author: Judge KAPELKE.

text:
    Carol ELLIS and John Ellis, Plaintiffs-Appellees, v. TOWN OF ESTES PARK, Defendant-Appellant.
    No. 01CA2236.
    Colorado Court of Appeals, Div. III.
    Nov. 7, 2002.
    Rehearing Denied Dec. 19, 2002.
    Certiorari Denied April 14, 2003.

      Fleishman, Sterling, Gregory & Shapiro, P.C., Steven A. Shapiro, Melissa J. Winthers, Denver, Colorado, for Plaintiffs-Appellees.
    Hall & Evans LL.C., Jennifer L. Veiga, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge KAPELKE.

Defendant, the Town of Estes Park, appeals the order denying its motion to dismiss, for lack of subject matter jurisdiction, the claims brought against it by plaintiffs, Carol and John Ellis. We affirm.

In their amended complaint, plaintiffs alleged that Carol Ellis was injured when she tripped over a metal manhole cover of an electrical vault owned, operated, and maintained by the Town as part of its electrical supply system. The manhole was located on private property owned by a third party, who operated a restaurant and lounge. Plaintiffs asserted claims against the Town and the third party for negligence and loss of consortium.

The Town moved to dismiss plaintiffs' complaint as barred by the Colorado Governmental Immunity Act (GIA), § 2410-101, et seq., C.R.S.2002. Specifically, the Town argued that the electrical vault did not constitute a "public electrical facility" for purposes of a waiver of its immunity under § 24-10-106(1)(e) and ({), C.R.S.2002, because the electrical vault benefited only one property, the restaurant.

The trial court found that, through the electrical vault in question, the Town provided electrical power exclusively to the restaurant, a privately owned business on private property. However, the court further found that the general public patronizing the restaurant received a separate and distinct pub-lie benefit from usage of the electricity provided by the Town. Consequently, the court found that the electrical vault was also operated for the benefit of the general public and not solely for the benefit of the property upon which it was located. Accordingly, the court held that the Town's immunity had been waived. The Town then brought this interlocutory appeal pursuant to § 24-10-108, C.R.S8.2002.

The Town contends that the trial court erred in determining that its immunity under the GIA had been waived. Specifically, the Town argues that, because the electrical vault exclusively provides electrical service to the privately owned restaurant, it does not constitute a "public electrical facility" for purposes of § 24-10-106(1)(e) or (f). We disagree.

Section 24-10-106(1)(e) provides that a public entity's immunity from suit is waived in an action for injuries resulting from "[al dangerous condition of any public ... electrical ... facility." Similarly, § 24-10-106(1)(F) provides that a public entity's immunity from suit is waived in an action for injuries resulting from the "operation and maintenance of any public ... electrical facility."

We are aware of no Colorado case law determining what constitutes a "public electrical facility" for purposes of either § 24-10-106(1)(e) or (F). However, four opinions have analyzed an analogous question under § 24-10-106(1)(f) regarding whether a water meter pit is a "public water facility."

In City & County of Denver v. Gallegos, 916 P.2d 509 (Colo.1996), overruled in part by Corsentino v. Cordova, 4 P.3d 1082 (Colo.2000), the supreme court held that a water meter pit that was located on private property, and that the property owner owned and was responsible for maintaining, did not constitute a "public water facility" for purposes of § 24-10-106(1)(f). In reaching this conclusion, the court interpreted the waiver provisions of the GIA narrowly in favor of the governmental entity. Applying that interpretation, the court found that the determinative factor in defining a public facility is whether the facility was operated for the benefit of the public. Because the water meter pit at issue benefited solely the property on which it was located, the Gallegos court concluded it did not benefit the general public and therefore did not constitute a public water facility.

In Horrell v. City of Aurora, 976 P.2d 315 (Colo.App.1998), a division of this court, applying the narrow interpretation of immunity set forth in Gallegos, held that a water meter pit that was located on private property, but was owned, maintained, and operated by the city, did not constitute a public water facility for purposes of § 24-10-106(1)(f). That the city owned and maintained the water meter pit did not distinguish the case from Gallegos in the division's view.

Thereafter, in deBoer v. Ute Water Conservancy District, 17 P.3d 187 (Colo.App.2000), a division of this court held that a water meter pit that was located on private property, but was owned, operated, and maintained by the public entity, did not constitute a public water facility. The court acknowledged that the narrow interpretation of immunity waiver standard set forth in Gallegos had been disapproved and that such provisions are to be construed deferentially in favor of victims. See Corsentino v. Cordo-va, supra. - Nevertheless, the division noted that the definition of "public facility" set forth in Gallegos was still controlling. Accordingly, the division determined that the water meter pit, which benefited solely the property on which it was located, did not constitute a public water facility.

Finally, in Wisdom v. City of Sterling, 36 P.3d 106 (Colo.App.2001), a division of this court analyzed whether a water meter pit that serviced a single private business, was located on a city sidewalk, and was owned, operated, and maintained by the city constituted a public water facility. Applying the definition of "public facility" set forth by the supreme court in Gallegos and relying on the definitions of "city water system" and "water service" in the municipal code, together with the definition of "water facilities" in the Colorado statutes, the division determined that the water meter pit provided a public benefit and thus constituted a "public water facility" for purposes of § 24-10-106(1)(F). In reaching this conclusion, the division stated that its decision was not inconsistent with Gaille-gos because the water meter pit in that case was neither owned nor maintained by the city. The division also distinguished the decisions in Horrell and deBoer on the basis that the water meter pits in those cases were located on private property.

Here, the metal manhole cover on which Carol Ellis tripped was located on property owned by the restaurant and covered an electrical vault owned, operated, and maintained by the Town. As noted by the trial court, the electrical vault, which housed a transformer, provided electricity exclusively to the restaurant, which served numerous members of the general public.

The Town's municipal code provides that the light and power department for the Town "shall have control of the operation and maintenance of the electric plant and works for the manufacture, generation, transmission and distribution of electricity." The code specifically provides that the director of the light and power department "shall perform all acts that may be necessary for the prudent, efficient and economical management and protection of the light and power works."

The code also provides that "[alll installations of wire, meters, transformers or other material or equipment by the Department at its expense shall remain the property of the Department." In addition, the code states:

In connection with the purpose and distribution of electrical energy, the [Town of Estes Park Light and Power Enterprise] shall be responsible for, among other things, the construction, operation, repair and replacement of electric power distribution facilities, and administration using revenues and income generated by and earned or acquired in connection with its light and power activities and held and managed in the Town's light and power enterprise fund.

We conclude that these provisions of the Town's code, together with the evidence supporting the trial court's findings, demonstrate that the electrical vault at issue here provides a public benefit. As noted by plaintiffs, the use of transformers and the electrical vaults in which they are located are necessary for the efficient delivery of electrical power over the Town's electrical supply system. Thus, although the electrical vault in question obviously benefits the property on which it is located, it also provides a public benefit by permitting the efficient delivery of electricity by the Town.

Contrary to the Town's argument, we do not find the location of the electrical vault on private property to be determinative. See Burnworth v. Adams County, 826 P.2d 868 (Colo.App.1991)(holding that despite storm drain's location on private property, it was a public sanitation facility because it was operated for the benefit of the general public). Rather, it is the public benefit of the facility that is more significant. See Wisdom v. City of Sterling, supra.

Therefore, we agree with the trial court that, under the cireumstances, the electrical vault does not benefit solely the property on which it is located. Consequently, we conclude that it constitutes a "public electrical facility" for purposes of § 24-10-106(1)(e) and (£) and that the trial court properly determined that the Town's immunity was waived under these provisions. Thus, the court did not err in denying the Town's motion to dismiss.

The order is affirmed.

Judge JONES and Judge DAVIDSON concur.


source: Caselaw Access Project

author: Judge TAUBMAN.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas W. McQUARRIE, Defendant-Appellant.
    No. 01CA1966.
    Colorado Court of Appeals, Div. II.
    Nov. 7, 2002.
    Rehearing Denied Jan. 2, 2003.

      Ken Salazar, Attorney General, Deborah I. Pratt, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Thomas W. MeQuarrie, Pro Se.

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

   Opinion by

Judge TAUBMAN.

