author: Judge CASEBOLT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Phillip Leon HALL, Defendant-Appellant.
    Nos. 02CA1128, 02CA1747.
    Colorado Court of Appeals, Div. V.
    Nov. 6, 2003.
    Certiorari Denied March 22, 2004.

      Ken Salazar, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Jennifer M. Smith, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Phillip Leon Hall, Pro Se.
   Opinion by

Judge CASEBOLT.

In this consolidated appeal, defendant, Phillip Leon Hall, appeals the orders denying his Crim. P. 85(a) and (c) motions for post-conviction relief. We affirm and remand the case for correction of the mittimuses.

In 1996, defendant was charged in case number 96CR2195 (sex assault case) for sexually assaulting his then eight-year-old daughter. Defendant was released on bond for these charges on January 29, 1997. While on bond, defendant was charged in case number 97CR965 (robbery case) with aggravated robbery, crime of violence, and two counts of theft for an offense occurring on February 5, 1997.

Pursuant to a plea agreement, defendant pleaded guilty in the sex assault case to one count of sexual assault on a child, a class four felony, and in the robbery case to one count of conspiracy to commit robbery, a class five felony. He also pleaded guilty in another case to an unrelated misdemeanor count. In exchange for his pleas, all other counts in these cases and in two other pending cases were dismissed.

The plea agreement provided that sentencing would be open to the court. In the sex assault case, the trial court sentenced defendant to eight years in the custody of the Department of Corrections (DOC), plus any term of parole authorized by § 17-22.5-303, C.R.S.2003. In the robbery case, the court sentenced him to six years in the custody of the DOC, to be served consecutively to the eight-year sentence and the misdemeanor sentence, plus any term of parole authorized by § 17-22.5-808.

In December 2001, defendant filed the same pro se Crim. P. 85(a) and (c) motion in both cases. Relying on Apprendi v. New Jersey, 580 U.S. 466, 120 S.Ct. 2848, 147 L.Ed.2d 485 (2000), defendant contended that both of his sentences had been illegally aggravated. He also argued that he was not advised properly regarding the mandatory parole term required by § 18-1.3-401(1)(a)(V)(A), C.R.98.2003, when he entered his guilty pleas. He asked that his sentences be reduced to nine years with five years of mandatory parole to be served thereafter. The trial court denied the motion by separate written orders in each case and this appeal followed.

I.

Defendant contends that his sentence in the sexual assault case is illegal. We disagree.

A class four felony, to which defendant pleaded guilty, carries a two- to six-year presumptive range sentence. Section 18-1.3-401(1)(a(V)(A). Section 18-1.3-401(10)(a), (b)(IV), C.R.S.2008, provides that sexual assault on a child is an extraordinary risk of harm crime, and that statute adds two years to the maximum in the presumptive range. Thus, the presumptive range of sentences upon conviction for sexual assault on a child is two to eight years in the custody of the DOC. Accordingly, defendant's eight-year sentence was within the presumptive range. His sentence, therefore, is not illegal or unconstitutional. See Martinez v. People, 69 P.3d 1029, 1031 (Colo.2008)({it is the prerogative of the legislature to define crimes and prescribe punishments).

We agree with defendant that, because this crime was committed before July 1, 1996, he is not required to serve mandatory parole on this sentence, but instead is subject to discretionary parole as provided in § 17-2-201(5)(a), C.R.S.2008. See Martin v. People, 27 P.3d 846, 848 (Colo.2001)(person convicted of a sexual offense committed before July 1, 1996, is subject to a period of discretionary parole no longer than the remainder of the maximum sentence of incarceration imposed by the court or five years, whichever period is shorter).

IL.

Defendant contends $ 18-1.3-401(10) is unconstitutional under Apprendi v. New Jersey, supra. We disagree.

Defendant's convictions were final in September 1997. In People v. Bradbury, 68 P.3d 494 (Colo.App.2002), a division of this court concluded that Apprendi does not apply retroactively to convictions, such as defendant's, that were final when that decision was announced.

We agree with the reasoning of the Bradbury division and conclude that it is disposi-tive here. Further, to the extent defendant relies on Ring v. Arizona, 586 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), in support of his argument, Bradbury is dispositive of these claims as well.

IIL.

Defendant contends that his aggravated range sentence in the robbery case also is illegal. We disagree, although we base our conclusion on grounds different from those relied on by the trial court. See People v. Quintana, 882 P.2d 1366, 1371 (Colo.1994)(judgment of the trial court may be defended on appeal on any ground supported by the record, regardless of whether the court relied on that ground).

A.

To the extent defendant argues that his sentence is illegal under Apprendi v. New Jersey, supra, we reject the contention for the same reasons outlined above. Moreover, while defendant is correct in noting that several Colorado death sentences have been vacated based on the decision in Ring, that fact alone does not amount to a judicial determination that either Apprendi or Ring should be applied retroactively. See Woldt v. People, 64 P.3d 256, 266 (holding that, because Ring mandates that fact finding for death penalty eligibility belongs solely to the jury, Colorado's three-judge death sentencing provision was facially unconstitutional); see also Ring v. Arizona, supra (O'Connor, J., dissenting).

B.

Defendant also argues he was not exposed to an aggravated range sentence in the original charging document. To the extent defendant asserts that Apprendi, Ring, and Harris apply, we reject the claim for the same reasons noted above. See People v. Bradbury, supra.

Moreover, a defendant is always exposed to an aggravated range sentence by the charging document. See People v. Allen, 43 P.3d 689, 692 (Colo.App.2001)(under Colorado's sentencing statutes, upon conviction by a jury, a defendant is exposed to a discretionary aggravated range sentence); People v. Salinas, 55 P.3d 268, 271 (Colo. of the Allen decision applies with equal foree where the defendant pleads guilty); see also People v. Gardner, 55 P.3d 231 (Colo.App.2002)(sentencing statute that increased the minimum sentence for retaliation against a witness to a point within the original presumptive range based on trial court's finding that defendant was on probation for felony did not violate Apprendi).

C.

Defendant also argues that he was illegally sentenced under § 18-1.3-401(9)(a), C.R.S.2003. We disagree.

The version of § 18-1.3-401(9)(a) in effect at the time defendant committed the crime in the robbery case required a sentence to a term of at least the minimum in the presumptive range for the class of felony, but not more than twice the maximum in that range, if the defendant was on bond for a previous felony at the time of the commission of the felony, for which previous felony the defendant was subsequently convicted. See Colo. Sess. Laws 1990, ch. 120, § 18-1-105(9.5)(a) at 955.

Defendant appears to argue that, because he was convicted and sentenced for the "previous felony" in the sexual assault case at the same time he was convicted and sentenced for the robbery, which was committed while he was on bond, he had not yet been convict, ed of the "previous felony," and § 181.3 401(9)(a) is inapplicable.

Defendant's reading of the statute is incorrect. The record discloses that defendant was, in fact, on bond for the sexual assault when he committed the robbery offense. The mere fact that both convictions entered at the same time has no effect on the applicability of the statute because defendant was convicted of the previous sexual assault offense subsequent to his commission of the robbery offense.

Moreover, in imposing the maximum aggravated range sentence for the class five felony robbery offense, the court stated on the record as extraordinary cireumstances that the offense was "extremely serious," it involved threats of violence and the threatened use of a weapon, and the intimidation and fear inflicted upon the victim were enormous. These findings are sufficient to authorize the aggravated range sentence. See People v. Blackmon, 20 P.3d 1215, 1222 (Colo.App.2000)(trial court must make specific findings of aggravating cireumstances when any of the sentence-enhancing factors contained in § 18-1.3-401(9) are present).

Accordingly, we conclude that defendant's six-year DOC sentence in the robbery case was legal.

IV.

Defendant contends that he has been illegally sentenced under two parole schemes: discretionary parole for the sex offense and mandatory parole for the robbery offense. Specifically, he argues that he is not required to serve the two-year term of mandatory parole on his robbery conviction because, under the governing sentence rule, discretionary parole must be applied to his entire DOC term. We do not agree.

Initially, we reject the People's contention that, because defendant did not make this precise argument in his Crim. P. 35 motion in the trial court, we should decline to consider it here. We read defendant's argument as a challenge to the legality of serving both discretionary and mandatory parole. Thus, we will address the claim. See Duran v. Price, 868 P.2d 375, 878 (Colo.1994)(electing to retain jurisdiction of defendant's parole claim in the interests of judicial economy). However, because defendant does not pursue on appeal his argument that he was not properly advised regarding the mandatory parole period, we deem that argument abandoned. See Buckhannon v. U.S. W. Communications, Inc., 928 P.2d 1331, 1834 (Colo.App.1996).

Defendant cites Badger v. Suthers, 985 P.2d 1042 (Colo.1999), in support of his argument. However, in Badger, the supreme court determined the defendant's parole eligibility date under the parole system as it existed before 19983. In 1998, the sentencing provisions were changed to provide for a term of mandatory parole to be served after a defendant has completed his or her term in the DOC. See Badger v. Suthers, supra, 985 P.2d at 1043 n. 1 (distinguishing between old concept of mandatory parole, which required release of an offender or placement on parole, and the new concept of a mandatory period of parole that an offender must serve following discharge from imprisonment; noting that the case dealt with the former and not the latter). Hence, Badger is inapposite.

