author: Judge TAUBMAN.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jimmy F. LAFFERTY a/k/a Lafferty, Jimmy Ford, Defendant-Appellant.
    No. 98CA0915.
    Colorado Court of Appeals, Div. V.
    Aug. 5, 1999.
    Rehearing Denied Oct. 28, 1999.
    Certiorari Denied Oct. 10, 2000.

      Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. MeLachlan, Solicitor General, John Daniel Dailey, Assistant Solicitor General, John J. Krause, Assistant Attorney General, Denver, Colorado, for Plaintiff-Ap-pellee.
    Law Office of Wesley A. Miller, Wesley A. Miller, Vigil Law Offices, P.C., Frank G. Vigil, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Jimmy Lafferty, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree assault. We affirm.

Defendant was charged after a neighbor called 911 upon hearing an argument between defendant and the victim, his girlfriend: When the neighbor heard the victim calling for help, he went out to the hallway, found her on the floor, and noticed a "massive bruise on her face."

After the neighbor brought the victim into his apartment, she told the 911 dispatcher that she had been beaten by defendant and that she was going to press charges. Later, the victim told an officer and a paramedic on the scene that defendant had punched her several times in the face.

At trial, the victim recanted, testifying that her injuries were the result of a fall she had suffered earlier that evening.

The jury also heard the testimony of an expert qualified to testify in the area of domestic violence. The expert specifically testified concerning patterns of behavior associated with domestic violence, including the "cycle of violence." The expert described the cycle of violence as consisting of three phases: tension-building, acute battering, and loving contrition. The expert explained why a victim may remain in a violent relationship or recant accusations of abuse.

I. Admissibility of Expert Testimony

First, defendant contends the trial court erred in allowing the expert to testify. More specifically, he contends that the trial court improperly allowed the expert to testify regarding the "cycle of violence" associated with domestic violence, and its relation to recantations by victims of domestic violence. We perceive no error.

Here, upon completing voir dire of the expert, defense counsel stated that he had no objection to the expert's qualifications in the field of domestic violence.

Later, after the court had accepted the expert in the field of domestic violence, and after he had begun testifying, the court clarified the scope of the expert's testimony outside the presence of the jury. The court indicated that the expert's testimony would be useful to the jury in explaining "why [a recantation by the victim] would be occurring." The trial court gave defendant an opportunity to make a further record on the issue, but defense counsel declined the opportunity.

The expert later testified that he had not met the victim, and further stated that he had not formed an opinion about the eredibility of any of the witnesses in the case. However, when the prosecutor asked: "Now, Doctor, how does time weigh into a victim's level of cooperation without discussing her credibility at all," the expert responded that, over time, a victim may recant. Defense counsel objected, contending that recantation implies untruthfulness.

The trial court overruled the objection and instructed the jury that the expert's testimony concerned not whether there was an untruthful statement by any witness in the case, but rather why the victim's version of the incident had changed over time.

A.

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." CRE 702.

CRE 702 calls for a two-tiered analysis. A court must first consider whether the substance of the proffered testimony will be helpful to the fact finder. The court must then decide whether the witness providing such information is competent to render an expert opinion on the subject in question. See Brooks v. People, 975 P.2d 1105 (Colo.1999).

In cases involving domestic violence, expert testimony concerning the reasons for victims' recantations is admissible. See Arcoren v. United States, 929 F.2d 1235 (8th Cir.1991); State v. Borrelli, 227 Conn. 153, 629 A.2d 1105 (1993); State v. Cababag, 9 Haw.App. 496, 850 P.2d 716 (1998). See also People v. Yaklich, 883 P.2d 758 (Colo.App.1991) (evidence concerning battered woman's syndrome is admissible in certain cireum-stance to establish a defense of self-defense).

The decision to admit expert testimony lies within the discretion of the trial court and will not be overturned absent an abuse of discretion. See People v. Fasy, 829 P.2d 1314 (Colo.1992).

The issue here is distinguishable from the issue presented in People v. Yaklich, supra, i.e., that evidence concerning battered woman's syndrome is admissible in certain cireumstances to establish a defense of self-defense. However, we agree with other courts that the admissibility of such evidence should not be limited to establishing self-defense. See Arcoren v. United States, supra (it would be anomalous to allow a battered woman who is a criminal defendant to offer expert testimony on battered woman's syndrome to explain her actions, yet deny that same opportunity to a battered woman who is the complaining witness).

Accordingly, we conclude that the trial court did not abuse its discretion in admitting the expert's testimony concerning the cycle of violence and how it relates to recantation. See People v. Fasy, supra.

Our conclusion is consistent with other decisions of the supreme court that have afforded trial courts broad discretion in admitting expert testimony. See People v. Fasy, supra (expert testimony admissible under CRE 702 for purpose of assisting jury in understanding child sexual assault victim's post-assault behavior); People v. Hampton, 746 P.2d 947 (Colo.1987) (expert testimony concerning rape trauma syndrome admissible under CRE 702 to corroborate victim's testimony and explain her delay in reporting).

To the extent defendant contends the expert improperly implied that the victim and defendant were in a battering relationship, we also disagree.

The expert testified that recantations and inconsistencies in victims' statements are common and consistent with victims' conduct in battering relationships. However, the expert stated that he had not met the victim. He further testified that the cycle of violence can be manifested in the space of one incident. Therefore, we conclude that the expert did not incorrectly imply that the vietim and defendant were in a battering relationship.

B.

Defendant also asserts that the trial court erred in allowing the expert to testify concerning the victim's eredibility by suggesting that, as a victim of domestic violence, the victim was lying when she recanted. We disagree with defendant, and conclude that the expert did not vouch for the victim's credibility.

Neither a lay witness nor an expert witness may give opinion testimony with respect to whether a witness is telling the truth on a specific occasion. Expert testimony is to be excluded on the issue of whether a witness is fabricating the particular facts at issue. People v. Koon, 713 P.2d 410 (Colo.App.1985).

As noted, the trial court gave the jurors a limiting instruction indicating that the expert's testimony concerned, not eredi-bility, but rather, why the victim's version of the event had changed over time.

Accordingly, we conclude that the expert did not vouch for the credibility of any of the witnesses in the case, and that the trial court did not err in admitting the testimony.

II. Motion for Mistrial re Statement of Victim

Next, defendant asserts that the trial court erred in denying his motion for a mistrial when the prosecution failed to disclose a statement of the victim found in an investigator's report. Again, we are not persuaded.

Crim. P. 16(D(a)(1)(I) provides that the prosecutor shall provide the defendant with police, arrest, and crime reports, including statements of all witnesses.

Such disclosures are automatically required and need not be requested by defense counsel. People v. District Court, 790 P.2d 332 (Colo.1990).

Sanctions imposed for discovery violations rest within the broad discretion of the trial court. Such sanctions should be no more restrictive than necessary to protect the defendant's right to due process. People ex rel. Gallagher v. District Court, 656 P.2d 1287 (Colo.1988).

A mistrial is a drastic remedy and is warranted only if the prejudice to the defendant cannot be remedied by other means. People v. Abbott, 690 P.2d 1263 (Colo.1984).

Here, it is undisputed that the prosecution's failure to disclose the victim's statement, "Jimmy didn't hit me that hard," was inadvertent.

The statement was written by an investigator in a report which had been disclosed to defendant prior to trial. However, the page on which the statement appeared was not included in the report provided to the defense.

Defense counsel noticed that the page was missing when the investigator testified concerning the contents of the report. After considering defendant's motion for mistrial, the trial court denied the motion, but gave defendant the opportunity to recall any of the prosecution witnesses and call any witnesses who had not been endorsed. The trial court found that the prejudice to the defendant was not so great as to warrant a mistrial.

We agree with the trial court and conclude that allowing defendant to recall the investigator or any witnesses who had not previously been endorsed was sufficient to remedy the prejudice. See People ex rel. Gallagher v. District Court, supra.

Furthermore, while the report itself does not appear in the record, our review of the record indicates that the pages of the report were numbered "1 of 5" and so on. Thus, the fact that page "4 of 5" was missing was readily ascertainable, and the failure to disclose the statement could have easily been remedied before trial with a request to the prosecution to provide it.

III. Motion for Mistrial re Conduct of Defendant

Defendant contends the trial court erred in not granting a mistrial sua sponte after the prosecution violated the court's pretrial order excluding testimony concerning a charge against defendant for false reporting. Again, we disagree.

Here, the trial court ordered the prosecution to refrain from exploring any of the defendant's statements or acts concerning any conviction or charge against defendant for an unrelated incident involving false reporting. Defendant contends that the prosecution violated the order by eliciting testimony from the victim that defendant had traded places with her during a traffic stop to avoid a citation.

Because defendant did not object to the testimony at trial, we review the trial court's not granting a mistrial sua sponte under a plain error standard. See Wilson v. People, 743 P.2d 415 (Colo.1987). We conclude that, even if the prosecution violated the trial court's pretrial order, there was no error, much less plain error, in not granting a mistrial.

Here, the 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.

Thus, we perceive no error in the trial court's failure to grant a mistrial where none was requested by defendant. See People v. Abbott, supra.

IV. Sufficiency of Evidence

Finally, defendant contends that the evi-denee was insufficient to sustain his conviction for second degree assault. Again, we disagree.

When reviewing the sufficiency of the evidence, the court must view the evidence in the light most favorable to the People to determine whether the conviction was supported beyond a reasonable doubt. People v. Gonzales, 666 P.2d 128 (Colo.1983).

Where reasonable minds could differ, the evidence is sufficient to sustain a conviction. See People v. Fuller, 791 P.2d 702 (Colo.1990).

