author: Judge. NIETO.

text:
    The PEOPLE of the State of Colorado, In the Interest of A.K. and AK., Children, Upon the Petition of Larimer County Department of Social Services and I.P.K., Petitioners-Appellees, and Concerning D.K., Respondent-Appellant.
    No. 02CA0554.
    Colorado Court of Appeals, Div. III.
    Jan. 16, 2003.
    Certiorari Denied June 23, 2003.

      George H. Hass, County Attorney, Sean C. McGill, Assistant County Attorney, Fort Col-ling, Colorado, for Petitioners-Appellees.
    Frey, Korb, Haggerty & Michaels, P.C., John J. Haggerty, III, Fort Collins, Colorado, for Respondent-Appellant.

       Justice COATS would grant the Petition as to the following issue:
      Whether an obligee who lives in Russia with her children can avoid or circumvent the jurisdictional and enforcement requirements of the Uniform Interstate Family Support Act, UIFSA, Section 14-5-101, et. seq., C.R.S., by simply proceeding through the County Department of Human Services for the establishment of a new child support order under Section 19-6-106, C.R.S. And, is this ruling by this division of the court of appeals inconsistent with the ruling of another division of the court of appeals in In re the Marriage of Zinke, 967 P.2d 210 (Colo.App. 1998).

   Opinion by

Judge. NIETO.

Father, D.K., the obligor in this action, appeals the judgment of the trial court establishing a duty of child support and arrearag-es. We reverse and remand.

Father and ILP.K., mother, are husband and wife. Father came to the United States in 1995, but mother and the minor children remained in Russia where they continue to reside. Father last talked with mother in 1996. The Larimer County Delegate Child Support Enforcement Unit (CSEU) initiated this action on behalf of mother to establish a duty of child support and arrearages pursuant to §§ 19-6-104 and 26-13.5-101, et seq., C.R.8.2002.

The trial court determined that it had personal jurisdiction over the parties, which is not contested, and subject matter jurisdiction. The court stated that father "has a duty of support, regardless of the fact that there is no pending or past dissolution of marriage, paternity action, dependency and neglect action, or other legal proceeding." The court also found that father acknowledged a duty of support by sending support to mother on various occasions.

The court determined that mother's total income was approximately $77 per month and that father's income was $7696 per month. No issue of imputing income to mother was raised in the trial court or on appeal. The court further found that the presumed amount of support based upon application of the child support guidelines was $1,412 per month. The court rejected father's request that it deviate from the presumed amount of support. Therefore, the court ordered child support of $1412 per month beginning February 2001 and calculated arrearages through November 2001 at $13,061.

I.

Father first contends that the trial court lacked subject matter jurisdiction to establish a child support order in this case. We disagree.

The Colorado Department of Human Services is required to establish a child support enforcement program. Section 26-13-1038, C.R.S.2002. The program must include "[tlhe establishment and modification of an obligor parent's legal obligation to support his or her dependent children." Section 26-13-105(1)(a), C.R.8.2002. "Child support establishment, modification, and enforcement services under state law ... shall be provided to any person who completes a written application and pays the required fee...." Section 26-183-106(2), C.R.8.2002.

Section 26-18.5-101, et seq., is the Colorado Administrative Procedure Act for the Establishment and Enforcement of Child Support. Under that act a county CSEU can commence administrative proceedings to enforce child support on behalf of a child's custodian who applies to the unit for services. Section 26-18.5-108, C.R.8.2002.

Section 19-1-104(1)(e) and (B)(a), C.R.S. 2002, grant the juvenile court (here the trial court) exclusive jurisdiction for, among other things, support proceedings under § 19-6-101, et seq., C.R.S.2002. Section 19-6-101(1)(a), C.R.S.2002, provides that "Proceedings to compel parents ... to support a child or children may be commenced by any person filing a verified petition in the court of the county where the ... obligor parent resides...."