Defendant, Thomas W. McQuarrie, appeals the district court's order denying his Crim. P. 35 motion. We affirm in part and reverse in part.

Defendant pleaded guilty to unlawful distribution of a schedule II controlled substance and, on February 5, 1996, was sentenced to a ten-year prison term. Although the minute order and the mittimus indicate that defendant must pay $2280 in costs and surcharges as part of his sentence, the sentencing court did not mention this obligation at the sentencing hearing.

Defendant filed the motion at issue on July 28, 2001, claiming that the costs and surcharges were illegal and amounted to a second punishment in violation of the constitutional prohibition against double jeopardy because they were not imposed until after his sentencing hearing. The district court denied the motion without a hearing, and this appeal followed.

Initially, we note that the People do not contest the timeliness of defendant's motion, and the trial court considered the motion on the merits. Under these cireumstances, we will do the same. See People v. Kilgore, 992 P.2d 661 (Colo.App.1999).

Defendant contends that the trial court violated his right to be free from double jeopardy when it assessed various costs and surcharges against him outside his presence and after the pronouncement of his sentence of confinement in open court. We agree in part.

The Double Jeopardy Clauses of the United States and Colorado Constitutions protect a defendant from being twice punished for the same offense. See Witte v. United States, 515 U.S. 889, 115 S.Ct. 2199, 182 L.Ed.2d 351 (1995); Righi v. People, 145 Colo. 457, 859 P.2d 656 (1961). Thus, increasing a lawful sentence after it has been imposed and the defendant has begun serving it may, in certain cireumstances, violate this aspect of double jeopardy protection. People v. Chaves, 32 P.3d 613 (Colo.App.2001). Accordingly, a division of this court has held that increasing the amount of restitution after the defendant began serving his sentence impermissibly punished the defendant twice for the same offense. People v. Shepard, 989 P.2d 188 (Colo.App.1999). Similarly, another division of this court has held that changing a sentence from concurrent to consecutive, after the defendant began serving it, impermissibly punished the defendant twice for the same offense. People v. Sandoval, 974 P.2d 1012 (Colo.App.1998).

Recently, a division of this court addressed a double jeopardy issue in cireumstances almost identical to those presented here. In People v. Howell, 64 P.3d 894, 2002 WL 31116762 (Colo.App. No. 01CA0905, Sept. 12, 2002), the trial court orally pronounced the defendant's sentence without any reference to assessment of costs. Subsequently, the court issued a mittimus that imposed court costs, including those related to the supervision of the defendant's probation.

The Howell division concluded that the imposition of such costs did not violate principles of double jeopardy because the costs at issue there were not a form of punishment, but rather sanctions that were essentially civil. The Howell division also noted that costs are not traditionally considered to be punishment and that the imposition of costs generally does not serve the goals of retribution and deterrence.

We agree with the reasoning in Howell and find it persuasive. Thus, to the extent defendant challenges the following costs and surcharges, he is not entitled to relief: docket fee, § 18-82-105(1), C.R.8.2002; vice-tim compensation costs, § 24-4.1-119(1)(a), C.R.S.2002; and victims and witnesses surcharge, § 24-4.2-104(1)(a)(T), C.R.8.2002.

However, we reach a different conclusion with respect to the drug offender surcharge imposed in the mittimus against defendant pursuant to § 18-19-103(1), C.R.S. 2002. The post-sentencing imposition of a statutory surcharge in a criminal case does not, without more, constitute unconstitutionally cumulative punishment that violates the prohibition against double jeopardy. See People v. Thien Van Vo, 932 P.2d 849 (Colo.App.1996). However, in People v. Stead, 845 P.2d 1156 (Colo.1993), the supreme court held that the drug offender surcharge is considered punishment for purposes of ex post facto analysis because it is part of Colorado's criminal code and is imposed as a sanction only after an individual has been convicted of, or entered a plea of guilty to, a drug-related offense under Colorado's criminal code. More recently, in Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 1839 LEd.2d 450 (1997), the Supreme Court stressed that the Double Jeopardy Clause protects only against multiple eriminal punishments for the same offense. Accordingly, we conclude that the drug offender surcharge, a criminal sanction, also constitutes punishment for purposes of double jeopardy analysis. See People v. Shepard, supra.

Moreover, the cireumstances here are unlike those in People v. Barth, 981 P.2d 1102 (Colo.App.1999), in which a division of this court held that the belated imposition of a period of mandatory parole, which automatically attaches to a sentence by operation of law, for that reason does not violate double jeopardy principles. Here, in contrast, the drug offender surcharge imposed pursuant to § 18-19-108(1) may be waived in full or in part based upon a defendant's financial ability to pay. See § 18-19-103(6), C.R.8.2002. In this respect, it differs from the above-noted nonwaivable costs, the subsequent imposition of which does not violate double jeopardy principles. See People v. Howell, supra.

Thus, because the drug offender surcharge is considered punishment and is not mandatory in all cases, the Double Jeopardy Clause required the trial court to impose such a fine at the time that it imposed defendant's sentence in open court. See People v. Reed, 43 P.3d 644 (Colo.App.2001)(trial court is prohibited under Double Jeopardy Clause from increasing legal sentence once it has been imposed and defendant has began serving it).

Accordingly, the trial court's order is affirmed as to the imposition of the docket fee, vietim compensation costs, and victims and witnesses surcharge and reversed as to the imposition of the drug offender surcharge.

Judge DAILEY and Judge CRISWELL concur.


author: Judge MARQUEZ.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel G. BAIRD, Defendant-Appellant.
    No. 99CA2221.
    Colorado Court of Appeals, Div. V.
    Nov. 7, 2002.
    Certiorari Denied March 24, 2003.

      Ken Salazar, Attorney General, Wendy J. Ritz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Lisa Dixon, Deputy State Public Defender, Denver, Colorado, for Defendant, Appellant.

       Justice RICE does not participate; Justice MARTINEZ and Justice BENDER would grant as to the following issues:

        Whether the trial court's failure to give defense counsel an opportunity to contribute to the juror notebooks, or review them before trial, was error under Crim.P.16(IV)(F), or prejudiced petitioner's right to a fair trial.
      Whether the trial court's discussion with a juror regarding the juror's travel plans without counsel present and allowance of deliberations past midnight deprived petitioner of his right to counsel and a fair trial.

   Opinion by

Judge MARQUEZ.

Defendant, Daniel G. Baird, appeals the judgment of conviction entered on jury verdicts finding him guilty of one count of attempted second degree murder, an accompanying count of crime of violence, and two counts of first degree assault. Defendant also appeals his sentence. We affirm in part, vacate in part, and remand for correction of the mittimus.

On September 22, 1996, at approximately 11:00 p.m., after defendant and his wife had gone to bed, the wife's former husband attempted to return their child to defendant's home located in a rural neighborhood. A deputy sheriff followed the former husband to the home and escorted the child to the door. The deputy knocked loudly enough to awaken defendant and his wife, but did not identify himself as a police officer. The deputy was carrying his flashlight, but did not direct his headlights at the house or turn on his overhead light bar.

Defendant, purportedly in fear for his safety and that of his family, picked up a decorative sword and proceeded to the door. Holding the sword in front of him, defendant opened the door, and the sword struck the deputy's chest. Not realizing it was a sword, the deputy pushed it away with his right hand, sustaining cuts that required twenty-two stitches.

A state trooper responded to the deputy's call for assistance and, after observing the scene and speaking with defendant, placed defendant under arrest.

After jurors were sworn, but before opening statements, one juror became ill and was exeused. No alternate juror was available, and despite his attorney's advice to request a mistrial, defendant agreed to proceed with eleven jurors.

Following trial, defendant was sentenced to twelve years imprisonment for each count, with the sentences to run concurrently.

I. Defendant's Statements

Defendant contends that the trial court should have suppressed his statements to the trooper because they were made during a custodial interrogation without the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and because they were not made voluntarily. We disagree.

A. Custodial Interrogation

We first conclude that defendant's statements were not made during a custodial interrogation.

As a preliminary matter, we note that defendant requested a hearing on voluntariness under Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and that the trial court made no findings as to custodial interrogation.

For Miranda to be applicable, the suspect must be in custody and the statement must be the product of a police interrogation. People v. Reddersen, 992 P.2d 1176 (Colo.2000).

