author: Judge PIERCE

text:
    Penelope TOOTHMAN, Robert Mosbarger, and Marvin Nevonen, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. FREEBORN & PETERS and Lawson M. Kerster, Defendants-Appellees.
    No. 01CA1142.
    Colorado Court of Appeals, Div. II.
    Nov. 21, 2002.
    Certiorari Denied Oct. 15, 2003.

      Dyer & Shuman, LLP, Robert J. Dyer, III, Jeffrey A. Berens, Denver, Colorado; Mower & Carreon, Jon R. Mower, Irvine, California, for Plaintiffs-Appellants.
    Gersh & Helfrich, LLP, Miles M. Gersh, James S. Helfrich, Denver, Colorado; Hall & Evans, LLC, Daniel R. Satriana, Jr., John E. Bolmer, II, Denver, Colorado, for Defen-danh-Appellee Freeborn & Peters.
    Lawson M. Kerster, Pro Se.
    Ken Salazar, Attorney General, Gerald R. Rome, Assistant Attorney General, Denver, Colorado, for Amicus Curiae Securities Commissioner for the State of Colorado.
    Brega & Winters, P.C., Lee Katherine Goldstein, Denver, Colorado, for Amicus Curiae Business Law Section of the Colorado Bar Association.
   Opinion by

Judge PIERCE

Plaintiffs, Penelope Toothman, Robert Mosbarger, and Marvin Nevonen, appeal a trial court order denying their request for class certification pursuant to C.R.C.P. 23. We reverse and remand with directions.

Plaintiffs sued numerous defendants, including Lawson M. Kerster and Freeborn & Peters (the law firm), asserting violations of the Colorado Securities Act, § 11-51-101, et seq., C.R.S.2002; the Colorado Consumer Protection Act, § 6-1-101, et seq., C.R.S. 2002; and the Colorado Organized Crime Control Act, § 18-17-101, et seq., C.R.S. 2002, as well as common law claims for damages.

In the underlying suit, plaintiffs alleged that numerous defendants, with the intent to defraud investors, organized, promoted, and sold interests in fifty-three limited liability partnerships (LLPs) established to sell prepaid cellular phone services. The interests were sold, via phone solicitation, to approximately 5,000 investors.

After several partial class action settlements were reached, in which the trial court certified settlement classes of investors as to the claims against certain defendants, plaintiffs sought class certification of their claims against the remaining defendants — Kerster and the law firm.

In their motion for class certification, plaintiffs defined the putative class as:

All persons who purchased or otherwise acquired limited liability “partnership interests” in Colorado limited liability partnerships in which [the two corporate general partners] served as corporate partner.
Excluded from the Class are plaintiffs’ counsel, all past and present defendants in this action, any subsidiaries or affiliates of the past and present defendant companies, and members of the immediate families of past and present defendants.
Excluded from the Class shall also be those persons and entities who file a valid request for exclusion.

In support of their request for class certification, plaintiffs first argued that the common questions of law and fact included, but were not limited to: whether defendants engaged in the conduct complained of; whether the interests at issues here are “securities” under the Colorado Securities Act; whether the law firm drafted the relevant offering documents and whether those documents contained material misrepresentations or omissions; whether defendants participated in or aided and abetted Colorado Securities Act violations; whether and how much the class members were damaged; and whether the class is entitled to punitive damages.

Plaintiffs further asserted that because they alleged “a common course of conduct involving, for example, misleading form offering documents and breach of fiduciary duties affecting each and every putative class member,” and the ultimate issue of liability is common to the putative class, the common issues predominate over any individual issues.

The trial court denied plaintiffs’ motion after extensive briefing and oral arguments, ruling that they had failed to establish that the matter was appropriate for class certification under C.R.C.P. 23(b).

This appeal of the trial court’s class certification denial is properly before us for review. See Levine v. Empire Sav. & Loan Ass’n, 192 Colo. 188, 557 P.2d 386 (1976)(dismissal of class action allegation is final order because its legal effect is dismissal of all members of the class other than petitioners).

I. Class Certification Law

Initially, we note that when available and applicable, we will rely upon Colorado case law. When citing cases from other jurisdictions, however, we have selected the authorities that, in our view, represent the better rule of law even where case law to the contrary exists.

The certification of a class action is governed by C.R.C.P. 23, and the plaintiffs have the burden of proving compliance with the rule. Ammons v. Am. Family Mut. Ins. Co., 897 P.2d 860 (Colo.App.1995).

To maintain a class action, a party must first meet the requirements of C.R.C.P. 23(a), that:

(1) The class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

The law firm and Kerster do not dispute that plaintiffs have satisfied the threshold requirements of C.R.C.P. 23(a).

“If the requirements of C.R.C.P. 23(a) are satisfied, an action then may be maintained as a class action only if it meets the additional requirements of one of the three subsections of [C.R.C.P.] 23(b).” State v. Buckley Powder Co., 945 P.2d 841, 844 (Colo.1997).

As applicable here, the relevant subsection requires:

that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superi- or to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:
(A) The interest of members of the class in individually controlling the prosecution or defense of separate actions;
(B) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(C) The desirability or undesirability of concentrating the litigation of the claims in the particular forum;
(D) The difficulties likely to be encountered in the management of [a] class action.

C.R.C.P. 23(b)(3).

“[W]hen one or more of the central issues in the action are common to the class and can be said to predominate, the action is proper under [C.R.C.P.] 23(b)(3), even though other matters mil have to be tried separately.” Villa Sierra Condo. Ass’n v. Field Corp., 787 P.2d 661, 665 (Colo.App.l990)(quoting In re Sch. Asbestos Litig., 789 F.2d 996 (3d Cir.1986)).

“The decision of whether to certify a class action lies within the discretion of the trial court and will not be disturbed unless the decision is clearly erroneous and an abuse of discretion.” Friends of Chamber Music v. City & County of Denver, 696 P.2d 309, 317 (Colo.1985); Livingston v. United States Bank, 58 P.3d 1088, 2002 WL 927068 (Colo.App. No. 01CA0605, May 9, 2002). An abuse of discretion, includes an erroneous application of the law. See, e.g., Kuhn v. State, 817 P.2d 101 (Colo.1991).

Because C.R.C.P. 23 is' virtually identical to Fed.R.Civ.P. 23, we look to case law regarding the federal rule for guidance. See State v. Buckley Powder Co., supra. Furthermore, class treatment is particularly appropriate for proceedings involving alleged violations of securities laws, and Fed.R.Civ.P. 23 should be construed liberally to achieve that end. Eisenberg v. Gagnon, 766 F.2d 770 (3d Cir.1985); Schwartz v. Celestial Seasonings, Inc., 178 F.R.D. 545 (D.Colo.1998). That proposition applies equally to C.R.C.P. 23.

II. Trial Court Ruling

The trial court here ruled that plaintiffs established common questions of law or fact among the 5,000 potential class members. Specifically, the court found that “every member of the class invested in almost identical LLPs, and entered into the transaction using substantially similar partnership agreements.”

However, it further found that the common questions do not “predominate over individual questions” under C.R.C.P. 23(b)(3). The court first determined that whether the LLP interests here are “securities” for the purpose of proving securities fraud “requires an analysis of each [individual] investor in relation' to each partnership” pursuant to the holding in Feigin v. Digital Interactive Associates, Inc., 987 P.2d 876 (Colo.App.1999) (adopting the rationale -of Williamson v. Tucker, 645 F.2d 404 (5th Cir.1981)). The court further found that in this case “there is a wide range of investment knowledge and education among the individual investors” and that “each investor completed detailed signature pages informing [him or her] that the LLPs were not securities and required a certain degree of acumen, involvement and sophisticated investor knowledge.”

The court also determined that § 13-21-111.5, C.R.S.2002, and Slack v. Farmers Insurance Exchange, 5 P.3d 280 (Colo.2000), would require a special verdict apportioning fault among the parties, including the class members and certain nonparties, who may be “found to have contributed to the unsuccess-fulness [sic] of the LLPs.”

As a result, the court ruled that “given the number of potential class members and the individualized issues relating to whether the partnerships are securities and apportionment of fault, this case would be unwieldy if tried as a class action.”

III. Previous Settlement Class Certifications

As a threshold matter, we first reject plaintiffs’ contention that the trial court’s prior class certifications, related to the settlements with other defendants, require that the class here must be certified. Because neither Kerster nor the law firm objected to the prior partial class certifications, plaintiffs assert that the trial court erred in failing to certify the identical claims against Kerster and the law firm.