Here, the People presented evidence that the victim had told various individuals that defendant had beaten her. Further, testimony of the medical personnel who treated the victim, plus the testimony of the neighbor, established that she had suffered serious bodily injury. Thus, we conclude that the evidence was sufficient to sustain the conviction.

The judgment of conviction is affirmed.

Judge ROTHENBERG and Judge ROY concur.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Pliaintiff-Appellee, v. Ralph Terry WOLFE, Defendant Appellant.
    No. 97CA2190.
    Colorado Court of Appeals, Div. V.
    Dec. 28, 1999.
    Rehearing Denied Feb. 10, 2000.
    Certiorari Denied Oct. 10, 2000.

      Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, John Daniel Dailey, Assistant Solicitor General, John J. Fuerst III, Assistant Attorney General, Denver, Colorado, for P1a1nt1ff~Ap-pellee.
    M. Colin Bresee, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Ralph Terry Wolfe, appeals the judgment of conviction entered on a jury verdict finding him guilty of theft. On May 27, 1999, we announced an opinion reversing defendant's judgment of conviction on the basis that his statutory speedy trial right had been violated. Shortly thereafter, we granted the People's motion to withdraw the opinion, pending clarification of the record.

On remand, the trial court corrected the transcript of the July 8, 1997, hearing which was the focal point of our analysis on the speedy trial issue. Upon review of the corrected transcript and consideration of the parties' supplemental briefs, we now affirm defendant's conviction.

Defendant was charged with theft arising out of an insurance fraud. He pled not guilty on February 24, 1997, and trial was scheduled for July 7, 1997. On July 8, 1997, because certain witnesses were not available for trial, the trial court granted the People's motion for continuance of the trial. It was the granting of this motion that formed the basis for defendant's statutory speedy trial argument.

Before addressing the merits of defendant's speedy trial contentions, we address two procedural issues raised by defendant relating to our withdrawal of the May 27, 1999, opinion and our remand to the trial court to clarify the record.

I. Propriety of Correcting the Record °

Defendant asserts that, by failing to object to the designated record prior to the issuance of this court's opinion, the People waived any objection to the record as it was originally presented to this court. He further contends that, while C.A.R. 10(e) authorizes this court to correct the record, it does not authorize correction of the record after an opinion has been issued. We disagree with both contentions.

A.

CAR. 10(e) provides in pertinent part:

If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the appellate court.

Here, the People filed their emergency motion to withdraw the court's opinion pending clarification of the record on June 2, 1999, six days after the opinion was announced.

The People asserted that after our original opinion was announced, they determined that our analysis of the statutory speedy trial issue was based upon an incorrect tran-seript. Supported by affidavits of the two trial prosecutors and defendant's trial attorney, the People alleged that in transcribing the hearing on the speedy trial issue, the court reporter incorrectly attributed certain statements made by defense counsel to the prosecutors and vice versa. After considering defendant's response, we granted the People's motion.

We agree with defendant's assertion that the court of appeals has a significant interest in ensuring that its opinions, once issued, are final, and not subject to vacation because of the belated discovery of new information by a party or its attorney. Nevertheless, CAR. 40 contemplates that where a mistake has been made, parties may file petitions for rehearing, which may lead to the granting of such petitions and the withdrawal of an opinion in an appropriate case,

Further, CAR. 10(e) specifically provides that the appellate court, on proper motion, may direct that an omission or misstatement in the record be corrected, and if necessary that a supplemental record be certified and transmitted. Nothing in the plain language of this rule precludes an appellate court from considering a motion to correct a misstatement in the record after an opinion has been announced. While there is a point at which it may be considered too late for a party to seek correction of the record, here, the People filed their motion only six days after the announcement of this court's opinion. Accordingly, we conclude that it was appropriate to consider the People's motion to withdraw our opinion and request clarification of the record.

B.

Defendant next contends that even if we had the authority to entertain the People's motion, we should not recertify the corrected record because the Office of the Attorney General knew about the errors in the record before it wrote and filed its answer brief. We conclude that it was appropriate to correct the record under the cireum-stances presented here.

Defendant's contention is based upon testimony by one of the trial prosecutors at the hearing on remand to the effect that he was aware of and had informed the assistant attorney general of an error in the trial tran-seript before the People filed their answer brief in this matter. Defendant's contention is based upon evidence adduced at the hearing on remand, which was in apparent contradiction to the People's motion to withdraw this court's opinion. That motion stated in part that, since the announcement of that opinion, "the Attorney General's office has learned that its position on appeal was based on a significant misapprehension of the facts." The People's motion further stated that because the transcript of the July 8, 1997, hearing was not apparently flawed, the assistant attorney general did not send a copy of it to the office of the Jefferson County District Attorney for review. It further indicated that the Office of the Attorney General presumes that the transcripts it receives are accurate.

Based upon the trial prosecutor's testimony, defendant argues that the People's belated attempt to correct the record should be barred based upon the doctrines of laches and waiver. We disagree.

The doctrine of laches permits a court to deny a party equitable relief if his or her unconscionable delay in enforcing rights has prejudiced the party against whom relief is sought. Colorado Ground Water Commission v. Dreiling, 198 Colo. 560, 606 P.2d 836 (1979). Also, a party may waive its right to correct the record when it does not act promptly after trial. See Halliburton v. Public Service Co., 804 P.2d 213 (Colo.App.1990). Whether the elements of these doctrines are present is essentially a question of fact to be determined upon the evidence presented. Montesuma County Department of Social Services v. Laner, 937 P.2d 903 (Colo.App.1997).

On remand, defendant presented his argument of laches and waiver by the People, and the trial court rejected it. We conclude that the record supports the trial court's rejection of defendant's contention.

While it would have been preferable for the People to have alerted the trial court or this court to their concern about the accuracy of the transcript before our opinion was announced, it was within the trial court's discretion to determine that there was no waiver or laches shown. In view of the fact that the parties agreed the transcript was inaccurate, the trial court properly concluded that the interest in the finality of our original opinion was outweighed by the importance of ensuring an accurate result on appeal.

II. Effect of Court Reporter's Error

Relying upon a special concurrence in King v. People, 54 Colo. 122, 129 P. 285 (1913), defendant asserts that he should not suffer because of an error by the court reporter when she did not transcribe accurately the court proceeding on July 8, 1997. We are not persuaded.

In King, an official stenographer was present and took down the trial testimony in shorthand. After the trial, his shorthand notes were unintentionally destroyed. One justice, specially concurring, concluded that King should not have to rely on gathering persons who were present at the trial, including the trial court judge, to reconstruct the trial testimony. He wrote:

It cannot be the law of this state that the defendant ... must suffer for the fault of the court stenographer whose duty it was to preserve his notes.... Let him who is at fault bear the resulting burden.

King v. People, supra, 54 Colo. at 181-82, 129 P. at 239-40.

King predates the promulgation of the Colorado Appellate Rules, and specifically C.A.R. 10(e), which established a specific procedure for correcting a record. Additionally, the magnitude of the loss was much greater in King, since the entire trial testimony was inadvertently destroyed. Here, in contrast, the only asserted errors concerned relatively few lines of testimony by the prosecutors and defendant's trial attorney, which had been improperly attributed to each party.

Accordingly, we conclude that it was reasonable for the trial court to correct the record here, and, that, indeed, an injustice would occur if this appeal were decided on the basis of an incorrect record.

III. Statutory Speedy Trial

In his supplemental brief, defendant argues that the corrected record does not support the trial court's finding that the People exercised due diligence in attempting to secure the presence of out-of-state witnesses, and that the statutory speedy trial period was not tolled under § 18-1-405(6)(g)(D), C.R.S.1999. We disagree.

Under § 18-1-405, C.R.8.1999, a defendant has the right to be brought to trial within six months of pleading not guilty. This language is mandatory, and trial must be held within six months unless there is a period of delay which fits within one of the exclusionary provisions in the statute. Failure to comply with the statute requires dismissal of the charges with prejudice. People v. Martin, 7182 P.2d 1210 (Colo.1987).

Section 18-1-405(6)(g)(I) provides for an exclusion of time from the speedy trial period, not to exceed six months, resulting from a continuance granted at the request of the prosecuting attorney, without the consent of the defendant. The continuance must 'have been sought because of the unavailability of evidence material to the state's case when the prosecutor has exercised due diligence to obtain the missing evidence and there are reasonable grounds to believe the evidence will be available at a later date.

A party seeking a continuance attributable to an unavailable witness bears the burden of proving that he or she has used due diligence in attempting to secure the witness' presence. See People ex rel. Gallagher v. County Court, 759 P.2d 859 (Colo.App.1988).

A trial court's finding of due diligence under $ 18-1-405(6)(g)(I) must be supported by the record. Sweet v. Myers, 200 Colo. 50, 612 P.2d 75 (1980); People v. McCormick, 889 P.2d 474 (Colo.App.1992), rev'd on other grounds, 859 P.2d 846 (Colo.1993).

Reliance on informal and highly uncertain procedures to obtain the presence of essential witnesses, even if customary, does not amount to due diligence. See People v. Stanchieff, 862 P.2d 988 (Colo.App.1993) (because mailing a subpoena to a witness, without more, did not comply with the requirements for subpoenaing witnesses set forth in Crim. P. 17(d), prosecution failed to demonstrate good cause for continuing preliminary hearing and was barred from proceeding by direct filing of information after county court dismissed charge).