Father argues that § 19-6-101, et seq., applies only to children within the State of Colorado, and therefore, the trial court lacked subject matter jurisdiction to enter a support order. However, while the Children's Code may primarily protect the welfare and safety of Colorado children, nothing in § 19-6-101, et seq., requires that the child reside in this state. Rather, a "child" is defined as "a person under eighteen years of age." - Section 19-1-108(18), C.R.S.2002. Further, the provisions of the Children's Code are to be liberally construed to serve the welfare of children and the best interests of society. Section 19-1-102(2), C.R.98.2002. We also note that § 26-13-105(1)(a), which authorizes child support enforcement services to any person who properly applies, does not prohibit the CSEU from providing services to persons residing outside the United States.

Father also argues that because mother and the children are nonresidents of Colorado, child support must be established under the Uniform Interstate Family Support Act (UIFSA), § 14-5-101, et seq., C.R.S8.2002. While UIFSA does not appear to apply to persons who are not residents of a "state" as defined in § 14-5-101(19), C.R.8.2002, even if it does apply here, its remedies are cumulative and do not affect remedies available under other laws. Section 14-5-108, C.R.S. 2002. Therefore, mother was free to pursue remedies provided by §§ 19-6-104 and 26-18.5-101, et seq.

Thus, absent authority to the contrary, we conclude that the plain language of §§ 19-6-101 and 26-18-106 allowed the trial court to impose a duty of support on father even though mother and the children reside in Russia.

IL

Father also contends that the trial court abused its discretion in declining to deviate from the amount of child support presumed by application of the guidelines in § 14-10-115, C.R.S8.2002. He argues that deviation was appropriate because the children's economic circumstances in Russia are very different from those on which the guidelines are based and that the court should have focused on the children's reasonable needs rather than on his income. We agree in part.

The child support guidelines in § 14-10-115 establish a rebuttable presumption of the child's reasonable needs and the manner in which basic and extraordinary support is to be divided between the parents. In re Marriage of Stress, 939 P.2d 500 (Colo.App.1997). These child support guidelines apply to orders entered in support proceedings under article 6 of the Children's Code. Section 19-6-106, C.R.9.2002.

The court may deviate from the guidelines if application would be inequitable, unjust, or inappropriate and if such deviation is supported by adequate findings. Section 14-10-115(8)(a), C.R.S.2002. However, the burden is upon the parent contesting the support order to prove that a deviation from the presumptive award is both reasonable and necessary. In re Marriage of Stress, supra.

In declining to depart from the guidelines, the trial court found that the evidence presented did not support a conclusion that economic cireumstances in Russia were so dissimilar to those in Colorado that reliance on the guidelines would be unreasonable or unfair. The evidence relating to the economic needs of the children came from the parties and the testimony of a witness testifying by telephone from Russia Father had identified an expert on the political and economic situation in Russia, but he was not available at the time of the hearing. Given the complexity of comparing the economic cireum-stance in Colorado to those in Russia, expert testimony would have been useful.

Based on the evidence presented at the hearing, the court found that some expenses would be the same and some would be "vastly greater." It also found that what would be considered a normal lifestyle in Colorado would be significantly more expensive in Russia. Thus, we are satisfied that the court focused on the children's needs rather than on father's income.

However, our review of the record reveals that mother, who was in the best position to know the children's needs, presented detailed and itemized evidence that the children's living expenses were $1,117.00 per month. While the court relied on mother's evidence in comparing expenses in Colorado and Russia, it did not consider her evidence of the total living expenses in deciding whether deviation from the guidelines was appropriate. Also, the court did not consider that father provided and fully paid for a residence for the children, an expense that is included in the guidelines' presumptive amount for reasonable and necessary child support.

Given the difficulty in applying Colorado child support guidelines to the needs of children in Russia, we conclude that the trial court should have considered the evidence referenced above in deciding whether application of the guidelines "would be inequita-bie, unjust, or inappropriate." See § 14-10-115(8)(a). Accordingly, the child support order must be reversed, and father's request for deviation from the guidelines must be

reconsidered on remand. The trial court may, in its discretion take additional evidence on this issue.

IIL

Finally, father asserts that the trial court erred by failing to credit him with amounts paid to mother since February 2001, as set forth in his exhibit A. We disagree.