Statements made during a custodial interrogation are admissible only if the person making them has been properly advised of his or her rights and if the person has made a knowing, intelligent, and voluntary waiver of those rights. People v. Rivas, 13 P.3d 315 (Colo.2000); People v. Harrison, 58 P.3d 1108, 2002 WL 1040277 (Colo.App. No. 01CA0147, May 23, 2002).

The term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police, other than those normally attendant to arrest and custody, that the police should know are reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); People v. Taylor, 41 P.3d 681 (Colo.2002). However, an on-the-seene investigation or questioning that enables an officer to determine what has happened and who has been injured is not an interrogation under Miranda. People v. Denison, 918 P.2d 1114 (Colo.1996).

Here, upon entering defendant's residence, the state trooper asked defendant, "What happened?" According to the trooper's testimony at trial, defendant responded:

He said he heard a pounding at the door. We were in bed. I had a sword to protect my family. I thought it was her ex-husband. I thought it was her ex-husband-I'm sorry-I thought it was her ex-husband. He's a brown belt in Karate. He sometimes carries a gun. I did not mean to stab the deputy.

Defendant denied making these statements.

Defendant contends that when the trooper asked "what happened," the trooper had already determined that a crime had been committed and that defendant was a suspect. Defendant also asserts that he was not free to leave because the deputy had at one point drawn his gun and later told him to stay in the house, rather than go outside and confront the ex-husband. We are not persuaded.

The trooper's question constituted an on-the-scene investigation. See People v. Denison, supra. However, even if the question is viewed as interrogation, we conclude that defendant was not in custody.

The question of custody turns on an objective assessment of whether a reasonable person in the suspect's position would believe himself or herself deprived of freedom of action to the degree associated with a formal arrest. To determine whether a person is in custody, we consider a number of factors including the time, place, and purpose of the encounter, the persons present, the words spoken, the officer's tone of voice and general demeanor, the length and mood of the interrogation, any limitation of movement or other form of restraint, responses to questions asked by the defendant, directions given to the defendant, and the defendant's responses. People v. Matheny, 46 P.3d 458 (Colo.2002); People v. Taylor, supra; see People v. Mangum, 48 P.3d 568 (Colo.2002).

Determining whether a person is in eusto-dy for Miranda purposes is a mixed question of law and fact. People v. Matheny, supra.

While the trial court here made no findings on custody, the following facts are undisputed. The question was asked in defendant's home in the middle of the night, after an officer had been injured. Except for being told by the deputy not to go outside when defendant indicated he wanted to get the ex-husband off his property, defendant was not restrained or limited in his movement. While two officers were present, one was injured, and at the time of the question neither officer had a weapon drawn. Only one short question was asked, and after answering the trooper, defendant refused to be arrested in his home. This refusal strongly indicates that defendant did not believe himself to be in custody at the time of the trooper's question.

We therefore conclude defendant's statements were not the product of a custodial interrogation, but rather responses to an appropriate on-the-seene investigation.

B. Voluntariness

Nor did the trial court err in ruling that defendant's statements to the trooper were voluntary.

A statement obtained from a defendant is admissible only if it was voluntary. People v. DeBaca, 7836 P.2d 25 (Colo.1987).

Whether a statement is voluntary depends on the totality of the circumstances, which must demonstrate that the accused's statement is the product of his or her free and rational choice. People v. Taylor, supra; People v. Blankenship, 80 P.8d 698 (Colo. App.2000).

The ultimate question is whether the defendant was compelled by the police to make a statement. People v. Rivas, supra. The burden is on the prosecution to establish by a preponderance of the evidence that the statements were made voluntarily. People v. Taylor, supra.

Defendant contends that the deputy had told him he was not under arrest, thereby impliedly promising that defendant was immune from eriminal lability and was a witness rather than a suspect. Accordingly, defendant asserts he was tricked into making the statements. We reject this contention.

A reviewing court is bound by the trial court's findings of fact on voluntariness. People v. DeBaca, supra.

Here, the trial court's findings that there were no "threats, violence, promises or any undue influence" are supported by the record, which contains no evidence of coercive police activity. After the deputy was injured, defendant had dressed, rendered assistance, and waited with the deputy for help to arrive. When the trooper arrived, defendant was in his own home, and he had been told he was not under arrest. He was not under any physical restraints, and he had been awake for approximately half an hour.

Thus, we conclude that the trial court properly ruled that defendant's statement was voluntary.

II. Eleven-Member Jury

Defendant next contends that the trial court should have ordered a mistrial when one of the twelve jurors became ill, leaving only eleven. Specifically, he asserts that his waiver of his right to twelve jurors was not in writing, as required by statute, and therefore, he was deprived of his substantive right to a fair trial. We disagree.

A trial court has broad discretion in deciding whether to grant a mistrial, and its decision will not be overturned absent a gross abuse of discretion and prejudice to a party. A mistrial is a drastic remedy and is warranted only if the prejudice to the defendant cannot be remedied by other means. People v. Fears, 962 P.2d 272 (Colo.App.1997).

In Colorado, every person accused of a felony has a statutory right to be tried by a jury of twelve. See § 18-1-406(1), C.R.S. 2002. This right may be waived if a juror becomes unable to serve.

If no alternate juror is available to replace the juror, the parties at any time before verdict may stipulate in writing with court approval that the jury shall consist of any number less than twelve, and the jurors thus remaining shall proceed to try the case and determine the issues unless discharged by the court for inability to reach a verdict.

Section 16-10-106, C.R.98.2002.

A statutory right may be waived by counsel's statements. See People v. Allen, 744 P.2d 73 (Colo.1987). When defense counsel stipulates to a jury of less than twelve in open court and on the record, the requirement of Crim. P. 23(a)(7) that the stipulation be in writing is met. See People v. Waters, 641 P.2d 292 (Colo.App.1981); see also People v. Chaves, 791 P.2d 1210 (Colo. that counsel's verbal request for six-person jury, in presence of defendant, was sufficient to waive statutory right to full jury).

Here, the record reflects that the trial court advised defendant of his right to a jury of twelve persons and inquired whether defendant was giving up that right freely and voluntarily. Defendant, in open court, knowingly, voluntarily, and with advice of counsel, waived his right to twelve jurors.

To the extent that he asserts he rejected his counsel's advice because he could not afford to pay the additional attorney expenses associated with a new trial, defendant did not raise this issue in the trial court until his motion for new trial Thus, we do not address that issue here. See People v. Williams, 33 P.3d 1187 (Colo.App.2001).

III. Jury Notebooks

We also reject defendant's contention that the trial court's failure to give defense counsel an opportunity to review or contribute to the jury notebooks resulted in the inclusion of materials that encouraged deliberation before the end of the trial, shifted the burden of proof, and prejudiced defendant in violation of his right to a fair trial.

Crim. P. which was adopted January 1, 1999, only four months before this trial, states:

Juror notebooks shall be available during all felony trials and deliberations to aid jurors in the performance of their duties. Counsel shall confer about the items to be included in juror notebooks and, by the pre-trial conference or other date set by the court, shall make a joint submission to the court of items to be included in a juror notebook.

The rule provides no guidance when the jury receives notebooks developed in violation of the rule.

Here, although the record indicates the jury notebooks were destroyed after the trial, it is undisputed that the notebooks were not jointly submitted to the court after conference between defense counsel and the prosecution. As the trial court was explaining the purpose of the notebooks to the jury, defense counsel, who was unaware of the new rule, interrupted and asked whether the notebooks contained anything except blank paper. The trial court did not inform counsel at that time that the notebooks contained jury instructions and a copy of the amended information. Although the court advised defense counsel of their contents during a break in the cross-examination of the prosecution's first witness, defense counsel made no further inquiry.

Defense counsel was allowed to take a notebook home for examination after the first day of trial,. The next day he objected that the notebook indicated jurors could deliberate before the case was presented to them, and that it included the charges and instructions but not defendant's theory of the case. However, he did not request a mistrial, and at one point stated, "I am not challenging those issues at this time."

A. Premature Deliberations

Defendant contends that the notebooks invited the jurors to engage in premature deliberations and that the jurors did, in fact, do so. While that information in the notebooks was error, we find no basis for reversal.

