author: Judge ROTHENBERCG.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Stephen GRACE, Defendant-Appellant.
    No. 00CA0114.
    Colorado Court of Appeals, Div. III.
    Dec. 20, 2001.
    Rehearing Denied Feb. 21, 2002.
    Certiorari Denied Oct. 15, 2002.

      Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

       Justice COATS does not participate,
      Justice KOURLIS would grant as to the following issue:
      Whether the court of appeals erred in concluding that a defendant has a constitutional due process right to be present in person when the trial court and counsel respond to notes concerning questions of law from a jury during deliberations.

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

   Opinion by

Judge ROTHENBERCG.

Defendant, Stephen Grace, appeals the judgment of conviction entered on a jury verdict finding him guilty of distribution of a schedule II controlled substance and attempt to possess a schedule II controlled substance. We affirm.

In January 1999, while defendant was standing on a sidewalk, two undercover police officers made eye contact with him and asked him, using slang terminology, if anyone was selling drugs. Defendant entered the officers' unmarked car and directed them to an apartment where drugs could be bought. There, defendant encountered the woman who rented the apartment (the renter), who let him and the undercover officers inside. After their arrival, another man (the seller) entered the apartment. The undercover officers had $20 to buy the drugs, and defendant gave one of the officers $7 to purchase some. The officer used his $20 and defendant's $7 to buy crack cocaine from the seller.

After the purchase was made by the undercover officer, a signal was given to other police officers waiting outside and they arrested defendant, the renter, and the seller. No drugs were found on defendant at the time of his arrest.

The case proceeded to trial and during jury deliberations, the court received two written requests from the jury. Defendant was absent during this portion of the proceeding, but his counsel was present and did not object to the court's responses.

I. Defendant's Right To Be Present

Defendant contends he was denied his constitutional right to be present when the court responded to the requests from the jury during deliberations We agree, but conclude the denial does not require reversal.

A. Constitutional Principles

An accused has a constitutional right to be present at trial, U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16, and this right applies at all critical stages of a erimi-nal trial. Luu v. People, 841 P.2d 271 (Colo.1992).

A communication between the court and the jury during deliberations constitutes a critical stage of a trial. Key v. People, 865 P.2d 822 (Colo.1994)(jury deliberations are a critical stage of trial for the purpose of analyzing a deprivation of the right to counsel).

Therefore, we conclude defendant had a constitutional right to be present while the trial court was communicating with the jury during deliberations, and that his constitutional right was denied.

B. Standard of Review

We next address the standard of review under which to analyze the deprivation. Defendant asserts that the appropriate standard of review is structural error, requiring automatic reversal under either the United States Constitution, amendments VI and XIV, or the Colorado Constitution article II, §§ 16 and 25. We disagree.

There are two types of constitutional errors: structural errors and trial errors. A structural error is a defect affecting the framework within which the trial proceeds and requires automatic reversal. Blecha v. People, 962 P.2d 931 (Colo.1998). Examples of structural errors include the total deprivation of the right to counsel and a biased trial judge. Arizona v. Fulminante, 499 U.S. 279, 111 S8.Ct. 1246, 113 L.Ed.2d 302 (1991); see also Luu v. People, supra.

A trial error is an error in the trial process itself. It is an error that "occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." Arizona v. Fulminante, supra, 499 U.S. at 307-08, 111 S.Ct. at 1264, 113 L.Ed.2d at 330; see also Blecha v. People, supra. Examples of trial error include the giving of jury instructions containing an erroneous conclusive presumption, and a statement made by the prosecutor improperly commenting on the defendant's silence at trial. See Arizona v. Fulminante, supra.

The Colorado Supreme Court has not addressed the appropriate standard to apply under the Colorado Constitution when the defendant is deprived of his or her right to be present at trial. However, under the United States Constitution, such deprivations are analyzed under the harmless error standard. Arizona v. Fulminante, supra (citing Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1988)); Luu v. People, supra.

Under this standard, reversal is not required if the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 LEd.2d 705 (1967); Leonardo v. People, 728 P.2d 1252 (Colo.1986). A constitutional error is harmless when the reviewing court is confident beyond a reasonable doubt that the error did not contribute to the verdict. Griego v. People, 19 P.3d 1 (Colo.2001).

If from a review of the entire record, there appears to be a reasonable probability the defendant could have been prejudiced, the error cannot be harmless. Key v. People, supra. "[If the court has properly responded to a jury's inquiry [during deliberations], there is no prejudice and the communication is necessarily harmless beyond a reasonable doubt." People v. Romero, supra, 767 P.2d at 784.

We conclude the same standard should be applied under the state constitution. Accordingly, we follow the United States Supreme Court and apply the harmless beyond a reasonable doubt standard for analyzing alleged deprivations of the right to be present when the court responds to questions posed by the jury during deliberations. See People v. Romero, 767 P.2d 782 (Colo.App.1988)(assuming there was constitutional error where trial court communicated with the jury without the defendant present; panel concluded error was harmless beyond a reasonable doubt because defense counsel was present, the court's response to the jury was correct, and counsel did not object to the response).

C. Trial Court's Responses to the Jury's Requests

Defendant maintains that reversal is required here because the trial court responded to two written requests from the jury during its deliberations without bringing him before the court. We conclude defendant's absence was harmless beyond a reasonable doubt.

1. First Request

The jury's first written request stated: "We would like the copy of [the transcript of the officer's] previous statement [made at the preliminary hearing]." The Jurors did not ask to have any portion of the trial transcript read back to them.

The trial court responded: "I cannot give you the copy you requested. It was not admitted into evidence."

A jury should not be shown exhibits that have not been admitted into evidence. People v. Bowman, 738 P.2d 387 (Colo.App. 1987).

Because the jurors asked for a portion of the transeript from the preliminary hearing that had not been admitted into evidence, the trial court responded properly to the request. Defendant's presence would not have changed the court's response, and its response in his absence did not prejudice defendant. Thus, while defendant should have been present during the discussion of the jury's written request, we conclude his absence was harmless beyond a reasonable doubt. See People v. Romero, supra.

2. Second Request

The jury's second written request stated: "We're at a point where we are deadlocked on two issues. One person doesn't believe in the law and won't base a judgment on the law. What are our options?"

After conferring with counsel, the trial court sent the following response: "You should continue to deliberate to see if you can resolve the issues."

In responding to the jury regarding a possible deadlock, the trial court may not give an instruction that is potentially coercive. People v. Raglin, 21 P.3d 419 (Colo.App.2000). However, the court may issue a modified-Allen instruction informing the jurors that: (1) they should attempt to reach a unanimous verdiet; (2) each juror should decide the case for himself or herself after impartial consideration with the others; (8) they should not hesitate to re-examine their views and change their opinions if convinced they are incorrect; and (4) they should not surrender their honest convictions solely because of the opinions of other jurors or for the purpose of returning a verdict. Allen v. People, 660 P.2d 896 (Colo.1983); see also CJI-Crim. 38:14 (1988).

The trial court also must inform the jurors that they will be excused and a mistrial declared if they cannot reach a unanimous verdict. But, the exact wording of such instruction is within the discretion of the trial court. People v. Raglin, supra; see also People v. Lewis, 676 P.2d 682 (Colo.1984).

In Raglin, the jury submitted several notes to the trial court expressing concern about the possible bias of one juror and that juror's refusal to abide by the law in arriving at a decision. Over the defense's objection, the trial court submitted the following response:

I would ask you at this time to please go back to the jury room and resume your deliberations. If after you have tried that you believe that you're unable to reach a unanimous verdict, you can let us know when you have decided that, and we'll go from there.

People v. Raglin, supra, 21 P.8d at 423. A panel of this court concluded no error had occurred under those cireumstances.

Here, when the jury inquired about its options regarding a deadlock, the trial court's response to the request was appropriate and not unduly coercive. Although defendant was absent, his counsel was present and did not object to the court's response. See People v. Vega, 870 P.2d 549 (Colo.App.1993)(concluding any error was harmless when the trial court responded to jury questions posed during deliberations in the presence of defense counsel but without defendant present), aff'd, 893 P.2d 107 (Colo.1995).

We therefore conclude that because the trial court's response was proper and defendant suffered no prejudice from his absence, any error caused by that absence during the jury's second communication with the court was harmless beyond a reasonable doubt.

II. Sufficiency of the Evidence

Defendant next contends there was insufficient evidence to support his convictions for distribution and attempted possession of cocaine. We disagree.

Challenges to the sufficiency of the evidence to support a eriminal conviction require a reviewing court to determine whether the evidence, both direct and cireumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crime beyond a reasonable doubt. Taylor v. People, 723 P.2d 131 (Colo.1986).

A. Distribution

As relevant here, the offense of distribution has the following elements and the jury was so instructed: (1) the defendant (2) knowingly (8) distributed (4) a schedule II controlled substance, cocaine. See § 18-18-405(1)(a), C.R.S.2001; CJI-Crim. 86:02 (1988). " 'Distribute' means to deliver other than by administering or dispensing a controlled substance, with or without remuneration." Section 18-18-102(11), C.R.S.2001; CJI-Crim. 36(5) (1983)(definitions); ef. § 12-22-308(12), C.R.9.2001 (defining "distribute" in the context of controlled substances regulation, such as licensing of druggists).

The jury also was instructed on the theory of complicity as follows:

A person is guilty of an offense committed by another person if he is a complicitor. To be guilty as a complicitor, all of the following must be established beyond a reasonable doubt:
1. A crime must have been committed.
2. Another person must have committed all or part of the crime.
3. The defendant must have had knowledge that the other person intended to commit all or part of the crime.
4. The defendant must have had the intent to promote or facilitate the commission of the crime.
5. The defendant must have aided, abetted, advised, or encouraged the other person in the commission or planning of the crime.
Culpability based on complicity means:
A person is legally accountable as principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense.

Section 18-1-603, C.R.S.2001; see also CJI-Crim. 6:04 (1983).

