author: Judge JONES.

text:
    E-470 PUBLIC HIGHWAY AUTHORITY, Plaintiff-Appellee, v. ARGUS REAL ESTATE PARTNERS, INC., a Colorado corporation; and Britton Ranch, Ltd., a Colorado limited partnership, Defendants-Appellants.
    No. 01CA0487.
    Colorado Court of Appeals, Div. II.
    March 14, 2002.
    Rehearing Denied July 11, 2002.
    Certiorari Denied May 20, 2003.

      TIcenogle, Norton, Smith, Blieszner & Miller, P.C., Edward J. Blieszner, Denver, CO, for Plaintiff-Appellee.
    Isaacson, Rosenbaum, Woods & Levy, P.C., Blain D. Myhre, T. Barton French, Jr., Denver, CO, for Defendants-Appellants.
   Opinion by

Judge JONES.

Defendants, Argus Real Estate Partners, Inc. and Britton Ranch, Ltd., appeal the judgment quieting title to a parcel of land in favor of plaintiff, E-470 Public Highway Authority. We affirm.

Britton Ranch owned certain real property in Arapahoe County, a portion of which it donated to the Authority through an Agreement to Donate Property (the Agreement) "for the purpose of constructing the Public Highway."

Ultimately, the Authority did not build any portion of E-470 upon the subject property. Rather, the highway was constructed so as to pass one-half mile from the property.

Section 5.3 of the Agreement described a process for the Authority to return the property if it was not needed:

If the Authority no longer has a need for all or any portion of the Property Rights acquired pursuant to this agreement, after passing an appropriate Resolution the Authority shall offer the Property Rights, or any portion of them for which it no longer has a need to the Landowner, or its successors and assigns, by quit claim [sic] deed without charge.

However, after Britton Ranch and the Authority had signed the Agreement, representatives for the two entities executed a gift deed, which provided, in pertinent part, for transfer of all of Britton Ranch's interest in the property:

This conveyance is granted with all the hereditaments and appurtenances belonging to the Property, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever of the Grantor, either in law or equity, of, in and to the Property, with the hereditaments and appurtenances.

Britton Ranch later assigned its rights in the Agreement to Argus.

The Authority brought this action to remove a potential cloud on its title to the property caused by language in the Agreement. Argus counterclaimed, alleging that the language in the Agreement required the Authority to deed the property back to it. Both parties moved for summary judgment.

The district court entered summary judgment for the Authority and denied Argus's motion. The court found that section 5.8 of the Agreement violated the rule against per-petuities. It found that the Agreement did not establish when, if ever, the Authority may determine that it "no longer has need" for the subject property rights. This appeal followed.

I.

Argus first contends that the trial court erred in applying the rule against perpetuit-ies to invalidate its interest in the property. We perceive no error. ~

Courts review the grant of summary judgment de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Bd., 901 P.2d 1251 (Colo.1995). Summary judgment is a drastic remedy and should be granted only if there exists no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. C.R.CP. 56(c); Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988). A reviewing court must view the record in the light most favorable to the nonmoving party. Compass Ins. Co. v. City of Littleton, 984 P.2d 606 (Colo.1999).

The rule against perpetuities provides that "no interest in real property is valid unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest." Crossroads Shopping Ctr. v. Montgomery Ward & Co., 646 P.2d 330, 332 (Colo.1981). "The rule prevents the remote vesting of contingent interests in real property." Cambridge Co. v. East Slope Inv. Corp., 700 P.2d 537, 540 (Colo.1985).

A.

Argus argues that it retained a present, vested interest in the property at all times by virtue of section 5.3 of the Agreement. It characterizes this provision of the Agreement as a present, reversionary interest in the property, which is not subject to the rule against perpetuities. We disagree.

A reversion is the undisposed portion remaining in a grantor when that grantor conveys less than his or her whole estate and, therefore, retains a portion of the title. Mosca Town Co. v. Wellington, 39 Colo. 326, 331, 89 P. 783, 785 (1907)(stating "a reversion is the residue of an estate left in the grantor and his heirs to commence in possession after the determination of some particular estate granted out by him"; quoting 24 Am. & Eng. Ene. Law 420). A reversion is certain to happen and is not subject to a condition precedent. 81 C.J.8. Estates §§ 103(b), 104 (1996).

An interest is "contingent" if an uncertain event must pass in order for it to vest. See Barry v. Newton, 130 Colo. 106, 273 P.2d 735 (1954). Where "(ilt is impossible to determine in whom the ultimate right to the estate may vest, or whether it will ever vest, ... no conveyance can pass an absolute title because it is wholly uncertain in whom the estate will vest on the happening of the event upon which the interest is to take effect." Barry v. Newton, supra, 130 Colo. at 114, 273 P.2d at 740 (citing Proprietors of Church v. Grant, 69 Mass. (3 Gray) 142, 63 Am. Dec. 725 (1855)).

The record reveals that neither the Agreement nor the deed executed by the parties reserved any portion of the. estate to Argus. The Agreement stated: "The Landowner agrees that the terms of this Agreement are full and just compensation for all of its past, present, and future interests in the Property Rights." Similarly, the deed stated: "This conveyance is granted with all the . reversion and reversions ... and all the estate, right, title, interest, claim and demand whatsoever of the Grantor, either in law or equity, of, in and to the Property, with the hereditaments and appurtenances."

The Agreement provided numerous conditions precedent to quitelaim of the property to Argus. First, the Authority must conclude that it no longer needs the property, a conclusion the Authority may reach beyond twenty-one years after a life in being at the time of the Agreement. Secondly, the Authority must pass a resolution. Thirdly, if the resolution passes, the Authority then "shall offer" to quitelaim the property to Argus without charge. Finally, upon receiving this offer, Argus may accept or decline the offer. These contingencies prevent the absolute certainty of Argus's right to the property. See Barry v. Newton, supra.

Therefore, we conclude that Argus does not have a present, reversionary interest in the property.

B.

Argus next asserts that the Agreement creates a public charitable gift and, therefore, the rule against perpetuities does not apply. We disagree.

The exception to the rule against per-petuities for charitable gifts favors a gift from a "first charity to a second charity." See Colorado Nat'l Bank v. McCabe, 143 Colo. 21, 33, 353 P.2d 385, 391 (1960)(stating that gift over from first charity to second charity on condition precedent which may not oceur within the period of the rule against perpetuities constitutes exception to rule and is valid). However, the supreme court has construed the exception liberally. In re Schleier's Estate, 91 Colo. 172, 13 P.2d 273 (1932)(enforcing perpetual trust to benefit charities rather than voiding trust and allowing residue to pass to heirs). Nevertheless, where the interests of either an individual or a noncharitable corporation intervene, the exception is lost. See Colorado Nat'l Bank v. McCabe, supra.

In this instance, neither Argus nor the Authority is a charity. If section 5.3 of the Agreement is enforceable, then Argus's interests have intervened. Although Argus admits that it donated the land for the construction of a highway, and it asserts that it acted to promote the public good and to avoid eminent domain proceedings, Argus's current arguments belie these purposes.

Had the state, via the acts of the Authority, taken the property by eminent domain, it would have been required to pay Argus the fair market value of the property. Dillinger v. North Sterling Irrigation Dist., 135 Colo. 95, 308 P.2d 606 (1957). The record reveals that Argus foresaw the possibility that the Authority would not use the land and attempted to reserve a right to reclaim title to the gift in order to utilize the property for its own benefit.

Thus, we conclude that the charitable contribution exception to the rule against perpe-tuities does not apply to this transfer of land and that the interest in the property conveyed by the Agreement is subject to the rule against perpetuities.

Therefore, the district court did not err when it invalidated Argus's interest in the property by application of the rule against perpetuities.

We note, further, that because the trial court did not address issues of merger, we need not do so.

IL

In the alternative, Argus contends that, if the Agreement violates the rule against per-petuities, public policy requires that Argus's interest in the property be upheld. We disagree.

A.

Argus relies upon the rubric of Cambridge Co. v. East Slope Inv. Corp., supra, to argue that the rule against perpetuities should not be applied to this situation. We conclude that Argus's reliance upon this case is misplaced.

In Cambridge, the supreme court held that "the rule against perpetuities will be applied to preemptive rights only where the purposes of the rule, such as preventing a practical restraint upon alienation or encouraging improvement of the property, are served." Cambridge Co. v. East Slope Inv. Corp., supra, 700 P.2d at 541 (emphasis added). However, the court also noted that "cireum-stances making it difficult to locate the holders of contingent future interests may create a sufficient restraint on alienation to require application of the rule against perpetuities." Cambridge Co. v. East Slope Inv. Corp., supra, 700 P.2d at 541 n. 4 (citing Atchison v. City of Englewood, 170 Colo. 295, 463 P.2d 297 (1969)).

The Cambridge case is distinguishable from this case because, here, as opposed to Cambridge, section 5.8 does not ensure a sale at full market value upon the Authority's determination that it no longer has a need for the property. Rather, the Authority is required either to use the property or to give it away. Because it is plainly in the Authority's interest to keep and use the property pursuant to its broad powers under § 48-4-506, C.R.S.2001, transfer of the property would be restrained for all time by enforcement of section 5.8.

B.

During oral arguments, counsel for Argus asserted that, with the passage of § 15-11-1101, et seq., C.R.8.2001, the General Assembly strongly turned away from the rule against perpetuities with respect to commercial property. Because Argus did not raise this argument in the trial court, we decline to address it here. See Matthews v. Tri-County Water Conservancy Dist., 200 Colo. 202, 613 P.2d 889 (1980).

C.

Argus also argues that enforcement of the terms of the Agreement would actually promote the policy of encouraging the property's improvement. We disagree.

The parties do not dispute that the deed from Britton Ranch to the Authority was valid. That deed granted the Authority "all the estate, right, title, interest, claim and demand whatsoever of the Grantor, either in law or equity, of, in and to the Property, with the hereditaments and appurtenances." But for the cloud created by section 5.8 of the Agreement, the Authority possesses a fee simple interest in the land, which it can improve, convey, or retain for future sale or use. Section 5.3 prevents the Authority from selling the land for its fair market value, - because by doing so the Authority would trigger Argus's rights under that section.