The relevant jury standards do not authorize such early deliberations in criminal cases. See People v. Preciado-Flores, - P.3d -, 2002 WL 31357331 (Colo.App. No. 99CA2533, Oct. 10, 2002); cf. R.L. Kourlis & J. Leopold, Colorado Jury Reform, 29 Colo. Law. 21 (Feb.2000).

Here, the record indicates the notebooks contained an instruction that incorrectly advised the jurors they could discuss the case before the trial concluded. However, during voir dire, the trial court instructed the jurors not to discuss the case until it was submitted to them for deliberations, and it repeated these instructions throughout the remainder of the trial. Apparently confused by the discrepancy, at the close of evidence the jurors asked the trial court for clarification and were again instructed not to deliberate until the trial was completed.

If a jury is not sequestered, an admonitory instruction ensures that the jurors remain impartial and free from outside influences by impressing upon them their duty to decide the guilt issue solely on the evidence presented in court. People v. Vialpando, 809 P.2d 1082 (Colo.App.1990).

Defendant relies on Lybarger v. People, 807 P.2d 570 (Colo.1991) and Barnes v. People, 735 P.2d 869 (Colo.1987) for the proposition that when a jury receives two conflicting instructions, the fact that one instruction contains a correct statement of the law does not cure the error created by the incorrect and prejudicial statement of the law. However, those cases are distinguishable because the conflicting instructions there did not address jury deliberations. Further, the instructions in those cases were given only once, at the same time, and without subsequent correction. Here, the jury was repeatedly given the correct information, and the jury recognized the discrepancy and sought and received clarification.

Further, a conviction will not be overturned and a new trial granted based upon allegations of juror misconduct unless the defendant affirmatively establishes that the misconduct occurred and that he or she suffered actual prejudice as a result. See People v. Gareiq, 452 P.2d 570 (Colo.1988).

Instructional errors that do not affect a defendant's substantial rights or prejudice his or her defense are harmless. People v. Rodriguez, 914 P.2d 230 (Colo.1996); People v. Ferguson, 43 P.3d 705 (Colo.App.2001); see Crim. P. 52.

Here, we conclude any error was rendered harmless by the court's correct instructions.

B. Defendant's Case

Defendant also contends that the notebooks stated that the defendant always presents a case and testifies. We agree that this information was erroneous in the context of a criminal trial. However, here, defendant presented a case and testified. Therefore any misunderstanding on the part of the jury would not have been prejudicial.

C. - Failure to Confer

Defendant further contends that the trial court distributed the notebooks without allowing defense counsel to review or contribute to them. However, defense counsel was allowed, mid-trial, to take home a juror notebook, and he made his objections the following day. He did not request any addition to the notebooks. Further, the court instructed the jury on defendant's theory of the case, and his counsel was allowed to argue his theory before the jury.

Thus, any error in the lack of a timely conference or review of the notebooks was harmless.

IV, Victim's Testimony

Nor do we agree with defendant's contention that reversal is required because the trial court permitted the victim to testify, without being qualified as an expert, that the sword would have hit his heart but for his body armor.

Under CRE 701, when a witness is not testifying as an expert, his or her testimony in the form of opinions or inferences must be (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. Officer testimony is objectionable when it is essentially expert testimony improperly admitted under the guise of lay opinion. People v. Stewart, 55 P.3d 107 (Colo.2002).

Here, the deputy testified, over defendant's objection, "There is no doubt in my mind if I did not have my body armor with the trauma plate in it that the sword would have penetrated my heart." However, even if this statement were erroneously admitted without qualifying the witness as an expert, it was harmless in view of the other evidence describing this contact. There is no dispute the sword was very sharp, and it contacted the deputy in the area of his heart. According to the deputy, the contact was of sufficient force that it pushed him backwards.

V. Sufficiency of Evidence

Contrary to defendant's contention, the evidence was sufficient to support his convie-tions for attempted second degree murder and the accompanying crime of violence count, as well as first degree assault with a deadly weapon. However, because we conclude that one of defendant's two convictions of first degree assault must be vacated, we do not address his contention that the evidence was insufficient to support his conviction for first degree assault with extreme indifference.

When a defendant asserts that the evidence was insufficient to support a convietion, we review the evidence as a whole and in the light most favorable to the prosecution to ascertain whether a reasonable juror could conclude that the prosecution proved the challenged element of the charged offense beyond a reasonable doubt. See Kogan v. People, 756 P.2d 945 (Colo.1988).

A. Attempted Second Degree Murder

Contrary to defendant's argument, the evidence was sufficient to prove that he knew that the deputy was standing just outside his door and that death was "practically certain" to result by opening the door and holding the sword in front of him.

"A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense." Section 18-2-101(1) C.R.S8.2002.

A person commits the crime of second degree murder if "the person knowingly causes the death of a person." Section 18-8-103(1), C.R.S.2002. "A person acts 'knowingly' or 'willfully,' with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result." Section 18-1-501(6), C.R.8.2002.

Both parties agree that the sword was sharp and that defendant did not swing it. Although defendant testified that the deputy "ran into his sword," the deputy testified that after the door was opened, he "had gotten poked in the chest" and "was being pushed back." Thus, the jury was free to accept the deputy's testimony and find that defendant used the sword in a manner that was "practically certain" to cause death. See People v. Medina, 185 Colo. 183, 522 P.2d 1233 (1974)(court will neither weigh the evidence nor appraise the credibility of witnesses).

We therefore conclude there was sufficient evidence to support defendant's conviction of attempted second degree murder.

B. First Degree Assault Deadly Weapon

Further, there was sufficient evidence to prove the intent element of first degree assault with a deadly weapon.

A person commits the crime of assault in the first degree with a deadly weapon if "Iwlith intent to cause serious bodily injury to another person, he causes serious bodily injury to any person by means of a deadly weapon." - Section 18-8-202(1)(a), CRS. 2002.

"Serious bodily injury" means:
bodily injury which, either at the time of the actual injury or at a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.

Section 18-1-901(8)(p), C.R.8.2002.

Here, the deputy's injuries consisted of several cuts on his right hand. The severity of the injuries was demonstrated by the loss of blood, as testified to by defendant and the deputy, as well as the need for twenty-two stitches to close the wounds. The officer testified that he could see the bones and tendons. Thus, there was evidence of a substantial risk of serious permanent disfigurement or impairment of the function a part of the victim's body.

Further, when viewed in the light most favorable to the prosecution, the deputy's testimony that the sword struck him with enough foree to make him step back was sufficient evidence for the jury to conclude that defendant possessed the requisite intent to cause serious bodily injury. See People v. Collie, 995 P.2d 765 (Colo.App.1999)(defendant's intent can rarely be proved other than by circumstantial or indirect evidence).

C. - One Victim, One Conviction

Because the record reflects only one victim and one act, we conclude that defendant's conviction for first degree assault with extreme indifference must be vacated.

By separate order, we requested both parties to submit simultaneous briefs addressing the following question, "Can defendant be convicted of two counts of first degree assault when there is only one victim and one criminal act?" The order referred the parties to People v. Moore, 877 P.2d 840, 845 (Colo.1994), in which the supreme court, citing People v. Lowe, 660 P.2d 1261 (Colo.1983), stated, "If there is only one victim, and one criminal act, the defendant can be convicted of only one count of assault."

In response, the People concede that under the reasoning of Lows, only one convietion of first degree assault should be entered. The People admit "it would appear that the two forms of assault are simply alternative ways of proving the same offense-first degree assault."

We agree and, in view of our disposition of defendant's conviction for first degree assault by a deadly weapon, we conclude that defendant's conviction for extreme indifference first degree assault must be vacated. In doing so, we express no opinion whether the evidence is sufficient to support that convietion or whether that conviction is inconsistent with his conviction for first degree assault with a deadly weapon, as defendant contends.

Both convictions for first degree assault are class three felonies. See § 18-3-202(1)(a) and (c), C.R.S.2002. A defendant convicted pursuant to these provisions must be sentenced in accordance with the provisions of § 18-1.3-406, C.R.98.2002. See Colo. Sess. Laws 1990, ch. 128, § 18-8-202(2)(c) at 986. Because defendant received the same concurrent sentence for each of his convictions, regardless of which conviction is vacated, his term of imprisonment will not be affected.