Determination of the sufficiency and credibility of the evidence is within the trial court's discretion and may not be disturbed if it is supported by the record. In re Marriage of Antuna, 8 P.3d 589 (Colo.App.2000).

Here, the trial court acknowledged that father voluntarily sent money to his family through friends, but found that it was unable to ascertain the precise amount he paid. The payments in 2001 shown on exhibit A were made to father's emancipated daughter. Thus, we find no error in the court's refusal to grant credits to father. See In re Marriage of Antuma, supra. However, because we reverse the child support order, the judgment for arrearages based on that order also must be reversed and reconsidered.

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

Judge NEY and Judge KAPELKE concur.


source: Caselaw Access Project

author: Judge KAPELKE.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Andrew MEDINA, Defendant-Appellant.
    No. 01CA1592.
    Colorado Court of Appeals, Div. III.
    Jan. 30, 2003.
    Certiorari Denied June 30, 2003.

      Ken Salazar, Attorney General, Laurie A. Booras, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Thomas K. Carberry, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge KAPELKE.

Defendant, Andrew Medina, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree murder, attempted aggravated robbery, conspiracy to commit aggravated robbery, and possession of a handgun by a juvenile. We affirm.

The charges stem from an incident in which the victim was shot and killed during an attempt to steal his car by defendant and two accomplices. - Defendant was fifteen years old at the time.

I.

Defendant first contends that the trial court violated his Fifth Amendment privilege against self-incrimination and his Sixth Amendment rights to confrontation and counsel by admitting a letter he allegedly wrote to the victim's parents and delivered to his initial counsel. We disagree.

The attorney-client privilege is for the personal benefit and protection of the client and therefore may be waived by the client. Lanari v. People, 827 P.2d 495 (Colo. 1992). "Any waiver must be demonstrated by evidence that the client, by words or conduct, has expressly or impliedly forsaken his or her claim of confidentiality with respect to the information in question and, thus, has consented to its disclosure." People v. Sickich, 935 P.2d 70, 73 (Colo.App. 1996).

Statements initially made in confidence to an attorney lose the shield of privilege if the client knowingly and intentionally discloses them to a third party. Lanari v. People, supra. The burden of proving the waiver rests on the party attempting to overcome the privilege. Mountain States Tel. & Tel. Co. v. DiFede, 780 P.2d 583 (Colo.1989).

Here, before trial, defendant moved to exclude the letter, which contains his in-culpatory statements. Following a hearing, the court denied the motion, finding that defendant had waived any privilege.

According to testimony adduced at the hearing, defendant placed the letter in an envelope and gave it to his original attorney. The attorney delivered it to the pastor of her church. The family of the victim also belonged to that church. The attorney told the pastor she wanted him to review the letter and decide whether he should then forward it to the victim's parents. The attorney testified that she provided the letter to the pastor "[iln hopes that it would influence him to assist in ... facilitating or mediating a meeting" between the attorney and the victim's family.

The pastor testified that the attorney told him she was acting on defendant's wishes. Eventually, the pastor delivered the letter to the victim's parents, who then turned it over to the prosecution.

In finding that any privilege had been waived by defendant, the court determined the prosecution had established that defendant had intended the letter be communicated to a third party. The court noted the testimony of defendant's original attorney that it was her desire, as well as that of defendant, that the letter be given to the victim's family and that the attorney wanted input from the pastor to avoid causing any additional grief to the victim's family. In addition, the court noted that the letter had been written by defendant as the final product of a series of drafts, thus indicating that its preparation had been deliberate and not impulsive.

At the hearing, the trial court sustained objections to several questions regarding communications between defendant and his original attorney concerning the letter. As a result, the record does not disclose the actual content of those communications.

The evidence in the record, however, supports the trial court's findings and also its ultimate ruling that, in authorizing his original attorney to deliver the letter to the victim's family, defendant thereby waived the attorney-client privilege. We therefore find no error.