IIL

Argus finally contends that the trial court erred in denying its motion for summary judgment because the Agreement requires the Authority to return the property to Argus if the Authority no longer needs the property for the purpose of constructing the public highway.

Because we have determined that the Agreement was subject to the rule against perpetuities, and that Argus had no interest remaining in the property, we need not consider this issue.

The judgment is affirmed.

Judge PLANK and Judge WEBB, concur.


source: Caselaw Access Project

author: Judge DAILEY.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Troy A. ANDERSON, Defendant-Appellant.
    No. 00CA01031.
    Colorado Court of Appeals, Div. III.
    April 25, 2002.
    Certiorari Denied July 8, 2002.

      Ken Salazar, Attorney General, Clemmic P. Engle, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Stefani Goldin, Loveland, Colorado, for Defendant-Appellant.
   Opinion by

Judge DAILEY.

Defendant, Troy A. Anderson, appeals the judgment of conviction entered upon jury verdicts finding him guilty of three counts of attempted second degree murder, two counts of attempted reckless manslaughter, nine counts of menacing, one count of eriminal mischief, and one count of attempted escape. We affirm.

This appeal involves charges arising out of two separate incidents. In the first incident, defendant threatened two motel tenants with a handgun and then fired a number of shots at police officers who appeared upon the scene. In the second incident, defendant obtained a handgun while attempting to escape from a police transport bus and fired shots out of the bus windows at police. No one was injured in either incident.

Over defense counsel's objection, defendant entered a plea of not guilty by reason of insanity (NGRI). Nearly seven months later, counsel reported that, after contacting twelve experts, he was unable to produce any credible evidence in support of an insanity defense. At counsel's request and over defendant's objection, the trial court vacated defendant's NGRI plea and entered, in its stead, a plea of not guilty.

At the conclusion of trial, the jury found defendant guilty of the erimes mentioned above. Subsequently, the trial court sentenced him to an aggregate term of seventy-five years incarceration.

L.

On appeal, defendant challenges the constitutionality of §§ 16-8-106(2)(b) and 16-8-108.6, C.R.S.2001, two statutes concerning the admissibility of evidence in proceedings to determine a person's sanity or competency. We are not persuaded.

As other divisions of this court have done, we reject the assertion that § 16-8-106(2)(b) is unconstitutional. See People v. Bielecki, 964 P.2d 598, 602-03 (Colo.App.1998). See also People v. Tally, 7 P.3d 172, 182 (Colo.App.1999)(analyzing substantially identical provision).

And, because defendant did not raise the issue before the trial court, we decline to address his constitutional attack on § 16-8-108.6. See People v. Boyd, 30 P.3d 819, 820 (Colo.App.2001).

IL.

Next, defendant contends that he was improperly prevented from presenting an insanity defense by the time restriction imposed by the trial court on the disclosure of expert reports. We disagree.

Initially, we note that defendant may well have abandoned this objection by failing to press for a ruling after the trial court, at defense counsel's request, substituted the not guilty plea for the NGRI plea. See People v. Ridenour, 878 P2d 23, 28 (Colo.App.1994)("by not requesting a ruling on his motion to continue and by accepting the stipulation, [defendant] abandoned the motion and waived his right to assert error on appeal").

In any event, the record reveals that trial had been continued twice for a total of nearly seven months to allow defendant an opportunity to retain mental health experts. As of the date expert witness disclosures were due, defense counsel had contacted twelve experts, none of whom could support an NGRI defense. Given that the disclosures were due only twenty two days before trial, see Crim. P. 16(V)(b)(1) (ordinarily, defense must disclose experts' reports at least thirty days before trial), and that defense counsel neither indicated any likelihood that he could obtain expert testimony nor asked for any relief other than to change defendant's plea, we fail to perceive how the trial court abused its discretion with respect to the order challenged here. See People v. Richardson, 8 P.3d 562, 565 (Colo.App.2000)(court abuses discretion only if its action is manifestly arbitrary, unreasonable, or unfair), aff'd, 25 P.3d 54 (Colo.2001).

Consequently, reversal is not warranted on this ground.

TIL

Finally, defendant contends that the trial court erred in substituting a plea of not guilty for his NGRI plea. The court's action, defendant argues, denied him the right to present a defense and the right to the effective assistance of counsel. We disagree.

Ordinarily, a defendant who is competent to stand trial has the right to determine the nature of his or her defense and, correspondingly, what plea to enter. See Hendricks v. People, 10 P.3d 1231, 1242 (Colo.2000)(recognizing a defendant's autonomy in controlling the nature of defense); People v. Curtis, 681 P2d 504, 511 (Colo.1984)(defendant's right to choose his or her plea is a fundamental constitutional right). See also Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987, 993 (1983)(under the constitution, accused, not counsel, must decide "whether to plead guilty"); Colo. RPC 1.2(a) (accused, not counsel, decides plea to be entered in criminal case); ABA Standards for Criminal Justice: Prosecution Function and Defense Function § 4-5.2 (8d ed.1998)(accused, not counsel, decides "what pleas to enter").

However, the right to present and, of necessity, to determine the nature of a particular defense or plea is not absolute. See Hendricks v. People, supra, 10 P.3d at 1233, 1241-44 (in appropriate cireumstances, courts may impose NGRI plea and defense over defendant's objection). ,

For instance, these rights are not violated by refusing to submit to a jury a defense that is wholly unsupported by the evidence. See People v. Hill, 934 P2d 821, 826 (Colo.1997)("An affirmative defense does not become a matter for consideration by a jury until some quantum of evidence relevant to the affirmative defense is admitted."); People v. Burton, 48 Cal.3d 843, 856-57, 258 Cal.Rptr. 184, 77l P.2d 1270, 1278-79 (1989)(rejecting defendant's complaint of counsel's failure to put on a defense because "the record does not show that any defense he wished to present had credible evidentiary support"). See also H. Richard Uviller, Cali-ing the Shots: The Allocation of Choice Between the Accused and Counsel in the Defense of a Criminal Case, 52 Rutgers L.Rev. 719, 729 (2000)(criminal defendants should not be permitted to determine the nature of defense where, among other things, the defense is "contrary to undisputed fact or utterly without support or merit").

In determining whether there was, as asserted by defendant but not by his counsel, evidence of an insanity defense to put before the jury, the trial court's responsibility was not to assess the credibility of witnesses or the weight of the evidence. Rather, its task was to determine simply if there was any evidence supporting a finding of insanity. See People v. Hill, supra, 934 P.2d at 830.

In Colorado, insanity is defined in terms of a person: (1) being so diseased or defective in mind at the time of the offense that the person was incapable of distinguishing right from wrong; or (2) suffering from a condition of mind caused by mental disease or defect that prevented the person from forming the requisite culpable mental state for a crime. Section 16-8-101.5, C.R.S.2001.

Here, defense counsel reported to the trial court that no credible evidence supported defendant's NGRI plea. Defendant insisted otherwise, pointing to proffered lay witness testimony, which, he said, would suffice under § 16-8-108, C.R.S8.2001.

According to defendant's offer of proof: (1) family members would testify to his history of mental illness; (2) nurses, social workers, and inmates would testify to various behaviors they witnessed while he was in mental health and correctional facilities; and (8) a girlfriend would testify to his behavior immediately before the first incident. According to defendant, evidence of earlier mental illness and recent erratic behavior, combined with his own testimony, would support his theory that, because of his background, he was fearful of law enforcement and incarceration and thus shot at the police to scare them away.

Defendant's proffered evidence and the theory it supports did not support an insanity plea or defense. Defendant did not proffer any evidence that he was unable to distinguish right from wrong or to form the requisite intent because of a mental disease or defect. If anything, the proffered evidence and theory tended to show that he had an intent other than to kill or harm anyone, not that he was insane. Defense counsel presented this theory at trial, as supported by defendant's own testimony.

Because defendant's proffered évidence and theory did not support an insanity plea and defense, we conclude that he was not entitled to pursue or have counsel pursue them at trial. Consequently, under the circumstances, the trial court did not err in vacating defendant's NGRI plea.

We are aware that in State v. Tenace, 121 Ohio App.3d 702, 715, 700 N.E.2d 899, 908 (1997), an intermediate appellate court held that the trial court committed prejudicial error in permitting counsel to withdraw an NGRI plea over the defendant's objection because the defendant was deprived of the opportunity to present evidence of his chosen defense. However, in the present case, defendant was not deprived of an opportunity to present evidence of his insanity; he simply had no such evidence to present.

Accordingly, the judgment is affirmed.

Judge NEY and Judge ROY concur.


author: Judge TAUBMAN.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brett Dewitt BROWN, Defendant-Appellant.
    No. 00CA0821.
    Colorado Court of Appeals, Div. IV.
    May 9, 2002.
    As Modified on Denial of Rehearing Oct. 31, 2002.
    Certiorari Denied May 19, 2003.

      Ken Salazar, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Brett Dewitt Brown, appeals the judgment of conviction entered on a jury verdict finding him guilty of two counts of sexual assault on a child-pattern (counts one and two) and one count each of attempted aggravated incest, attempted sexual assault on a child-position of trust, attempted incest, and attempted first degree sexual assault. He also appeals the sentence imposed. We affirm in part, reverse in part, and remand for further proceedings.

The charges involved three victims, two of whom were defendant's nieces. The two pattern counts alleged that defendant sexually abused victim K.B. twice between September 6, 1995 and December 31, 1998, during which time she was under the age of fifteen. The remaining counts involved R.B., defendant's other niece, and a teenage friend of RB.

The evidence at trial established that defendant had sexually assaulted the victims on six different occasions while they slept at the house where he lived with one niece's father.