D. Self-Defense

Defendant next contends that his actions were consistent with his claim of self-defense and that the prosecution failed to disprove that affirmative defense beyond a reasonable doubt. We disagree.

Section 18-1-704(1), C.R.S.2002, provides in pertinent part that with certain exceptions,

a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree foree which he reasonably believes to be necessary for that purpose.

Here, as noted below, the court instructed the jury on self-defense. Further, defendant argued his position at trial and included it in his theory of the case instruction. The prosecution presented evidence that defendant was the aggressor, and the jury was instructed that the People's burden was proof beyond a reasonable doubt. However, there is no evidence that the deputy was engaged in the use or imminent use of unlawful physical force. The deputy knocked on the door, and while he did not identify himself, he did not draw his weapon until after he was injured by the sword. Further, defendant opened the door and pointed the sword without first inquiring of the deputy's intent.

Accordingly, there was evidence from which the jury could conclude that defendant's actions were not in self-defense or defense of others.

VI. Tendered Jury Instructions

We also reject defendant's contention that the denial of his tendered jury instructions requires reversal.

A defendant is entitled to an instruction on his or her theory of the case if there is any evidence in the record to support it. People v. Gracey, 940 P.2d 1050 (Colo.App.1996). However, a trial court may refuse an instruction if it is argumentative, unduly emphasizes particular evidence, or contains statements not supported by the evidence. See People v. Bowring, 902 P.2d 911 (Colo.App.1995). Nor is the court required to instruct the jury on the defendant's theory in the particular language tendered by the defendant. People v. Gracey, supra.

A. Theory of Defense Instruction

Here, the trial court gave the following part of defense counsel's proffered theory of defense instruction:

You are instructed that it is the defendant's theory of the case that he is not guilty of any of the erimes charged. It is the defendant's theory that the injury to [the deputy] was the product of a series of combined faulty judgments including the following: The Baird household was not alerted; the child ... was being returned without notice; the Park County Sheriff's Department did not notify the Baird . household that the child was being returned by a deputy; and ... [the deputy] failed to properly identify himself by verbal announcement or by illumination, or by horn or otherwise.
It is the defendant's theory that the defendant's actions were reasonable and lawful. The defendant asserts that he intended to defend, not offend.

Concluding that the following portions were unduly argumentative, the court excised this language:

. as indicated by their having gone to sleep and their state of disrobe;
The problem was complicated by the deputy grasping an item when he did not know what it was and, of course, by the defendant's reaction to the shock of being awakened, the fear of an unannounced late night visitor, and the need to take precaution to protect his wife and infant son from any impending harm.

Because the excised portions were unduly argumentative, we perceive no abuse of discretion by the court.

B. Self-Defense Instruction

Nor did the court err in instructing the jury on self-defense.

Defense counsel tendered the following self-defense instructions:

One is entitled to act on appearances in using a deadly weapon to defend himself but the appearances must be such as, taking into consideration cireumstances at the particular instant, would have caused a reasonable and prudent man to use such weapon for his protection.
When a person has reasonable grounds for believing and does in fact actually believe that danger of his being killed or of receiving great bodily harm is imminent, he may act upon such appearances and defend himself even to the extent of taking human life when necessary although it may later turn out that the appearances were false or although he may have been mistaken as to the extent of the real or actual danger.

The trial court rejected these instructions without explanation, but gave the following self-defense and defense of others instruction, which stated in pertinent part consistent with CJI-Crim. 7:16 (1988):

It is an affirmative defense to each of the crimes charged that the defendant used physical foree upon another person
1. in order to defend himself or a third person from what he reasonably believed to be the use or imminent use of unlawful physical force by the victim, and
2. he used a degree of force which he reasonably believed to be necessary for that purpose.

The trial court also gave the following mistake of fact instruction based on CJI-Crim. 7:02 (1983):

It is an affirmative defense to each of the crimes charged that the defendant engaged in the prohibited conduct under a mistaken belief of fact, if such mistaken belief of fact negates the existence of a particular mental state essential to the commission of the offense.

The self-defense instruction given here is almost identical to that given and approved in Beckett v. People, 800 P.2d 74 (Colo.1990), and we find no error.

VIL. - Juror's Travel Plans

Defendant finally contends that the trial court's efforts to accommodate a juror's travel plans by permitting deliberations to extend past midnight deprived defendant of a fair trial. He asserts that the juror's plans gave her a "personal motive to rush the verdict." We do not agree.

Defendants have a constitutional right to due process and a fair trial by an impartial jury. See U.S. Const. amends. V, VI, XIV; Colo. Const. art. II, §§ 16, 25. However, trial courts have broad discretion in conducting and scheduling trials See People v. District Court, 825 P.2d 1000 (Colo.1992); see also Mills v. Tinsley, 314 F.2d 8311 (10th Cir.1963)(holding that the length of time a jury may be kept together for deliberation is discretionary with the trial court).

Here, the jury began deliberating at approximately 5:00 p.m. on Thursday. Despite defense counsel's requests to excuse the jury for the evening, the jury remained until after midnight. Because one member of the jury had a scheduled plane flight the following morning, if the jurors had been excused for the evening, they could not have been reconvened until the following Wednesday.

There is no indication in the record that the juror's plans affected the verdict. When the trial court decided to excuse the jurors for the night, the bailiff reported that they were voting and had asked to be allowed to continue. Sometime after midnight, the jury returned its verdict.

We recognize the trial court's broad discretion in conducting and scheduling trials. See People v. District Court, supra; People v. Angel, 790 P.2d 844 (Colo.App.1989). It is not good judicial practice to hold unnecessarily long daily sessions of jury trials, and night sessions of such trials should not be encouraged. See Oertle v. United States, 370 F.2d 719 (10th Cir.1966). However, we cannot conclude that prejudice is inherent in the deliberations at issue here.

The court set no time limit and gave no "time-fuse" instruction. See Allen v. People, 660 P.2d 896 (Colo.1983)("time-fuse" instruction urging the jury to complete its deliberations within a given time limit constituted plain error and required reversal). Further, the court instructed the jury that "the verdict must represent the considered judgment of each juror." We presume that the jury followed the court's instructions, see People v. Dunlap, 975 P.2d 723 (Colo.1999), and defendant has failed to demonstrate an abuse of discretion.

The judgment of conviction and sentence for first degree assault by extreme indifference are vacated. In all other respects, the judgment and sentence are affirmed, and the case is remanded for correction of the mitti-mus.

Judge ROTHENBERG and Judge TAUBMAN concur.


author: Judge WEBB.

text:
    Debra L. KRAUSS, a/k/a Debra L. Love, Plaintiff-Appellant, v. CATHOLIC HEALTH INITIATIVES MOUNTAIN REGION, d/b/a Penrose Connection, a/k/a Centura Health, a/k/a St. Anthony Central Hospital, Defendant-Appellee.
    No. 02CA0108.
    Colorado Court of Appeals, Div. III.
    Jan. 30, 2003.
   Opinion by

Judge WEBB.

In this employment case, plaintiff, Debra L. Krauss (employee), appeals the summary judgment entered in favor of defendant, Catholic Health Initiatives Mountain Region (employer). She contends disputed issues of material fact exist concerning denial of or interference with her rights under the Family Medical Leave Act (FMLA), retaliation for her exercise of FMLA rights, constructive discharge, and public policy wrongful discharge. We discern no material fact issues and therefore affirm.

Employee was a long-term employee of employer. In early February 2000, she took FMLA leave because of a serious health problem. Employee had not been medically cleared to return to work when her twelve-week FMLA leave entitlement was exhausted. After giving her additional FMLA leave, employer discharged her when she failed to request personal leave or return to work.

Employee then brought this action. The parties agreed to conduct discovery before employer answered. Employer moved to dismiss based in part on employee's deposition. The trial court treated employer's motion as a motion for summary judgment and granted it on all claims.

We review a trial court's decision to grant summary judgment de novo using established standards. Summary judgment is appropriate only if the pleadings and supporting documents demonstrate no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The moving party has the burden to establish that no genuine issue of material fact exists, and any doubt should be resolved against the moving party. See Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995).

