author: CARPENETI, Justice.

text:
    A.B., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Appellee.
    No. S-9118.
    Supreme Court of Alaska.
    Sept. 8, 2000.
    Rehearing Granted Sept. 8, 2000.

      Kathleen A. Murphy, Assistant Public Defender, Anchorage, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Shannon O'Fallon, Assistant Attorney General, Juneau, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
   OPINION ON REHEARING

CARPENETI, Justice.

I. INTRODUCTION

A.B. appeals the superior court's judgment that terminated her parental rights with respect to her child, 8.B. At the time of the termination proceedings, the Division of Family and Youth Services (DFYS) was attempting to unite S.B. and her biological father, R.H. In light of these unification efforts, we remand the case for a determination of whether DFYS was attempting to free S.B. for the purposes of adoption or other permanent placement. In all other respects, we affirm the decision of the superior court.

II, FACTS AND PROCEEDINGS

A. Facts

A.B. gave birth to S.B. at Swedish Hospital in Seattle in July 1997. A.B., a resident of Ketchikan, had been transferred to Seattle because she went into labor early and Swedish Hospital was better equipped to deal with a premature baby. S.B. was born prematurely. S.B. remained in the hospital in Seattle for almost a month, while A.B., who was eighteen years old at the time, returned to Ketchikan nine days after S.B. was born. Swedish Hospital transferred S.B. directly to Ketchikan General Hospital because of her small size and concerns that A.B. could not meet her infant's needs.

After S.B.'s birth, DFYS received reports from hospital staff members in both Seattle and Ketchikan, who expressed concerns regarding A.B.'s ability to meet S.B.'s basic needs. Staff reported that A.B. appeared unwilling at times to feed S.B. or change her diapers, that they had seen A.B. shaking S.B., and that she handled S.B. roughly. Dr. David Johnson, who was A.B.'s family physician, stated that he did not feel that it was safe to discharge S.B. into A.B.'s care. Dr. Johnson testified that A.B. "was quite impulsive" and lacked common sense. He was most concerned with A.B.'s inconsistency in her handling of S.B., and he thought that A.B. might unintentionally injure S.B. out of some impulsive move caused by frustration.

After S.B. was discharged from the hospital, DFYS took emergency custody of her and placed her in foster care. DFYS then gained temporary custody of S.B. and set up visitation between A.B. and S.B.

DFYS created the first formal case plan about a month later. It was designed to address such concerns as A.B.'s drug and alcohol use, mental health problems, lack of parenting skills, and lack of a stable living environment. Various organizations attempted to assist A.B. in complying with the plan.

By the end of 1997, A.B. had made some progress in the parenting aspects of her case plan. However, she did not begin addressing the mental health and substance abuse aspects of the plan until the early part of 1998. Also in early 1998, A.B. resisted DFYS's efforts to assist her in obtaining a stable living environment. For example, DFYS workers tried to persuade A.B. to fill out applications for low-income housing, but she refused.

In February 1998 A.B. asked for her visitation with S.B. to be stopped for a week because she wanted to spend time with her boyfriend. A.B. later admitted that she largely spent her week off using cocaine and drinking alcohol.

Also in February 1998, A.B. began to address the substance abuse and mental health aspects of her case plan. She made contact with Dr. Keith Youngblood, a psychologist at Gateway Human Services. Dr. Youngblood stated that A.B. had problems with substance use, as well as "a documented history of mood disorder and emotional management problems." In addition, Dr. Youngblood testified that A.B. suffered from some sort of intellectual impairment. While the evidence suggests that Dr. Youngblood did not run formal tests for fetal alcohol syndrome, he testified that A.B.'s record reflects a provisional diagnosis of her suffering from this condition, which is associated with cognitive defects.

Later in February A.B. and Dr. Young-blood met again and outlined a treatment plan. The plan's objectives included A.B.'s abstinence from non-prescribed drugs and development of effective management skills that would keep her mood swings in control. These objectives were to be accomplished through a variety of methods, including weekly counseling sessions. A.B. attended only one of the sessions; she later admitted that there was no real reason why she did not attend more.

In March 1998 A.B. was evaluated for substance abuse at the Ketchikan General Hospital's Recovery Center. She was diagnosed as having polysubstance dependency; it was recommended that she complete an intensive two-phase care plan. Although A.B. participated in the plan for about two months, she did not complete it.

During May 1998 A.B. was allowed twelve visits with S.B. but made only three of those visits. She visited S.B. about half of her allotted visits in June.

By July 1998 A.B. was unemployed and homeless. She failed to attend the six-month review meeting for her case plan and stopped visiting with S.B. altogether. One of A.B.'s case workers testified that A.B. decided that she was not going to continue with the case plan. Another case worker testified that A.B.'s situation was desperate enough that AB. was just trying to survive.

In August 1998 A.B. stated that she wanted to relinquish her parental rights and give S.B. up for adoption. She had only one visit with S.B. during that month, and in September she requested only one visit. In October, S.B. was placed in a foster home on Prince of Wales Island and A.B. was allowed one visit with S.B. per month.

On November 30, 1998, having concluded that efforts to unite A.B. and S.B. had failed and that the situation was only getting worse, DFYS filed a petition for the termination of A.B.'s parental rights. From the time that the petition was filed until the termination trial was held, A.B. generally continued not to comply with her case plan.

~ A.B.'s termination trial was held in April 1999. At the time of the termination proceedings, DFYS was pursuing efforts to unite S.B. and her biological father, RH.

B. Proceedings

After presiding over a two-day termination trial, Superior Court Judge Thomas M. Jahnke granted DFYS's petition and terminated A.B.'s parental rights. Judge Jahnke ruled that S.B. was a child in need of aid under numerous statutory provisions. He found by clear and convincing evidence that A.B. abandoned S.B. under the first sentence of AS 47.10.018(a), as well as under AS 47.10.013(a)(4) and (8), and that S.B.'s father had "committed conduct or ereated conditions that cause the child to be a child in need of aid." Judge Jahnke also ruled that S.B. was, and continued to be, a child in need of aid by reason of neglect, pursuant to AS 47.10.011(9) In addition, Judge Jahnke ruled that S.B. was a child in need of aid under AS 47.10.011(11), in that A.B. "has a 'mental deficiency of a nature and duration that places [S.B.] at substantial risk of physical harm or mental injury.'"

Judge Jahnke also found by clear and convincing evidence that, pursuant to AS 47.10.088(a)(1)(B), A.B. had not remedied the conduct or conditions that placed S.B. at risk. In addition, Judge Jahnke found by a preponderance of the evidence that DFYS had "made reasonable efforts to support the family and foster the safe return of the child to the family home." Finally, Judge Jahnke ruled that terminating A.B.'s parental rights was in S.B.'s best interests.

Following Judge Jahnke's written decision, DFYS submitted proposed "Findings, Conclusions, and Order" that Judge Jahnke signed. A.B. appeals.

III. DISCUSSION

Alaska Statute 47.10.088(a) allows a court to terminate parental rights "for purposes of freeing a child for adoption or other permanent placement." In order to terminate parental rights under this statute, a court must first find, by clear and convincing evidence, that: (1) the child is a child in need of aid under AS 47.10.011; and (2) the parent has not remedied the conduct or conditions that place the child at risk. Then, a court must find, by a preponderance of the evidence, that DFYS has made reasonable efforts to support the family and foster the safe return of the child to the family home. In making determinations under this statute, a court must also consider the best interests of the child.

A. Standard of Review

In a child in need of aid case, we will sustain the superior court's findings of fact unless they are clearly erroneous. Factual findings are clearly erroneous if a review of the entire record leaves us "with a definite and firm conviction that a mistake has been made." In addition, we apply our independent judgment in reviewing questions of statutory interpretation. Whether the trial court's findings comport with the requirements of the child in need of aid statutes is a question of law that we review de novo.

B. The Superior Court Did Not Err in Ruling that S.B. Is a Child in Need of Aid.

As noted above, the superior court ruled that S8.B. is a child in need of aid under numerous statutory provisions. The record supports the superior court's determination that S8.B. is a child in need of aid pursuant to AS 47.10.011(1) because A.B. abandoned S.B. pursuant to AS 47.10.018(a)(4), and because S.B.'s biological father has "committed conduct or created conditions" that caused S.B. to be a child in need of aid. Since we affirm this determination, we need not address the other grounds on which the superior court ruled that S.B. is a child in need of aid.

1. The superior court did not err in ruling that A.B. failed to participate in a switable reunification plan without justifiable cause.

Alaska Statute 47.10.018(a)(4) states that abandonment of a child includes instances in which the parent, without justifiable cause, "failed to participate in a suitable plan or program designed to reunite the parent ... with the child." The record supports the superior court's determination that A.B. abandoned S.B. under the terms of this statute.

a. The superior court did not err in ruling that A.B. failed to participate in a suitable reunification plan.

We have not yet had occasion to decide what "failed to participate" means within the context of AS 47.10.018(a)(4). While this statutory provision does not nee-essarily require a parent to follow his or her reunification plan to the letter, it does require more than minimal participation.

A.B. made some progress in following her reunification plan during 1997. However, in February 1998 she asked for time off from visitation so that she could spend more time with her boyfriend. During the time off, A.B. consumed cocaine and drank alcohol. This interlude began a period of steadily downward performance by A.B., at the culmination of which she essentially dropped out of the reunification plan.