We disagree with their' assertion that the trial court’s alleged “failure to consider the previous partial settlements” when considering the class certification determination here was reversible error. In our view, defendants here had little, if any, incentive or opportunity to assert their position against class certification, as to the particular claims against them, in the prior class certifications related to the settlement with other defendants. Under the facts of this case, in which the prior class certifications related to other defendants, we rule that the prior partial certifications are not determinative of the certification at issue here. See In re GMC Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 796 (3d Cir.1995)(“the settlement approval inquiry is far different from the certification inquiry”). But see Steiner v. Ideal Basic Indus., Inc., 127 F.R.D. 192 (D.Colo.1987)(noting that the case had been handled in part as a class action because of a prior partial settlement).

Furthermore, we reject plaintiffs’ argument to the extent that it is based pn Am-chem Products v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). In Am-chem, the plaintiffs obtained certification for the purposes of a global settlement of claims against the manufacturers by persons exposed to asbestos. The Amchem Court de-certified the class, however’, and ruled that trial courts must evaluate fully whether a settlement-only class is properly certifiable under Fed.R.Civ.P. 23, except for the issue of trial manageability, and may not just apply the fairness requirement of Fed.R.Civ.P. 23(e).

Contrary to plaintiffs’ argument, Amchem does not hold that a previous class action certification is determinative of a subsequent certification request. Plaintiffs have not referred us to any authority, nor have we found any, for the proposition that a court is required to certify a class for claims that had been previously certified in a partial settlement context against other settling defendants.

Furthermore, because the determination whether the individual questions predominate over the common ones is, under these facts, a litigation management problem, we conclude that the trial court’s prior class certifications do not control the certification determination here. See Amchem Prods. v. Windsor, supra, 521 U.S. at 620, 117 S.Ct. at 2248, 138 L.Ed.2d at 710 (acknowledging that in a settlement certification, the court “need not inquire whether the case, if tried, would present intractable management problems”).

Additionally, a review of the record reveals that when certifying the partial settlement classes, the trial court either made no C.R.C:P. 23. findings or did so only in a cursory fashion. Instead, it is clear that the emphasis of the three prior settlement certification orders was on the fairness of the settlements, not the appropriateness of class certification. This focus is evidenced in part by the trial court’s use of limiting language when certifying the prior settlement classes. For example, when granting preliminary approval of the settlement class for the claims against the corporate partners, the court approved the class to proceed as a class action, pursuant to C.R.C.P. 23, “only for the purposes of settlement, and only with respect to the persons subject to the settlement agreement.” Similar language was contained in the preliminary approval of the settlements involving the other settling defendants as well.

Therefore, we are not persuaded by plaintiffs’ contention that the prior partial class certifications require that the class at issue here be certified.

IV. Predominance of Common Issues

Plaintiffs’ primary contention on appeal is that the trial court abused its discretion when ruling that the class was not appropriate for certification because the questions of law and fact that are common to all members of the class do not predominate over questions affecting the individual class members. Because we conclude that the trial court misapplied the law, we remand for further proceedings.

A. Securities

In finding that the common questions of law or fact among the potential class members do not predominate over individual questions under C.R.C.P. 23(b)(3), the trial court first ruled that whether the LLP membership interests here are “securities” for the purpose of proving securities fraud requires an analysis of the circumstances of each named plaintiff and all members of the putative class in relation to each partnership. In so holding, the court relied on Feigin v. Digital Interactive Associates, Inc., supra, and Williamson v. Tucker, supra.

The definition of a “security” in the Colorado Securities Act includes an “investment contract.” Section 11-51-201(17), C.R.S. 2002; see also 15 U.S.C. § 77b(l) (1970); Lowery v. Ford Hill Inv. Co., 192 Colo. 125, 556 P.2d 1201 (1976)(federal authorities are highly persuasive when the provisions and purposes of the Colorado Securities Act parallel those of the federal enactments).

Colorado courts have adopted the federal test set forth in Securities & Exchange Commission v. W.J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946), as modified by United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975), to determine whether an interest in an enterprise is an investment contract. See Lowery v. Ford Hill Inv. Co., supra; Sauer v. Hays, 36 Colo.App. 190, 539 P.2d 1343 (1975).

Under that test, an “investment contract” is: (1) a contract, transaction, or scheme whereby a person invests his or her money (2) in a common enterprise and (3) is led to expect profits derived from the entrepreneurial or managerial efforts of others. People v. Milne, 690 P.2d 829 (Colo.1984).

An investment contract “embodies a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.” SEC v. W.J. Howey Co., supra, 328 U.S. at 299, 66 S.Ct. at 1103, 90 L.Ed. at 1250. Courts should “consider whether, under all the circumstances, the scheme was being promoted primarily as an investment or as a means whereby participants could pool their own activities, their money and the promoter’s contribution.” SEC v. Aquar-Sonic Prods. Corp., 687 F.2d 577, 582 (2d Cir.1982). State and federal securities regulation requires “a substantive appraisal of the commercial realities of the offering.” Lowery v. Ford Hill Inv. Co., supra, 192 Colo. at 130, 556 P.2d at 1205.

The issue of whether the LLP membership interests here constitute “securities” involves determinations of issues of fact and law. See Joseph v. Viatica Mgmt., LLC, 55 P.3d 264 (Colo.App.2002)(whether an interest is an investment contract and therefore a security, in the context of a summary judgment determination, is a question of law to be reviewed de novo); Ak’s Daks Communications v. Md. Secs. Div., 138 Md.App. 314, 329, 771 A.2d 487, 496 (2001)(“[t]he cases take a fact-driven approach to determining whether managerial efforts by those other than the investor are the significant efforts”). Findings of fact are generally reviewed under a clear error or abuse of discretion standard, whereas conclusions of law are generally reviewed under a de novo standard. See generally E-I70 Pub. Highway Auth. v. 455 Co., 3 P.3d 18 (Colo.2000).

1.

As an initial matter, we hold that the presumption that a general partnership interest is not a security, as set forth in Williamson v. Tucker, supra, is not applicable to an LLP interest in Colorado.

Because general partners have a legal right to participate in the management of the partnership, an interest in a general partnership is presumed not to be an investment contract. See Williamson v. Tucker, supra, 645 F.2d at 421; Ak’s Daks Communications v. Md. Secs. Div., supra.

To overcome the presumption that a general partnership interest is not a security, a division of this court has adopted the test articulated in Williamson v. Tucker, supra, to determine whether an interest in an entity denominated a general partnership is, in fact, an investment contract for the purpose of enforcement of the Colorado Securities Act. Feigin v. Digital Interactive Assocs., Inc., supra. Under that test, “an investor must demonstrate that, in spite of the partnership form which the investment took, he was so dependent on the promoter or on a third party that he was in fact unable to exercise meaningful partnership powers.” Williamson v. Tucker, supra, 645 F.2d at 424 (providing three examples of general partnership interests that could be designated a security).

Colorado courts have not addressed whether the rationale of Williamson applies to an LLP membership interest. We conclude that it is not applicable.

A general partnership provides its partners with an equal right in the management and conduct of the partnership business, and general partners are jointly and severally liable for the obligations of the general partnership. See §§ 7-60-115(1), 7-60-118(1), C.R.S.2002. The Williamson ruling adheres to these principles in that a partnership interest is presumed not to be an investment contract to the extent that partners have a legal right to participate in the management of the partnership. See Great Lakes Chem. Corp. v. Monsanto Co., 96 F.Supp.2d 376, 391 (D.Del.2000)(courts generally find general partnership interests are not securities because general “partners have equal rights in the management ... and because they are not protected by limited liability, courts consistently state that partners in general partnerships are unlikely to be passive investors who profit solely on the efforts of others”).

In contrast, the limited partners in a typical limited partnership are not directly involved in managing the affairs of the partnership, and limited partners are not personally liable for the obligations of the partnership unless they participate in the control of the business. See §§ 7-61-110, 7-62-301, C.R.S.2002 (providing that general partners retain the control and management of a limited partnership); see also §§ 7-61-108, 7-62-303(1), C.R.S.2002. Thus, the Williamson presumption is generally not applicable to limited partners because they are more like passive investors. See Great Lakes Chem. Corp. v. Monsanto Co., supra, 96 F.Supp.2d at 391 (where limited partners “exercised no managerial role in the partnership’s affairs, courts treat the limited partners as passive investors, and find that the membership interests of limited partners constitute securities under federal law”).

Membership interests in LLPs, as relevant here, cannot be analogized to either general partnership interests or limited partnership interests. Because LLPs are a form of general partnership, see §§ 7-64-1002, 7-64-1205(b), C.R.S.2002, their members are permitted to participate in the control and management of the business of the LLP. See §§ 7-60-118(1), 7 — 64—401(6). However, LLP members — as opposed to general partners— are entitled to the protections of limited liability. See §§ 7-60-115(2), 7-64^306(3), C.R.S.2002. In some instances, as a matter of express or implied agreement, or as practical matter, the LLP members may have very limited or no control in the management of the LLP.

