author: Judge DAILEY.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Trinidad RAMOS, Defendant-Appellant.
    No. 00CA0675.
    Colorado Court of Appeals, Div. A.
    Feb. 28, 2002.
    As Modified on Denial of Rehearing April 11, 2002.
    Certiorari Denied Sept. 9, 2002.
    Ken Salazar, Attorney General, Rebecca A. Adams, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

      David S. Kaplan, Colorado State Public Defender, Pamela A. Dayton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge DAILEY.

Defendant, Trinidad Ramos, appeals from the sentence entered by the trial court upon a jury verdict finding him guilty of driving after revocation prohibited, a class six felony. We affirm the sentence, but remand for correction of the mittimus.

The driving after revocation charge, as well as a misdemeanor charge of eluding a police officer, arose when defendant was pulled over by the police for speeding in a borrowed vehicle After first approaching the patrol officer at the seene of the stop, defendant fled. He later was arrested when he reported to his parole officer for a scheduled appointment. He admitted that he bad borrowed the vehicle, but stated that he had not driven it. He refused to name the alleged driver.

At trial, the patrol officer positively identified defendant as the sole occupant and driver of the vehicle. Defendant's brother, however, testified that he, not defendant, had been the driver of the vehicle. Defendant did not testify, and the jury found him guilty of both of the charged offenses.

Because defendant was on parole at the time of the felony offense, the trial court was required to sentence him in the aggravated sentencing range, fifteen to thirty-six months, for his class six felony conviction. See § 18-1-105(1)(@)(V)(A) and (9)(a)(ID),

During his presentence report interview, defendant told a probation officer, "I took this case to trial.... I was trying to prevent me going back to prison for my family.... I'm not going to keep holding it in. I was the one driving." And, at the sentence-ing hearing, defendant stated he did not "force anybody to come forward and testify on [his] behalf, The witnesses ... were only trying to protect some of the kids ... in my family [who would be] affected [by] the outcome of trial."

The court sentenced defendant to thirty-six months in the Department of Corrections, after finding, among other things, that defendant had made his offense very serious "primarily and only because" he presented perjured testimony by "getting [his] family to get up there to testify and present lies to the Court and to the jury."

On appeal, defendant contends that the trial court improperly imposed the maximum aggravated sentence for his felony conviction based solely on its finding that he presented perjured testimony at trial. We are not persuaded.

When reviewing sentences for ex-cessiveness, appellate courts must consider the nature of the offense, the character of the offender, and the public interest in safety and deterrence. See People v. Blizzard, 852 P.2d 418, 419 (Colo.1993). Appellate courts must also accord considerable deference to a sentence imposed by the trial court because of that court's familiarity with the cireum-stances of the case. People v. Fuller, 791 P.2d 702, 706 (Colo.1990).

Consequently, if the sentence imposed is within the range required by law, is based upon appropriate considerations as reflected by the record, and is factually supported by the circumstances of the case, we must uphold it on review. People v. Fuller, supra.

Here, we perceive no error in the trial court's consideration of defendant's presentation of perjured testimony. In language equally applicable to the cireumstances here, the United States Supreme Court, in United States v. Dunnigan, 507 U.S. 87, 97-98, 113 S.Ct. 1111, 1118, 122 L.Ed.2d 445, 455 (1993), noted:

It is rational for a sentencing authority to conclude that a defendant who commits a crime and then perjures [himself in an unlawful attempt to avoid responsibility is more threatening to society and less deserving of leniency than a defendant who does not so defy the trial process. The perjuring defendant's willingness to frustrate Judicial proceedings to avoid criminal liability suggests that the need for incapacitation and retribution is heightened as compared with the defendant charged with the same crime who allows judicial proceedings to progress without resorting to perjury.

See United States v. Lowder, 148 F.3d 548, 553 (5th Cir.1998)(relying on Dunnigan in upholding an enhanced sentence based on defendant's presentation of another's perjured testimony).

Nevertheless, relying on Apprendi v. New Jersey; 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 485 (2000), defendant argues that to justify an enhanced sentence, a finding that he presented perjured testimony must be made by a jury and upon proof establishing the fact beyond a reasonable doubt. We conclude that Apprendi is distinguishable.

In Apprendi, the defendant was convicted of possessing a firearm for an unlawful purpose, a crime that by statute carried with it a sentence of five to ten years incarceration. The trial court, however, sentenced him pursuant to a separate statutory provision authorizing an enhanced penalty of ten to twenty years for committing a crime with the intent to intimidate others because of their race. Subsequently, the Supreme Court struck down the enhanced sentence, holding that, other than a prior conviction, "any fact that increases the penalty for a erime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, supra, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455.

In contrast to Apprendi, the trial court here did not make a factual determination that in any way altered the applicable sentencing range. Rather, the court considered defendant's conduct in presenting perjured testimony only in determining the appropriate penalty within the sentencing range mandated by statute. It did not err in doing so.

Indeed, the Apprendi Court noted that nothing in its opinion suggested that it is impermissible for judges to exercise discretion, "taking into consideration various factors relating both to offense and offender-in imposing a judgment within the range prescribed by statute." Apprendi, supra, 530 U.S. at 481, 120 S.Ct. at 2358, 147 L.Ed.2d at 449.

We note that the trial court considered, as reasons for imposing the thirty-six-month sentence, not only defendant's presentation of perjured testimony, but also his extensive criminal history, which included: (1) prior felony convictions for witness tampering, habitual driving offenses, and escape from community corrections; (2) multiple misdemean- or convictions for domestic violence, assault, and alcohol-related offenses; and (8) failure to complete previous sentences to probation.

We conclude that the sentence is within the range prescribed by law, is based on appropriate considerations as indicated by the record, and is factually supported by the cireumstances of the case. Therefore, the trial court did not abuse its discretion in sentencing defendant. See People v. Blizzard, supra, 852 P.2d at 419; People v. Fuller, supra, 791 P.2d at 706.

However, because the mittimus does not reflect an actual term of mandatory parole, we remand to the trial court for entry of a corrected mittimus stating that defendant is also subject to a one-year period of mandatory parole pursuant to § 18-1-105(1)(a)(V)(A). See Craig vw. People, 986 P.2d 951, 959 (Colo.1999).

The sentence is affirmed, aﬁd the case is remanded for correction of the mittimus.

Judge STERNBERG and Judge CRISWELL concur.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2001.


source: Caselaw Access Project

author: Judge CRISWELL.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert SULLIVAN, Defendant-Appellant.
    No. 01CA0121.
    Colorado Court of Appeals, Div. A.
    July 18, 2002.

      Ken Salazar, Attorney General, Dawn M. Weber, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Stefani Goldin, Loveland, Colorado, for Defendant-Appellant.
   Opinion by

Judge CRISWELL.

Defendant, Robert Sullivan, appeals from the judgment of conviction entered following a bench trial finding him guilty of second degree arson, harassment by stalking, and other offenses. We affirm.

Defendant's wife commenced dissolution of marriage proceedings. When she refused to dismiss those proceedings as he requested, defendant burned her clothes in the backyard of their home. The next day, the wife obtained a restraining order against defendant, prohibiting any contact with her. Nevertheless, defendant continued to contact her.

Defendant also had a global positioning system (GPS) device installed in the wife's car. A GPS device uses global positioning satellites to track and record the location of the device and, therefore, the location of any object to which it is attached. To retrieve the recorded information, which is stored in a chip in the device, the chip is removed, and its memory is uploaded to a computer.

At trial, defendant testified that he had the device installed in her car to check on her whereabouts because of his concerns about the divorce proceedings and custody issues, but he had removed it as soon as he was notified of the restraining order.

Defendant was convicted and sentenced to concurrent terms of four years of intensive supervised probation for second degree arson and harassment by stalking. He was also convicted of violation of the restraining order and domestic violence, but those convictions are not at issue in this appeal.

Defendant contends that the evidence is insufficient to support his convictions for see-ond degree arson and harassment by stalking. We reject his contentions.

I.

In considering a challenge to the sufficiency of the evidence, a reviewing court must determine 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. Christian, 632 P.2d 1031 (Colo.1981).

Further, in construing any statute, our goal is to ascertain and give effect to the intent of the General Assembly. To determine that intent, we look first to the language of the statute itself, giving the words and phrases used their plain and ordinary meaning. Vega v. People, 893 P.2d 107 (Colo.1995); People v. Garcia, 189 Colo. 347, 541 P.2d 687 (1975)(statutory terms should be given the benefit of our common sense understanding). If the statutory language is clear and unambiguous, it must be interpreted as written, without resort to interpretive rules and statutory construction. People v. Zapotocky, 869 P.2d 1234 (Colo.1994).