Counts one and two were based on two sexual assaults against K.B. For each count, one sexual assault was asserted to be the predicate act, while the other was alleged to be an incident of sexual contact involving a child, which was necessary to establish a conviction of sexual assault on a child-pattern.

I. Sexual Assault on a Child-Jury Instructions

Defendant contends that his convie-tions for counts one and two should be vacated because the jury verdict form did not require that the jury make a unanimous finding that defendant committed the predicate offense of sexual assault on a child separate and apart from the pattern determination. We conclude the verdict form was incorrect, but the error does not rise to the level of plain error.

Notwithstanding defendant's contention that we should review this issue for structural error or constitutional plain error, we note that defendant did not object either to the jury instructions defining the offense of child sexual assault or to the jury verdiet forms. See Griego v. People, 19 P.3d 1, 8 (Colo.2001)(holding that a jury instruction that is erroneous, because it either omits or misdescribes an element of the offense, is not subject to structural error analysis, but instead constitutes trial error subject only to constitutional harmless or plain error review). Thus, we review his claims of instrue-tional error for plain error only. Under this standard, defendant must demonstrate not only that the error, if any, affected a substantial right, but also that there is a reasonable possibility that such error contributed to his conviction. See People v. Hansen, 920 P.2d 831 (Colo.App.1995).

Section 18-8-405(1), C.R.S.2001, defines sexual assault on a child. It provides as follows: "Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child if the victim is less than fifteen years of age and the actor is at least four years older than the victim." The jury was instructed accordingly.

Section 18-8-405(2), C.R.S.2001, designates the crime as a class 4 felony, but specifies that it becomes a class 3 felony if:

(d) The actor commits the offense as a part of a pattern of sexual abuse.... No specific date or time must be alleged for the pattern of sexual abuse; except that the acts constituting the pattern of sexual abuse must have been committed within ten years prior. to the offense charged in the information or indictment. The offense charged in the information or indietment shall constitute one of the incidents of sexual contact involving a child necessary to form a pattern of sexual abuse as defined in section 18-8-401(2.5).

Section 18-8-401(2.5), C.R.S8.2001, in turn, defines a "pattern of sexual abuse" as "the commission of two or more incidents of sexual contact involving a child when such offenses are committed by an actor upon the same victim."

Under § 18-3-405(2)(d), a "pattern of sexual abuse" is a sentence enhancement that, like the substantive predicate offense, must be proven beyond a reasonable doubt. See People v. Longoria, 862 P.2d 266 (Colo.1993); People v. Luman, 994 P.2d 432, 438 (Colo.App.1999).

If a defendant is convicted of sexual assault on a child-pattern, pursuant to § 18-3-405(2)(d), the court is required to sentence the defendant in accordance with the mandatory sentencing provision for violent erimes under § 16-11-3809, C.R.S.2001. Section 18-3-405(3), C.R.8.2001.

The violent crimes sentencing provision provides that: "A person convicted of two or more separate crimes of violence arising out of the same incident shall be sentenced for such crimes so that sentences are served consecutively rather than concurrently." Section 16-11-809(1)(a),

Here, although the jury was not provided with a separate pattern offense instruction, the identical jury verdict form was used for counts one and two, which stated:

IL. * We, the jury, find the defendant, BRETT DEWITT BROWN, NOT GUILTY of SEXUAL ASSAULT ON A CHILD-PATTUERN. -
II. * We, the jury, find the defendant, BRETT DEWITT BROWN, GUILTY of SEXUAL ASSAULT ON A CHILD-PATTERN.
* The foreperson may sign only one of the above (I or II). If the verdiet is NOT GUILTY, then I. Above should be signed. If the verdiet is GUILTY, then II. Above should be signed.
* If you find the defendant guilty of SEXUAL ASSAULT ON A CHILD-PATTERN, you must also complete this section by placing, in ink, a "X" in the appropriate box indicating your decision. ONLY ONE SQUARE may be filled in, with the remainder to remain unmarked.
* * [ ] We, the jury, unanimously find, beyond a reasonable doubt that the defendant committed two or more incidents of sexual contact with the victim described by the evidence between September 6, 1995 and December 31, 1998. The jurors must unanimously agreé that the same two or more acts have been proven beyond a reasonable doubt. ,
* * [ ] We, the jury, unanimously find, beyond a reasonable doubt that the defendant committed all the acts of sexual contact described by the evidence between September 6, 1995 and December 81, 1998.

The jury was informed-through the evidence and closing arguments-of the two incidents upon which the prosecution relied for the predicate acts of sexual assault on a child. The prosecution referred to these incidents as the "first touching incident," de-seribing the predicate act for count one, and the "booby incident," describing the predicate act for count two. The prosecution presented no evidence of any other incidents of sexual assault on a child related to K.B.

The jury found defendant guilty of both counts of sexual assault on a child-pattern and found that defendant had committed two or more incidents of sexual contact with the victim.

Defendant contends that the jury verdict form language is confusing and ambiguous because the jury was instructed to complete the verdict form for "SEXUAL ASSAULT ON A CHILD-PATTERN," rather than for sexual assault on a child. We agree that the jury verdict form should not have included the word "pattern," because pattern is a sentence enhancement, not a separate offense. See People v. Bowring, 902 P.2d 911, 919 (Colo.App.1995). Accordingly, the jury verdict forms should have required the jurors to determine whether defendant was guilty of sexual assault on a child, for counts one and two, with interrogatories then used to determine whether the pattern sexual abuse allegations had been established. See People v. Hoefer, 961 P.2d 563 (Colo.App.1998); cf. People v. Garcia, 28 P.3d 340 (Colo.2001)(jury instructions must state that jury must first determine whether defendant is guilty of second degree murder; then it may consider sentence mitigator of provocation).

However, we conclude that this mistake was not plain error because there is no reasonable possibility that this error contributed to defendant's convictions. Based on the instructions, the interrogatory, and the testimony describing only two incidents, the jury could not have convicted defendant without unanimously finding that he had committed the two alleged acts of sexual abuse. See People v. Hansen, supra, 920 P.2d at 837 {noting that appellate courts presume that the jury followed the instructions). Accordingly, the error in the verdict form does not undermine our confidence in the jury's verdict. See People v. Melillo, 976 P.2d 353 (Colo.App.1998)(§ 18-8-405(1) defines the offense, and § 18-3-405(2) merely describes cireumstances that, if present, elevate the crime to a class 3 felony), rev'd on other grounds, 25 P.3d 769 (Colo.2001); see also People v. Honeysette, 53 P.3d 714, 2002 WL 5518 (Colo.App. No. 00CA0331, Jan. 3, 2002)(upholding conviction for sexual assault on a child as part of a pattern of abuse and concluding that jury instructions, which, for all practical purposes, were identical to those given here, were sufficient to ensure unanimous finding that defendant committed a predicate act and at least one other act of abuse); People v. Hoefer, supra, 961 P.2d at 567; People v. Hansen, supra.

III. Proof of Pattern of Sexual Abuse Charges

Defendant contends that the prosecution failed to prove all the requisite elements of the two pattern offenses. We agree in part.

The interpretation of a statute presents a question of law subject to de novo review. Hendricks v. People, 10 P.3d 1231, 1235 (Colo.2000).

To convict a defendant of sexual assault-pattern, the prosecution must prove that an incident of sexual assault on a child was "committed within ten years prior to the offense charged in the information or indictment." Sections 18-8-401(2.5), 18-3-405(2)(d).

A. Predicate Offenses

Defendant contends that the jury did not enter unanimous verdicts on the predicate offenses underlying the pattern convictions. Because we have previously concluded that the jury unanimously convicted defendant of two acts of sexual assault on a child, we reject this contention.

B. Count One-Pattern Offense

Next, defendant contends that, with respect to count one, the prosecution failed to prove that he committed an incident of sexual assault that preceded the charged offense, or predicate act. We agree.

Here, as stated above, the prosecution alleged only two incidents of sexual assault on a child: the "first touching incident" (count one) and the "second booby incident" (count two). The prosecution alleged no other incidents of sexual assault on a child that preceded the "first touching incident." Because the "booby incident" occurred after the "first touching incident," the "booby incident" may not serve as a predicate offense with respect to count one as a matter of law. See People v. Gholston, 26 P.3d 1, 15 (Colo.App.2000) (noting that although there was considerable evidence of later sexual acts, there was no evidence in the record of another act of sexual abuse within ten years prior to the predicate act). Thus, the "booby incident" may serve as a predicate offense, with the "first touching incident" as a prior offense, but not vice versa.

Therefore, because of the absence of a prior incident to support count one, the trial court erred as a matter of law in entering a judgment of conviction for sexual assault on a child-pattern. However, because we have concluded that the jury unanimously found that defendant committed two acts of sexual assault on a child, the trial court must enter a judgment of conviction for sexual assault on a child for count one. Cf. People v. Glover, 893 P.2d 1311, 1315 (Colo.1995)(when a conviction must be vacated as duplicative, the trial court should select the "combination of offenses that producel[s] the most convictions and the longest sentences in order to maximize the effect of the juries verdicts"). Accordingly, defendant stands convicted of a class four felony, sexual assault on a child (count one) and a class three felony, sexual assault on a child-pattern (count two).

C. Count Two

To the extent that defendant argues that count one cannot serve as an incident of sexual assault to establish the pattern in count two, because it did not precede the dates of abuse alleged in the information, we reject this argument. Recently, a division of this court expressly held that both the predicate act and the earlier pattern act may occur within the period alleged in the pattern of sexual assault count of the information. People v. Honeysette, supra.

III. Venue

Defendant next contends that the evidence was insufficient to convict him of attempted aggravated incest and attempted sexual assault on a child-position of trust because the prosecution failed to prove that the incidents occurred in Arapahoe County. We disagree.

Here, the felony complaint and information for counts three and four alleged that the incidents occurred in Arapahoe County. However, at trial, which was held in Arapahoe County, testimony by two witnesses, including R.B., indicated that the offenses occurred at R.B.'s father's house in the City and County of Denver. No evidence was introduced to the contrary.