Our research has not revealed a case extending the Williamson presumption to LLP membership interests. See Elaine A. Welle, When Are Limited Liability Partnership Interests Securities?, 27 Iowa J. Corp. L. 63 (2001)(finding no reported cases expressly addressing the treatment of LLP interests under securities laws, but noting that enforcement actions demonstrate that the conventional wisdom that LLP interests are not securities is inaccurate).

As a result, we conclude that the structure of a Colorado LLP does not lead to a presumption that LLP membership interests are not securities. Instead, we are persuaded by the rationale courts have used when assessing whether interests in limited liability companies (LLCs) are securities. See §§ 7-80-607, 7-80-705, C.R.S.2002.

In Great Lakes Chemical Corp. v. Monsanto Co., supra, the court ruled that because members of LLCs are entitled to limited liability, and, depending on the terms of the agreement giving rise to the particular LLC, the members of the LLC may have very limited involvement in the management of the enterprise, the presumptions that courts have articulated with respect to general partners and limited partners do not apply. “Rather, to determine whether a member’s profits are to come solely from the efforts of others, it is necessary to consider the structure of the particular LLC.... ” Great Lakes Chem. Corp. v. Monsanto Go., supra, 96 F.Supp.2d at 391; see also Welle, supra, 27 Iowa J. Corp. L. at 66 “The characteristics and organizational structure of each LLP will determine whether the interest at issue is a security.”. See, e.g., Nutek Info. Sys., Inc. v. Ariz. Corp. Comm’n, 194 Ariz. 104, 977 P.2d 826 (Ct.App.1998)(declining to extend the Williamson presumption to limited liability companies); Ak’s Daks Communications v. Md. Secs. Div., supra (same).

Thus, we conclude that when applying the principle espoused in W.J. Howey to Colorado LLP membership interests, the Williamson presumption is not applicable. As a result, we also conclude that the trial court misconstrued the applicable law when it used examples set forth in Feigin v. Digital Interactive Associates, Inc., supra, and Williamson v. Tucker, supra, to determine whether the interests here were securities for the purpose of assessing whether the individual questions predominate over the common ones for class certification.

2.

Because partnership interests typically embody an investment in a common enterprise for profit, the pivotal issue is often, as it is here, the third requirement of an investment contract — -whether the investor expects profits from the managerial efforts of someone else. See, e.g., Joseph v. Viatica Mgmt., LLC, supra.

In Sauer v. Hays, supra, a division of this court adopted the construction developed in Securities & Exchange Commission v. Glenn W. Turner Enterprises, Inc., 348 F.Supp. 766 (D.Or.1972), aff'd, 474 F.2d 476 (9th Cir.1973), which determined that the managerial efforts of others must be “the undeniably significant ones, those essential managerial efforts which affect the success or failure of the enterprise.” Sauer v. Hays, supra, 36 Colo.App. at 196, 539 P.2d at 1347; see also Lowery v. Ford Hill Inv. Co., supra; People v. Campbell, 58 P.3d 1148, 2002 WL 31119854 (Colo.App. No. 00CA1111, Sept. 26, 2002).

The Colorado- Supreme Court stated that the emphasis is “on whether or not the investor has substantial power to affect the success of the enterprise.” People v. Blair, 195 Colo. 462, 473, 579 P.2d 1133, 1141-42 (1978)(quoting SEC v. Heritage Trust Co., 402 F.Supp. 744 (D.Ariz.1975)). See, e.g., SEC v. Friendly Power Co. LLC, 49 F.Supp.2d 1363 (S.D.Fla.1999).

Finally, in Feigin v. Digital Interactive Associates, Inc., supra, it was ■ determined that the securities commissioner’s search warrant affidavit was sufficient to state probable cause that the general partnership interests being sold by the defendants constituted “investment contracts.” In reaching this conclusion, the court looked at the target marketing of • the sales, the management structure and experience, the potential number of investors in each partnership, the emphasis on the management committee’s expertise" in the documentation, and the general demographics of the investors. Feigin v. Digital Interactive Assocs., Inc., supra; see also Williamson v. Tucker, supra, 645 F.2d at 423 (ah arrangement in which the general partnership interests place the control in the managing partners, or where the interests wer.e sold to a large number of the general public so .that each partner’s role was comparable to that of a single shareholder in a corporation, “might well constitute an investment contract”).

Thus, we conclude that the relevant inquiry for the trial court here was not to apply the Williamson examples related to general partnership interests, but rather, to determine whether the investors expected profits from the managerial efforts — those essential efforts that affect the failure or success of the enterprise — of someone else, and whether the investors had substantial power to affect the success of the enterprise. See, e.g., Teague v. Bakker, 35 F.3d 978 (4th Cir.1994).

3.

. To that end, plaintiffs contend they have presented classwide evidence that the LLP interests here are “securities,” thus eliminating individual questions on this'issue for the purpose of class certification. Wp agree in part. ¡

We are aware of only one class certification case in which the underlying issue was whether the plaintiffs’ interests were securities. , In Westlake v. Abrams, 565 F.Supp. 1330 (N.D.Ga.1983), the plaintiffs argued that their commodity futures options were securities. The trial court first denied summary judgment because questions of material fact remained as. to whether the options were securities. With regard to class certification, the trial court initially denied.- class certification of the plaintiffs’, -claims based on the Securities Act of 1933, 15 U.S.C. § 77(a), pt seq., and the Securities Exchange Act of 1934, 15 U.S.C. § 78(a), et seq., ruling that the individual questions predominated because the individual investor’s. reliance on any misrepresentations would have to be proved. However, upon reconsideration, the court certified the class because the “focus of the factual inquiry has now shifted from developing what representations were made -by [defendants] to the individual investors to developing the facts with regard to the alleged common investment scheme.” Westlake v. Abrams, supra, 565 F.Supp. at 1343.

Following this reasoning, we agree that to the extent plaintiffs’ case rests on a claim that Kerster and the law firm created a common investment scheme, this common issue is likely to predominate over individual ones, such as the characteristics or capabilities of the individual investors.

B. Apportionment of Damages

We next address plaintiffs’ contention the trial court erred when it ruled that issues of individual apportionment of damages outweigh the common issues. We again agree that the trial court misconstrued the law.

1.

Plaintiffs first assert the trial court erred in ruling that fault would have to be apportioned among the law firm, Kerster, and the settling defendants. We conclude that apportionment is not required because plaintiffs’ claims are premised on a theory of concerted activity.

Section 13-21-111.5(1), C.R.S.2002, provides that “In an action brought as a result of ... an injury to ... property, no defendant shall be liable for an amount greater than that represented by the ... percentage of the negligence or fault attributable to such defendant that produced the claimed injury-”

Section 13-21-111.5(4), C.R.S.2002, provides an exception to § 13-21-111.5(1) by allowing the imposition of joint liability among tortfeasors when “two or more persons ... consciously conspire and deliberately pursue a common plan or design to commit a tortious act.”

The law firm and Kerster argue that plaintiffs cannot now assert joint liability under the conspiracy exception because the trial court determined, in a prior ruling, that plaintiffs’ settlements with the other defendants destroyed any joint liability. Specifically, they refer to the court’s ruling, made in response to: the law firm’s motion seeking a determination of law on the issue, that “plaintiffs’ aggregate claim in this case will be reduced based on the fault of the settling tortfeasors.” Because plaintiffs did not ask that the trial court certify this ruling as final under C.R.C.P. 54(b), the law firm and Ker-ster contend that plaintiffs have not preserved this issue for appeal. We are not convinced.

In the order on appeal here, the trial court ruled that a special verdict may be required, under § 13-21-111.5, “apportioning fault between the parties and certain nonparties.” Because this order is premised on the court’s prior ruling that plaintiffs’ claims would have to be reduced based on the percentage of fault of the settling defendants, we conclude the ruling is reviewable here. In our view, the prior ruling was subsumed by the court’s later denial of the class certification request at issue here.

On appeal, plaintiffs assert that their claims are based on an allegation of conspiracy. As such, they maintain that § 13-21-111.5(4) excepts their claims from the primary requirement in the pro rata statute, § 13-21-111.5(1), that a defendant is only liable for the percentage of fault attributable to it.

In response, Kerster refers us to the Uniform Contribution Among Tortfeasors Act, which provides that a settlement release given in good faith to persons liable in tort for the same injury

does not discharge any of the other tort-feasors from liability for their several pro rata shares of liability for the injury ... but it reduces the aggregate claim against the others to the extent of any degree or percentage of fault or negligence attributable by the finder of fact, pursuant to ... section 13-21-111.5 to the tortfeasor to whom ... the release is given.