Once the moving party shows the absence of any material fact issue, the nonmoving party must demonstrate the existence of such an issue. C.R.C.P. 56(e);, Sullivan v. Davis, 172 Colo. 490, 474 P.2d 218 (1970). The nonmoving party must make this showing with admissible evidence and cannot rely on either pleadings, Smith v. Mehaffy, 30 P.3d 727 (Colo.App.2000), or argument alone. Bauer v. Southwest Denver Mental Health Center, Inc., 701 P.2d 114 (Colo.App.1985).

I. Violation of the FMLA

Employee argues disputed fact issues remain concerning employer's violation of the FMLA. We disagree.

The FMLA guarantees a qualified employee twelve weeks of unpaid leave each year for various reasons, including the employee's serious health problems. 29 U.S.C. §§ 2601-2654 (2002). An employer must reinstate the employee to his or her former position or its equivalent upon the employee's timely return from FMLA leave. 29 U.S.C. § 2614(@)(1).

Under 29 U.S.C. § 2617(a), employees may sue to enforce their FMLA rights on the basis of either the entitlement or interference theory, § 2615(a)(1), or the retaliation or - discrimination - theory, § 2615(a)(2). Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.8d 955 (10th Cir.2002).

A. Deprivation of FMLA Rights

Employee first contends employer deprived her of FMLA rights by discharging her while she was on FMLA leave. We disagree.

An entitlement claim involves proof of an FMLA right; the employer's interference with, restraint of, or denial of that right; and resulting prejudice to the employee. Ragsdale v. Wolverine World Wide, Inc., 585 U.S. 81, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002).

An employer must give the employee written notice, within one or two days after a leave request, if feasible, when leave is being treated as FMLA leave. 29 CER. § 825.301(c). Further, "If an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement." 29 C.F.R. § 825.700(a).

In Ragsdale, the Supreme Court assumed the regulatory notice requirement was valid. However, the court invalidated the regulatory penalty that leave taken before designation did not count as FMLA leave, which has no statutory counterpart, because the penalty wrongfully relieves employees from showing actual harm.

Here, employee was hospitalized on February 4, 2000. On February 14, she requested twelve weeks of FMLA leave, retroactively from February 5 until May 5.

On March 28, employer notified employee by letter that her FMLA leave would expire April 1, because she had used some of her FMLA leave before February 5. The letter specified that employee must return to work at that time or obtain a personal leave. Plaintiff did not respond.

On April 4, employer telephoned employee and told her that her FMLA time had expired and she could have additional FMLA leave until May 8, but she needed to either return to work or obtain a personal leave by that date.

Employee received a letter from employer dated April 20 stating that she had to contact employer by May 8 concerning her intention to go on a personal leave or employer would "assume you are not interested in going on a personal leave and your employment with [employer] will be terminated." Again, employee did not respond.

Employer discharged employee on May 11. By then, employee had received more than twelve weeks of FMLA leave since she first took FMLA leave in June 1999 and twelve weeks of FMLA leave since February 5, 2000. Employee was medically unable to return to work until June 5, 2000.

Nevertheless, citing the penalty in 29 C.F.R. $ 825.700(2), employee argues her FMLA leave had not been exhausted by May 5 because this leave could not begin to count against her FMLA entitlement until employer gave her notice by the letter of March 23. Ragsdale invalidated § 825.700(2) and therefore defeats this argument.

Accordingly, we conclude the trial court did not err in finding employer discharged employee only after her FMLA leave had been exhausted.

B. Interference with FMLA Rights

Employee next asserts employer interfered with her FMLA rights when her supervisor verbally reprimanded her for absences that another supervisor had approved as intermittent leave under FMLA. She also asserts interference claiming employer failed to give her timely notice that her leave was FMLA leave, misinformed her when her FMLA leave expired, did not explain how it counted her personal time off, did not explain whether it calculated her FMLA leave on a calendar year basis, failed to post information about FMLA rights, and removed FMLA leave forms from her desk. We are not persuaded.

With respect to the verbal reprimand, no disciplinary action was taken against employee. She received no further verbal reprimands concerning leave, and thereafter employer allowed her to take FMLA leave whenever she requested it.

With respect to the other aspects of this claim, even if a factual issue of interference exists, employee agrees that she received more than twelve weeks of FMLA leave before she was discharged, including the twelve weeks of leave that she requested from February 5 to May 5. Hence, employee has not shown prejudice. See Ragsdale, supra.

The regulations that employee cites are inapposite or provide no remedy: 29 C.E.R. § 825.208(c) deals with employers that require paid leave to be counted as FMLA leave; 29 C.F.R. § 825.300 applies to adverse action taken because an employee failed to furnish advance notice of the need to take FMLA leave; and 29 C.F.R. § 825.301 only sets forth general notice requirements.

The record also belies employee's assertion that employer's acts and omissions left her confused about her FMLA rights. Employee requested FMLA leave on more than one occasion. She received general information from employer outlining her FMLA rights and responsibilities when she requested those leaves. Further, she received the two letters from employer notifying her when her FMLA leave would end, what steps she should take to maintain her employment, and the consequences if she failed to do so. Therefore, we conclude employee was adequately informed concerning FMLA leave. See DeLong v. Trujillo, 25 P.3d 1194 (Colo.2001).

Moreover, employee does not explain how she would have acted differently had employer notified her earlier that it was treating her leave as FMLA leave, posted signs concerning the FMLA, or replaced the FMLA leave forms in her desk. Employee does not dispute that she was medically unable to work from February 4 until June 5. Thus, we further conclude employee could not have acted differently. See, e.g., Hill v. Steven Motors, Inc., 228 F.Supp.2d 1247 (D.Kan.2002); Kelso v. Corning Cable Systems International Corp., 224 F.Supp.2d 1052 (W.D.N.C.2002); Summers v. Middleton & Reutlinger, P.S.C., 214 F.Supp. 2d 751 (W.D.Ky.2002).

Accordingly, we conclude employee failed to raise a fact issue of how she was prejudiced by employer's interference, if any, with her FMLA rights.

C. - Retaliation for Exercise of FMLA Rights

Employee next argues she established a prima facie case of retaliation for exercising her FMLA rights because employer denied her request for 1999 Christmas vacation and then terminated her employment in May 2000, while she was on FMLA leave. We disagree.

To establish a prima facie case of retaliation, an employee must show assertion of an FMLA right, followed by an adverse employment action, and a causal connection between the assertion and the adverse action. 29 U.S.C. § 2615(a)(@2); Morgan v. Hilti, Inc., 108 F.3d 1819 (10th Cir.1997).

To avoid summary judgment, an employee must raise a genuine issue of material fact on each element of the prima facie case. The burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for its adverse action. If the employer's evidence satisfies this burden, then the presumption of unlawful action drops from the case, and the employee has the ultimate burden of showing a factual dispute whether the employer's nondisceriminatory reason was pretextual. Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st Cir.1998). While the employee's establishment of a pri-ma facie case shifts the burden of production to the employer, the burden of proof always remains with the employee. Cf. Bodaghi v. Dep't of Natural Resources, 995 P.2d 288 (Colo.2000).

Here, employee exercised her FMLA rights beginning in June 1999. The parties dispute whether employee suffered adverse employment action and, if so, whether this action occurred as a result of her exercise of FMLA rights.

1. Vacation

With respect to employee's claim that employer denied her Christmas leave in 1999, the FMLA does not establish the degree of adverse employment action sufficient for a retaliation claim. Not every unpopular employment decision following FMLA leave is adverse employment action under the FMLA. Adverse employment action means an ultimate employment decision involving hiring, firing, compensation, benefits, or the failure to promote or grant leave. Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757 (5th Cir.2001).

Cases addressing retaliation under other federal anti-discrimination laws have similarly held that adverse employment action does not extend to a mere inconvenience or alteration of job responsibilities, Petersen v. Utah Department of Corrections, 801 F.3d 1182 (10th Cir.2002)(addressing Title VII of the Civil Rights Act of 1964, § 704(a)), and does not necessarily occur whenever an employee is dissatisfied. Coffman v. Tracker Marine, - L.P., 141 F.3d 1241 (8th Cir.1998)(addressing Civil Rights Act of 1964). The employer's retaliation must be materially adverse action, such as hiring, firing, failing to promote, reassigning with different responsibilities, or significantly changing benefits. See Sanchez v. Denver Public Schools, 164 F.3d 527 (10th Cir.1998)(addressing Age Discrimination in Employment Act of 1967 and Civil Rights Act of 1964).