Defendant contends that the prosecution had to prove beyond a reasonable doubt that the offenses occurred in Arapahoe County based on the allegations in the felony complaint and information. We disagree.

Section 18-1-202(11), C.R.S.2001, provides in pertinent part:

Proof of the county in which the offense occurred or which county is the proper place for trial pursuant to this section shall mot constitute an element of any offense and need not be proven by the prosecution at trial unless required by the statute de- . fining the offense. Amy challenge to the place of trial pursuant to this section shall be made by motion in writing no later than twenty days after arraignment, except for good cause shown. _... Failure to challenge the place of trial as provided in this subsection (11) shall constitute a waiver of any objection to the place of trial.

(Emphasis added.)

Here, because the applicable statutes do not require that the prosecution prove venue as an element of the offense, the prosecution had no burden to prove that the incidents took place in Arapahoe County.

Defendant argues § 18-1-202(11) is unconstitutional because it removes venue from the elements the prosecution must prove and removes the requirement that a defendant's waiver of venue must be knowing, voluntary, intelligent, and affirmative. However, these issues were raised for the first time on appeal; therefore, we will not address them. See People v. Shepherd, 43 P.3d 693 (Colo.App. 2001)(an appellate court will not consider constitutional challenges to statutes raised for the first time on appeal).

In the alternative, defendant contends that the trial court had no jurisdiction because, although the information alleged that the crimes occurred in Arapahoe County, the undisputed evidence showed they occurred in Denver. Again, we disagree.

A defendant may be prosecuted in Colorado for crimes committed wholly or partially within the territorial boundaries of the state. Thus, criminal jurisdiction over felonies committed in Colorado generally extends to all district courts in the state. See People v. Burgess, 946 P.2d 565 (Colo.App. 1997). Therefore, we conclude that regardless of where in Colorado the information alleged the crimes had occurred, the trial court had jurisdiction.

Relying on People v. Williams, 984 P.2d 56, 60 (Colo.1999), defendant further contends that the information was substantially defective because it erroneously alleged that the offenses were committed within the jurisdiction of the Arapahoe County district court or were triable therein. We disagree and conclude that People v. Williams is distinguishable for two reasons.

First, in Williams, the supreme court concluded that an information that fails to charge an essential element of an offense is substantively defective. Here, because the county in which the crime occurred is not an essential element, of a crime and need not be proved beyond a reasonable doubt, the erroneous allegation of venue did not constitute reversible error. Indeed, the erroncous allegation of venue here was harmless, because defendant was aware of the mistake early on and was not prejudiced by the error. Further, pursuant to § 18-1-202(11), defendant could have moved for change of venué within twenty days after his arraignment, but did not do so.

Second, the Williams court concluded that an information is sufficient if it can be understood that "the offense was committed within the jurisdiction of the court or is triable therein." People v. Williams, supra, 984 P.2d at 60. The rationale for this requirement is that an information serves two vital interests of a constitutional dimension: (1) it provides the defendant with notice of the offense charged, as well as the factual circumstances surrounding the offense so that the defendant can adequately prepare a defense; and (2) it protects the defendant from further prosecution for the same offense. People v. Williams, supra. Because we have concluded that the trial court had jurisdiction, we further conclude that the information was sufficient, even though it contained a factual error regarding venue. It gave defendant notice of factual circumstances surrounding the charges and alleged that the crimes occurred within the State of Colorado.

Thus, we conclude that the evidence was sufficient to convict defendant of these counts.

IV. Sentencing

We also reject defendant's contention that an enhanced twenty-year crime of violence sentence on the pattern conviction in count two violates defendant's due process and equal protection guarantees. Defendant argues that since the elements of the pattern sentence enhancer do not overlap with the elements of a crime of violence (because they do not include use of a weapon, death, or serious bodily injury as an element), the People were required to plead and prove a separate crime of violence count. We disagree.

In both John Edward Terry v. People, 977 P.2d 145 (Colo. 1999), and People v. Alonzo Terry, 791 P.2d 374 (Colo. 1990), the supreme court held that the General Assembly has mandated crime of violence sentencing for enumerated per se crimes of violence. Pursuant to these decisions, a prosecutor is not required to plead and prove a separate crime of violence count pursuant to § 16-11-809(4) and (5), C.R.S. 2002, for per se crimes of violence. Nevertheless, defendant argues that while other per se crimes of violence have overlapping elements with § 16-11-1109 that eliminate the need for pleading and proving a separate crime of violence count, sexual assault on a child-pattern, does not.

While it is true that the elements that must be found to establish this offense do not overlap with the elements contained in the crime of violence statute, the Terry decisions broadly held that all forms of sexual assault on a child enumerated in § 18-8-405(2)(a)-(d), C.R.S. 2002, including sexual assault on a child-pattern-were per se crimes of violence. This is so even if the per se crimes of violence do not otherwise contain any of the basic elements for a crime of violence. See People v. Alonzo Terry, supra, 791 P.2d at 378. We further conclude that no different result is warranted in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), on which defendant relies.

Accordingly, the prosecution was not required to charge and prove a separate crime of violence count, and defendant's due process and equal protection rights were not violated. j

On remand, the trial court shall enter a judgment of conviction on count one for sexual assault on a child (class four felony) and sentence defendant accordingly. The trial court may also exercise its discretion to determine whether the sentences for counts one and two should be consecutive or concurrent. See §§ 18-1-105(1)(@)(V)(A), 18-1-408(8); People v. Clifton, 69 P.3d 81 (Colo.App.2001).

The judgment and sentence are reversed as to count one, and the case is remanded for resentencing on that count and correction of the mittimus. In all other respects, the judgment and sentence are affirmed.

Judge MARQUEZ and Judge VOGT concur.


author: Judge DAILEY. Judge ROY

text:
    Richard ARCHER, Plaintiff-Appellee and Cross-Appellant, v. FARMER BROS. CO., a California corporation; Al Henshaw, individually and as an employee of Farmer Bros. Co.; and Dennie Rawson, individually and as an employee of Farmer Bros. Co., Defendants-Appellants and Cross-Appellees.
    No. 00CA1856.
    Colorado Court of Appeals, Div III.
    May 9, 2002.
    Rehearing Denied Aug. 1, 2002.

    Certiorari Granted May 19, 2003.

      Johnson & Ayd, P.C., Patricia M. Ayd, Denver, Colorado; David Littman, P.C., David Littman, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant.
    Stromberg Cleveland Crawford & Schmidt, P.C., Paul D. Godec, Colleen M. Rea, Peter C. Middleton, Denver, Colorado; DiManna & Jackson, Gary M. Jackson, Neeti Pawar, Denver, Colorado, for Defendants-Appellants and Cross-Appellees.

       Roy, J., would Grant.

   Opinion by

Judge DAILEY.

Defendants, Farmer Bros. Co., Al Hen-shaw, and Dennie Rawson, appeal from a judgment entered on jury verdicts awarding damages to plaintiff, Richard Archer, for intentional infliction of severe emotional distress (outrageous conduct). Archer cross-appeals an order denying him costs and awarding costs to Henshaw and Rawson. We affirm.

Farmer investigated Archer, whom it had employed for twenty-two years, for alleged misconduct. Later, on the order of Farmer's vice president of sales (VP), Archer's supervisors, Henshaw and Rawson, delivered notice of termination and a final paycheck to Archer while he lay in bed at his mother-in-law's home recuperating from a heart condition.

Archer sued defendants for violations of the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Colorado Anti-Discrimination Act (CADA), and for outrageous conduct.

The trial court dismissed the ADA and ADEA claims as to Henshaw and Rawson and the CADA claims as to all defendants.

Following the presentation of evidence, the trial court directed a verdict against Archer on his ADA claim against Farmer. Thereafter, the jury returned a verdict for Farmer on Archer's ADEA claim and for Archer on his outrageous conduct claims against all defendants. The jury awarded Archer $30,500.00 in noneconomic damages and $30,500.00 in exemplary damages against Farmer, and $2,500.00 and $2,499.00 in non-economic damages against Henshaw and Rawson, respectively.

The trial court awarded costs only to Hen-shaw and Rawson.

L.

Defendants contend that the trial court erred in not dismissing Archer's outrageous conduct claim as falling under the Colorado Workers' Compensation Act (Act). We disagree.

The Act is an employee's exclusive remedy against an employer or coworkers for personal injuries where, as pertinent here, "at the time of the injury, the employee is performing service arising out of and in the course of the employee's employment." Section 8-41-301(1)(b), C.R.S.2001 (emphasis supplied); see § 8-41-102, C.R.S.2001 (abolishing causes of action against employer).

"Arising out of" and "in the course of" employment are two separate requirements. Triad Painting Co. v. Blair, 812 P.2d 638, 641 (Colo.1991).

Here, while Henshaw and Rawson's delivery of the paycheck and notice of termination may have arisen out of Archer's employment, see Horodyskyj v. Karanian, 32 P.3d 470, 475-76 (Colo.2001), Archer's injury did not occur "in the course of" his employment.

As used in the Act, the phrase "in the course of" refers to the time, place, and cireumstances under which a work-related injury occurs. Horodyskyj v. Karanian, supra, 32 P.3d at 475. "The 'course of employment' requirement is satisfied when it is shown that the injury occurred within the time and place limits of the employment relation and during an activity that had some connection with the employee's job-related functions." Popovich v. Irlando, 811 P.2d 379, 383 (Colo.1991)(the exclusivity provision must be strictly limited to injuries sustained where both the tortfeasor and the victim are acting in the course of employment). See 1 Larson's Workers' Compensation Law § 12.01, at 12-1 (2000).

Here, Archer was on indefinite sick leave as a result of his heart condition when he was fired. Henshaw had previously reviewed and approved his sick leave, and Archer would not have been allowed to return to work without producing a doctor's release, which he did not have. Defendants did not give Archer advance notice of their visit, and, upon entering Archer's mother-in-law's home, Henshaw and Rawson went directly into the spare bedroom where Archer was lying partially undressed in bed and, without any further notice, delivered the news about his termination.

