text:
    Arthur ALBERS, Appellant, v. STATE of Alaska, Appellee.
    No. A-7446.
    Court of Appeals of Alaska.
    June 18, 2004.

      Chet Randall, Portland, Maine, for the Appellant.
    Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

A police officer saw Arthur Albers and a second man walk into an alley behind a bookstore in downtown Anchorage. When the officer followed them into the alley, he saw Albers’s companion crouching down and lighting a crack pipe. At this point, the officer called for backup and he initiated an investigative stop of Albers and his companion.

At the officer’s command, Albers put his hands into the air, but he kept his left hand clenched. He refused repeated commands to open his hand. Finally, at the command of the police, Albers put his hands behind him and opened his left hand; a small rock of crack cocaine fell out. This discovery led to Albers’s conviction for fourth-degree misconduct involving a controlled substance. The question in this appeal is whether the police were authorized to make Albers open his hand.

As we explained in our previous decision in this case — Albers v. State, 38 P.3d 540 (Alaska App.2001) — the State concedes that the police did not have probable cause to arrest Albers until they discovered the cocaine in his hand. Thus, the officers’ authority to open Albers’s hand must be assessed under the law governing investigative stops. In our previous decision, we held that the forcible opening of a suspect’s hand (or an order directing the suspect to open their hand) “is equivalent to a pat-down search[,] and [thus] it requires the same justification as a pat-down of the detainee’s clothing”.

[T]he test is whether the officer was aware of specific and articulable facts that would support a reasonable inference that the detainee was armed or possessed some other article that could pose a danger to the officer.

Albers, 38 P.3d at 542. Because the superior court did not apply this test when it initially evaluated the officers’ authority to search Albers’s hand, we directed the superior court to reconsider the legality of this search.

Although the testimony previously presented in the superior court had more or less clarified the particular facts of the officers’ encounter with Albers, Superior Court Judge Larry D. Card allowed the State (over Alb-ers’s objection) to present additional testimony concerning the hazards faced by the police when making felony drug arrests and investigative stops. After hearing this testimony, Judge Card again concluded that the search of Albers’s hand had been justified. We now review that decision.

Albers’s argument that Judge Card should not have taken additional testimony during the proceedings on remand

Before we reach the merits of Judge Card’s decision upholding the search of Alb-ers’s hand, we must first address a preliminary issue. Albers argues that Judge Card exceeded his authority, or at least abused his discretion, when he allowed the State to present testimony concerning the hazards faced by the police when they detain people in connection with the investigation of felony drug offenses. Albers notes that, in our prior decision in this case, we did not explicitly direct Judge Card to take additional testimony.

Although we did not expressly order the superior court to re-open the evidence, we did direct the superior court to consider a new aspect of the case. Albers cites no legal authority that would bar a trial court from re-opening the evidence during proceedings on remand if the trial court concludes that additional testimony is required to fully answer a new question posed by an appellate court. Indeed, this Court recently held that, at least in the absence of a contrary directive from the appellate court, a trial court has the implicit discretion to re-open the evidence during proceedings on remand. See Crawford v. State, 87 P.3d 824, 825 (Alaska App.2004).

Albers also argues that it was unfair to give the State an opportunity to supplement the record regarding the potential justification for the search of Albers’s hand. But, again, we note that we directed the superior court to consider a new aspect of the case. There was no manifest unfairness in allowing the parties to offer supplemental testimony on this new issue. Both parties — Albers as well as the State — had the opportunity to offer supplemental testimony. We conclude that Judge Card did not abuse his discretion when he decided to re-open the evidence.

The search of Albers’s hand

In our previous decision in this case, we stated that the legality of the search of Albers’s hand “turn[ed] on whether the officers had articulable reasons to apprehend some danger to their safety”. Our prior decisions in this area suggested that, in order to meet this test, the officers would need some articulable reason to believe that Albers’s hand contained a weapon. But recently, in State v. Wagar, 79 P.3d 644 (Alaska 2003), our supreme court rejected this formulation as too narrow. The supreme court concluded instead that an officer can justifiably remove and examine an object from a pocket (or hand) during a frisk for weapons if the officer reasonably believes that the object could be used as a weapon.

In Wagar, the police approached a vehicle whose occupants were suspected of possessing and using cocaine. Wagar was one of the occupants of the car. He put his hands into the pockets of his pants, even though the officers told him not to do that. Then Wa-gar turned his body sideways to the officer— an action which, according to the officer’s testimony, betokened an attempt to hide something or to gain a better posture for fighting. The officer responded by conducting a pat-down of Wagar’s clothing for weapons (leading to the discovery of a glass vial containing cocaine). The issue on appeal was whether the seizure of the vial during this pat-down search was justified.

When this Court reviewed Wagar’s case, we concluded that the seizure of the vial was not justified because (1) it did not appear to be a normal weapon and (2) the officer had no affirmative indication that Wagar possessed an atypical weapon. But the supreme court concluded that this test was too narrow. The true question, the supreme court declared, was whether the officer conducting the pat-down reasonably believed that the object in Wagar’s pocket “[might] be used as a weapon”.

The overarching rationale [for pat-down searches] is officer safety. As the [United States Supreme Court observed in Terry v. Ohio]: “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” The distinction between objects that are not shaped like typical weapons but may nevertheless be weapons and similar objects that are merely potentially usable as weapons seems extremely tenuous. If there is a difference^] it lies in the intent of the bearer of the object. But this intent is not necessarily apparent to the officer conducting the frisk. In our view, the distinction inherent in the court of appeals’s decision is too vague to serve as a dividing line between permissible and impermissible searches that are conducted to ensure officer safety.

Wagar, 79 P.3d at 648.

According to the testimony presented by two police officers during the proceedings on remand in Albers’s case, it is common for drug dealers and drug users to carry weapons. Moreover, drug dealers and drug users commonly carry implements that are small enough to fit in one’s hand and that might be used as weapons: such things as fingernail files, glass crack pipes, razor blades, and small pocket knives.

It is true, as Albers points out in his brief, that the officers conceded that many people walking the streets of Anchorage (or anywhere else) have these same types of objects in their pockets or purses. But the legality of the officers’ actions in Albers’s case must be evaluated in the context of an investigative stop for a felony drug offense.

In Terry v. Ohio, the United States Supreme Court declared that when a court evaluates whether a pat-down search for weapons was justified, the court may take into account the nature of the criminal activity that the officer reasonably suspects is occurring. 392 U.S. at 28, 88 S.Ct. at 1883. (In Terry, for instance, the suspected criminal activity was robbery.)

This Court, too, has acknowledged that when a court evaluates the legality of a pat-down search conducted during an investigative stop, the court can take into consideration the presumption that people engaged in felony conduct are more likely to be armed and/or to resort to violence when confronted by the police. See Gutierres v. State, 793 P.2d 1078, 1081 (Alaska App.1990). Indeed, in Wilburn v. State, 816 P.2d 907 (Alaska App.1991), this Court suggested that a pat-down search for weapons might be justified whenever a police officer conducts an investigative stop of a person suspected of committing a felony drug offense in the officer’s presence.

As Albers correctly points out, many aspects of his encounter with the police suggested that he was not an immediate danger, and that his refusal to open his hand indicated no more than his desire to hide drugs from the officers. Albers’s hands were in plain sight throughout the encounter. There was no metal or other material showing between Albers’s fingers, nor was there any obvious bulge in his fingers or protrusion from his hand. Albers made no aggressive gestures and uttered no aggressive words. Indeed, he was compliant with all of the officers’ commands except for his refusal to open his hand.

Nevertheless, the situation was potentially a volatile one. The officers had interrupted Albers and his companion while Albers’s companion was apparently engaged in a felony drug offense. The police did not know what was in Albers’s hand, and he refused to open his hand. Although Albers’s hand could have contained drugs, it also might have contained an object that could be used as a weapon. And, as our supreme court noted in Wagar, if Albers was carrying such an object in his hand, the officers’ safety would hinge “[on] the intent of the bearer of the object”.

We note that other courts have upheld searches of a suspect’s hand in similar circumstances.

For these reasons, we uphold the superior court’s conclusion that the search of Albers’s hand was justified under the facts of this case.

Conclusion

The judgement of the superior court is AFFIRMED.

      . AS 11.71.040(a)(3)(A).

      . 38 P.3d at 541.

        . Id.

      . Albers, 38 P.3d at 542.

      . 79 P.3d at 646.

      . Id.

      . Id.

      . Id. at 646-47.

      . Wagar v. State, Alaska App. Memorandum Opinion No. 4458 (September 26, 2001), pp. 2-3; 2001 WL 1143307 at *1.

      . Wagar, 79 P.3d at 648.

      . 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . 816 P.2d at 911-12.

      . 79 P.3d at 648.

      . See State v. Bridges, 610 So.2d 827, 829 (La.App.1992) (upholding the search of a suspected drug dealer who would not open his clenched hand); Hendren v. Commonwealth (unpublished), 2000 WL 1052161, *3-*4 (Va.App.2000) (upholding the search of a motorist's hand after the motorist initially refused to stop his car at a traffic checkpoint, then kept his right hand closed and tried to hide it in his pants pocket); People v. Shackelford, 37 Colo.App. 317, 546 P.2d 964, 967 (1976) (upholding the search of a suspect's hand during an investigative stop after the suspect kept his hand closed and refused to open it). See also Worthey v. State, 805 S.W.2d 435, 437, 437-39 (Tex.Crim.App.1991) (upholding the search of a suspect's purse when, during an investigative stop, the suspect disobeyed the officer's order not to move or hide her hands).


source: Caselaw Access Project

author: MANNHEIMER, Judge.

license: Public Domain

text:
    Patrick G. HERRIN, Appellant, v. STATE of Alaska, Appellee.
    No. A-8553.
    Court of Appeals of Alaska.
    June 18, 2004.
    Patrick G. Herrin, in propria persona, Spokane, Washington, for the Appellant.
    John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

In December 1997, Patrick G. Herrin was convicted of first-degree stalking and third-degree assault for acts of domestic violence against his then-wife, J.H. Herrin received a composite sentence of 10 years’ imprisonment with 5 years suspended, and he was placed on probation for 8 years following his sentence of imprisonment. One of Herrin’s conditions of probation prohibited him from having any contact, direct or indirect, with his wife, J.H.