When reviewing the sufficiency of evidence of adverse employment action, courts may consider denial of vacation as one factor. See Coffman v. Tracker Marine, L.P., supra. However, the denial of vacation alone does not establish adverse employment action when the particular timing of the vacation is not so disruptive that it crosses the line from " 'mere inconvenience' to 'materially adverse' employment action." Boyd v. Presbyterian Hospital, 160 F.Supp.2d 522, 587 (S.D.N.Y.2001)(quoting Lieberman v. Reisman, 857 F.2d 896, 900 (2d Cir.1988), and addressing Civil Rights Act of 1964).

Here, employee contends her supervisor would not give her four days of vacation around Christmas unless she found someone to cover for her because she had taken more time off than her coworker, who also wanted these days off. Employee obtained coverage for two days and took those days as vacation.

Under these cireumstances, we conclude employer's denial of two days' Christmas vacation does not present a fact issue of material adverse employment action.

2. Discharge

Employee's termination was adverse employment action following her exercise of FMLA rights, which she argues resulted from the exercise of her FMLA rights.

Because at the summary judgment stage a plaintiff's prima facie burden is often "quite easy to meet," see Hodgens v. General Dynamics Corp., supra, 144 F.3d at 165 (quoting Villanueva v. Wellesley College, 930 F.2d 124, 127 (1st Cir.1991)), we will assume, without deciding, that resolution of fact issues in employee's favor would establish the three elements of her prima facie retaliation case as to termination. Hence, we will focus on employer's response that it discharged her for failing to respond to its letters and then not returning to work after exhaustion of her extended FMLA leave.

The FMLA allows employers to impose reasonable reporting requirements on employees during FMLA leave, 29 U.S.C. § 2614(a)(5), and to discipline employees for failing to comply. DeLong v. Trujillo, supra. Thus, an employer who takes action against an employee for failing to comply with reporting requirements has articulated a legitimate nondiseriminatory reason requiring the employee to show pretext. See Neide v. Grand Court Lifestyles, Inc., 38 F.Supp.2d 938 (D.Kan.1999); DeLong v. Trujillo, supra.

Although employee does not expressly challenge employer's stated reasons as pre-textual, she again argues her termination was retaliatory because her FMLA leave had not yet been exhausted. She further argues she stated only that she would not return to work under her current supervisor, not that she was refusing to return to work. We are not persuaded.

We have already concluded employer did not discharge employee until after she had exhausted her FMLA leave. Onee FMLA leave has been exhausted, the FMLA does not compel an employer to continue holding an employer's job open. 29 U.S.C. § 2614(a)(1).

Employee concedes an employer may refuse to reinstate an employee who has given unequivocal notice of not returning to work, see 29 C.F.R. § 825.309(b), but argues that her notice was equivocal because she told employer she wanted to return to work, albeit not under her current supervisor. Even if employee's statement could be interpreted as equivocal, although her constructive discharge argument discussed below assumes otherwise, after making this statement she neither responded to employer's second letter nor made any effort to return to work after receipt of that letter. Hence, we conclude employee has not met her burden of raising a factual issue that employer's articulated reason for discharging her was pretex-tual.

Accordingly, we conclude employee did not establish a fact issue concerning retaliation.

D. Constructive Discharge Claim

Plaintiff next argues employer violated the FMLA by constructively discharging her. We disagree.

An employee establishes constructive discharge by presenting sufficient evidence that the employer's deliberate actions made or allowed the employee's working conditions to become so intolerable that a reasonable person in the employee's position would have no choice but to resign, and that the employee resigned because of the employer's actions. See Montemayor v. Jacor Communications, Inc., - P.3d -, 2002 WL 31387067 (Colo.App. No. 00CA1434, Oct. 24, 2002)(collecting cases); CJI-Civ. 4th 31:8 (1998).

Here, employee does not dispute her status as an at-will employee, subject to discharge at any time, with or without cause. See Wisehart v. Meganck, - P.3d -, 2002 WL 1869371 (Colo.App. No. 01CA1327, Aug. 15, 2002). As an at-will employee, she must pair her constructive discharge claim with a right to continued employment, cf. Orback v. Hewlett-Packard Co., 909 F.Supp. 804 (D.Colo.1995), aff'd, 97 F.3d 429 (10th Cir.1996), such as the anti-retaliation provision of the FMLA, 29 U.S.C. § 2615(a)(2). Thus, we analyze employee's constructive discharge claim by considering whether, in retaliation for her exercise of FMLA rights, her supervisor made her working conditions objectively intolerable resulting in her resignation. We are not persuaded that employee has shown a material fact issue concerning constructive discharge.

Initially, we reject employee's assertion that her constructive discharge occurred in February 2000. She did not resign at that time, but began FMLA leave.

Employee further asserts that upon beginning her FMLA leave in February, as a result of health problems allegedly brought on by her supervisor's abuse, she made clear to employer that she could not and would not return to work under this supervisor. Employee apparently contends that her later failure to respond to employer's second letter should be treated as satisfying the resignation element of a constructive discharge claim.

However, early in employee's FMLA leave, employer told her it would diseuss her unwillingness to work under this supervisor when she was medically able to return to work. Yet, employee did not explore alternative positions under other supervisors in response to employer's second letter stating that she must contact employer by May 8 or be subject to discharge. Hence, even if her silence could be considered a resignation motivated by previous intolerable working conditions, we discern no factual dispute here concerning constructive discharge because of her uncontested failure to explore alternatives. See, eg., Sanches v. Denver Public Schools, supra (no constructive discharge where employee failed to pursue available transfer opportunities); Singer v. Denver School Dist. No. 1, 959 F.Supp. 1825 (D.Colo. 1997)(same).

Accordingly, we conclude employee's constructive discharge argument did not raise a genuine issue of material fact concerning an FEMLA violation.

II. Public Policy Wrongful Discharge

Plaintiff finally argues her discharge violated the FMLA, which she contends invokes the public policy exception to at-will employment. We disagree.

An employer wrongfully terminates an at-will employee when the termination contravenes a clear mandate of public policy. Wisehart v. Meganck, supra. As relevant here, the public policy exception applies when an employer terminates an employee for exercising a statutory right or privilege. Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo.1992).

We have concluded that employer did not terminate employee's employment because she exercised her FMLA rights. Even if employer's discharge of employee violated the FMLA, employee still would not be entitled to recovery on a public policy theory because the FMLA provides its own remedy for retaliatory discharge. See 29 U.S.C. § 2617; Gamble v. Levitz Furniture Co., 759 P.2d 761 (Colo.App.1988)(statutory remedy for disability discrimination precludes public policy claim for disability-related discharge).

Accordingly, we conclude the trial court did not err in granting summary judgment on employee's public policy claim.

Judgment affirmed.

Judge DAVIDSON and Judge ROY concur.


author: Judge ROY.

text:
    In re the MARRIAGE OF Cleone LEWIS, Appellee, and Alen Drue Lewis, Appellant.
    No. 01CA0013.
    Colorado Court of Appeals, Div. V.
    Feb. 13, 2003.
    Law Office of Suzan Trinh Almony, Suzan Trinh Almony, Broomfield, Colorado, for Ap-pellee.
    Friednash & Hannigan, P.C., Douglas J. Friednash, Michelle T. Hannigan, Denver, Colorado, for Appellant.
   Opinion by

Judge ROY.

Alen Drue Lewis (busband) appeals from the permanent orders entered in connection with the dissolution of his marriage to Cleone Lewis (wife) We affirm in part, vacate in part, and remand with directions.

The parties had been married twenty-five years, and at the time of the final orders they had two principal assets, the family home and husband's retirement plan. The court found that the fair market value of the family home was $167,000, with an equity of $20,000, and awarded it to wife. The court divided husband's pension equally by means of a qualified domestic relations order.

During the marriage, wife received a substantial inheritance from her family. The trial court found that much of that inheritance had been gifted to the marriage and spent by the parties. The trial court further found that in 1978 and 1979, husband had executed demand promissory notes to wife for other portions of her inheritance in the principal amounts of $2,650 and $89,817.25, which were not gifts to the marriage. Wife testified that no payments had been made on the promissory notes. The trial court entered judgments on the promissory notes in favor of wife for the outstanding principal and accrued interest through the date of the permanent orders hearing in the amounts of $8,862.42 and $207,990.14.