By July 1998 A.B. stopped visiting with S.B. altogether. She also failed to attend the six-month review meeting for her case plan and articulated her decision that she was not going to follow the plan. In August 1998 A.B. stated that she wanted to relinquish her parental rights and give up S.B. for adoption.

While A.B. did have token visitation with S.B. during the latter part of 1998, the record suggests that she failed to participate in the other aspects of her case plan from July 1998 to March 1999. By failing to even minimally participate in her case plan for over six months, A.B.'s conduct falls within the definition of "abandonment" stated in AS 47.10.013(a)(d). We accordingly hold that the superior court did not err in ruling that A.B. failed to participate in a suitable reunification plan under this statute.

b. The superior court did not err in ruling that A.B.'s failure to participate in her reunification plan was without justifiable cause.

Alaska Statute 47.10.018(a)(4) provides that a failure to participate in a suitable reunification plan constitutes "abandonment" if the failure was without justifiable cause.

On appeal, A.B. argues that her failure to comply with her case plan was not fully voluntary because the failure was caused by her poverty and her homelessness.

However, A.B.'s assertions are not borne out by the record. For example, one aspect of A.B.'s ease plan was to apply for low-income housing. AB. resisted DFYS's repeated attempts to assist her with this aspect of the plan. DFYS workers attempted to assist A.B. in filling out applications for low-income housing, but A.B. would not fill out the applications. Another aspect of A.B.'s case plan was to obtain mental health treatment through weekly counseling sessions, but she attended only one session. She offers no evidence that these failures on her part were related to her poverty or were in any way justified.

Although A.B. was extremely poor in the summer of 1998, the record suggests that DFYS and other organizations gave A.B. ample opportunities to maintain a stable lifestyle. As such, we cannot say that the superior court erred in ruling that A.B.'s failure to participate in the reunification plan was without justifiable cause. We therefore affirm the superior court's conclusion that A.B. abandoned S.B. within the meaning of AS 47.10.018(a)(4).

2. The superior court did not err in ruling that S.B.'s father committed conduct or created conditions that caused S.B. to be a child in need of aid.

In order for a court to find that a child is a child in need of aid under AS 47.10.011(1), a court must find not only that the child has been abandoned under AS 47.10.0183, but also that "the other parent is absent or has committed conduct or created conditions that cause the child to be a child in need of aid. % Here, the superior court determined that S.B.'s biological father, R.H., had committed such conduct or created such conditions.

On appeal, A.B. does not challenge this determination. Accordingly, we need not consider this matter further. We therefore affirm the superior court's ruling that R.H. committed conduct or created conditions that cause S.B. to be a child in need of aid.

We accordingly affirm the superior court's ruling that S.B. is a child in need of aid pursuant to AS 47.10.011.

C. The Superior Court Did Not Err in Ruling that A.B. Has Failed to Remedy the Conduct or Conditions that Place S.B. at Risk.

In order to terminate parental rights under AS 47.10.088, a court must not only find that a child is a child in need of aid; the court must also find, by clear and convincing evidence, that the parent

() has not remedied the conduct or conditions in the home that place the child at substantial risk of harm; or
(ii) has failed, within a reasonable time, to remedy the conduct or conditions in the home that place the child in substantial risk so that returning the child to the parent would place the child at substantial risk of physical or mental injury[.]

Here, the superior court found by clear and convincing evidence that A.B. failed to remedy the situation under either prong of this statutory provision.

On appeal, A.B. did not argue in her brief that she had remedied the conduct or conditions that place S.B. at risk. Accordingly, we need not consider this issue. We therefore affirm the superior court's ruling that AB. has failed to remedy the conduct or conditions that place S.B. at substantial risk.

D. The Superior Court Did Not Err in Ruling that DFYS Made Reasonable Efforts to Support the Fomily and Foster the Sofe Return of SB. to AB.'s Home.

In addition to the requirements for terminating parental rights that are discussed above, AS 47.10.088 requires DFYS to show "by preponderance of the evidence that the department has complied with the provisions of AS 47.10.086 concerning reasonable efforts" to provide family support services designed to prevent out-of-home placement of the child or to return the child to the family home.

The superior court found, by a preponderance of the evidence, that DFYS made "reasonable efforts" as required by AS 47.10.088. It stated that the failure of those efforts is primarily the result of A.B.'s refusal to take advantage of the services that were offered to her. The record supports the superior court's ruling.

While A.B. suggests that DFYS's reunification plan was fatally flawed because it did not adequately address her housing needs, the record establishes that one of the concerns that A.B.'s case plan was designed to address was her lack of a stable living environment. Case workers attempted to help A.B. fill out applications for low-income housing, but A.B. would not fill out the applications. The record reflects that A.B. was offered help in addressing her housing needs, but did not take advantage of that help.

DFYS took numerous other steps in its attempt to reunite A.B. and S8.B. It created a case plan and offered A.B. specific services designed to address the concerns referred to in the plan. A.B. did not, however, make full use of these services and, in the summer of 1998, she decided that she would no longer follow the case plan.

Given DFYS's efforts in creating the case plan and offering A.B. services that would help her achieve the objectives of that plan, we affirm the superior court's ruling on the reasonable efforts issue.

E,. In Light of DFYS's Attempts To Unite S.B. and Her Biological Father, the Record Does Not Support the Superior Court's Decision to Terminate A.B.'s Parental Rights.

Although we affirm the superior court's rulings in all other respects, we must nevertheless remand this case for further proceedings. In light of DFYS's attempts to unite S.B. and her biological father, RH., it is unclear whether the superior court terminated A.B.'s parental rights "for the purposes of freeing [S.B.] for adoption or other permanent placement." For the same reason, it is unclear whether terminating A.B.'s parental rights is in the best interests of S.B. We accordingly remand the case for further determinations regarding these matters.

1. Alaska Statute 47.10.088(a) allows for the termanation of parental rights only for the purposes of freeing a child for adoption or other permament placement.

Alaska Statute 47.10.088(a) provides that a court may terminate parental rights "for the purposes of freeing a child for adoption or other permanent placement." Here, it is unclear whether the superior court terminated A.B.'s parental rights for either of these purposes. While the superior court noted that S.B. has an interest in having a stable, permanent family arrangement, at the time of the termination proceedings DFYS was attempting to unite S.B. and her biological father, RH.

At the time the parties submitted their appellate briefs, DFYS noted that S.B. had been placed in her father's care, but stated that DFYS still had custody over her. While the record indicates that DFYS had supervisory custody until January 1, 2000, the ree-ord does not indicate what happened after that date.

In light of these facts, it is unclear whether DFYS was attempting to terminate A.B.'s parental rights for the purpose of freeing S.B. "for adoption or other permanent placement." It does not appear that S.B. was going to be placed with adoptive parents after the termination proceedings. We therefore remand this case for a finding as to whether termination of A.B.'s parental rights is for the purpose of freeing S.B. for adoption or other permanent placement. If the superior court finds on remand that A.B.'s parental rights would not be terminated for the purpose of freeing S.B. "for adoption or other permanent placement," the court should decline to terminate A.B.'s parental rights.

2. The record is unclear whether terminating A.B.'s parental rights is in the best interests of S.B.

Alaska Statute 47.10.088(c) provides that "[iln a proceeding under this chapter involy-ing termination of [parental rights], the court shall consider the best interests of the child." We have stated that "in a termination trial, the best interests of the child, not those of the parents, are paramount."

Here, the superior court determined that terminating A.B.'s parental rights is in S.B.'s best interests. In doing so, the superior court suggested that terminating A.B.'s parental rights would help give S.B. "the best opportunity for life in a stable and nurturing home." In light of DFYS's efforts to unite S.B. and R.H., however, we are not persuaded that the superior court's best interests determination is supported under the unusual facts of this case. As A.B. argues, termination of her parental rights has, in effect, left S.B. "half-orphaned." If RH. turns out to be a satisfactory parent for S.B., it is difficult for us to see how severing all ties with AB. is in S.B.'s best interests. If A.B.'s parental rights are terminated, S.B. would lose her rights of inheritance from A.B. and her right to support from her biological mother. With her biological father as her custodian, losing these important rights for her other natural parent would not appear to be in S.B.'s best interests.

In light of DFYS's attempt to unite S.B. and her biological father, the superior court on remand should first determine the status of that effort, and then determine whether the termination of A.B.'s parental rights is for the purpose of facilitating S.B.'s adoption or other permanent placement. -If the court determines that terminating A.B.'s parental rights is for that purpose, the court should then determine whether, in light of its other findings, such a termination is in S.B.'s best interests.

IV. CONCLUSION

The record supports the superior court's determinations that S.B. is a child in need of aid, that A.B. failed to remedy the conduct or conditions that place S.B. at risk, and that DFYS made reasonable efforts to foster the safe return of S.B. to A.B.'s home. However, because DFYS was seeking to unite S.B. and her biological father at the time of the termination proceedings, we REMAND this case to the superior court to determine: (1) the status of DFYS's efforts to unite S.B. and RH.; (2) the purpose of terminating A.B.'s parental rights; and (8) if necessary, the best interests of S.B.

      . Alaska Statute 47.10.013 provides in relevant part:

        (a) For purposes of this chapter, the court may find abandonment of a child if a parent or guardian has shown a conscious disregard of parental responsibilities toward the child by failing to provide reasonable support, maintain regular contact, or provide normal supervision, considering the child's age and need for care by an adult. Abandonment of a child also includes instances when the parent or guardian, without justifiable cause,

      (4) failed to participate in a suitable plan or program designed to reunite the parent or guardian with the child;

      (8) was unwilling to provide care, support, or supervision for the child.