However, if the statutory language lends itself to alternative constructions and its intended seope is unclear, a court may apply commonly accepted rules of statutory construction to determine which alternative construction forwards the objective sought to be achieved by the legislation. People v. Terry, 791 P.2d 374 (Colo.1990). A policy declaration at the outset of the legislation may serve as a guide to legislative intent. People v. Trujillo, 983 P.2d 124 (Colo.App.1999).

Finally, we presume that the General Assembly intends a just and reasonable result when it enacts a statute, and we will not adopt a construction that defeats the legislative intent or leads to an unreasonable or absurd result. People v. Nara, 964 P.2d 578 (Colo.App.1998).

IIL.

Defendant contends that the evidence is insufficient to support his conviction for second degree arson for burning the wife's clothes because the prosecution did not prove that he burned the "property of another" as required by the statute. Relying on the definition of "marital property" under § 14-10-118(2), C.R.S.2001, he argues that he could not have burned the property of another because he and the victim, as husband and wife, owned her clothes jointly. Therefore, he argues, he cannot be convicted of burning his own property. We reject this contention.

One who knowingly sets fire to, burns, or causes to be burned any property of another without consent commits second degree arson. Section 18-4-108(1), C.R.8.2001.

Under § 18-4-101(8), C.R.8.2001, property is that of another if any person other than the defendant has a possessory or proprietary interest in such property.

Defendant does not dispute that the wife had such an interest in her clothes. Thus, the evidence presented at trial of the wife's ownership is sufficient to support defendant's conviction for second degree arson, and defendant's reliance on the definition in § 14-10-118(2) is misplaced. See People v. Garcia, supra ("property of another" is adequately defined by § 18-4-101(8)); see also Vega v. People, supra.

Moreover, the fact that the wife's clothes may have been acquired by her during the course of the marriage and, therefore, constituted a part of the parties' "marital property" under § 14-10-118(8), C.R.S8.2001, does not aid defendant. The fact that personal property owned by one of the parties to a marriage may constitute "marital property" under this statute simply requires the dissolution court to consider the value of such property in distributing the parties' assets. It does not create an ownership interest in that property in the other spouse. See In re Marriage of Balanson, 25 P.3d 28 (Colo.2001)(dissolution court must determine whether item is marital property and, if so, consider its value in distributing the marital estate).

IIL

Defendant also contends that the evidence does not support the conviction for harassment by stalking. We do not agree.

Under § C.R.$S.2001, a person commits harassment by stalking if he or she

[rlepeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person ... in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . to suffer serious emotional distress. For purposes of this subparagraph (III), a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress. (emphasis supplied)

A.

Defendant first argues that the evidence is insufficient to support a finding beyond a reasonable doubt that he placed the wife "under surveillance" because he had no knowledge where she had been until he retrieved the data from the GPS device. He argues that, without present knowledge of her location he could not have placed her "under surveillance" within the meaning of § 18-9-111(4)(b)(III). In contrast, the People argue that "surveillance" may include alternative methods of acquiring information about a person's whereabouts and activities such as that used here. We agree with the People.

The legislative declaration of § 18-9-111(4), C.R.8.2001, is that:

[SItalking is a serious problem in this state and nationwide.... The general assembly hereby recognizes the seriousness posed by stalking and adopts the provisions of this subsection (4) ... with the goal of encouraging and authorizing effective intervention before stalking can escalate into behavior that has even more serious consequences. ©

We note, first, that stalking and harassment statutes of other states define "surveillance" as "remaining present outside [the person's] school, place of employment, vehicle, other place cecupied by the person, or residencel[,] other than the residence of the defendant." See, eg., Ark.Code Ann. § 5-71-208(a)(6) (2001); 720 Ill. Comp. Stat. 5/12-7.3(d) (2001). Colorado's statute, by contrast, has no requirement of physical presence, and therefore, we presume that, had the General Assembly, intended to require the offender's immediate and physical presence, it would have included such a requirement. See, eg., Ark.Code Ann. § 5-71-208(a)(6).

The common meaning of "surveillance" is to keep a watch over someone or something. Webster's Third New International Dictionary 2302 (1968). "Surveillance" is also defined as the close observation of a person or place in the hope of gathering evidence. Black's Low Dictionary 1459 (7th ed.1999). Electronic devices such as the GPS device allow for precisely this kind of conduct.

Here, the GPS device simultaneously recorded the wife's movements as they were occurring. And, it preserved that information for defendant's use without the necessity of his concurrent physical presence. Indeed, as defendant testified, the device was installed for the purpose of maintaining a watch over the wife and gathering information about her activities Defendant used that information to alert her that he was aware of where she went and what she did. We perceive no significant difference between gaining this type of personal information by physically following the wife and by using a device designed to achieve the same result. In either case, the motive to instill fear in his victim, by demonstrating that he had the ability to know where she was and what she was doing at any time, was accomplished.

Nor was the information obtained a long time after it was recorded. According to defendant's testimony, he had the device installed on February 4, 2000, and the chip removed on February 9 and 13, 2000, the first time only five days after its installation. Moreover, this information was available to defendant at any time. Simply because he chose to retrieve the information a few days after it was recorded did not preclude him from accessing such information sooner.

Thus, we conclude that the phrase "under surveillance" includes electronic surveillance that records a person's whereabouts as that person moves from one location to another and allows the stalker to access that information either simultaneously or shortly thereafter. Such an interpretation furthers the General Assembly's intent that stalking behavior be stopped before it escalates into more serious conduct.

Here, the evidence presented established that defendant placed the wife under surveillance by using the GPS device to collect information concerning her activities. Such evidence is sufficient to establish defendant's violation of the pertinent statute.

B.

Defendant also argues that he could not have "repeatedly" placed the victim under surveillance because the device was installed and removed only one time. We disagree.

"Repeatedly," as defined under § 18-9-111{4)(c)(IV), C.R.S.2001, means on more than one occasion. See People ex rel. Van Meveren v. County Court, 191 Colo. 201, 551 P.2d 716 (1976) ("repeatedly" is a word of common understanding, meaning simply more than one time).

Here, there was evidence that the chip from the GPS device was installed and removed more than onee. Although defendant testified that he had it installed and removed only once, he also admitted that he downloaded information from the device on at least two occasions. In order to retrieve the information, the chip in the device would have had to have been removed and replaced.

Further, the device recorded the wife's movements on more than a single occasion. It "repeatedly" stored information about her movements, and defendant later reviewed this information. Thus, whether he reviewed this information only once or on several occasions, he gained information about the wife on repeated occasions. This conduct, in our view, satisfies the requirements of the statute.

C.

Lastly, defendant argues, but we disagree, that his conviction for harassment by stalking should be vacated because the prosecution failed to prove the element of the offense that the victim suffered serious emotional distress.

Section 180-9-111(4)(b)(III) does not require that the victim prove she obtained treatment or counseling in order to show that she suffered serious emotional distress.

Here, the wife testified that she suspected defendant was stalking her for over a month based on his comments to her. She stated that her concern about being watched caused her to take alternate routes to her destinations and to be cautious that no one was following her. Further, she testified that she was afraid and felt she was constantly being watched, and that these feelings made her uncomfortable and gave her stomach aches. She also stated that she had trouble falling asleep and would awake in the night with feelings of anxiety. Finally, the wife testified that she was so concerned for her safety at one point that she took a leave of absence from work to enter a safe house.

In addition, an officer called by the wife to check her car for tracking devices testified that she seemed "extremely upset."

Defendant argues that such feelings are a normal part of the stress of going through a divorcee and not so extreme as to amount to serious emotional distress. However, the wife attributed these feelings and actions solely to her fears about being followed.

The record supports the finding that the wife suffered serious emotional distress. Thus, viewing the evidence as a whole in the light most favorable to the prosecution, we conclude that it is sufficient to support the conclusion by a reasonable fact finder that defendant was guilty of the offenses charged beyond a reasonable doubt. See State v. Cooney, 271 Mont. 42, 894 P.2d 303 (1995)(vietim's testimony sufficient to support finding of emotional distress caused by stalking).

The judgment is affirmed.

Judge DAILEY and Judge STERNBERG * concur.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2001.


text:
    In re the MARRIAGE OF Arthur L. TONN, Appellee, and Vera L. Tonn, n/k/a Vera L. Jacques, Appellant.
    No. 01CA1472.
    Colorado Court of Appeals, Div. III.
    July 18, 2002.