As relevant here, § 18-1-604(1), C.R.S. 2001, establishes an exemption from liability based upon a criminal offense committed by another. It states that "a person shall not be legally accountable for behavior of another constituting an offense if ... the offense is so defined that his conduct is inevitably incidental to its commission." >

Here, defendant claimed that he never assisted or aided the seller but only assisted the officers who were purchasers, and therefore that his conduct was incidental to the commission of the crime. Accordingly, the issue was whether defendant's conduct in assisting the sale of the drugs to the undercover agents was inevitably incident to the seller's commission of the erime of distribution. See People v. Hart, 787 P.2d 186 (Colo.App.1989).

According to the People's evidence, the offense of distribution was committed when the seller sold the drugs to the undercover officer. There was testimony that the undercover officers asked defendant where they could buy drugs, that defendant aided the seller by directing the officers to a location where they could purchase drugs, that defendant took the officers there, and that defendant knew the person who contacted the seller.

These facts, viewed in the light most favorable to the prosecution, were sufficient to indicate that defendant had knowledge of the seller's intent illegally to distribute drugs to the officers, and that defendant intended to facilitate and aid the illegal distribution by bringing the undercover officers to the apartment. See People v. Fenninger, 191 Colo. 334, 552 P.2d 1018 (1976)(the middleman in a drug transaction can be liable as a complicitor if acting for the seller).

Accordingly, we reject defendant's contention that there was insufficient evidence to support his conviction for distribution.

B. Attempted Possession

As relevant here, the elements of attempted possession are that: (1) the defendant (2) knowingly (8) engaged in conduct constituting a substantial step toward the commission of possession of a controlled substance. See § 18-2-101(1), C.R.S.2001; CJI-Crim. 8:01 (1983).

"A substantial step is any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense." Section 18-2101(1); CJI-Crim. 8(2) (1988)(definitions).

The offense of possession of a controlled substance consists of the following elements: (1) the defendant (2) knowingly (8) possessed (4) a controlled substance. Section 18-18-405(1)(a); CJI-Crim. 86:02 (19838).

Here, after directing the officers to the apartment where they could buy the drugs, defendant gave them $7. Testimony from the officers showed, and on appeal defendant admits, that his purpose in combining his money with the officers' money was to obtain crack cocaine. Although no drugs were found on defendant when he was arrested, one of the officers testified he offered defendant a piece of the crack cocaine, which defendant took.

We conclude these facts are sufficient to support the jury's determination that defendant took a substantial step towards possessing a controlled substance when he gave the officers money to buy crack cocaine. Therefore, we reject defendant's contention that there was insufficient evidence to support his conviction for attempted possession of a controlled substance.

III. Chain of Custody

Defendant's final contention is that his convictions must be vacated because an insufficient chain of custody established the piece of crack cocaine admitted into evidence was the actual piece purchased by the officers. Again, we disagree.

The chain of custody rule requires that the proponent of physical evidence connect it to the incident and show the evidence is substantially unchanged. People v. Herrera, 1 P.3d 234 (Colo.App.1999). Onee physical evidence is admitted on a proper foundation, imperfections in the chain of custody go to the weight of the evidence. People v. Lesslie, 939 P.2d 448 (Colo.App.1996).

The requirement that the physical evidence be authentic is satisfied if evidence supports a finding that the item is what its proponent claims. CRE 901(a). This requirement can be satisfied by testimony that the particular evidence is what it is claimed to be. See CRE 901(b)(1).

One of the officers testified that he gave the piece of crack cocaine purchased at the apartment to another officer (the second officer) who placed it in a bag. According to the testifying officer, he was "very comfortable that [they] followed the procedures" in storing the evidence. He testified that when proper police procedures are used, the officer who seizes the drugs places them in a bag and then gives the bag to a second officer who seals the bag. The second officer fills out an envelope identifying where and from whom the drugs were seized and then places the sealed bag in the envelope. The testifying officer stated he was "confident" the piece of crack cocaine admitted at trial was the piece seized at the crime scene.

Nothing in the record suggests the drugs were altered. The trial testimony traced the chain of custody of the drugs, the envelope in evidence contained the bag of crack cocaine, and the following information was written on the envelope: the second officer's name and badge number; the contents ("suspected 'crack' cocaine"); the location of the seizure; and the person from whom the drugs were seized. Under these cireumstances, we conclude the chain of custody was sufficiently established.

Judgment affirmed.

NIETO and KIRSHBAUM, JJ., concur.


source: Caselaw Access Project

author: Judge VOGT.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Guadalupe RODRIGUEZ, Defendant-Appellant.
    No. 99CA2237.
    Colorado Court of Appeals, Div. V.
    Jan. 3, 2002.
    Rehearing Denied April 4, 2002.
    Certiorari Denied Oct. 7, 2002.
    Ken Salazar, Attorney General, Dawn M. Weber, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Kathleen A. Lord, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.
   Opinion by

Judge VOGT.

Defendant, Guadalupe Rodriguez, appeals the sentence imposed upon his burglary conviction. We affirm.

Pursuant to a plea agreement, defendant pled guilty to second degree burglary in exchange for the dismissal of another charge and a recommendation that he be sentenced to probation. He was advised at the provi-dency hearing that, if he were granted probation but later violated it, he could receive up to twenty-four years in prison plus a five-year mandatory parole term.

Defendant was placed on probation. After he violated the conditions of probation, he was sentenced to a four-year term in community corrections. Six months later, defendant was terminated from community corrections for violating the program's conditions. The trial court resentenced him to four years in the Department of Corrections (DOC) plus a five-year period of mandatory parole.

Defendant contends on appeal that the imposition of a five-year period of mandatory parole in addition to the DOC sentence violates constitutional protections against double jeopardy. We disagree,

Defendant's contention is identical to that raised and rejected in People v. Chavez, 32 P.3d 613 (Colo.App.2001). The Chaves division based its analysis on the principle that a sentence may be increased without violating double jeopardy prohibitions if the defendant could have no legitimate expectation of finality in the sentence. It then concluded that, because the defendant was on notice that he could be subject to a longer period of restraint if he were terminated from community corrections, he lacked a legitimate expectation of finality in the length of his community corrections sentence. Therefore, the addition of a three-year mandatory parole term when he was resentenced to DOC did not violate his double jeopardy rights.

Defendant argues that Chavez, a case in which the defendant was proceeding pro se, was wrongly decided and that we can, and should, decline to follow it. While we agree that we are not required to follow Chavez, we are not persuaded that it was wrongly decided. 'We conclude, as did the Chavez division, that imposition of a mandatory parole term in addition to the DOC sentence upon resen-tencing was not a double jeopardy violation.

Defendant does not dispute that punishment can be increased without violating double jeopardy prohibitions when the defendant has no legitimate expectation of finality in his sentence. However, he argues that: (1) in contrast to the statute governing resentenc-ing following probation revocation, § 16-11-206(5), C.R.S.2001, and the statutes at issue in the foreign cases cited in Chavez, the statute governing resentencing after rejection by community corrections, § 17-27-105(1)(e), C.R.S8.2001, did not provide him with notice that his sentence could be increased by the addition of a mandatory parole term; (2) instead, the language in § 17-27-105(1)(e) referring to resentencing "so long as the offender's sentence does not exceed the sentence which was originally imposed" led him to believe that his sentence could not be so increased; and (8) People v. Johnson, 13 P.3d 309 (Colo.2000), which construed § 17-27-105(1)(e) to permit such an increase, was "unforeseeable" and thus, under Bowie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), should not have been relied on by the Chaves division to support the proposition that pre-Johnson defendants were on notice that § 17-27-105(1)(e) could be so construed.

These arguments do not persuade us that defendant could have had a legitimate expectation of finality in his community corrections sentence.

First, as defendant concedes, a community corrections sentence can be revoked for any reason or for no reason at all. See §§ 17-27-108(5), 17-27-104(8), C.R.9.2001; People v. Wilhite, 817 P.2d 1017 (Colo.1991). Thus, defendant could have had no legitimate expectation that he could not be terminated from community corrections and resentenced to DOC.

Second, the statutory scheme in effect at the time defendant pled guilty put him on notice that a DOC prison sentence for his offense would be followed by a mandatory parole period. See § 18-1-105(1)(a)(V)(A), C.R.8.2001.

Third, defendant's reliance on § 17-27-105(1)(e) in support of a contrary understanding is misplaced. Section 17-27-105(1)(e) provides:

If an offender is rejected after acceptance by a community corrections board or a community corrections program, the court may resentence the offender without any further hearing so long as the offender's sentence does not exceed the sentence which was originally imposed upon the offender [emphasis added].

In Craig v. People, 986 P.2d 951 (Colo.1999), the supreme court stated that a reasonable person would understand that a sentence to DOC refers only to the imprisonment component of the sentence and does not include any promises concerning mandatory parole. See also People v. Snare, 7 P.3d 1025 (Colo.App.1999)(mandatory parole period is not part of "sentence" within meaning of § 17-27-105(1)(e)). Even if defendant nevertheless believed that § 17-27-105(1)(e) precluded imposition of a mandatory parole term in addition to the prison component of his sentence, he could at most have believed that such term would not be imposed without a hearing.

Thus, regardless of whether the holding in People v. Johnson, supra, was "unforeseeable," defendant had no legitimate expectation at the time he entered his plea that, if his community corrections sentence were revoked, his DOC prison term of the same length would not be followed by the statutory mandatory parole period. His double jeopardy rights were accordingly not violated.

The sentence is affirmed.

Judge KAPELKE and Judge CASEBOLT concur.


author: Judge KAPELKE.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Rhidale DOTSON, Defendant-Appellant.
    No. 00CA1029.
    Colorado Court of Appeals, Div. V.
    Jan. 17, 2002.
    Rehearing Denied March 7, 2002.
    Certiorari Denied Oct. 7, 2002.