In July 2000, while Herrin was serving his sentences for these crimes, and shortly before he was scheduled to be released on parole, Herrin wrote numerous threatening letters to J.H. Based on this conduct, the State indicted Herrin for first-degree stalking and also petitioned the superior court to revoke Herrin’s probation from his 1997 convictions.

Following a jury trial, Herrin was convicted of the new count of first-degree stalking in March 2001. Based on this new offense, the superior court revoked Herrin’s probation from his two 1997 convictions and imposed an additional year to serve in each case.

In both of the written judgements revoking Herrin’s probation from the 1997 convictions, the superior court wrote:

[Herrin’s] [probation is extended during the period of time [that] the [petition for revocation of probation] was pending[, that is, from] 7/11/00 [to] 2/4/02.

In this appeal, Herrin contends that it was unlawful for the superior court to include this provision in the two judgements — i.e., it was illegal for the superior court to toll the running of Herrin’s probation during the time that the petitions to revoke his probation were pending — because the judge failed to explicitly order this tolling when the judge orally pronounced Herrin’s sentences.

Under Alaska law, when the terms of a defendant’s sentence contained in the written judgement differ from the terms of the sentence announced orally at the defendant’s sentencing hearing, the oral sentence controls. But this rule applies only to components of the sentence that are within the sentencing judge’s discretion.

For instance, a sentencing judge has no discretion regarding whether to limit or expand a defendant’s eligibility for parole by declaring the defendant’s sentence to be “presumptive” or “non-presumptive”. That categorization — and the corresponding scope of the defendant’s parole eligibility — are set by statute. Similarly, a sentencing judge has no discretion regarding whether to grant or deny a defendant credit for time spent in jail before sentencing. That, too, is determined by statute.

Likewise, a sentencing judge has no discretion on the question of whether a defendant’s term of probation should be tolled during the pendency of a petition to revoke probation. In Gage v. State, 702 P.2d 646 (Alaska App.1985), this Court held that if a defendant is ultimately found to have violated the conditions of their probation, the running of the defendant’s term of probation must be tolled during the time that the petition was pending. (That is, the total length of the defendant’s term of probation must be extended by the amount of time that the petition to revoke was pending.) As Gage explains,

[When] a petition to revoke probation formally charging a probationer with committing a violation is filed and the court subsequently determines that the alleged violation was in fact committed, there can be no legitimate justification for allowing the probationer to claim credit for time served on probation during the period between the filing of the petition and its ultimate adjudication.

Gage, 702 P.2d at 647-48.

Accordingly, it makes no difference whether the superior court expressly announced at the sentencing hearing that Herrin’s term of probation was tolled during the pendency of the petitions to revoke his probation. This result is required by law.

(Under AS 12.55.090(b), the superior court had the authority to reduce Herrin’s total term of probation so as to mitigate or negate the effect of this required tolling. But to do this, the superior court would have had to expressly amend Herrin’s sentence.)

The judgements of the superior court are AFFIRMED.

      . See Herrin v. State, Alaska App. Memorandum Opinion No. 4773 (October 15, 2003), pages 1-2, 2003 WL 22351623 at *1.

      . Id. at page 3, 2003 WL 22351623 at*l.

      . See Graybill v. State, 822 P.2d 1386, 1388 (Alaska App.1991).

      . See Reyes v. State, 978 P.2d 635, 642-43 (Alaska App.1999).

      . See Smith v. State, 892 P.2d 202, 203 (Alaska App.1995).


author: Judge WEBB.

text:
    Anthony VELASQUEZ, Complainant-Appellant, v. DEPARTMENT OF HIGHER EDUCATION, Trustees of the State Colleges in Colorado, and Adams State College, Respondents-Appellees, and State Personnel Board, Appellee.
    No. 02CA1740.
    Colorado Court of Appeals, Div. II.
    Sept. 11, 2003.
    Certiorari Denied June 21, 2004.

      Mark A. Schwane, Denver, Colorado, for Complainant-Appellant.
    Ken Salazar, Attorney General, Danielle Moore, Assistant Attorney General, Denver, Colorado, for Respondents-Appellees.
    No Appearance for Appellee.

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

   Opinion by

Judge WEBB.

Complainant, Anthony Velasquez (employee), appeals an order of the State Personnel Board upholding his layoff. We affirm.

Employee was a certified employee of Adams State College holding a classified position under the state personnel system. He did renovation work for the Housing Services Department, which received no regular state funding. When special funding for his position from a bond issue ran out and interim funds were exhausted, the college notified him that his job would be abolished and he would be discharged.

Employee sought review of his discharge. Following a hearing, the administrative law judge (ALJ) found that the discharge was not arbitrary, capricious, or contrary to rule or law.

Employee then appealed the ALJ’s decision to the Board on the grounds that, as relevant here, the ALJ erred in placing the burden of proof on him, in finding the college lacked sufficient funds to continue his position, and in finding the college used an appropriate layoff matrix. The Board adopted the ALJ’s decision without explanation.

I.

Employee first contends that because all discharges, whether disciplinary or administrative, of certified state personnel are deprivations of property interests, placing the burden of proof on an employee in a job abolishment case deprives the employee of a property interest guaranteed by article XII, section 13(8), of the Colorado Constitution without due process. We disagree.

Where the Board adopts an ALJ’s determinations, we affirm this ultimate conclusion if it is supported by the evidentiary record and has a reasonable basis in the law. Renteria v. Dep’t of Labor & Employment, 907 P.2d 619 (Colo.App.1994), aff'd, Renteria v. Dep’t of Pers., 811 P.2d 797 (Colo.1991)(Renteria).

“Except as otherwise provided by statute, the proponent of an order shall have the burden of proof’ in an administrative hearing. Section 24-4-105(7), C.R.S.2002. The “proponent of an order” is the person who brings forward a matter for litigation or action. Dep’t of Insts. v. Kinchen, 886 P.2d 700 (Colo.1994)(Kinchen).

However, “[t]he procedural requirement that a certified state employee petition for a hearing before the Personnel Board to contest a disciplinary action imposed by the appointing authority does not conclusively determine which party ... is the proponent of an order.” Kinchen, supra, 886 P.2d at 706. Rather, under Kinchen determining the “proponent of an order” is context-specific, based on the particular constitutional, statutory, and regulatory provisions at issue.

In Brennan v. Department of Local Affairs, 786 P.2d 426 (Colo.App.1989), a division of this court rejected the argument that an employee who had been laid off should not bear the burden of proving that funds were available. However, because of the later decisions in Renteria and Kinchen, we examine the significant distinctions between disciplinary discharge and discharge for job abolishment. On that basis, we conclude that here employee is the proponent who should bear the burden of proof.

A certified state employee who had been “dismissed, suspended, or otherwise disciplined” can appeal to the State Personnel Board, pursuant to article XII, section 13(8), of the Colorado Constitution. In Kinchen, the supreme court held that in an appeal of a disciplinary action under this article, the employer must bear the burden of proof to protect the “central” interest of article XII, “that state employees are hired and discharged on the basis of merit and fitness.” Kinchen, supra, 886 P.2d at 707.

The supreme court distinguished but did not overrule Renteria, which held that the complaining employee bore the burden of proof regarding loss of duties in a job reallocation. The supreme court noted that the reallocation process does not implicate constitutional protection against discharge without just cause, and explained:

A reallocation decision is part of the necessary review of work functions that an employer must make periodically to assure organizational efficiency. Unlike a hearing regarding discipline of an employee, reallocation decisions do not involve difficult judgments about credibility. Most importantly, such decisions do not involve allegations of misconduct against an employee, implicating the protections against wrongful discipline embodied in Article XII, section 13(8), of the Colorado Constitution.

Kinchen, supra, 886 P.2d at 710.

Discharge for job abolishment, like reallocation, is more administrative than disciplinary in nature and thus does not involve credibility judgments arising from contested allegations of employee misconduct. See § 24-50-124(1), C.R.S.2002 (in a reduction, employees may be separated from state service due to lack of work, lack of funds, or reorganization); see also Board Rule 12-17, 4 Colo.Code Regs. 801 (2001)(defining layoff based on events that do not involve fault of the employee).

Whether discharge is for job abolishment or misconduct, the immediate impact on the certified employee — job loss — is the same. However, article XII, section 13(8), describes the circumstances giving rise to dismissal, suspension, or other discipline of a certified employee far differently from reasons for job abolishment: “failure to comply ■with standards of efficient service or competence, or for willful misconduct, willful failure or inability to perform his duties, or final conviction of a felony or any other offense which involves moral turpitude.” See also § 24-50-125(1), C.R.S.2002. Hence, a discharge for job abolishment does not implicate state constitutional protections. Cf. Hughes v. Dep’t of Higher Educ., 934 P.2d 891 (Colo.App.1997), overruled on other grounds by Lawley v. Dep’t of Higher Educ., 36 P.3d 1239 (Colo.2001).

In Kinchen, the supreme court also looked to decisions of other courts that impose the burden of proving misconduct on the employer. As to the question before us, other courts have held that an employee is not entitled to due process when the job is abolished as part of a valid reorganization:

[Wjhere a public employee has a property interest in continued employment, the employee is not deprived of this interest where his or her position is abolished because state laws creating the property interest, while usually giving rise to a legitimate expectation that disciplinary termination may not occur without adequate procedures, do not create a legitimate expectation that the employee’s position will never be abolished.

Mandel v. Allen, 889 F.Supp. 857, 866 (E.D.Va.1995), aff'd, 81 F.3d 478 (4th Cir.1996); see also Duffy v. Sarault, 892 F.2d 139, 147 (1st Cir.1989)(same); Detweiler v. Commomvealth of Va. Dep’t of Rehab. Servs., 705 F.2d 557, 559-60 & n. 2 (4th Cir.1983)(in describing the extent of the property interest of a classified employee in Virginia, distinguishing between discharges for cause and discharges “because of lack of work, reduction in work force, or job abolition,” and finding that only discharges for cause require due process); Hartman v. City of Providence, 636 F.Supp. 1395, 1410 (D.R.I.1986)(collecting state and federal cases recognizing that no hearing is required “despite the presence of a ‘no dismissal except for cause’ rule, when a position is abolished pursuant to a bona fide government reorganization or kindred cost-cutting measure”); Mermelstein v. Haner, 436 F.Supp. 238, 241 (W.D.Va.l977)(upholding the abolition of classified positions resulting from budget cutbacks), aff'd, 588 F.2d 1350 (4th Cir.1978).