      Stiner, Beck & Jonson, Thomas A. Nolan, Golden, Colorado, for Appellee.
    Cooper, Tanis, & McBain, P.C., Leonard D. Tanis, Broomfield, Colorado, for Appellant.
   Opinion by

Judge DAILEY.

In this post-dissolution marriage proceeding between Vera L. Tonn, now known as Vera L. Jacques (wife), and Arthur L. Tonn (husband), wife appeals the district court order determining that her motion to review the magistrate's order was untimely. We affirm.

In 1983, after husband failed to pay child support and maintenance, wife obtained a judgment for arrearages in the amount of $8327, plus interest. In 2000, husband paid the principal amount of the judgment. Later that year, wife filed a pro se motion for entry of judgment for $45,877.77 in acerued interest.

In a November 27, 2000, order stamped "denied," the magistrate stated that the "request is untimely." On January 18, 2001, wife, now through counsel, filed a motion for clarification. The magistrate found that because wife's request was untimely, she waived her right to collect interest. The magistrate's "clarification" was dated March 27, 2001.

On April 13, 2001, wife filed a motion for review of the magistrate's clarification. The district court denied the motion as untimely, finding that the motion had not been filed within fifteen days of the order or judgment, as required by C.R.M. 7(a).

Wife filed a motion to amend and attached a copy of the envelope in which the magistrate mailed the clarification, which was postmarked March 29, 2000. She argued that the motion to review was timely from the date the clarification was mailed. The dis-triet court denied the motion, finding that the fifteen-day deadline for filing a motion to review began to run on March 27, the date of the clarification, not the date of mailing two days later.

Wife contends that a motion to review must be filed within fifteen days of the date of mailing of the order, not the date of the order. Therefore, she argues that the motion for review was timely because it was filed fifteen days after the date the clarification was mailed. While we agree that the date of mailing controls, we nonetheless affirm the district court's order.

Because the proceedings before the magistrate occurred after January 1, 2000, this case is governed by the current Colorado Rules for Magistrates. See People ex rel. Garner v. Garner, 33 P.3d 1239, 1241 (Colo.App.2001). Recently, a division of this court decided the mailing issue under these rules. In a case announced after the district court's ruling here, the division held that where a family law magistrate's order is entered outside the presence of the parties and later mailed to them, the fifteen-day period in C.R.M. 7(a)(1) for filing a motion for review begins to run on the date the order is mailed. In re Marriage of Talbott, 43 P.3d 734, 736 (Colo.App.2002).

We agree with the Talbott decision and thus conclude that the district court erred in holding to the contrary.

However, here the time for filing the motion for review was triggered not by the magistrate's clarification, but by the magistrate's November 2000 order. The rules governing magistrates do not authorize any motion except a motion for review. Nor do those rules authorize any motions that would toll the time for seeking review in the district court. See C.R.M. 7(a) (setting forth the requirements for a motion for review; no other motion is authorized); In re Estate of Hillebrandt, 979 P.2d 36, 38 (Colo.App.1999)(former rules for magistrates did not provide for motions for reconsideration of magistrates' decisions).

Wife does not argue that she failed to receive the November order, and indeed, her January 2001 motion for clarification acknowledges receipt of that order. Under these cireumstances, we reject wife's premise that the time for filing the motion for review began to run on the date of mailing of the clarification. To preserve her right to appellate review, wife had to file the motion to review within fifteen days of the date of mailing of the operative order, which here was the November order. See In re Marriage of Talbott, supra; In re Marriage of McCord, 910 P.2d 85, 88 (Colo.App.1995)(setting forth the time requirements under the prior rules for magistrates); cf. People v. Retallack, 804 P.2d 279, 279-80 (Colo.App.1990)(in a criminal case, a motion filed after entry of the order challenged on appeal did not extend the time for filing notice of appeal with respect to the challenged order).

In a related contention, wife argues that the magistrate's November order is void because the magistrate lacked jurisdiction to deny entry of judgment as untimely. She therefore asserts that the order may be attacked at any time. We decline to address this contention, inasmuch as it was raised for the first time in the reply brief filed in this court. See In re Estate of Perry, 33 P.3d 1235, 1237 (Colo.App.2001)

Our disposition obviates the need to address wife's additional contention that the court erred in failing to allow three days for mailing under C.R.C.P. 6(e).

Accordingly, the order is affirmed.

Judge NEY and Judge ROY concur.


author: Judge ROTHENBERG.

text:
    Adam JONES, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF CORRECTIONS; John Suthers, Executive Director; Bent County Correctional Facility; Marlene Ybarra, Inmate Accounts; and Brent Crouse, Warden, Defendants-Appellees.
    No. 01CA1698.
    Colorado Court of Appeals, Div. IV.
    July 18, 2002.

      Adam Jones, Pro Se.
    Ken Salazar, Attorney General, Juliana M. Zolynas, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees Colorado Department of Corrections and John Suthers.
    Hall & Evans, LL.C., David R. Brougham, Andrew D. Ringel, Denver, Colorado, for Defendants-Appellees Bent County Correctional Facility, Marlene Ybarra, and Brent Crouse.
   Opinion by

Judge ROTHENBERG.

Plaintiff, Adam Jones (inmate), appeals the trial court's order dismissing his complaint against defendants, the director of the Colorado Department of Corrections, the Bent County Correctional Facility, the facility's warden, and its head of inmate accounts, seeking to recover funds that were withheld from inmate's prison account and used to satisfy his outstanding restitution obligations. We affirm.

I. Background

Inmate pled guilty to multiple counts of theft and was sentenced in January 1998 to twenty years incarceration with the department. He was ordered to pay over $296,000 in restitution and other costs. The court did not specify the time or manner for such payments. Inmate began serving his sentence at the facility, which is a private entity that contracts with the department to provide correctional services for it.

At the time of inmate's sentencing, the trial court was statutorily required to impose restitution equivalent to the full pecuniary loss caused by inmate's offense. Colo. Sess. Laws.1996, ch. 88, § 16-11-102(4) at 1778; see People v. Apodaca, 998 P.2d 25, 31 (Colo.App.1999)(former statutory scheme intended "to have courts enter restitution orders even where a defendant is sentenced to incarceration").

Such restitution orders automatically became final judgments in favor of any entity suffering losses caused by the convicted offender. Colo. Sess. Laws 1997, ch. 65, § 16-11-101.5(1) at 1551. If the judgment remained unsatisfied while the offender was serving a prison sentence, the statute provided that "the superintendent of the correctional facility ... may fix the manner and time of payment of restitution ... and may direct that a portion of the [prisoner's] wages ... or compensation be applied to any unpaid restitution." Colo. Sess. Laws 1996, ch. 88, § 16-11-101.6(5) at 1778; see People v. Apodaca, supra.

If the prisoner still owed restitution at the time of his or her release on parole, the parole board then became responsible for setting the time and manner of the restitution obligation. Colo. Sess. Laws 1996, ch. 88, § 17-2-201(5)(c)(I) at 1779; see People v. Apodaca, supra.

In 2000, the General Assembly significantly amended the criminal restitution scheme. The changes became effective on September 1, 2000, and apply "to orders for convictions entered on or after [September 1, 2000] and delinquencies of orders existing on or after said date." Colo. Sess. Laws 2000, ch. 232, see. 25(2) at 10538. The amended statute provides in relevant part:

(2) During any period of time that a defendant is a state prisoner ... the executive director of the department of corrections, or his or her designee, may fix the time and manner of payment of restitution and may direct that a portion of the deposits into such inmate's bank account be applied to any unpaid restitution. At a minimum, the executive director shall order that twenty percent of all deposits into an inmate's bank account, including deposits for inmate pay shall be deducted and paid toward any outstanding order from a erim-inal case....
(3) Whenever a defendant is released from a correctional facility, the defendant shall be obligated to make payments for restitution as required by section 17-2-201(5)(c)(I), C.R.S.

Section 16-18.5-106, C.R.S.2001; see also Colo. Sess. Laws 2002, ch. 28, see. 2 at 68 (enacted March 22, 2002, further amending § 16-18.5-106(2), effective immediately, as it applied "to existing court ordered costs, surcharges, [and] restitution ... resulting from a criminal case ... that are outstanding on or after the date of passage").