Moreover, the "governing sentence" rule is only applicable where multiple sentences have been imposed to run concurrently and conflicting parole provisions apply. See Spoto v. Colo. State Dep't of Corr., 883 P.2d 11 (Colo.1994). Here, defendant has received consecutive sentences. And when consecutive sentences are imposed, there is no need for one particular sentence to predominate. See Spoto v. Colo. State Dep't of Corr., supra.

With a mandatory parole period, an offender does not begin serving the period of parole until his or her prison sentence has been fully served, or the parole board determines that he or she is ready for parole. Section 17-22.5-403(7)(a), C.R.S.2003. The mandatory parole statutes do not permit waiver or suspension of any portion of the mandatory period of parole. Instead, the parole board is vested with the exclusive authority to release an offender from his or her designated parole period after determining that the offender has been sufficiently rehabilitated and can no longer benefit from parole supervision. Section 18-1.3-401(1)(a)(V)(A)-(B), C.R.S.2003; see People v. Luther, 58 P.3d 1013 (Colo.2002). Once an offender is released to parole supervision under the mandatory parole scheme, he or she is deemed to have discharged the sentence to imprisonment. Section 18-1.3-401(1)(a)(V)(D), C.R.8.2003. If the offender violates the conditions of mandatory parole, he or she may be returned to confinement as a penalty for that violation. Section 17-2-103(11)(b)(I), C.R.S.2003. The new period of confinement is limited only by the board's statutory authority and is not related to the offender's original sentence to incarceration. See Martin v.

Under discretionary parole, an offender may be released at the discretion of the parole board for the remainder of any un-served portion of his or her prison sentence. Section 17-2-201(5)(a). Thus, the imprisonment and discretionary parole cannot be longer than the trial court's original sentence. If the offender violates the terms of discretionary parole, he or she may be required to serve the remainder of the sentence in prison. See Martin v. People, supra.

Thus, while an offender subject to discretionary parole will never be confined for a period greater than the original sentence imposed, an offender subject to mandatory parole faces a sentence to prison, a period of parole, and possibly another period of confinement not necessarily limited to the original term of incarceration imposed. See People v. Luther, supra; Martin v. People, supra.

Here, we see no impediment to allowing both parole schemes to apply to defendant's consecutive sentences. However, because mandatory parole cannot be waived or altered, when defendant is released to parole, he will be required to serve two years of mandatory parole. Whether discretionary parole will also apply will depend upon whether there is any portion of his sentence to incarceration remaining when he is paroled.

Finally, to the extent defendant argues that § 18-1.3-401(I)(a)(V)(E), C.R.8.2003, dictates that discretionary parole should govern his sentence because the higher class of felony is the class four sex offense carrying discretionary parole, we reject the argument. That statute is directed to consecutive sentences that both carry a mandatory parole term and is therefore inapplicable in defendant's case.

In light of the conclusions reached in this opinion, we find no error in the trial court's determination not to appoint counsel or hold a hearing on defendant's motions. Also in light of this disposition, we need not address the other arguments raised by the parties.

To clarify any confusion regarding defendant's existing mittimuses, on remand the trial court shall correct the mittimus in the sexual assault case to reflect that defendant is required to serve discretionary parole on the class four felony sex offense. The mittimus in the robbery case shall be corrected to reflect that defendant is required to serve two years of mandatory parole under § 18-1.3-401(1)(a)(V)(A).

The orders are affirmed, and the case is remanded for correction of the mittimuses.

Judge ROY and Judge PICCONE concur.


source: Caselaw Access Project

author: Judge CARPARELLL. Judge TAUBMAN

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert M. BOVARD, Defendant-Appellant.
    No. 02CA0974.
    Colorado Court of Appeals, Div. III.
    Nov. 20, 2003.
    Certiorari Granted March 22, 2004.
    Thomas R. Raynes, District Attorney, Geoffrey R. Nims, Deputy District Attorney, Gunnison, Colorado, for Plaintiff-Appellee.
    Springer and Steinberg, P.C., Harvey A. Steinberg, Stacey L. Ross, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge CARPARELLL.

Defendant, Robert M. Bovard, appeals the judgment of conviction entered on a jury verdict finding him guilty of driving under the influence of alcohol. We dismiss defendant's appeal for lack of subject matter jurisdiction.

Defendant was charged in county court with three traffic violations, including one count of driving under the influence of alcohol. The county court denied defendant's motion to suppress the results of his roadside sobriety tests, the breath test, and the officer's observations of defendant's physical characteristics. However, it suppressed statements defendant made at the seene.

The case was tried to a county court jury, and defendant was convicted of driving under the influence. The court and parties later determined that the tape-recorded record of the suppression hearing had been lost.

Defendant then appealed his conviction to the district court and challenged both the county court's denial of the motion to suppress and its refusal to conduct a new hearing on that motion to establish a record for appeal.

About three months after defendant filed his notice of appeal with the district court, he filed an unopposed motion for trial de novo, pursuant to Crim. P. 37(g), on the ground that the district court did not have an adequate record to review the issues on appeal. The district court granted defendant's motion.

After a trial, the district court jury found defendant guilty of driving under the influence of alcohol.

L.

Defendant argues that this court has jurisdiction to consider his appeal of the district court judgment because doing so will preserve his due process right of automatic review under § 16-12-1011, C.R.S.2003. We disagree.

The United States and Colorado Constitutions both prohibit the state from depriving any person of life, liberty, or property without due process of law. Consequently, the supreme court has held that appeals in criminal cases are a matter of right. See In re Griffin, 152 Colo. 347, 382 P.2d 202 (1963); In re Patterson, 186 Colo. 401, 317 P.2d 1041 (1957).

Section 16-12-101 provides: "Every person convicted of an offense under the statutes of this state has the right of appeal to review the proceedings resulting in conviction. The procedures to be followed in any such appeal shall be as provided by applicable rule of the supreme court of Colorado."

The applicable rule of the supreme court, Crim. P. 37(a), grants every defendant convicted in a county court the right to appeal the conviction to the district court of the county. Similarly, in § 13-6-810(1), C.R.S. 2003, the General Assembly has provided that appeals from final judgments of the county courts must be taken to the district court of the county.

With regard to the nature of the appeal, the supreme court has provided that, "[f for any reason an adequate record cannot be certified to the district court the case shall be tried de novo in that court." Crim. P. 37(g). Similarly, although § 13-6-810(2), CRS. 2003, grants the district court authority to review the county court judgment on the record, it also grants the district court discretion to try the case de novo.

Section 13-6-310(4), C.R.S.2003, states that, in county court cases that have been appealed to the district court, a defendant may further appeal a "determination of the district court ... only upon a writ of certio-rari issued in the discretion of the supreme court." Crim. P. 37(h), which addresses enforcement of judgments in such cases, is consistent with the statute. Although the rule provides that, when the district court disposes of am appeal from the county court after trying the case de novo, the judgment on appeal is enforceable as that of the district court, it also recognizes that the judgment cannot be immediately enforced when there is "further review by the Supreme Court upon writ of certiorari."

Certiorari review by the supreme court constitutes an "appellate review." City of Wheat Ridge v. Cerveny, 913 P.2d 1110 (Colo.1996); People ex rel. Umion Trust Co. v. Superior Court, 175 Colo. 391, 488 P.2d 66 (1971); Bill Dreiling Motor Co. v. Court of Appeals, 171 Colo. 448, 468 P.2d 87 (1970).

Here, defendant does not contend that he was denied due process in the county court trial. After he was convicted there, he exercised his right under Crim. P. 37(a) and § 13-6-310(1) to appeal his conviction to the district court. In the district court, he challenged the county court denial of his motion to suppress and his motion for a new suppression hearing to reconstruct the record on that issue. Thus, defendant, in fact, "appealed from the county court to the district court, as provided in section 13-6-310." Section 13-4-102(1)(f), C.R.S.2003 (excluding appeals of district court final judgments in such cases from jurisdiction of Court of Appeals).

At that time, he had the right to seek district court review of those rulings and to request that the district court remand the case to the county court for either reconstruction of the record or a new trial. Instead, defendant asked the district court to try the case de novo. Thus, defendant elected trial de novo as his appellate procedure.

In addition, after entry of the district court judgment, defendant had the right to seek additional appellate review by the supreme court as provided in Crim. P. 37(h) and § 13-6-310(4).

For these reasons, we conclude that defendant has not been deprived of due process or of his right of appeal.

IL.

Defendant also argues that this court has jurisdiction over appeals from final judgments of the district courts pursuant to § 13-4-102(1), C.R.98.2003, and that the exception stated in § 13-4-102(1)(f) does not apply here because he is appealing a final district court judgment and not a county court decision. Again, we disagree.

"This court has no authority to enlarge upon the jurisdiction that has been granted to it by statute." People in Interest of D.B., 855 P.2d 27, 28 (Colo.App.1993); see also Bill Dreiling Motor Co. v. Court of Appeals, supra; Joel L. Schaffer, P.C. v. Christopher M. Sullivan, P.C., 844 P.2d 1327 (Colo.App.1992); People v. Meyers, 43 Colo.App. 63, 598 P.2d 526 (1979).

The grant of jurisdiction to this court in § 13-4-102 is consistent with the rules and statutes already discussed. Although § 13-4-102 grants this court initial jurisdiction over appeals from most final judgments of the district courts, it excludes "(clases appealed from the county court to the district court, as provided in section 13-6-810." Section 13-4-102(1)(f); see also People v. Meyers, supra.