To demonstrate due diligence, a prosecutor may be required to use available legal mechanisms to secure the presence of persons necessary for trial. People v. Mims, 155 Misc.2d 168, 587 N.Y.S.2d 586 (1992) (no due diligence shown where People did not attempt to subpoena the witnesses or inquire as to their whereabouts, or take appropriate measures to ensure their appearances in court); State v. Hairychin, 186 Wash.2d 862, 968 P.2d 410 (1998) (state's failure to subpoena victim was lack of due diligence precluding continuance under juvenile speedy trial rule). Cf. People v. Byrne, 762 P.2d 674 (Colo.1988) (no due diligence where, after learning of the defendant's location, prosecutor did not request writ to secure defendant's presence).

Out-of-state witnesses can be compelled to testify in Colorado pursuant to the "Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings" (the Uniform Act), § 16-9-201, et seq., C.R.8.1999. See Crim. P. 17(0)(@2).

Under the Uniform Act, a judge from another participating state may issue a certificate requiring a material witness to travel from that state to testify in Colorado and, if necessary, may even order the witness taken into custody. Texas has adopted the Uniform Act. Tex.Code Ann. § 24.28 (Vernon 1998).

In our original opinion, we concluded, "The record does not support the trial court's finding that the prosecution exercised due diligence in attempting to secure the presence of out-of-state witnesses." Accordingly, we held that defendant's speedy trial period was not tolled under § 18-1-405(6)(g)(D).

Our conclusion was based upon the facts as set forth in the original transcript of the July 8, 1997, hearing. The record there reflected that, almost two weeks before trial, the prosecutors were put on notice that one Texas witness would not honor a mailed subpoena and would not cooperate with an informal request to testify,. We further stated: "The prosecutors made no effort to use the procedures of the Uniform Act to compel that witness to attend, apparently because they determined they could proceed without his testimony." We also noted that the prosecutors did not allege that they lacked sufficient time to use the Uniform Act procedures.

However, based upon the corrected tran-seript, we now conclude that the cireum-stances were at odds with what we had believed them to be. The corrected transcript reveals that the following transpired at the hearing on July 8, 1997: |

Defendant's trial counsel stated to the court that he was no longer seeking a continuance, despite the unavailability of one of his out-of-state witnesses. The prosecution responded that it was unable to proceed and was seeking a continuance because its two out-of-state witnesses had refused to attend. One prosecutor explained that he had issued "straight subpoenas" to these witnesses because they had been cooperative with the prosecution throughout the entire proceeding, had made flight arrangements and hotel arrangements, and had only informed the prosecution on July 3, the last business day before trial, that they no longer planned to be present for the trial.

Based upon those witnesses' continuing cooperation, the prosecutors assert, and we agree, that they had a reasonable basis to believe that the witnesses would appear for trial on July 7 or 8, 1997. The prosecutors could not reasonably have anticipated that the witnesses would change their minds at the last minute based upon apparent communications from another lawyer in the law firm of defendant's trial counsel. That lawyer had indicated to them that a "straight subpoena" was not binding on them, and, therefore, they were not required to appear in court in Colorado.

By the time the prosecutors learned that these witnesses were not coming to Colorado, it was too late to invoke the procedures under the Uniform Act to compel them to testify. The record supports the trial court's conclusion that the witnesses were material and would be available for the later trial date. In addition, at the July 8, 1997, proceeding, the prosecutor represented to the court that he would file a motion under the Uniform Act to compel the Texas witnesses to testify. One of the prosecution's Texas witnesses did testify at the October trial.

Under these cireumstances, we conclude the trial court did not abuse its discretion in finding that the prosecutors had acted with due diligence in seeking to obtain the presence of its out-of-state witnesses for the trial, and that a continuance was warranted pursuant to § C.R.S8.1999. We therefore conclude that defendant's statutory right to speedy trial was not violated.

Because we affirm the trial court's grant of a continuance under the speedy trial statute, we must address defendant's remaining arguments raised in his original appeal.

IV. Constitutional Right to Speedy Trial

Defendant next contends that his constitutional right to speedy trial was violated. We disagree.

Whether a defendant's constitutional right to speedy trial has been violated is based on a balancing test consisting of: (1) the length of delay; (2) the reasons for delay; (3) the defendant's assertion of the speedy trial right; and (4) the prejudice to the defendant. People v. Harris 914 P.2d 425 (Colo.App.1995). We conclude that, based on this test, defendant's constitutional right to speedy trial was not violated when the trial court granted a continuance.

Here, the delay was only three and one-half months. The reasons for the delay were reasonable and legitimate under the cireum-stances. The trial court found that the prosecutor had exercised due diligence to obtain the cooperation and testimony of the witnesses in question, but due to unforeseen problems, they had refused to attend. Further, defendant did not assert that his right to a speedy trial was being violated when the court reset the case for trial. Nor did he suffer prejudice based upon additional expense and anxiety. During the delay, defendant was on bond and living in Louisiana.

Thus, defendant failed to meet any prong of the balancing test, and accordingly, the continuance did not violate his constitutional right to speedy trial.

V. Dismissal of Juror

Defendant asserts that his right to a fair and impartial jury was violated because the trial court, sua sponte, dismissed a prospective juror and did not record the side bar conference during which the reason for excusing the juror was discussed. We do not perceive any reversible error.

A criminal defendant is entitled to a record on appeal that includes a complete transcript of the trial proceedings. People v. Rodrigues, 914 P.2d 280 (Colo.1996). Thus, the trial court judge in a criminal case must record all bench and side bar conferences unless the parties agree to conduct such conferences off the record. However, a failure to record such conferences does not automatically constitute reversible error. Jones v. District Court, 780 P.2d 526 (Colo.1989).

It is the duty of the party alleging error to provide the appellate court with an adequate record in support of the alleged error. Westrac, Inc. v. Walker Field, 812 P.2d 714 (Colo.App.1991); see C.A.R. 10(c).

A defendant must establish specific prejudice that resulted from an incomplete record. A defendant cannot rely on bare assertions that an incomplete record impaired his or her ability to appeal. People v. Rodrigues, supra. Further, prejudice resulting from the dismissal of a Juror will not be presumed; a defendant must demonstrate that either the remaining jurors were biased or unfair, or that he or she was prejudiced specifically by the dismissal of the juror in question. People v. Johnson, 757 P.2d 1098 (Colo.App.1988).

Here, there is no evidence that defendant's trial attorney objected to the juror's dismissal, sought to have the side bar conference recorded, or summarized the bench conference on the record. Nor did defendant show that any prejudice resulted from the court's dismissal of the juror, or its failure to record the side bar conference.

Therefore, we conclude that the trial court did not abuse its discretion when it dismissed the juror in question and did not commit reversible error by not recording the side bar conference.

VI. Introduction of Documents

Defendant next asserts that the trial court erred when it allowed the prosecutor to question him regarding certain documents because of the prosecutor's previous representation that he would not enter the documents into evidence. We disagree that reversal is required on this basis.

When a court is called upon to determine the substance of an alleged promise by a prosecutor, it must weigh the evidence and make factual findings to resolve the dispute. However, this does not require the trial court to conduct a formal hearing on that issue. The trial court's findings are reviewed with the same deference afforded evidentiary rulings. People v. Hlsbach, 984 P.2d 877 (Colo.App.1997).

Defendant asserts that the trial court should have conducted a hearing to ascertain what the prosecutor promised defendant, and whether that promise was judicially enforceable. Here, it is undisputed that the night before the trial started, the prosecutor was provided with certain time records of defendant which had not previously been disclosed. On the morning of trial, the prosecutor provided copies of these time records to defendant's attorney, and represented that he would not introduce them in his case. However, after defendant referenced the time records during his direct examination, the prosecutor used the disputed documents to impeach testimony given by defendant on direct examination.

After hearing brief arguments by counsel regarding the documents, the court determined that the prosecutor could cross-examine defendant about the documents, provided that defendant first identified the documents, and that the prosecutor only used them in his questioning of defendant. The prosecutor agreed and did not seek to have the disputed documents admitted into evidence.

We conclude that the trial court did not abuse its discretion. The record supports its decision to allow the prosecutor to cross-examine defendant regarding the disputed documents, but not to have such documents admitted as evidence. Defendant does not assert that the prosecutor promised he would not refer to these documents or question him about them. He merely asserts that the prosecutor promised he would not seek to have the documents admitted into evidence, and he did not do so.

The judgment is affirmed.

Judge ROTHENBERG and Judge ROY concur. -


author: Judge MARQUEZ.

text:
    Rosanne Marie (Brock) DITTMAR, Plaintiff-Appellant, v. JOE DICKERSON & ASSOCIATES, LLC, a Colorado limited liability corporation, and Joe H. Dickerson, individually, Defendants-Appellees.
    No. 98CA1228.
    Colorado Court of Appeals, Div. IIL
    Dec. 23, 1999.
    Certiorari Granted Sept. 5, 2000.
    Richard J. Lesch, Denver, Colorado, for Plaintiff-Appellant.
    Harris, Karstaedt, Jamison & Powers, P.C., Michael B. Sullivan, Susan M. Stamm, Englewood, Colorado, for Defendants-Appel-lees.
   Opinion by

Judge MARQUEZ.

In this action for invasion of privacy for appropriation of her likeness and name, plaintiff, Rosanne Marie (Brock) Dittmar, appeals a summary judgment entered in favor of defendants, Joe Dickerson and Associates, LLC and Joe H. Dickerson. We reverse and remand for further proceedings.

The following facts are undisputed. Defendants were hired to investigate plaintiff in a child custody dispute. During the course of their investigation, defendants inquired into the cireumstances under which plaintiff came to possess bearer bonds and reported the results of this investigation to law enforcement authorities. Plaintiff was later charged and found guilty by a jury of theft of $15,000 or more.

Subsequently, defendants published an article concerning plaintiff's conviction in their newsletter entitled "The Dickerson Report," which publishes articles concerning financial fraud investigations. The article included plaintiffs name and photograph and de-seribed defendants' role in the investigation that culminated in plaintiff's conviction.