Here, we acknowledge the holding of the division in Hughes v. Dep’t of Higher Educ., supra, that an employee whose job has been abolished is entitled to a hearing under § 24-50-125(5), C.R.S.2002. Nevertheless, we find these eases persuasive to the extent that, if due process does not require a hearing at all when a job is abolished, then affording a hearing, but placing the burden of proof on an employee complaining of job abolishment, cannot offend due process.

Apart from due process concerns, employee raises, and we recognize, the potential for job abolishment to be pretextual, “when implemented for the purpose of terminating, or in a manner which terminates, a disfavored or targeted employee or group of employees.” Hughes v. Dep’t of Higher Educ., supra, 934 P.2d at 894. However, the ALJ found, and employee does not challenge on appeal, that employee “did not even suggest an improper motive for his layoff.”

Moreover, in a hearing under § 24-50-125(5), the employee can subpoena any employee or official of a state agency to appear and testify as well as to produce relevant documentary evidence. See Brennan v. Dep’t of Local Affairs, supra. Given these procedural safeguards, we discern no need to impose the burden of proof on the employer merely because, in rare cases, discharge for job abolishment may be a pretext for discipline.

Employee further asserts that discharge for job abolishment requires the employer to bear the burden of proof for procedural efficiency, citing three factors discussed in Kinchen: the appointing authority knows the reasons for its actions and is in the better position to present this information to the hearing officer; placing the burden of proof on the employee requires the employee to prove that the events or actions in question did not happen; and it should be little hardship for the appointing authority to present this information to the hearing officer because it should have made a thorough investigation before deciding to terminate the employee. We are not persuaded.

Here, employee reviewed and copied human resources documents pursuant to a discovery request. He also presented testimony from several college employees, including the college president and its director of human resources. Hence, we discern no significant procedural inefficiency from placing the burden of proof on employee. See Brennan v. Dep’t of Local Affairs, supra, 786 P.2d at 428 (“no unfairness attends this [burden] simply by virtue of the fact that the Department may have more intimate access to such information”).

Accordingly, we affirm the Board’s adoption of the decision of the ALJ that employee bore the burden of proof.

II.

Employee next argues the Board erred in adopting the ALJ’s factual findings that the college had insufficient funds to continue his position and that the college used an appropriate layoff matrix. We do not agree.

“On appellate review, an administrative decision will not be reversed if its findings are supported by substantial evidence when the record is considered as a whole.” Anderson v. Colo. State Dep’t of Pers., 756 P.2d 969, 974 (Colo.1988).

A.

An employee’s failure to show funding from a specific source for a particular position defeats any claim that a budgetary layoff was arbitrary, capricious, or contrary to rule or law. Brennan v. Dep’t of Local Affairs, supra.

With record support, the ALJ determined that the director of housing’s request for additional funding was denied and as a result further renovation work was suspended. Accordingly, we conclude the Board properly adopted the ALJ’s conclusion that employee failed to establish the college could continue to fund his position.

B.

Section 24-50-124(1) provides that when certified employees are separated from state service due to lack of work, lack of funds, or reorganization, they shall be separated or demoted according to procedures established by rule.

The ALJ found that the human resources director who processed the layoff properly established a layoff matrix. The record shows that to create the matrix, the director looked at the classification structure and incumbents in that class; ran an employment history on each employee to determine previous positions and certifications; established three-year time bands pursuant to Board Rule 7-9; and assigned weight to seniority, class, evaluations, and veteran status.

Accordingly, we conclude the Board also properly adopted the ALJ’s finding that the college followed appropriate procedures to abolish employee’s position.

The order is affirmed.

Judge NEY and Judge PLANK concur.


author: Judge MARQUEZ.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sonny LEE, Defendant-Appellant.
    No. 01CA2165.
    Colorado Court of Appeals, Div. III.
    Sept. 25, 2003.
    As Modified on Denial of Rehearing Dec. 24, 2003.
    Certiorari Granted July 19, 2004.

      Ken Salazar, Attorney General, Christine C. Brady, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Thomas K. Carberry, Denver, Colorado, for Defendant-Appellant.

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

   Opinion by

Judge MARQUEZ.

Defendant, Sonny Lee, appeals the judgment of conviction entered on jury verdicts finding him guilty of second degree kidnapping, two counts of first degree sexual assault, and accessory to a crime. We affirm.

Defendant was one of six men who kidnapped and sexually assaulted a woman in Boulder County in 1999. After his- arrest, defendant was transferred to the Adams County jail for the purpose of recording his telephone conversations because, as a suspected gang member, he posed a security threat for possible retaliation against the witnesses and because he had stated to an inmate that he would contact people on the outside to help him escape.

Defendant moved to disqualify the district attorney, contending that her campaign remarks would deny him a fair trial because a jury would assume she would prosecute only a meritorious case. The trial court denied this motion, but granted defendant’s motion for change of venue, and the case was transferred to Mesa County.

I.

Defendant contends the trial court erred by denying his motion to suppress wiretaps of his phone calls from the Adams County jail because they violated the federal and state wiretap statutes and the prosecution failed to prove that he consented to the wiretaps. We disagree.

A.

As a threshold matter, we note that defendant relies on certain state and federal statutes in his brief on this issue. Defendant concedes that the argument about the state wiretap statute was not raised before the trial court. Thus, we decline to address the state statute here. See People v. Inman, 765 P.2d 577 (Colo.1988)(appellate review of a suppression ruling is limited to the legal bases set forth in the trial court’s ruling and not necessarily the grounds alleged in the motion); People v. Gee, 33 P.3d 1252 (Colo.App.2001)(aecord).

B.

Because defendant had no reasonable expectation of privacy, we also reject his contention of failure to prove consent.

When reviewing a trial court’s suppression order, we defer to its findings of fact, but review its conclusions of law de novo. We must determine whether the trial court applied the correct legal standards to the facts of the case and whether sufficient evidence in the record supports its legal conclusions. People v. Haley, 41 P.3d 666 (Colo.2001).

Generally speaking, warrantless searches violate constitutional guarantees because they are presumptively unreasonable. People v. Hill, 929 P.2d 735 (Colo.1996).

However, the touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001).

In the absence of a reasonable expectation of privacy, law enforcement officials are free to conduct a warrantless search notwithstanding whether the search is also justified by exigent circumstances or some other exception to the warrant requirement of the Fourth Amendment. Prisoners have little, if any, reasonable expectation of privacy while incarcerated. People v. Salaz, 953 P.2d 1275 (Colo.1998); see United States v. Peoples, 71 F.Supp.2d 967 (W.D.Mo.1999)(curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of institutional needs and objectives of prison facilities, chief among which is internal security); see also People v. Blehm, 44 Colo.App. 472, 623 P.2d 411 (1980)(defendant had no justifiable expectation that her conversations in jail with her husband were private).

An exception to the federal wiretap law, 18 U.S.C. § 2511(2)(c) (2000), is that it is not unlawful for law enforcement officials to intercept a wire, oral, or electronic communication where one of the parties to the communication has given prior consent to the interception. Furthermore, consent may be expressed or implied. United States v. Peoples, supra.

The essential issue is not whether the prosecution proved consent, but whether there is evidence in the record to support the trial court’s findings of fact, and as long as there is support for them, we will not overturn those findings. People v. Thomas, 853 P.2d 1147 (Colo.1993); see United States v. Hammond, 286 F.3d 189 (4th Cir.2002)(the consent exception applies to prison inmates required to permit monitoring as a condition of using prison telephones).

Here, the trial court properly applied the standard set forth in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), that a Fourth Amendment violation occurs only if a defendant has a justifiable expectation of privacy. See People v. Gallegos, 179 Colo. 211, 499 P.2d 315 (1972); People v. Palmer, 888 P.2d 348 (Colo.App.1994).

Defendant does not dispute that his phone calls were from jail, and the trial court found from circumstantial evidence, including a video, a handbook, and posted signs, that defendant was aware that his telephone calls were monitored. The court also considered defendant’s own recorded statements: “I think their phones here are recorded,” and “It’s not a good idea to talk on the phone.” The court noted the physical location of the telephones, which were extremely close to each other, with no walls or other barriers between them. There was also a door in the immediate vicinity of the telephones through which other people could enter at any time. These factors undercut a reasonable expectation of privacy.

The trial court held that defendant’s incarceration and the unreasonableness of any expectation of privacy in telephone calls from jail, especially when he received notice of the monitoring, precluded any relief.

We conclude that even if defendant did not consent, the court’s determination that he had no reasonable expectation of privacy is supported by the record, and we will not disturb it on review.

II.

We also reject defendant’s contention that the trial court erred in denying his motion to remove the prosecutor on the grounds that her bid for the elected office of district attorney had tainted the judicial proceedings.

Section 20-1-107(2), C.R.S.2002, provides, in relevant part, that a motion to disqualify a district attorney shall not be granted unless “the court finds that the district attorney has a personal or financial interest or special circumstances exist that would render it unlikely that the defendant would receive a fair trial.”

Prior to its amendment in 2002, and at the time the trial court here ruled, § 20-1-107 provided: “If the district attorney is interested or has been employed as counsel in any case which it is his duty to prosecute or defend, the court having criminal jurisdiction may appoint a special prosecutor to prosecute or defend the cause.” Colo. Sess. Laws 1977, ch. 214 at 858-59.

The term “interested” in the prior statute was not defined or qualified. However, the supreme court interpreted the term to mean that disqualification is warranted when the district attorney has some involvement in the defendant's case such that the district attorney’s ability to continue the prosecution fairly would be impaired. A showing of mere partiality is not sufficient. Allegations of interest must show a concern in the outcome of the matter such that the district attorney will either reap some benefit or suffer some disadvantage. People v. C.V., 64 P.3d 272 (Colo.2003).