Although Henshaw and Rawson were engaged in work-related activity, Archer was not. Inasmuch as he was away from work on approved sick leave, the incident did not occur within the time or space parameters of his employment. Further, when terminated, Archer was not making sales, supervising staff, delivering goods, or attending to any other work-related duty; rather, he was resting in bed, an activity unrelated to his employment. See, eg., Barber v. Whirlpool Corp., 34 F.3d 1268, 1275 (4th Cir.1994)(plaintiff's outrageous conduct claim not barred by South Carolina workers' compensation act because employee was on vacation when employer met with him about employee's alleged misconduct); Kirk v. Smith, 674 F.Supp. 803, 810 (D.Colo.1987)(employee's outrageous conduct claim not barred by Act because employee's duties did not include the activities attending her injury).

We, like the trial court, reject defendants' assertion that the presence of a company van outside the mother-in-law's home in and of itself satisfied the "in the course of" employment requirement. Were we to conclude otherwise, every injury occurring in an employee's home when the employee had a company van parked outside would have to be compensable under the Act. Eschewing such an interpretation, we conclude that Archer's work environment did not extend to his mother-in-law's home simply because a company van was parked outside.

Under the cireumstances presented here, we conclude that the incident at Archer's mother-in-law's home did not occur in the course of his employment. Consequently, his claim did not fall within the coverage of the Act and he was not barred from pursuing it in district court.

IL.

Defendants next contend that the trial court erred in denying their motions for directed verdict and judgment notwithstanding the verdiet (JNOV) as to Archer's outrageous conduct claim. We disagree.

The elements of outrageous conduct are: (1) the defendant(s) engaged in extreme and outrageous conduct, (2) recklessly or with the intent of causing the plaintiff severe emotional distress, and (8) causing. the plaintiff severe emotional distress. See McCarty v. Kaiser-Hill Co., 15 P.3d 1122, 1126 (Colo.App.2000). ‘

As to the first element, the level of outrageousness required to create liability is extremely high. Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities are insufficient; only conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community, will suffice. Bob Blake Builders, Inc. v. Gramling, 18 P.3d 859, 866 (Colo.App.2001). See also Churchey v. Adolph Coors Co., 759 P.2d 1336, 1350 (Colo.1988)(facts must so arouse resentment in average members of the community. against the defendant as to lead them to exclaim, "Outrageous!").

As a threshold matter, the trial court must determine whether the proof of outrageousness is sufficient as a matter of law. The claim should be submitted to the jury only if reasonable persons could differ on whether the defendant's conduct was sufficiently outrageous. Coors Brewing Co. v. Floyd, 978 P.2d 663, 665 (Colo.1999).

The same standard governs a trial court's rulings on motions for directed verdict and JNOV. Directed verdicts are appropriate only where the evidence compels the conclusion that reasonable persons could not disagree and that no evidence, or legitimate inference arising therefrom, has been presented on which the jury's verdict against the moving party could be sustained. Likewise, JNOV can be entered only if the evidence, viewed in the light most favorable to the nonmoving party, is such that no reasonable person could reach the same conclusion as that reached by the jury. Jones v. Stevinson's Golden Ford, 36 P.3d 129, 132 (Colo.App.2001).

Here, defendants challenge the sufficiency of the evidence only with respect to the outrageous conduct and mental culpability elements of the tort. The issue, then, is whether, viewing the evidence in the light most favorable to Archer, reasonable persons could disagree about whether the requisite level of outrageousness had been shown and whether defendants engaged in such conduct recklessly or with the intent to cause Archer severe emotional distress.

Although conflicting evidence was presented, the evidence, viewed in the light most favorable to Archer, revealed the following.

Farmer's VP, Henshaw, and Rawson all believed that Archer had suffered a heart attack just five days before the termination and were aware that Archer was out on indefinite sick leave. Although Archer had not missed a day of work in eight years, Henshaw and Rawson both knew he had been absent from work for four days before his termination. |

Farmer's VP ordered Archer's termination from employment. When Henshaw initially demurred, Farmer's VP told: him, "I don't give a shit if [Archer] is on his deathbed, if I tell you to fire him, that's what you will do, or I'll get somebody who will." Henshaw thereafter carried out his instructions, without inquiring further about the status of Archer's health, evaluating the possible medical consequences of, delivering such news while Archer was ill, or discussing alternative means to deliver the news.

Instead, Henshaw and Rawson went in search of Archer, ending up at Archer's mother-in-law's home. In the twenty years Henshaw and Rawson had known Archer, they had never visited him or been invited to his home. Upon arrival at his mother-in-law's home, they entered uninvited.

Neither Henshaw nor Rawson announced the purpose of their visit or asked about Archer's health. Upon entering the spare bedroom, they found Archer lying in bed, not fully clothed. Without asking Archer whether he was fit to discuss work matters or when he intended to return to work, they peremptorily announced that they had his termination papers, which they needed him to initial. |

Archer had a reputation as an accomplished branch manager, was fast approaching retirement, and, even though he was being investigated for alleged misconduct, had no reason to anticipate that he would be fired by Farmer. Consequently, news of his firing came as a shock to him.

Noticeably upset by the incident, Archer demanded that Henshaw and Rawson leave the premises. According to Archer's doctor, Archer's health was in such a delicate condition that the termination incident could have triggered a fatal heart attack. Archer attempted to commit suicide that evening.

From this evidence, we conclude that a reasonable person could find that defendants' conduct-barging into a relative's home and, without any prior notice or other consideration, abruptly firing a twenty-two-year employee while he lay in bed, partially undressed, recuperating from what five days earlier had appeared to be a heart attack, and was, in any event, a serious heart condition-so far exceeded the bounds of decency as to be atrocious and utterly intolerable in a civilized community.

Similarly, we conclude that the statement of Farmer's VP and the actions of Henshaw and Rawson, viewed in light of the information they had regarding Archer's condition, could support a determination by a reasonable person that defendants acted recklessly or with the intent of causing Archer severe emotional distress. -

Defendants' reliance on various outrageous conduct cases involving physical assaults, threats of physical foree, or overly coercive tactics is misplaced. None of those cases articulated a "physical force, threat, or coer-clon" requirement for recovery; they just happened to involve the application of outrageous conduct principles to those particular circumstances. In other cases, outrageous conduct has been found without such physical or coercive action. See Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753 (1970)(harass-ment via telephone and mail and threats to garnish wages spfﬁcient to support outrageous conduct claim); Meiter v. Cavanaugh, 40 Colo.App. 454, 457, 580 P.2d 399, 401 (1978)(outrageoué conduct shown when attorney belligerently refused to vacate premises for subsequent tenant without regard for her poor medical condition and implied he had special influence in judicial proceedings); Agis v. Howard Johnson Co., 371 Mass. 140, 141, 355 N.E.2d 315, 317 (1976)(firing waitresses in alphabetical order until one admitted theft sufficient to state a claim of outrageous conduct).

Consequently, the trial court properly denied defendants' motions for both directed verdict and JNOV.

IIL

Farmer contends that the jury's award of exemplary damages is unsupported by the evidence. We disagree.

Pursuant to § 183-21-102(1)(a), C.R.8.2001, a person may recover reasonable exemplary damages in addition to, but not exceeding, the amount of actual damages awarded if the civil injury complained of is attended by circumstances of, among other things, willful and wanton conduct.

"Willful and wanton conduct" is defined in § 18-21-102(1)(b), C.R.S.2001, as "conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff,"

This definition includes conduct that cere-ates. a substantial risk of harm to another and is purposefully performed with an awareness .of the risk in disregard of the consequences. Messler v. Phillips, 867 P.2d 128, 134 (Colo.App.1993). See also Boulder Meadows v. Saville, 2 P.3d 131, 139 (Colo.App.2000) (exemplary damages awardable for conduct indicative of "a wanton and reckless disregard of the mJured party's rights and feelings").

While an award of exemplary damages rests in the discretion of the trier of fact, the sufficiency of evidence to support such an award is a question of law for the court to decide. Messler v. Phillips, supra, 867 P.2d at 134.

Here, viewed in the light most favorable to Archer, the evidence showed that Henshaw and Rawson acted pursuant to the directions of Farmer's VP, who, despite being made aware of the seriousness of Archer's medical condition, ordered his immediate firing. This evidence, together with the VP's reported statement that he did not care if Archer was "on his deathbed," sufficed to support a reasonable conclusion that Farmer's agents acted purposefully with wanton and reckless disregard for Archer's feelings. Thus, the evidence was adequate to support an award of exemplary damages under § 13-21-102(1)(a).

IV.

On cross-appeal, Archer contends that the trial court erred in denying him costs and in awarding costs to Henshaw and Rawson. We disagree.

Pursuant to C.R.C.P. 54(d) and § 183-16-104, C.R.$.2001, the trial court may award costs to the prevailing party in an action.

When, in a case involving multiple claims, each party prevails in part, the trial court has broad discretion to determine which, if any, party was the prevailing party. Section 13-16-108, C.R.S.2001; Mackall v. Jalisco International, Inc., 28 P.3d 975, 977 (Colo.App.2001); Husband v. Colorado Mountain Cellars, Inc., 867 P.2d 57, 61 (Colo.App.1993).

Here, the trial court determined that no costs should be awarded as between Archer and Farmer, but that costs should be awarded to Henshaw and Rawson.

Given that Farmer prevailed on Archer's CADA, ADA, and ADEA claims, while Archer prevailed on his outrageous conduct and exemplary damage claims, we perceive no abuse of discretion in the trial court's conclusion that neither Archer nor Farmer was "the" prevailing party. See Dewey v. Hardy, 917 P.2d 305, 311 (Colo.App.1995)(appellate court will not overturn award of costs unless trial court decision was manifestly arbitrary, unreasonable, or unfair).