In People v. Smith, 874 P.2d 452, 453 (Colo.App.1993), a division of this court noted:

In the case of each of [the five exceptions listed in § 13-4-102(1)(b) through (£,] a final judgment has been entered by the district court. However, because of the subject matter of the case, the General Assembly has determined that any appeal should go to our supreme court rather than being entertained by this court.

Although this court has initial jurisdiction over most appeals from final judgments of the district courts, it does not have such jurisdiction here because this case was appealed from the county court to the district court under § 18-6-310. See § 13-4-102(1)@).

Thus, we conclude that this court does not have jurisdiction over appeals in cases in which the defendant appeals from the county court to the district court and the district court enters final judgment after a trial de novo. See People v. Smith, supra; People v. Meyers, supra.

The appeal is dismissed.

Judge NIETO concurs.

Judge TAUBMAN dissents.

Judge TAUBMAN

dissenting.

Because I conclude that we have jurisdiction to hear this appeal, I respectfully dissent.

To determine whether we have jurisdiction here, we must interpret two principal statutes: § 13-4-102(1), C.R.S.2003, which concerns the jurisdiction of the court of appeals, and § 13-6-310(2), C.R.S.2003, which concerns appeals from county court.

Section 13-4-102(1) provides that, with certain exceptions, the court of appeals has jurisdiction over appeals "from final judgments of the district courts." One such exception is "[eclases appealed from the county court to the district court, as provided in section 13-6-310." Section 13-4-102(1)(f), C.R.S.2003. Section 13-6-310 generally provides that appeals from final judgments of county courts shall be taken to the district court and that such appeals shall be based upon the record made in the county court. Section 13-6-310(2) then provides:

The district court shall review the case on the record on appeal and affirm, reverse, remand, or modify the judgment; except that the district court, in its discretion, may remand the case for a new trial with such instructions as it may deem nee-essary, or it may direct that the case be tried de novo before the district court.

Relying on the language in § 13-4-102(1) that the court of appeals does not have jurisdiction in cases appealed from the county court to the district court, the majority concludes that we therefore do not have jurisdiction here. In my view, however, the majority overlooks the phrase in that statute, "as provided in § 13-6-310." That phrase limits the exception so that not every case appealed from county court to district court is precluded from appellate review by the court of appeals.

Section 18-6-810 provides three alternatives to a district court when a case is appealed from a county court, only one of which is truly an appeal, that is, when the district court reviews the county court's proceedings on the record and determines to affirm, reverse, remand, or modify the judgment. Section 18-16-8310 also provides that the district court, in its discretion, may remand the case for a new trial or conduct a new trial itself in the district court.

Commenting on the statutory predecessor to § 13-6-310, the supreme court stated, "The statute provides a procedure whereby the district court can act as a trial court rather than as a court of review, if it adopts the third alternative." People v. Williams, 172 Colo. 434, 438, 473 P.2d 982, 984 (1970). The supreme court also stated that a trial de novo in a court of general jurisdiction, in the absence of statutory language restricting its scope, means a trial in the commonly accepted sense of that term. Thus, it seems clear that a trial de novo under § 13-6-310 is not an appeal. See Black's Law Dictionary 94 (7th ed.1999)(appeal is defined as "a proceeding undertaken to have a decision reconsidered by bringing it to a higher authority; esp[ecially], the submission of a lower court's or agency's decision to a higher court for review and possible reversal"). See generalty Water, Waste & Land, Inc. v. Lanham, 955 P.2d 997 (Colo.1998)(when the district court exercises its authority to decide the case based on the record developed below, as opposed to a trial de novo, it acts as a reviewing court and must accept the facts as found by the county court, and its review is limited to the sufficiency of the evidence); People v. Anderson, 177 Colo. 84, 492 P.2d 844 (1972).

Thus, in my view, when $ 13-4-102(1) excludes from the jurisdiction of the court of appeals cases appealed from the county court to the district court as provided in § 13-6-310, the exclusion applies only to those cases in which the district court acts as a court of review or an appellate court. To interpret the statute otherwise would torture the meaning of "appeal" to include a trial de novo.

My conclusion is further supported by reference to Crim. P. 37(h) and § 16-12-101, C.R.S.2003.

Crim. P. 37(b) provides in pertinent part:

Unless there is further review by the Supreme Court upon writ of certiorari pursuant to the rules of such court, after final disposition of the appeal the judgment on appeal entered by the district court shall be certified to the county court for action as directed by the district court, except in cases tried de novo by the district court . and in such cases, the judgment on appeal shall be that of the district court and so enforceable.

In my view, this means that when a case is appealed from county court to district court, and there is a trial de novo in the district court, "the judgment on appeal shall be that of the district court and so enforceable." It follows that if, after a trial de novo, the judgment is that of the district court, that judgment should be appealable under the same procedure for appeals from other district court judgments. Further, § 16-12-101 provides that every person convicted of a erime under Colorado law has the right of appeal to "review the proceedings resulting in conviction" {emphasis added). When a district court conducts a trial de novo, however, it does not "review the proceedings resulting in conviction." See People v. Hampton, $76 P.2d 12836, 1241 (Colo.1994)("a convicted defendant has the right to appeal his conviction" under § 16-12-101); People v. Davis, 759 P.2d 742, 746 (Colo.App.1988)("[als a matter of right, every person convicted of a crime is entitled to one appeal"). Here, under the majority's decision, defendant's conviction will not be reviewed on the merits by the court of appeals, as contemplated by § 16-12-101, and his chances for review on the merits are limited if he files a petition for certiorari with the supreme court.

Accordingly, I1 would conclude that this court has subject matter jurisdiction pursuant to $ 18-4-102(1) to consider defendant's appeal because it is from a final judgment of the district court entered after a trial de novo in that court. Further, I would address defendant's appeal on the merits.


author: Judge LOEB.

text:
    In re the MARRIAGE OF Tondeleyo L. DALE, Appellant, and Christopher T. Major, Appellee.
    No. 02CA1523.
    Colorado Court of Appeals, Div. I.
    Nov. 20, 2003.
    As Modified Feb. 5, 2004.
    Rehearing Denied Feb. 5, 2004.

      Maguire & Rabun, LLC, Bruce H. Rabun, Greenwood Village, Colorado, for Appellant.
    Stevens, Littman, Biddison, Tharp & Weinberg, LLC, Craig Weinberg, Boulder, Colorado, for Appellee.

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

   Opinion by

Judge LOEB.

In this dissolution of marriage proceeding, Tondeleyo L. Dale (wife) appeals from the division of property set forth in the trial court's permanent orders. We affirm.

Wife married Christopher T. Major (husband) in 1997, and the decree dissolving their marriage was entered by the trial court in March 2002. The marriage was the second for both, no children were born to the parties, and both parties waived maintenance. Therefore, only property division issues are raised in this appeal.

In reviewing a trial court's division of property, we recognize that the trial court has great latitude to effect an equitable distribution based on the facts and cireum-stances of each case. Thus, on review, an appellate court must not disturb a trial court's decision regarding division of property unless there has been a clear abuse of discretion. In re Marriage of Balanson, 25 P.3d 28, 85 (Colo.2001).

L.

Wife asserts that the trial court exceeded its authority by addressing her interests in various family trusts because, under § 14-10-118(7)(b), C.R.S.2008, those interests could not be considered either as property or an economic cireumstance for purposes of the property division. We conclude that the trial court properly addressed wife's vested interest in her grandfather's irrevocable trust, and we need not consider her interest in her parents' revocable trusts.

A.

Remainder interests in irrevocable trusts have been deemed property for purposes of the disposition of property in a dissolution action. Such interests may present only a right to future enjoyment and are subject to complete divestment or defea-sance, but they are certain, fixed interests subject only to the condition of survivorship and may not be withheld by the trustee in his or her discretion. Thus, they are distinct from interests in a discretionary or revocable trust, which are viewed as mere expectancies. In re Marriage of Balanson, supra, 25 P.3d at 41.

A division of this court in In re Marriage of Gorman, 36 P.3d 211 (Colo.App.2001), also determined that a remainder interest in a revocable trust constituted property. The division reasoned that such an interest is vested subject to a condition subsequent. Common conditions triggering divestment include the death of the remainderman during the life of the present beneficiary, the exercise of a power to revoke, or the invasion and depletion of the corpus. The division recognized that if a condition subsequent does not occur, the remainderman's interest will remain vested, thereby establishing that it is a present property interest.

Following the Gorman decision, the General Assembly enacted § 14-10-113(7)(b), which provides:

For purposes of subsections (1) to (4) of this section only, "property" and "an asset of a spouse" shall not include any interest a party may have as am heir at law of a living person or any interest under any donative third party instrument which is amendable or revocable, including but not limited to third-party wills, revocable trusts, life insurance, and retirement benefit instruments, nor shall any such interests be considered as an economic circumstance or other factor.

(Emphasis supplied.)

B.

Wife argues that her interest in the irrevocable trust falls within the exception to property ereated under § 14-10-113(7)(b) through the phrase, "any interest a party may have as an heir at law of a living person." We do not agree with her interpretation.

The parties stipulated to the following facts related to the irrevocable trust. Wife's grandfather, who died in 1947, created the trust in his will. In 1950, the trust was funded with a distribution of $616,031 from the grandfather's estate. Upon the death of wife's grandmother in 1959, the trust received an addition of $527,572.37 from her estate. No further principal was added to the trust.

In 1953, wife's father, the named trust beneficiary, became eligible to receive a distribution of one-half of the original principal. He exercised that right in 1968, when he took a distribution of $308,015.50. Since that time, wife's father has taken no further distributions from principal, but income has been distributed to him on a quarterly basis in accordance with the terms of the trust.