At oral argument, defendant's present counsel correctly pointed out that the issue of ineffective assistance of counsel is not raised in this appeal. An ineffective assistance claim is better suited for a postconviction proceeding pursuant to Crim. P. 35(c). Further, at an evidentiary hearing on such a motion, the reasons for and possible strategic purposes of original counsel's actions regarding the letter could be disclosed and evaluated, and the content of the communications between defendant and that attorney regarding the letter might be brought to light.

IL

In his opening brief on appeal, defendant contended that the trial court violated his right to testify by giving him an improper advisement concerning that right,. In his reply brief, however, defendant withdrew the issue from consideration in light of People v. Blehm, 983 P.2d T9 (Colo.1999)(a claim of inadequate advisement on defendant's right to testify should be raised in postconviction motion so that court may determine whether the advisement actually had an adverse effect on the defendant's decision whether to testify). Accordingly, we do not address the contention in this appeal.

IIL

Defendant contends that because the trial court instructed the jury on both conspiracy and complicity, which according to defendant have essentially the same elements, and because it cannot be determined whether the jury found him guilty as a conspirator or as a complicitor, the trial court erred by imposing a class 1 felony sentence, rather than a class 2 felony sentence as would be required for a conviction under the conspiracy statute. We disagree.

Contrary to defendant's assertions, complicity and conspiracy are not separate offenses with essentially identical elements. The complicity statute makes a person "legally accountable as principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense." Section 18-1-608, C.R.98.2002. Thus, complicity is not a separate offense at all, but rather a theory of culpability for the charged crime.

In contrast, conspiracy is a separate crime. Conviction of conspiracy generally requires a sentence one class lower than that for the target offense of the conspiracy. Section 18-2-206, C.R.S8.2002.

Here, defendant was convicted of conspiracy to commit an aggravated robbery and also as a complicitor in the attempted aggravated robbery. The conspiracy and the attempted aggravated robbery convictions are thus for separate offenses. People v. Hood, 878 P.2d 89 (Colo.App.1994). Accordingly, we find no error.

In his reply brief, defendant for the first time additionally contends that his conviction for attempted robbery must be reversed because the prosecution improperly proceeded under both attempt and conspiracy theories "without a proper and clear explanation of the difference between conspiracy and attempt." Because this argument is raised for the first time in the reply brief, we decline to consider it. See People v. Czemerynski, 786 P.2d 1100 (Colo.1990).

IV.

Defendant contends that the trial court violated his constitutional right to a fair and impartial jury by improperly denying two challenges for cause. We disagree.

The trial court must sustain a challenge for cause to a prospective juror who has a sﬁatg of mind evineing enmity or bias toward the defendant. However, no juror shall be disqualified because of a previously formed or expressed opinion about the defendant's guilt or innocence so long as the court is satisfied from the examination of the juror that he or she will render an impartial verdiet according to the law and the evidence submitted to the jury at trial. Section C.R.S. 2002.

We review a trial court's ruling on a challenge for cause to a prospective juror under an abuse of discretion standard. Carrillo v. People, 974 P.2d 478 (Colo.1999). "The trial court is in the best position to view the demeanor of a juror claiming impartiality, and the record must affirmatively demonstrate that the trial court abused its discretion before its decision can be disturbed on appeal." People v. Christopher, 896 P.2d 876, 878 (Colo.1995).

A reviewing court is not to second-guess trial court determinations in this regard based on a cold record. Carrillo v. People, supra. This deference extends to the trial court's evaluation of inconsistent or self-contradictory statements. Morrison v. People, 19 P.3d 668 (Colo.2000).

A.

Defendant's first challenge for cause involved a juror who attended the same church as that attended by the victim's family.

- In voir dire, the juror initially stated that, based on conversations with fellow parishioners, he had already formed an opinion concerning defendant's guilt. Upon additional questioning, however, the juror changed his answer, indicating that he had not formed an opinion about defendant's guilt or innocence and that he agreed that the defendant is presumed innocent until proved guilty. The juror also stated that he would be able to consider the possibility that the testimony of his pastor, a witness, might not be entirely truthful or accurate. In later questioning, he stated that he could not imagine such a scenario.