The department adopted a regulation pursuant to the 2000 changes. The regulation became effective September 1, 2000, and required that "[t)Jwenty percent (20%) of all deposits into an inmate's bank account, including deposits for inmate pay will be deducted and paid toward any outstanding order from a criminal case (e.g., restitution and other costs or surcharges levied on eriminal actions)." See DOC Admin. Reg. No. 200-15. The department also required correctional facilities, such as the one involved here, to collect restitution from inmates who owed restitution.

Based on that regulation, the facility began deducting twenty percent from all deposits made to the accounts of all inmates who owed restitution.

DOC Admin. Reg. No. 850-04 provides a grievance process for inmates' complaints about a facility's policies and its management if inmates. The regulation also requires a facility to maintain a record of an inmate's grievances and the department to issue a specific response to the grievance.

On September 21, 2000, the facility posted a notice notifying inmates that grievances concerning these deductions would not be individually addressed for a period of six months because of the large number of "repetitive/duplicate grievances." The notice further provided, as relevant here, that all such grievances were subject to the rule that twenty percent "of all deposits (including inmate pay and incoming money orders) into an inmate's bank account will be deducted and paid toward ANY OUTSTANDING order from a criminal case ... existing on or after September 1, 2000."

In December 2000, inmate filed this action in district court, asserting jurisdiction under § 244-106, C.R.S.2001, and C.R.C.P. 106(a)(4) and demanding the return of the funds the facility had withheld from his account.

The department and the director moved to dismiss, asserting that the district court lacked jurisdiction to hear the inmate's complaint and that their actions in adopting the regulation and withholding the funds were administrative decisions which are not reviewable under C.R.C.P. 106(a)(4).

Inmate replied to the motion to dismiss, contending for the first time that he had filed a grievance pursuant to the department's grievance procedure and that he had been denied relief. In his opening brief filed in this court, inmate again claims to have followed the department's applicable grievance procedure and to have been denied relief. However, the appellate record includes no evidence that inmate ever initiated a grievance procedure involving his restitution obligation pursuant to DOC Admin,. Reg. No. 850-04, and therefore, no adjudication of inmate's rights occurred.

The district court granted the motion to dismiss, stating inter alia that it "adopts, approves, and incorporates herein the arguments advanced and authorities cited ... in [the] motion to dismiss."

II. Jurisdiction

Inmate contends the trial court had jurisdiction pursuant to § 24-4-106 and C.R.C.P. 106(a)(4) and therefore erred in dismissing his complaint. We disagree.

A. Review Under § 24-4-106

We reject inmate's contention that the district court had jurisdiction pursuant to § 24-4-106.

Section 24-4-106 establishes the procedures for obtaining judicial review of final agency actions for which review is not otherwise available. Crawford v. State, 895 P.2d 1156 (Colo.App.1995). However, § 17-1-111, C.R.S.2001, limits the availability of this remedy and provides in relevant part: "The provisions of this title relating to the ... management [and] discipline ... of inmates ... shall not be subject to section ... 24-4-106, C.R.S." (emphasis added).

In Crawford v. State, supra, 895 P.2d at 1157, a panel of this court rejected an inmate's attempt to seek § 24-4-106 review of a prison disciplinary action, concluding that "any right which may have existed to obtain review of a prison disciplinary action under the APA was eliminated by the enactment of § 17-1-111."

Although the facility's withholding of funds from inmate's account pursuant to the department's regulation was not a prison disciplinary action, we conclude the facility's action pertains to the management of inmates because it controls how they may spend their funds. Under the statute in effect when inmate was sentenced, the facility superintendent was required to fix the time and manner of restitution payments. After the 2000 amendments, the director or a designee thereof was given this responsibility and, pursuant to the regulation, the director delegated this management function to the facility. See Webster's Third New International Dictionary 1372 (1976)("manage" means as relevant here "to control and direct ... to make and keep (one) submissive").

Accordingly, we conclude § 24-4-106 does not apply to the adjustment of the timing and manner of inmate's restitution payments. See Crawford v. State, supra.

B. Review Under C.R.C.P. 106(a)(4)

Inmate next contends the district court had jurisdiction pursuant to C.R.C.P. 106(a)(4) because the adoption of the regulation to withhold twenty percent of the deposits to his account and the enforcement of that regulation constituted quasi-judicial actions. Again, we disagree.

C.R.C.P. 106(a)(4d) provides in relevant part:

Where 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:
(I) Review shall be limited to a determination of whether the body or officer has exceeded its jurisdiction or abused its discretion, based on the evidence in the ree-ord before the defendant body or officer.

We review de novo the trial court's determination whether a plaintiff was seeking review of a quasi-judicial function or a legislative function of a governmental body. See City & County of Denver v. County Court, 37 P.3d 458 (Colo.App.2001).

Quasi-judicial actions are characterized by the following factors: (1) a local or state law requiring that notice be given before the action is taken; (2) a local or state law requiring a hearing before the action is taken; and (8) a local or state law directing that the action result from the application of prescribed criteria to the individual facts of the case. Gilpin County Board of Equalization v. Russell, 941 P.2d 257, 262 (Colo.1997)("Quasi-judicial action focuses on the application of legislative or quasi-legislative requirements to an individual under a particular set of facts."); see also Baldauf v. Roberts, 37 P.3d 483 (Colo.App.2001)(certain actions taken pursuant to Colorado Department of Corrections disciplinary procedures are quasi-judicial because the procedures prescribed notice and hearing requirements).

A quasi-legislative action affects the rights of individuals in the abstract and must be applied in a later proceeding involving specific individuals before it is subject to judicial review. Prairie Dog Advocates v. City of Lakewood, 20 P.3d 1203 (Colo.App.2000). An example includes the formulation of regulatory policy of general application to an affected group. Gilpin County Board of Equalization v. Russell, supra. Quasi-legislative actions are prospective in nature, are of general application, and require the balancing of questions of judgment and diseretion. Jafay v. Board of County Commissioners, 848 P.2d 892 (Colo.1993).

Here, the director followed the directive of the 2000 statute which required him to "fix the time and manner of payment of restitution" for all prisoners. Neither the statute in effect when inmate was sentenced nor the one in effect in September 2000 provided for notice or a hearing regarding the time and manner of enforcing a restitution order. The applicable statute also required that the director withhold twenty percent of all deposits into an inmate's account if that inmate owed restitution. See § 16-18.5-106.

Pursuant to this statute, the director ordered the facilities under his direction to implement the regulation, and these facilities included the one in which inmate was incarcerated. The regulation applied generally to all prisoners owing restitution, and in withholding twenty percent of the deposits to the prisoners' accounts, the facility was enforcing the regulation against all prisoners who owed restitution. Hence, the facility's enforcement of the regulation was not specifically directed against inmate.

We therefore conclude that because inmate was not challenging a judicial or quasi-judicial action of the department or the facility, the district court lacked jurisdiction under C.R.C.P. 106(a)(4) and did not err in dismissing the complaint on that basis.

Given our conclusions, we do not address inmate's contentions that the trial court erred in treating defendants' motion to dismiss as confessed or that the court violated his constitutional rights. We observe, however, that another panel of this court has addressed and rejected similar arguments. See People v. Lowe, -- P.3d -, 2002 WL 1577804 (Colo.App. No. 01CA1876, July 18, 2002)(rejecting argument that statute permitting the withholding of funds from an inmate's prison account violated his constitutional rights).

Order affirmed.

Judge NEY and Judge VOGT concur.


author: Judge VOGT.

text:
    Phyllis KROUPA, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE OF COLORADO, Mercy Medical Center, and Sedgwick James, Ltd., Respondents.
    No. 01CA2088.
    Colorado Court of Appeals, Div. IV.
    July 18, 2002.

      Dawes and Harriss, P.C., Elizabeth E. Sal-kind, Durango, for Petitioner.
    Ken Salazar, Attorney General, John D. Baird, First Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
    Dworkin, Chambers & Williams, P.C., Gregory K. Chambers, Denver, Colorado, for Respondents Mercy Medical Center and Sedgwick James, Ltd.
   Opinion by

Judge VOGT.

In this workers' compensation proceeding, Phyllis Kroupa (claimant) seeks review of the final order of the Industrial Claim Appeals Office (Panel) upholding the denial by Mercy Medical Center, and its insurer, Sedgwick James, Ltd. (collectively employer), of her request for additional knee surgery. She argues that her constitutional and statutory rights were violated because the hearing before the Administrative Law Judge (ALJ) was conducted by means of video teleconferencing. She also contends that the ALJ abused her discretion in finding that the surgery was neither reasonable nor necessary. We affirm.