Pursuant to the terms of the irrevocable trust, the Wife's father appointed fifty percent of the trust to wife's mother for her lifetime. The other fifty percent will be distributed to wife and her three siblings upon their father's death. The remainder will then be distributed similarly following the death of wife's mother.

At the time of the permanent orders hearing, wife's father was eighty-three years old. The trust was worth $4,683,434 at the date of the marriage and $6,647,781 on the date of the permanent orders hearing.

Wife maintains that she holds her remainder interest in the trust as an "heir at law" of her father. She relies upon case law that defines that term as a "lineal descendant" and notes that she has acquired her remainder trust interest as a result of being the child and, therefore, the lineal descendant of her father, the life estate beneficiary. She further argues that she was not born when her grandfather's trust was created and that she became a member of the remainder class upon her birth. Accordingly, she urges that the phrase encompasses the remainder interest of any child of a life estate beneficiary because a person in that class only possesses the interest as a result of being a lineal descendant of a living person. We are not persuaded.

In any statutory interpretation, our task is to determine and give effect to the intent of the General Assembly. Welby Gardens v. Adams County Bd. of Equalization, 71 P.3d 992, 995 (Colo.2003). To determine intent, a court should look first to the language employed in the statute. If the words used are plain and unambiguous, our task is accomplished by giving effect to the commonly accepted meaning of those words. Apple hans v. Farmers Ins. Exch., 68 P.3d 594, 597 (Colo.App.2003).

When a statute is amended, an intent to change the law is generally presumed. People in Interest of A.H., 74 P.3d 494, 495 (Colo.App.2003).

Black's Low Dictionary T727(rey. Tth ed.1999) defines the term "heir" as follows: "a person who, under the laws of intestacy, is entitled to receive an intestate decedent's property, especially real property. Also termed 'heir at law.' "

Webster's Third New International Dictionary 1050(rev. ed.1986) defines "heir at law" as: "an heir in whom by operation of the law of intestate succession the habitable estate and part or all of the movables of a decedent are vested."

These definitions reveal that the term "heir at law" pertains to any interest or resource a spouse may expect to inherit from his or her parent were the parent to die intestate. As a practical consequence of that language, the trial court may not consider any such prospective inheritance as either a property interest or as an economic cireum-stance. By including the phrase "heir at law," the statute thus treats intestate expectancies consistently with interests under a donative third-party instrument that can be revoked or changed. Here, in contrast, wife holds her remainder interest not as an heir at law under the laws of intestacy, but as a vested beneficiary of an irrevocable trust.

Howlett v. Greenberg, 34 Colo.App. 356, 530 P.2d 1285 (1974), relied on by wife, does not support her position. Under that case, heirs at law pursuant to the laws of intestacy are construed to mean lineal descendants of the decedent for purposes of determining who has a proprietary interest in a Colorado wrongful death judgment. See also, Whiten-hill v. Kaiser Permanente, 940 P.2d 1129, 1131 (Colo.App.1997)

Because we have concluded that the plain language of the statute is clear, we need not consider other interpretive aids. Nevertheless, because of the extensive legislative discussion surrounding the passage of § 14-10-113(7)(b), we explore the legislative history and conclude that our plain language interpretation is consistent with the legislative intent. See Welby Gardens v. Adams County Bd. of Equalization, supra, 71 P.3d at 995.

The legislative history shows that $ 14-10-113(7)(b) was adopted to overturn the holding in In re Marriage of Gorman, supra, that a vested remainder interest in a revocable or modifiable trust is a property interest subject to division. Speakers on behalf of the bill specifically referenced the Gorman decision and explained that subsection (7)(b) was drafted as a noncompromise measure to accomplish a complete reversal of that holding. The speakers also clearly advised that the statutory change did not address the holding in In re Marriage of Balanson, supra, and was not intended to change the classification of remainder interests in irrevocable trusts as property subject to division. Particularly, one speaker commented that the "heir at law" phrase "applied to anything a parent might leave a child even without a will." Hearings on S.B. 02-160 before the Senate Judiciary Committee and the House Judiciary Committee, 63rd General Assembly, Second Regular Session (Jan. 9, 2002).

Thus, the legislative history confirms that the General Assembly relied upon the plain meaning of "heir at law." Additionally, it reveals that the statute applies only to remainder interests in trusts that are revocable or amendable, and not to remainder interests in irrevocable trusts. See In re Marriage of Davisson, 797 P.2d 809 (Colo.App.1990)(determining legislative intent based upon ordinary meaning of statutory language and legislative history). Consequently, we conclude that the statutory change effected by § 14-10-113(7)(b) did not apply to wife's vested remainder interest in her grandfather's irrevocable trust. Thus, the trial court properly considered that interest.

C.

Our prior analysis establishes that, pursuant to § 14-10-113(7)(b), wife's remainder interests in her parents' revocable trusts are not property interests to be considered by the court.

However, husband contends that any issue with respect to the revocable trusts is moot because the trusts have been revoked, although that fact does not appear in the record on appeal. At oral argument, wife conceded that the trusts have, in fact, been revoked. We accept the parties' representations and agree that any issue related to those trusts is moot.

Further, it is clear from the trial court's order that the property division here was made without any consideration of the revocable trusts. Thus,.we decline to address the applicability of $ 14-10-113(7)(b) to the parents' revocable trusts, as no purpose would be served by considering it on appeal.

D.

Because we conclude that wife's interest in her grandfather's irrevocable trust is property under the statute and that any issues regarding the revocable trusts are moot, we need not consider husband's alternative argument that application of § 14-10-113(7)(b) here is unconstitutionally retrospective.

IL

Wife further contends that the trial court erred by including the marital appreciation of her irrevocable trust interest in the marital estate. She argues that any increase in value was a gift because it resulted from her father's decision, as the life estate benefi-clary, to focus investment of the trust corpus on growth rather than income production. Wife also argues that her vested remainder interest is not acquired until it ripens into an actual possessory interest, which did not happen during the marriage. We disagree.

The trial court found that wife's remainder interest in her grandfather's irrevocable trust was a gift, vested long before her marriage to husband, and was therefore separate property. We agree with the trial court's conclusion, which is consistent with the holding in In re Marriage of Balanson, supra, 25 P.3d at 41-42.

In re Marriage of Balanson, supra, also holds that the appreciation in a vested remainder interest in an irrevocable trust during the course of the marriage constitutes marital property under § 14-10-118(4), C.R.S.2003. We cannot distinguish wife's interest in her grandfather's irrevocable trust from the trust interest at issue in Balanson. Because we must follow precedent set by the supreme court, Anstine v. Churchman, T4 P.3d 451 (Colo.App.2008), we conclude that the trial court properly determined that any increase in the value of wife's interest during the marriage was marital property subject to division. Wife cites certain out-of-state cases in support of her argument that her remainder interest is not acquired until it becomes possesory. However, because our conclusion rests on established Colorado Supreme Court precedent, we need not consider those out-of-state cases.

IIL

We also reject wife's argument that the trial court erred both in determining that wife's remainder interest in the irrevocable trust appreciated during the marriage and in determining the value of that appreciation.

Trial courts are vested with broad discretion to fashion an equitable division of the parties' property in a dissolution proceeding. In re Marriage of Antuna, 8 P.3d 589 (Colo.App.2000). Further, the determination of value is within the trial court's discretion based upon a consideration of all the relevant circumstances. In re Marriage of Mohrlang, 85 P.3d 561 (Colo.App.2003).

When determining the present value of a vested interest in a trust that is subject to divestment based on a condition subsequent, a variety of cireumstances should be considered, including actuarial information concerning the life expectancy of the life estate beneficiary and information concerning the future distributions to that beneficiary. In re Marriage of Balanson, supra, 25 P.3d at 48 n. 6.

Here, the trial court valued the marital appreciation in wife's interest at $318,962. This calculation was based upon her proportional share in the overall growth of the trust during the marriage discounted at a rate of six percent over her father's life expectancy of 6.7 years. The court then awarded husband $120,867.50, one-half to be paid within sixty days after wife becomes entitled to one-half of her remainder interest upon her father's death and the other half after her mother dies, thereby ending her life estate created by father's testamentary power of appointment. ©

Wife contends that the trial court's valuation is defective because it is not based upon expert testimony and because it did not apply a discount rate that sufficiently accounted for the effect of her mother's life estate, trustee fees, actual and accumulated tax liabilities for corpus gains, and market changes in the value of the trust principal. Wife also asserts that the trial court's order is deficient because it does not explain the reason it used a discount rate of six percent. We are not persuaded.

The valuation of future payments is normally the subject of expert testimony, usually from an actuary. However, when a party fails to present such information to the trial court, that party cannot later complain that the valuation rendered is insufficient. In re Marriage of Zappanti, 80 P.3d 889 (Colo.App.2003).

Here, the trial court applied the discount rate submitted by husband and referred to the mortality table in § 18-25-108, C.R.S. 2008. It also recognized the nonpossessory nature of wife's interest and, to accommodate the effect of her mother's life estate and the likelihood that her father would exercise the power of appointment, it deferred payment of husband's share until wife actually becomes entitled to any funds on the death of her father and mother.