      . Alaska Statute 47.10.011 provides in relevant part:
      Subject to AS 47.10.019, the court may find a child to be a child in need of aid if it finds by a preponderance of the evidence that the child has been subjected to any of the following:

      (9) conduct by or conditions created by the parent, guardian, or custodian have subjected the child or another child in the same household to neglect[.]

      . See AS 47.10.088(a)(1)(B).

      . See AS 47.10.088(a)(2); AS 47.10.086.

      . See AS 47.10.088(c).

      . See R.J.M. v. State, Dep't of Health and Soc. Servs., 973 P.2d 79, 84 (Alaska 1999) (citation omitted).

      . Id. (citation omitted).

      . See id.

      . Seeid.

      . See supra Part ILB.

      . Alaska Statute 47.10.011 provides, in relevant part:
      Subject to AS 47.10.019, the court may find a child to be a child in need of aid if it finds by a preponderance of the evidence that the child has been subjected to any of the following:
      (1) a parent or guardian has abandoned the child as described in AS 47.10.013, and the other parent is absent or has committed conduct or created conditions that cause the child to be a child in need of aid under this chapter[.]
      Alaska Statute 47.10.019 provides:
      Notwithstanding other provisions of this chapter, the court may not find a minor to be a child in need of aid under this chapter solely on the basis that the child's family is poor, lacks adequate housing, or exhibits a lifestyle that is different from the generally accepted lifestyle standard of the community where the family lives. However, this section may not be construed to prevent a court from finding that a child is in need of aid if the child has been subjected to conduct or conditions described in AS 47.10.011-47.10.015.

      . Alaska Statute 47.10.013(a)(4) provides that "abandonment" includes instances in which a parent, without justifiable cause, "failed to participate in a suitable plan or program designed to reunite the parent ... with the child."

      . AS 47.10.011(1).

      . See Adamson v. University of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991) (citations omitted). Although it is unnecessary to the resolution of this appeal, we note that the superior court's findings provide more than adequate support for its determination that RH. committed conduct or created conditions that cause S.B. to be a child in need of aid. For example, the superior court found that RH. fled Ketchikan during A.B.'s pregnancy to avoid contact with her, and that he did so with the intent of letting A.B. fail as a parent so that he could then step in and demand custody of S.B. Because RH. left S.B. in the custody of someone he believed to be a highly inadequate parent, the record supports the superior court's determination that R.H.'s conduct placed S.B. at a substantial risk of suffering substantial physical harm, and that R.H. thereby caused S.B. to be a child in need of aid under AS 47.10.011(6).

      15. AS 47.10.088(a)(1)(B).

      . A.B. does discuss the failure-to-remedy provision in her brief, but she does so in the context of arguing that termination of her parental rights was not in S.B.'s best interests. A.B. does not argue that she has remedied the conduct or conditions that place S.B. at substantial risk.

      . See Adamson, 819 P.2d at 889 n. 3 (citations omitted).

      . See supra Parts IILB-C.

      . AS 47.10.088(a)(2). Alaska Statute 47.10.086 is entitled "REASONABLE EFFORTS." It provides, in relevant part:
      (a) [The department shall make timely, reasonable efforts to provide family support services to the child and to the parents or guardian of the child that are designed to prevent out-of-home placement of the child or to enable the safe return of the child to the family home, when appropriate, if the child is in an out-of-home placement. The department's duty to make reasonable efforts under this subsection includes the duty to
      (1) identify family support services that will assist the parent or guardian in remedying the conduct or conditions in the home that made the child a child in need of aid;
      (2) actively offer the parent or guardian, and refer the parent or guardian to, the services identified under (1) of this subsection; the department shall refer the parent or guardian to community-based family support services whenever community-based services are available and desired by the parent or guardian; and
      (3) document the department's actions that are taken under (1) and (2) of this subsection.

      . See supra Parts ULB-D.

      . Alaska Statute 47.10.088(a).

      . Judge Jahnke suggested that in light of these reunification efforts, DFYS's pursuit of termination proceedings against A.B. "struck [him] as curious." He also questioned whether the state had an interest in terminating A.B.'s parental rights, and suggested that DFYS should be more concerned with the father. DFYS responded by stating that it thought it was best to go forward with the termination proceedings regarding A.B., and that it would attempt to terminate RH.'s parental rights if it had to do so.

      . AS 47.10.088(a).

      . Placement with a non-terminated parent could be an "other permanent placement" under AS 47.10.088(a), and, under AS 47.10.088(h), terminating the non-custodial parent's rights would not affect the rights of the custodial parent. But the termination must be made "for purposes of freeing" a child for such permanent placement. If the state argues on remand that this is such a case, the court should make findings on this point.

      . A.A. v. State, Dep't of Family & Youth Servs., 982 P.2d 256, 260 (Alaska 1999) (citing R.F. v. S.S., 928 P.2d 1194, 1197 (Alaska 1996)).

      . Judge Jahnke's observation that DFYS's pursuit of termination against A.B. while seeking to unite S.B. with her biological father was "curious," see supra note 21, suggests the trial court's unease with this aspect of the case.

      . The situation would be different if DFYS were attempting to place S.B. into a permanent adoptive home. On the basis of the record, a strong case can be made for concluding that such a placement would be in S.B.'s best interests. Here, however, it appears that S.B. was not going to be placed in a permanent adoptive home. Rather, DFYS was seeking to place S.B. with her father, at least until DFYS determines that the father is also not an adequate parent.


source: Caselaw Access Project

author: COATS, Chief Judge.

license: Public Domain

text:
    Scott M. MORRISON, Appellant, v. STATE of Alaska, Appellee.
    No. A-7284.
    Court of Appeals of Alaska.
    Sept. 8, 2000.

      Colleen A. Kosluchar, Niewohner & Associates, Fairbanks, for Appellant.
    Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   O P I N I 0 N

COATS, Chief Judge.

A sentencing judge referred a presumptive sentencing case to the three-judge sentencing panel so that the defendant might receive earlier eligibility for parole than is normally allowed under presumptive sentencing. The three-judge panel concluded that the defendant should not be eligible for parole until he had served 4 years in prison. Even though the defendant would have faced a similar parole restriction if he had been sentenced under the normal presumptive sentencing rules, the three-judge panel retained the defendant's case and proceeded to sentence the defendant. We hold that this was error. Under these circumstances, the panel was required by AS 12.55.175(b) to decline the case-to send the case back to the single judge for sentencing.

Facts of the case

Scott Morrison drove a motor vehicle while he was intoxicated. He struck another car, killing the driver and injuring two passengers. Morrison ultimately pleaded no contest to two class A felonies: manslaughter and first degree assault. As a first felony offender, Morrison faced a maximum sentence of 20 years' imprisonment and a 5-year presumptive term for each of these crimes.

Morrison proposed two mitigating factors not listed in AS 12.55.155(d): uncommon potential for rehabilitation, and exemplary post-offense behavior. Superior Court Judge Richard A. Savell concluded that Morrison had proven both of these non-statutory miti-gators. He further concluded that it would be manifestly unfair not to adjust Morrison's sentence on account of these non-statutory factors. Accordingly, pursuant to AS 12.55.165, Judge Savell referred Morrison's case to the three-judge sentencing panel.

The three-judge panel agreed that Morrison had proven the two non-statutory miti-gators. However, before imposing its final sentence, the panel asked Judge Savell to indicate the type of sentence he would have imposed if he had not been constrained by the normal presumptive sentencing rules.

Responding to the three-judge panel's inquiry, Judge Savell announced that he thought Morrison should receive a sentence of 8 years with 2 or 3 years suspended-that is, 5 or 6 years to serve. Such a sentence would be within Judge Savell's normal sentencing authority as a single judge. However, based on the two non-statutory mitigating factors, Judge Savell concluded that this sentence would be manifestly unjust unless Morrison was eligible for discretionary parole after serving 2% years of a 5-year sentence or, alternatively, after serving 2 years of a 6-year sentence. Under the presumptive sentencing laws, Morrison would not be eligible for discretionary parole until he had served 5 years in prison (the minimum presumptive term that Judge Savell could impose), and Judge Savell had no authority to alter Morrison's parole eligibility. This, Judge Savell explained, was the reason he had referred Morrison's case to the three-judge panel.

Upon receiving Judge Savell's response, the three-judge panel imposed its final sentence. By a vote of two to one, the panel sentenced Morrison to 8 years with 1 year suspended-that is, 7 years to serve. The panel ordered that Morrison be eligible for parole after serving 4 years of this sentence.

The panel majority concluded that this sentence was appropriate even though it exceeded the sentence envisioned by Judge Sa-vell. The majority believed that it could exceed Judge Savell's recommendation because, onee the panel agreed that non-statutory mitigators existed, "the [defendant's] sentence is to be determined by the panel alone." The minority member of the panel, Judge Walter L. Carpeneti, argued that the panel's action violated the policy embodied in Heatheock v. State. He pointed out that the panel had imposed more time to serve than Judge Savell said he would have imposed (7 years as opposed to 6) and, at the same time, the panel had delayed Morrison's parole eligibility until he had served 4 years, not the 2 years suggested by Judge Savell. Judge Carpeneti believed that most people would perceive the panel's sentence as more severe than what Morrison would have received from Judge Savell, and he feared that such sentences would deter defendants from seeking referrals to the three-judge panel.