Similarly, we perceive no abuse of the trial court's discretion in awarding costs to Hen-shaw and Rawson where, in addition to prevailing outright on Archer's CADA, ADA, and ADEA claims, they were, with respect to Archer's outrageous conduct claim, held liable for relatively nominal amounts and not at all for exemplary damages.

Accordingly, the judgment is affirmed.

Judge NEY concurs.

Judge ROY dissents.

Judge ROY

dissenting.

I respectfully dissent.

I by no means condone the conduct or motive of the employer or its agents in this case. Nevertheless, all niceties and persuasive authorities to the contrary notwithstanding, in my view, a meeting called by an employer to discharge an employee inherently arises out of and is in the course of that employee's employment, regardless of the place of the meeting or the leave status of the employee at the time. Nothing is more inherent or inevitable in an employment relationship than its commencement and termination. Therefore, I would hold that employer's liability is limited to providing workers' compensation benefits under the statute.


text:
    CLUB TELLURIDE OWNERS ASSOCIATION, INC., a Colorado non-profit corporation, Plaintiff-Appellee, v. Dennis MITCHELL, Defendant-Appellant.
    No. 01CA0594.
    Colorado Court of Appeals, Div. II.
    July 5, 2002.
    Rehearing Denied Oct. 3, 2002.
    Certiorari Denied May 19, 2003.
    Faegre & Benson, LLP, Colin C. Deihl, Denver, Colorado, for Plaintiff-Appellee.
    Robert Korn, Telluride, Colorado, for Defendant-Appellant.
   Opinion by

Judge JONES.

Defendant, Dennis Mitchell, appeals the summary judgment entered in favor of plaintiff, Club Telluride Owners Association, Inc. (Association), for collection of past due assessments and attorney fees pursuant to the Colorado Common Interest Ownership Act, § 38-38.8-101, et seq., C.R.8.2001 (CCIOA). We reverse and remand for further proceedings.

As an initial matter, we note that Mitchell has not referenced the record as he is required to do, and he has urged on us material that is not in the record, which we may not consider. See C.A.R. 28.

However, the following facts are undisputed. In 1996, Mitchell purchased an undivided one-tenth interest in a timeshare unit in Phase I of the Franz Klammer Lodge, which was developed and marketed by Club Telluride Company-I, LLC (CTC-I). At closing, CTC-I paid Mitchell's first year homeowner's assessments, as part of its sales agreement with him.

Thereafter, Mitchell became obligated to pay Association dues and fees pursuant to the Condominium Declaration for the Association. The declaration provides, inter alia, that Association dues and fees "are allocated to Club Owners based on the undivided ownership interest of a Club Owner in relation to the undivided ownership interests held by all Club Owners," which is consistent with the statutory obligations set forth in § 38-88.3-315, C.R.S.2001.

As an additional sales incentive to all Phase I purchasers, CTC-I offered a "resale program." This incentive stated that because CTC-I was certain that the purchasers would be satisfied with their investments, it would pay all Phase I purchasers homeowners association fees until CTC-I resold their units, should they relist within one year of closing. CTC-I further agreed that, under this arrangement, it would resell units in a rotation with its inventory of unsold units, selling one resale unit to every four units it sold from the developer's unsold inventory.

Within a year of closing, Mitchell wrote CTC-I to request that it enter his timeshare in the resale program. CTC-I confirmed the receipt of Mitchell's letter and stated that, "Lulp to the time of resale, all homeowners dues will be paid by [CTC-I]." After receiving CTC-I's letter, Mitchell ceased making homeowners dues payments.. However, CTC-I did not pay Mitchell's dues and the Association commenced efforts to collect the dues from Mitchell as owner, but did not attempt to collect from CTC-I.

Meanwhile, CTC-I sold its interest in the development to AMMV Investments, L.L.C, Mitchell's timeshare remained unsold. As with CTC-I, AMMV did not pay Mitchell's dues, although it was aware of the terms of the resale program and entry of Mitchell's timeshare into that program. Nor did the Association take any action to collect Mitchell's dues from AMMV.

The Association filed this action against Mitchell to collect unpaid dues and for en-foreement and foreclosure of its assessment lien. Mitchell counterclaimed against the Association and filed a third-party complaint against CTC-I. The trial court granted the Association's motion for a separate trial on its complaint, and later, upon Mitchell's motion, allowed joinder of AMMV as an additional third-party defendant.

The trial court granted the Association's motion for summary judgment, determined that Mitchell owed dues of $13,043, ordered foreclosure of the Association's lien, and without holding a reasonableness hearing, granted the Association's motion for attorney fees.

I.

Mitchell first contends that the trial court erred in granting summary judgment because disputed issues of fact existed. We agree.

Grants of summary judgment are reviewed de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Bd., 901 P.2d 1251 (Colo.1995). Summary judgment is appropriate when the pleadings, affidavits, depositions, and admissions on file show that there are no genuine issues as to any material facts and that the moving party is entitled to judgment as a matter of law. We take as true allegations in pleadings that the moving party fails to controvert by admissible evidence. Abrakamsen v. Mountain States Tel. & Tel. Co., 177 Colo. 422, 494 P.2d 1287 (1972).

Mitchell argues that the trial court erred in granting summary judgment because CTC-I's or AMMV's agreement to pay his dues made them the primary obligors and the Association consented to this arrangement. Mitchell further asserts that, at all relevant times, the Association was under a degree of control by CTC-I or AMMV, such that the Association was merely an arm of the developer, thereby creating privity between the developer and the Association. We agree that disputed issues of material fact concerning the relationship among CTC-I, AMMV, and the Association preclude summary adjudication of this matter.

"Privity is that connection or relationship which exists between two or more contracting parties." First Nat'l Bank v. Gilbert Marshall & Co., 780 P.2d 73, 75 (Colo.App.1989). Mitchell asserts that "privity assumes great importance to the Declarant developer because the [Association] manages and operates the timeshare as a hotel and is responsible for carrying out the promises inherent in the Declarant's timeshare product."

An obligor may effectively delegate performance to another who is willing to perform the delegated duty, but the obligor remains liable as surety unless the obligee consents to the delegation. Headrick v. Rockwell Int'l Corp., 24 F.3d 1272 (10th Cir.1994)(citing Restatement (Second) of Contracts §§ 318, 329 (1981)). Thus, for the obligor to be released from liability, the obli-gee must agree to the delegation. See Brooks v. Hayes, 133 Wis.2d 228, 395 N.W.2d 167 (1986); 3 E.A. Farnsworth, Farnsworth on Contracts §§ 11.10 (2d ed.1998).

In a deposition, attached to Mitchell's response to the Association's motion for summary judgment, the person responsible for the sales and marketing of the Franz Klam-mer Lodge explained that here, as in all condominium developments, the developer took the initial role as the manager of the homeowners association. He stated that the developers, CTC-I and AMMV, were aware that "CTC-I is CTOA [the Association]."

Mitchell, as obligor, delegated to CTC-I his obligation to pay the dues owing to CTC-I's arm, the Association, and CTC-I consented to the delegation as evidenced by the correspondence between the two parties.

In our view, Mitchell has made a sufficient showing that, because the Association and the developer were, for all practical purposes, one and the same when CTC-I, and later AMMV, agreed to pay his association dues, the Association could not ignore the contract made by its closely allied developer, and its successor, and make no attempt to collect the unpaid dues from them.

Alternatively, the Association argues that even if a factual dispute exists concerning delegation to CTC-I, any action of the Association relieving Mitchell of his primary obligation to pay dues would be void as against public policy. The Association notes that the CCIOA provides dues that "shall be assessed against all units in accordance with the allocation set forth in the declaration." Section 88-88.3-815, C.R.8.2001. We are not persuaded.

The Association cites no case supporting its public policy argument. We read § 88-38.3-815 as prohibiting preferential assessments among units. The statute does not address agreements concerning how assessments will be paid. Moreover, the statutory scheme would not be frustrated by the Association's accepting CTC-I and AMMV as the primary obligors, while continuing to allocate dues and fees based on Mitchell's undivided ownership interest, and looking to him as surety, after having exhausted collection efforts against CTC-I and AMMV.

Therefore, we conclude that genuine issues of material fact exist as to whether CTC-I and its successor were at least primarily responsible to pay Mitchell's dues and fees. Thus, the trial court erred in granting summary judgment and also in awarding attorney fees to the Association. On remand, attorney fees collected from Mitchell should be returned to him.

IL

Because we reverse the summary judgment order, we need not consider Mitchell's additional contentions.

The judgment is reversed, and the case is remanded for further proceedings.

Judge PLANK and Judge WEBB concur.


author: Judge NEY.

text:
    Ashley NICHOLS, a minor, by and through her next friend and mother, Kathy Nichols, Petitioner-Appellee and Cross-Appellant, v. Jon DeSTEFANO, in his official capacity as Chairman of the Board of Education of Jefferson County Public School District R-1; Debra Oberbeck, in her official capacity as a member of the Board of Education of Jefferson County Public School District R-1; Karen Litz, in her official capacity as a member of the Board of Education of Jefferson County Public School District R-1; Vince Chowdhury, in his official capacity as a member of the Board of Education of Jefferson County Public School District R-1; Tori Merritts, in her official capacity as a member of the Board of Education of Jefferson County Public School District R-1; and Jefferson County Public School District R-1, Respondents-Appellants and Cross-Appellees.
    No. 01CA0783.
    Colorado Court of Appeals, Div. IV.
    Aug. 15, 2002.
    Certiorari Granted May 27, 2003.

      Richard M. Borchers, P.C., Richard M. Borchers, Westminster, Colorado, for Petitioner-Appellee and Cross-Appellant.
    Caplan & Ernest, LL.C., Thomas S. Crabb, W. Stuart Stuller, Derek H. Kiernan Johnson, Boulder, Colorado, for Respondents-Appellants and Cross-Appellees.
   Opinion by

Judge NEY.