Claimant sustained a compensable injury to her knee in 1994. She has received extensive treatment for the injury, including multiple surgical procedures for which employer paid. In September 1999, she requested authorization for a third arthroscopic surgical procedure to remove sear tissue. Employer refused the request. Claimant went forward with the procedure and commenced this proceeding for reimbursement.

At claimant's request, the matter was initially set for hearing in Durango, Colorado. The hearing was reset for that location on subsequent dates in response to requests for continuances. Finally, over claimant's objection, an evidentiary hearing by video teleconferencing was held. Claimant and her counsel participated from Durango, and employer's counsel participated from the ALJ's Denver location. Claimant was the only witness at the hearing.

Crediting the deposition testimony of employer's expert and the medical records introduced at the hearing, the ALJ concluded that the additional surgery was not necessary or reasonable and that employer had therefore properly refused authorization. |

On review, the Panel upheld the use of the video teleconferencing and the ALJ's determination that claimant was not entitled to compensation for the surgery.

L.

Claimant first contends that the use of video teleconferencing for the hearing was not authorized under the Workers'. Compensation Act (Act), § 840-101, et seq., CRS. 2001, and violated her due process and equal protection rights. We disagree.

A.

Section 848-201, C.R.8.2001, vests the director of the division of workers' compensation and the ALJs with original jurisdiction to hear and decide all matters arising under the Act. The director may adopt rules governing hearings as long as the rules adopted do not limit the jurisdiction granted to ALJs. Section 847-107, C.R.8.2001.

Nothing in the Act or the director's adjudication rules prohibits the ALJ from conducting a hearing through the use of video teleconferencing. Nor is there any provision requiring the physical presence of a testifying witness. Cf. Barnes v. Colo. Dep't of Revenue, 23 P.3d 1235 (Colo.App.2000) (setting aside driver's license revocation where arresting officer had testified via two-way video link, but statute required officer's physical presence at hearing if driver requested it).

On the contrary, the rules provide that testimony may be presented by telephone and that such testimony is presumed to be the equivalent of in-person hearing testimony. Dep't of Labor & Employment Rule VIII(D(T), 7 Code Colo. Regs. 1101-8. The rules of civil procedure, which apply to these administrative proceedings unless they are inconsistent with the Act, see Renaissance Salon v. Indus. Claim Appeals Office, 994 P.2d 447 (Colo.App.1999), also provide for the presentation of testimony by telephone or videophone. See C.R.C.P. 43(i).

Claimant argues that conducting the hearing by video teleconferencing was improper because the division did not first comply with the rulemaking procedures in § 24-4-103, C.R.S.2001. However, there is nothing in the record to indicate that the procedure used here represented a departure from the ordinary practice of the division of administrative hearings or a reinterpretation of existing rules that was sufficiently substantial to require compliance with § 24-4-103.

In addition, claimant characterizes the video hearing as amounting to an improper change of venue. However, even assuming that the procedure used can be characterized as a change of venue, the location of a hearing can be moved by order of an ALJ for good cause shown. Dep't of Labor & Employment Rule VIII(B)®B), 7 Code Colo. Regs. 1101-3. Because the record contains nothing to indicate the reasons for the change, we must presume that the division acted for a valid reason in determining that the hearing would be held by video teleconferencing. See May v. Colo. Civil Rights Comm'n, 43 P.3d 750 (Colo.App.2002)(administrative body is presumed to act fairly, with proper motives, and upon valid reasons in carrying out its statutory responsibilities). Further, claimant has not alleged, and the record affords no basis for concluding, that she was precluded from personally appearing before the ALJ in Denver had she elected to" do so.

Consequently, on the record presented, we cannot conclude that the division acted either contrary to law or in violation of its own rules in determining that the hearing would be conducted by video teleconferencing.

B.

We also find no violation of claimant's constitutional rights to due process and equal protection of the laws.

1.

The requirements of procedural due process apply if there has been a deprivation of a liberty or property interest. Carlson v. Indus. Claim Appeals Office, 950 P.2d 663 (Colo.App.1997). Under the Act, a claimant possesses a property interest in receiving workers' compensation benefits. However, that interest is limited and does not include an interest in receiving medical care from a particular provider or in receiving a particular type of treatment. Colo. Comp. Ins. Auth. v. Nofio, 886 P.2d 714 (Colo.1994).

The claimant's interest is in receiving fair consideration of his or her claim. The state's primary interest is in providing a comprehensive and predictable scheme that speedily resolves questions of job-related injuries and fixes employer liability in a way that allows employers to obtain insurance. Weeker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App.1995); see also § 8-40-102, C.R.S.2001 (intent of Act is to assure quick and efficient delivery of benefits to injured workers at reasonable cost to employers).

Due process is a flexible standard that calls for no specific procedure as long as the basic opportunity for a hearing and judicial review is present. Weeker v. TBL Exeo-vating, Inc., supra. When an administrative adjudication turns on questions of fact, due process requires that the parties be apprised of all the evidence to be submitted and considered and that they be afforded a reasonable opportunity to confront adverse witnesses and to present evidence and argument in support of their positions. Hendricks v. Indus. Claim Appeals Office, 809 P.2d 1076 (Colo.App.1990).

Divisions of this court have held in workers' compensation cases that due process is satisfied if the hearing officer cither reads a transcript of testimony or hears live testimony. See Walton v. Indus. Comm'n, 738 P.2d 66 (Colo.App.1987); Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App.1985). Under these decisions, a due process violation cannot arise from the mere fact that a claimant did not have the opportunity to testify in person in the presence of the ALJ.

Claimant nevertheless maintains that the use of video teleconferencing deprived her of a fair hearing because (1) the evidence she presented did not have the same persuasive effect as if it had been presented in person; (2) technical problems disrupting the video transmission impaired her ability to carry the burden of proof; and (8) the fact that only the videotape made at the Denver location, and not the Durango videotape, became part of the record rendered the record inadequate to depict exactly what she and her counsel saw and heard and, thus, what they might have missed. We are not persuaded.

Claimant's testimony was the only "live" testimony taken at the hearing. The ALJ expressly rejected claimant's suggestion that in-person testimony would be more persuasive, noting that, in her experience with video conferencing and telephone testimony, "ered-ibility and persuasiveness ... is not determined by who is present in the room with me." Further, the video teleconferencing technology was superior to that used in telephone hearings, in that it allowed the ALJ not only to hear claimant's inflection, but also to see her expression and gestures.

Finally, although employer's counsel was present in the room with the ALJ, he offered no testimony and conducted only a brief cross-examination of claimant. In sum, there is no basis in the record for concluding that claimant was disadvantaged by not being at the same location as the ALJ.

Our review of the transcript and the videotape also confirms that, despite the technical difficulties, claimant was accorded a full and complete opportunity to testify regarding the details of her injury and her extensive medical history. Whenever the proceedings became inaudible, the ALJ directed that the question or comment be repeated. Claimant's testimony was responsive to the questions asked and did not appear confused or reflect any chronological gaps in her narrative. The transmission clearly conveyed claimant's description of the pain she had experienced at various stages of her treatment and the level of relief she gained with each surgery, including the surgical procedure at issue in this proceeding.

Nor is the record insufficient for appellate review simply because it does not include the videotape made at the Durango location. Claimant was informed at the hearing that she could make her own videotape but that the Denver tape would be the only official record from which a transcript for appeal would be made. See Dep't of Labor & Employment Rule VIII(J)(1), 7 Code Colo. Regs. 1101-3 (testimony may be taken down by reporter or electronically recorded; if hearing is recorded by more than one method, ALJ designates at time of hearing which will be the source for transcript on appeal). As noted, the Denver videotape and the tran-seript of it do not reflect any gaps in the proceedings, and claimant offers nothing to support her speculation that that videotape and transcript do not accurately depict the proceedings.

Use of video teleconferencing afforded claimant a reasonable opportunity to present evidence and argument in support of her position, while at the same time furthering the state's interest in speedy and efficient resolution of workers' compensation claims. See Wecker v. TBL Excavating, Inc., supra. Further, neither the technical difficulties nor the absence of a second videotape deprived her of a fair hearing or of judicial review.

Under these circumstances, we are satisfied that claimant's due process rights were not violated by the hearing procedure used here.