Plaintiff then filed this action alleging, among other claims, that defendants had maliciously appropriated her picture and her name for no other reason than to promote their commercial advantage without her express or implied consent, which resulted in an invasion of her right to privacy. The trial court granted defendants' motion for summary judgment.

Plaintiff contends that the essence of a claim under the Restatement (Second) of Torts § 652C (1977) is whether the defendant appropriates her name or likeness for his or her own commercial gain, and not whether the plaintiff is portrayed in a positive or negative light. In particular, she asserts that the newsletter is an "infomercial" designed to promote defendants' private investigation firm and to attract business for the firm. We conclude that there are genuine issues of material fact which make summary judgment inappropriate.

We review orders granting summary judgment de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995). Summary judgment is a drastic remedy and should only be granted if there is a clear showing that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Compass Insurance Co. v. City of Littleton, 984 P.2d 606 (Colo.1999).

Restatement (Second) of Torts § 652C provides that "one who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy."

While Colorado appellate courts have not addressed § 6520, Colorado law does recognize that an individual may be compensated by damages for an invasion of his or her right to privacy. Rugg v. McCarty, 173 Colo. 170, 476 P.2d 758 (1970).

The supreme court has noted that a majority of jurisdictions recognize that the right of privacy may be invaded in four different ways: 1) unreasonable intrusion upon the seclusion of another; 2) appropriation of another's name or likeness; 3) unreasonable publicity given to another's private life; and 4) publicity that unreasonably places another in a false light, Ozer v. Borquez, 940 P.2d 371 (Colo.1997) (recognizing tort claim for invasion of privacy in the nature of unreasonable publicity given to one's private life and citing Restatement (Second) of Torts § 652D). More recently, a division of this court recognized a claim of invasion of privacy by intrusion upon one's seclusion. See Doe v. High-Tech Institute, Inc., 972 P.2d 1060 (Colo.App.1998).

We see no reason why a claim for appropriation of another's name or likeness should not be recognized in Colorado.

In order for liability to exist, the defendant must have appropriated to his or her own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the plaintiff's name or likeness. See Restatement (Second) of Torts § 6520 comment c (1977); see also Matthews v. Wozgeneraft, 15 F.3d 482 (5th Cir.1994); Henley v. Dillard Department Stores, 46 F.Supp.2d 587 (N.D.Tex.1999); Tellado v. Time-Life Books, Inc., 648 F.Supp. 904 (D.N.J.1986); Staruski v. Continental Telephone Co., 154 Vt. 568, 581 A.2d 266 (1990); W. Prosser, Torts § 117 (5th ed.1984).

Restatement (Second) of Torts § 6520 comment b (1977) provides that the common form of invasion of privacy under the rule is the appropriation and use of plaintiff's name or likeness to advertise the defendant's business or product, or for some similar commercial purpose. It also applies when the defendant makes use of the plaintiffs name or likeness for defendant's own purposes and benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one.

However, Restatement Second of Torts § 6520 comment d (1977) provides in part:

No one has the right to object merely because his name or his appearance is brought before the public, since neither is in any way a private matter and both are open to public observation. It is only when the publicity is given for the purpose of appropriating to the defendant's benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded. The fact that the defendant is engaged in the business of publication, for example of a newspaper, out of which he makes or seeks to make a profit, is not enough to make the incidental publication a commercial use of the name or likeness.

Generally, this tort is not applicable when a person's name or picture is used to illustrate a non-commercial, newsworthy article. Ault v. Hustler Magazine, Inc., 860 F.2d 877 (9th Cir.1988); see Matthews v. Wozencraft, supra (a name cannot be appropriated by reference to it in connection with the legitimate mention of public activities). Nor can a plaintiff recover if use of the name or likeness is merely incidental See Matthews v. Wozencraft, supra; Reeves v. Fox Television Network, 983 F.Supp. 703 (N.D.Ohio 1997); Pearce v. E.F. Hutton Group, Inc., 664 F.Supp. 1490 (D.C.1987); Vinci v. American Can Co., 69 Ohio App.3d 727, 591 N.E.2d 798 (1990); Cox v. Hatch, 761 P.2d 556 (Utah 1988).

Here, in rejecting plaintiff's claim, the trial court ruled that the purpose of the article was to inform the readers of defendants' role in uncovering criminal activity. It further determined that there was no evidence that plaintiff's name or likeness was published to take advantage of any value associated with her for the purpose of publicity, and that she had presented no evidence that her name or likeness had any value. It noted that she had argued that "her picture and name are of no additional value to the article."

We conclude, however, that there are genuine issues of material fact with respect to the purpose of the publication and whether there was some benefit or advantage to defendant. Whether the purpose was simply newsworthy or incidental are related issues of fact.

Use is not merely incidental when its purpose is to advertise defendant's product. Ainsworth v. Century Supply Co., 295 Ill.App.3d 644, 280 Ill.Dec. 381, 693 N.E.2d 510 (1998) (use of video of plaintiff laying ceramic tile); Canessa v. J.I. Kislak, Inc., 97 N.J.Super. 827, 235 A.2d 62 (1967) (article of family seeking home publicized with defendant's trademark); Staruski v. Continental Telephone Co., supra (employer ran photo of plaintiff without her consent and attributed company's advertising copy to her).

The fame of a person whose identity is appropriated is not a prerequisite to recovery for invasion of privacy. See Staruski v. Continental Telephone Co., supra.

Nor is it dispositive that plaintiff's conviction is a matter of public record, her photo was taken in a public place, and articles regarding the trial were published in a local newspaper. Here, the information was included in a commercial publication allegedly intended to promote defendant's commercial interests. While some cases in Colorado have indicated that disclosure of facts that are already public will not support a claim for invasion of privacy, see Ozer v. Borquez, supra; Lindemuth v. Jefferson County School District, 765 P.2d 1057 (Colo.App.1988) (privacy claim dismissed since plaintiff's criminal records were public); Lincoln v. Denver Post, 31 Colo.App. 288, 501 P.2d 152 (1972) (right of privacy ceased to exist when plaintiff became a criminal defendant), those cases did not involve claims for appropriation of another's name or likeness. But see Matthews v. Wozencraft, supra.

In the present case, the article appeared on the first page of the publication, identified plaintiff by name, and included her picture with her name underneath,. The top of the page is headed, "The Dickerson Report," "Judgment Enforcement Financial Investigation Litigation Management" and includes defendants' address, telephone numbers, and e-mail address. To the left of the article are the name "Joe H. Dickerson" as well as descriptions of Mr. Dickerson's titles as a certified fraud examiner, certified financial investigator, and certified environmental investigator, and a detailed list of defendants' areas of practice. The article is captioned "Fraud DuJour-Five Cases, 100%+ Recovery." Under case # 1, the article sets forth the facts of plaintiff's case and describes defendants' role in investigative efforts concerning plaintiff, culminating in court ordered restitution to the estate of the victim for the full amount of the theft.

The summary judgment material indicates that 2,600 copies of the report are mailed to attorneys, members of financial institutions, fellow investigators, regulators,, members of the National Association of Certified Investigators, and others. It is undisputed that plaintiff can be identified and that the use of her name and photograph was without her consent.

By contrast, other articles in that same publication simply state "Our Vail, Colorado client," "[this client," or "[a] long time client," and have no names or pictures associated with the articles.

Under these circumstances, there remain genuine issues of material fact including the purpose of the publication, whether defendants derived any benefit, and whether plaintiff was harmed.

Accordingly, the judgment is reversed and the cause is remanded for further proceedings.

Judge JONES and Judge CASEBOLT concur.


author: Judge RULAND.

text:
    COLORADO MOTOR VEHICLE DEALER BOARD, Appellee, v. Michael A. BUTTERFIELD, License No. 241-822-7704, Respondent-Appellant.
    No. 98CA2276.
    Colorado Court of Appeals, Div. IL.
    Jan. 20, 2000.
    Rehearing Denied March 20, 2000.
    Certiorari Denied Oct. 10, 2000.

      Ken Salazar, Attorney General, Ceri C. Williams, Assistant Attorney General, Denver, Colorado, for Appellee.
    Michael G. MeKinnon, Littleton, Colorado, for Respondent-Appellant.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.S.1999.

   Opinion by

Judge RULAND.

Respondent, Michael A. Butterfield, appeals from an order of the Colorado Motor Vehicle Dealer Board (Board) suspending his salesperson license for a specified period and fining him $15,000. We affirm in part, reverse in part, and remand the case for further proceedings.

Respondent was employed as the Finance Manager at an automobile dealership. He was also licensed as a motor vehicle salesperson pursuant to § 12-6-108(c), C.R.S8.1999.

Evidence offered to establish the charges reflects that a married couple leased and took possession of a truck from the dealership. Four days later, respondent telephoned the wife to inform the couple that financing for the transaction had not been approved because the couple's debt-to-income ratio was too high.

During this conversation, respondent inquired whether the couple had any additional income not included on the original credit application, and the wife indicated that there was no such income. Respondent then asked the wife if her husband, as an employee of United Airlines, could secure four "buddy passes" for him so that respondent could fly to Europe.

Respondent solicited the passes in exchange for insuring that financing was secured for the truck transaction. Buddy passes are provided to certain United employees and provide free air travel for their friends and relatives. A deduction of $.05 per mile traveled is then taken from the employee's paycheck.

The record indicates that $1,000 was the amount needed to place the couple's debt-to-income ratio within a permissible range and that respondent did in fact inform the bank that the couple had this amount of additional income. However, respondent did not advise the wife of his misrepresentation to the bank until later.