Wife asserts that the trial court erred in rejecting her argument that capital gains taxes should be considered. However, there was evidence in the record that, at the death of wife's father, there would be no capital gains tax due on the distribution of the trust corpus and that any tax consequences to the trust that might reduce the trust corpus would not be material. Moreover, although various scenarios were suggested regarding the potential impact of capital gains tax, wife did not provide any calculations or any explanation of how such a factor could be reflected in the discount rate. In that regard, we note that a trial court is not obligated to consider hypothetical tax implications. See In re Marriage of Bayer, 687 P.2d 537 (Colo.App.1984)(no error in failing to account for capital gains taxes that husband might incur if he sold his condominium).

Wife also argues that the trial court improperly applied the subtraction valuation method rather than using a time-rule formula. The time-rule formula is an approved method for valuing pensions because it recognizes that an employee's ability to enhance the future retirement benefit after the marriage frequently builds on the foundation of work and efforts undertaken during the marriage and enables the spouse to share some benefit of the post-dissolution enhancements. In re Marriage of Hunt, 909 P.2d 525 (Colo.1995); In re Marriage of James, 950 P.2d 624 (Colo.App.1997)

The reasons for applying the time-rule formula do not exist in this case. The value of the trust is unrelated to any efforts taken by wife or husband, post-dissolution "enhancements" are irrelevant, and other than that the subtraction method simply reduced the value of wife's present share, wife has not explained why the time-rule produces a more accurate and fair apportionment of the trust interest. Thus, we conclude the trial court had discretion to use the subtraction method here.

Based on the limited information from which the trial court could determine value, we conclude that its calculations were both ascertainable from its order and reasonable. See In re Marriage of Plesich, 881 P.2d 379 (Colo.App.1994)dissolution actions, a trial court has discretion to arrive at its own determination of value, and its valuation will be upheld if it is reasonable in light of the evidence as a whole). Moreover, we regard the relatively equal division of the marital property as equitable in light of the parties' respective financial cireumstances. See In re Marriage of Eisenhuth, 916 P.2d 896 (Colo.App.1999).

IV.

Wife also contends that the trial court erred in determining that husband's car was his separate property. We disagree.

The trial court found that the car, which was purchased by husband during the marriage, had a net equity of $8320. It determined that the car was husband's separate property because the $10,000 down payment came from the sale of a vehicle he owned prior to the marriage. The court also found that no marital funds were used to purchase the car.

Wife argues the trial court's classification of the car as separate property was erroneous based upon husband's testimony that he purchased the new car before he sold the old car and that he also took out a $25,000 loan which was later paid off with marital funds.

The initial step a court must make in evaluating a marital estate for distribution is to determine whether an asset is marital, that is, acquired during the marriage and subject to division, or separate property, which is shielded from distribution. Section 14-10-113, C.R.8.2008; In re Marriage of Hunt, supra.

Property acquired by either spouse during the marriage is presumed marital, as is the appreciation in the value of separate property and any income produced by separate assets during the marriage. Section 14-10-113(3)-(4), C.R.S.20083; In re Marriage of Bartolo, 971 P.2d 699 (Colo.App.1998). However, the marital property presumption can be overcome by evidence establishing that the property in question was acquired by a method listed in § 14-10-113(2), C.R.8.2003, including subparagraph (2)(b), which excludes property from the marital estate that was acquired in exchange for premarital property.

To claim separate ownership successfully under the exchange provision, a spouse must trace the property by proving a series of exchanges back to an original asset. In re Marriage of Seewald, 22 P.3d 580 (Colo.App.2001).

Here, in addition to the testimony relied upon by wife, husband also testified that he purchased the new car before the old one sold and that it was always his intention to apply the sale proceeds received toward the new car. The only separate interest husband claimed in the car was the $10,000 down payment. Wife similarly testified that husband used the money from his old vehicle to purchase the new vehicle, and she also acknowledged in her financial affidavit that the marital value of the new car should be reduced by $10,000 for the trade-in value of the old car.

Although the evidence was conflicting concerning the use of financing and marital funds, the record contains no dispute concerning the fact that husband made a $10,000 contribution of his separate funds toward the car. Therefore, to the extent the equity interest is less than the amount of husband's separate contribution, we are satisfied that the trial court did not abuse its considerable discretion in classifying that asset as separate property. See In re Marriage of Foot-tit, 908 P.2d 1209 (Colo.App.1995){(the classification of property as marital or nonmarital is a legal determination that is dependent on the resolution of factual disputes).

v.

Finally, we also disagree with wife's contention that the trial court erred in classifying the furniture in the marital residence as marital property.

The trial court found that the furniture was paid for by wife's mother, who had encouraged wife and husband to upgrade their furnishings when they purchased the marital residence. The court rejected wife's claim that the furniture was a gift to her from her mother and, therefore, her separate property. Instead, it found that the parties had shopped for the furniture together and that they contemplated it would be marital property.

The marital presumption can also be overcome by showing that the property was acquired by gift. Section 14-10-113(@)(a), C.R.S.2003; In re Marriage of Bartolo, supra. To qualify as a gift, a transfer of property must involve a simultaneous intention to make a gift, delivery of the gift, and acceptance of the gift. In re Marriage of Balanson, supra. That determination hinges fundamentally on the intent and acts of the donor and recipient, which, in turn, are questions of fact for the trial court to resolve. In re Marriage of Bartolo, supra.

We conclude that, contrary to the court's finding, the furniture was a gift from wife's mother. However, the evidence overwhelmingly supports a determination that the gift was made to both parties as a contribution to the marital estate. Therefore, the trial court's classification of this asset does not constitute an abuse of discretion. See In re Marriage of Anderson, 525 P.2d 499 (Colo. App.1974)(not published pursuant to C.A.R. 35(f))(upholding division of real property gifted by parent to both parties as part of the marital estate).

The judgment is affirmed.

Judge DAILEY and Judge PIERCE concur.


author: Judge DAILEY.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Terry SCEARCE, Defendant-Appellant.
    No. 01CA1660.
    Colorado Court of Appeals, Div. I.
    Dec. 4, 2003.
    Rehearing Denied Jan. 15, 2004.

      Ken Salazar, Attorney General, Deborah Isenberg Pratt, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge DAILEY.

Defendant, Terry Scearce, appeals the judgment of conviction, habitual offender sentence, and order of restitution, entered following a jury verdict finding him guilty of conspiracy to commit aggravated robbery. We reverse the judgment of conviction, vacate the habitual criminal adjudication and restitution order, and remand the case for a new trial.

Defendant was charged in this case with attempted second degree murder, first degree assault, aggravated robbery, conspiracy to commit first degree assault and aggravated robbery, and two erimes of violence, all arising from acts undertaken by him and two others to obtain a laptop computer from the victim.

A woman, a mutual friend of defendant and the victim, asked defendant to go to the victim's motel room to help her retrieve the computer, whose ownership was in dispute. The woman arrived at the motel room alone, and, after being told by the victim that he had sold the computer, she started to leave the room. According to the victim, defendant and another man were standing at the door when the woman opened it to leave; according to the woman and defendant, the two men knocked on the door just as she was about to leave. She informed the two men that the victim had sold her computer and then left the room.

Defendant asked the victim why he had sold the computer and the other man demanded that the victim give them the proceeds from the sale. The victim then told defendant the computer was in a dresser drawer, when in fact, only a phone book was inside the computer case in the drawer.

According to the victim, he heard the sound of switchblade knives "clicking" open, and, after catching a glimpse of the knives, hit one of the men in the head with a soda can. In the ensuing melee, the victim was stabbed seven times in the front and back. The victim claimed to have been stabbed by both men. -

Defendant took the computer case, complete with phone book, from the room.

The police arrested defendant twenty days later. From his car, they recovered three knives, two of which were switchblades, but none of them tested positive for traces of blood.

At trial, defendant denied that he went to the motel intending to rob or hurt the victim. Instead, he said, he went because he thought he could reason with the victim, and he entered the fray only after the victim attacked his companion and, even then, only to separate the two men. He denied having a knife at any time during the incident and related that he realized that a knife had been present and someone had been stabbed only after returning to his car, where his companion showed him his bloody knife.

The jury found defendant guilty of conspiracy to commit aggravated robbery and acquitted him of all other charges. Subsequently, the trial court found that he had twice been previously convicted of a felony and sentenced him, as an habitual offender, to twenty-four years imprisonment.

L.

Defendant contends that the evidence is insufficient to sustain his conviction, because: (1) under People v. Gallegos, 130 Colo. 282, 235, 274 P.2d 608, 609 (1954), overruled by People v. Moseley, 198 Colo. 256, 566 P.2d 831 (1977), taking property by force from another under a claim of right is not robbery; (2) the woman claimed to own the computer; and thus (8) any agreement defendant had with her to retrieve the computer could not qualify as a conspiracy to commit robbery, much less aggravated robbery. We disagree.

Because defendant did not raise this contention either before the trial court or in his opening brief, but only during oral argument, we need not consider it. See Bd. of County Comm'rs v. City of Greenwood Village, 30 P.3d 846, 849 (Colo.App.2001)(court will not consider arguments raised for the first time in reply brief or during oral argument); see also People v. Hall, 59 P.3d 298, 301 (Colo.App.2002)(arguments raised for the first time in reply brief need not be considered on appeal).

Ordinarily we would not countenance the injection of an additional issue at this late stage of the appeal. However, because of its obvious significance and the great likelihood that it would arise, in one form or another, in future proceedings, we elect to address it now.