Morrison now appeals. He asks us to hold, as a matter of law, that the three-judge panel exceeded its authority when it imposed a sentence greater than the sentence envisioned by Judge Savell. The state, on the other hand, urges us to hold that, onee Judge Savell referred the case to the three-judge panel, and the panel agreed that Morrison had proved non-statutory mitigators, the panel had complete discretion regarding the sentence Morrison should receive.

Based on AS 12.55.175(b), as construed in Heathcock v. State, we reject the positions of both parties

Morrison argues that the three-judge panel cannot impose a sentence more severe than the longest sentence envisioned by the single sentencing judge-in this case, 8 years with 2 years suspended (6 years to serve), and parole eligibility after 2 years. But in Heathcock v. State, we stated that onee the three-judge panel agrees with the single judge that a departure from the presumptive sentencing scheme is necessary, "[t]he panel then decides the degree of departure in imposing the sentence. This means that the departure from the presumptive sentencing scheme will not turn on the evaluation of one judge."

Thus, in Morrison's case, even if the three-judge panel had agreed with Judge Savell that Morrison should receive early parole eligibility, the panel still might properly disagree with Judge Savell concerning the amount of parole leniency Morrison should receive. For instance, we believe that, consistent with Heathcock, the panel might have sentenced Morrison to serve 6 years with parole eligibility after 3 years.

On the other hand, we reject the state's contention that, once the three-judge panel agrees with the single judge that it would be manifestly unjust to fail to consider non-statutory aggravators or mitigators, the panel has complete discretion to impose any sentence within its authority. This contention is likewise inconsistent with AS 12.55.1775 as construed in Heathcock. As we noted in Heathcock, the legislative commentary to AS 12,55.175 directs the three-judge panel to take different actions, depending on whether the panel concludes that justice manifestly requires a sentence outside the normal presumptive sentencing limits:

If the three-judge panel agrees with the sentencing court and finds that manifest injustice would result from imposition of the presumptive term, it may sentence the defendant to any term of imprisonment, up to the maximum authorized for the offense, or may impose any other sentence authorized in § 12.55.005.
If the three-judge panel does not agree with the sentencing court's finding [of manifest injustice], it is required to remand the case to the sentencing court with a written statement of its findings and conclusions for sentencing under § 12.55.125.

In other words, even though the three-judge panel in Morrison's case agreed with Judge Savell that Morrison had established two non-statutory mitigating factors, the three judges had to collectively answer one more question before deciding whether to sentence Morrison themselves or remand Morrison's case to Judge Savell. After conducting the renewed sentencing proceedings authorized by AS 12.55.175(b), the members of the panel had to decide whether it would be manifestly unjust to impose a sentence within the range allowed by the normal presumptive sentencing rules.

As explained more fully in the next section, if the three-judge panel concludes that the proper sentence for a defendant is a sentence that the single judge was authorized to impose, the panel is obliged under AS 12.55.175(b) to remand the case to the single judge for sentencing. The statute authorizes the three-judge panel to keep the case and sentence the defendant only if the panel concludes that a proper sentence lies outside the range of sentences that the single judge was authorized to impose.

The three-judge panel violated AS 12.55.175(b) by failing to remand Morrison's case to Judge Savell after the pamel concluded that Morrison should not be eligible for parole until he had served 4 years-because Judge Savell could have imposed such a sentence as a single judge.

Under AS 12.55.165, a sentencing judge is directed to refer a case to the three-judge panel if the judge finds by clear and convincing evidence "that manifest injustice would result from failure to consider relevant aggravating or mitigating factors not included in AS 12.55.155". In Bossie v. State, we construed this statutory language to mean that "a case should be referred to the three-judge panel if (1) a non-statutory factor has been proved, and (2) it would be manifestly unjust to fail to adjust the presumptive term by some amount, no matter how small, on account of this non-statutory factor."

When a single judge refers a case to the three-judge panel, the panel's initial duty under AS 12.55.175(b) is to decide whether they agree with the single judge's assessment of manifest injustice. Section 175(b), in wording that echoes section 165, directs the three-judge panel to re-assess whether "manifest injustice would result from failure to consider relevant aggravating or mitigating factors not included in AS 12.55.155". To do this, the panel must undertake the two-part analysis explained in Bossie.

The three-judge panel must first decide whether they agree with the single judge that non-statutory factors have been proved. If the three-judge panel agrees that non-statutory factors are present, the panel must next decide whether it would be manifestly unjust for a court to sentence the defendant without deviating by some amount, no matter how small, from the normal constraints of the presumptive sentencing laws. If the answer to both of these questions is "yes", then AS 12.55.175(b) directs the three-judge panel to sentence the defendant in accordance with the rules contained in AS 12.55.175(c)-(e). But if the answer to either of these questions is "no", then the statute directs the three-judge panel to "remand the case to the sentencing court ... for sentencing under AS 12.55,125". That is, the statute requires the three-judge panel to decline the case and to order the single judge to sentence the defendant under the normal presumptive sentencing rules.

In Morrison's case, the three-judge panel agreed with Judge Savell that Morrison had proved two non-statutory mitigating factors. However, the panel then concluded that Morrison should receive a sentence of 8 years with 1 year suspended (7 years to serve), with parole eligibility after 4 years. By imposing this sentence, the three-judge panel implicitly demonstrated their belief that Morrison could receive a fair sentence within the normal constraints of the presumptive sentencing rules.

Even though presumptive sentencing defendants have only limited eligibility for discretionary parole, they retain normal eligibility for mandatory parole-the parole release that occurs by operation of law if a defendant observes good behavior during two-thirds of their prison sentence. Thus, if Judge Sa-vell had not referred Morrison's case to the three-judge panel-if Judge Savell had simply sentenced Morrison to serve 6 years (8 years with 2 years suspended)-Morrison would have been eligible for parole after serving 4 years of this sentence, assuming he maintained good behavior. Morrison's eligibility for parole after 4 years would not require any deviation from the normal rules of presumptive sentencing.

As explained above, Judge Savell believed that Morrison should be eligible for an earlier parole, after he had served 2 or 2% years. But the three-judge panel rejected Judge Savell's suggestion; they concluded that Morrison should not be eligible for parole until he had served 4 years in prison.

By deciding that Morrison should serve 4 years in prison before becoming eligible for parole, the three-judge panel implicitly concluded that there would be no manifest injustice in allowing Morrison's parole eligibility to be set under the normal rules governing presumptive sentencing-no manifest injustice in remanding the case to Judge Savell and directing him to sentence Morrison under the constraints that apply to a single judge. This being so, the panel was obliged under AS 12.55.175(b) to return Morrison's case to Judge Savell.

Conclusion

The three-judge panel exceeded its authority when it sentenced Morrison rather than remanding Morrison's case to Judge Savell. The sentence imposed by the three-judge panel is therefore VACATED. This case is remanded to Judge Savell with directions to sentence Morrison within the normal rules governing presumptive sentencing.

      . AS 11.41.120(a).

      . AS 11.41.200(a).

      . AS 12.55.125(c)(1).

      . A defendant who is sentenced under the normal presumptive sentencing laws has only limited eligibility for discretionary parole. See AS 12.55.125(g)(3), AS 33.16.090(b)-(c), and AS 33.16.100(c)-(d). In Morrison's case, Judge Sa-vell intended to impose partially consecutive presumptive terms. Because of this, Morrison would not be eligible for discretionary parole until after he served his initial 5-year presumptive term. See AS 33.16.090(b); see also Hampel v. State, 911 P.2d 517, 520-23 (Alaska App.1996) (construing the predecessor to AS 33.16.100(d) and holding that, for purposes of calculating a prisoner's eligibility for discretionary parole, a mandatory minimum term of imprisonment is not reduced by good time credit).

      . 670 P.2d 1155 (Alaska App.1983).

      . Id. at 1157-58 (citation omitted).

      . Id. at 1157 (original emphasis deleted; new emphasis added).

      . 835 P.2d 1257 (Alaska App.1992).

      . Id. at 1259.

      . See Lowe v. State, 866 P.2d 1320, 1322 (Alaska App.1994) (holding that AS 12.55.175(b) requires the three-judge panel to engage in the same Bossie analysis that a single judge must engage in when the single judge decides whether to refer a case to the threejudge panel under AS 12.55.165).

      . See AS 33.16.010(c) and AS 33.20.010-O060.

      . The panel apparently believed that Morrison would not be eligible for parole release until he had served 5 years in prison, and that they were extending a benefit to Morrison when they made him eligible for parole after 4 years.


author: Judge RULAND.

text:
    Patricia W. HOFFLER, Complainant-Appellant, v. State of Colorado-STATE PERSONNEL BOARD, and Department of Corrections, Respondents-Appellees.
    No. 97CA1489.
    Colorado Court of Appeals, Div. III.
    Nov. 12, 1999.

    Rehearing Denied Jan. 6, 2000.
    Certiorari Granted Aug. 21, 2000.

      Knapp & Sachs, P.C., Benjamin Sachs, Denver, Colorado, for Complainant-Appellant.
    Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Carolyn Lievers, Assistant Attorney General, Denver, Colorado, for Respondent, Appellee Department of Corrections.
    Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Mary S. McClatchey, Assistant Attorney General, Denver, Colorado, for Respondent-Appellee Colorado State Personnel Board.

      Prior opinion announced December 24, 1998, WITHDRAWN. Petitions for rehearing GRANTED.

   Opinion by

Judge RULAND.

Complainant, Patricia W. Hoffler, seeks review of the State Personnel Board's order affirming the termination of her employment by the Department of Corrections (DOC). We affirm.