      Ken Salazar, Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Ann M. Aber, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.
   Opinion by

Judge KAPELKE.

Defendant, Rhidale Dotson, appeals from the judgments of conviction and sentences entered upon a jury verdict finding him guilty of aggravated robbery, conspiracy to commit aggravated robbery, second degree assault, and first degree burglary. We affirm, but remand for amendment of the mitti-mus.

The victim had placed an advertisement in the newspaper to sell two electronic keyboards. He received a call regarding the ad and arranged a meeting time. Three men came to his home. While the victim was setting up the keyboards and other equipment, he turned around and saw that the three were pointing guns at him. Two of the men took the equipment, and the third forced the victim to his knees and struck him several times with a gun.

Several weeks later, the victim was shown three photo arrays but was unable to make any identification. Two weeks thereafter, the investigating detective learned that a keyboard case had been pawned by defendant's brother. The victim was then shown two additional photo arrays, each with six photographs. The first included a photograph of defendant's brother, and the second included a photograph of defendant. The victim positively identified defendant as the third assailant, the one who had hit him with the gun. The victim was then shown the keyboard case, which he identified as his own.

Defendant was arrested and charged with aggravated robbery, conspiracy to commit aggravated robbery, second degree assault, and first degree burglary. Before trial, defendant filed motions to suppress the evidence of the victim's out-of-court identification and other evidence seized from defendant's home. The court denied the motions. The jury found defendant guilty as charged. Defendant was sentenced to twenty years on the aggravated robbery count, fifteen years on the second degree assault count, and ten years on the crime of violence count, with those sentences to run consecutively to one another and concurrently with the five year sentence on the conspiracy count.

L.

Defendant contends that the trial court committed reversible error by failing to suppress the evidence of the victim's identification of defendant from the photographic array. We disagree.

A pretrial identification procedure violates a defendant's due process rights if it is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." People v. Monroe, 925 P.2d 767, 771 (Colo.1996)(quoting Simmons v. United States, 390 U.S. 877, 384, 88 S.Ct. 967, 971, 19 LEd.2d 1247, 1253 (1968)). The question of whether a pretrial photographic identification procedure is impermis-sibly suggestive must be resolved in light of the totality of the cireumstances. People v. Monroe, supra. An out-of-court identification made as a result of an unnecessarily suggestive identification procedure is inadmissible unless the identification can be shown under the totality of circumstances to be reliable. People v. Mattas, 645 P.2d 254 (Colo.1982).

A photographic array is not unduly suggestive if the photos are matched by race, approximate age, hair type, and a number of other characteristics. People v. Harris, 914 P.2d 434 (Colo.App.1995). Exact replicas of the suspect's physiognomy are not required. People v. Bolton, 859 P.2d 311 (Colo.App.1993).

Here, the victim had described his assailant as a tall black man between twenty and thirty years old with a round face. All the photo arrays shown to the victim included men of the same age and race as defendant. In the array that included defendant, several of the other men were wearing white T-shirts similar to that of defendant. The other subjects in the photos also matched defendant in hair length and style, and several have faces approximately the same shape as defendant's.

A.

Defendant contends that the array was impermissibly suggestive because the background of his photograph was much darker than that of the other five. He also contends that in the photograph his facial features appeared much darker than they really are and that this led the victim to select his photograph. We disagree.

Much of defendant's argument is in reference to a color copy of the original photo array. In the copy, defendant's features are so dark as to be almost unrecognizable. However, the record shows that the victim identified defendant from the original photographic array, in which defendant's features are more clearly portrayed, and then circled and initialed the same picture on the color copy.

Although the background of defendant's original photograph is somewhat darker than the others, it is not so striking or distinctive as to be impermissibly suggestive and to give rise to a substantial likelihood of irreparable misidentification.

B.

Defendant also contends that the out-of-court identification was otherwise unreliable because it occurred two months after the incident and because, before being shown the last two arrays, the victim was told that a keyboard case had been recovered and was thus led to infer that the arrays included a suspect in the case.

The United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 LEd.2d 401 (1972), articulated a five-point totality of cireumstances test to be used in determining the reliability of an identification. The factors include: (1) the opportunity of the witness to view the perpetrator at the time of the crime; (2) the degree of attention of the witness; (8) the accuracy of prior descriptions given by the witness; (4) the level of the witness's certainty demonstrated at the later confrontation; and (5) the length of time between the crime and the confrontation.

If a pretrial identification is not im-permissibly suggestive as a matter of law, but is nonetheless tainted with some degree of untrustworthiness, it is admissible, and the weight to be accorded it is a matter for the jury. People v. Monroe, supra.

The victim testified that he observed his assailant inside his home for at least fifteen minutes. The victim's description included the approximate age, height, and clothing of the assailant, as well as specific details about his teeth and the shape of his head. The victim quickly identified defendant from the photograph and was positive about his identification.

Eight weeks had elapsed before the victim was shown an array that included defendant's picture. However, the extent of the delay is but one factor to be considered and is not per se an indication of unreliability. See People v. Walker, 666 P.2d 113 (Colo.1983)(identification of defendant made twenty months after incident was permissible). The jury was capable of considering the delay, as well as the other cireumstances of the photo array, in determining whether defendant was mistakenly identified as the assailant.

We agree with the trial court's conclusion that, under the totality of the cireumstances, the victim's identification of defendant was not unreliable as a matter of law. Therefore, the trial court properly refused to suppress the evidence of identification.

II.

Defendant next contends that the trial court erred in admitting evidence seized in the search of his home. We reject the contention.

Six law enforcement officers went to defendant's home to execute an arrest warrant for theft by receiving. When defendant answered the door, the officers stepped in and arrested him. According to the officers, defendant then consented to a search of the premises. Two keyboards were found, but they were not seized at that time. This information was communicated to the detective investigating this case, and he used it as the basis for obtaining a search warrant. The two keyboards were seized in a search conducted pursuant to the warrant.

Defendant argues that the warrantless search accompanying his arrest was unlawful and that his consent was not voluntarily given. He maintains that because of the overwhelming display of force, and the fact that he was in handcuffs at the time, he was not free to refuse the request to search. The trial court ruled that the search was consensual and also ruled, in the alternative, that the keyboard later identified by the victim was in plain view at the time of the arrest and was therefore properly seized.

Warrantless searches are deemed unreasonable unless they satisfy an exception to the warrant requirement. One such exeeption is consent. No search warrant is required where consent, in light of the totality of the cireumstances, has been freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 98 S.Ct. 2041, 36 LEd.2d 854 (1978); People v. Herrera, 935 P.2d 956 (Colo.1997). Consent to a search is voluntary if it is "not the result of duress or coercion, express or implied, or any other form of undue influence exercised against the defendant." People v. Thiret, 685 P.2d 193, 201 (Colo.1984).

In reviewing a determination as to whether a voluntary consent was obtained, we give deference to the factual findings of the trial court, whose function it is to weigh the evidence and determine the credibility of the witnesses. People v. Herrera, supra. As long as there is support for a trial court's findings of fact, we will not overturn them, even though a contrary position may have support in the record. People v. Thomas, 853 P.2d 1147 (Colo.1993).

Here, the evidence revealed that six officers, two in uniform, went to defendant's home to arrest him. When he answered the door, he was handcuffed and frisked for weapons. The detective executing the arrest warrant could not recall whether the officers had their guns drawn. According to the detective, there was no yelling or other coercive activity, and defendant was not foreed to the ground. Defendant did not dispute these facts.

The trial court's findings are supported by the evidence, and thus we defer to that court's determination that the search was consensual. In addition, the record supports the trial court's alternative basis for the ruling-that one of the keyboards was in plain view.

Officers may seize incriminating evidence discovered in plain view without a warrant if they are legitimately on the premises. People v. Kluhsman, 980 P.2d 529 (Colo.1999). Here, the detective testified that he could see one of the keyboards as he entered the front door of defendant's apartment.

Defendant contends that because he came to the door, the officers were not justified in entering his apartment to place him under arrest. Since they were not legitimately on the premises, defendant argues, the plain view exception does not apply. We disagree.

Police officers may enter a suspect's home to make an arrest when they have a warrant and when they have reason to believe the suspect is within. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1871, 63 L.Ed.2d 639 (1980).

Here, the officers were legitimately on the premises because they were executing a valid arrest warrant. See People v. Lillie, 707 P.2d 1043 (Colo.App.1985).

Although defendant argues that the police should have ordered him out of his apartment and then placed him under arrest, he cites no authority for such a requirement. To the contrary, the supreme court has ree-ognized that law enforcement officers may properly conduct a search of the immediate area incident to a lawful arrest. People v. Hufnagel, 745 P.2d 242, 247 (Colo.1987). There has been no showing here that the officers' actions were unreasonable.

In addition, we are not persuaded that Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001), cited by defendant, mandates a different result. In that case, as in United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), the Court recognized that a person standing in the doorway of a house is in a public place for the purposes of a warrantless arrest. However, we do not read these holdings to suggest that law enforcement officers would be prohibited from stepping inside a doorway when arresting a subject pursuant to a valid arrest warrant.

Because the keyboards were not seized as a result of an unconstitutional warrantless search, the trial court did not err in admitting the evidence that they were found in defendant's home.

IIL

Defendant next contends that the trial court erred in refusing his tendered instructions on aggravated robbery with a simulated weapon. We perceive no error.

A defendant is entitled to an instruction on a lesser offense if there is a rational basis in the evidence to support an acquittal of the greater offense and conviction of the lesser. People v. Bartowsheski, 661 P.2d 235 (Colo.1983). The rationale for allowing such an instruction is to ensure that the jury does not convict the defendant of a crime greater than the one actually committed merely because the greater offense is the only erime charged and the jury is aware that some offense was committed. People v. Rea, 7 P.3d 995 (Colo.App.1999).