Defendants, Jefferson County Public School District R-1 and the chairman and members of its board of education (eollectively, School District), appeal the judgment of the district court vacating the order of expulsion of a student, plaintiff, Ashley Nichols. Nichols cross-appeals the district court's dismissal of separate claims related to the expulsion procedure and expulsion hearing. We affirm the judgment and remand with instructions. |

Nichols was a tenth-grade student at Golden High School. She admitted her participation in a fight with another student and was initially suspended for this conduct. Subsequently, school administrators recommended that Nichols be expelled, and she requested a hearing on that recommendation.

Before that hearing, Nichols requested to contact and, ultimately, to subpoena two of her teachers to provide evidence of her character. Both of these requests were denied.

* At the hearing, Nichols again admitted the conduct. Despite this admission, the school offered numerous statements of anonymous students regarding the event.

The hearing officer recommended expulsion for the remainder of the school year. The superintendent concurred with this recommendation and expelled Nichols accordingly. Upon Nichols' request for review, the board of education affirmed the expulsion.

Nichols filed a petition in the district court for review of her expulsion pursuant to §§ 22-883-105(2)(c) and 22-33-108(8), C.R.S. 2001. The district court concluded that the School District's refusal to compel witnesses violated Nichols' due process rights, finding that "the record in this case supports a clear result of the Board making it as difficult as possible for Nichols to present evidence in her favor." The district court thus remanded the matter to the School District for rehearing. The district court dismissed Nichols's other claims.

T.

The School District contends that the district court had no authority to review Nichols's due process claims. We disagree.

A ruling by the district court that is without proper authority lacks jurisdiction and is void. See United States National Bank v. Bartges, 120 Colo. 317, 337, 210 P.2d 600, 610 (1949)("if a court having jurisdiction of the parties and the subject matter, renders a judgment in which it transcends the power conferred by law, in so doing it acts without jurisdiction, and its judgment is void"); see also V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224-25 (10th Cir.1979)(voidness may "arise if the court's action involves a plain usurpation of power").

The district court has the authority to review an action of a board of education for an abuse of discretion. Section 22-83-1088); C.R.C.P. 106(2)(4).

To determine whether the board of education abused its discretion, the district court must examine the entire procedure used in the student's expulsion, including the board's exercise of discretion to provide a certain level of due process to the student. Tepley v. Public Employees Retirement Ass'n, 955 P.2d 573, 578 (Colo.App.1997)("denial of due process by an agency in its exercise of quasi-judicial functions may serve as the basis for a determination ... that the agency abused its discretion"); Carpenter v. Civil Service Comm'n, 813 P.2d 773 (Colo.App.1990). Thus, the power to review due process claims is inherent in the district court's authority to review the board's determinations for an abuse of discretion.

Here, the district court's review of Nichols's due process claims was necessary and proper to determine whether the School District abused its discretion in expelling her. Therefore, we conclude that the district court did not exceed its authority and its order is not void on jurisdictional grounds.

IL.

The School District next contends that the district court erred in determining that the Nichols's due process rights were violated at her expulsion hearing. We disagree.

Our review of this constitutional determination is de novo. Keohane v. Stewart, 882 P.2d 1293 (Colo.1994); Evans v. Romer, 854 P.2d 1270 (Colo.1993).

Administrative hearings need not be overly strict or unduly rigid in matters of procedure. National Heritage, Inc. v. Pritza, 728 P.2d 787 (Colo.App.1986). Yet, the relaxed procedure is not a license to violate fundamental fairness. See deKoevend v. Board of Education, 688 P2d 219 (Colo.1984); Sclavenitis v. City of Cherry Hills Village Board of Adjustment & Appeals, 75l P.2d 661 (Colo.App.1988). To insure the fairness of these hearings, due process requires, at a minimum, notice and an opportunity to be heard in a meaningful manner. Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975)(due process must be provided to a student upon his or her removal from school).

In evaluating the inherent fairness of a hearing, we must consider the total effect of the entire procedure on the rights of the individual. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct 893, 47 L.Ed.2d 18 (1976)(evaluation of due process includes an assessment of the risk of an erroneous deprivation of a protected interest through the procedures used); Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed.2d 1307, 1321 (1960); Hillman v. Elliott, 436 F.Supp. 812 (W.D.Va.1977). Rather than a narrow focus on particular factors, the court must examine the totality of the procedures afforded and their effect on the fundamental fairness of the hearing. See Mathews v. Eldridge, supra; Widomski v. Chief of Police, 41 Md.App. 361, 397 A.2d 222 (1979).

Here, upon review of the totality of the cireumstances, we conclude that Nichols did not receive a fair hearing.

First, she was not able to obtain the testimony of two of her teachers. Before the hearing, her attorney had requested to speak with two teachers to gather information and, potentially, to request their attendance at the hearing. Her attorney considered these teachers to be represented by the School District's attorney. Therefore, to avoid violating Colorado Rule of Professional Conduct 4.2, Nichols's attorney concluded that contact with these teachers was prohibited without the permission of the School District's attorney. As the School District considered any potential evidence gathered from these teachers "irrelevant," this request was denied.

Nichols's request that the hearing officer compel the teachers' attendance to testify as to her good character also was denied.

Nichols asserts that this evidence was relevant to show that expulsion was not the proper sanction under these circumstances. In response, the School District asserts that the hearing officer lacked the explicit statutory authority to compel the attendance of witnesses.

We agree that the statute does not explicitly provide for compulsion of witnesses in school expulsion hearings. Section 22-83-105(2)(c), C.R.S.2001; see Nye v. Motor Vehicle Division, 902 P.2d 959 (Colo.App.1995) (authority to issue subpoenas is derived from statute). However, despite this lack of authority, the School District was in a position to permit Nichols's attorney to speak with these teachers or to request, at a minimum, that the teachers voluntarily attend the hearing. Even absent statutory authority to compel witnesses, the School District is not allowed to isolate potential witnesses from the student.

Regardless of its actions, the School District asserts that any additional evidence is immaterial because Nichols admitted to the fight. Upon review, this argument appears disingenuous as the School District' offered substantial evidence despite Nichols's admission. In any case, the argument misconstrues the purpose and seope of the hearing.

Under the relevant statutes and school regulations, expulsion for this conduct was not mandatory. Section 22-33-106, C.R.S. 2001 (indicating behavior for which expulsion is mandatory); Jefferson County Public Schools Conduct Code 55-57. Thus, the purpose of the hearing was to determine whether expulsion was the appropriate disciplinary action for Nichols's conduct. As a result, the School District had discretion to determine whether expulsion or a lesser sanction was appropriate. Therefore, evidence of Nichols's character and other behavior was relevant to determine whether expulsion was warranted for this student under these circumstances. While it may be an important factor, Nichols's admission to the conduct was only one consideration in determining what level of sanction was warranted here.

Further, we conclude that the hearing was unfair based on the disparity between the parties' abilities to present evidence. The School District did not share the same restrictions as the student. The hearing officer permitted it to present numerous anonymous statements of other students regarding the events surrounding the fight. Not only did these statements permit the School District to offer a more expansive view of the relevant facts than Nichols's could, but Nichols's had no opportunity to challenge these anonymous statements.

When viewed together, these procedural failures demonstrate a substantial restriction in Nichols's opportunity to be heard on the sanction to be imposed. Upon review of the totality of the cireumstances at this hearing, we conclude that Nichols's was unable to present effectively all relevant evidence and challenge the evidence offered against her.

IIL.

On cross-appeal, Nichols alleges other various improprieties in the expulsion hearing and in the procedure prior to the hearing. Insofar as the issues are not moot based upon our disposition of the case, we affirm the judgment of the district court in regard to such issues.

The district court's judgment is affirmed, and the case is remanded for a new hearing before the School District in accordance with the opinion.

Judge ROTHENBERG and Judge VOGT concur.


author: Judge WEBB.

text:
    Robert Olen DAVIS, Plaintiff-Appellant, v. Loretta Ditirro SCHWANKL, Defendant-Appellee.
    No. 01CA1837.
    Colorado Court of Appeals, Div. I.
    Oct. 10, 2002.
    Certiorari Granted May 27, 2003.

    Arrington & Associates, P.C., Barry K. Arrington, Golden, Colorado, for Plaintiff-Appellant.

      Holland & Pagliuea, P.C., Jeffrey S. Pagli-uca, Heather R. Hanneman, Denver, Colorado, for Defendant-Appellee.

       Justice BENDER does not participate.

   Opinion by

Judge WEBB.

Plaintiff, Robert Olen Davis, appeals the trial court's order granting attorney fees in favor of defendant, Loretta Ditirro Schwankl, pursuant to § 16-83-2083, C.R.S.2002. We reverse. |

On August 9, 1999, at 8:40 p.m., defendant telephoned the Wheat Ridge Police Department dispatcher, described having been awakened at about 1:85 a.m. that morning by sounds of a disturbance across the street, and reported some "physical abuse going on, some violence" involving plaintiff and his wife, whom defendant identified by name and address. Defendant also told the dispatcher that she had concerns about "sexual violence" or "sexual abuse" involving plaintiff and his teenage daughter, and she asked whether social services could contact plaintiff's family.

An officer promptly went to plaintiffs home, spoke with his wife, and reported that nothing was wrong. Three weeks later, a county social services department employee made an unannounced visit to plaintiff's home and spoke to plaintiff, his wife, and his daughter, but discovered nothing unusual. Social services closed the case as unfounded.

As relevant here, plaintiff sued defendant for slander based on her telephone call to the police. Following a three-day trial, the jury answered special interrogatories and returned a verdict in favor of defendant.

Defendant then moved for attorney fees pursuant to §§ 13-17-101 and 16-83-2083, C.R.S.2002, and for costs. Plaintiff disputed defendant's right to recover attorney fees, | but did not contest the amount of the fees claimed or the imposition of costs. Without taking further evidence, the trial court awarded defendant all of her attorney fees under § 16-38-2038 and her costs. This appeal followed.

L.