Complainant's termination resulted from her conduct during an investigation involving charges of sexual harassment against one of her supervisors. Specifically, during the investigation by the Inspector General's Office, complainant initially told investigators on two occasions in effect that she had been sexually harassed by the supervisor. However, complainant later recanted her initial statements and maintained, both through the balance of the investigation and at the hearing, that her supervisor did not sexually harass her. Following the hearing, the supervisor was terminated for misconduct.

Based on these conflicting statements, DOC terminated complainant on the basis that her conduct violated DOC administrative regulations.

On appeal before an Administrative Law Judge (ALJ), and subsequently before the Board, the DOC's disciplinary termination was upheld. Complainant now seeks review of those decisions.

I.

Complainant initially contends that the statements she provided in the proceeding involving her supervisor were privileged and thus improperly relied upon as the basis for her termination by DOC. We disagree.

The determination of privilege is a question of law for the court. Club Valencia Homeowners Ass'n v. Valencia Associates, 712 P.2d 1024 (Colo.App.1985)

Generally, a common law privilege protects one who offers statements in the course of a judicial or quasi-judicial proceeding from most consequences for those statements. Department of Administration v. State Personnel Board, 703 P.2d 595 (Colo.App.1985). The privilege was created to protect participants in these proceedings from liability for defamatory communications. See Lininger v. Knight, 128 Colo. 213, 226 P.2d 809 (1951). The policy underlying the privilege is that for the judicial process to funetion effectively, those who participate in it must be able to do so without being hampered by the fear of private suits for defamation. See MacLarty v. Whiteford, 30 Colo.App. 378, 496 P.2d 1071 (1972).

While this privilege is most frequently applied in libel and slander cases, it has also been applied in a case in which statements given in a quasi-judicial proceeding resulted in disciplinary action against the participant. Thus, in Department of Administration v. State Personnel Board, supra, the opinion reflects that a state employee made comments about another employee during a meeting held to investigate certain miscon-duet charges. The first employee was later suspended as a result of his comments. A division of this court reversed the suspension, finding that the employee's comments were privileged and that, therefore, the disciplinary action was improper.

Contrary to complainant's contention, however, we do not view Department of Administration v. State Personnel Board, supra, as support for her claim of privilege here. Unlike in that case, here there are specific regulations governing complainant's conduct.

First, DOC Reg. 1150-1, Section V(C), then in effect, provided that:

It is the responsibility of all Department of Corrections and contract personnel to cooperate fully with the office of the Inspector General.

In addition, DOC Reg. 1450-1 then provided:

Each person in public office in the executive branch of government:
2) Shall demonstrate the highest standards of personal integrity, truthfulness and honesty and shall through personal conduct inspire public confidence and trust in government.

Taken together, these regulations required complainant to assist the investigators with full and accurate disclosure of relevant information throughout their investigation and to testify truthfully at any hearing. Conversely, complainant makes no claim in this court that the regulations in any manner constitute the invalid exercise of DOC authority or that she was unaware of the requirements of these regulations. Similarly, there is no claim that the public policy supporting adoption of the regulations for the correction system is in any manner subject to question. See LaChance v. Erickson, 522 U.S. 262, 118 S.Ct. 753, 139 L.Ed.2d 695 (1998) (the Due Process Clause does not preclude sanctions against a federal employee for making false statements in response to charges of misconduct). Indeed, the need for cooperation and integrity in the corrections system parallels that for law enforcement in general in the context of efficient administration and public confidence in the system.

Under these cireumstances, we conclude that the common law privilege does not apply. To conclude otherwise would in our view undermine a valid public policy, potentially frustrate the investigation of improper conduct on the part of corrections officers, and create a safe harbor for deliberate violation of valid regulations.

To the extent complainant relies upon Lin-inger v. Knight, supra, we view that case as inapplicable as well. Lininger addresses the privilege in the context of a petition presented in good faith to a county asserting that certain acts were required to enhance the public welfare. Here, the Board was faced with conflicting statements, some of which had to be willfully false, that impacted an investigation of misconduct on the part of a supervisory official.

II.

Complainant next contends that DOC is barred by the doctrine of judicial estoppel from terminating her employment. Specifically, complainant asserts that DOC took the position in the supervisor's proceeding that her recantation of the allegations of sexual assault was false. Now, according to complainant, DOC is taking a contrary position. We are not persuaded.

To prevail under a theory of judicial estop-pel, complainant must establish, among other things, that the two positions taken by DOC are totally inconsistent. That is, the truth of one position must necessarily preclude the truth of the other,. See Estate of Burford v. Burford, 935 P.2d 943 (Colo.1997). Here, however, while DOC maintained in the supervisor's case that claimant's testimony was false, the termination decision in this proceeding was based upon the deliberate inconsistent statements made by complainant and the violation of the regulatory requirements for integrity and cooperation in an investigation. Hence, judicial estoppel does not apply.

IIL

Complainant next contends that the doctrine of collateral estoppel precludes DOC from terminating her employment. Specifically, she argues that a determination whether her initial statements to the investigators were false was necessarily litigated in the supervisor's disciplinary proceeding and that the initial statements were found to be true. Accordingly, complainant reasons that DOC is thus precluded from pursuing a claim for violation of the regulations. Again, we are not persuaded.

The principal issue litigated in the supervisor's proceeding was whether any sexual harassment occurred. Here, however, that issue is only peripherally involved in the context of complainant's deliberate and inconsistent statements about the incidents. Hence, the doctrine of collateral estoppel does not apply because the same issue is not being litigated. See Central Bank Denver, N.A. v. Mehoffy, Rider, Windholz & Wilson, 940 P.2d 1097 (Colo.App.1997). Stated another way, the outcome here does not depend upon which version of her statements is true.

IV.

Complainant finally contends that the Board erred in failing to hold that the burden of proof was improperly shifted to her. According to complainant, because the letter of termination was based on her having taken inconsistent positions relative to the charges against her supervisor, DOC should have been required to elect which version of complainant's information was correct and sought termination on that basis. We disagree.

DOC's principal position and the one it sustained before the ALJ on an evidentiary basis was that complainant violated the quoted regulations for the reasons previously stated. Contrary to complainant's contention, DOC carried its burden in this regard, and thus the Board's affirmance was correct.

We have considered and are unpersuaded by complainant's remaining contentions for reversal of the Board's order.

Order affirmed.

Judge JONES and Judge DAVIDSON concur.


author: Chief Judge HUME.

text:
    In re the MARRIAGE OF Barbara U. RILEY-CUNNINGHAM, Appellant, and James A. Cunningham, Appellee.
    No. 98CA1487.
    Colorado Court of Appeals, Div. V.
    Sept. 16, 1999.
    Rehearing Denied Nov. 4, 1999.
    Certiorari Denied Aug. 21, 2000.

      Steven M. Werner, Colorado Springs, Colorado, for Appellant.
    Kent L. Freudenberg, Colorado Springs, Colorado, for Appellee.
   Opinion by

Chief Judge HUME.

In this dissolution of marriage action, Barbara U. Riley-Cunningham (wife) appeals the portion of the permanent orders distributing 16.2% of the disposable military retirement pay of James A. Cunningham (husband) to her. We affirm.

Both parties have or are eligible for military retirement and were approximately 48 years old at the time of the decree. Husband is retired from active duty and receives both military retirement and a disability benefit. Husband's disability is not at issue here. Wife served 11 years on active duty, and the last 18 years on active reserve, and therefore has performed more than 20 years of creditable service. Because she performed part of the necessary creditable years in the reserves, however, wife may not receive retirement benefits until she attains age 60.

Neither party challenges the trial court findings that wife is entitled to 284% of husband's military pension and that husband was entitled to 7.2% of wife's military pension. The court further found, as pertinent here, that:

The Court having received the evidence concerning the value of each hereby offsets the net present value of the [wife's] military reserve retirement against the [husband's] military retirement, and therefore, orders the [husband] to pay 16.2% of his disposable military retirement pay to the [wife].

The effect of the offset is that wife receives $320 per month as her share of husband's military pension instead of $462.07 per month.

I.

Wife contends that the trial court was preempted by federal law from using the "net present value" method to distribute her pension. We disagree.

The federal preemption that previously existed was removed by the Uniformed Services Former Spouses Protection Act (USFSPA), 10 U.S.C. § 1408 (1982), in order to permit state courts to apply their own laws in determining whether military retired or retainer pay is divisible in a dissolution of marriage action. In re Marriage of Heupel, 936 P.2d 561 (Colo.1997); see In re Marriage of Gallo, 752 P.2d 47 (Colo.1988).

In Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2028, 104 L.Ed.2d 675 (1989), preemption was found based upon a specific provision in the definitional section of the USFSPA expressly excluding consideration of a service member's disability pay from "disposable retired or retainer pay." See 10 U.S.C. § 1408(a)(4)(B) (1994). The state court is thus precluded from dividing a veteran's disability retirement pay as marital property. In re Marriage of Franz, 831 P.2d 917 (Colo.App.1992).

However, our courts have already concluded that nothing in Mansell prohibits state courts from dividing non-disability military financial benefits between the parties when their marriage is dissolved. In re Marriage of McElroy, 905 P.2d 1016 (Colo.App.1995); see In re Marriage of Heupel, supra (rejecting argument that Mansell requires that the USFSPA be narrowly construed).

It is also settled in this jurisdiction that a non-vested military pension constitutes marital property subject to division under § 14-10-1183, C.R.8.1999. In re Marriage of McElroy, supra; see also In re Marriage of Hunt, 909 P.2d 525 (Colo.1995) (post-dissolution increases in pension benefits established under nonvested and unmatured military pension plan constitute marital property).