Here, the victim, a former law enforcement officer, testified that as he was setting up the keyboards and equipment he heard the clicking of gun magazines. He turned around and saw "three men and three guns." He was able to describe the guns in detail. The guns were not produced at trial. However, there was no evidence that would support an inference that the guns the victim had seen were not real.

Therefore, there was no rational basis for the jury to be instructed on the lesser offense of aggravated robbery with a simulated weapon.

Defendant also argues that, by refusing the tendered instruction, the trial court improperly took away from the jury the determination of whether the instrument carried by the assailant was actually a deadly weapon. We reject the contention.

Defendant was charged with aggravated robbery under § 18-4-802, C.R.S.2001. The jury was instructed that, in order to convict, it had to find beyond a reasonable doubt that during the act of robbery or immediate flight therefrom, defendant (1) knowingly wounded or struck the person robbed with a deadly weapon or (2) put the person robbed in reasonable fear of death or bodily injury by the use of force, threats, or intimidation with a deadly weapon. "Deadly weapon" was defined as "any of the following, which, in the manner it is used or intended to be used, is capable of producing death or serious bodily injury: (a) a firearm, whether loaded or unloaded, or (b) a bludgeon."

The court, in refusing the tendered instruction, evaluated the evidence presented and determined that there was no rational basis to instruct the jury on aggravated robbery with a simulated weapon. The determination of whether defendant used a deadly weapon in the course of the robbery was properly left to the jury.

Therefore, we perceive no error in the trial court's refusal to instruct the jury on the lesser offense.

IV.

Defendant's final contention is that his convictions for aggravated robbery and see-ond degree assault must merge, or, in the alternative, that his sentences for these convictions must run concurrently. We disagree that the convictions must merge, but conclude that the trial court should have imposed concurrent sentences for them.

A.

A defendant may be convicted of multiple offenses arising out of a single transaction if he or she has violated more than one statute. Section 18-1-408(7), C.R.S. 2001. However, in the absence of legislative authorization, a defendant may not be convicted of more than one offense if one is a lesser included offense of the other. Section 18-1-408(1)(a), C.R.S.2001. A court is also prohibited from imposing multiple punishments for a greater and a lesser included offense by the double jeopardy clauses of the federal and state constitutions and by the judicially-created rule of merger. Armintrout v. People, 864 P.2d 5746 (Colo.1993).

Section 18-1-408(5)(a), C.R.S.2001, defines a lesser included offense as one "established by proof of the same or less than all the facts required to establish the commission of the offense charged." This test applies to double jeopardy and merger claims. People v. Garcia, 940 P.2d 357 (Colo.1997).

As relevant here, one commits aggravated robbery if, during the act of robbery or immediate flight therefrom, he or she "knowingly wounds or strikes the person robbed or any other person with a deadly weapon or by the use of force, threats, or intimidation with a deadly weapon knowingly puts the person robbed or any other person in reasonable fear of death or bodily injury." Section 18-4-802(1)(b), C.R.S.2001.

Further, as relevant here, conviction for second degree assault requires a showing that the person "[wlith intent to cause bodily injury to another person ... causes such injury to any person by means of a deadly weapon." Section 18-8-208(1)(b), C.R.S. 2001.

A comparison of the statutes describing the two offenses shows that second degree assault includes elements of proof that are different from those required for aggravated robbery. Thus, proof of aggravated robbery does not establish all the elements of second degree assault.

First, to obtain a conviction for second degree assault the prosecutor must show that the person actually caused bodily injury to the victim. A conviction for aggravated robbery does not necessarily require such a showing, but rather can rest on evidence that the defendant merely struck the victim or put him or her in reasonable fear of death or bodily injury.

Further, while a conviction for second degree assault requires a showing that the defendant acted "with intent," a conviction for aggravated robbery can be obtained upon a showing that the defendant merely acted "knowingly."

Offenses defined as requiring a mental state of "knowingly" are general intent crimes. A person acts knowingly with respect to conduct or to a cireumstance if "he is aware that his conduct is of such nature or that such cireumstance exists" or, with respect to a result of his conduct, "he is aware that his conduct is practically certain to cause the result." Section 18-1-501(6), C.R.S.2001. A person acts intentionally when "his conscious objective is to cause the specific result proscribed by the statute defining the offense." Section 18-1-501(5), C.R.S.2001.

Because a conviction for second degree assault, unlike a conviction for aggravated robbery, requires proof of bodily injury and specific intent, we conclude that second degree assault is not a lesser included offense of aggravated robbery. Accordingly, the convictions do not merge, and there is no basis for vacating defendant's second degree assault conviction.

B.

As noted, we agree with defendant's contention that the trial court should have imposed concurrent sentences for aggravated robbery and second degree assault.

If two or more offenses committed against a single victim are based on the same act or series of acts arising from the same criminal episode, and the evidence supporting the counts is identical, then concurrent sentences must be imposed. Section 18-1-408(8), C.R.8.2001; People v. Jurado, 30 P.3d 769 (Colo.App.2001). Evidence supporting different crimes is considered identical for purposes of this section when the same act or acts gave rise to both charges. People v. Dizon, 950 P.2d 686 (Colo.App.1997).

Here, the jurors were instructed that they could convict defendant of aggravated robbery if they found that during the act of robbery or immediate flight therefrom, defendant (1) knowingly wounded or struck the person robbed with a deadly weapon, or (2) put the person robbed in reasonable fear of death or bodily injury by the use of force, threats, or intimidation with a deadly weapon. The jury returned a general verdict on this count. Thus, in finding defendant guilty of this offense, the jury could have relied on either the evidence that defendant hit the victim with the gun or the evidence that defendant had threatened the victim with the gun. The evidence that defendant hit the victim was also the basis of defendant's see-ond degree assault conviction.

In People v. Page, 907 P.2d 624 (Colo.App.1995), a division of this court held that where the jury could have convicted the defendant of two offenses based on identical evidence, the sentences imposed must be concurrent. Here, the jury could have based its determination that defendant committed aggravated robbery on the evidence that defendant struck the victim with the gun. Because this is the same evidence that supported the see-ond degree assault conviction, we conclude that the trial court should have imposed concurrent sentences on these convictions.

The judgments of conviction and sentences are affirmed, except that the case is remanded to the trial court to amend the mittimus to impose concurrent, rather than consecutive, terms of imprisonment for the aggravated robbery and second degree assault convie-tions.

Judge CASEBOLT and Judge VOGT concur.


author: Judge METZGER.

text:
    In re the MARRIAGE OF John R. MITCHELL, Petitioner-Appellee and Cross-Appellant, and Janet L. Mitchell, Respondent, and Concerning Dianna L. Burton, Personal Representative of the Estate of John P. Kreisheimer, deceased, Appellant and Cross-Appellee.
    No. 00CA0396.
    Colorado Court of Appeals, Div. I.
    Feb. 14, 2002.
    As Modified on Denial of Rehearing March 21, 2002.
    Certiorari Denied Sept. 23, 2002.

      Moyer, Beal & Vranesic, John R. Vranesic, Lakewood, Colorado, for Petitioner-Appellee and Cross-Appellant.
    Law Office of Larry A. Henning, Larry A. Henning, Denver, Colorado, for Appellant and Cross-Appellee.
   Opinion by

Judge METZGER.

This action concerns an attorney's lien filed in a dissolution of marriage action. Dianna L. Burton, personal representative of the Estate of John P. Kreisheimer, deceased (the attorney), appeals the judgment entered in the attorney's favor for $1395, representing the principal amount of his attorney's lien, but excluding nineteen years' interest. John R. Mitchell (busband), the petitioner in the dissolution of marriage action, cross-appeals, contending that judgment should have been entered in his favor and that the lien should have been denied and discharged. We reverse.

The marriage of husband and Janet L. Mitchell (wife) was dissolved on November 26, 1979. The permanent orders required husband to pay wife $10,250 to accomplish the equitable division of the appreciation during the marriage of a small parcel of marital property and of husband's separate real property in Jefferson County. He was ordered to execute a promissory note and see-ond deed of trust in her favor against the Jefferson County real property. The court denied wife's request for attorney fees, and each party was ordered to pay his or her own fees and costs. No note or deed of trust was ever prepared.

Wife had paid only $205 of the fees billed by the attorney, who had represented her in the dissolution action. Consequently, on April 10, 1980, in the dissolution case, the attorney filed a notice of attorney's lien pursuant to §§ 12-5-119 and 12-5-120, C.R.S. 2001. The notice stated that wife had agreed to pay him $35 an hour plus costs but had only paid $205, and that the unpaid balance was $1395 plus interest at 8% from the date of entry of the decree. No fee agreement between the attorney and the wife was filed. The attorney also recorded the lien with the Jefferson County clerk and recorder and mailed a copy of the notice to husband, to wife, and to husband's then attorney. He took no further action.

In October 1980, in full settlement of the permanent orders, husband paid wife $1500 cash, and she executed a satisfaction of judgment and a quitclaim deed to the Jefferson County real property. The attorney was not paid, and the record contains no indication of wife's whereabouts thereafter.

On January 26, 1990, the attorney filed an extension of lien in the dissolution action and recorded it with the county clerk and recorder, but he did not send notice of these actions to anyone.

In November, 1999, husband attempted to sell the Jefferson County property, and the lien surfaced. After fruitless negotiations, husband filed a motion in the dissolution action to determine the enforceability of the lien.

After hearing arguments of counsel, the trial court entered a detailed and comprehensive order. It awarded the attorney $1895, the original lien amount, but denied his request for interest, concluding that the "lien creating" statute, § 12-5-119, contains no authorization for interest. The attorney has since passed away, and the personal representative of his estate has been substituted as a party.

Because it is dispositive of this appeal, we first address husband's contention on cross-appeal. He argues that, because the attorney took no action to reduce the lien to judgment within the period of any statute of limitations, the trial court erred in awarding judgment for the amount of the lien. We agree.