' The trial court concluded that, based on the totality of the voir dire, the juror was open to deciding issues of eredibility concerning the pastor's testimony. The court therefore denied the challenge for cause. The record does not affirmatively demonstrate that the trial court abused its discretion in arriving at its determination. Therefore, we find no manifest error.

B.

With respect to the challenge for cause to the second juror, we agree with the People that because the juror was eventually excused for job-related reasons before the exercise of any peremptory challenges, the issue is moot.

In view of our conclusion that defendant has not shown error in the court's rulings on his challenges for cause, we need not address the parties' related arguments concerning exhaustion of peremptory challenges.

v.

Defendant contends that the trial court erred by giving the jury an abbreviated version of the transcripts of one codefendant's videotaped statements to the police. We disagree.

A.

"Accurate transcriptions of sound recordings are admissible to assist the jury in following recordings while they are being played...." People v. Coca, 40 Colo.App. 440, 443, 580 P.2d 1258, 1260 (1978).

Here, copies of the partial transeript were given to the jury to follow along with the video testimony. The copies were then collected from the jury. Unlike in People v. Montoya, 773 P.2d 623 (Colo.App.1989), the jury was not allowed unsupervised or repetitive viewing of the video during deliberations.

B.

Defendant next asserts that the court erred and violated CRE 106 by allowing the jury to consider only a partial transeript of one codefendant's statement that focused on comments that incriminated defendant. We disagree.

CRE 106 states:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

Because no reported Colorado decisions address this issue under CRE 106, we look to federal cases interpreting Fed.R.Evid. 106, its identical counterpart. The federal case law interpretations are persuasive. Forbes v. Goldenhersh, 899 P.2d 246 (Colo.App.1994).

The purpose of Rule 106 is to avoid creating a misleading impression by taking evidence out of context or otherwise creating a distorted picture by the selective introduction of evidence. Merrick v. Mercantile-Safe Deposit & Trust Co., 855 F.2d 1095 (4th Cir.1988); see United States v. Jamar, 561 F.2d 1103 (4th Cir1977). The rule is satisfied where the court allows the adverse party the opportunity to introduce the additional evidence in his or her own case. United States v. Branham, 97 F.3d 835 (6th Cir.1996).

Here, defendant objected to distribution of the partial transeript because it was incomplete and unduly highlighted portions of the codefendant's statement. Defendant also objected to playing the entire videotape and providing the entire transcript because they contained inadmissible evidence that should have been redacted.

The court ruled the partial transcript and videotape admissible and stated that defendant could offer any portion of the videotape he wished during cross-examination.

Because defendant was permitted to play all or any part of the videotape during cross-examination, he had the ability to place the partial version of the tape in context. Accordingly, no violation of CRE 106 occurred.

VIL.

Defendant contends that the trial court erred by giving an improper response to the jury's question as to whether the complicity instruction applied to attempted robbery. Specifically, defendant urges that the court should have explained that the theory of defense applied to attempted robbery. We disagree.

A court should give additional instructions whenever they are needed to answer a proper question from the jury unless: (1) the jurors can be adequately informed by directing their attention to some portion of the original instructions; (2) the request concerns matters not in evidence or does not pertain to the law of the case; or (8) the request would call upon the judge to express an opinion upon factual matters that the jury should determine. Copeland v. People, 2 P.3d 1283 (Colo.2000).

Here, during deliberations, the jury submitted this question: "Does instruction 20 {complicitor) apply to the charge of Attempt to Commit Aggravated Robbery (Instructions 16 and 17) in that does the Defendant need to be holding a gun?" The trial court replied: "Yes. Instruction 20 does apply to the charge of Attempt to Commit Aggravated Robbery. The instructions are to be considered together as a whole. The Court cannot answer questions that involve the application of facts to the law."

This response is legally accurate and does not purport to answer any factual question. Because the jury question did not relate in any way to the theory of defense, there was no need for the court to mention it again in its response. We therefore find no error.

The judgment is affirmed.