The bank ultimately approved financing for the couple. However, the couple returned the truck to the dealership later, and respondent was not furnished with any buddy passes.

Based upon this evidence, the Board determined that respondent engaged in a fraudulent business practice in violation of § 12-6-118(5)(F), C.R.S.1999, and that he defrauded retail buyers to their damage in violation of § 12-6-118(5)(n), C.R.S.1999. The Board also found that respondent's conduct reflected a general unfitness of character as a licensee under § 12-6-118(6)(a), C.R.S.1999. The Board therefore imposed the referenced sanctions. This appeal followed.

I.

Initially, we address respondent's contentions that the Board failed to comply with the requirements of § 24-4-104(8), C.R.S.1999, and thus lacked jurisdiction to suspend his license.

Section 24-4-104(8) provides that:

No ... suspension ... of a license by any agency shall be lawful unless, before institution of agency proceedings therefor, the agency has given the licensee notice in writing of facts or conduct that may warrant such action and afforded the licensee opportunity to submit written data, views, and arguments with respect to such facts and conduct and, except in cases of deliberate and willful violation or of substantial danger to public health and safety, given the licensee a reasonable opportunity to comply with all lawful requirements.

A.

Respondent first contends that the Board violated the statute by failing to provide him with written notice of the allegations related to the charges and an opportunity to respond in writing prior to initiating these proceedings. We find no reversible error.

For purposes of § 24-4-104(8), if a notice of hearing explicitly details the charges made against the licensee and apprises him or her of the right to present evidence in answer to the charges, there is no requirement that the licensee receive yet another notice of the agency proceeding. See Dixon v. State Board of Optometric Examiners, 39 Colo.App. 200, 565 P.2d 960 (1977). Further, § 24-4-104(8) does not require an agency to provide written notice of the licensee's right to submit data and argument in advance of the agency proceeding. Speer v. Kourlis, 985 P.2d 48 (Colo.App.1996).

Here, the record reflects that five months prior to the filing of formal charges, respondent discussed the incident with investigators. At that time, respondent was asked if he wished to make a written statement, and he declined. There is no claim that he was unaware at that time of any of the allegations which formed the basis for the subsequent formal charges.

Next, it is undisputed that ultimately a notice of hearing and charges was served on respondent. This notice contained a detailed statement of the facts and conduct related to the violations. The notice included the specific charges asserted and advised respondent of his right to counsel and his right to present the testimony of witnesses at the hearing.

Respondent filed a written answer to the complaint. However, he failed to include any defense based upon his present claim that the Board failed to comply with the notice requirements of § 24-4-104(8). Indeed, this assertion was not presented until the hearing and then in the form of a motion to dismiss.

Under these cireumstances, we conclude that no violation of the statute has been established so as to preclude the Board from exercising its jurisdiction to consider the charges.

B.

We also reject respondent's contention that the Board violated § 24-4-104(8) by failing to provide him with a reasonable opportunity to comply with any applicable legal requirements in his conduct as a licensee.

While § 24-4-104(8) provides that revocation of a license is improper unless the licensee is first given a reasonable opportunity to comply with all lawful requirements, there is an exception if the violation is willful and deliberate. Further, the statute does not require an express finding that the licensee's conduct was willful and deliberate. See Sanches v. State, 780 P.2d 828 (Colo.1986).

Here, although the Board did not expressly find in its order that respondent's conduct was willful or deliberate, it did conclude that the charges alleged in the notice had been proven. The charging document included allegations of fraudulent conduct and thus willful and deliberate conduct was necessarily at issue. Therefore, the Board implicitly found that respondent acted willfully and deliberately, and thus there was no requirement for a pre-hearing opportunity for compliance. See Colorado Motor Vehicle Dealer Licensing Board v. Northglenn Dodge, Inc., 972 P.2d 707 (Colo.App.1998).

IL

Respondent next contends that the Board's determination that he committed the alleged violations is unsupported by the evidence necessary to establish fraud. We agree as to one charge only.

The standard of review pertinent to the Board's decision is whether substantial evidence exists on the record to support its findings and conclusions. See Zamarripa v. Q & T Food Stores, Inc., 929 P.2d 1832 (Colo.1997); United Financial Credit v. Colorado Collection Agency Board, 892 P.2d 446 (Colo.App.1995).

In this case, the relevant statutes provide no specific definitions of what constitutes either a "fraudulent business practice" for purposes of § 12-6-118(5)(f) or "defrauding" for purposes of § 12-6-118(5)(n). Therefore, we must interpret these provisions according to established principles of statutory construction.

Our primary task in construing a statute is to ascertain and give effect to legislative intent. To determine that intent, we first look to the plain language of the statute and construe the words according to their plain and ordinary meaning. See Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo.1995). And, when the statutory language is clear and unambiguous, there is no need to resort to interpretive rules and statutory construction. See Jones v. Cox, 828 P.2d 218 (Colo.1992).

Based upon application of this analysis, we agree with respondent that the General Assembly's use of the terms "fraudulent" and "defrauding," without more, demonstrates an intent to require proof of common law fraud under the plain meaning rule.

Therefore, to eStabli'sh the violations here, the following elements had to be proven: (1) respondent made a false representation or failed to disclose a material fact; (2) respondent knew the representation was false or that a disclosure should be made; (3) the party to whom the representation was made did not know of its falsity or was unaware of the undisclosed fact; and (4) respondent's conduct was undertaken with intent that it be acted upon. See Brody v. Bock, 897 P.2d 769 (Colo.1995). As discussed below, proof of damage pertains to only one of the charges. -

A.

Respondent contends that the evidence does not support the Board's conclusion that he committed a fraudulent business practice in violation of § 12-6-118(5)(f). According to respondent, the bank suffered no damage because it was not ultimately required to provide financing to the couple. We conclude that proof of damages is not required under this provision of the statute.

As noted, a violation of § 12-6-118(5)(F) requires only a finding that the licensee indulged in a fraudulent business practice. In contrast, a violation of § 12-6-118(5)(n) requires the "[(dlefrauding of any retail buyer to such person's damage" (emphasis supplied). We find it significant that although both provisions address fraudulent conduct, only § 12-6-118(5)(n) expressly includes damage as an element of the offense. Hence, we conclude that the General Assembly imposed a damage requirement only in the case of retail buyers.

As to the remaining elements of fraud, the Board found in effect that respondent knowingly misrepresented the couple's additional income to obtain financing from the bank, and that he solicited four buddy passes from the couple as consideration for his efforts. In this regard, the wife testified that she specifically told respondent that the couple had no additional income. Moreover, a bank officer testified that the additional $1,000 was the reason financing was approved. Finally, respondent also admitted that he asked the wife for buddy passes.

To the extent that the wife and respondent presented conflicting accounts of their conversations, the Board had the task of weighing the evidence, judging the credibility of the witnesses, and resolving any conflicts. See Board of Assessment Appeals v. Colorado Arlberg Club, 762 P.2d 146 (Colo.1988). Because there is substantial evidence and inferences from that evidence to support the Board's ruling, it may not be disturbed on appeal.

B.

Respondent contends that no substantial evidence supports the Board's conclusion that he "defraud[ed) ... any retail buyer to such person's damage" in violation of § 12-6-118(5)(n). 'We agree.

The Board's ruling appears to be based upon the finding that respondent solicited buddy passes from the couple in exchange for securing financing. However, there is no evidence and no finding that respondent either misrepresented or failed to disclose any material facts to the couple regarding that financing., And, the fraud practiced upon the bank cannot be said to extend to the couple. Hence, the Board erred in ruling that the charge of "defrauding of any retail buyer" had been proven.

Because we conclude that respondent did not defraud the couple, it is unnecessary to address respondent's contention relative to whether the couple was damaged for purposes of the statute.

C.

Finally, the Board concluded that respondent's violation of §§ 12-6-118(5)(f) and 12-6-118(5){n) demonstrated an for licensing pursuant to § 12-6-118(6)(a). In light of our affirmance of only part of the Board's ruling on the fraud charges, the case must be remanded to it for reconsideration of this issue.

We have considered and are unpersuaded by respondent's other contentions for reversal of the judgment.

That part of the order finding respondent guilty of a fraudulent business practice is affirmed. That part of the order finding him guilty of fraud upon a buyer is reversed. The cause is remanded for reconsideration of the Board's finding that respondent violated § 12-6-118(6)(a) and for reconsideration of the sanctions imposed.

Judge MARQUEZ and Judge CRISWELL coneur.


author: Judge DAVIDSON.

text:
    Robert LEICHLITER, d/b/a Top Hat Lounge, Plaintiff-Appellee, v. STATE LIQUOR LICENSING AUTHORITY, DEPARTMENT OF REVENUE, STATE OF COLORADO, Defendant-Appellant.
    No. 99CA0119.
    Colorado Court of Appeals, Div. I.
    Jan. 20, 2000.
    Rehearing Denied April 6, 2000.
    Certiorari Denied Oct. 10, 2000.

      Patrick H. Renworth, Fort Collins, Colorado, for Plaintiff-Appellee.
    Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Robert H. Dodd, Jr., Assistant Attorney General, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge DAVIDSON.

This is an appeal from the judgment entered in a C.R.C.P. 106(a)(4) proceeding reversing the action of the Colorado Department of Revenue Liquor Licensing Authority (Liquor Authority) in suspending the liquor license of plaintiff, Robert Leichliter, d/b/a Top Hat Lounge, for permitting gambling on its premises. The primary issue is whether the National Collegiate Athletic Association (NCAA) basketball pool held on the premises was incidental to a bona fide social relationship. We agree with the trial court that it was and therefore affirm.