Section 13 — 50.5—105(l)(a), C.R.S.2002. Ker-ster argues that the plain terms of that statute require a reduction of the aggregate claim by a percentage of the fault attributable to the settling defendant “pursuant to section 13-21-111.5.” He also refers us to Smith v. Zufelt, 880 P.2d 1178, 1188 (Colo.1994), in which the Colorado Supreme Court ruled that “in all instances in which a settlement agreement is reached with one or more-parties in order to avoid exposure to liability at trial ... the trial verdict shall be reduced by an amount equal to the cumulative percentage of fault attributed to the settling nonparties.”

However, the court in Smith v. Zufelt specifically noted the conspiracy exception in § 13-21-111.5(4), allowing for joint and several liability. Smith v. Zufelt, supra, 880 P.2d at 1181 n. 5.

In Pierce v. Wiglesworth, 903 P.2d 656, 658 (Colo.App.1994), a division of this court ruled that the exception in § 13-21-111.5(4) “authorizes the imposition of liability upon a defendant for the fault of all other joint tortfeasors, regardless of whether they have settled with the plaintiff.” Because the settlement provision in § 13-50.5-105 requires a plaintiff to bear the loss when the amount of settlement is less than the settling defendants’ proportionate share of the damages, the joint and several liability provision of § 13-21-111.5 controls in those circumstances. Pierce v. Wiglesivorbh, supra.

We conclude that the reasoning and ruling in Pierce v. Wiglesworth, supra, are applicable here. Therefore, because plaintiffs alleged that the law firm,- Kerster, and the settling defendants acted in concert with each other, if plaintiffs prevail on the merits, the law firm and Kerster would be .jointly liable for the settling defendants’ percentage of the award not covered by the settlement proceeds. See Resolution Trust Corp. v. Heiserman, 898 P.2d 1049, 1057 (Colo.1995)(the evidence must prove that the defendants consciously conspired and deliberately pursued a common plan or design that resulted in a tortious act); Freyer v. Albin, 5 P.3d 329 (Colo.App.1999).

2.

Plaintiffs also assert that the trial court erred in ruling that fault would have to be apportioned among the individual class members and the defendants. We agree.

Section 13-21-111.5(2), C.R.S.2002, requires that a jury return a special verdict “determining the percentage of negligence or fault attributable to each of the parties.” The trial court found that the named plaintiffs and members of the putative class are a “party” whose “fault” must be assessed pursuant to § 13-21-111.5(2).

The case law interpreting this statute allows the apportionment of damages among the parties, including a plaintiff, when the underlying suit is based on negligence. See § 13-21-111, C.R.S.2002 (concerning comparative negligence as a measure of damages); Inland/Riggle Oil Co. v. Painter, 925 P.2d 1083 (Colo.1996); Gen. Elec. Co. v. Niemet, 866 P.2d 1361, 1366 (Colo.1994)(“a trial court must ascertain a plaintiffs and defendants’ pro rata liability before it determines the amount of exemplary damages”); see also § 13-21-111.5(5), C.R.S.2002 (requiring the trial court to instruct the jury on the effect of its findings as to the percentage of fault “as between the plaintiff or plaintiffs and the defendant or defendants” in a civil action “in which contributory negligence or comparative fault is an issue”).

Furthermore, the supreme court has ruled that the pro rata statute requires apportionment of damages among the several defendants even when one of the tortfeasors commits an intentional tort that contributes to an indivisible injury. Slack v. Farmers Ins. Exch., supra.

However, we disagree with the trial court’s extension of the ruling in Slack to mandate apportionment among plaintiffs when the underlying action alleges intentional, as opposed to negligent, conduct by the defendants.

We acknowledge the supreme court’s statement that § 13-21-111.5 “does not differentiate between intentional acts and negligent acts in its mandate to apportion liability among tort-feasors.” Slack v. Farmers Ins. Exch., supra, 5 P.3d at 288. However, nothing in the statute persuades us that the General Assembly intended a plaintiffs fault or degree of culpability to be considered when the defendants are alleged to have committed intentional torts.

Moreover, absent an express mandate by the legislature to do so, we will not abrogate the longstanding Colorado common law rule that a plaintiffs fault may not reduce an intentional tortfeasor’s liability. See White v. Hansen, 837 P.2d 1229, 1233 n. 6 (Colo.1992)(“it is also well settled that actions founded on intentional misconduct by the defendant were not subject to the defense of contributory negligence and áre not subject to comparative fault principles”); see also Lamp v. Reynolds, 249 Mich.App. 591, 645 N.W.2d 311 (2002)(récognizing a national split of authority on whether the nature of the defendant’s underlying conduct affects the application of comparative fault principles).

Hence, we agree with plaintiffs that the Slack ruling related to intentional conduct applies only to another tortfeasor. See Harvey v. Farmers Ins. Exch., 983 P.2d 34 (Colo.App.1998)(actions founded on defendant’s intentional misconduct were not subject to the defense of contributory negligence by the plaintiff, or to comparative fault principles, when construing the comparative negligence statute), ajfd sub nom. Slack v. Farmers Ins. Exch., supra. But see Loughridge v. Goodyear Tire & Rubber Co., 207 F.Supp.2d 1187 (D.Colo.2002)(concluding that pro rata liability applies to a plaintiffs products liability claims, including fraudulent concealment of a product defect and Colorado Consumer Protection Act claims).

We note that other jurisdictions have determined that proportionate fault is not applicable in a securities law context. See, e.g., In re Atl. Fin. Mgmt., Inc., Sec. Litig., 603 F.Supp. 135 (D.Mass.1985); McCracken v. Edward D. Jones & Co., 445 N.W.2d 375 (Iowa Ct.App.1989); Duperier v. Tex. State Bank, 28 S.W.3d 740 (Tex.App.2000). But see Banks v. Yokemick, 177 F.Supp.2d 239 (S.D.N.Y.2001); Landry v. Thibaut, 523 So.2d 1370 (La.Ct.App.1988).

In light of our conclusion that the trial court misapplied the law when ruling that the individual issues in this case predominate over the common ones, we must remand for the trial court to apply the legal conclusions set forth in this opinion.

V. Partial Certification and Subclasses

The law firm contends that because plaintiffs did not request partial certification on some of their claims and did not propose any possible subclasses, they are estopped from seeking partial certification. We disagree.

Our review of the record reveals that although plaintiffs did not formally ask for partial certification in the trial court, plaintiffs’ counsel argued, at the class certification hearing, that whether, the interests here were securities was a determination that did not apply to the conspiracy and Colorado Organized Crime Control Act claims. Thus, contrary to the law firm’s argument, we conclude that the issue was sufficiently raised and preserved for appeal.

Moreover, although it is generally the plaintiffs burden to submit a proposal to certify a class as to certain issues in the case, the trial court may also act sua sponte, depending on the circumstances, to create subclasses. See Goebel v. Colo. Dep’t of Insts., 764 P.2d 785, 795 (Colo.1988)(ruling that “[t]he court should have used its powers under C.R.C.P. 23(c)(4) to control and shape this action”); see also Villa Sieira Condo. Ass’n v. Field Corp., supra, 787 P.2d at 665 (“C.R.C.P.23(c) and (d) grant to a trial court substantial discretion to create subclasses with respect to separate issues or to enter other orders designed to manage the litigation”).

Thus, on remand, we direct the trial court to not only apply the legal principles set forth in this opinion to reevaluate whether the individual issues predominate over the common ones, but also to “more carefully assess whether each claim for relief remaining in the case is appropriate for adjudication in a class action and, if so, what categories of persons should make up such a class or subclass.” See Goebel v. Colo. Dep’t of lusts., supra, 764 P.2d at 795.

For example, if the court determines class certification is appropriate, it may create subclasses or modify the class description to include only those investors who did not actively participate in the management of the LLPs. See Diaz v. Romer, 961 F.2d 1508 (10th Cir.1992); Shapiro v. Midwest Rubber Reclaiming Co., 626 F.2d 63 (8th Cir.1980)(in a securities class action, the trial court properly restricted the class to those persons whose fact situation mirrored the plaintiffs).

Additionally, the court may also certify a class with regard to the issue of liability or other common issues, or as to some of plaintiffs’ claims, while deferring or severing individual issues for later disposition pursuant to C.R.C.P. 23(c)(4). See generally 2 Herbert Newberg & Alba Conte, Newberg on Class Actions § 7.33 (3d ed.l992)(“it is settled that the presence of individual issues among class members will not bar class certification when common issues predominate or when the class action status might be limited to common issues”).