For these reasons and the reasons discussed below, we reject wife's argument that the court is preempted from using the net present value method to distribute her unma-tured military pension.

IL.

Wife also argues that, because she was not entitled to retire immediately, the trial court abused its discretion when it offset the net present values of the parties' pensions. Again, we disagree.

The determination of the appropriate method to value a vested but unmatured pension is within the discretion of the trial court. In re Marriage of Grubb, 745 P.2d 661 (Colo.1987). While a court is not precluded from using different methods to distribute the parties' pensions, the ultimate choice must be made after considering the particular needs and cireumstances of the parties. In re Marriage of Kelm, 912 P.2d 545 (Colo.1996).

Under the net present value method, the trial court, guided by actuarial data, values the future benefit after considering a number of factors, including certain risks, and accords a present value to the future benefit. This method is used most often when the value of the pension is low. In re Marriage of Hunt, supra.

Once the trial court has determined the present value of the pension, it may award the pension to the military spouse and give the other spouse additional marital property to offset that award. The present cash value method may be preferred if the employee-spouse's pension rights can be valued accurately and if the marital estate includes sufficient equivalent property available to the other spouse to offset the award of the pension plan to the military spouse. In re Marriage of Gallo, supra.

While the length-of-service requirements are more complex for individuals whose military retirement system service includes service in a reserve component, wife has cited no authority that such pensions should be treated any differently or excluded from the above rules. See generally 3 Valuation and Distribution of Marital Property §§ 46.30 through 46.85 (J. Mccahey ed.1999) (article by W. Troyan).

Here, by mutual agreement of the parties, a present value analysis of each spouse's pension was prepared by an expert and presented to the court. Wife does not dispute the values or percentages of marital property assigned by that expert. Because the court offset the pensions based upon their respective values only, the court's recognition that the survivor benefit would provide wife with an additional advantage does not constitute error.

Although there is the risk that wife will not live to receive her pension, the countervailing benefit to wife is that the post-dissolution enhancements of her benefits resulting from promotions and continued service will remain wife's property under the court's order. See In re Marriage of Kelm, supra. Further, the fact that the court reserved jurisdiction to distribute the equity in certain real estate did not require it to reserve jurisdiction over wife's pension.

Accordingly, we conclude that the trial court properly applied existing law and it was within its discretion to make a present distribution of both parties' respective pen-siong.

TIL.

Wife also contends that the trial court erred in ruling that it had no authority to distribute the retirement pay that husband received during the year that the parties were separated. We perceive no reversible error.

The statutory requirement that property be valued as of the date of decree is mandatory unless there is a showing of dissipation, in which case such property must be valued as of the time of its dissipation. In re Marriage of Finer, 920 P.2d 325 (Colo.App.1996).

Here, wife concedes that there was no evidence presented to establish the amount of retirement funds received by husband or the period during which they were received. In addition, there was no evidence that either party had dissipated any funds that had been received.

Even though the funds in question were marital property, inasmuch as there was no showing that they were used improperly or for illegitimate purposes, there was no basis for valuation or distribution of an asset that was not shown to exist at the time of the decree. See In re Marriage of Finer, supra.

Judgment affirmed.

Judge ROTHENBERG and Judge ROY concur.


author: Judge TAUBMAN.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James B. REA, Defendant-Appellant.
    No. 97CA2111.
    Colorado Court of Appeals, Div. V.
    Sept. 30, 1999.
    Rehearing Denied Dec. 9, 1999.
    Certiorari Denied Aug. 21, 2000.

      Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, John Daniel Dailey, Assistant Solicitor General, Miles Madorin, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Law Office of Marks & Hostetler, Richard A. Hostetler, Denver, Colorado, for Defendant-Appellant.

       Justice COATS does not participate.

   Opinion by

Judge TAUBMAN.

Defendant, James Rea, appeals the judgment of conviction entered upon a jury verdict finding him guilty of failing to account truthfully for and pay over sales and transit taxes. We affirm.

Defendant operated a guest ranch in Pit-kin County from 1990 to 1995 that sold lodging, recreational activities, food, and retail goods. Inasmuch as the ranch qualified as a retailer under the state sales tax code, defendant was required to collect, account for, and pay over sales and transit taxes to the Department of Revenue.

In 1992, defendant obtained a tax license and collected state and local sales taxes from 1992 until 1995. However, he failed to file tax returns and pay the collected taxes on the twentieth of each month to the executive director of the Department of Revenue as required by the state sales tax statute.

In 1994, the Department of Revenue began investigating defendant for failure to pay sales taxes. According to an agent, defendant admitted that he had failed to remit sales taxes because he had experienced financial difficulty and was unable to pay over the taxes without jeopardizing the business. After this conversation, the agent initiated a criminal investigation.

By 1995, defendant had not remitted the overdue sales taxes, so the Department of Revenue initiated formal collection procedures. Defendant ultimately paid the taxes that were past due, but he, nevertheless, was tried and found guilty of failing truthfully to account for and pay over sales and transit takes pursuant to § 89-21-118(2), CRS. 1999.

I. Construction of Statute to Include Timely Payment Requirement

Defendant first asserts that the trial court erred by interpreting § 89-21-1182) as requiring payment of taxes when due according to the schedule set forth in the sales tax statute. We are not persuaded.

Section 39-21-118(2) makes it a felony for individuals willfully to fail to collect, truthfully account for, or pay over any tax where the tax code imposes such a duty. Prior to trial, defendant contended that this statute did not contain a time element and that, because the statute did not define the offense as the failure to pay taxes when due, no such timeliness element could be reasonably inferred.

The trial court, however, read § 89-21-118(2) in conjunction with other provisions of the tax code and interpreted it as requiring payment when such payment is due under the sales tax provision of the code. Thus, the trial court defined the offense in the jury instructions as the failure truthfully to account for or pay over sales taxes at the time required by law. We agree with the trial court's interpretation.

Interpretation of a statute is a question of law, and an appellate court is not bound by the trial court's interpretation. Fogg v. Macaluso, 892 P.2d 271 (Colo.1995).

In construing statutory provisions, our obligation is to give full effect to the legislative intent. Colby v. Progressive Casualty Insurance Co., 928 P.2d 1298 (Colo.1996).

-If the legislative intent is conveyed by the commonly understood and accepted meaning of the statutory language, we proceed no further. However, if the statutory language is ambiguous, we look to principles of statutory construction to ascertain legislative intent. Gorman v. Tucker, 961 P.2d 1126 (Colo.1998).

In interpreting a comprehensive legislative scheme, we must give meaning to all of its parts and construe the statutory provisions to further the legislative intent. Hud-dleston v. Grand County Board of Equalization, 913 P.2d 15 (Colo.1996).

Thus, a statute must be read and considered as a whole and should be construed to give consistent, harmonious, and sensible effect to all of its parts. Brooke v. Restaurant Services, Inc., 906 P.2d 66 (Colo.1995).

Here, defendant argues the plain meaning of § 39-21-118(2) is that, in regard to avoiding criminal liability, an individual who has collected taxes on behalf of the state is faced with no time limit in remitting those taxes. Thus, according to defendant, one who pays over collected taxes at any time after the due date, although subject to civil fines and fees for tardiness, would not be subject to erimi-nal prosecution under this section.

Defendant asserts that the differences in the language used in § 89-21-118(2) and § 39-21-1188), C.R.S.1999, demonstrate a purposeful exclusion of the timely payment requirement in § 39-21-118(2). We are not persuaded.

Section 39-21-118(2), C.R.S.1999, provides:

Any person required under any title administered by the department to collect, account for, or pay over any tax, who willfully fails to collect or truthfully account for or pay over such tax, ... is guilty of a class 5 felony....

Section 89-21-1188) provides that any person who is required to pay any tax or estimated tax who willfully fails to do so "at the time or times required by law or regulations," is guilty of a misdemeanor.

Colorado revenue statutes provide that sales taxes are collected and held in trust for payment to the Department of Revenue. Such taxes must be paid to the Department on the twentieth day of the month following the month in which the taxes were collected. See §§ 39-26-105(1)(a) and 39-86-118(1), C.R.S.1999.

Defendant urges that, because this explicit timely payment requirement is contained in § 39-21-1188), but not in § 389-21-118(2), the General Assembly purposefully rejected any timely payment requirement for § 39-21-118(2). If we were to view § 89-21-118(2) and § 89-21-118(8) in a vacuum, this contention might be persuasive. However, in light of the broader sales tax scheme discussed below, we do not consider the language differences between § 39-21-118(2) and § 89-21-1188) as being dispositive of legislative intent.

Further, as discussed below, we conclude that § 89-21-118(8) does not apply to violations of the sales tax code.

We recognize that the plain language of § 839-21-118(2) does not explicitly provide for a timeliness element. However, the lack of an express timeliness element is not dis-positive in discerning the statute's meaning. See Gorman v. Tucker, supra.

Because this penalty provision is one part of a greater statutory scheme, we must read and consider the tax statute as a whole and construe it to give consistent, harmonious, and sensible effect to all of its parts. See Brooke v. Restaurant Services, Inc., supra.

Section 39-26-105, C.R.S.1999, generally defines the obligations of retailers/vendors and, as noted, imposes a legal duty on retailers to pay over sales taxes before the twentieth day of each month.