The relevant facts as set forth in the trial court's order are not in dispute. On March 25, 1998, two investigators from the Liquor Authority went to the Lounge on an unrelated complaint. While there, the investigators noticed a grid for an NCAA basketball pool on a shelf on the back bar and, at their request, were allowed to participate in the pool. Based upon this, the Liquor Authority issued an order to show cause to plaintiff alleging a violation of the Colorado Liquor Code relating to the prohibition of gambling at an establishment licensed to serve aleoholic beverages.

Under the Colorado Liquor Code, § 12-47-901(5), C.R.S.1999, with exceptions not relevant here, a licensed retailer may not authorize or permit gambling on its premises. "Gambling," as used in this statute has the same meaning as "gambling" in the criminal code, see Brownlee v. State, 686 P.2d 1372 (Colo.App.1984), and includes, inter alia, risking money or other things of value for gain contingent, in whole or part, upon the happening of a sporting event over which the person taking a risk has no control. See § 18-10-102(2), C.R.S.1999. However, any game, wager, or transaction which is incidental to a bona fide social relationship, is participated in only by natural persons, and in which no person is participating, directly or indirectly, in professional gambling, is excluded from the definition of gambling. See § 18-10-102(2)(d), C.R.S.1999.

After a hearing on the alleged violation, the hearing officer determined that the basketball pool was not incidental to a bona fide social relationship and, therefore, constituted illegal gambling in violation of § 1247-901(5), C.R.S.1999, and regulation 47-922 A 1., 1 Code Colo. Reg. 208-2 (prohibiting licensee from authorizing or permitting gambling on the premises). Plaintiffs liquor license was suspended for ten days, but six days of the suspension were deferred for one year pending proof of any future violation.

Plaintiff then instituted this C.R.C.P. 106(a)(4) action for review of the Liquor Authority's decision. The trial court reversed after determining that the hearing officer's finding that the basketball pool was not a game, wager, or transaction which was incidental to a bona fide social relationship was clearly erroneous, unsupported by substantial evidence, and contrary to law. On appeal, the Liquor Authority argues that this was error. We agree with the trial court.

In order for a reviewing court to set aside a decision by an administrative agency, the decision must be clearly erroneous, without evidentiary support in the record, or contrary to law. Brownlee v. State, supra. Under C.R.C.P. 106(a)(4), the appropriate consideration for an appellate court is whether there is sufficient evidentiary support for the decision rendered by the administrative tribunal. The appellate court is not bound by any determination made by the trial court, but reviews the issues presented to that court de novo. See City of Colorado Springs v. Givan, 897 P.2d 758 (Colo.1995).

Here, the hearing officer based his determination that the activity did not constitute social gambling on his finding that there was no bona fide social relationship among the participants in the transaction because, although "the establishment was characterized as a friendly neighborhood bar, it is apparent that anyone could walk in and participate in the gambling activity." Indeed, argues the Liquor Authority, there could be no bona fide social relationship among the participants here because this was an "open" pool in which the individuals who participated did not necessarily know one another. We disagree.

The phrase, "incident to a bona fide social relationship" is not defined in the statute or Liquor Code regulations. However, it has been addressed in prior decisions of the supreme court.

In People v. Wheatridge Poker Club, 194 Colo. 15, 569 P.2d 324 (1977), the court held that poker playing for money in a social club that derived its profits solely from yearly membership dues, a set "per chair" fee, and in which members were brought together through advertisements and promotions for the sole purpose of gambling was not incidental to a bona fide social relationship. In Houston v. Younghans, 196 Colo. 58, 580 P.2d 801 (1978), however, the court determined that poker playing for money among friends at the home of one of the players was incidental to a bona fide social relationship. More recently, in Charnes v. Central City Opera House Ass'n, 773 P.2d 546 (Colo.1989), the court held that a fundraising event which featured gambling was incidental to a bona fide social relationship based on the fact that the event was limited to participants who, although not necessarily friends, were brought together for the common purpose of raising money and not solely for the purpose of gambling.

Although each of these decisions nee-essarily is fact-specific, from them we can conclude nevertheless that the phrase, "incidental to a bona fide social relationship," refers to a game or wager which is made available to participants who have some legitimate common relationship to one another other than to engage in gambling. For example, a typical office sports pool, although all participants usually are not friends, would likely fall into this category by virtue of the shared business purposes of the office employees.

Hence, the critical inquiry is whether the participants here came together for any shared purpose other than gambling. See Charnes v. Central City Opera House Ass'n, supra (raising money for the Opera House Association); Houston v. Younghans, supra (existing social friendship); People v. Wheatridge Poker Club, supra (no shared purpose except gambling).

Were it not for the participation of the two Liquor Authority investigators, the answer to this inquiry would not be difficult. Indeed, as set forth in the trial court's order, it was undisputed that this particular bar was a neighborhood gathering place with a regular and devoted clientele where "just all the different walks of life came in to have a drink and have conversation with friends." The patrons of the Lounge did not go there to gamble and would continue to patronize the establishment regardless of the availability of a basketball pool. There,was no advertising of any sort outside the Lounge of the availability of a sports pool; patrons were not even told about the pool or encouraged to participate in it. The pool was a once-a-year event and the cost was $2 a square. With such small cost of participation and maximum winnings of $200, it was provided simply as entertainment for persons who otherwise came into the Lounge for a drink and camaraderie. The pool grid itself contained mostly first names, initials, or nicknames, and, except for the two investigators, plaintiff knew every person who had participated in the pool. In fact, in his testimony before the Liquor Authority, plaintiff gave lengthy and detailed facts about the background, family history, and relationships of numerous patrons whose names were on the grid.

Based on this, we would agree with the trial court that the determination that, under the cireumstances here, the sports pool was not incident to a bona fide social relationship, would be clearly erroneous.

The question then becomes whether the participation of the two investigators, who by appearances were simply patronizing the Lounge, and, apparently in a gesture of western hospitality, were permitted to participate in the pool, render illegal that which otherwise was incidental to a bona fide social relationship among the other participants? The Liquor Authority maintains that it does. We do not agree.

Regardless whether occasional strangers were allowed to participate in the pool, the undisputed facts show that this particular bar provided a social gathering place for a close-knit portion of the local community. We cannot agree that this limited participation by the Liquor Authority investigators, whose purpose at the Lounge was unrelated to the existence of a sports pool-they were there to investigate the possibility of the Lounge serving alcohol to intoxicated persons-could of itself change the fact that this once-a-year, $200 pool was available as incidental amusement to the regular patrons whose legitimate common relationship was to come to the Lounge "for a drink and conversation with friends."

Similarly, we also disagree with the Liquor Authority that the Lounge itself participated in the pool, in contravention of § 18-10-102(2)(d) (precluding participation by other than natural persons). The hearing officer found that any profit to the Lounge was "incidental" to the existence of the basketball pool. Moreover, even though the grid was drawn on paper which contained the Lounge logo, there was no evidence that the Lounge did anything more than safekeep the participants' money and have the grid available to bar patrons who wanted to participate in it. Cf Charnes v. Central City Opera House Ass'n, swpra (Association's conduct in running the game constituted a "significant level of participation" by a non-natural person, thereby taking case out of permissible social gambling exception). The grid in the pool was filled in only by individuals, and there was no soliciting or advertising outside the Lounge to encourage people to participate.

Accordingly, the judgment of the trial court is affirmed.

Judge METZGER and Judge VOGT concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appeliee, v. Dennis R. PALMER, Defendant-Appellant.
    No. 98CA1216.
    Colorado Court of Appeals, Div. IL
    Feb. 3, 2000.
    Rehearing Denied March 830, 2000.
    Certiorari Granted Sept. 18, 2000.

      Ken Salazar, Attorney General, Melissa D. Allen, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David F. Vela, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge DAVIDSON.

Defendant, Dennis R. Palmer, appeals from the judgment of conviction entered upon a jury verdict finding him guilty of possession of marijuana with intent to distribute. We remand for further proceedings relevant to a determination of defendant's competency.

Police officers learned from a confidential informant that a substantial quantity of marijuana could be found in a box in the back of a white pickup truck. The informant told the officers the address where the truck would be located and described other vehicles which would be present. However, the informant did not name any of the people involved.

The officers went to the location and observed vehicles matching the descriptions provided by the informant. When defendant drove the white pickup truck from the scene, the police officers stopped him.

One of the officers asked defendant for permission to search the truck for marijuana. Defendant told the officer there was no marijuana in the truck and agreed to the search. The officer opened an unlocked wooden box in the open bed of the truck and discovered 89 pounds of marijuana.

Defendant was found to be indigent and was represented by court-appointed counsel. Prior to trial, defense counsel informed the court that, since the time charges were first filed, defendant had been seriously injured when a car he was working on came off of a lift and crushed his head. Defendant suffered multiple skull fractures and, as a result of these injuries, had no recollection of the events for which he was charged. Defense counsel asserted that defendant's memory loss rendered him incompetent because he was unable to assist in his own defense.

The trial court referred defendant for a competency evaluation through the Colorado Mental Health Institute. The evaluation was conducted by a forensic psychiatrist at the University of Colorado Health Sciences Center. The psychiatrist interviewed defendant and reviewed the medical records of his injuries. The psychiatrist accepted defendant's claim that he recalled nothing of the events surrounding his arrest. However, the psychiatrist concluded that, because defendant was able to understand the workings of the court, he would be able to assist his lawyer. The psychiatrist explained that: "It is my understanding that amnesia per se does not qualify as a reason in itself to call a person incompetent to proceed."

Defense counsel disagreed with the psychiatrist's conclusion that defendant was competent and asked the trial court to appoint an independent examiner to conduct a second examination at state expense before determining defendant's competency. Counsel explained that, because of his amnesia, defendant was unable to provide counsel with the information necessary to formulate a defense such as the names of possible witnesses or alternative suspects.