The premise upon which this argument rests is no longer sound. In Gallegos, supra, the court held, based on "generally accepted doctrine," that "where property is taken under a bona fide claim of right the requisite animus furandi [element of robbery] is lacking." Animus furandi, the court explained, is the "intent to steal, that is, a criminal intent or an intent to feloniously deprive an owner of his property." People v. Gallegos, supra, 1830 Colo. at 234-85, 274 P.2d at 609.

In People v. Moseley, swpra, the supreme court disavowed the continuing viability of Gallegos in light of revisions to the robbery statute, which are still in effect. See § 18-4-301(1), C.R.S.2008. These revisions, the court said, contain "no suggestion that robbery requires any specific intent to permanently deprive the owner of the use or benefit of the thing taken." People v. Moseley, supra, 198 Colo. at 262, 566 P.2d at 385.

Indeed, unlike theft, which involves the taking of "anything of value of another," § 18-4-401(1), C.R.S.20083, robbery involves the taking of "anything of value from the person or presence of another." Section 18-4-301(1). The difference in statutory text supports the supreme court's observations that the current robbery statutes "are primarily intended to protect persons and not property," and that "[plroof of ownership of the property taken is immaterial [to robbery] so long as the victim had sufficient control over it at the time of the taking." People v. Borghesi, 66 P.8d 98, 101 (Colo.2003).

Thus, we conclude that, contrary to defendant's contention, the robbery statutes endorse the basic public policy that "even rightful owners should not be permitted to ... use force to regain their property, once it has been taken." State v. Miller, 622 N.W.2d 782, 786 (Iowa Ct.App.2000); see also Whitescarver v. State, 962 P.2d 192, 195 (Alaska Ct.App.1998){rejecting claim of right defense to robbery); State v. McMillen, 83 Hawai'i 264, 266-67, 925 P.2d 1088, 1090-91 (1996)(recognizing trend rejecting claim of right defense); of People v. Rosenberg, 194 Colo. 423, 427, 572 P.2d 1211, 1213 (1978)(re-jecting claim that efforts to collect a legally enforceable debt fall outside the scope of the criminal extortion statute: "If the appellants honestly believed that they were entitled to payment ... they should have availed themselves of appropriate civil remedies.").

Defendant is thus not entitled to relief on this ground.

IL.

Defendant contends that his conviction must be vacated because the verdict upon which it is based is inconsistent with that acquitting him of aggravated robbery. We disagree.

"A person may not be convicted of conspiracy to commit an offense if he is acquitted of the offense which is the object of the conspiracy where the sole evidence of conspiracy is the evidence establishing the commission of the offense which is the object of the conspiracy." Section 13-2-206(2), C.R.8.2003.

Section 13-2-206(2) codifies the supreme court's ruling in Robles v. People, 160 Colo. 297, 301, 417 P.2d 282, 234 (1966). See People v. Frye, 898 P.2d 559, 567 n. 12 (Colo.1995). The inconsistent verdict rule is:

premised on the existence of only one fund of evidence which is utilized to prove both the substantive offense and conspiracy charge. On this basis, if a jury disbelieves this evidence or has a reasonable doubt that it is sufficient to prove the substantive offense, it logically follows that it is likewise unbelievable or insufficient to support a verdict of guilty to the conspiracy charge.
Thus, the basic reason for the ... rule disappears when the evidence can be segmented or is different as to both offenses ....

Armijo v. People, 170 Colo. 411, 413-14, 462 P.2d 500, 501 (1969); see Hughes v. People, 175 Colo. 851, 854, 487 P.2d 810, 812 (1971)("[T)he jury cannot be permitted to believe the testimony for the purposes of the conspiracy and disbelieve it for purposes of the substantive crime. This does not mean, however, that ... where there was different evidence relating to the conspiracy and the substantive crime that the jury may not return different verdicts as to the two charges."); People v. Harrison, 746 P.2d 66, 67 (Colo.App.1987)("eontrary verdicts on the substantive offense and the related conspiracy charge are not inconsistent if there is evidence in the record which implicates the defendant in the conspiracy and which is separate and independent from that of participation in the substantive offense").

Thus, if independent evidence in the record implicates the defendant in the conspiracy, separate and distinct from that supporting the substantive crime, the jury may properly acquit on the substantive charge, yet convict on the conspiracy. Further, as an appellate court, our duty is to reconcile and uphold verdicts if the evidence so permits. If the verdicts are consistent in any view of the evidence, the presumption is that the jury took that view. People v. Hood, 878 P.2d 89, 92 (Colo.App.1994).

In determining whether a separate and distinct fund of evidence exists, apart from that concerning the substantive crime, we may consider any evidence other than that concerning the commission of the substantive crime itself. See People v. Forbes, 185 Colo. 410, 418, 524 P.2d 1877, 1879 (1974)(evidence of conspiracy "separate and independent of the actual removal of the automobile parts"); People v. Walker, 182 Colo. 317, 820, 512 P.2d 1248, 1244 (1973)("evidence of events leading up to the attempt to actually perpetrate the rape ... was separate and independent from that of the actual assault and will support the jury verdict of conspiracy"); Hughes v. People, supra, 175 Colo. at 355, 487 P.2d at 812 ("evidence of conspiracy separate and independent of the mere participation in the actual taking of the goods from the store").

To establish a conspiracy, there need only be circumstantial evidence indicating that the conspirators, by their acts, pursued the same objective, with a view toward attainment of that same objective. People v. Robinson, 874 P.2d 458, 463 (Colo.App.1993).

In the present case, a fund of evidence, separate and independent of that concerning the aggravated robbery itself, exists implicating defendant in a conspiracy: (1) defendant and the woman had discussed the victim and the computer over dinner; (2) the woman called defendant on his cell phone shortly before she went to the motel and asked him to meet her at the victim's motel room; (8) both the woman and defendant parked some distance away from the motel; (4) defendant and his companion were standing outside the victim's motel room when the woman was leaving; (5) defendant immediately addressed the victim about the missing computer; (6) one or both of the two intruders brandished a knife inside the room; and (7) three knives, two of which were similar to the ones brandished in the victim's room, were subsequently recovered from defendant's car.

Viewing this evidence in the light most favorable to the prosecution, a rational fact finder could reasonably conclude, beyond a reasonable doubt, that defendant conspired with one or more other persons to commit the crime of aggravated robbery. See § 18-2-201, C.R.S.2008 (elements of conspiracy); § 18-4-302(1)(b), C.R.8.2003 (elements of aggravated robbery, as charged).

Further, the verdicts acquitting defendant of aggravated robbery and convicting him of conspiracy to commit the same are reconcilable because either (1) the jury may have believed defendant's testimony to the extent that he denied using actual force against the victim to obtain the computer case; or (2) not having been instructed on complicity principles, the jury may have acquitted him of aggravated robbery because it did not know he could be held accountable for the acts of his companion. See § 18-1-603, C.R.S.2003; People v. Saldana, 899 P.2d 208, 210-11 (Colo.1995)(considering effect of instructions and reasonable interpretations of evidence); People v. Albers, 196 Colo. 66, 67-68, 582 P.2d 667, 668 (1978)(considering reasonable interpretations of evidence).

Because there is an independent fund of adequate evidence upon which the jury could find defendant guilty of conspiracy, and because the jury verdicts are otherwise reconcilable, we conclude that defendant's conspiracy conviction is not barred by § 18-2-206(2) or by any lack of evidence.

IIL

Defendant contends that the trial court impermissibly infringed upon his constitutional right to present a defense by prohibiting him from eliciting certain evidence. We agree.

Few rights are more fundamental than the right of the accused to put before the jury evidence that might influence the determination of guilt. People v. Richards, 795 P.2d 1343, 1345 (Colo.App.1989). However, the right to present a defense is not absolute. People v. Watkins, 88 P.3d 1182 (Colo.App.2003). Ordinarily, it requires only that the accused be permitted to introduce all relevant and admissible evidence. People v. Harris, 43 P.3d 221, 227 (Colo.2002). Thus, the right to present a defense does not guarantee a defendant a right to question witnesses in violation of the rules of evidence or to produce inadmissible hearsay. See Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 653, 98 LEd.2d 798 (1988)("The accused does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.").

We agree with the prosecution that, in a number of instances, the trial court properly applied standard evidentiary rules to prohibit leading questions and nonresponsive answers. See CRE 611(c); Denbow v. Williams, 672 P.2d 1011, 1014 (Colo.1983).

However, we agree with defendant that the court erred in prohibiting him, on hearsay grounds, from eliciting evidence of what he and the woman said to one another about the subject of the alleged conspiracy. Defendant argued, to no avail, that he was entitled to present evidence of whether there was any type or even suggestion of agreement between himself and the woman to use force, threats, or intimidation against the victim.

Hearsay is "a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." CRE 801(c); People v. Huckleberry, 768 P.2d 1235, 1241 (Colo.1989). An out-of-court statement not offered for its truth is, if relevant, admissible as nonhearsay evidence. See People v. J.M., 22 P.8d 545, 547 (Colo.App.2000).

"A verbal act is an utterance of an operative fact that gives rise to legal consequences. Verbal acts ... are not hearsay, because the statement is admitted merely to show that it was actually made, not to prove the truth of what was asserted in it." Pronesti v. State, 847 So.2d 1165, 1166 (Fla.Dist.Ct.App.2003); see 2 John W. Strong et al., McCormick on Evidence § 249, at 100-01 (5th ed.1999)(examples include "oral utterances by the parties in a contract suit constituting the offer and acceptance which brought the contract into being" and utterances of words "relied on as constituting a slander or deceit").