Therefore, the order denying class certification is reversed, and the case is remanded for further proceedings consistent with the views expressed in this opinion.

Judge TAUBMAN and Judge DAILEY concur.

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


source: Caselaw Access Project

author: Judge TAUBMAN.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kevin R. WILLCOXON, Defendant-Appellant.
    No. 01CA0524.
    Colorado Court of Appeals, Div. V.
    Dec. 5, 2002.
    Rehearing Denied April 3, 2003.

      Ken Salazar, Attorney General, Rebecca A. Adams, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Nancy J. Lichtenstein, Deputy State Public Defender, Denver, Colorado, for D efendant-Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Kevin R. Willcoxon, appeals the judgment of conviction entered upon jury verdicts finding him guilty of two counts of second degree assault. He also appeals his sentence. We affirm the judgment and remand for reconsideration of the sentence.

This case arose out of an altercation between defendant and correctional officers at the Colorado State Penitentiary. After defendant was moved from one cell to another, four correctional officers brought his personal property to his new cell. Defendant was handcuffed and ordered to step outside the cell door. Although cooperative at the outset, defendant refused to return to his cell when so ordered by the officers.

As the four correctional officers approached defendant, he kicked one officer in the chest and “head butted” another officer in the mouth. One correctional officer suffered a bruise on his chest, and his doctor recommended he take an over-the-counter pain medication. Another correctional officer suffered a “split lip” for which he did not seek medical attention.

The jury convicted defendant of two counts of second degree assault. The trial court sentenced defendant to six years in the Department of Corrections for each count, to be served concurrently, plus a mandatory period of parole. This sentence was ordered to be served consecutively to any sentence or sentences defendant was serving or had yet to serve.

I. Juror Notebooks

Defendant contends it was structural error to send the jurors home overnight with then-notebooks to study their contents, including a partial set of jury instructions and a prosecution exhibit. We disagree.

The jury reform program initiated in 1999 allows jux-ors to take notes and use juror notebooks during both civil and criminal trials. R.L. Kourlis & J. Leopold, Colorado Jury Reform, 20 Colo. Law. 21 (Feb. 2000). Ci-im. P. 16(IV)(f) authorizes the use of juror notebooks to “aid jurox-s in the per-fox-mance of their duties.”

A. Structural Error

There are two categories of constitutional error: structural error and trial error. A structural error is a “structural defect affecting the framework within which the trial px-oceeds,” whereas trial errors occur in the trial process itself. Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991). The remedy for a structural error is automatic reversal. Blecha v. People, 962 P.2d 931, 942 (Colo.1998). Plain error and harmless error analysis do not apply to structural errors, Griego v. People, 19 P.3d 1, 8 (Colo.2001), because such errors undermine the reliability of the basic function of a criminal trial, the determination of guilt or innocence. People v. Price, 969 P.2d 766, 769 (Colo.App.1998).

Structural errors include complete deprivation of the right to counsel, trial before a biased judge, improper exclusion of a member of the defendant’s ethnic group from a grand jury, and violation of the right to a public trial. People v. Price, supra. “Such errors affect the entire conduct of the trial from beginning to end, or deny the defendant a basic protection, the precise effects of which are immeasurable.” Bogdanov v. People, 941 P.2d 247, 253 (Colo.1997) (citations omitted), disapproved on other grounds by Griego v. People, supra; see also People v. Collie, 995 P.2d 765 (Colo.App.1999).

In contrast, other errors have been held not to constitute structural error. For example, in Griego v. People, supra, the supreme court followed Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), and held that the misdescription to the jury of an element of the offense was not renewable under structural error analysis- The omission of a sentence mitigating circumstance from a jury instruction also has been held not to constitute structural ex-ror. People v. Lee, 30 P.3d 686 (Colo.App.2000); see also People v. Collie, supra, (application of a disqualified judge’s pretrial rulings to the remainder of the proceeding, without independent review by the replacement judge, did not constitute structural error).

Here, the record on appeal does not include a juror notebook or the specific partial jury instructions sent home with the jury. The trial court described those instructions as an “initial burst” of instructions, explaining that “they’re the bulk of the very same instructions that I’ll give to [the jury as] final instructions in the case.” The trial court also told the jurors that the court was not “directfin] [their] attention to any pox-tion of the notebook to the exclusion of any other.” The final instructions given the jury are contained in the record, and defendant does not challenge their propriety on appeal.

While the model civil jury instructions include an instruction that juror notebooks may only be taken to and from the courtroom and jury room and nowhere else, CJI-Civ. 4th 1:7, 1:7A (1998), the model criminal jury instructions, CJI-Crim. (1983), do not contain a similar restriction.

We conclude the trial court erred by allowing the jurors to take the juror notebooks home because this procedure is not expressly authorized by Crim. P. 16(IV)(f). However, we also conclude this action did not constitute structural error because it was not a fundamentally serious error that would “pervasively prejudice the entire course of the proceedings.” People v. Lee, supra, 30 P.3d at 688.

Here, any harm to defendant by jurors taking juror notebooks home is measurable. Several factors can be reviewed to determine what harm, if any, possible juror irregularities caused a defendant: (1) whether the jurors were admonished not to show the juror notebooks to anyone, or discuss the case or the contents of the juror notebooks with anyone; (2) whether there is evidence that jurors did anything improper as a result of taking juror notebooks home, such as using extrinsic information to assist in deliberations; and (3) whether taking the juror notebooks home prompted jurors to discuss the case prior to jury deliberations. See Bogda-nov v. People, supra.

Here, for example, the trial court could assess whether defendant was prejudiced by one juror’s use of a dictionary after taking the juror notebooks home. This is an issue we discuss below.

Accordingly, we conclude there was no structural error.

Because of this conclusion, we do not address the People’s contention that any error here was invited.

B. Use of Dictionary

In a related argument, defendant contends that one juror’s use of a dictionary constitutes grounds for reversal. Again, we disagree.

It is improper for jurors to consult a dictionary to assist in their understanding of legal terminology. Niemand v. District Court, 684 P.2d 931 (Colo.1984).

In Niemand, a juror used Black’s Law Dictionary at home following a day of deliberation to look up the meaning of at least eleven words and phrases, such as “premeditation,” “deliberation,” “depravity of heart,” “first degree murder,” “second degree murder,” and “manslaughter,” because she was unsure how to vote. After consulting the dictionary, the juror became “totally convinced” that she would vote to convict the defendant of second degree murder. The juror wrote down the definitions and took them with her to the jury room, where she offered to share the information with the other jurors. The juror put her notes away after a negative reaction from some of her fellow jurors, and the jury deliberations continued. The jury ultimately found the defendant guilty of second degree murder. On appeal, the supreme court concluded the juror’s consultation of a legal dictionary prejudiced the defendant.

In contrast, here, after the jurors had brought the jury notebooks home, and while the trial court was instructing the jury, the court questioned whether the present perfect tense of “plead” should be “has plead[ed]” or “has pled.” A juror volunteered that she had looked up the word “plead” in a dictionary at home, and the dictionary supported either spelling. Defense counsel did not object, and there was no followup on the juror’s comment. The trial court continued instructing the jury.

Unlike in Niemand, supra, there is no evidence here that the juror used dictionary definitions to aid her in determining defendant’s guilt or that she improperly influenced jury deliberations. Instead, the juror only used the dictionary to check the spelling of a word. Therefore, we conclude that Nie-mand, supra, is distinguishable.

Accordingly, under these circumstances, we conclude the juror’s consultation of a dictionary does not require reversal.

II. Character Evidence

Defendant next contends that reversible error was injected into his second degree assault trial when a correctional officer testified that inmates at the Colorado State Penitentiary are prone'to violence. We are not persuaded.

When no contemporaneous objection is made to an asserted error, appellate review is limited to determining whether there is plain error. Plain error “casts serious doubt upon the basic fairness of the trial itself.” Wilson v. People, 743 P.2d 415, 419-20 (Colo.1987).

As relevant here, CRE 404(a) provides that “[e]vidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion.”

Here, the trial court requested the prosecutor to have the witness explain why there was a video recording of the altercation. In response, the correctional officer testified that:

the state penitentiary is probably one of the few facilities in the state operation that is not only a maximum security but an administrative segregation environment, and because the inmates that are incarcerated there are the most prone to violence and/or escape, it’s in the best interest of all concerned to have a video surveillance put on the dayhall to monitor what goes on in the dayhall since it’s limited movement by the inmates.

Defense counsel did not object to the testimony.

The correctional officer’s statement was isolated, did not specifically refer to defendant, and was not made in response to a question concerning defendant. Accordingly, we conclude that there was no plain error.