Judge NEY and Judge NIETO, concur.


author: Judge WEBB. Judge TAUBMAN

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David CARLSON, Defendant-Appellant.
    No. 01CA1125.
    Colorado Court of Appeals, Div. V.
    Feb. 13, 2003.
    Certiorari Denied June 23, 2003.

      Ken Salazar, Attorney General, Julia A. Thomas, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Lisa A. Vanderhoof, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge WEBB.

Defendant, David Carlson, appeals the judgment of conviction for theft by deception on the grounds of a defective indictment, insufficient evidence, prosecutorial misconduct, an erroneous evidentiary ruling, and cumulative error. We affirm.

Defendant sold a car to the victim, who testified that defendant misled him concerning its mileage and prior ownership. Based on the misrepresentations, the victim gave defendant a $1,100 down payment and signed a promissory note, in exchange for delivery of the car. The People did not establish the difference between the value of the car as represented and the purchase price, relying instead on the victim's testimony that he would not have bought the car had he known its true condition.

I. Indictment

Defendant first argues the indictment was defective because it did not adequately inform him of the charge. He also argues his defense was prejudiced because he relied on the theory in the indictment, but the People obtained a conviction using another theory. We reject both arguments.

A. Sufficiency

An indictment or information must satisfy the dual purposes of advising a defendant of the charge so the defendant can adequately prepare a defense and protecting the defendant against further prosecution for the same offense. People v. Pratt, 759 P.2d 676 (Colo.1988)(indictment); People v. Zu-paneic, 192 Colo. 281, 557 P2d 1195 (1976)(information).

A substantive defect in an indictment or information renders a conviction void. People v. Williams, 984 P.2d 56 (Colo. 1999). However, an indictment or information is substantively sufficient if it tracks the language of the pertinent statute. People v. Williams, supra; People v. Richardson, 58 P.3d 1089 (Colo.App.2002).

Here, in charging defendant with one count of theft by deception under § 18-4-401, C.R.S.2002, the indictment tracked the language of the statute: "[Defendant] unlawfully, feloniously and knowingly obtained and exercised control over a thing of value of another ... without authorization and by threat and deception, and with the intent to permanently deprive the owner." The indictment also provided the details required by § 18-4-401(6), C.R.8.2002,

Accordingly, we conclude the indictment was not defective.

B. Variance

Defendant next argues a fatal variance arose because the People's theory in the indictment and during pretrial proceedings was that he deprived the victim of the difference in value between a car with 75,002 miles and the same car with 138,000 miles, but at trial the People focused instead on the vie-tim's $1,100 down payment as the "thing of value."

Two types of variance may arise between the offense in the charging instrument and the offense of which a defendant is convicted. A "simple variance" occurs when the charged elements are unchanged, but the evidence at trial proves facts materially different from those alleged. A "constructive amendment" occurs when the evidence at trial changes an element of the charged offense and alters the substance of the charging instrument. People v. Rodrigues, 914 P.2d 280 (Colo.1996).

A simple variance is immaterial unless it prejudices the defendant's substantive rights. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1814 (1985). We will generally sustain a conviction when the proof corresponds to the elements of an offense set out in the charging instrument. People v. Rodrigues, supra.

Here, the indictment described the "thing of value" as "four hundred dollars or more but less than fifteen thousand dollars in U.S. currency." In detailing the offense, the indictment referred to the victim's $100 deposit and $1,000 down payment, as well as to the difference between the value of the car with 75,000 miles ($5,000-$6,500) and the value of the same car with 125,000 miles ($8,500). Thus, although at trial the People addressed only the victim's $1,100 payment, we conclude the elements did not change from indictment to trial, and a constructive amendment did not occur.

Moreover, defendant could not have been surprised by evidence concerning the down payment, which was set forth in the indictment, and he provides no record support for his contention that during pretrial proceedings, the People misled him concerning the thing of value at issue.

Defendant's alleged - misrepresentations and the victim's alleged reliance primarily involved mileage and ownership, as similarly described in the indictment and developed at trial. The victim's payment to defendant of $1,100 for the car was not disputed. Hence, defendant had notice of the charge against him and sufficient opportunity adequately to prepare a defense.