Section 39-26-120(1), C.R.S.1999, makes it unlawful to fail to pay over sales taxes in a timely manner. This statute provides, in pertinent part: "It is unlawfil for any retailer or vendor to ... fail and refuse to make payment to the executive director of the department of revenue of any taxes collected or due the state. ..."

Further, § 39-26-120(2) provides that: "Any person willfully violating any of the provisions of this section is guilty of a felony.”

This statute imposes criminal liability for willfully failing to "make payment" of sales taxes "due the state." Thus, § 89-26-120 indicates that an individual subjects himself or herself to liability for a felony by willfully failing to "make payment" of sales taxes when such taxes become due to the state. In addition, § 89-26-121, C.R.8.1999, which further defines the penalty for violating § 89-26-120, provides: "[AJny person guilty of a felony, as defined and declared in this part 1, upon conviction thereof, shall be punished as provided by section 89-21-118."

Accordingly, this language makes it clear that the General Assembly intended that one who willfully fails to pay sales taxes due the state at the time required may be charged under $ 39-21-118(2) and prosecuted for commission of a felony.

Construing § 39-21-118(2) together with § 39-26-105, § 89-26-120, and § 89-26-121, we are convineed that the General Assembly intended to premise liability on a failure to make timely payment of sales tax monies collected. Decisions from other jurisdictions support this conclusion.

Thus, for example, in Commonwealth v. Boyle, 533 Pa. 360, 625 A.2d 616 (1993), although a eriminal provision of the sales tax code did not expressly include a timeliness requirement, the Pennsylvania Supreme Court affirmed the defendant's conviction for failure to file sales tax returns because relevant civil provisions of the tax code specified when the sales tax returns were due. The court rejected the defendant's contention that there was no timeliness element in the state statute because it did not contain language such as, "at the time or times required by law or regulations," as is contained in 26 U.S.C. § 72083, part of the Internal Revenue Code. The court concluded that the omission of such language, identical to that contained in § 39-21-118(8), did not compel the conclusion that a timely payment requirement was not included as part of the statute under which defendant was convicted. Thus, the rationale of the Boyle court supports our conclusion that $ 39-21-118(2) contains a timely payment requirement. See also State v. Averyt, 179 Ariz. 123, 876 P.2d 1158 (Ariz.App.1994); Commonwealth v. Perlman, 392 Pa.Super. 1, 572 A.2d 2 (1990).

Nevertheless, defendant contends that we should construe § 39-21-118(2) as exposing an individual to criminal Hability under this section only if he or she "ultimately" fails to pay over sales taxes. However, such construction of the statute would lead to absurd results, and thus, we reject it. See Hall v. Walter, 969 P.2d 224 (Colo.1998) (statutory construction that leads to absurd results will not be followed).

Defendant's proposed construction of the statute would allow individuals willfully to fail to pay over sales taxes when legally required to do so, but nonetheless escape criminal liability under this section by paying any deficiencies at some later date. This interpretation could encourage non-compliance until such time as, for instance, an individual suspects he or she is under criminal investigation.

Defendant's construction contemplates an unlimited amount of time for individuals to pay over funds belonging to the state with no potential for criminal lability under this provision. Thus, a prosecutor might not be able to charge an individual under this statute until evidence existed that the individual would never pay over the owed taxes. In addition, the required eriminal intent of willfulness would be nearly impossible to prove because the prosecution would have to show that an individual intended never to pay. Such a construction of this provision would render it virtually unenforceable.

We also reject defendant's contention that his interpretation of § 39-21-118(2) will not lead to an absurd result because of the presence of § 39-21-118(1), C.R.S.1999. Specifically, defendant asserts that he could have been prosecuted under this section, which provides, in pertinent part, that "any person who willfully attempts in any manner to evade or defeat any tax administered by the Department or the payment thereof ... is guilty of a Class 5 felony...." We disagree.

Section 39-21-118(1), like § 39-21-1182), contains no timely payment requirement. Accordingly, if defendant had been prosecuted under the former statute, he could raise the same timely payment requirement arguments he raises now. '

Defendant further contends that the rule of lenity applies because there are two reasonable interpretations of the statute at issue here. We disagree.

When a tax statute is ambiguous, courts must interpret the statute in favor of the taxpayer. See Douglas County Board of Equalization v. Fidelity Castle Pines, Ltd., 890 P.2d 119 (Colo.1995); Leprino v. Huddleston, 902 P.2d 962 (Colo.App.1995). However, where no ambiguity exists, the rule of lenity does not apply. See People v. Swain, 959 P.2d 426 (Colo.1998); People v. Gonzales, 973 P.2d 732 (Colo.App.1999). That is the case here.

In a final challenge to the trial court's construction of the statute, defendant asserts that inferring a timely payment requirement in § 39-21-118(2) would render the statute unconstitutionally vague, thus violating federal and state due process requirements. We disagree.

In reviewing a statute adopted by the General Assembly, we presume that it comports with constitutional standards. People v. Holmes, 959 P.2d 406 (Colo.1998).

When a statute is challenged as void for vagueness, the essential inquiry is whether the statute describes the forbidden conduct in terms so vague that persons of common intelligence cannot readily understand its meaning and application. People v. Gross, 830 P.2d 933, 937 (Colo.1992).

Although the statute must define the criminal offense with sufficient definiteness to give fair warning of the prohibited conduct, it must also be general enough to address the problem under varied cireum-stances and during changing times. People v. Longoria, 862 P.2d 266 (Colo.1993).

Here, defendant contends that, if a timely payment requirement is inferred as part of the statute, then it would fail to give adequate notice of its requirements to individuals who may be subject to prosecution because it would not specify when a taxpayer becomes liable for failure to pay over sales taxes.

However, inferring a timeliness element in § 39-21-118(2) that is consistent with the sales tax payment schedule serves to clarify the statute with respect to the point at which criminal lability attaches. This construction provides sufficient definiteness to give fair warning of the prohibited conduct. The timeliness requirements of § 39-21-1182), § 89-26-105, and § 89-26-120 are consistent under this interpretation and reinforce each other. Thus, persons of common intelligence can readily understand the provision's meaning and application.

II. Jury Instructions Concerning "Willfully"

Defendant also contends that the trial court erred in instructing the jury that he "willfully" violated § 39-21-1182), if he knew of the legal duty to account for and pay over sales taxes as required by law, and then knowingly failed to do so. We find no reversible error.

Prior to trial, the prosecution filed a motion asking the court to define "willfully" as it applied to § 39-21-118(2). Defendant responded by asserting that the proper standard was that used in Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991). In Cheek, the Supreme Court determined that, at least in cases of certain federal criminal tax offenses, to establish "willfulness," the federal government must prove that the law imposed a duty on the defendant, that the defendant knew of that duty, and that he or she voluntarily and intentionally violated that duty.

Over the prosecution's objection, the trial court agreed that the Cheek standard was proper here, and gave an instruction requiring proof by the prosecution that defendant knew he had a legal duty to account truthfully for and pay over sales taxes, and that he knowingly failed to do so at the time such taxes became due. In doing so, the trial court rejected defendant's interpretation of the Cheek holding as requiring the prosecution to prove that defendant knew that violating his legal duty constituted a crime.

The People urge us to disapprove the trial court's application of the Cheek standard. They assert that the trial court erred by adopting the willfulness standard espoused in Cheek, because the sales tax at issue here is a trust tax, and the Cheek standard does not apply to trust taxes. However, in light of our conclusion below that the application of Cheek was not reversible error, we decline to address this contention.

Nevertheless, we reject defendant's contention that the trial court erred in holding that Cheek does not require proof that defendant knew that the violation of a known legal duty would result in criminal liability. In Cheek, the Supreme Court explained that the defendant must simply be aware of the legal duty at issue, as opposed to the situation where an individual has a good-faith belief that he or she "was not violating any of the provisions of the tax laws.... This is so because one cannot be aware that the law imposes a duty upon him and yet be ignorant of it, misunderstand the law, or believe that the duty does not exist." Cheek v. United States, supra, 498 U.S. at 202-03, 111 S.Ct. at 610-11, 112 L.Ed.2d at 630 (emphasis added).

Thus, it was sufficient for the prosecution to show that defendant knew he had a legal duty to account for and pay over sales taxes on time, and that he knowingly failed to do so, regardless of whether defendant was aware that his tax violations would subject him to criminal liability.

IIL Lesser Offense Instruction

Defendant next asserts that the trial court erred by refusing to instruct the jury on the misdemeanor offense described in § 39-21-118(8) as a lesser, non-included offense. We are not persuaded.

-A defendant is entitled to an instruction on a lesser non-included offense as a theory of the case instruction as long as there is a rational basis in the evidence to support an acquittal of the greater offense and a conviction of the lesser offense. People v. Garcia, 940 P.2d 357 (Colo.1997).

The rationale for allowing such an instruction is to ensure that a jury does not convict a defendant of an offense greater than the one actually committed merely because the greater offense is the only crime charged and the jury is aware that some crime was committed. People v. Garcia, supra.

As noted above, § 39-21-118(8) essentially provides that any person who is required to pay any tax or estimated tax, or to make a return, keep records, or supply information, and who willfully fails to do so at the time or times required by law, is guilty of a misdemeanor.

Here, the trial court determined that § 39-21-1188) did not apply to defendant's conduct. We agree.

We concur with the People's contention that § 89-21-118(8) does not apply to sales taxes. Both § 39-21-1182) and § 39-21-118(8) regulate the obligation to file tax returns and pay taxes. Nevertheless, it is illogical to assume that the General Assembly intended to punish identical conduct as both a felony and a misdemeanor. Accordingly, we conclude that these statutes cover different behavior and that $ 39-21-1182) specifically applies to sales and transit taxes, those at issue here.