III. Sentence

Finally, defendant contends the general sentence aggravator set forth in the former § 18-l-105(9)(a)(V), now codified at § 18-1.3-401(8)(a)(IV) C.R.S.2002, which mandates-sentencing . in the aggravated range if the defendant commits a felony while confined in a correctional institution, does not apply to the crime of second degree assault as defined in § 18-3-203(l)(f), C.R.S. 2002. We agree. •

On the one hand, defendant argues that the General Assembly did not intend to punish this offense under § 18-1.3-401(8)(a)(IV) because the second degree assault statute provides its own specific sentence enhancement and because this specific category of second degree assault is not listed as an offense subject to an aggravated sentencing range under either § 18-1.3-406, C.R.S.2002 (formerly § 16-11-309), or § 18-1.3-401(8)(a)(IV)- On the other hand, the prosecution argues that the plain language of both the general sentence aggravator and the second degree assault enhancement applies to defendant. We are not persuaded by the People’s argument.

Where a question of law is raised on appeal, the standard of review is de novo. People v. Melillo, 25 P.3d 769, 777 (Colo.2001).

The second degree assault statute provides in pertinent part that a person commits second degree assault if:

While lawfully confined or in custody, he or she knowingly and violently applies physical force against the person of a peace officer ... engaged in the performance of his or her duties.... A sentence imposed pursuant to this paragraph (f) shall be mandatory (and the court shall not grant probation or a suspended sentence, in whole or in part) and shall run consecutively with any sentences being served by the offender....

Section 18-3-203(l)(f).

The general sentence aggravator statute provides in pertinent part that:

The presence of any one or more of the following extraordinary aggravating' circumstances shall require the court; if it sentences the defendant to incarceration, to sentence the defendant to a term of at least the midpoint in the presumptive range but not more than twice the maximum term authorized in the presumptive range for the punishment of a felony:
(IV) The defendant was under confinement, in prison, or in any correctional institution as a convicted felon ... at the time of the commission of a felony....

Section 18-1.3-401(8)(a).

The presumptive sentencing range for defendant’s offense, a class four felony, is two to six years. Section 18-1.3^401(l)(a)(V)(A), C.R.S.2002. However, with the application of § 18-1.3-401(8)(a)(IV), the aggravated sentencing range is four to twelve years.

While the prosecution’s argument ■ that both sentencing statutes apply might be reasonable, we are not writing on a clean slate. We conclude that People v. Andrews, 871 P.2d 1199, 1203 (Colo.1994), governs our analysis here. There, the supreme court held that the sentence aggravator did not apply to escape or attempted escape because the statutes defining those crimes provided a specific sentence enhancement, that the imposed sentence run consecutive to the sentence for the underlying felony.

Here, as in Andrews, the second degree assault statute provides the same consecutive sentence enhancement, and the general ag-gravator statute would appear to apply to defendant. Given these similarities, we find People v. Andrews, supra, to be dispositive.

In addition, the General Assembly twice amended the general aggravator statute after the Andrews decision. Colo. Sess. Laws 1996, ch. 155, § 18 — 1—105(9)(a)(III) at 736; Colo. Sess. Laws 1997, ch. 264, § 18-1-105(9)(a)(X) at 1546. And the entire statute was repealed and reenacted in 2002 without substantive change to this general aggravator provision. Because the legislature is presumed to be aware of judicial decisions when it enacts, .or amends legislation, Vaughan v. McMinn, 945 P.2d 404, 409 (Colo.1997), its failure otherwise to amend the statute indicates approval of the Andrews court’s interpretation. See People v. Swain, 959 P.2d 426, 430-31 (Colo.1998).

Accordingly, we hold that the general sentence aggravator in § 18-1.3--101(8)(a)(IV) does not apply to the crime of second degree assault as defined in § 18 — 3—203(l)(f).

Where a trial court misapprehends. the scope of its discretion in imposing sentence, a remand is necessary for reconsideration of the sentence within the appropriate sentencing range. See Adair v. People, 651 P.2d 389, 392 (Colo.1982).

Defendant’s sentence of six years imprisonment for each count falls within, both the presumptive sentencing range and the aggravated sentencing range. At sentencing, the People requested the court to impose the aggravated range sentence recommended in the presentence report of eight to twelve •years imprisonment. However, the record is unclear as to whether the trial court employed the aggravated range in imposing the sentence.

Accordingly, on remand, the trial court must reconsider the sentence. If the sentence was imposed using the aggravated range, it must be vacated and a new sentence imposed in the presumptive range. In that event, the trial court is not precluded from again I posing six-year terms, but the new sentence must be accompanied by appropriate findings. See People v. Malone, 923 P.2d 163 (Colo.App.1995).

However, if the sentence was imposed using the presumptive x-ange, it stands affirmed. In that event, the trial court should expressly indicate that it used the presumptive range and make appropriate findings.

The judgment is affirmed and the case is remanded for further consideration of the sentence in accordance with this opinion.

Judge ROTHENBERG and Judge WEBB concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel McKINNEY, Defendant-Appellant.
    No. 01CA0041.
    Colorado Court of Appeals, Div. V.
    Jan. 30, 2003.
    As Modified on Denial of Rehearing July 3, 2003.
    Certiorari Granted Dec. 1, 2003.

      Ken Salazar, Attorney General, Anthony J. Navarro, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Karen N. Taylor, Deputy Stfate Public Defender, Denver, Colorado, for De-fendanb-Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Daniel McKinney, appeals the judgment of conviction entered upon jury verdicts finding him guilty of three counts of theft, three counts of theft from an at-risk adult, and conspiracy to commit theft. We affirm in part and reverse in part.

Between 1994 and 1996, defendant and his wife took money totaling $70,000 from three victims: $20,000 from W.P., $20,000 from D.P., and $30,000 from S.C. All three were his insurance, clients.

The disputed issues at trial were whether defendant had obtained the money through deception and whether he intended permanently to deprive the victims of their money. Defendant characterized the money as loans he intended to repay, but had not repaid before trial.

■ At trial, defendant’s wife testified that she had been charged in connection with the thefts and pleaded guilty to conspiracy to commit theft. In the course of pleading guilty, she prepared a written statement that also implicated defendant in the thefts. She further testified that she pleaded guilty to “stay out of jail.”

I. Statute of Limitations

Defendant contends his convictions for theft from at-risk adults and conspiracy must be vacated because the offenses occurred more than three years before the information was filed and are not subject to the tolling provision in the applicable statute of limitations. We agree in part.

Where a defendant raises a question of law on appeal, the standard of review is de novo. People v. Melillo, 25 P.3d 769, 777 (Colo.2001).

Appellate courts review interpretations of statutes de novo. “[A] court’s primary task is to ascertain and give effect to the. intent of the legislature.” People v. Robertson, 56 P.3d 121, 123 (Colo.App.2002). To determine intent, courts give statutory terms their commonly accepted meaning. ‘‘When the language is unambiguous and the legislative intent reasonably clear, we need not resort to other rules of statutory construction.” People v. Triantos, 55 P.3d 131, 134 (Colo.2002).

“When the [General Assembly] uses certain language in one part of a statute and different language in another part, a court should assume that different meanings are intended. Every word excluded from a statute must be presumed to have been excluded for a reason.” People v. Auman, 2002 WL 31121380, 67 P.3d 741, 751 (Colo.App. No. 99CA0016, Sept. 26, 2002); see also People v. J.J.H., 17 P.3d 159 (Colo.2001)(courts should not presume the General Assembly used language idly)..

A. Theft from AP-Risk Adults

The statute concerning crimes against at-risk adults provides in pertinent part that “[a]ny person who commits theft, and commits any element or portion of the offense in the presence of the victim, as such crime is described in section 18-⅛-⅛01(1), and the victim is an at-risk adult ... commits ... a class 3 felony if the value of the thing involved is five hundred dollars or more.” Section 18-6.5-103(5), C-R-S.2002 (emphasis added). It further provides that when the theft occurs without the use of force, threats, or intimidation, the offense is a class 4 felony.

Generally, a prosecution for theft must be commenced within three years of the offense. See § 16 — 5—401(l)(a), C.R.S.2002. However, the statute of limitations provides in pertinent part that “[t]he period within which a prosecution must be commenced shall begin to run upon discovery of the criminal act ... for ... theft, pursuant to section 18-4-401.” Section 16 — 5—401(4.5)(c), C.R.S.2002.

Here, defendant filed a pretrial motion to dismiss all of the charges as being beyond the three-year statute of limitations. By agreement of counsel, the trial court deferred ruling on the motion until the end of defendant’s trial. At'the conclusion of the prosecution’s case, defense counsel renewed his motion to dismiss. The trial court concluded that the “date of discovery as to all of these matters was within the statute of limitation period” and denied the motion.