Under the prior statute, an appearance of impropriety has also been the basis for disqualification. An appearance of impropriety has been defined as a circumstance where the district attorney has an interest in the matter aside from his or her professional responsibility of upholding the law. People v. C.V., supra; see People v. Palomo, 31 P.3d 879 (Colo.2001).

The fundamental inquiry is whether disqualification appears reasonably necessary to ensure the integrity of the fact finding process, the fairness or appearance of fairness of trial, the orderly or efficient administration of justice, or public trust or confidence in the criminal justice system. Trial courts have broad discretion in determining whether they should disqualify a district attorney from prosecuting a particular case. A court commits an abuse of discretion if it makes a manifestly arbitrary, unreasonable, or unfair decision. People v. Palomo, supra; see People v. Rodriguez, 914 P.2d 230 (Colo.1996).

Because an appearance of impropriety is almost entirely dependent on context, determinations grounded on this legal basis must turn on the circumstances of each particular case. Whether an appearance of impropriety exists and the remedy therefor are uniquely questions for the trial court and must be committed to that court’s broad discretion. People v. County Court, 854 P.2d 1341 (Colo.App.1992).

While defendant here contends that there was actual impropriety in the district attorney’s role in transferring him to Adams County for the purpose of recording his phone calls, that contention was not raised before the trial court and will not be addressed here.

Further, the record supports a determination that there was no appearance of impropriety. Although the trial court denied defendant’s motion to remove the district attorney, it granted his motion for change of venue. On appeal, defendant does not identify any manner, other than pretrial publicity related to the campaign, in which his trial was unfair because of the participation of this particular district attorney. The change of venue would have cured any publicity problem. Additionally, the district attorney’s potential political benefit from defendant’s conviction is not sufficiently distinct from her professional responsibilities to warrant any finding of an improper interest in the outcome of the case. See People v. Dist. Court, 189 Colo. 159, 538 P.2d 887 (1975)(rejeeting speculation that potential political gain would cause district attorney, who was a candidate for mayor, to overextend effort to convict).

Therefore, the trial court did not abuse its discretion.

in.

Defendant next contends that the trial court violated a prospective juror’s constitutional right to serve as a juror and violated defendant’s constitutional right to equal protection when the trial court granted the prosecution’s challenge for cause because the juror, who could speak and understand English, could not read or write English. We are not persuaded.

Section 13-71~105(2)(b), C.R.S.2002 provides that a prospective juror shall be disqualified based on the inability to read, speak, and understand the English language.

The fact finder, at a minimum, must be able to understand all of the evidence presented and evaluate that evidence in a rational manner. People v. Hayes, 923 P.2d 221 (Colo.App.1995).

Whether a prospective juror should be disqualified under the statute is a question of fact for resolution by the trial court. People v. Duncan, 33 P.3d 1180 (Colo.App.2001); People v. Rodriquez, 638 P.2d 802 (Colo.App.1981).

Here, the trial court’s determination that the prospective juror could not read English is supported by the record. The juror informed the court that he was unable to read or write English and would not understand the written exhibits. Under the statute, the juror was not qualified for service. See People v. Rodriquez, supra.

In the trial court, defendant objected to disqualification of the juror, arguing that under the Constitution each citizen has a right to serve and should be accommodated. He did not specifically challenge the constitutionality of § 13 — 71—105(2)(b). Nor did he raise the statutory construction issue articulated in his reply brief. Therefore, we address only the question of a juror’s constitutional right to serve.

Defendant relies on Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), for the proposition that mandatory presumptions violate the Fourteenth Amendment. He argues that the blanket exclusion of people who understand English, but do not read or write English, violates the constitutional rights of those people. However, both cases addressed the constitutionality of jury instructions involving a presumption that could have been understood to shift the burden of persuasion. Here, we are concerned with a juror’s qualifications, not instructions.

Further, the United States Constitution does not forbid the states to prescribe relevant qualifications for their jurors. The states remain free to confine the selection to citizens, to persons meeting specified qualifications of age and educational attainment, and to those possessing good intelligence, sound judgment, and fair character. Carter v. Jury Comm’n, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); see Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991)(states may prescribe relevant qualifications for their jurors).

Thus, we perceive no error.

IV.

Finally, we reject defendant’s contention that the trial court committed structural error by giving improper instructions on reasonable doubt.

Where, as here, counsel fails to object or tender instructions on the omitted issues, appellate courts will consider only plain error in the giving of, or failure to give, pertinent instructions. Plain error is grave error that seriously affects the substantial rights of the accused. It is an error that is both obvious and substantial. People v. Stewart, 55 P.3d 107 (Colo.2002); see Wilson v. People, 743 P.2d 415 (Colo.1987). Structural error does not apply here. See Griego v. People, 19 P.3d 1 (Colo.2002).

The appropriate standard of review for an ambiguous instruction is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. Further, we are required to consider the instructions as a whole, and there is no error if the instructions, taken together, adequately inform the jury of the law. People v. Sherman, 45 P.3d 774 (Colo.App.2001).

Here, the elements of the crime instructions included the following: “After considering all the evidence, if you decide the prosecution has failed to prove each of the elements beyond a reasonable doubt, you should find the defendant not guilty of [the charged crime].” See CJI-Crim. 11:04, 12:01 (1983).

Defendant argues that by using the word “each” in the elemental instructions, the trial court in effect told the jury that it must convict unless it found that the prosecution had failed to prove all the elements. We disagree.

Divisions of this court have rejected a similar argument. See People v. Howard, 89 P.3d 441, 2003 WL 21755956 (Colo.App. No. 01CA2465, July 31, 2003); People v. Bogle, 743 P.2d 56 (Colo.App.1987); People v. Freeman, 739 P.2d 856 (Colo.App.1987). We find those holdings persuasive and apply them here.

The trial court also provided the jury with an instruction on the presumption of innocence, which stated in pertinent part:

The burden of proof is upon the prosecution to prove to the satisfaction of the jury beyond a reasonable doubt the existence of all of the elements necessary to constitute the crime charged.
If you find from the evidence that each and every element has been proven beyond a reasonable doubt, you will find the defendant guilty. If you find from the evidence that the prosecution has failed to prove any one or more of the elements beyond a reasonable doubt you will find the defendant not guilty.

See CJI-Crim. 3:04 (1983).

In addition, the jury was instructed: “No single rule describes all the law which must be applied. Therefore, the rules must be considered together as a whole.” Absent evidence to the contrary, we presume that the jury understood and heeded the trial court’s instructions. Copeland v. People, 2 P.3d 1283 (Colo.2000).

Thus, we hold that the elemental instrac-tions here, considered in conjunction with the rest of the trial court’s instructions, do not rise to the level of plain error.

The judgment is affirmed.

Judge ROY and Judge HUME concur.


author: Judge HUME .

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Norman Michael SIMPSON, Defendant-Appellant.
    No. 01CA0322.
    Colorado Court of Appeals, Div. III.
    Nov. 6, 2003.
    As Modified on Denial of Rehearing Feb. 26, 2004.

      Ken Salazar, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Mark G. Walta, Deputy State Pub-lie Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge HUME .

Defendant, Norman Michael Simpson, appeals the judgment of conviction entered on a jury verdict finding him guilty of attempted second degree murder, first degree burglary, first degree criminal trespass, and misdemeanor menacing. He also appeals the sentence. We affirm.

In 1998, defendant’s ex-wife moved from Kansas to Colorado with the couple’s three children without informing defendant where she had moved. In May 1999, defendant discovered her phone number and began to call her repeatedly. Shortly thereafter, he discovered her work phone number and began to call her at work. During several of these conversations, defendant threatened to kill her, and on at least one occasion he threatened to kill their children and himself.

In September 1999, defendant followed his ex-wife to her home. When she pulled into her garage, defendant pulled his car onto the lawn. When she realized that defendant was in the car, she took her children into the house and locked the door. After an altercation with the ex-wife’s boyfriend, defendant drove off.

In December 1999, the ex-wife’s garage door opener was stolen from her vehicle. She confronted defendant about the garage door opener, and defendant admitted taking it. He also admitted driving her car without her permission.

In January 2000, the ex-wife disconnected her home phone number. On January 11, 2000, at approximately 10:30 p.m., defendant went to her house with a loaded gun. Defendant demanded to be let inside the home, and when she refused, defendant kicked in the door. Defendant pointed the gun at her head. While defendant was in the house, he fired two shots. At least one shot lodged in the wall behind the ex-wife.

I.

Defendant argues the trial court committed reversible error because: (1) jury instruction No. 17 failed to instruct the jury that for conviction of first degree burglary, the intent to commit a crime must be contemporaneous with the moment of trespass; and (2) the trial court improperly allowed the jury to consider whether defendant unlawfully remained in the dwelling. We disagree.

Here, because defendant did not object to jury instruction No. 17 at trial, our review is conducted under the plain error standard. The plain error standard requires the defendant to show that the instruction affected a substantial right and that the record reveals a reasonable possibility that the error contributed to the defendant’s conviction. People v. Lawrence, 55 P.3d 155 (Colo.App.2001).

In a burglary case, the state must prove the defendant had the intent to commit a crime at the time of trespass. Cooper v. People, 973 P.2d 1234 (Colo.1999), disapproved in part by Griego v. People, 19 P.3d 1, 8 (Colo.2001). Jury instruction No. 17 states, as relevant here, that the state must prove the defendant:

3. knowingly,
4. unlawfully entered or remained in the a building or occupied structure,
5. with intent to commit therein the crime of First Degree Attempted Murder or Menacing, and
6. while in the building or occupied structure,
7. the defendant or another participant in the crime menaced any person, [or]
8. the defendant or another participant in the crime was armed with a deadly weapon.

This instruction mirrors the language of the first degree burglary statute, § 18-4-202(1), C.R.S.2003, and the pattern jury instruction, CJI-Crim. 14:01 (1993 Supp.). Elemental instructions framed in the language of the statute are generally sufficient. People v. Gallegos, 950 P.2d 629 (Colo.App.1997).