There is no common law right to an attorney's lien in Colorado. See Fillmore v. Wells, 10 Colo. 228, 15 P. 343 (1887). The statutes concerning attorney's liens are § 12-5-119, which covers charging liens, and § 12-5-120, which covers retaining liens. The lien at issue here is a charging len, in that it "grants an attorney a lien on claims or choses in action ... on any judgment that the attorney obtained or assisted in obtaining in favor of the client, and on any legal claim filed by the attorney for fees due from the client." In re Estate of Benney, 790 P.2d 319, 322 (Colo.1990).

However, if a trial court's award to an attorney's client is monetary, the attorney's lien cannot attach to real property owned by the client's judgment debtor. In re Marriage of Stewart, 632 P.2d 287 (Colo.App.1981).

Here, because the Jefferson County real property was husband's separate property, it could not be awarded to wife in the permanent orders. See § 14-10-1138, C.R.S. 2001; In re Marriage of Campbell, 43 Colo.App. 72, 599 P.2d 275 (1979). The dissolution court correctly classified the increase in value of that property during the marriage as marital property, equitably divided that increase, and entered a monetary award to wife. See In re Marriage of Wildin, 39 Colo.App. 189, 563 P.2d 384 (1977).

Accordingly, we agree with the trial court that the attorney's lien attached only to wife's monetary judgment in the dissolution of marriage action and not to the Jefferson County real property.

The proper method of enforcement of that lien then becomes the issue.

As the trial court noted, the language of § 12-5-119 does not specify in any detail the procedure for enforcing the lien; instead it only provides that "[sluch lien may be enforced by the proper civil action."

The "proper civil action," has been held to include bringing an independent action or filing a motion to reduce the lien to judgment in the civil action that gave rise to the lien claim. Gee v. Crabtree, 192 Colo. 550, 560 P.2d 835 (1977).

Consequently, filing the notice of attorney's lien in the underlying dissolution of marriage action was the appropriate procedure.

The crux of the dispute here is timing.

Husband reasons that, because "proper civil actions" are subject to statutes of limitation, because nineteen years have elapsed between the filing of the notice of attorney's lien and the commencement of any further proceedings, and because no statute of limitations would allow a nineteen-year delay, any right the attorney had to his lien was lost and extinguished. The personal representative counters that the filing of the notice of lien constituted the commencement of the "proper civil action," and because that notice was filed only five months after entry of wife's judgment in the permanent orders, it was timely. The trial court agreed with the personal representative; we agree with husband.

Because the right to an attorney's lien arises only by statute, People v. Brown, 840 P.2d 1085 (Colo.1992), strict compliance with the statute is necessary. Telluride Real Estate Co. v. Penthouse Affiliates, LLC, 996 P.2d 151 (Colo.App.1999). Thus, the burden of proof is upon the attorney who claims a lien for services to show that he or she comes within the statute. See Gooding v. Lyon, 63 Colo. 328, 166 P. 564 (1917).

Section 12-5-119, the attorney's charging lien statute, provides that attorneys "shall have a lien ... on any judgment they may have obtained." It then authorizes the attorney to file, with the clerk of the court in which the underlying action is pending, notice of his or her claim as Henor. Finally, it provides that the lien may be enforced by the "proper civil action."

The language of this statute is similar to that in other lien statutes. See, eg., § 38-20-101, et seq., C.R.9.2001 (covering various types of liens on personal property); see also § 38-22-101, et seq., C.R.8.2001 (covering mechanies' liens). In virtually all instances, the statutes begin by stating that the various providers of enumerated services "shall" have a lien: Seq, eg., § 38-20-102(1)(a), C.R.S.2001 (agistor's lien), § 38-20-106, C.R.9S.2001 (lien for labor); § 38-22-101 (mechanic's lien). In each instance, the lienholder is required to provide notice. See §§ 38-20-108(1)(e), 38-22-109, C.R.S8.2001. These statutes then set out procedures to enforce the claimed lien and require that the lien claimants file appropriate civil actions. See §§ 38-20-108, 88-22-110, C.R.8.2001.

Even though § 12-5-119 is not as detailed as the statutes governing other liens, because the subject matter is in pari materia with the other lien statutes, we conclude it should be construed in a similar manner. See Huddleston v. Board of Equalization, 31 P.3d 155 (Colo.2001).

Thus, we hold that the filing of a notice of an attorney's lien, like notice of other liens, merely places others on notice that the attorney claims an interest in the funds subject to the lien. Cf. Mesa County Valley School District No. 51 v. Kelsey, 8 P.3d 1200 (Colo.2000). The notice is not the commencement of the "proper civil action." See People v. Gray, 35 P.3d 611 (Colo.O.P.D.J.2001).

Over a hundred years ago, this point was made clear in Colorado State Bank v. Davidson, 7 Colo.App. 91, 95, 42 P. 687, 688: "If the attorney expects satisfaction of his claim out of the judgment, he must so notify the judgment debtor; and the motice must be followed, within a reasonable time, by suit" (emphasis added). This interpretation was adopted by the supreme court in Fillmore v. Wells, supra, 10 Colo. at 237, 15 P. at 347, which said:

[Where the thing is not in possession, and some affirmative action is required by the attorney, he, like other lien claimants, must seek relief in equity. In some instances, a formal suit should be instituted; in others, an application to the court rendering the judgment, for the proper order, would be sufficient.

See also In re Ranes, 31 B.R. 70 (Bankr.D.Colo.1983).

The language of § 12-5-119 leads to such an interpretation, because it states: "Such [attorney's] lien may be enforced by the proper civil action." Thus, the filing of the notice of lien is only a prerequisite to commencement of an action to reduce the lien to judgment; the mere filing of the notice does not constitute such a commencement. If the interpretation of the trial court and the personal representative were adopted, this final sentence in § 12-5-119 would be superfluous.

Section 12-5-119 does not contain a period of limitations directly applicable to an enforcement action for an attorney's lien claim. The parties disagree about which statute would apply, but because they essentially concede that no statute of limitations would permit commencement of an action after the passage of nineteen years, we need not decide which specific statute controls. It is sufficient for us to hold, under these facts, that the attorney's attempt to reduce his lien to judgment is barred. See T. Cowden & S. Herscovieci, Perfection and Emforcement of Attorney's Liens in Colorado, 26 Colo. Law. 57 (Mar.1997).

In light of this disposition, we need not address the personal representative's assertion that the trial court's refusal to award interest was error.

The judgment is reversed.

Judge VOGT and Judge DAILEY concur.


author: Judge TAUBMAN.

text:
    Ronnie L. CORDOVA, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE of Colorado; Foundation Builders, Inc.; and American Compensation Insurance Co., Respondents.
    No. 01CA0852.
    Colorado Court of Appeals, Div. IV.
    Feb. 28, 2002.

      Irwin & Boesen, P.C., Chris L. Ingold, Denver, Colorado, for Petitioner. No Appearance for Respondent Industrial Claim Appeals Office.
    Nathan, Bremer, Dumm & Myers, P.C., Bernard Woessner, Benjamin E. Tracy, Denver, Colorado, for Respondents Foundation Builders, Inc., and American Compensation Insurance Co.
   Opinion by

Judge TAUBMAN.

In this workers' compensation proceeding, Ronnie L. Cordova (claimant) seeks review of the final order of the Industrial Claim Appeals Office (Panel) denying his petition to reopen. We affirm.

Claimant sustained a compensable back injury on April 9, 1996. His treating physician placed him at maximum medical improvement (MMI) on October 17, 1997, with a sixteen percent whole person medical impairment rating. Foundation Builders, Inc., and its insurer, American Compensation Insurance Co. (collectively employer), filed a final admission in accordance with the rating. Claimant did not contest the admission, and the matter was closed.

In 1999, claimant petitioned to reopen, alleging that his condition had worsened, necessitating a spinal fusion at L6-S1. He also asserted that he had developed deep venous thrombosis (DVT) (blood clotting) as a consequence of his physical inactivity, which stemmed from the industrial injury. In support, claimant obtained and submitted a division-sponsored independent medical examination (DIME). The DIME physician opined that claimant was not at MMI and had continued to suffer pain, including an incident of severe, intractable pain, and that the DVT was related to his forced physical inactivity.

Following an evidentiary hearing, the Administrative Law Judge (ALJ) found that claimant failed to prove that his condition had worsened due to the industrial injury. Specifically, the ALJ relied upon other medical evidence to determine that claimant's condition had remained stable after reaching MMI, that surgical intervention was not presently indicated as either reasonable or necessary, and that the DVT was merely "superimposed" upon the work-related condition. Therefore, the ALJ denied the petition to reopen.

On review, the Panel upheld the ALJ's denial. It found that there was substantial evidence to support the determination that claimant's condition had remained stable and that no causal relationship was shown to exist between the DVT and the industrial injury. In so holding, the Panel rejected claimant's assertion that the ALJ erred in failing to give presumptive effect to the DIME.

I. Jurisdiction

Initially, we reject employer's assertion that this court lacks jurisdiction to hear claimant's appeal because the opening brief was filed beyond the fifteen-day period provided in C.A.R. 3.1(b).

The record discloses not only that claimant filed his petition to review within the required time, thus vesting this court with jurisdiction, see $ 8-43-301(10), C.R.S8.2001; C.A.R. 8.1(a), but also that he requested and was granted an extension until August 20, 2001 to file the opening brief Although claimant did not file his opening brief until the following day, he subsequently filed a motion for acceptance of the opening brief, and that motion was granted.

Although employer urges that the time limitations set forth in C.A.R. 8.1(b) for the filing of briefs are jurisdictional, there is nothing within that rule or the Workers' Compensation Act which indicates that this court's jurisdiction will be automatically lost upon a failure, justified or otherwise, to comply strictly with those requirements. See Ortiz v. Indus. Comm'n, 734 P.2d 642 (Colo.App.1986)(untimely filing of a brief is not a jurisdictional defect under the Act). Moreover, C.A.R. 26(b) vests this court with general authority to grant an enlargement of time for any act required under the appellate rules and only limits that power when a requested extension is sought for a notice of appeal under C.A.R. 4(a) or a petition for review of an administrative matter.