The trial court refused to appoint an independent examiner and made a finding that defendant was competent to proceed.

Evidence at trial established that the truck defendant had been driving belonged to his brother. Defendant had been borrowing the truck for about six months and using it in his landscaping business. During that time, defendant's brother had seen persons other than defendant driving the truck.

The confidential informant did not testify at trial, and the prosecution did not call any witness to testify that defendant was involved in marijuana distribution or that he was aware the marijuana was in the truck. The police officers testified that they recovered several fingerprints from the marijuana packaging which were not of good enough quality to make a comparison.

Defendant's memory did not improve during trial. When the court asked defendant whether he was going to testify, defendant replied that he was not, because "I can't remember anything to testify."

At sentencing, defendant was unable to allocute, again explaining: "I can't remember anything that happened. I surely can't deny it after going through a trial, and they found me guilty. Something must have been wrong, Your Honor, but I, as a person, I have no memory of it."

On appeal, defendant argues that the trial court improperly determined that he was competent to proceed and, similarly, erred by refusing his request for an independent psychiatric examiner. We agree with both contentions.

A.

A person is incompetent to proceed when he "is suffering from a mental disease or defect which renders him incapable of understanding the nature and course of the proceedings against him or of participating or assisting in his defense or cooperating with his defense counsel." Section 16-8-1028), C.R.S.1999.

An accused's competency must be assessed with specific reference to the nature of the proceeding with which he or she is confronted and the appropriate level of understanding necessary for meaningful cooperation with his attorney. Jones v. District Court, 617 P.2d 808 (Colo.1980).

Section 16-8-111(1), C.R.S8.1999, provides, in relevant part, as follows:

Whenever the question of a defendant's incompetency to proceed is raised, the court shall make a preliminary finding either that the defendant is competent to proceed or that he is not. If the court feels that the information available to it is inadequate for making such finding, it may order a competency examination or such other investigation as it deems advisable.

Section 16-8-106(1), C.R.98.1999, prescribes the procedures for a court-ordered psychiatric examination through the Colorado Mental Health Institute. As relevant here, the statute provides that, for good cause shown, the court may order further examinations as are advisable under the cireumstances. In addition, § 16-8-108(1), C.R.8.1999, provides that if the defendant wishes to be examined by a psychiatrist, psychologist, or other expert of his own choice, the court shall order that such examiner be given reasonable opportunity to conduct the examination.

B.

The issue of an amnesiac's competency is one of first impression in Colorado.

Cases from various jurisdictions across the country consistently hold that a criminal defendant's loss of memory as to the alleged incident is not per se lack of competence to stand trial. See generally J. Purver, Annotation, Ammesia as Affecting Capacity to Commit Crime or Stand Trial, 46 A.L.R.3d 544 (1972). A majority of courts to consider the issue have adopted the fact-specific multi-factor approach first set forth in Wilson v. United States, 391 F.2d 460 (D.C.Cir.1968).

Under the Wilson test, a trial court must conduct a pretrial competency hearing and must also make a post-trial determination as to whether the defendant was able to perform functions essential to the fairness and accuracy of the particular proceedings in which he or she was involved. The trial court should consider:

1. The extent to which the amnesia affects the defendant's ability to consult with his lawyer; .
2, The extent to which amnesia affects the defendant's ability to testify on his own behalf;
3. The extent to which the evidence could be extrinsically reconstructed in view of the defendant's amnesia including evidence relating to the crime itself;
4. The extent to which the government assisted the defendant and his counsel in that reconstruction;
5. The strength of the prosecution's case.... In this connection, if there is any substantial possibility shown by the evidence that the accused could, but for his amnesia, establish an alibi or other defense, then it should be presumed that he would have been able to do so; and
6. Any other facts and circumstances which would indicate whether or not the defendant had a fair trial.

We are persuaded that this is the best analytical framework for assessing the competency of a defendant who has no ability to recall the underlying events and whose amnesia is not self-induced by alcohol or other substance abuse.

C.

In some cases, it is possible for an appellate court to say with confidence that evidence of the amnesiac defendant's guilt was so overwhelming that a remand to the trial court for findings applying the Wilson criteria is unnecessary. Seq, eg., United States v. Borum, 464 F.2d 896 (10th Cir.1972) (evidence of amnesiac defendant's guilt was overwhelming, and it did not appear that he was deprived of any defense which would have been available to him had he been able to relate events of homicide to counsel). However, this is not such a case.

The evidence here was largely cireumstan-tial. Defendant consented to the search in a manner consistent with his alleged innocence and made no incriminatory statements to the police. The marijuana was found in an unlocked container in an unenclosed area of the truck, and there was some evidence indicating that persons other than defendant had used the truck.

Therefore, it is necessary in this case to conduct an inquiry into the effects of defendant's amnesia utilizing the Wilson factors. Because that inquiry is fact-specific and may require development of an additional eviden-tiary record, we conclude it is necessary to remand the matter to the trial court. Among other things, the trial court is in the best position to determine whether, because this case was based on information obtained from a confidential informant whose identity was never disclosed, defendant's lack of memory impaired counsel's ability to investigate witnesses and present a defense. Likewise, the trial court can best determine whether defendant's decision not to testify was attributable to his failed memory or his prior felony conviction for distributing cocaine.

If, on remand, the trial court finds that defendant was competent, defendant shall have the right to appeal that ruling and can also seek review of the trial court's pre-trial ruling denying his motion to suppress evidence, an issue which we do not presently address. See Jones v. District Court, supra (pre-trial motions may bear as significantly on the ultimate outcome of the case as the trial itself; due process requires that the defendant be mentally capable of cooperating in his or her own defense at that stage of the proceedings).

If the trial court finds that defendant was incompetent, then it shall vacate the judgment of conviction. If the trial court finds that defendant remains incompetent and that there are no remedial measures which will enable the court to conduct a trial satisfying due process, it shall order defendant committed or refer him for out-patient treatment as Section 16-8-112, a non-violent offender. C©.R.8.1999.

D.

Finally, we address defendant's claim that the trial court erred by refusing his request for an examination by a psychiatric expert of his own choosing at state expense pursuant to § 16-8-108. We conclude the trial court should have granted defendant's request.

Citing Massey v. District Court, 180 Colo. 359, 506 P.2d 128 (1978), the People assert that an indigent eriminal defendant who has been examined pursuant to § 16-8-106 is not entitled to a second independent examination pursuant to § 16-8-108 absent a showing of good cause.

Here, however, based on the premise that defendant generally understood the workings of a court, the examiner concluded that defendant was competent to proceed. But, as discussed, this is not the proper analytical framework to evaluate the competency of a defendant who has amnesia. Therefore, assuming without deciding that a showing of good cause was required, we agree with defendant that, under these cireumstances, he was entitled to an independent examination at state expense pursuant to § 16-8-108. Thus, we further direct the trial court on remand to grant defendant's request for an examination pursuant to § 16-8-108 (subject to a determination whether defendant remains indigent).

The cause is remanded to the trial court with directions to determine defendant's competency in accordance with the views expressed in this opinion.

Chief Judge HUME and Judge PLANK concur.


author: Judge NEY. Judge METZGER,

text:
    Lonnie BOYD and Luann Boyd, Plaintiffs-Appellees, v. Melinda L. GARVERT, individually, Defendant-Appellant.
    No. 98CA1178.
    Colorado Court of Appeals, Div. I.
    Feb. 3, 2000.
    Rehearing Denied March 9, 2000.
    Certiorari Denied Sept. 18, 2000.
    Edward Dale Parrish, P.C., Dale Parrish, Maria T. Schaefer, Denver, Colorado, for Plaintiffs-Appellees.
    Cooper & Clough, P.C., Paul D. Cooper, Irwin & Boesen, P.C., Chris L. Ingold, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge NEY.

In this attorney malpractice action, defendant, Melinda Garvert (attorney), appeals the judgment entered on a jury verdict in favor of plaintiffs, Lonnie and Luann Boyd. We affirm.

In September 1998, the plaintiffs, residents of Colorado, engaged attorney to represent them in a relinquishment of their baby, who was born and relinquished in Colorado. The attorney then represented the plaintiff mother in the adoption of the baby by a Kansas couple, in Kansas. On April 1, 1994, the Kansas court entered the final decree of adoption.

Plaintiffs initiated this action in Colorado against attorney alleging, among other things, professional negligence and breach of fiduciary duty based on attorney's failure to advise plaintiffs of the availability of relinquishment counseling.

Plaintiffs did not contest the Kansas adoption. Their claim of damages was not based on a desire to nullify the adoption but, rather, on the basis that attorney failed to advise them of the availability of counseling to mitigate the emotional effects of their decisions related to the relinquishment.

Their claim of breach of fiduciary duty was based on attorney's alleged self-interest and conflict of interest in representing the interests of the adoptive parents, by assuring that the adoption would be completed.

The jury returned a verdict in favor of the plaintiffs on both claims of professional negligence and breach of fiduciary duty. This appeal followed.

I.

Attorney asserts that the judgment must be set aside because the trial court did not control the pretrial and trial conduct of the plaintiffs, We disagree.

Attorney alleges that the plaintiffs and their attorney repeatedly violated rules of pretrial practice. She cites their failure to provide and supplement discovery, their untimely designation of expert witnesses, their non-appearance at hearings, and their lack of cooperation throughout the discovery process.

The record reveals that the trial court entered orders in response to attorney's motions and requests for relief regarding these allegations. The court's refusal to enter sanctions for discovery violations does not necessarily constitute reversible error. See Williams v. Continental Airlines, Inc., 943 P.2d 10 (Colo.App.1996) (sanctions for failure to comply with disclosure rules rest in the discretion of trial court and should not be disturbed absent abuse of discretion).