In People v. Ramirez, 18 P.3d 822, 827 (Colo.App.2000), a division of this court concluded that “ ‘entering with intent’ necessarily conveys the meaning that the intent accompanies, or coexists with, the moment of trespass as required under Cooper v. People, supra.” As in Ramirez, we conclude that the instruction given here sufficiently conveys that the intent to commit a crime must be contemporaneous with the moment of trespass.

Defendant argues that Ramirez was wrongly decided. Specifically, defendant argues that the phrase “enter or remain with intent” is not sufficient to communicate to jurors that the intent must coexist with the moment of trespass, citing Cooper v. People, supra, in support of his assertion. In Cooper, the trial court gave the stock jury instruction for burglary and then gave a supplemental instruction, which stated that intent to commit a crime could be formed either before or after the defendant’s entry into the dwelling. The Cooper court held that the supplemental instruction was erroneous. Significantly, the supreme court did not find the stock burglary instruction invalid. When an appellate court intends to modify or invalidate a pattern jury instruction, it will do so using explicit language. See Bogdanov v. People, 941 P.2d 247, amended, 955 P.2d 997 (Colo.1997).

Defendant also argues that instruction No. 17 is erroneous because it leaves jurors with the impression that if they find that the defendant is guilty of menacing while in the dwelling, then the intent to commit a crime need not be present at the time of trespass. We disagree.

The fact that defendant committed menacing while inside the house does not determine whether he formulated an intent to commit a crime at the time of trespass. Here, the instruction explicitly states that, to convict, the jury must find that defendant entered or remained in the dwelling with intent to commit a crime and that defendant actually menaced a person while in the dwelling. See CJI-Crim. 14:01. Rather than supplanting the intent element, the instruction added an element to the state’s burden of proof. Thus, we perceive no error.

Defendant also argues that the trial court erred in allowing the jury to consider whether he “unlawfully remained” in the dwelling. Defendant argues that the “unlawfully remained” language should be included in the instruction only if a defendant remains both unlawfully and surreptitiously. We disagree.

Not only is the “surreptitious” requirement absent from Colorado case law, the plain language of § 18-4-202(1) does not require it. See People v. Lowe, 60 P.3d 753 (Colo.App.2002)(if the language of the statute is clear, there is no need to resort to other rules of statutory construction). Therefore, the trial court did not err in giving jury instruction No. 17.

Defendant also tacked on a one-sentence footnote in his opening brief asserting that instruction No. 17 amounted to a constructive amendment to the information. That contention was set forth neither in the summary of defendant’s argument nor as an issue on appeal in defendant’s opening brief as required by C.A.R. 28(a)(1)-(2) and (4). The opening brief did not include any argument beyond the one-sentence assertion and a citation to one case.

We decline to consider a bald legal proposition presented without argument or development, nor will we consider an appellate argument presented for the first time in a reply brief. See' Westrac, Inc. v. Walker Field, 812 P.2d 714 (Colo. App. 1991); see also United States v. Dunkel, 927 F.2d 955 (7th Cir. 1991); Williams v. Eastside Lumberyard & Supply Co., 190 F.Supp. 2d 1104 (S.D. Ill. 2001); People v. Czemerynski, 786 P.2d 1100, 1107 (Colo.1990).

II.

Defendant asserts that the jury’s verdicts finding him guilty of both attempted second degree murder and first degree burglary are legally and logically inconsistent. We disagree.

Guilty verdicts are legally and logically inconsistent if the existence of an element of one crime negates the existence of a necessary element of the other crime. People v. Frye, 898 P.2d 559 (Colo.1995); People v. White, 64 P.3d 864 (Colo.App.2002). Here, no such inconsistency exists.

First degree burglary requires a finding that defendant trespassed with intent to commit menacing and that while inside, he menaced someone or was armed with a deadly weapon. See § 18-4-202(1); People v. Loomis, 857 P.2d 478 (Colo.App.1992). Attempted second degree murder requires a finding that defendant knowingly engaged in conduct that was a substantial step toward causing the death of another person. See §§ 18-2-101, 18-3-103, C.R.S.2003. A reasonable jury could find that defendant both entered or remained in his ex-wife’s home with the intent to menace and, while there, took a substantial step toward causing her death. Thus, we find no inconsistency in the jury’s verdicts.

III.

Defendant asserts there was insufficient evidence to support the jury’s finding of attempted second degree murder beyond a reasonable doubt. We disagree.

When the sufficiency of evidence is challenged on appeal, the reviewing court must determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crime charged beyond a reasonable doubt. Kogan v. People, 756 P.2d 945 (Colo.1988).

Here, there is ample evidence in the record to support a jury finding of attempted second degree murder. Defendant had threatened his ex-wife’s life on several occasions. Defendant went to her house, late at night, armed with a weapon. Defendant pointed the gun at her head and fired at least one shot that lodged in the wall behind her. The jury’s verdict thus is supported by sufficient evidence and will not be disturbed.

IV.

Defendant also argues the trial court committed reversible error in failing to instruct the jury regarding a lesser nonincluded offense. We disagree.

The defendant is entitled to an instruction on a lesser offense, included or nonincluded, as long as there is a rational basis in the evidence to support a verdict acquitting the defendant of the greater offense and convicting him or her of the lesser. People v. Garcia, 940 P.2d 357 (Colo.1997); People v. Skinner, 825 P.2d 1045 (Colo.App.1991).

Defendant requested an instruction on the crime of illegal discharge of a firearm, § 18-12-107.5, C.R.S.2003. That statute penalizes “[a]ny person who knowingly or recklessly discharges a firearm into any ... occupied structure.” That statute, enacted in 1993, was intended to punish random drive-by and walk-by gunfire directed at occupied structures or vehicles from outside such premises or vehicles. See Hearings on S.B. 93-48 before the Senate Judiciary Committee, 59th General Assembly, First Session (Feb. 1, 1993); Hearings on S.B. 93-48 before the House Judiciary Committee, 59th General Assembly, First Session (Mar. 9,1993).

Here, defendant was inside the ex-wife’s dwelling before he fired the shots at or near her head. There is no evidence indicating that shots were randomly fired from outside the premises as contemplated for a violation of § 18-12-107.5.

V.

Defendant asserts that the trial court erred in denying his motions for mistrial based on the asserted misconduct of the prosecutor, witnesses, and trial spectators. We perceive no error.

A mistrial is a drastic remedy. The trial court has broad discretion to grant or deny a motion for mistrial. A reviewing court will not disturb a trial court’s decision absent gross abuse of discretion and prejudice to the defendant. Moreover, a mistrial is warranted only where the prejudice to the defendant cannot be remedied by other means. People v. Abbott, 690 P.2d 1263 (Colo.1984).

Here, the trial court did not observe any inappropriate behavior, but after hearing complaints of misconduct from both the prosecution and defense, it admonished all participants to conduct themselves professionally. The trial court did not abuse its discretion by relying on its own observations rather than reports from other participants. See People v. Blackmon, 20 P.3d 1215 (Colo.App.2000). In addition, nothing in the record indicates that the jurors observed any misconduct by counsel that would warrant a mistrial.

Similarly, defendant’s contentions that improper testimony elicited from the victim and from a police detective warranted a mistrial are not supported by the record. The victim’s references to defendant’s prior acts and conduct were innocuous and, taken in context, cannot be considered sufficiently prejudicial to defendant to warrant a mistrial. The detective’s testimony that the reasons for defendant’s arrest included a prior warrant was responsive to a question asked by defense counsel on cross-examination. When the court offered a curative instruction, defense counsel declined, stating that he was not sure the jury had heard the reference to a warrant. Under these circumstances, we agree that any prejudice to defendant was inconsequential and did not warrant a mistrial.

VI.

Defendant contends that the trial court erred in denying his motion to dismiss based on destruction of evidence. Defendant asserts that the police destroyed evidence by failing to (1) conduct gunshot residue testing on the wall or on the victim, (2) record with measurements and pictures the exact location of the bullet holes, and (3) conduct testing that would have provided the bullets trajectories. We are not persuaded.

To demonstrate that the state’s failure to preserve potentially exculpatory evidence violated the Due Process Clause of the United States or Colorado Constitution, a defendant must establish that (1) the evidence was destroyed by the prosecution; (2) the evidence possessed exculpatory value that was apparent before it was destroyed; and (3) the defendant was unable to obtain comparable evidence by other reasonably available means. People v. Enriquez, 763 P.2d 1033 (Colo.1988).

Initially, the police were investigating a burglary, in which the positions of and distance between the ex-wife and defendant would not have been readily material. Only later, when police learned that the gun had been pointed at the ex-wife’s head and she had heard the first shot go by her ear, were attempted murder charges considered. At that time, gunpowder residue evidence was not available. Although the second bullet hole was too damaged to be useful, police and the defense expert were able to conduct trajectory calculations regarding the first bullet hole.

Failure to preserve useful evidence does not constitute a due process violation absent a showing of bad faith on the part of the police. See People v. Wyman, 788 P.2d 1278 (Colo.1990). Because defendant failed to establish either that the police officers acted in bad faith in failing to preserve evidence or that the evidence had apparent exculpatory value before it was destroyed, the trial court did not err in denying defendant’s motion to dismiss. See People v. Greathouse, 742 P.2d 334 (Colo.1987).

VII.

Defendant attacks the enhancement of his sentence because (1) the jury was not instructed with specific interrogatories regarding crimes of violence, and (2) Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), prohibits enhancement of his sentence for facts not pleaded and proved to a jury beyond a reasonable doubt. We reject these arguments.

“ ‘Crime of violence’ means any of the crimes specified ... committed, conspired to be committed, or attempted to be committed by a person during which, or in the immediate flight therefrom, the person: (A) Used, or possessed and threatened the use of, a deadly weapon.... ” Section 18-1.3-406(2)(a)(I), C.R.S.2003 (formerly § 16-11-309).

Defendant was charged with two violent crime counts related to first degree burglary and attempted murder. During the jury instruction conference, defense counsel stipulated that a separate interrogatory regarding a crime of violence was not necessary, and defendant refused the court’s offer of a separate crime of violence instruction. Under these circumstances, defendant cannot now complain that he is prejudiced by the absence of the separate instruction. See People v. Zapata, 779 P.2d 1307 (Colo.1989).