Dismissal of an appeal for failure to comply with statutory time limitations for filing briefs is discretionary with this court. See C.A.R. 26(b), 31; Wilkinson v. Motor Vehicle Div., 634 P.2d 1016 (Colo.App.1981). A decision of a motions division is not always binding, see Hillen v. Colorado Compensation Ins. Auth., 883 P.2d 586 (Colo.App.1994), and we see no reason to set aside the decision to accept claimant's opening brief.

II. Presumptive Effect of DIME

Claimant first contends that he was entitled to seek a DIME in support of his petition to reopen and that the ALJ erred in failing to give it presumptive effect. Because claimant actually underwent a DIME and was permitted to introduce the opinion of the DIME physician into evidence, we need not consider the question of his entitlement to the DIME. However, we disagree that the ALJ was required to give the DIME presumptive effect.

Section 848-803, C.R.S.2001, authorizes the director of the division of workers' compensation to reopen "any award" on the grounds of error, mistake, or change in condition. The intent of this statute is to provide a remedy to employees who are entitled to awards of any type of benefits, whether medical or disability. Cramer v. Indus. Claim Appeals Office, 885 P.2d 318 (Colo.App.1994).

A change of condition refers "to a change in the condition of the original com-pensable injury or to a change in claimant's physical or mental condition which can be causally connected to the original compensa-ble injury." Chavez v. Indus. Comm'n, 714 P.2d 1328, 1330 (Colo.App.1985).

The reopening authority under the provisions of § 8-48-808 is permissive, and whether to reopen a prior award when the statutory criteria have been met is left to the sound discretion of the ALJ. Renz v. Larimer County Sch. Dist. Poudre R-1, 924 P.2d 1177 (Colo.App.1996). A claimant has the burden of proof in seeking to reopen a claim. Richards v. Indus. Claim Appeals Office, 996 P.2d 756 (Colo.App.2000)

As the Panel noted, the opinions of a DIME physician concerning MMI and medical impairment are binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(b)(III), (c), C.R.S.2001. Because these issues inherently require a determination regarding the cause of a claimant's condition, a DIME physician's opinion that a causal relationship exists between the condition and an industrial injury must be overcome by clear and convincing evidence. See Egan v. Indus. Claim Appeals Office, 971 P.2d 664 (Colo.App.1998)(the rating process inherently involves a determination as to whether the particular components of a claimant's overall medical impairment were caused by the industrial injury).

Under § 8-42-107(8)(b) and (c), a treating physician's determination as to MMI and medical impairment cannot be disputed in the absence of an independent medical evaluation. Egan v. Indus. Claim Appeals Office, supra. Here, as the Panel also noted, the issues of MMI and medical impairment were resolved by the uncontested final admission of liability submitted by employer based upon the treating physician's findings. Consequently, these matters were closed and not subject to further litigation unless reopened. Section 8-48-208(2)(b)(ID), (d), C.R.S.2001; Cibola Constr. v. Indus. Claim Appeals Office, 971 P.2d 666 (Colo.App.1998).

Claimant attempts to characterize the present dispute as one involving MMI. However, the pertinent and necessary inquiry is whether he has suffered a deterioration in his condition that justifies additional benefits. See Richards v. Indus. Claim Appeals Office, supra. Although medical evidence bearing on whether he has remained at MMI would be relevant to that inquiry, the original MMI determination may not be questioned. We therefore agree with the Panel that the opinion of a DIME physician as to whether a claimant's condition has worsened carries no special weight and need not be overcome by clear and convincing evidence.

The fact that the Act is silent regarding whether a DIME may be available after closure of a claim does not convince us that we should reach a contrary result. The Panel correctly observed that the opinions of a DIME physician have only been given presumptive effect when expressly required by the statute. See Faulkner v. Indus. Claim Appeals Office, 12 P.3d 844, 846 (Colo.App.2000)(DIME opinion concerning causation need not be overcome by clear and convine-ing evidence where dispute involved the "threshold requirement" that the claimant establish a compensable injury); Story v. Indus. Claim Appeals Office, 910 P.2d 80 (Colo.App.1995)(DIME determination of MMI did not preclude change of physician order where only "Grover" medical benefits sought). Cf. Qual-Med, Inc. v. Indus. Claim Appeals Office, 961 P.2d 590 (Colo.App.1998)(IME physician's opinion concerning cause of particular component of claimant's overall impairment must be overcome by clear and convincing evidence).

III. Equal Protection and ADA Challenges

Claimant next argues that the failure to give special evidentiary effect to the DIME violated his right to equal protection and deprived him of a necessary state service in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12218 (1994). We reject these arguments.

Again, it appears that claimant relies in part upon his allegation that he was prevented from obtaining a DIME. However, insofar as he did indeed undergo a DIME, we do not consider that part of his argument.

A.

The threshold question in any equal protection challenge is whether the legislation results in dissimilar treatment of similarly situated individuals Indus. Claim Appeals Office v. Romero, 912 P.2d 62 (Colo.1996). Here, claimant fails to show that the evidentiary effect of a DIME is applied differently to employees and employers. To the contrary, it is not the identity of the party offering the DIME into evidence, but rather the issue for which it is being offered, that determines the weight it is to be given. Moreover, claimant has not presented us with specific argument or authority challenging the rationality of confining the enhanced evidentiary effect of a DIME to a determination of MMI and medical impairment. Also, claimant has not shown that similarly situated individuals are treated in a disparate manner.

B.

Likewise, claimant has provided no legal authority establishing that he is a qualified individual entitled to protection under the ADA. We also are unable to glean from claimant's argument how the evidentiary ef-feet given a DIME violates the ADA and, in turn, how such violation would render the Workers' Compensation Act unconstitutional. See Biel v. Alcott, 876 P.2d 60 (Colo.App.1993)(it is the duty of counsel to inform the court both as to specific grounds relied upon and as to the supporting facts and authorities therefor). Thus, he has not established a violation of his rights under the ADA.

IV. Employer's Medical Evidence

Finally, claimant contends that the ALJ erred as a matter of law in crediting employer's medical evidence. We disagree.

The ALJ is the sole trier of fact in workers' compensation proceedings, and if the findings of fact are supported by substantial evidence in the record, an ALJ's decision to reopen a claim is binding. Sections 8-48-301(8), 8-48-308, C.R.S.2001; Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App.1995). This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and the plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Indus. Claims Office, 989 P.2d 251 (Colo.App.1999). Further, the weight and credibility to be accorded an expert medical opinion is a matter within the discretion of the ALJ. Rockwell Int'l v. Turnbull, 802 P.2d 1182 (Colo.App.1990).

Here, claimant maintains that the ALJ improperly disregarded the DIME based upon the misconception that the DIME report failed to address directly the issue of change of condition, instead focusing on the irrelevant question of whether claimant had reached MMI in 1997. We have reviewed the DIME, and although it concluded that claimant was not then at MMI, that assessment was based primarily upon claimant's recollections of pain associated with a discogram performed in 1996 before the MMI determination. Consequently, we consider the ALJ's interpretation of the DIME to be reasonable.

We further reject claimant's argument that the medical opinions eredited by the ALJ were incompetent because the physicians were not surgeons. As the Panel determined, this argument has been waived on appeal by the lack of a prior objection on that basis. See CRE 108(a)(1).

As the Panel acknowledged, the record contains conflicting documentary evidence and expert testimony concerning whether claimant experienced a worsening of his condition and, if so, whether the worsening was caused by the industrial injury. The weight to be assigned such evidence was a matter for the ALJ, and inasmuch as there is substantial evidence to support the denial of the petition to reopen, we may not substitute our judgment for that of the ALJ on that issue. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App.1997).

The Panel's order is affirmed.

Judge MARQUEZ and Judge VOGT concur.


author: Judge DAVIDSON.

text:
    CITY OF ENGLEWOOD, Petitioner-Appellant, v. DENVER WASTE TRANSFER, L.L.C., Respondent-Appellee.
    No. 01CA0698.
    Colorado Court of Appeals, Div. V.
    Feb. 28, 2002.
    Certiorari Denied Oct. 15, 2002.

      Weiner, Schiller and May, P.C., Mark E. May, Englewood, Colorado, for Petitioner-Appellant.
    Faegre & Benson, L.L.P., Leslie A. Fields, John R. Sperber, Peggy P. Chig, Denver, Colorado, for Respondent-Appellee.
   Opinion by

Judge DAVIDSON.

In this eminent domain proceeding, petitioner, the City of Englewood, appeals from the judgment entered by the trial court upon the findings of a commission awarding compensation to respondent, Denver Waste Transfer, L.L.C. (DWT). The City challenges as erroneous the trial court's admission of evidence based on the land residual method of valuation and evidence regarding the City's opposition to DWT's efforts to obtain approval for use of the subject property as a waste transfer station. We affirm.

The subject property was a former landfill adjacent to Centennial Park on the border between the cities of Englewood and Sheridan. In 1998, DWT purchased the property at a price of $802,210 for the purpose of constructing a waste transfer station. The property was zoned for heavy industrial use, and although a waste transfer station was a use by right, additional approval of a planned unit development (PUD) and a solid waste transfer permit was required from the City of Sheridan before that use was permitted.

DWT sought and obtained the necessary land use approvals to construct and operate a waste transfer station. The PUD and permit ran with the land and were nontransferable to other property. The approval process involved multiple public hearings and review by several public agencies over the course of nearly a year. At the public hearings, various officials from the City opposed approval of the PUD. ~

The City instituted formal condemnation proceedings pursuant to $ 38-1-101, et seq., C.R.S.2001, after the PUD and permit approval but before any construction of the waste transfer station. The City intended to use the property as a public park and recreation facility.