We note that our conclusion is consistent with the holdings of courts that have addressed the use of videoconferencing technology in other types of proceedings. See United States v. Baker, 45 F.3d 837 (4th Cir.1995) (videoconference procedure for civil commitment hearing did not violate constitutional due process protections, even when used over objection, in light of slight risk of erroneous committal and government's substantial fiscal and security interests); Larose v. Superintendent, 142 N.H. 364, 702 A.2d 326 (1997)(use of video teleconferencing in arraignments and bail hearings did not violate due process); see also Haymes v. Ethicon, 315 N.J.Super. 338, 718 A.2d 262 (1998)(per-mitting plaintiff to depose out-of-state experts by videoconferencing over defendant's objection; procedure satisfied requirement that witnesses be produced in-state and did not prejudice defendant).

2.

We similarly reject claimant's contention that the use of video teleconferencing violates equal protection guarantees by treating injured workers differently depending upon the area of the state in which they reside.

To determine whether a statute operates to deny equal protection of the laws, a court must determine at the outset the level of serutiny to be applied. If a fundamental right or a suspect class is involved, a strict serutiny analysis is applied, under which the statute must be supported by a compelling state interest. In most other cases, a rational basis test applies, and the statute will be upheld if it bears a rational relationship to legitimate governmental objectives and is not unreasonable, arbitrary, or capricious. Indus. Claim Appeals Office v. Romero, 912 P.2d 62 (Colo.1996); Collins v. Jaquez, 15 P.3d 299 (Colo.App.2000).

Classifications based on place of residence are not suspect, and receiving workers' compensation benefits is not a fundamental right. Thus, the rational basis test applies here. See Indus. Claim Appeals Office v. Romero, supra.

Under rational basis review, the threshold issue is whether the challenged procedure results in dissimilar treatment for similarly situated individuals. See Culver v. Ace Elec., 971 P.2d 641 (Colo.1999).

Here, although claimant appears to assume that video teleconferencing is used more frequently in cases where a claimant lives far from Denver, she offers no support for this assumption. Moreover, even if we were to assume that such is the case, the potential fiscal savings and increased efficiency arising from the use of video teleconferencing amounts to a legitimate governmental purpose for instituting this procedure and therefore satisfies the rational basis test.

Thus, the use of the video teleconferencing procedure did not violate claimant's equal protection rights.

II.

Claimant next contends that the Panel erred in upholding the ALJ's determination that the surgical procedure was neither reasonable nor necessary. We disagree.

It is for the ALJ to resolve conflicts in the evidence, make credibility determinations, determine the weight to be accorded to expert testimony, and draw plausible inferences from the evidence. Like the Panel, we must uphold the ALJ's determination of factual issues if it is supported by substantial evidence in the record. Section 8-43-308, C.R.9.2001; Wal-Mart Stores, Inc. v. Indus. Claims Office, 989 P.2d 251 (Colo.App.1999); see also Rockwell Int'l v. Turnbull, 802 P.2d 1182 (Colo.App.1990).

We agree with the Panel that the opinion of employer's medical expert fully supports the ALJ's determination that the surgery was not reasonable or necessary. Claimant's testimony and the contrary opinion of her medical expert, on which claimant relies, did not compel the ALJ to reach a different conclusion. Further, contrary to claimant's contention, the absence of a reference by the ALJ to her testimony concerning her pain relief does not establish that the ALJ ignored pain relief as a valid reason for medical care. See Magnetic Engineering, Inc. v. Indus. Claim Appeals Office, 5 P.3d 385 (Colo.App.2000)(ALJ must make specific findings only as to evidence found persuasive and determinative and is under no obligation to address every issue raised or evidence considered unpersuasive).

The order is affirmed.

Judge NEY and Judge ROTHENBERG concur.


author: BOUDREAU, Justice:

text:
    2002 OK 11
    FIRST NATIONAL BANK IN DURANT, a national banking association, Plaintiff/Appellant, v. HONEY CREEK ENTERTAINMENT CORP., an Oklahoma corporation, Defendant, Lena Clancy, a/k/a Lena L. Clancy, and Acme Finance Company, Defendants/Appellees, Gerald D. Hagee; Sulphur Community Bank, an Oklahoma banking corporation; Specialty Equipment Leasing SVCS; Wesley (Doc) Webber; Board of County Commissioners of Murray County and Murray County Treasurer; County Commissioners of Bryan County and Bryan County Commissioners of Bryan County, Defendants, Farm Credit Bank of Wichita, Additional Party Defendant.
    No. 93,078.
    Supreme Court of Oklahoma.
    Feb. 12, 2002.
    Rehearing Denied Sept. 17, 2002.

      John N. Hermes, Phillip D. Hart, Kymala B. Carrier; McAfee & Taft, Oklahoma City, OK, and Mark A. Morrison, Durant, OK, for Appeliant First National Bank in Durant.
    Dan Little and Prudence Little; Little, Little, Little, Windel & Coppedge, Madill, OK, for Appellees Lena Claney and Acme Financial Company.
   BOUDREAU, Justice:

{1 This case arises from the First National Bank in Durant's (Bank) $2.25 million loan to Honey Creek Entertainment Corporation (Honey Creek) to buy the Arbuckle Wilderness Park (Park) located just east of 1-85 in Murray County, Oklahoma. Lena Clancy, Jim Rainer and Ron Armitage owned Honey Creek. Each owned one-third of the issued stock.

T2 Alan Dufur was the President and C.E.0. of the Bank and was closely involved in the loan from beginning to end. He is the officer with whom Claney, Rainer and Armi-tage dealt.

13 Security for the loan included Honey Creek's own assets and the three owners' stock in Honey Creek. The Bank also required each of the owners to personally guarantee the loan. Finally, because the Bank required additional collateral, Clancy's company, Acme, executed a surety agreement mortgaging 3,000 acres of ranch land in Bryan and Atoka Counties.

T4 The loan closing occurred on October 11, 1994. Trouble began almost immediately and in May of 1997, Honey Creek defaulted on the loan. The Bank commenced this action against Honey Creek, Clancy and Acme on June 3, 1997. The Bank sought a money judgement against Honey Creek on its indebtedness to the Bank and a money judgment against Clancy on her guaranty of the Honey Creek indebtedness. The Bank also sought to foreclose on the mortgages, security agreements and financing statements executed by Honey Creek, Clancy and Acme, respectively. Honey Creek immediately filed for bankruptey protection and received an automatic stay, but the Bank's claims against Claney and Aeme proceeded.

15 Claney and Acme defended by alleging that the Bank, through Dufur, fraudulently induced Clancy to execute the guaranty and surety agreements by his oral assurances prior to closing. Clancy alleged Dufur repeatedly assured her that if Honey Creek were to default, Claney would not incur liability and Acme's mortgages would not be foreclosed until after all Honey Creek assets were sold and the sales proceeds applied to the debt, and even then Claney would be liable only for one-third of the remaining indebtedness, if any. Claney also asserted a counterclaim against the Bank for negligence in impairing the value of Honey Creek's assets.

16 The case was tried to a jury on September 15-17, 1998. At the conclusion of the evidence, the Bank moved for a directed verdict. The trial court overruled the motion and submitted the matter to the jury. The jury returned a verdict against the Bank on its claims against Claney and Acme, finding that Dufur had fraudulently induced Claney to sign the agreements, and found in favor of Claney on her negligence counterclaim against the Bank. On the counterclaim, the jury determined the total loss in value of Honey Creek's assets to be $1,860,000.00. The trial court overruled the Bank's motion for judgment notwithstanding the verdiet and entered judgment on the jury verdict. The Bank appealed. The Court of Civil Appeals reversed. Both sides sought certiorari review which we previously granted.

I.

ISSUES

17 We have two issues to review on certio-rari. The first is whether the Bank is entitled to judgment as a matter of law on Clancy and Acme's defense of fraud in the inducement or whether, instead, the trial court properly submitted that issue to the jury. The second is whether under the evidence presented, Clancy's negligence counterclaim failed as a matter of law.

IL

STANDARD OF REVIEW

T8 The standard for determining a motion for judgment notwithstanding the verdict (JNOV) is identical to the standard for determining a motion for directed verdict. 12 0.9.1991, § 698. We review a trial court's ruling on a motion for JNOV by the same standard used by the trial court. We consider as true all evidence favorable to the non-moving party together with all inferences that may be reasonably drawn therefrom, and we disregard all conflicting evidence favorable to the moving party. Franklin v. Toal, 2000 OK 79 ¶ 13, 19 P.3d 834, 887. A motion for JNOV should not be granted unless there is an entire absence of proof on a material issue. Id.