Finally, Apprendi v. New Jersey, supra, does not apply to sentences within statutorily authorized máximums. See People v. Clifton, 74 P.3d 519 (Colo.App.2003), reajfg in part 69 P.3d 81 (Colo.App.2001).

The judgment and sentence are affirmed.

Judge MARQUEZ and Judge DAILEY concur.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2003.


author: Judge TAUBMAN.

text:
    MORTGAGE INVESTMENTS CORPORATION, a Colorado corporation, n/k/a New Mortgage Investments Corporation, a Colorado corporation, Plaintiff-Appellee, v. BATTLE MOUNTAIN CORPORATION; Anglo American Consolidated Corporation; Anglo America Consolidated Corporation; Conejos Advisors Company; Sangre Consultants, Inc.; Apishapa Management, Inc.; Piney Lumber Company; Pine Martin Mining Company; and Battle Mountain Limited Liability Company, Defendants-Appellants.
    No. 99CA2111.
    Colorado Court of Appeals, Div. V.
    Nov. 20, 2003.
    As Modified on Denial of Rehearing March 11, 2004.

      Netzorg McKeever Koclanes & Bernhardt, LLC, Gordon W. Netzorg, J. Nicholas McKeever, Jr., Susan Bernhardt, Denver, Colorado, for Plaintiff-Appellee.
    Appel & Lucas, P.C., Garry R. Appel, Denver, Colorado, for Defendants-Appellants.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2003.

   Opinion by

Judge TAUBMAN.

In this suit to foreclose on a deed of trust, we consider, after remand from the supreme court, the two issues we did not previously address. Defendants, Battle Mountain Corporation (BMC); Anglo American Consolidated Corporation; Aiglo America Consolidated Corporation; Conejos Advisors Company; Sangre Consultants, Inc.; Apishapa Management, Inc.; Piney Lumber Company; Pine Martin Mining Company; and Battle Mountain Limited Liability Company (collectively Battle Mountain), appeal the summary judgment and orders entered in favor of plaintiff, Mortgage Investments Corporation, now known as New Mortgage Investments Corporation. We affirm.

In 1983, BMC signed a promissory note secured by a deed of trust on real property known as the Gilman property, located in Eagle County, Colorado. The Federal Deposit Insurance Corporation (FDIC) eventually became the holder of the note, sued on it, and obtained a judgment in California. In 1991, the California judgment was domesticated in Eagle County. In 1993, the FDIC assigned the judgment and deed of trust to Mortgage Investments.

In 1994, Thomas Nevis, the sole shareholder of BMC, allegedly sold the “corpus” of BMC to Jeff Tucker for $1000, but Tucker did not obtain the BMC stock certificates. Because BMC was not in good standing with the secretary of state and the corporate name was no longer available, Tucker changed BMC’s name to Anglo American Consolidated Corporation (AACC). Later that year, Turkey Creek, L.L.C. filed a complaint in ease 94CV152 seeking to foreclose on the deed of trust and to quiet title to some of the Gilman property.

In 1995, Nevis and BMC sold the Gilman property to Glenn Miller and conveyed it to him by quitclaim deed. That same year, Mortgage Investments recorded its interest as an assignee in the judgment and deed of trust regarding the Gilman property.

In 1996, AACC granted 405 deeds of trust on the Gilman property to three of the Battle Mountain defendants and also conveyed parts of the Gilman property to the other three defendants. The trial court found that AACC’s grant of the 405 deeds of trust was void.

In 1998, Turkey Creek commenced a second action, case 98CV372, against AACC for damages based upon the 405 fraudulent deeds of trust involved in case 94CV152. Mortgage Investments then commenced this foreclosure action, case 98CV374, against Battle Mountain based on the 1983 BMC deed of trust. Mortgage Investments served the summons and complaint on Tucker as “agent, manager and/or officer” of BMC.

In 1999, the trial court granted the joint motion of Turkey Creek and Mortgage Investments to consolidate, inter alia, cases 98CV372 and 98CV374 with case 94CV152.

Thereafter, the trial court entered summary judgment in favor of Mortgage Investments and struck BMC’s pleadings in case 98CV374, concluding that because Tucker had never acquired ownership of BMC, he had no authority to act on BMC’s behalf. The court also awarded summary judgment in favor of Mortgage Investments on its claims against the other Battle Mountain defendants that were created through conveyances from BMC.

We reversed, holding that Mortgage Investments could not challenge Battle Mountain’s standing to raise a statute of limitations defense and that Mortgage Investments’ foreclosure action was barred by the six-year statute of limitations under §§ 13-52-102 and 13-80-103.5, C.R.S.2003. Mortgage Invs. Corp. v. Battle Mountain Corp., 56 P.3d 1104 (Colo.App.2001).

The supreme court reversed our decision in part, holding that Mortgage Investments’ foreclosure action is governed by the fifteen-year limitations period contained in § 38-39-205, C.R.S.2003, and thus reinstated that action. However, the supreme court agreed with us that “the Battle Mountain parties, other than those who disclaimed any interest in the property, had standing to raise the statute of limitations issue.” Mortgage Invs. Corp. v. Battle Mountain Corp., 70 P.3d 1176, 1182 (Colo.2003). The supreme court remanded the case to us for consideration, inter alia, of whether Article 8 of Colorado’s Uniform Commercial Code supports the trial court’s dismissal of Battle Mountain’s claims and pleadings.

We now consider those issues.

I. Equitable Title to BMC’s Stock

Battle Mountain argues the trial court erred in finding that Tucker did not have an interest in BMC property because it did not consider whether Tucker owned equitable title to BMC’s stock certificates. It contends that the enactment of Article 8 of the Colorado Uniform Commercial Code does not abrogate the common law principle allowing equitable transfer of securities. We perceive no error.

Article 8 of the Colorado Uniform Commercial Code governs the transfer of shares in a corporation. See § 4-8-101, et seq., C.R.S.2003. Corporate shares are “securities” for purposes of Article 8. Section 4-8-103, C.R.S.2003. Article 8 provides that a purchaser acquires rights in a certificated security when the purchaser takes possession of the security certificate. Sections 4-8-104(a)(1), 4-8-301(a)(l), 4-8-303, 4-8-406, C.R.S.2003.

In its motion for summary judgment, Mortgage Investments presented evidence that BMC’s stock was certificated, that BMC had not authorized uncertificated stock, and that Tucker had never received BMC stock certificates, books, or records from Nevis. Therefore, Mortgage Investments argued, and the trial court found, that Tucker did not acquire ownership of BMC’s property.

The interpretation of a statute is a question of law, subject to de novo review. City of Colorado Springs v. Conners, 993 P.2d 1167 (Colo.2000).

Equitable assignment of corporate stock, where there is a transfer of stock even though there is some technical defect in the mode of transfer, is recognized in Colorado. See Arfsten v. Higby, 150 Colo. 254, 372 P.2d 166 (1962). Although no appellate court in this state has addressed the issue, other states have held that the adoption of the Uniform Commercial Code does not abrogate the principle allowing equitable transfer of stock. See Crow v. Newspaper Dealer Supply, Inc., 603 F.Supp. 847 (E.D.Mo.1985)(applying Missouri state law); Andrews v. Troy Bank & Tmst Co., 529 So.2d 987 (Ala.1988); Tanner v. Robinson, 411 So.2d 240 (Fla.Dist.Ct.App.1982); In re Stewart Becker, Ltd., 405 N.Y.S.2d 571, 94 Misc.2d 766 (Sup.Ct.1978); see also 1 Ronald A. Anderson, Uniform Commercial Code § 1-103:188, at 291-92 (3d ed.1996). We agree with those decisions.

However, equitable title claims are recognized in Colorado only where the rights of third parties would not be affected. See Arfsten v. Higby, supra; see also Sky Harbor, Inc. v. Jenner, 164 Colo. 470, 435 P.2d 894, 897 (1968)(a judgment lien creditor has priority over a person who holds only an equitable interest in the property). Thus, in Arfsten, the supreme court concluded that the enactment of the Uniform Stock Transfer Act, the predecessor to Article 8 of the Colorado Uniform Commercial Code, did not abrogate equitable ownership of stock, except where a third party may be misled by a party’s noncompliance with the statute. Arfsten v. Higby, supra, 150 Colo. at 259, 372 P.2d at 168.

Here, Mortgage Investments was the holder of a deed of trust granted by BMC. Its rights would be affected by the sale of the corpus of BMC to Tucker, who then changed the name of the corporation and conveyed and encumbered the property subject to the deed of trust. As a result of these transactions, Mortgage Investments was misled by Miller’s acquisition of a quitclaim deed to BMC’s property and the Miller bankruptcy estate’s waiver of all defenses to enforcement of the judgment and deed of trust. Therefore, because Mortgage Investments is a third party whose rights would be affected by Tucker’s noncompliance with Article 8, we conclude that the principle allowing equitable transfer of stock does not apply in this case.

Thus, the trial court correctly concluded that because Tucker did not comply with Article 8, as a matter of law, he did not acquire ownership of BMC’s property.

II. Motion for New Trial

Battle Mountain also contends the trial court abused its discretion in denying its motion for new trial based on newly discovered evidence. Battle Mountain asserts that documents it received from the FDIC were newly discovered material evidence under C.R.C.P. 59(d)(4). We disagree.

C.R.C.P. 59(d)(4) provides that a new trial may be granted for “[n]ewly discovered evidence, material for the party making the application [for new trial] which that party could not, with reasonable diligence, have discovered and produced at the trial.”

The trial court has considerable discretion in determining whether to grant a new trial on the ground of newly discovered evidence, and its ruling will not be disturbed in the absence of a clear showing of an abuse of discretion. Southeastern Colo. Water Conservancy Dist. v. O’Neill, 817 P.2d 500, 506 (Colo.1991).

Mortgage Investments commenced this judicial foreclosure action in July 1998. Battle Mountain answered the complaint in August 1998. In May 1999, Battle Mountain filed a request for documents with the FDIC. In response, Battle Mountain received documents from the FDIC in October 1999. The trial court granted summary judgment in December 1999, two months after Battle Mountain received the documents from the FDIC. Because Battle Mountain had possession of the documents for two months prior to the trial court’s judgment, but did not file them with the court, the FDIC documents were not newly discovered evidence within the meaning of C.R.C.P. 59.