Subsequently, a valuation trial was held before a commission of freeholders. DWT's appraisal expert used a comparable sales method to calculate the value of the property without the PUD and permit at $806,200. To calculate the value with the PUD and permit, the expert used a residual method that considers, inter alia, the estimated value of the property as improved and its income-generating potential. Under this method, the value of the property is determined by multiplying the estimated stabilized net operating income by a net income multiplier, to represent the risk associated with such an investment, and then subtracting the cost of improvement and the net present value of the net income loss during start-up. According to the expert, the net income multiplier for the waste management industry ranged from 4.0 to 7.0. Using multipliers of 4.00 and 4.25, the expert calculated final values for the permitted property in the range of $2,055,000 to $2,895,000 and, taking into account certain other factors, reached a final appraisal of $2,175,000.

DWT's expert testified that he had prepared his report under the assumption that there were no comparable sales but that he had subsequently learned of one sale he considered comparable. Using that sale, he calculated a value for the subject property higher than that based on the land residual method. DWT's expert also calculated the ratio of the unpermitted land value to the total value under the land residual method to obtain a multipliee of 2.70, which he described as being at the low end of multipliers for landfill properties, a similar use. The expert testified that these comparisons demonstrated that the residual method was reasonable.

Prior to trial, the trial court had denied the City's motion in limine to exclude testimony on the land residual method, stating:

[The Court is unpersuaded that an in limine ruling, excluding the subject evidence, is appropriate, or that the land residual approach is, per se, speculative or misleading or otherwise so flawed as to require its exclusion in advance of trial[,] particularly, in such a fact-intensive trial. The Court determines that it is up to the Commission, basically, to determine how that evidence is to be received and treated, and what weight, if any, is to be accorded.

At trial, the commission also overruled the City's objections to the evidence.

The City's expert appraised the property by using comparable sales of properties with similar industrial zoning but without a PUD or special use permit, and then adding the cost of obtaining the permit to reach a value of $921,000. At the conclusion of the trial, the commission entered a certificate of ascertainment and assessment with a determined value of $1,853,788.

On appeal, the City contends that the trial court and commission erred in admitting land residual valuation evidence because that evidence is speculative, includes the value of unrealized business profits, and violates the undivided basis rule. The City also contends that admission of evidence of the City's involvement in and objections to the PUD approval was error because that evidence is irrelevant, violates the project influence rule, and is unfairly prejudicial. We disagree with each contention.

We first note that the commission appointed by a trial court in an eminent domain proceeding has the authority to make certain evidentiary rulings, and we review such rulings under the same standards applicable to rulings made by a trial court. See § 388-1-105(2), C.R.S8.2001; State Dep't of Highways v. Mahaffey, 697 P.2d 773 (Colo.App.1984); City of Aurora v. Webb, 41 Colo.App. 11, 585 P.2d 288 (1978).

L.

The City contends that the land residual method should be rejected as a matter of law. The City argues that valuation evidence using that method is inadmissible because it relies on hypothetical improvements that do not yet exist; such reliance assumes that the proposed development is an accomplished fact in violation of Department of Highways v. Schulhoff, 167 Colo. 72, 445 P.2d 402 (1968), and renders the method too speculative; and such methods have been rejected previously by Colorado courts. Alternative, ly, the City argues that use of such a method is not permissible under the circumstances.

A.

The City contends that the valuation evidence using the land residual method should have been rejected in favor of the comparable sales method. We disagree.

When taking property by eminent domain, the condemnor must pay "just compensation" for the property, which is the "present reasonable market value" of the property in light of the property's "highest and best use." See Colo. Const. art. II, § 15; § 88-1-101, C.R.S8.2001; City of Aurora v. Webb, supra, 41 Colo.App. at 14, 585 P.2d at 291.

"The commission is entitled to consider any competent evidence, apart from certain factors arising from the very fact of condemnation, which would be considered by a prospective seller or buyer as tending to affect the present market value of the land." Goldstein v. Denver Urban Renewal Auth., 192 Colo. 422, 425, 560 P.2d 80, 83 (1977). The admissibility of evidence regarding property value is governed by an expansive, rather than restrictive, rule. City of Westminster v. Jefferson Cir. Assocs., 958 P.2d 495 (Colo.App.1997).

The three common approaches to valuing real estate are the market approach (based on comparable sales), the cost approach (cost of construction or reproduction less depreciation), and the capitalization of income approach. Denver Urban Renewal Auth. v. Berglund-Cherne Co., 193 Colo. 562, 568 P.2d 478 (1977). One or more of these approaches may be inapplicable in a given case. Cf. 501 S. Cherry Joint Venture v. Arapahoe County Bd. of Equalization, 817 P.2d 583 (Colo.App.1991)(valuation for purposes of property tax assessment).

In limited cireumstances, other methods of valuation are permitted to caleu-late the value of property taken. See Denver Urban Renewal Auth. v. Pogzseba, 38 Colo.App. 168, 558 P.2d 442 (1976). One such circumstance is a lack of sufficient comparable sales. When the market value of property is uncertain, evidence regarding value for specific purposes is admissible in addition to evidence regarding the proposed use. Denver & R.G.R.R. v. Griffith, 17 Colo. 598, 31 P. 171 (1892).

In condemnation cases, market value is usually established by sales of like property. It does not follow, however, that the owner is precluded from proving value when there have been no comparable sales. In such cases resort may be had to best available data which, even though speculative, under some cireumstances may be sufficient to allow a jury to make an informed estimate of value.

United States v. Sowards, 339 F.2d 401, 402 (10th Cir.1964). See also Bd. of County Comm'rs v. Vail Assocs., Litd., 171 Colo. 381, 468 P.2d 842 (1970); Dandrea v. Bd. of County Comm'rs, 144 Colo. 343, 356 P.2d 893 (1960). In appropriate cases, "the fact that some speculation is required does not defeat the admissibility of the evidence but rather relates to the weight to be given to that evidence." State Dep't of Highways v. Mahaffey, supra, 697 P.2d at 776 (hypothetical income from future gravel extraction admissible). See also Julius L. Sackman, Nichols on Eminent Domain § 19.06[6]) (3d ed. 2001)("Where property is so unique as to make unavailable any comparable sales data, evidence of income has been accepted as a measure of value.").

DWTI"s appraisal experts testified that there were not sufficient comparable sales and that, in the absence of such sales, the only way to calculate the added value of the permit and PUD was to use the land residual method.

The land residual method is a variant of the income capitalization method and is useful in certain cireumstances:

The land residual technique may also be used to estimate land value when sales data on similar parcels of vacant land are lacking.... The land residual technique can be used to estimate land value when 1) building value is known or can be accurately estimated, 2) stabilized, annual net operating income to the property is known or estimable, and 3) both building and land capitalization rates can be extracted from the market.... The land residual technique is useful when comparable sales are lacking and as a check on the sales comparison approach.

American Institute of Real Estate Appraisers, Appraisal of Real Estate ch. 18, at 306-307 (9th ed. 1987). Whether a comparable sale is sufficiently similar to be of probative value in determining the value of the land taken is for the trial court or commission to determine in its discretion. The commission also determines what weight, if any, is to be given to comparable sales. City of Westminster v. Jefferson Cir. Assocs., supra.

The parties disagreed as to whether comparable sales existed and what type of properties should be compared. DWT's appraisal experts testified that vacant industrial properties with PUD and permit approval for a waste transfer station were the appropriate comparable. They could find only one such comparable sale, which provided a value higher than that obtained using the land residual method. The City's appraisal expert used as comparable sales industrial property that did not have an approved PUD and permit, arguing that the added value of the PUD should be calculated based solely on the amount expended to obtain it, which he estimated as $50,000. The City's expert did not offer any comparable sales involving a PUD and permit and indicated that the only instance of the rental value of a waste transfer station that was found did not reflect a market rental rate.

However, despite the testimony that the value added by the PUD and permit should be limited to its cost, so that ordinary industrial properties were appropriate compara-bles, the City's appraisal expert also indicated that the PUD and permit added value in addition to their cost. He specifically agreed that the PUD and permit increased the value of the property and acknowledged that DWT's efforts to obtain PUD approval for a waste transfer station "advanced it from raw land toward a finished site," and that "when you go into the marketplace and compare it to other finished sites, it would be important to keep that as one aspect." He also noted that if an investor improves property to make it attractive in the marketplace, he will be rewarded at each stage of development "not only for the costs he's incurred, but rewarded for what's called entrepreneurial profit." While not agreeing that the PUD and permit were extremely difficult to obtain, that expert acknowledged that a six- to eight-month process involving five public meetings with public opposition would not be atypical and that approval was not a certainty because the site plan itself and all the requirements imposed by the land use authority would have to be met before receiving approval.

Considering both parties' expert testimony, we conclude that there is sufficient evidence in the record to support DWT's position that there were not sufficient comparable sales.

Accordingly, we also conclude that the ree-ord supports a finding that the criteria outlined by the American Institute of Real Estate Appraisers for use of the land residual method were met. Not only was there evidence of insufficient comparable sales, but also the cost of the waste transfer station could be estimated based on the requirements specified in the PUD, and the stabilized annual net operating income could also be estimated. While each side came up with different figures, each was able to estimate the operating income and costs with some factual foundation. Finally, there was testimony that the multiplier (the inverse of a capitalization rate) was extracted from the market as that used in the solid waste industry. We also note that, based on the evidence, the commission could have accepted the comparable sale offered by DWT's experts, which yielded a higher market value than the land residual method.

B.

The City contends, however, that as used here, the land residual valuation method impermissibly considers a speculative or prospective value because there was no waste transfer station in existence. We disagree.

Any reasonable future use may be considered to assist the commission in determining the present value of the property:

The owner is entitled to have considered the most advantageous use in the future to which the land may be reasonably applied, not with the view of allowing him for [sic] speculative or prospective damages or values, but only as such evidence may bear upon or affect or assist in arriving at the present market value.