Performative utterances, committing the parties to a course of action to which legal consequences attach, qualify as non-hearsay verbal acts. See Umited States v. Montana, 199 F.3d 947, 950 (7th Cir.1999)(discussing performative utterances); of State v. Connally, 79 Hawaii 123, 125, 899 P.2d 406, 408 (Ct.App.1995) (defendant's statement that she would perform sex acts for money was "verbal act," or "operative fact," demonstrating that she made the requisite offer proscribed by the prostitution statute).

As pertinent here,

A conspiracy is an agreement or understanding, express or implied, between the conspirators. The usual way in which people reach agreements or understandings is by the use of words, oral or written. Indeed, it is difficult to conceive of a conspiracy formed or carried forward without the use of any words.

United States v. Calaway, 524 F.2d 609, 618 (9th Cir.1975). Nonhearsay verbal act evidence is admissible on the issue of whether a conspiratorial agreement existed. See United States v. Lim, 984 F.2d 331, 386 (9th Cir.1998); Arguelles v. State, 842 So.2d 939, 942 (Fla.Dist.Ct.App.2003)("out-of-court statements ... offered to prove the making or terms of a conspiratorial agreement ... are 'verbal acts' not excluded under the hearsay rule").

Here, defendant was prohibited from eliciting testimony about statements he and the woman made, not for the truth of the matters contained in the statements, but for the very fact that they were made, to dispute the prosecution's claim that there was an agreement to use force, threats, or intimidation with a deadly weapon against the victim. As such, the evidence was admissible, and the trial court erred in excluding it. CJ People v. McGrath, 793 P.2d 664, 666-67 (Colo.App.1989)(in murder-robbery case, trial court erred in excluding victim's out-of-court statements concerning alleged plan to fake a robbery with defendant; statements qualified for admission under state of mind exception to rule against hearsay).

Because it affected defendant's fundamental right to present exeulpatory evidence, the error here is of constitutional dimension and reversal is required unless we are persuaded beyond a reasonable doubt that it did not contribute to defendant's conviction. See People v. Harris, supra, 43 P.3d at 230.

In making this assessment, we ask "not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." People v. Welsh, 58 P.3d 1065, 1072 (Colo.App.2002){cert. granted Nov. 18, 2002).

-If a reasonable possibility exists that the error contributed to the verdict, then the error is not harmless. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); People v. Jurado, 30 P.3d 769, 772 (Colo.App.2001)(erroneous jury instruction).

We note that, although prohibited by the court from relating the gist of defendant's statements, the woman was permitted to at least deny having any kind of agreement with defendant to intimidate, threaten, harass, or harm the victim. That fact, however, is not dispositive. Defendant was entitled to present the facts underlying the woman's conclusion. He was also entitled to present them through his own testimony.

While there are obvious reasons why the trier of fact might question the credibility of a defendant's testimony, the trier of fact might nonetheless deem that testimony compelling and conclusive because of its special evidentiary nature. See People v. Curtis, 681 P.2d 504, 513-14 (Colo.1984)(discussing a defendant's right to testify on his or her own behalf).

Here, defendant was denied the opportunity to present exculpatory evidence having a direct bearing on the central issue in his conspiracy case, namely, the existence and scope of any agreement with an alleged co-conspirator. Although we earlier concluded that there was sufficient evidence independent of the aggravated robbery itself to sustain a conviction for conspiracy, that evidence is by no means overwhelming in nature. Under the circumstances, we cannot say with fair assurance that, beyond a reasonable doubt, the exclusion of this evidence could not have affected the jury's determination. Thus, defendant's conviction must be reversed. See People v. McGrath, supra, 798 P.2d at 666-67.

Because we reverse defendant's conviction, we also vacate the habitual offender adjudication and order of restitution imposed in connection therewith. See People v. Trujillo, 30 P.3d 760, 762 (Colo.App.2000), affd, 49 P.3d 316 (Colo.2002).

IV.

For purposes of providing guidance, we address those of defendant's remaining contentions that are likely to recur on retrial.

We reject defendant's assertion that he is entitled to inquire into the lenient plea bargain his own witness entered into with the state in order to bolster the witness's credibility with the jury. Because many factors besides the extent of an individual's eulpability enter into a prosecutor's decision to plea bargain a case, the trial court has discretion under CRE 408 to bar defendant's requested inquiry. The court also has discretion to permit the inquiry if the prosecution somehow opens the door to it. See generally People v. Murphy, 919 P.2d 191, 195 (Colo.1996).

Further, should defendant be convicted of the conspiracy charge upon retrial, he is not entitled to have a jury make the requisite habitual offender determinations. See People v. Carrasco, 85 P.3d 580 (Colo.App.2003); People v. Johnson, 74 P.3d 349, 356 (Colo.App.2002). Nor would the trial court be barred from adjudicating him an habitual offender because (1) the prosecution's motion to amend the information with habitual erimi-nal counts, though timely filed, had not been formally granted prior to receipt of habitual offender evidence during this trial, see People v. Daniels, 973 P.2d 641, 645-46 (Colo.App.1998); or (2) there was a discrepancy between the allegation and the proof in this trial with respect to the precise date of one of his prior convictions. See People v. Copeland, 976 P.2d 334, 341 (Colo.App.1998), aff'd, 2 P.3d 1283 (Colo.2000); People v. Young, 923 P.2d 145, 149 (Colo.App.1995).

Finally, if defendant is convicted of conspiracy upon retrial, absent a voluntary, knowing, and intelligent waiver, he is entitled to the assistance of counsel at any hearing held to determine his restitution responsibilities. See Mempa v. Rhay, 389 U.S. 128, 135, 88 S.Ct. 254, 257, 19 L.Ed.2d 336 (1967)(con-stitutional right to assistance of counsel applies to sentencing hearing); People v. Johnson, 780 P.2d 504, 508 (Colo.1989)(restitution is part of sentence); People v. Arguello, 772 P.2d 87, 92-93 (Colo.1989)(constitutional right to counsel is subject to voluntary, knowing, and intelligent waiver).

The judgment of conviction is reversed, the habitual offender sentence and restitution order are vacated, and the case is remanded for a new trial in accordance with the views expressed in this opinion.

Chief Judge DAVIDSON and Judge LOEB concur.


author: Judge TAUBMAN.

text:
    YOUNG PROPERTIES, a California general partnership, and Doris Y. Coates, Trustee of the Doris W. Young Survivors Trust, Plaintiffs-Appellees, v. Gregory D. WOLFLICK, Trustee of the Wolflick Survivors Trust, Defendant-Appellant.
    No. 02CA2130.
    Colorado Court of Appeals, Div. III.
    Dec. 4, 2003.
    Rehearing Denied Feb. 5, 2004.

      Jacobs, Chase, Frick, Kleinkopf & Kelly, LLC, Michael A. Smith, N. Reid Neuriter, Denver, Colorado, for Plaintiffs-Appellees.
    Tisdel, Hockersmith, Mueller & Melntosh, P.C., Michael D. Hockersmith, Roger F. Sa-gal, Ouray, Colorado, for Defendant-Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Gregory D. Wolflick, trustee of the Wolflick Survivors Trust, appeals the judgment partitioning land held as tenants in common with plaintiffs, Young Properties and Doris Y. Coates, trustee of the Doris W. Young Survivors Trust (collectively the Youngs). We reverse certain aspects of the judgment and remand for further proceedings.

In December 2000, the Youngs filed a complaint for partition, pursuant to § 38-28-101, et seq., C.R.S.2003, seeking the sale of a 227-acre parcel of real property located in Ouray County, Colorado. The Youngs owned an undivided three-fourths interest in the parcel, while Wolflick owned an undivided one-fourth interest. The parcel was encumbered by a deed of trust in favor of Park Estates, Ltd.

In October 2001, the parties executed a stipulation for entry of an order of partition and appointment of a commissioner. The trial court appointed a commissioner, who appraised the parcel and issued a report indicating that partition in kind could be effected by dividing the northern 69 acres (northern parcel) from the southern 158 acres (southern parcel). The northern parcel was unimproved, but had access to a road maintained by Park Estates, Ltd. The southern parcel contained improvements, including a house, but, onee divided, the parcel would not have access to the road. The commissioner allocated the northern parcel to Wol-flick and the southern parcel to the Youngs and indicated that the southern parcel would need an access easement across the northern parcel.

The Youngs objected to the commissioner's report on the basis that it did not separate the parties' interests. Specifically, they argued the report did not resolve issues regarding (1) water rights, (2) allocation of the remaining balance on the deed of trust, and (8) location and size of access and utility easements.

Wolflick objected to any sale of the parcel and sought a partition in kind along the boundaries proposed in the commissioner's report.

In September 2002, the trial court entered a partition order in which the court found: (1) Wolflick had disclaimed any interest in the water rights; (2) the balance of the deed of trust should be allocated according to the parties' respective interest in the property; (8) Wolflick owed the Youngs $44,827 in unpaid expenses relating to the parcel; (4) the Youngs could purchase Wolflick's interest in the parcel for one-fourth of the fair market value of the parcel as stated in the commissioner's report and had thirty days to notify Wolflick of their intent to purchase; (5) in the event the Youngs elected not to purchase Wolflick's interest, the parcel would be divided along the boundary set forth in the commissioner's report, and the southern parcel would be granted access and utility easements over the northern parcel, as defined by the court; and (6) the Youngs were entitled to an award of costs.