Attorney also contends that plaintiffs' conduct during the trial resulted in prejudice to her, requiring a reversal of the judgment. She alleges, among other things, that plaintiffs and their lawyer threatened her, audibly and visibly reacted in court, and negatively characterized her by using derogatory terms such as a "baby broker."

Again, our review of the record satisfies us that the trial court addressed each instance raised by attorney with either an admonishment to plaintiffs, a curative instruction to the jury, or a direction to counsel to rephrase the question so as to avoid prejudice. We do not address those claims of misconduct raised for the first time on appeal where no objection was raised during trial. See Cruz v. Union Pacific Railroad Co., 707 P.2d 360 (Colo.App.1985) (failure to object to improper remarks in closing argument waived issue for appeal purposes).

We conclude that the trial court did not abuse its discretion in addressing attorney's claims of misconduct and that none of the instances, singly or in the context of the entire proceedings, rise to the level of reversible error.

IL

Attorney asserts that the trial court erred by denying her motion for directed verdict. Specifically, she argues that the trial court erred in allowing both the negligence claim and the breach of fiduciary duty claim to go to the jury because the claims were duplica-tive. Attorney also maintains that the court failed to define the duty she was alleged to have breached on the negligence claim, despite repeated requests to do so, and then improperly concluded that a duty existed. Finally, she argues that there was insufficient evidence presented by plaintiffs to establish the element of causation. We disagree.

In reviewing the denial of a motion for directed verdict, we must view the evidence in a light most favorable to the non-moving party. Colwell v. Mentzer Investments, Inc., 973 P.2d 631 (Colo.App.1998).

A.

Prior to trial, throughout the course of the trial, and again in her directed verdict motion, attorney asked the court to dismiss the plaintiffs' breach of fiduciary duty claim because it was duplicative of their negligence claim. She again argues on appeal that submission of both claims to the jury constituted reversible error.

Attorney relies upon Spoor v. Serota, 852 P.2d 1292 (Colo.App.1992), where a patient sued two physicians for failing to exercise due care in the treatment of her neck ulceration. A division of this court found no error when the trial court denied the plaintiff's request to add a breach of fiduciary duty claim to her negligence claim.

The Spoor court recognized that although a doctor may owe a patient fiduciary duties, in that case the sole issue was whether the physicians breached the duty to exercise reasonable care and skill. Since the issue was presented to the jury under a theory of negligence, the court found that a claim for breach of fiduciary duty would have been duplicative. Spoor v. Serota, supra. See also Awai v. Kotin, 872 P.2d 1882 (Colo.App.1993).

Here, the duties and the facts supporting the two claims were not the same. In the professional negligence claim, the duty owed by attorney to her clients was that of a reasonably careful attorney measured against what an attorney would have done under the same or similar circumstances, using the knowledge and skill of attorneys practicing at the same time, in the same community. See CJI-Civ.3d 15:28 (1998 Supp.).

The breach alleged in the professional negligence claim was attorney's failure to advise plaintiffs of the availability of relinquishment counseling. In contrast, the alleged breach of fiduciary duty was based on an assertion of attorney's self-interest and conflict of interest.

The claims here were not duplicative because the breached duties were not based on the same facts. Thus, the jury could have found attorney liable for both negligence and breach of fiduciary duty, as they did, based on the breach of different and separate duties. See Martines v. Badis, 842 P.2d 245 (Colo.1992); Moguls of Aspen, Inc. v. Faegre & Benson, 956 P.2d 618, 621 (Colo.App.1997) (recognizing that cireumstances may exist in which a lawyer is lable for both malpractice and other fiduciary violations, if "a claimed fiduciary violation is separate and independent from any alleged negligence").

Accordingly, we conclude that the trial court did not err in submitting the breach of fiduciary duty claim to the jury, because the fiduciary duty claim permitted the jury to consider whether the attorney breached a different duty, based on different facts, than she breached under the negligence claim.

B.

Attorney also argued, in her motion for a directed verdict, that the court should have concluded as a matter of law that no specific duty existed upon which to find attorney negligent. -

She argues that, at the time of the relinquishment, neither Kansas nor Colorado statutes imposed a duty on lawyers to advise their clients regarding the availability of re-Tinquishment counseling.

Whether or not attorney breached a Kansas duty is of no consequence, as we conclude that she was subject to a professional duty in Colorado. She is a Colorado lawyer, who represented clients residing in Colorado, in the relinquishment, undertaken in Colorado, of their child born in Colorado. Even though a portion of her representation, specifically the adoption, took place in Kansas, we conclude that she owed her clients the duty

imposed upon her by Colorado professional standards.

At the time of the events here, the Colorado statute pertaining to relinquishment required counseling for parents desiring to relinquish their children. Section 19-5-130(1)(a), C.R.$.1993 Cum.Supp. The statute was unclear as to its applicability to out-of-state adoptions. The statute was subsequently amended to specifically require such counseling for children adopted within, as well as outside the state of Colorado. Section 19-5-108(12), C.R.S8.1997.

However, whether relinquishment counseling was or was not required by statute, either in Colorado or in Kansas, is not dispositive of the issue presented here. Because this was a professional negligence action, the duty imposed on the attorney is that she "must employ that degree of knowledge, skill, and judgment ordinarily possessed by members of the legal profession at the time the task is undertaken." McCafferty v. Musat, 817 P.2d 1039, 1044 (Colo.App.1990). The trial court so instructed the jury here.

The standards of acceptable professional conduct, the deviation from which would constitute legal malpractice, are not necessarily limited to conduct as defined by statute. Rather, these standards are generally proven by expert testimony. See Crystal Homes, Inc. v. Radetsky, 895 P.2d 1179 (Colo.App.1995).

Here, experts testified on behalf of the plaintiff regarding standards of professional conduct in Colorado. Our review of the record satisfies us that there was ample evidence, presented through the expert testimony, to establish that there existed a standard in the community requiring a prudent attorney to discuss relinquishment counseling with his or her clients in both in-state and out-of-state adoptions. Thus, the trial court properly submitted to the jury the issue of whether defendant breached a duty of care to plaintiffs.

C.

Finally, attorney argues that the evidence was insufficient for the jury to find that causation was established because plaintiffs neither challenged the adoption nor proved that, had they done so, they would have been permitted to keep their child. In a related argument, she claims plaintiffs were es-topped to claim injury because they did not seek to regain custody of their child.

These arguments, however, overlook the fact that plaintiffs were not claiming damages based on the loss of their child, nor on their desire to nullify the adoption, but based on their distress at having to make the relinquishment decision without adequate counseling. Because there was at least some evidence in the record to support this basis for recovery, we cannot conclude that the verdict must be set aside on these grounds.

The judgment is affirmed.

Judge VOGT concurs.

Judge METZGER dissents.

Judge METZGER,

dissenting.

Because I would hold that no legal duty existed, I would reverse the judgment entered in plaintiffs favor. Therefore, I respectfully dissent.

In this case, no proceedings occurred in Colorado courts. The relinquishment and adoption of plaintiffs' child occurred in Kansas pursuant to the provisions of the Interstate Compact on the Placement of Children. Sections 24-60-1801, et seq., C.R.8.1999 and K.S.A. §§ 38-1201, et seq. (1999).

According to the Compact, Kansas was the receiving state. As such, Kansas law, not Colorado law, controlled. Section 24-60-1802(III)(a), C.R.S8.1999.

Kansas law did not require relinquishment counseling at the time of the events here. Instead, it only required that the birth parents give free and voluntary consent to the adoption before either a judge or a notary public. K.S.A. § 59-2114 (1999).

Moreover, plaintiffs did not offer any evidence that the attorney standard of practice in Kansas would dictate relinquishment counseling discussions. Thus, even if we assume that expert testimony can somehow create a duty (a proposition which I do not accept, see Hines v. Denver & Rio Grande Western R.R., 829 P.2d 419 (Colo.App.1991)), the testimony of Colorado attorneys regarding Colorado practices was wholly irrelevant to the issues here.

The Kansas district court approved the direct placement of the child with her adoptive parents in Kansas; found that plaintiffs had "freely and voluntarily consented" to the. adoption, that this consent had been properly completed; and entered a final decree of adoption. These findings and decree have never been appealed.

Because under the applicable Kansas law the attorney had no duty to recommend that plaintiffs receive relinquishment counseling, the judgment here, entered against her based on her failure to recommend such counseling, cannot stand.

One of plaintiffs' experts testified that, while no Colorado statutory or decisional an-thority existed, prudent Colorado lawyers would discuss relinquishment counseling with their clients. I disagree with the majority's determinations that this equivocal testimony, even if relevant, created a duty.

The trial court's refusal to dismiss plaintiffs' complaint for lack of duty violated the full faith and credit doctrine set out in U.S. Const. art. IV, § 1. Plaintiffs were aware of the Kansas proceedings, had the benefit of independent advice of counsel, and elected not to contest these proceedings or to appeal the Kansas district court's findings and orders. Those orders are entitled, at a minimum, to res judicata effect. Braselton v. Clearfield State Bank, 606 F.2d 285 (10th Cir.1979). Consequently, they should have been given full faith and credit. See Department of Social Services v. District Court, 742 P.2d 339 (Colo.1987). Plaintiffs' attempt to undercut both the effect of those orders and the integrity of the Interstate Compact by filing a Colorado lawsuit should not have been condoned. See In re Custody of K.R., 897 P.2d 896 (Colo.App.1995).

Consequently, because the attorney had no duty to plaintiffs, the judgment against her should be reversed.