Wassenich v. City & County of Denver, 67 Colo. 456, 466, 186 P. 533, 537 (1919). "[Mjerely possible or imaginary uses or speculative schemes of its proprietor are to be excluded." Twin Lakes Hydraulic Gold Mining Syndicate, Ltd. v. Colorado Midland Ry., 16 Colo. 1, 5, 27 P. 258, 260 (1891). The likelihood of rezoning to accommodate a particular proposed use may be considered if it rises to the level of a probability and would be reflected in present market value. State Dep't of Highways v. Ogden, 638 P.2d 832 (Colo.App.1981).

Here, the property had the PUD and permit for use as a waste transfer station and did not require rezoning. Moreover, experts on both sides testified that the highest and best use of the property was for industrial purposes, including use as a waste transfer station, which thus was a feasible use. Cf. Denver Joint Stock Land Bank v. Bd. of County Comm'rs, 105 Colo. 366, 371, 98 P.2d 283, 286 (1940)("no evidence ... that there was or would within a reasonable future be a demand for a subdivision of this land into small farms"); Union Exploration Co. v. Moffat Tunnel Improvement Dist., 104 Colo. 109, 122, 89 P.2d 257, 263 (1939)("no active or competitive demand for the land for a tunnel site"). Thus it was proper for the commission to determine the value of the property for use as a waste transfer station even though no such facility then existed.

Nevertheless, the City contends that Colorado has rejected valuation based on the hypothetical operation of a nonexistent business to establish damages to an interest in land and cites as authority Western Cities Broadcasting, Inc. v. Schueller, 849 P.2d 44 (Colo.1993). However, the evidence of the business value in Western Cities was rejected because there was no evidence that linked the business value to the value of the leasehold at stake. Here, however, DWT's land residual method linked the value of the proposed business to the value of the vacant property by, inter alia, subtracting elements of business value and using multipliers used in the waste management industry to value property based on income.

Moreover, property valuation based on a hypothetical income stream from a business that was not yet in operation has been accepted in similar situations when the evidence is sufficiently specific to allow an appraiser to make reasonable and informed decisions as to value. See State Dep't of Highways v. Mahaffey, supra. Here, the estimates for the costs and revenues of a waste transfer station on the property were not purely theoretical, but were based on another operating facility in Denver owned by a principal of DWT.

Nor, contrary to the City's contention, does DWT"s approach violate the rule of Department of Highways v. Schulhoff, supra, that property may not be valued under the assumption that the proposed future use is an accomplished fact.

In Schulhoff, a parcel of vacant land was taken, and the parties agreed that the highest and best use of the property was for subdivision into residential building sites. The supreme court rejected a valuation method that estimated the number of building sites and their value and then added those values together because the cost of development was too speculative. The court held that the value should be based on what a willing purchaser would pay for the whole tract, rather than what individuals would pay for developed parcels.

However, the court noted that when a developer determined the value that it could afford to pay for the whole parcel, the developer would consider "the chances and probabilities of the situation" and that a commission should consider the same factors. Dep't of Highways v. Schulhoff, supra, 167 Colo. at 78, 445 P.2d at 405. Cf § 89-1-108(14)(b), C.R.8.2001 (cost of development to be taken into account when determining actual value of vacant land for assessment purposes). Here, there was testimony that a purchaser would consider the potential profits to be made from a waste transfer station when calculating the market value of property with an existing permit and PUD for that use.

Moreover, in Board of County Commissioners v. Vail Associates, Ltd., supra, the supreme court acknowledged that when, as here, there are insufficient comparable sales of undeveloped land, valuation based on sales of subdivided sites may be necessary. See also Bd. of County Comm'rs v. Evergreen, Inc, 35 Colo.App. 171, 532 P2d 777 (1974)(Schulhoff rule applies only to raw land and not to property that has been platted and developed).

C.

The City next contends that income and profits from a waste transfer station would be attributable solely to the business and not to the land and therefore could not be considered in valuing the land. The City argues that DWT's valuation includes compensation for business value and lost opportunity. We disagree.

Generally, evidence of profits from a business conducted on the property is not admissible to determine the market value of the property unless it is "profits derived from the land itself" rather than "profits derived from a business conducted on the premises." Such evidence is excluded because the business itself is not being taken, but can be relocated to another property, and the financial success of a business is often tied to factors that are not tied to the use of the land. Denver Urban Renewal Auth. v. Berglund-Cherne Co., supra, 198 Colo. at 567, 568 P.2d at 482. See also City & County of Denver v. Hinsey, 177 Colo. 178, 182, 493 P.2d 348, 351 (1972) (considerations such as past and future earning capacity and lost profits "standing alone and without competent evidence of market value are inadmissible"). But see Nichols on Eminent Domain, supra, § 19.06[1] ("It has nevertheless been held that evidence of the volume of business may properly be admitted for consideration on the issue of fair market value and rental value of the premises condemned where, by accepted standards and criteria in the trade or business, rentals and values of such property are based thereon.").

Similarly, elements of business value and lost profits are generally not recoverable as part of the just compensation due when property is taken by eminent domain. City & County of Denver v. Hinsey, supra.

Here, however, DWT was not seeking to be compensated for lost profits and an un-built facility, but rather using the estimated profits as a factor in calculating the amount a willing purchaser would pay for the property with a PUD and permit, DWT's experts testified that the method they used removed the projected value of the improvements and profits from their calculations of value. Cf. Waste Management v. Kenosha County Bd. of Review, 184 Wis. 2d 541, 516 NW.2d 695 (1994). While the City's experts challenged the extent to which these factors were completely removed, the credibility of the experts and the weight to be given their testimony was for the commission to judge. See State Dep't of Highways v. Mahaffey, supra.

Moreover, nontraditional appraisal methods were appropriate here because, as discussed, DWT demonstrated a lack of comparable sales. And, although we need not decide whether income from a waste transfer station would be "profits derived from the land itself," we note that the PUD and permit for a waste transfer station were nontransferable and ran with the subject property. They could not simply be moved to another location and were, at least to some degree, tied to the land.

D.

The City also contends that use of the land residual valuation method violates the undivided basis rule because it involves separate valuations of the waste transfer business and of the land. Again, we disagree.

The undivided basis rule is applicable when there are multiple owners of different interests in the subject property, and it requires that the separate interests be valued as an aggregate. The condemnor is then released, and the owners of the various interests subsequently apportion the proceeds among themselves. See Montgomery Ward & Co. v. City of Sterling, 185 Colo. 238, 523 P.2d 465 (1974). Here, however, DWT owned a single fee simple interest, and there was no attempt to value that interest separate from any lesser interest, such as a leasehold.

Moreover, while separate awards are not permissible, where it is established that improvements or appurtenant rights enhance the value of property, evidence of the separate values of the land and appurtenant rights is admissible. City of Gunnison v. McCabe Hereford Ranch, Inc., 702 P.2d 768 (Colo.App.1985). Here, the experts agreed that the PUD and permit for a waste transfer station increased the value of the property. The evidence regarding the proposed facility was introduced as part of the calculation of the value of the permitted land and not for purposes of compensation for the proposed facility. Thus, to the extent that evidence of separate values for the land and the permit was introduced, such evidence was admissible.

IV.

Prior to trial, the trial court denied the City's motion to exclude evidence regarding the City's efforts to oppose the PUD application, finding that it was relevant to valuation, timeline, and credibility issues, and that it was not unfairly prejudicial under CRE 403. The commission admitted the evi-denee at trial, but only for limited purposes. It determined that the evidence was admissible as background on the issuance of the permit, the steps necessary to obtain it, and the timeline of the process, but also determined that evidence of the City's motivation for opposing the PUD was prejudicial and irrelevant.

The City contends that this evidence should have been excluded because it violates the project influence doctrine by including valuation amounts arising from the fact of the acquisition itself and that, in any event, it is irrelevant to the valuation issue and prejudicial, We disagree.

When determining just compensation for eminent domain purposes, any change in the value of the property attributable to the effects of the condemnation and proposed public use may not be considered. Williams v. City & County of Denver, 147 Colo. 195, 363 P.2d 171 (1961); City of Boulder v. Fowler Irrevocuble Trust 1992-1, 53 P.3d 725, 2002 WL 5531 (Colo.App. No. 01CA0224, Jan. 3, 2002).

Here, however, even if the City's opposition to the PUD application were a part of its eminent domain plan to enlarge Centennial Park, those actions and the plan itself did not have any effect on the value of the property after the PUD and permit were ultimately issued by the City of Sheridan. While DWT argued that a PUD and permit added significant value because of the difficulty of obtaining approval, the asserted difficulty was the public opposition and not the actions of the City. Thus, the project did not have any influence on the value of the property, and the evidence should not have been excluded on the basis of project influence.

While the parties agreed that the PUD and permit approval added value to the property, they sharply disagreed as to the amount of added value. The City asserted that PUD and permit approval could be obtained on other similarly zoned property and that the added value should be limited to the cost of obtaining the approval. DWT, however, asserted that the approval process was very difficult and involved significant risk, such that approval added significant value to the property. Regarding the feasibility of the intended use as a waste transfer station, the parties also disagreed on the extent to which certain environmental concerns were addressed in the PUD process. We therefore agree that the nature and extent of the PUD proceedings were relevant to the valuation issue.

A ruling on the admissibility of evidence under CRE 408 is reviewed under an abuse of discretion standard, and the reviewing court is to attribute to the evidence the maximum probative value and minimum unfair prejudice. Bonser v. Shainholtz, 3 P.3d 422 (Colo.2000). Here, the evidence of the City's involvement was intertwined with the PUD process itself and the issues raised therein. Moreover, the commission minimized any prejudicial effects by excluding testimony regarding the City's motives in opposing the PUD. Thus, we conclude that the commission did not abuse its discretion in admitting the evidence.

The judgment is affirmed.

Judge CASEBOLT and Judge NIETO concur.