Furthermore, C.R.C.P. 56(f) affords a party an opportunity to obtain an extension of time in which to seek additional evidence through discovery before the trial court rules on a motion for summary judgment. See Dubois v. Myers, 684 P.2d 940 (Colo.App.1984)(standards set forth in C.R.C.P. 59 are applicable to order for summary judgment). Here, no such motion was filed.

Thus, the trial court did not abuse its discretion in denying Battle Mountains motion for new trial.

The judgment is affirmed.

Judge NIETO and Judge STERNBERG concur.


author: Judge LOEB.

text:
    POLY TRUCKING, INC., Defendant-Appellant, v. CONCENTRA HEALTH SERVICES, INC., Defendant-Appellee.
    No. 02CA2429.
    Colorado Court of Appeals, Div. I.
    Jan. 15, 2004.
    Rehearing Denied March 18, 2004.
    Certiorari Denied July 19, 2004.

      Faegre & Benson, LLP, Robert L. Matthews, Boulder, Colorado; Bartlit, Beck, Herman, Palenchar & Scott, Joseph C. Smith, Jr., Alison G. Wheeler, Denver, Colorado, for Defendant-Appellant.
    Gibson, Dunn & Crutcher, LLP, Gregory J. Kerwin, Amanda J. Tessar, Denver, Colorado, for Defendant-Appellee.

       Justice BENDER would grant as to the following issues:
      Whether a party had a duty to disclose its concealed intent to bring suit against the employees of another party to a settlement agreement, when:(l) one party to the contract "purposefully and intentionally” chooses to not disclose its secret hope, knowing that the nondisclosure will create a false impression in the other party's mind;(2)the parties to that contract agree to release all claims against each other and to execute "mutual” releases;(3) the non-disclosing party takes steps to ensure that the release that it receives includes a release of its employees; and (4) through a drafting error, the misled party omits language from the contract releasing its own employees from liability?
      Whether the court of appeals usurped the factfin-der's role when it disregarded the trial court's finding of inequitable conduct and characterized the non-disclosing party’s conduct as "mere silence”?

   Opinion by

Judge LOEB.

Poly Trucking, Inc. appeals from the trial court’s order reforming a settlement agreement entered into by Poly and Concentra Health Services, Inc. We reverse.

This case arose out of a motor vehicle accident that occurred when a commercial truck driver, hired by Poly, had a seizure and lost consciousness. The truck entered oncoming traffic and struck a vehicle, which in turn flipped over the median and struck another vehicle. The driver of the third vehicle died in the collision.

The decedent’s widow filed a wrongful death action in Colorado against Poly, the truck driver, and the driver of the second vehicle. Poly and the other defendants brought third-party claims against Concen-tra, based on Concentra’s allegedly improper issuance of a Department of Transportation medical certification to the truck driver. The widow then amended her complaint to include Concentra as a defendant. The Con-centra doctors who conducted the medical examinations were not individually named as defendants by any party, although Poly’s claims against Concentra were based on re-spondeat superior liability. Poly was advised by its Colorado counsel that the doctors were not subject to personal jurisdiction in Colorado.

The parties engaged in settlement discussions and mediation and eventually entered into a settlement agreement that resolved all claims in the lawsuit, except for the widow’s claims against the second driver and his cross-claims against Concentra, Poly, and its driver. The portion of the settlement at issue here is a separate written Settlement Agreement and Mutual Release among Poly, its driver, and Concentra.

During the settlement negotiations, Con-centra prepared each draft of the agreement. The initial draft was a unilateral release of Concentra and “[its] officers, parent and subsidiary corporations, agents, servants, employees and all other individuals and organizations connected therewith and the insurers, heirs, executors, administrators, successors and assigns of any of them.” Poly objected to the initial draft because it was not a mutual release.

Concentra then prepared a second draft with a mutual release, but without the broad language from the initial draft releasing Con-centra’s agents, servants, and employees. Poly responded by altering the language releasing its own related entities and employees, but Concentra again failed to add language releasing Concentra’s related entities and employees. It is undisputed that during negotiations, the parties did not discuss whether Concentra’s doctors were to be included in the release.

The final settlement agreement was reviewed and signed by both parties, and a stipulation for dismissal was filed with the court. Poly then sued the Concentra doctors in Texas, which unlike Colorado, had personal jurisdiction over them. In the Colorado action, Concentra moved to reform the agreement to include a release of its doctors. The court dismissed the Colorado action with prejudice and granted Concentra’s motion, reforming the settlement agreement to include the broad release language from the initial draft. Poly then filed this appeal.

Poly contends that the trial court erred in reforming the settlement agreement because there was no mutual mistake as to its terms and because, although there was a unilateral mistake by Concentra, Poly did not engage in fraud or inequitable conduct. We agree.

Reformation is an appropriate remedy when the evidence clearly and unequivocally shows that an instrument does not express the true intent or agreement of the parties. Boyles Bros. Drilling Co. v. Orion Indus., Ltd., 761 P.2d 278, 281 (Colo.App.1988). Reformation is generally permitted when either the parties made a mutual mistake or one party made a unilateral mistake and the other engaged in fraud or inequitable conduct. Boyles Bros. Drilling Co. v. Orion Indus., Ltd., supra. However, where a party’s unilateral mistake is the result not of fraud, but of its own failure to use due diligence in reading the contract before signing it, that party will be held to the terms of the contract. See Tayyara v. Stetson, 521 P.2d 185, 189 (Colo.App.1974)(not published pursuant to C.A.R. 35(f))(specific performance proper where unilateral error was result of party’s failure to use due diligence in reading the contract before signing it; trial court correctly refused to reform contract on this basis).

To find fraudulent concealment, the court must find that (1) the party concealed a material existing fact that in equity and good conscience should be disclosed; (2) the party knew it was concealing such a fact; (3) the other party was ignorant of the existence of the fact concealed; (4) the concealment was practiced with the intent that it be acted on; and (5) the concealment resulted in damage to the other party. See Ingels v. Ingels, 29 Colo.App. 585, 590, 487 P.2d 812, 815 (1971).

To succeed on a claim for fraudulent concealment or nondisclosure, a plaintiff must show that the defendant had a duty to disclose material information. A defendant has a duty to disclose to a plaintiff with whom it deals material facts that in equity or good conscience should be disclosed. Mallon Oil Co. v. Bowen/Edwards Assocs., Inc., 965 P.2d 105, 111 (Colo.1998).

The contested issue here is whether Poly failed to disclose a material existing fact that in equity or good conscience should have been disclosed. In determining whether the circumstances of a particular case give rise to a duty to disclose in equity or good conscience, Restatement (Second) of Torts § 551(2) (1977) gives some guidance. See Mallon Oil Co. v. Bowen/Edwards Assocs., Inc., supra.

Restatement (Second) of Torts § 551(2) provides:

One party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated,
(a) matters known to him that the other is entitled to know because of a fiduciary or other similar relation of trust and confidence between them; and
(b) matters known to him that he knows to be necessary to prevent his partial or ambiguous statement o'f the facts from being misleading; and
(c) subsequently acquired information that he knows will make untrue or misleading a previous representation that when made was true or believed to be so; and
(d) the falsity of a representation not made with the expectation that it would be acted upon, if he subsequently learns that the other is about to act in reliance upon it in a transaction with him; and
(e) facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts.

Whether a defendant had a duty to disclose a particular fact is a question of law, and we are not bound by the trial court’s determination concerning such a duty. See Berger v. Sec. Pac. Info. Sys., Inc., 795 P.2d 1380, 1383 (Colo.App.1990).

Initially, we agree with the trial court that there was no mutual mistake here because there was no evidence that Poly intended to release the doctors. However, we conclude that the trial court erred in finding a unilateral mistake by Concentra and fraud by Poly.

The trial court found that Poly did not intend to release the doctors, that Poly “did not disclose that intent,” and that Poly’s intent was a material fact which was purposefully and intentionally not disclosed to “create a false impression in the mind of Concentra that it was resolving all matters relating to the death of [the victim] entirely.” The court further found that Concen-tra relied “on its assumption that the non-disclosed fact did not exist ... that this was a release which would have settled everything relating to the ... incident including those matters involving its employees.” The court found that “[Concentra’s] reliance was justified and ... caused [it] damages.” The court also found that Poly “had an obligation which in equity and good conscience would have required that [it] disclose [its] intent to reserve the right to sue.”

We agree that the record supports a finding of a unilateral mistake by Concentra, in that Concentra intended to obtain a release of all of its employees, including the doctors, but mistakenly omitted language from the settlement agreement that would have accomplished this goal and never focused on that mistake until after the agreement had been executed. However, we conclude that the record does not support a finding that Poly failed to disclose a material existing fact that it had a duty, in equity and good conscience, to disclose.

Concentra argues that Poly’s intent to reserve the right to sue the doctors in Texas was a material fact subject to disclosure, whereas Poly argues that its intent in this regard constitutes privileged litigation strategy that it had no duty to disclose. Cf. Trimble v. City & County of Denver, 697 P.2d 716, 724-25 (Colo.1985)(intention not to abide by settlement agreement constituted a misrepresentation of fact constituting fraud). Arguably, the undisclosed fact was the failure of the contract language adequately to protect Concentra’s interests. However,, whether the material fact at issue is characterized as litigation strategy, an intent to reserve .the right to sue, or a contract omission, under the circumstances here, we conclude that Poly did not have a duty to disclose it.

None of the factual scenarios outlined in Restatement § 551(2) are present in the record here. Poly did not make any affirmative representations regarding its intent to sue the doctors. Poly made no statements that were false, or that became false, and there was no new information that would make a previous statement false. See Restatement (Second) of Torts § 551(2)(b)-(d) (requiring some affirmative representation creating an obligation to disclose further facts).

Moreover, contrary to Concentra’s argument, the written agreement was not ambiguous as to the parties’ intent to release the doctors, and Poly’s act of signing the agreement did not constitute an “ambiguous statement” under Restatement § 551(2)(b). The agreement specified that it was between Concentra and Poly and that it resolved matters relating to the lawsuit “as to them.” The employee doctors were not parties to the lawsuit and were not specified in the agreement as parties or as part of “Concentra.” Indeed, the parties agree that during the negotiations, no one raised or discussed the subject of suing the doctors.