The discovery tolling provision applies to twenty-one enumerated offenses. While theft is included, theft from an at-risk adult is not. See § 16-5-401(4.5). In addition, although the crimes against at-risk adults statute refers to theft, it does not refer to the statute of limitations discovery tolling provision. See § 18-6.5-103(5).

Had the General Assembly intended to include theft from at-risk adults in the discovery tolling provision, it could easily have done so. The legislative history of the discovery tolling provision and theft from at-risk adults statute supports this conclusion. The discovery tolling provision in § 16-5^01 was enacted in 1991, Colo. Sess. Laws 1991, ch. 73 at 403, and was amended in 1992 and 1998 to include additional enumerated offenses. Colo. Sess. Laws 1992, ch. 73, at 400; Colo. Sess. Laws 1998, ch. 61 at 156. The entire statute of limitations was amended in 2001. Colo. Sess. Laws 2001, ch. 217 at 730.

The theft from at-risk adults statute, § 18-6.5-103, was enacted in 1991, Colo. Sess. Laws 1991, ch. 288 at 1779, and amended in 1993 and 1998. Colo. Sess. Laws.1993, ch. 292 at 1733; Colo. Sess. Laws 1998, ch. 314 at 1440.

Thus, the discovery tolling provision was amended on three occasions by the General Assembly after the enactment of the theft from at-risk adults statute. However, theft from at-risk adults was not explicitly included in the enumerated offenses to which the discovery tolling provision apples.

People v. Klausner, 2003 WL 124398, 74 P.3d 421 (Colo.App. No. 00CA2381, Jan. 16, 2003), upon which the People rely, does not dictate a different result. There, a division of this court held that the indeterminate sentencing scheme set forth in the Colorado Sex Offender Lifetime Supervision Act, § 18-1.3-1001, et seq., C.R.S.2002 (the Act) applies to the crime of first degree sexual assault on an at-risk adult. That crime was not specifically enumerated in the Act, but the Act also contained a broad definition of the term “sex offense.”

Here, in contrast, the discovery tolling provision does not contain a similarly broad definition. Rather, it lists specific offenses to which it applies, including theft. However, as noted, the specific offense of theft from an at-risk adult is not enumerated in the discovery tolling provision.

We also reject the People’s contention that § 18-6.5-103(5) is merely a penalty or sentence enhancer of theft, as defined in § 18-4-401(1), and that the discovery tolling provision therefore applies.

A statutory provision is a penalty or sentence enhancer if its proof, while raising the felony level of the offense, is not required to secure a conviction of the charged offense. People v. Martinez, 32 P.3d 520, 529 (Colo.App.2001).

Here, as noted, defendant was charged with committing three counts each of theft and theft against an at-risk adult. Thus, that the victims were at-risk adults was required to secure a conviction of the offense of theft from an at-risk adult. Consequently, § 18-6.5-103(5) cannot be viewed as a sentence enhancer, especially given that defendant was charged and convicted of both theft and theft from an at-risk adult for the same acts. Cf. People v. Melillo, supra, 25 P.3d at 771 (single count may charge both a crime and a sentence enhancer).

Thus, we conclude that the discovery tolling provision in the statute of limitations does not apply to theft from an at-risk adult. Accordingly, defendant’s three convictions for theft from an at-risk adult must be reversed.

B. Conspiracy

However, we conclude reversal of defendant’s conspiracy conviction is not required on this basis.

The conspiracy and its underlying crime are separate and distinct offenses. People v. Osborne, 973 P.2d 666, 673 (Colo.App.1998). When a conspiracy terminates “depends upon the particular facts and purposes of such conspiracy” and not necessarily on the completion of the underlying offense. People v. Burke, 37 Colo.App. 289, 291, 549 P.2d 419, 421-22 (1976)(quoting Cleaver v. United States, 238 F.2d 766, 769 (10th Cir.1956)).

Relevant to conspiracy, the statute of limitations provides in pertinent part that “When an offense ... is based on a series of acts performed at different times, the period of limitation prescribed by this code starts at the time when the last act in the series of acts is committed.” Section 16-5-401(4), C.R.S.2002.

The conspiracy count was amended to relate to only S.C., and the information alleged the conspiracy occurred between January 1, 1994 and December 4, 1998. At trial, the evidence showed that the last act of defendant’s conspiracy to commit theft occurred in March 1996 when defendant’s wife withdrew the remainder of S.C.’s money from 'the checking account. The information was filed within three years of this event, and thus the prosecution for conspiracy was brought within the statute of limitations.

II. Jury Instructions

Defendant contends the trial court erred by not instructing the jury it had to find that he committed the thefts within three years of their discovery. We disagree.

When no contemporaneous objection is made to an asserted error, appellate review is limited to a plain error analysis. Plain-.error “casts serious doubt upon the basic fairness of the trial itself.” Wilson v. People, 743 P.2d 415, 419-20 (Colo.1987).

“Where determination of jurisdiction depends upon a resolution of disputed facts, the issue must be submitted to the jury with an appropriate instruction, regardless of whether it was raised by the defendant. However, no plain error results from a failure to submit the issue to the jury if the uncontested facts overwhelmingly support jurisdiction.” People v. Cullen, 695 P.2d 750, 751 (Colo.App.1984).

Further, it is not plain error for the trial court to make that determination where, ás here, defendant requested it to do so. Initially, defendant filed a pretrial motion seeking dismissal of all the charges and requesting an evidentiary hearing. At the motions hearing, counsel and the trial court agreed to postpone the ruling until after the presentation of the evidence at trial.

Moreover, the three-year statute of limitations did not start running until the discovery of the thefts. See § 16-5-401(4.5)(c). The information was filed on December 4, 1998. Thus, the thefts must have been discovered not more than three years earlier.

We conclude that there was no plain error here because the uncontested facts overwhelmingly supported jurisdiction. See People v. Cullen, supra. S.C. testified that she discovered, around Christmas of 1996, that money was missing from the bank account she opened with defendant’s wife. The evidence indicated that the discovery of the thefts from victims W.P. and D.P. occurred in 1996 at the earliest and in 1998 at the latest. D.P.’s daughter testified that she and her mother confronted defendant about the thefts in 1996 or 1997. The financial advisor for W.P: and D.P. testified that he learned that money was missing in October 1998. At trial, defendant did not present evidence to suggest earlier discovery dates for the thefts.

III. Wife’s Written Statement

Defendant next argues the trial court committed plain error when it allowed the jury-to take his wife’s inculpatory written statement into the jury room during deliberations, thus depriving him of his right to a fair trial. We conclude there was no error, plain or otherwise.

Because counsel failed to object to the alleged error, our review is limited to plain error analysis. See Wilson v. People, supra. Here, defendant did not object when the statement was admitted into evidence or when the jury was allowed to take this exhibit into the jury room during deliberations, although the wife recanted her statement during testimony in defendant’s case.

Initially, we also reject the People’s assertion that the record does not clearly establish that the wife’s written statement was actually taken by the jury into the jury room during deliberations. The record reflects that the jury had “all the admitted exhibits,” including the statement, in its possession during deliberations.

Relying primarily on People v. Montoya, 773 P.2d 623 (Colo.App.1989) and People v. Talley, 824 P.2d 65 (Colo.App.1991), defendant argues that the trial court erred in allowing defendant’s wife’s written statement to be taken into the jury room.

However, for the reasons set forth below, we conclude that an amendment to C.R.C.P. 47(m), effective January 1, 1999, undercuts the rationale of Montoya and Talley and, under the amended rule, written statements that are trial exhibits may be taken into the jury room.

In Montoya and Talley, respectively, divisions of this court held that it was error to allow the jury unrestricted and unsupervised access to a videotape of an eyewitness’s statement or to an audiotape of the victim’s statement. Both Montoya and Talley were premised on the concern that giving the jury unlimited access would place undue weight or emphasis on that evidence. See also People v. Page, 907 P.2d 624, 636 (Colo.App.1995)(dicta: “an out-of-court statement by a witness in a criminal case normally may not be taken into the jury room during deliberations”); People v. Miller, 829 P.2d 443, 446 (Colo.App.1991)(same).

In Montoya, the division noted that while the Colorado Rules of Evidence set forth the criteria for the admissibility of evidence, neither those rules nor the Colorado Rules of Criminal Procedure address whether a trial exhibit, properly admitted as evidence, may be reviewed during jury deliberations. The division further noted that Crim. P. 57(b) provides that if a procedure is not specified in the Colorado Rules of Criminal Procedure, the court “shall look to the Rules of Civil Procedure” and proceed in any lawful manner not otherwise inconsistent with the governing rules. People v. Montoya, supra, 773 P.2d at 625.