The trial court further ordered husband to name the parties' children as beneficiaries of a substantial life insurance policy on wife's life and also ordered him to obtain a life insurance policy on his life in the amount of $250,000, with wife as the beneficiary to secure the judgment on the promissory notes. Finally, the court ordered husband to pay $5,000 of wife's then outstanding attorney fees.

I.

Husband asserts, for the first time on appeal, that the judgments on the two promissory notes in favor of wife were barred by the statute of limitations. Wife counters that the statute of limitations is an affirmative defense which must be first raised in the trial court. Whatever the merit of the parties' arguments, we conclude that the entry of Judgment was contrary to the public policy of this state, and therefore we vacate the judgments and related orders.

Wife filed a petition for a legal separation requesting a decree of legal separation, custody or allocation of parental responsibilities and child support with respect to the un-emancipated child, maintenance, equitable distribution of the marital property and debt, attorney fees and costs, and "all other and further Orders this Court deems appropriate." Husband was served with process and filed a response seeking dissolution of the marriage.

Proceedings for dissolution of marriage or legal separation under the Uniform Dissolution of Marriage Act are statutory and equitable in nature. See § 14-10-101, et seq., H. Clark, The Law of Domestic Relations in the United States § 15.1 (2d ed.1987).

The purposes of the Act include promotion of amicable settlement of disputes that have arisen between the parties. Section 14-10-102(@2)(a), C.R.98.2002. The Act specifically authorizes, inter alia, the courts to dissolve the marriage, enter protective orders and injunctive relief, determine the allocation of parental responsibilities, determine child support and maintenance, divide the marital property, award attorney fees, and resolve postdecree disputes. See §§ 14-10-106, 14-10-118, C.R.S.2002. These are the matters normally resolved in a dissolution proceeding.

An action to collect a promissory note is a civil action at law. While many of the technical distinctions between law and equity have been abolished, C.R.C.P. 2, some differences remain. For example, a party to an action in which money is claimed to be due on a contract is entitled to trial by jury. C.R.C.P. 88(a). All issues raised or presented in a dissolution proceeding are to be resolved by the court in equity sitting without a jury. Section 14-10-107(6), C.R.8.2002.

In Simmons v. Simmons, 773 P.2d 602 (Colo.App.1988), a division of this court held that it was contrary to sound public policy to permit the joinder of tort actions in a proceeding for dissolution of marriage. In Simmons, following the entry of a decree of dissolution, the wife commenced a tort action against the husband for an assault that occurred during the marriage. The husband argued that the claim should have been brought in the dissolution proceedings as a compulsory counterelaim and that the dissolution of marriage statute contemplates a complete resolution of all disputes arising during the marriage in a single proceeding. The division stated:

Accordingly, we adopt the reasoning of the Utah [e.g., Walther v. Walther, 709 P.2d 387 (Utah 1985) ] and Arizona [Windauer v. O'Connor, 107 Ariz. 267, 485 P.2d 1157 (1971) ] courts, and hold that the efficient administration of dissolution cases requires their insulation from the peculiarities of matters at law. The joinder of marriage dissolution actions with claims sounding in tort or, for instance, contract would require our trial courts to address many extraneous issues, including trial by jury, and the difference between the "amicable settlement of disputes that have arisen between parties to a marriage," and the adversarial nature of other types of civil cases. Moreover, such would create tension between the acceptance of contingent fees in tort claims and our strong and longstanding public policy against contingent fees in domestic cases. We conclude that sound policy considerations preclude either permissive or compulsory joinder of interspousal tort claims, or non-related contract claims, with dissolution of marriage proceedings.

Simmons v. Simmons, supra, 773 P.2d at 604 (emphasis added; citations omitted).

While Simmons involved a tort action, the division stated in dictum that its reasoning applied equally to contract actions. We agree with the Simmons dictum and hold that the joinder of wife's promissory note claims with the dissolution of marriage action is contrary to public policy.

We also observe that in the dissolution proceedings, the trial court is required to classify the promissory notes, the accrued interest, and the interest due as either marital or separate property. See § 14-10-1138, C.R.S.2002. The trial court made no explicit classification here.

Any separate property must be set over to wife outside the division of the marital estate. Any marital property is divisible between the parties. Under the rationale of In re Marriage of McCadam, 910 P.2d 98 (Colo.App.1995), unless the promissory notes evidence an intent that the interest be treated as separate property, the interest aceru-ing during the marriage is a marital asset, and any interest due at the time of the dissolution of the marriage is a marital debt. See § 14-10-118(4), C.R.8.2002.

Therefore, the judgments entered on the promissory notes and the order dividing the marital property must be vacated and the matter remanded to the trial court for further proceedings. Having so concluded, we do not address husband's separate argument that the division of the marital property was inequitable.

IL

Husband also asserts that the court erred in requiring him to change the beneficiaries on the life insurance policy insuring wife and to purchase a life insurance policy insuring his life in the amount of $250,000 as security for the promissory notes. We agree.

Inasmuch as the children were, at the time of the permanent orders hearing, emancipated, we agree with husband that the trial court lacked the authority to order him to maintain the life insurance for the children's benefit. Compare Giambrocco v. Giambrocco, 161 Colo. 510, 423 P.2d 328 (1967), and In re Marriage of Sewell, 817 P.2d 594 (Colo.App.1991)(court cannot award any part of a parent's property to minor children, nor can the court compel a parent to convey property to minor children or transfer property into a trust for the children's benefit), with In re Marriage of Icke, 189 Colo. 319, 540 P.2d 1076 (1975)(life insurance policy provides a reasonable and practical means by which the child support obligation can be met).

Further, because we have vacated the judgment that was to be secured by the insurance policy, that part of the order requiring husband to obtain that life insurance policy must also be vacated.

IIL.

Husband also asserts that the court erred in valuing the marital residence at $167,000, and he argues that it should have accepted the second market appraisal, which valued the home at $199,000. We disagree.

Determinations as to the value of property are within the trial court's discretion and will not be disturbed if they are reasonable in light of the evidence as a whole. In re Marriage of Burford, 26 P.3d 550 (Colo.App. 2001). Further, credibility determinations and the weight, probative force, and sufficiency of the evidence, as well as the inferences and conclusions to be drawn therefrom, are matters within the sole discretion of the trial court. In re Marriage of Gorman, 36 P.3d 211 (Colo.App.2001).

Here, wife tendered one market analysis that established the value of the marital home at $163,000 to $167,000. Wife testified that this opinion was credible because the home was in significant disrepair. Husband conceded that the house was in need of repair. Wife also tendered another property value report and testified that the value of $190,000 represented in that report was based upon sale after substantial repairs were made to the home. Neither evaluator testified.

Husband asserted that he had not received copies of the reports prior to the hearing. Wife testified that she had sent a copy of both reports to husband. The trial court, with support in the record, concluded that the reports had been appropriately dispatched to husband. Husband did not seek a continuance to obtain his own analysis and did not testify to his opinion of value.

Under these circumstances, it was within the discretion of the trial court to accept wife's opinion of value as an owner of the property, which opinion was partially based upon her extensive knowledge of the property, a heightened awareness of its value, and the valuations provided to her. See In re Marriage of Plummer, 709 P.2d 1388 (Colo.App.1985).

IV,

Husband finally contends that the court erred in requiring him to pay $5,000 of wife's outstanding attorney fees of $7,500, particularly when she was granted most of the marital property and earned more than he did. We conclude that the issue must be revisited on remand.

The purpose of an award of attorney fees under § 14-10-119, C.R.S.2002, is to apportion the costs of dissolution equitably based on the current financial resources of the parties. In re Marriage of Upson, 991 P.2d 341 (Colo.App.1999). After the trial court reconsiders the property division, it should also reconsider wife's request for fees.

Those portions of the permanent orders awarding judgments against husband and in favor of wife on the promissory notes, requiring husband to maintain life insurance for the children's benefit and to secure the judgments, and awarding wife attorney fees are vacated, and the case is remanded to the trial court for further proceedings consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed.

Judge MARQUEZ and Judge NIETO concur.