Thereafter, the Youngs filed a notification of their intent to purchase Wolflick's interest.

Wolflick appeals the portions of the trial court's order granting the Youngs an option to purchase his interest and awarding them costs.

I. Option to Purchase Cotenant's Interest

Wolflick argues the trial court abused its discretion by granting the Youngs an option to purchase his interest in the parcel in violation of § 88-28-107, C.R.S.2008. We agree.

The power to fashion equitable remedies lies within the discretion of the trial court, and such rulings will not be disturbed on appeal absent an abuse of discretion. La Plata Med. Ctr. Assocs, Ltd. v. United Bank, 857 P.2d 410, 420 (Colo.1993).

Our review of a trial courts interpretation of a statute is de novo. When interpreting a statute, we attempt to implement the intent of the General Assembly. To discern that intent, we look first to the plain language of the statute and interpret statutory terms in accordance with their commonly accepted meanings. Bodelson v. City of Littleton, 36 P.3d 214 (Colo.App.2001).

Generally, when cotenants have a common interest in real or personal property, either party may have the property divided by an equitable proceeding pursuant to the partition statutes, 38 28-101, et seq. See Fed. Deposit Ins. Corp. v. Mars, 821 P.2d 826, 831 (Colo.App.1991). When deciding a partition action, a trial court must not create new interests in property, but must sever the unity of possession of the tenants in common. Martinez v. Martinez, 638 P.2d 834, 836 (Colo.App.1981).

In general, partition in kind is favored over partition by sale. See 4 Thompson on Real Property § 38.04 (David Thomas ed.1994). In Colorado, land has long been deemed unique, and money is an inadequate substitute. See Benson v. Nelson, 725 P.2d 71, 72 (Colo.App.1986).

Section 38-28-107 authorizes partition by public sale only after a showing of manifest prejudice:

If the commissioners report and the court finds that partition of the property cannot be made without manifest prejudice to the rights of any interested party, the court may direct the sale of such property at public sale upon such terms as the court may fix. Notice of such sale shall be given in the same manner as may be required by law for sales of real estate upon execution.

A. Manifest Prejudice

Wolflick argues that the trial court abused its discretion in granting the Youngs an option to buy his interest, without finding that partition in kind could not be made without manifest prejudice. The Youngs argue that, although the trial court did not explicitly find manifest prejudice, because the commissioner's report recommended partitioning the land, but indicated that the southern parcel would require access and utility easements across the northern parcel, and because the parties had a long history of strained relations, the trial court in effect found manifest prejudice. We agree with Wolflick.

No Colorado court has defined "manifest prejudice" in the context of a partition action. However, other jurisdictions require a showing of "great prejudice" before partition by sale may be ordered. In our view "great prejudice" is equivalent to "manifest prejudice." See Webster's Third New International Dictionary 1375 (1986)(defining "manifest" as capable of being readily and instantly perceived, obvious, overt).

In those other jurisdictions, great prejudice has been shown when either (1) the physical characteristics of the land make it impracticable to divide into equal parts; or (2) the value of the whole is materially greater than the sum of its parts. See Ashley v. Baker, 867 P.2d 792, 796 (Alaska 1994)(test for prejudice is whether combined value of the shares would be materially less than the whole); Wilcox v. Willard Shopping Ctr. Assocs., 208 Conn. 318, 544 A2d 1207 (1988)(partition in' kind of shopping center held to be impracticable); Bolts v. Bolts, 133 Wis.2d 278, 282, 395 N.W.2d 605, 607 (Ct.App.1986); Thompson on Real Property, supra. We agree with those decisions.

We find no support for the Youngs' contention that a partition in kind constitutes manifest prejudice when the parties have a hostile or acrimonious relationship merely because partition in kind would result in the parties becoming owners of neighboring parcels that share an easement. To the contrary, it is generally accepted that when partitioning a parcel of land, a trial court may create easements to facilitate the equitable division of the property. See In re Marta, 672 A.2d 984 (Del.1996); Allendorf v. Daily, 6 IlL.2d 577, 129 N.E.2d 673 (1955), Hart v. Hart, 27 Va. App. 46, 497 S.E.2d 496 (1998)(under common law, power to grant easement in suit for partition is necessarily implied in court's power to make partition); see also Smith v. Williams, 98 Or.App. 258, 265, 779 P.2d 1057, 1061 (1989)(acrimonious relationship warranted partition in kind of cotenants' interest in stock). Creating a dominant estate and a servient estate here is within the court's equitable power under $ 38-28-110, C.R.S. 2003.

The Youngs' construction of "manifest prejudice" would require the sale of property whenever cotenants sought partition because of strained relations and did not wish to own neighboring parcels, effectively rendering meaningless the provisions of § 38-28-107. Even if strained relations result, a trial court has the discretion to create easements to facilitate a partition in kind.

Here, the trial court did not find that partition in kind would result in economic prejudice or would be impractical. To the contrary, the trial court ordered an equitable in kind division of the property and specified the extent of necessary easements in the event the Youngs did not exercise their option to buy Wolflick's interest. Therefore, the trial court abused its discretion in ordering a sale of Wolflick's interest in the parcel without a finding that partition in kind would result in manifest prejudice.

B. Option to Purchase

Wolflick also argues that even if the trial court could order the sale of the property, it abused its discretion because § 38-28-110 does not authorize the trial court to grant the Youngs an option to purchase his interest in the parcel. We agree.

Section 88-28-107 directs that where partition in kind would constitute manifest prejudice, the appropriate remedy is a partition of the property by public sale. Section 38-28-110 describes the court's powers:

The court at any time may make such orders as it may deem necessary to promote the ends of justice to completely adjudicate every question and controversy concerning the title, rights, and interest of all persons whether in being or not, known or unknown, and may direct the payment and discharge of liens and have the property sold free from any lien or may apportion any lien among the persons to whom the partition is made.

(Emphasis added.)

The majority of jurisdictions addressing this issue have concluded that it is improper to order one cotenant to sell his or her interest to another cotenant. See 4 Thompson on Real Property, supra, § 38.05(b).

However, the Youngs rely on Martines v. Martines, supra, and Keith v. El-Kareh, 729 P.2d 377 (Colo.App.1986), to support their argument that the trial court did not abuse its discretion in granting them an option to buy Wolflick's interest in the parcel.

In Martinez, the plaintiff sought to partition by sale real property he owned as tenant in common with his brother. The defendant-brother and his family had been living on the property for several years. A panel of this court held that once the interests in the property had been divided, § 38-28-110 allowed the court to compute any contribution of each tenant and offset any amount owing in order to arrive at an equitable result. After computing the interests of each party, the panel concluded that the trial court should have allowed the defendant a limited time to buy the plaintiff's interest before ordering a public sale. Thus, the plaintiff brought the partition action for the purpose of selling his interest in the property, and the panel merely granted the defendant, who had been occupying the property, the first opportunity to buy that interest.

In Keith, the subject property for partition was a house. The plaintiff and the defendant each owned a one-half interest in the house, which the plaintiff occupied. A division of this court upheld the trial court's judgment granting the plaintiff a limited time to purchase the defendant's equity in the house. Unlike the cireumstances here, the house and land in Keith were not amenable to partition in kind. Further, in contrast to the cireum-stances here, in both Keith and Martinez, the court granted the party occupying a resi-denee the first opportunity to retain the subject property.

In our view, Martines and Keith should not be construed to interpret § 88-28-110 as granting a trial court carte blanche to provide partition remedies, particularly where that remedy would contravene the provisions of § 88-28-107. A court should not substitute its own ideas of what might be wise or equitable in place of the General Assembly's clear intent. See People v. Zinn, 843 P.2d 1351 (Colo.1998).

Here, the court found that the parcel could be divided equitably. Neither party occupied the parcel as a principal residence. Furthermore, the trial court granted the Youngs, who originally sought to sell their interest in the parcel, an option to buy Wolflick's interest, while Wolflick sought to retain his interest in the property in kind. Thus, the trial court abused its discretion in granting the option to the Youngs.

II. Award of Costs

Wolflick also argues that the trial court abused its discretion in awarding costs to the Youngs. Wolflick argues that the Youngs are not the prevailing parties because the only issue at trial was whether to partition in kind or by sale. We agree that any award of costs must be reconsidered on remand.

"[UJnless there is a statute or rule that specifically prohibits an award of costs, trial courts may exercise their discretion to award any reasonable costs to a prevailing party." Mackall v. Jalisco Intl, Inc., 28 P.3d 975, 977 (Colo.App.2001). Further, the determination of which party prevailed is committed to the discretion of the trial court. Wheeler v. TL. Roofing, Inc., 74 P.3d 499 (Colo.App.2003). However, where a judgment has been successfully appealed, the identity of the prevailing party may not be clear.

Here, the Youngs sought partition by sale, and Wolflick sought partition in kind. We have reversed the trial courts judgment regarding the Youngs' option to buy Wolflicks interest, which might suggest Wolflick is the prevailing party. However, the trial court also granted the Youngs' request for partition. Therefore, on remand the trial court must determine the identity of the prevailing party. See Bainbridge, Inc. v. Douglas County Bd. of Commrs., 55 P.3d 271 (Colo.App.2002).

Accordingly, the judgment is reversed to the extent it granted the Youngs the option to purchase Wolflick's interest and to the extent it awarded costs to the Youngs, and the case is remanded for further proceedings consistent with this opinion.

Judge NIETO and Judge CARPARELLI concur.