Accordingly, the Montoya division relied on C.R.C.P. 47(m), which then provided in relevant part that jurors generally “may take [into the jury room] all papers, except ... depositions ..., which have been received in the case.”

The Montoya panel acknowledged that C.R.C.P. 47(m) was not strictly applicable, but considered the analogous prohibition against jurors taking with them a deposition or a videotape. In both situations, the panel said, there would be &■ concern “about allowing a jury to engage in the unsupervised review of materials of a testimonial character.” People v. Montoya, supra, 773 P.2d at 625.

''¿Then Montoya was decided, C.R.C.P. 47(m) provided an exception not, only for depositions, but also for pleadings, accounts, and account books. Although the derivation of these exceptions is not clear, they may stem from the supreme court’s opinion in Wilson v. People, 103 Colo. 150, 84 P.2d 463 (1938), which has been broadly interpreted as holding that all admitted exhibits may be used by the jury in its deliberations. See People v. Coca, 40 Colo.App. 440, 580 P.2d 1258 (1978); see also People v. Melanson, 937 P.2d 826, 840 (Colo.App.1996).

In Wilson, the supreme court rejected the English common law rule that only writings under seal could be taken into the jury room. Although the Wilson court did not decide whether a deposition could be brought into the jury room, it cited with approval an 1812 Pennsylvania case noting the practice of delivering to the jury all written papers except depositions taken under rule of court. Depositions were withheld because of the belief that jurors might give undue emphasis to them as compared to testimony of witnesses who had been examined in court. See Alexander v. Jameson, 5 Binn. 238 (Pa.1812).

Nevertheless, this historical concern about allowing depositions into the jury room during deliberations was eliminated when C.R.C.P. 47(m) was changed as part of the Colorado Supreme Court’s jury reform project. See Jury Reform: Civil and Criminal Proposed Rules, 27 ,Colo. Law. 99, 100 (May 1998). As part of a series of reforms intended to provide more information to jurors, C.R.C.P. 47(m) was amended to delete the prohibition against allowing depositions and certain other papers into the jury room during deliberations. The amended rule now states: “Upon retiring, the .jurors shall take the jury instructions, their juror notebooks and notes they personally made, if any, and to the extent feasible, those exhibits that have been admitted as evidence.”

Consequently, under the present rule, all exhibits that have been admitted as evidence may be taken into the jury room, unless it is infeasible to do so. Thus, the basis no longer exists for prohibiting juror access during deliberations to videotapes, audiotapes, or written documents.

Here, defendant did not contend in the trial court that it would be infeasible or unfairly prejudicial for the jurors to take the wife’s written statement into the jury room. Thus, the trial court did not err in ruling consistently with the plain language of C.R.C.P. 47(m).

Because our conclusion rests upon the plain language of amended C.R.C.P. 47(m), we need not consider the numerous out-of-state cases cited to us by the parties on this issue.

We also reject defendant’s contention that allowing the written inculpatory statement into the jury room violated defendant’s rights to due process and a fair trial. Defendant cites no case, and we have found none, holding that allowing the jury access to a written statement of this nature, which was admitted at trial without objection, and whose admissibility is not challenged on appeal, violates the constitutional right to due process and a fair trial.

TV. Limitation of Cross-Examination

Defendant next contends the trial court violated his right to present a defense and confront the witnesses against him when it refused to allow him to cross-examine his wife about the anticipated length of her prison sentence if she had not pleaded guilty. We disagree.

The right to confront and cross-examine witnesses is guaranteed by the Sixth Amendment and by Colo. Const, art. II, § 16. People v. Montoya, 942 P.2d 1287, 1293 (Colo.App.1996)(Montoya II). Although a trial court has discretion to limit cross-examination of a witness, it is constitutional error excessively to limit cross-examination relating to the witness’s credibility, such as bias, prejudice, or motive for testifying. Merritt v. People, 842 P.2d 162 (Colo.1992).

A defendant’s right to confrontation is not violated when the trial court excludes evidence regarding the difference between potential penalties for the original crime charged and those for the charge to which the witness pleaded guilty, as long as the jury was informed of the original charges, the charges to which the witness pleaded guilty, and the penalty imposed. In such circumstances, the jury receives adequate facts to draw inferences about the witness’s bias and motive. Montoya II, supra.

An accomplice’s guilty plea is admissible to establish an “acknowledgment by the accomplice of participation in the offense,” and'the trial court “has discretion to limit inquiry into facts underlying the accomplice’s conviction.” People v. Atiman, supra, 67 P.3d at 763.

Here, the jury heard evidence that the wife was charged in connection with the thefts,- that she pleaded guilty to conspiracy to commit theft, that she expected to receive a sentence of probation, and that she pleaded guilty to “stay out of jail-.” Defense counsel was allowed to question the wife regarding the plea bargain, including the fact that she pleaded guilty because she feared imprisonment. However, counsel was not allowed to cross-examine the wife to show that her trial attorney had erroneously advised her that if she were convicted, she faced a mandatory, minimum twenty-year prison sentence and that the prospect of a twenty-year imprisonment prompted her to plead guilty.

Nonetheless, during the defense ease, the wife testified that her attorney “finally convinced [her], through several different avenues, that [she] was going to jail” and also told her “it was a crime of violence.” Thus, the jury was provided sufficient information to draw inferences about the wife’s possible bias and motive for testifying. See Montoya II, supra. But see State v. Vogleson, 275 Ga. 637, 571 S.E.2d 752 (2002)(trial court abused its discretion in not allowing defendant to cross-examine prosecution witness about his belief as to amount of prison time he was avoiding by testifying against defendant).

Therefore, we conclude that defendant was not denied his right to effective cross-examination.

V. Prior Criminal History

Defendant also argues his right to a fair trial was violated when the jury heard evidence of his prior criminal history, consisting of a comment about an alleged criminal act in the 1960s, an allegation that he had “gotten into some things,” and a reference to a previous charge for driving under the influence (DUI). We disagree.

A trial court has broad discretion in admitting evidence of other crimes, wrongs, or acts for a proper purpose. People v. Willner, 879 P.2d 19 (Colo.1994). Because no objection was made in the trial court to the testimony now challenged on appeal, our review is limited to plain error analysis. See Wilson v. People, supra.

While CRE 404(b) excludes evidence of a person’s other crimes, wrongs, or acts to establish his or her character for the purpose of showing that the person acted in conformity with that character, such evidence is admissible for other purposes, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” People v. Thompson, 950 P.2d 608, 614 (Colo.App.1997).

A division of this court has held that no plain error occurs when the trial court does not sua sponte conduct a CRE 404(b) analysis of unchallenged evidence. People v. Thompson, supra.

Similarly, a division of this court did not find plain error in the trial court’s decision not to grant a mistrial when the prosecution elicited testimony from the victim, in apparent violation of a pretrial order, that the defendant had traded places with her during a traffic stop. The division reasoned:

[T]he prosecution did not focus on any acts or statements of the defendant, but rather established that the victim had lied to protect the defendant. Thus, the emphasis was not on defendant, but on the victim. Further, there was not' any testimony about any charges having been filed against defendant in connection with this incident. Accordingly, the fundamental fairness of the trial was not threatened.

People v. Lafferty, 9 P.3d 1132, 1136 (Colo.App.1999).

As noted above, the wife’s testimony at trial contradicted and recanted her written statement. During cross-examination, the prosecutor asked about her out-of-court statements in which she acknowledged that she had lied to protect defendant in the past. Specifically, the jury heard about a traffic accident in the 1960s where she took the blame and told the police that she was driving when in fact defendant was the driver. This incident was remote in time, occurring approximately forty years earlier, and the wife did not testify that any charges were filed against.defendant then. See People v. Lafferty, supra.

In addition, the wife stated on cross-examination that defendant owed money to an attorney in connection with the representation of defendant for his third DUI charge. However, there was no express testimony that defendant was convicted of any DUI offense, and the wife specifically testified that he was not convicted of the third DUI charge.

Although the wife also testified that defendant had “gotten into some things,” it is unclear whether this testimony referred to prior bad acts because it was vague and brief. See People v. Banks, 983 P.2d 102, 105 (Colo.App.1999), aff'd, 9 P.3d 1125 (Colo.2000).

Accordingly, we conclude that no plain error occurred.

In light of our disposition, we do not address defendant’s remaining contentions.

The judgment is reversed with respect to the convictions for theft from an at-risk adult; the judgment is affirmed in all other respects.

Judge ROTHENBERG and Judge WEBB concur.