The difference in language between the two statutes is instructive. Section 39-21-118(2) applies to persons required "to collect, account for, or pay over" any tax. Such language is apposite for sales and transit taxes in which a vendor serves as a fiduciary by collecting the taxes from customers, with the responsibility then to "pay over" such taxes to the Department of Revenue.

In contrast, § 89-21-1188) applies to any person required "to pay any tax or estimated tax," among other things, but does not refer to the collection or paying over of taxes. Accordingly, we conclude that these two subsections were intended to encompass different conduct.

As discussed above, the General Assembly set forth the criminal sanctions for failing to pay over sales taxes in $ 39-26-120(1) and § 39-26-120(2). These sections provide that anyone who willfully engages in this conduct is guilty of a felony. In addition, § 89-26-121, which further defines the penalty for violating § 39-26-120, refers to § 89-21-118 in the context of a felony conviction.

Thus, we find no indication that the General Assembly intended the misdemeanor provision in § 89-21-118(8) to apply to violations of the sales tax code. Accordingly, defendant's conduct did not fall within the purview of § 89-21-118(8), and no instruction on the offense contained therein was warranted.

IV. Sufficiency of Evidence

Defendant finally asserts that the evidence was insufficient to support his conviction under § 89-21-1182). persuaded. We are not

A challenge to the sufficiency of the evidence requires a reviewing court to determine whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conviction by a reasonable person that the defendant is guilty of the crime charged beyond a reasonable doubt. People v. Inman, 950 P.2d 640 (Colo.App.1997).

Here, defendant bases his argument on the premise that § 89-21-118(2) does not subject him to criminal liability for untimely payment; and asserts that, because he eventually paid over the sales taxes that he owed the state, the evidence is insufficient to convict him.

We have determined, however, that defendant subjected himself to eriminal Hability when he willfully failed to pay his sales taxes when they became due. The substantial evidence before us is sufficient to support defendant's conviction under this analysis.

The judgment is affirmed.

Judge PLANK and Judge KAPELKE concur.


author: Opinion by Judge KAPELKE,

text:
    Marla GROSS, individually and as surviving spouse of Gary A. Gross, Plaintiff-Appellant and Cross-Appellee, v. B.G. INC., d/b/a Drink-N-Dawg, Defendant-Appellee and Cross-Appellant.
    No. 98CA0786.
    Colorado Court of Appeals, Div. IV.
    Sept. 30, 1999.
    Certiorari Granted Aug. 21, 2000.

      J.J. Vick, Fort Collins, Colorado, for Plaintiff-Appellant and Cross-Appellee.
    Harris, Karstaedt, Jamison & Powers, P.C., A. Peter Gregory, Michael Brice Sullivan, Englewood, Colorado, for Defendant, Appellee and Cross-Appellant.
   Opinion by Judge KAPELKE,

In this wrongful death action, plaintiff, Marla Gross, individually and as surviving spouse of Gary A. Gross (decedent), appeals from the judgment of the trial court entered upon a jury verdict in favor of defendant, B.G. Inc., d/b/a Drink-n-Dawg. We reverse and remand with directions.

Decedent received fatal injuries in a car accident that occurred while he was a passenger in a car driven by an individual who had been drinking alcoholic beverages at defendant's bar shortly before the accident.

In this action, plaintiff alleged that a bartender employed by defendant willfully and knowingly served an alcoholic beverage to the driver when he was visibly intoxicated, and that service of the beverage was a cause of decedent's death. Plaintiff's sole claim is for solatium damages 'of $50,000 as provided for in § 13-21-208.5, C.R.$.1999.

Although not a party to this action, the driver was designated as a nonparty at fault, pursuant to § 18-21-111.5, C.R.8.1999.

At the conclusion of the trial, the jury returned a verdict determining the percentages of fault as follows: decedent-25%; defendant-20%; and the nonparty driver-55% The trial court entered judgment for defendant based on the fact that the amount of fault the jury attributed to defendant was less than that attributed to the decedent. This appeal followed.

I.

Plaintiff contends that, because the combined negligence of defendant and the designated nonparty driver exceeded that of decedent, the trial court erred in entering judgment for defendant. We agree.

In Mountain Mobile Mix, Inc. v. Gifford, 660 P.2d 888 (Colo.1983), our supreme court held that, under § 13-21-111.5, the percentage of plaintiff's negligence must be compared to that of the combined negligence of the defendants. Accordingly, the court held that if the extent of plaintiff's negligence was less than the combined percentage of negligence of multiple defendants, plaintiff was entitled to recover damages from each defendant to the extent of his or her pro rata share of responsibility, even if the plaintiff's negligence was greater than that of a particular defendant.

More recently, in Inland/Riggle Oil Co. v. Painter, 925 P.2d 1083 (Colo.1996), the court applied the same analysis to the situation in which the jury determines that the combined negligence of the defendant and the designated nonparty exceeds the extent of negligence of the plaintiff, This is the precise situation here.

Thus, because the combined negligence of the designated nonparty driver (55%) and defendant (20%) was greater than that of plaintiff's decedent, plaintiff was entitled to a judgment against defendant.

Defendant urges, however, that even if it is liable for damages based on the jury's verdict, the amount of such damages must be limited to $10,000, which represents 20% of the statutory $50,000 amount for a solatium recovery. We reject this contention.

Section 183-21-208.5, C.R.S.1999, which provides for a $50,000 solace award in wrongful death cases states:

In any case arising under section 13-21-202, the persons entitled to sue under the provisions of section 18-21-201(1) may elect in writing to sue for and recover a solatium in the amount of fifty thousand dollars. Such solatium amount shall be in addition to economic damages and to reasonable funeral, burial, interment, or cremation expenses, which expenses may also be recovered in an action under this seetion. Such solatium amount shall be in lieu of noneconomic damages recoverable under section 18-21-2038 and shall be awarded upon a finding or admission of the defendant's liability for the wrongful death. (emphasis added)

In Dewey v. Hardy, 917 P.2d 305 (Colo.App.1995), a division of this court considered the issue of whether the amount of statutory solatium damages may be reduced by operation of the comparative fault statute, § 13-21-111, C.R.S.1999, such that the award against a defendant would be reduced based on the percentage of his or her fault.

As the division noted in Dewey, by enacting the solatium statute, the General Assembly intended that plaintiffs would be able to recover a fixed award upon establishing a defendant's liability. If we were to interpret the statute to allow for a further reduction of the statutory lump sum amount by applying comparative fault principles, the result would be to encourage defendants to engage in protracted litigation on the issue of liability. This would, as the division stressed in Dewey, defeat the purpose of the statute. Accordingly, we agree with the conclusion in Dewey that the General Assembly intended that the solatium award be exempt from reduction by operation of the comparative fault statute.

IL

In its cross-appeal, defendant asserts that, in the event we reverse, the matter must nevertheless be remanded for retrial because of errors committed by the trial court. We perceive no basis for requiring a retrial.

A.

Defendant first claims the court erred in refusing to give two instructions it tendered regarding the elements of a claim against a liquor licensee under § 12-47-801(8)(a)(1), C.R.S.1999, for serving an alcoholic beverage to a person who is under the age of 21 or "visibly intoxicated." We disagree.

According to defendant, relying on Dickman v. Jackalope, Inc., 870 P.2d 1261 (Colo.App.1994), the tendered instructions were needed to inform the jury that the statutory terms "willfully and knowingly" apply "not only to the culpable mental state necessary to physically provide the drink, but also apply to the licensee's knowledge of the state of the patron at the time the drink was served."

A trial court may properly refuse proffered instructions if the other instructions adequately inform the jury of the applicable law. Vu v. Fouts, 924 P.2d 1129 (Colo.App.1996).

Here, the instructions given by the court in this regard were phrased in the language of § 12-47-801(8)(a)(I) and accurately stated the law. Under these circumstances, we find no error in the court's decision not to give the instructions proposed by defendant.

B.

Defendant also urges that the court erred in not giving its tendered instruction that "a patron of a bar has a duty to protect himself from the effects of excessive drinking of himself or his companion." While we agree that the stated legal principle is accurate, see Thomas v. Pete's Satire, Inc., 717 P.2d 509 (Colo.App.1985), we nevertheless agree with the trial court's conclusion that the other instructions given-including those addressing comparative negligence and assumption of the risk-adequately covered the subject. We thus find no error in the court's rejection of this proffered instruction.

C.

Finally, we also reject defendant's contention that a new trial is required because plaintiff's counsel, in closing argument, asked the jury to find in plaintiffs favor "because not to do so would be yet another tragedy on top of the tragedy that already happened on September 26." This was, according to defendant, an improper plea to the sympathy of the jury.

Under all the cireumstances, including the fact that the statement was an isolated one and that the jury was specifically instructed not to be influenced by either sympathy for or prejudice against any party, we find no basis for reversal.

We reach the same conclusion with respect to plaintiff's argument that certain of the remarks of defense counsel in closing argument misstated the law. The court instructed the jury that it was to base its decision on the law as explained by the court itself. Because the court's instructions properly explained the applicable legal principles, the challenged comments of counsel in closing do not warrant mandating a new trial.

The judgment is reversed, and the cause is remanded to the trial court for entry of judgment in favor of plaintiff and against defendant in the amount of $50,000.

Judge RULAND and Judge BRIGGS concur.