Plaintiff asserts § 16-8-208 requires proof that a crime is being committed, and, therefore, the trial court erred in awarding attorney fees to defendant. We agree.

Statutory interpretation is a question of law that we review de novo. Colo. State Bd. of Accountancy v. Paroske, 39 P.3d 1283 (Colo.App.2001).

Our fundamental responsibility when interpreting a statute is to determine the General Assembly's intent. We begin with the language of the statute, People v. Cooper, 27 P.3d 348 (Colo.2001), which is afforded its ordinary and common meaning. Bd. of County Comm'rs v. Vail Assocs., Inc., 19 P.3d 1263 (Colo.2001).

We construe statutes as a whole, giving effect to every word. Bd. of County Comm'rs v. Vail Assocs, Inc., supra. Strained or forced constructions are disfavored. Martin v. Montesuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo.1992).

Further, we presume that the General Assembly meant what it clearly said, Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo.1996), and did not use language idly. See Colorado Ground Water Commission v. Eagle Peak Farms, 919 P.2d 212 (Colo.1996). Thus, we must respect the words chosen by the General Assembly. See Zamarripa v. Q & T Food Stores, Inc., 929 P.2d 1332 (Colo.1997).

Only if statutory language is ambiguous, or if the statute appears to conflict with other provisions, may we look to extrinsic factors, such as prior law, the consequences of a given construction of a statute, and the end to be achieved by the statute. People v. Cooper, supra. Absent ambiguity, we do not consider legislative history. Grant v. People, 48 P.3d 543 (Colo.2002).

Section 16-83-2038 provides:

Any person who is not a peace officer ... who is made the defendant in any civil action as a result of having sought to prevent a crime being committed against any other person, and who has judgment entered in his favor shall be entitled to all his court costs and to reasonable attorney fees incurred in such action.

(Emphasis supplied.)

We perceive no ambiguity in this language: to recover attorney fees, the underlying lawsuit must have arisen from an effort to prevent a crime that was "being committed." In our view, the statute sets out two requirements: first, the phrase "having sought to prevent" demands proof of the actor's purpose; and, second, the phrase "a crime being committed" further requires that the preventive effort be undertaken in connection with a crime in progress. Thus, the phrase "being committed" limits the statute by giving a claim for legal fees only to persons who act under this clear and exigent cireumstance.

Defendant raises various arguments in favor of interpreting the statute more broadly. We are not persuaded. .

Defendant first contends the sole fo-eus should be on her good faith in seeking to prevent what she reasonably suspected was a crime. However, § 16-38-2083 does not protect actions taken on the basis of good faith suspicions.

In contrast, the immediately preceding statute expressly recognizes a good faith defense based on mere suspicion of a crime. See § 16-8-202(4), C.R.S.2002 ("Private citizens, acting in good faith, shall be immune from any civil liability for reporting to any police officer or law enforcement authority the commission or suspected commission of any crime ... .") (emphasis supplied). Both § 16-3-202(4) and § 16-8-202 were enacted in the 1977 legislative session.

Defendant further contends her proposed interpretation should be accepted as harmonizing § 16-38-2083 and § 16-3-202(4), because a person who enjoys the immunity created by § 16-3-202(4) would also be allowed to recover legal fees under § 16-83-2083. We do not agree.

"If a statute potentially conflicts with another statute, a court must attempt to harmonize them to effectuate their purposes." People v. Hampton, 876 P.2d 1236, 1240 (Colo.1994). "When construing two statutes respecting the same or similar subject matter, full effect must be given to both legislative provisions." People v. Hamilton, 666 P.2d 152, 155 (Colo.1983)(citing Buck v. Dist. Ct., 199 Colo. 344, 608 P.2d 350 (1980).)

Here, however, we do not perceive these statutes as being in conflict because they differ in seope. Section 16-3-202(4) protects a single type of behavior, communicating to authorities, but in a broad context, commission or suspected commission of any crime. In contrast, § 16-3-208 protects any type of preventive behavior, but in the narrower context of "a erime being committed."

These statutes also afford different protections. Section 16-8-202(4) provides immunity from civil liability, which only limits claims by another person. Section 16-8-208 provides indemnity for attorney fees incurred, which creates a claim against another person, contrary to the common law rule that parties to civil litigation bear their own legal fees. See, e.g., Waters v. District Court, 935 P.2d 981 (Colo.1997).

We perceive the distinctive protection afforded by § 16-83-2083 as consistent with its different seope. Action to prevent a crime in progress covers a range of unspecified conduct, including behavior resulting in excessive force against a perpetrator or even injury to a bystander. Hence, the blanket immunity of § 16-8-202(4) would be overin-clusive. However, recovery of attorney fees upon a successful defense would properly protect an appropriate response to a crime in progress.

Moreover, if the seope of the statutes overlapped because a person was sued "for reporting to any police officer" (§ 16-3-202(4)), as an effort "to prevent a erime being committed" (§ 16-38-2083), then the person would enjoy immunity under the reporting statute and, because the crime being reported was in progress, the person could also recover legal fees incurred in establishing that immunity.

Defendant next asserts plaintiff's reading of the statute leads to an absurd result because a person cannot "prevent" a crime already in progress. We may not interpret a statute in a manner that reaches an absurd result. AviComm, Inc. v. Colo. Pub. Utils. Comm'n, 955 P.2d 1023 (Colo.1998).

However, the dictionary definitions of "prevent" offered by the parties are compatible with both anticipatory action ("to keep from happening," American Heritage Dictionary (3d ed.1994)), and direct intervention ("to stop or hinder," Webster's Emcyclopedic Unabridged Dictionary of the English Language (1996)). Hence, we do not view use of "prevent" as transforming the narrow meaning of "a crime being committed" into an absurdity.

Again, we find instructive comparison to the language of § 16-8-202(4), which grants immunity to a person who reports or provides information concerning "any crime." Hence, we do not perceive the narrower wording of § 16-83-2083, "a crime being committed," as opposed to broader criteria for protected intervention such as reasonable suspicion, to be absurd, especially given the difference between immunity from liability and indemnity for attorney fees. If the plain words of the statute "[dlo not correspond to the General Assembly's intent, it is for that body, not this court, to rewrite it." Humane Society v. Industrial Claim Appeals Office, 26 P.3d 546, 548 (Colo.App.2001).

Defendant's argument that a citizen who suspected a murder was imminent would have to wait until the attack began to gain the statute's protection understates what constitutes commission of a crime. See § 18-2-101(1), C.R.9.2002 ("A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense."). The overt act need not be the last proximate act necessary to consummate the criminal object. Johnson v. People, 174 Colo. 413, 484 P.2d 110 (1971).

Finally, defendant contends the public policy favoring citizens assisting police will be frustrated if a citizen, who reports a suspected crime in good faith, does not enjoy the statute's protection. However, as indicated, § 16-3-203, unlike § 16-8-202(4), does not address suspected crimes. In any event, defendant's public policy argument, like other considerations extraneous to the General Assembly's chosen words, has no place where, as here, the language of the statute is clear. See Martin v. People, 27 P.3d 846, 848 (Colo.2001)("[ilt is for the legislature, not the courts, to decide what laws best serve the public interest"); Scoggins v. Unigard Ins. Co., 869 P.2d 202, 205 (Colo.1994)("We will not judicially legislate by reading a statute to accomplish something the plain language does not suggest, warrant or mandate.").

Accordingly, we conclude attorney fees cannot be awarded under § 16-3-203 unless the record shows that, when defendant contacted the police, a crime was "being committed." However, this conclusion does not end our inquiry, because we must also determine whether a crime was in progress.

IL.

Plaintiff argues defendant did not prove that a crime was in progress when she telephoned the police. We agree.

In ruling on defendant's motion for attorney fees, the trial court concluded that "a plain reading" of the statute supports a fee award to defendant The court made no factual finding as to a crime being committed, and we cannot discern from the order whether the court concluded that § 16-38-2083 requires such a finding.

Moreover, defendant's motion for attorney fees did not contend she had established that a crime was being committed. Rather, she asserted that her telephone call "was seeking to report conduct that I believed may have constituted domestic violence and child abuse." Defendant offered no additional evidence of criminal activity in connection with her motion.

The evidence at trial, viewed most favorably to defendant, does not show that a crime was in progress when or even immediately before she telephoned police. The sounds that defendant equated with domestic violence had occurred eighteen hours earlier, at a time when uncontroverted evidence placed plaintiff in another state. The observations that defendant identified as inappropriate conduct of plaintiff towards his daughter, even assuming that the conduct could constitute abuse, had occurred between seven and twenty months before defendant called police.

Nevertheless, defendant contends the special verdiet forms establish the jury determined plaintiff had abused his wife and daughter and, therefore, defendant can recover attorney fees even if § 16-8-208 applies only to a crime in progress. We disagree.

On the special verdict form, the jury was asked, "Did the defendant ... publish the statement that [plaintiff] physically abused his wife?" The jury answered, "No." The next question asked, "Was the statement substantially truthful?" The jury answered, "Yes." The jury also was asked, "Did the defendant ... publish the statement that [plaintiff] abused his daughter?" The jury answered, "No." The jury answered "yes" to the next question, "Was the statement substantially truthful?"

In our view, the jury's answers do not establish that plaintiff committed any erimes. This issue was not before the jury because the court instructed the jury defendant's theory was that she had "called the police in good faith based on her concern for plaintiff's family members," and the jury instructions did not define the elements of any erime.

In addition, the jury was instructed that substantial truth applied to the "substance or gist" of defendant's statement, but "substantial truth does not require every word to be true." See Barnett v. Denver Publ'g Co., 36 P.3d 145 (Colo.App.2001). Thus, substantial truth of defendant's statements, as summarized in the special interrogatories, would not prove the elements of any crime.

Finally, even substantial truth of defendant's statements would not establish temporal proximity between the alleged abuse and defendant's telephone call to the police.

Accordingly, we reverse the order awarding attorney fees to defendant under § 16-3-2083.

Judge METZGER and Judge GRAHAM concur.