IIL

FRAUD IN THE INDUCEMENT

19 In its response to Clancy and Acme's defense of fraud in the inducement, the Bank makes three arguments in the alternative. The Bank argues, first, that Dufur did not make the statements which Clancy testified he made; second, even if he made the statements, the statements should be characterized as misrepresentations of law which are not admissible under the parol evidence rule; and third, even if Dufur's statements are characterized as misrepresentations of fact instead of as misrepresentations of law, the statements are not admissible under the par-ol evidence rule. We reject out of hand the Bank's first argument since in reviewing the denial of a motion for JNOV we must disregard all conflicting evidence favorable to the Bank. The Bank's second and third arguments require analysis and application of the parol evidence rule.

110 The parol evidence rule is not a rule of evidence but is instead a rule of substantive law. Mid-America Corp. v. Miller, 1962 OK 123, 372 P.2d 14, 18; see also Restatement (Second) of Contracts § 213, comment a (1979). Under the parol evidence rule, pre-contract negotiations and oral discussions are merged into and superseded by the terms of an executed writing. 15 O.S. 1991, § 137; Bonner v. Oklahoma Rock Corp., 1993 OK 131, 863 P.2d 1176, 1180; see also Restatement (Second) of Contracts § 213 (1979). The rule provides that parol evidence cannot vary, modify or contradict the terms of an executed written agreement. Ollie v. Rainbolt, 1983 OK 79, 669 P.2d 275, 279. The rule fosters an important public policy-the certainty and stability of contracts. American Perforating Co. v. Oklahoma State Bank, 1970 OK 4, 463 P.2d 958, 963. The parol evidence rule applies not only to note makers but also to guarantors and sureties. Maney v. Cherry, 1935 OK 115, 41 P.2d 82, 84.

«11 The Bank argues that if Dufur did make the representations as alleged, the representations amounted only to matters of law. The Bank points out that with limited exceptions, fraud cannot be predicated on misrepresentations of law or misrepresentations as to matters of law. While this is an accurate statement of the law, see Nesbitt v. Home Federal Savings & Loan Assoc., 1968 OK 31, 440 P.2d 738, 743; First National Bank v. Muskogee Discount House, 1963 OK 130, 382 P.2d 137, 139, Dufur's alleged statements do not constitute misrepresentations of law. The statements allegedly made by Dufur to Clancy do not relate to Clancy's legal liability under the written agreements. Rather, they relate to the intention of the Bank not to enforce the written agreements to their fullest extent. We have no trouble characterizing Dufur's alleged statements as misrepresentations of fact.

Y12 The Bank then argues that even if Dufur's statements are characterized as misrepresentations of fact, they are not admissible under the parol evidence rule. We disagree. While the parol evidence rule precludes the admission of evidence that seeks to vary, contradict or add to an integrated agreement, it does not prohibit extrinsic evidence which will not bring about this result. Such evidence falls outside the scope of the rule. It is well-established in Oklahoma that the parol evidence rule does not preclude evidence of false and fraudulent representations of fact offered to establish fraud in the inducement of the execution of a contract, even when those representations directly contradict the contract provisions. Bredouw v. Jones, 1966 OK 93, 431 P.2d 413, 419; A.A. Murphy Inc. v. Banfield, 1961 OK 197, 363 P.2d 942; Miller v. Troy Laundry Machinery Co., Inc., 1936 OK 513, 62 P.2d 975, 977.

As we have repeatedly said:

The purpose and effect of the evidence introduced in the case at bar is not to contradict or vary the terms of the written contract, but to show that the plaintiff was imposed upon, and the fraud was practiced in obtaining his signature thereto. Fraud vitiates everything it touches, and a contract obtained thereby is voidable. And evidence is always admissible to show that contracts have been fraudulently obtained.

Bredouw, 431 P.2d at 419 (quoting American Asbestos Products Co. v. Smith Bros., 1937 OK 604, 73 P.2d 839, 841). In these situations, the public policy fostering the certainty and stability of contracts gives way to the public policy against fraud.

4 13 Clancy defended the Bank's breach of contract claims by asserting that she had been fraudulently induced by Dufur to sign the guaranty and surety agreements. In reviewing the trial court's denial of the Bank's motion for JNOV on these claims, we must consider as true all evidence favorable to Claney and we must disregard all evidence favorable to the Bank. Thus, we view the following facts as true.

{14 Dufur and Clancy had a long-term business relationship prior to the Honey Creek loan. Dufur had assisted Clancy in an earlier project in 1991, the Deer Run Lodge project, by helping obtain a feasibility study and helping make sure the lodge would be profitable not only to Claney but also to the community. Dufur, through the Bank, loaned $250,000.00 to Acme for that project. Dufur was Clancy's personal banker and business friend. She had a great deal of faith in him. She respected and relied on his business advice and she developed a high degree of trust in him. Dufur knew that Clancy trusted him and relied on his advice. Claney spoke with Dufur many times during the siz months of negotiations leading to the closing of the Honey Creek loan. Dufur told Clancy on numerous occasions that she would never be responsible for more than one-third of the Honey Creck debt. Neither Dufur nor anyone else ever mentioned to her that she would be responsible for the entire debt. As she testified: "It was never mentioned to me, ever, by anyone." She would not have signed the guaranty agreement had Dufur not assured her the Bank would never seek more than one-third of the debt from her. With respect to the 3,000 acres of ranch land, it was not part of the Honey Creek negotiations in the beginning. When the Bank suggested that Claney, through Acme, mortgage the ranch land, Claney did not agree at first. Dufur reassured her that she would never be responsible for more than one-third of the debt, that the Acme mortgages were needed out of an "abundance of caution that would probably never be needed," and the mortgages would "never be called upon" until the assets of Honey Creek were sold and the proceeds applied to the debt. Clancy would not have agreed to mortgage the ranch land but for Dufur's assurances and agreements regarding the Bank's intent.

115 The trial court submitted Clancy and Acme's defense of fraudulent inducement to the jury. The jury returned a verdict in favor of Claney and Acme on the Bank's claims for breach of contract, finding that Dufur's misrepresentations fraudulently induced Claney to execute the guaranty and surety agreements. At the conclusion of the trial, the trial court overruled the Bank's motion for JNOV on these claims. When a trial court denies a motion for JNOV, we must affirm its decision unless there is an entire absence of proof on a material issue. Franklin v. Toal, 2000 OK 79 %57 13, 19 P.3d 834, 837. Under this standard we conclude the trial court properly denied the Bank's motion for JNOV on the Bank's claim against Clancy for breach of her guaranty agreement and on the Bank's claim against Acme for breach of the surety agreement.

IV.

CLANCY'S NEGLIGENCE COUNTERCLAIM AGAINST THE BANK

§16 In her answer, Clancy asserted a counterclaim against the Bank for its alleged negligence in impairing the value of Honey Creek's assets. At trial, the Bank argued Claney did not have standing to assert such a counterclaim. Claney assured the trial court that her counterclaim did not seek damages for any injury to Honey Creek. She argued, instead, that she could assert the counterclaim in her capacity as a guarantor because the loss in value of Honey Creek's assets injured her in her capacity as a guarantor. Although the trial court had previously directed a verdict against Clancy on her defense that her guaranty liability stood exonerated by the Bank's impairment of collateral, it nevertheless allowed Clancy, as a guarantor, to maintain a claim for negligence against the Bank.

117 In any action based on negli-genee, the first prerequisite must be to establish the existence of a legally cognizable duty. Wofford v. Eastern State Hosp., 1990 OK 77, 795 P.2d 516, 518. Duty is a question of law for the court in a negligence action although the existence of a duty often depends on the relationship of the parties. Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, 913 P.2d 1318, 1320.

118 In the instant case, Claney failed to establish the existence of a legally cognizable duty owed to her by the Bank to preserve the value of Honey Creek's assets. Claney claims that Armitage, one of the co-owners and president of Honey Creek, damaged Honey Creek's assets by mismanaging the Park and by selling the Park's animals and equipment without applying the proceeds to the debt. Claney blames the Bank for failing to prevent Armitage from damaging Honey Creek's assets.

119 Claney failed to establish, however, that the Bank owed her a duty to prevent a diminution in value of Honey Creek,. The evidence at trial established that the relationship of the Bank and Clancy was a debtor-creditor relationship, not a fiduciary relationship. Beshara v. Southern Nat. Bank, 1996 OK 90, 928 P.2d 280, 288 (a bank's relationship to its customer is that of debtor-creditor). Similarly, Claney failed to identify any written agreement that imposed upon the Bank a duty to monitor the loan collateral for the benefit of Honey Creek, Claney or Acme. In the instant case it was the duty of Honey Creek's officers and directors, including Clancy, to manage Honey Creek's assets-not the duty of the Bank.

