds one hundred thirty percent of the last written offer given to the property owner prior to the filing of the condemnation action."

At oral argument, counsel for E-470 abandoned its original contention that the trial court erred in awarding attorney fees to the Wagners because the plain and unambiguous language of the statute then in effect mandates attorney fees where the just compensation award exceeds the last written offer by 130% or more, rather than by 30% or more as interpreted by the trial court. See § 48-Therefore, we do not address E-470's statutory construction argument to the contrary.

However, E-470 contends that the Wag-ners' compensation award did not exceed by thirty percent the last written offer, which was $607,000, so as to trigger the award of attorney fees. More specifically, E-470 argues that the trial court inappropriately adjusted the amount of E-470's last written offer by valuing the easement interest in the one acre at half the per acre value of the other condemned property, and that it did so by relying on the appraiser's trial testimony.

Because no new offer for twenty-nine acres was made, the trial court prorated the last written offer which was for thirty-nine acres, based on its calculation that the per acre value of that offer was $15,560. Using that per acre figure, the trial court concluded that the amount offered for the twenty-nine acres actually taken would have been $488,852.68. To compute this amount, the trial court multiplied the number of acres actually taken (27.708 acres in fee simple in the amended petition) by the value per acre of the last written offer ($15,560) and used E-470's appraiser's percentages to value the easements at $7,773.78 (7016 and .2976 acres multi-use easement at 50% of the value of the fee interest portion). This prorated last offer of $438,852.68, including the reduced value for the easements, plus 30% equals $570,508.48. Because the final condemnation award, $574,070, exceeded this amount, the trial court concluded that the Wagners were entitled to attorney fees under § 48-4-506(1)(h)(II)(B).

We conclude the trial court correctly applied the phrase "last written offer" to the cireumstances here. First, the trial court prorated the last written offer based upon the taking of a smaller parcel of property than originally sought where the condemning ageney did not make a new last written offer based upon the changes in the amount of land. The last written offer made by E-470 was to purchase thirty-nine acres in fee simple. However, the amended petition sought 27.17 acres in fee simple and approximately one acre for two multi-use easements.

Second, the trial court considered the limited nature of the easement interest acquired in the one-acre parcels, which were not included in the original condemnation petition. The last written offer by E-470 did not include acquisition of an easement interest, which is less than a fee simple interest in the property. Under these cireumstances, the trial court properly relied on the testimony of E-470's own expert to value the easement at fifty percent of the per acre value of the condemned property.

We reject E-470's contention in this regard that the trial court erred in accepting this part of the expert's testimony, but not his testimony of a higher value for the con-derained property than that contained in E-470's last written offer. Because the last written offer did not include an easement, it was incumbent upon the trial court to value the easements described in the amended petition. Relying on the testimony of E-470's own expert to arrive at such a value was not an abuse of discretion.

Applying these two steps, we conclude that the trial court's application of "last written offer" was consistent with the statute and was supported by the record.

In light of our disposition, we need not address E-470's remaining contentions that the trial court erred in imposing on the condemning agency a duty to make an amended offer and that the futility doctrine overrides any other duty to make an amended offer.

Accordingly, we find no error in the award of attorney fees under the cireumstances here.

II, Prejudgment Interest

On cross-appeal, the Wagners contend the trial court erred in determining that E-470 is entitled to $4,890.54 in prejudgment interest from the date of withdrawal of the deposit through the date of judgment, We do not agree.

The interpretation of the language of a contract is a question of law that appellate courts review de novo. Rocky Mountain Health Maint. Org., Inc. v. Colo. Dep't of Health Care Policy & Fin., 54 P.3d 913, 919 (Colo.App.2001). "A court's primary obligation is to effectuate the intent of the contracting parties according to the plain language and meaning of the contract." Albright v. McDermond, 14 P.3d 318, 322 (Colo.2000). A contract is ambiguous if it is reasonably susceptible of more than one meaning. Horne Eng'g Servs., Inc. v. Kaiser-Hill Co., 72 P.3d 451, 453 (Colo.App.2003).

The parties' stipulation provided that, "[1lf the final award or verdict of just compensation is less than the [dleposit, then the [Wag-ners] agree to refund to [E-470] the difference between the [dleposit and the amount of the award or verdict of just compensation with appropriate interest."

Here, the Wagners assert that the amended petition filed by E-470 essentially nullifies the terms of the stipulation because the stipulation was based upon the taking of a parcel of property significantly different from that which was ultimately condemned. However, they did not object to the amended petition on that basis, nor did they seek to set aside or amend the stipulation in the trial court either before or after the motion to amend was granted.

The plain language of the stipulation provides for appropriate interest in the event the compensation award was less than the deposited award. It is undisputed that the Wagners had use of $703,352.20 during the period for which interest was requested. It is also undisputed that they were awarded $574,070 as compensation for the taking of their property. Additionally, the Wagners did not seek compensation for the temporary taking of ten acres of their property which was used by E-470 during construction of the highway. Accordingly, we conclude the award of interest was appropriate here.

The judgment is affirmed.

Judge KAPELKE and Judge STERNBERG concur.