In that regard, Coneentra’s reliance on Trimble, supra, is misplaced. Trimble was not a reformation case, and neither party there was mistaken as to the settlement agreement terms. And, unlike here, Trimble involved the defendant’s affirmative misrepresentation and admitted intention not to abide by the express terms of the settlement agreement.

Further, under the tests articulated in the Restatement, neither the circumstances nor the relationship between the parties created a duty to disclose by Poly. The parties were not in a fiduciary or trust relationship, nor was there any expectation that either party or its counsel would act to protect the other party’s interests. See Restatement (Second) of Torts § 551(2)(a), (e). Quite the contrary, the parties were in an adversarial relationship where each party was expected to act on behalf of itself only, and each counsel had a duty to his or her client to protect the client’s interests. See Ingels v. Ingels, supra (wife did not research existence of liens on property, and opposing counsel did not have responsibility to inform other party of material fact).

As was the case in Ingels, the parties here were dealing at arm’s length, and each was represénted by counsel. In such an adversarial relationship, concealment by mere silence is not enough to constitute fraud. There must be some trick or contrivance intended to exclude suspicion and prevent inquiry. See Ingels v. Ingels, supra, 29 Colo.App. at 591, 487 P.2d at 815.

Thus, under these circumstances, we conclude that the failure of Concentra to inspect the settlement agreement adequately before signing it, or to consider thoroughly whether the agreement completely protected its interests, cannot be imputed to Poly as fraudulent behavior. See Smith v. Whitlow, 129 Colo. 239, 268 P.2d 1031 (1954)(contract will not be reformed on ground of mistake at instance of the party who prepared it when it appears that alleged lack of knowledge was due to party’s failure to exercise reasonable diligence); Tayyara v. Stetson, supra; see also Brown v. County of Genesee, 872 F.2d 169 (6th Cir.1989)(where one party enters settlement agreement with incorrect facts, other party does not commit fraud by failing to alert party to mistake).

Brown v. County of Genesee, supra, is particularly informative. In Brown, an employee who had sued the County for discrimination signed a settlement agreement for reinstatement with a certain pay. The employee later discovered that other employees in her position were earning more pay than that to which she had agreed. ■ During negotiations, the County knew that the employee was not receiving the highest possible pay, and the County believed it probable that the employee thought that she was. However, the County did not inform the employee of this mistake. The court found no duty on the part of the County, stating “[A]bsent some misrepresentation or fraudulent conduct, the [County] had no duty to advise the [employee] of any such factual error.... The failure of [employee’s] counsel to inform himself of the highest pay rate available to his client cannot be imputed to the County as unethical or fraudulent conduct.” Brown v. County of Genesee, supra, 872 F.2d at 175.

Similarly, here, Concentra’s arguments to the contrary notwithstanding, even if Poly had been cognizant of Concentra’s intent to obtain a release of the doctors, it was for Concentra to protect its own interests. See Ingels v. Ingels, supra (knowledge by one party of liens on property did not give rise to responsibility to disclose that fact to other party).

Concentra relies on out-of-state cases for the proposition that inequitable conduct includes knowledge by one party of another’s mistake. However, those cases are all distinguishable because none arose in the context of a litigation settlement agreement, and some of the cases involved evidence of affirmative fraud or inequitable conduct beyond mere silence. See, e.g., Jones v. Reliable Security Incorporation, Inc., 29 Kan.App.2d 617, 28 P.3d 1051 (2001); Hennig v. Aheam, 230 Wis.2d 149, 601 N.W.2d 14 (App.1999).

In contrast, where, as here, an agreement is negotiated in the context of litigation settlement and the only alleged misconduct is silence, the lack of any duty of disclosure precludes a finding of inequitable conduct. The omission in the settlement agreement was caused by Concentra’s drafting mistake and its failure to consider the possibility that the doctors would be sued separately or to inquire of Poly regarding its intention to sue the doctors, not by any fraudulent or inequitable conduct on the part of Poly. See Ingels v. Ingels, supra; see also Brown v. County of Genesee, supra.

We have not found any reported Colorado case granting reformation of a contract based on a unilateral mistake, where the mistake was a drafting error made by the party later seeking reformation. Further, we have discovered no Colorado authority, nor have the parties cited any, that imposes a duty to disclose one’s litigation strategy in settlement discussions when none of the criteria set forth in Restatement § 551(2) is met.

We recognize, on the one hand, that there are policy considerations favoring settlements of disputes and encouraging candor and truthfulness in settlement negotiations. On the other hand, we also recognize the adversarial context of settlement negotiations and equally persuasive policy reasons for not requiring a broad duty of disclosure of litigation strategy during such negotiations. Accordingly, in reaching our conclusion that the trial court here erred in granting reformation, we do not announce a broad rule that a duty to disclose litigation strategy can never arise in the context of settlement negotiations. Rather, we conclude that where mere silence is involved, as opposed to some “trick or contrivance,” such a duty only arises where, unlike here, at least one of the criteria in Restatement § 551(2) is met.

The trial court’s order granting reformation of the settlement agreement is reversed.

Chief Judge DAVIDSON and Judge DAILEY concur.


author: Judge ROY.

text:
    Bruce A. DRACHMEISTER, Plaintiff-Appellant, v. Sheri A. BRASSART, Defendant, and Jefferson County Department of Human Services, Intervenor-Appellee.
    No. 03CA0277.
    Colorado Court of Appeals, Div. III.
    Jan. 29, 2004.
    Certiorari Denied June 21, 2004.

      Bruce A. Drachmeister, Pro Se.
    William A. Tuthill, III, County Attorney, John A. Thirkell, Assistant County Attorney, Ingrid H. Holmes, Assistant County Attorney, Kathleen Curley, Assistant County Attorney, Golden, Colorado, for Intervenor-Ap-pellee.
   Opinion by

Judge ROY.

Bruce A. Drachmeister (debtor) appeals a trial court order concluding that his personal injury award was subject to garnishment for child support arrearages. We affirm.

In May 1994, the court ordered debtor to begin paying child support. In 2002, a jury awarded debtor damages in a personal pinju-ry case. The Jefferson County Department of Social Services then filed and served two writs of garnishment for child support ar-rearages on debtor’s personal injury counsel, seeking the proceeds of the personal injury award. Debtor responded that the proceeds of his personal injury judgment were exempt under § 13-54-102(l)(n), C.R.S.2003. The trial court denied the claimed exemption under § 13-54-106, C.R.S.2003. This appeal followed.

I.

Debtor contends that the exemption granted in § 13 — 54—102(1)(n) protects the net proceeds of his personal injury judgment from garnishment for his child support obligation. We disagree.

Section 13 — 54—102(l)(n) states that the property “exempt from levy and sale under writ of attachment or writ of execution” includes “[t]he proceeds of any claim for damages for personal injuries suffered by any debtor except for obligations incurred for treatment of any kind for such injuries or collection of such damages.”

But § 13-54-106 limits the application of such an exemption: “The exemptions provided by this article [54] shall extend and apply to writs of ... garnishment ... except those writs which are the result of a judgment taken for arrearages for child support or for child support debt which are subject to the exemptions set forth in section 13-54-104(3) [C.R.S.2003].”

The interpretation of a statute is a question of law, which we review de novo. Ryals v. St. Mary-Corwin Reg’l Med. Ctr., 10 P.3d 654 (Colo.2000).

To give effect to Colo. Const, art. XVIII, § 1, exemption statutes in general have been liberally construed to achieve their purposes. In re Marriage of Gedgaudas, 978 P.2d 677 (Colo.App.1999).

However, if the language of a statute is plain and the meaning is clear, we need not resort to interpretive rules of statutory construction; rather, we simply apply the statute as written. Town of Superior v. Midcities Co., 933 P.2d 596 (Colo.1997). Therefore, if we can give effect to the ordinary meaning of the words adopted by the legislature, the statute should be construed as written, because it may be presumed that the legislature meant what it clearly said. Spracklin v. Indus. Claim Appeals Office, 66 P.3d 176 (Colo.App.2002).

Section 13-54-106 is unambiguous, and the legislative intent is evident from its plain wording. Title 13, article 54 exempts certain property and earnings from garnishment, including personal injury awards under § 13-54-102(l)(n). However, the plain language of § 13-54-106 clearly permits the garnishment of otherwise exempt property or income for collection of child support arrearag-es.

Further, the last clause of § 13-54-106 provides that child support arrearages are subject to the exemptions from garnishment in § 13-54-104(3). Section 13-54-104(3) does not provide an exemption for personal injury awards, but rather increases the amount of disposable earnings subject to garnishment for child support arrearages.

The plain language of § 13-54-106 excludes child support arrearages from article 54 exemptions. The General Assembly has decided that the payment of child support takes precedence over the protection of the debtor’s assets or income. This precedence extends to assets debtor contends are necessary to fund his treatment and rehabilitation.

Thus, based on the plain language of § 13-54-106, we conclude that the General Assembly did not intend to limit the personal injury award assets subject to garnishment for child support arrearages.

II.

Debtor also contends that § 13-54-106 is unconstitutional under Colo. Const. art. XVIII, § 1, which states: “The general assembly shall pass liberal homestead and exemption laws.” See also In re Marriage of Gedgaudas, supra. We decline to address this contention.

Here, debtor did not raise this issue in the trial court; therefore, we need not consider it on appeal. See People v. Lesney, 855 P.2d 1364 (Colo.1993); People v. Goldman, 923 P.2d 374 (Colo.App.1996).

Further, debtor posits no argument and cites no authority to support his appellate contention. See C.A.R. 28; Mitchell v. Ryder, 20 P.3d 1229 (Colo.App.2000), rev’d on other grounds, 54 P.3d 885 (Colo.2002); see also Yadon v. Southward, 64 P.3d 909 (Colo.App.2002)(pro se litigants must adhere to rules of procedure applicable to attorneys). Accordingly, we will not address this contention on the merits.

Accordingly, the order is affirmed.

Judge KAPELKE and Judge CARPARE LLI concur.