1 20 Because Claney did not establish that the Bank owed her a duty to preserve the value of Honey Creek's assets, Clancy's negligence counterclaim against the Bank failed as a matter of law under the evidence presented. The trial court erred in not granting the Bank's motion for JNOV on Clancy's negligence counterclaim against the Bank. We reverse the trial court's judgment to the extent that it awarded money damages to Clancy on her counterclaim.

v.

CONCLUSION

1 21 We hold that the trial court properly submitted Clancy and Aeme's fraudulent inducement defense to the jury and we affirm that portion of the trial court's order which denied the Bank's motion for JNOV directed to the Bank's breach of contract claims. We further hold that Clancy's negligence coun-tercelaim against the Bank failed as a matter of law under the evidence presented and that the trial court erred when it overruled the Bank's motion for JNOV directed to the counterclaim. We remand this case to the trial court to enter judgment consistent with this opinion, that is, for Claney and Aeme on the jury verdict in their favor on the Bank's breach of contract claims, and against Claney on her negligence counterclaim against the Bank.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE TRIAL COURT AFFIRMED IN PART AND REVERSED IN PART; CAUSE REMANDED WITH INSTRUCTIONS.

22 HARGRAVE, C.J., LAVENDER, OPALA, KAUGER, SUMMERS, WINCHESTER, JJ., concur.

T 23 WATT, V.C.J., concurs in Part IV, dissents to Part IIL.

« 24 HODGES, J., disqualified.

      . A surety and a guarantor have in common that they are both bound for another person. "A guaranty is a promise to answer for the debt, default or miscarriage of another person." 15 OS 321. It is essentially an undertaking to answer for another's liability. Commonwealth Cotton Oil Co. v. Lester, 1932 OK 2, 9 P.2d 738, 745. "A surety is one who, at the request of another, and for the purpose of securing to him a benefit, becomes responsible for the performance by the latter of some act in favor of a third person, or hypothecates property as security therefor." 15 0.8. § 372.

      . At the closing on October 11, 1994, Clancy executed and delivered to the Bank a guaranty agreement, personally guaranteeing the payment when due of any and all Honey Creek indebtedness to the Bank. She also executed and delivered to the Bank a security agreement wherein she pledged all of her Honey Creek stock as collateral for any and all Honey Creek indebtedness to the Bank, and Acme executed and delivered to the Bank mortgages and financing statements covering its Bryan County and Atoka County properties.

      . Under Oklahoma's comparative negligence statute, the jury assigned 80% of the total negligence to the Bank and 20% to Clancy. The trial court then awarded Clancy money damages in the amount of $1,488,000.00, which is 80% of the total damages.

      . She also conceded in her appellate brief that a shareholder of a corporation may not assert a claim on behalf of the corporation.

      . Impairment of collateral is normally a defense to an action on a guaranty or surety agreement for which the remedy is a discharge of the guarantor's obligation to the extent of the value of the collateral impaired. 15 0.S.1991 §§ 338, 377. Although we have never specifically addressed the issue, the Restatement (Third) of Suretyship and Guaranty allows a guarantor, under limited circumstances, to assert a claim against the creditor for impairment of collateral. Restatement (Third) of Suretyship and Guaranty, §§ 37(3)(d), 42 (1996).


author: HODGES, J.

text:
    2002 OK 36
    John ROBERTS and Christopher Ayers, Appellees, v. OKLAHOMA DEPARTMENT OF CORRECTIONS and the Oklahoma Merit Protection Commission, an agency of the State of Oklahoma, Appellants.
    No. 95,156.
    Supreme Court of Oklahoma.
    May 7, 2002.
    Rehearing Denied Sept. 17, 2002.

      James Patrick Hunt, James R. Moore & Associates, Oklahoma City, OK, attorney for Appellees.
    Richard W. Kirby, General Counsel, Gary L. Elliot, Michael T. Oakley, Assistant General Counsels, Department of Corrections, Oklahoma City, OK, attorneys for Appellants. ~
   HODGES, J.

11 John Roberts and Christopher Ayers are employed by the Oklahoma Department of Corrections as probation and parole officers. Roberts was a Team Supervisor and Ayers was one of his subordinates. They and other officers, who are not parties to the appeal, were disciplined for acts arising from attempts to serve arrest warrants on probationer Ned Snow and his common law wife Christine.

12 On April 16, 1998, the probation and parole officers, along with sheriff deputies, gathered near Ned Snow's rural residence. The officers parked their vehicles out of sight of the residence and erossed a field on foot. They stopped a pickup truck on the road in front of the residence, arrested Christine Snow, and detained another occupant of the truck. The officers sought and obtained permission to move the truck into the driveway. Before the truck could be moved, however, Ned Snow drove up in a white Camaro. Upon seeing the officers, Mr. Snow fled the scene. Supervisor Roberts ordered Ayers and another officer to pursue Snow in the pickup truck. The officers followed Snow down the road about a quarter of a mile until the truck stalled. Snow escaped but was captured later that day. The officers had the truck towed to a garage.

€ 3 The DOC disciplined the five probation and parole officers involved in this attempt and in an earlier attempt to arrest Ned Snow. The discipline was based on alleged violations of DOC policy and state law. Roberts was demoted from Team Supervisor and Ayers received an eight day suspension without pay. The five officers appealed their discipline to the Oklahoma Merit Protection Commission (OMPC).

14 As to officers Robert and Ayers, the administrative hearing officer found no sanc-tionable violation of DOC policy but she concluded that use of the pickup truck to pursue the fleeing probationer violated section 585 of title 21. Roberts' demotion was reduced to a twenty day suspension without pay and Ayers' suspension was reduced from eight days to five. Roberts and Ayers then sought review in the District Court.

15 The basis of the officers' Petition for Judicial Review was that the hearing officer made an error of law by concluding that the officers made an unlawful seizure of the pickup truck in violation of section 535. The trial court agreed and exonerated Roberts and Ayers of any wrongdoing. The DOC appealed.

16 The Court of Civil Appeals reversed because "there was sufficient evidence to support the findings of the OMPC." Thus, the majority of that court never reached the legal issue. A vigorous dissent reminded the court that the matter presented a question of law and that there was no real dispute as to the relevant facts. This Court granted cer-tiorari review to resolve whether, as a matter of law, the officers' use of the pickup truck violated section 585.

17 The pertinent portion of section 585 makes it a misdemeanor for a public officer acting under pretense or color of any legal authority to seize any property without due and legal process. The DOC suggests that any nonpermissive use of a civilian's property violates the provision. Under its proposed construction, section 585 would be a strict liability crime for which an officer's intent is irrelevant. This Court finds, however, no legislative intent that the provision be so construed.

18 In the absence of legislative intent to impose strict liability, "[a] rule of strict construction is to be applied to criminal statutes and courts should not extend them to embrace acts or conduct not clearly included within the prohibition of the statute." Modisett v. Marmaduke, 394 P.2d 541, 544 (Okla.Ct.Crim.App.1964) (quoting Group v. State, 94 Okla.Crim. 401, 236 P.2d 997, 1002 (1951)). Further, a "[plerson cannot be convicted of a crime unless the act which is committed is within both [the] letter and spirit of [a] penal statute." Id.

T9 Section 585 should not be extended to embrace the officers' actions in this matter. It is undisputed that the officers used the truck to pursue Ned Snow. Those actions, however, do not constitute a seizure in violation of section 585. The officers' actions were taken as a necessity to protect public safety based on the officers' good faith attempt to apprehend a fleeing probation violator. This Court has recognized that "situations where property is damaged or destroyed as a necessity in order to protect the health or safety of the public" involves the proper use of police power. Sullivant v. City of Oklahoma City, 1997 OK 68, ¶ 19, 940 P.2d 220, 225. The pardon and parole officers' temporary use of the pickup truck was necessary for public protection. No violation of section 585 is presented.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; TRIAL COURT AFFIRMED.

10 HODGES, LAVENDER, OPALA, SUMMERS, and WINCHESTER, J., concur.

{11 HARGRAVE, C.J., WATT, V.C.J., and KAUGER, J., concur in result.

12 BOUDREAU, J., dissents.

      . Section 535 provides:
      "Every public officer or person pretending to be a public officer, who under the pretense or color of any process or other legal authority, arrests any person, or detains him against his will, or seizes or levies upon any property, or dispossesses anyone of any lands or tenements without due and legal process, is guilty of a misdemeanor.
      Okla. Stat. tit. 21, § 535 (2001).