Accordingly, we reject defendant's contention that a variance requires reversal.

II. Sufficiency of the Evidence

Defendant next argues his conviction is not supported by the evidence, which he contends established only potential civil liability based on a debtor-creditor relationship. We disagree.

When considering a challenge to the sufficiency of the evidence, we determine whether the evidence, when viewed as a whole and in the light most favorable to the prosecution, is sufficient to support the conclusion by a reasonable, prudent person that the defendant is guilty, beyond a reasonable doubt, of the offense charged. People v. Christian, 682 P.2d 1081 (Colo.1981). The jury should decide questions of witness credibility and the appropriate weight to be given conflicting evidence. Taylor v. People, 728 P.2d 181 (Colo.1986). Where reasonable minds could differ, the evidence is sufficient to sustain a conviction. People v. Fuller, TOL P.2d 702 (Colo.1990).

A. - Misrepresentation and Reliance

We first reject defendant's contention that the evidence was insufficient to prove beyond a reasonable doubt that he made misrepresentations to the victim on which the victim relied.

Section 18-4-401(1), C.R.98.2002, provides in pertinent part: "A person commits theft when he knowingly obtains or exercises control over anything of value of another without authorization, or by threat or deception, and: (a) Intends to deprive the other person permanently of the use or benefit of the thing of value. ..."

Theft by deception requires proof that a defendant's misrepresentations to the victim caused the victim to part with something of value in reliance on the misrepresentations. People v. Norman, 708 P.2d 1261 (Colo.1985). A misrepresentation is a false representation of a past or present fact or a promise made with the intent not to perform. People v. Lewis, TIO P.2d 1110 (Colo.App. 1985).

The victim testified that defendant told him the car belonged to defendant's father and the odometer reading of 75,002 miles was accurate. He further testified that he purchased the car because of these representations.

Defendant does not challenge the evidence showing the car had considerably more than 75,000 miles when purchased by the victim and had multiple prior owners that did not include his father.

Nonetheless, defendant argues the evidence of reliance was insufficient because, before purchase, the victim had seen documents showing the odometer reading was not accurate and identifying several prior owners, none of whom shared defendant's last name. However, the victim denied that he understood the odometer information on the prepurchase documents to be as defendant contends.

Accordingly, we conclude the evidence of defendant's misrepresentations and the victim's reliance, albeit disputed, was sufficient to sustain the jury's verdict.

B. Intent

We also reject defendant's contention that the evidence was insufficient to prove he intended permanently to deprive the victim of something of value.

The finder of fact may infer the intent necessary for theft by deception from a defendant's conduct and the surrounding cireumstances. People v. Stewart, 789 P.2d 854 (Colo.1987). A defendant possesses the requisite intent when he or she obtains a victim's money or other property in a manner inconsistent with the victim's use and benefit. People v. Treat, 198 Colo. 570, 568 P.2d 478 (1977).

Defendant argues the People did not prove he intended to deprive the victim of his $1,100 down payment because in exchange defendant gave the victim possession of and title to the car. However, we have concluded the evidence of defendant's misrepresentations to the victim and of the victim's reliance was sufficient. From this evidence, a jury could infer defendant made these misrepresentations intending that the victim would purchase a car that did not meet his needs.

Nevertheless, defendant asserts that because it was undisputed he applied the down payment and the promissory note towards the purchase price, and the People did not show the down payment and note exceeded the actual value of the car, his use of the down payment was not "inconsistent with the owner's use and benefit," as required in People v. Erickson, 695 P.2d 804, 805 (Colo.App. 1984). We are not persuaded.

Defendant's reliance on Erickson is misplaced. The division in Erickson reversed a contractor's conviction because the trial court excluded evidence that the contractor paid to subcontractors all money he obtained from the owner. The opinion does not indicate that the subcontractors' work differed from what the contractor had promised to the owner or that the contractor obtained the owner's money by deception.

Defendant's reliance on People v. McClure, 186 Colo. 274, 526 P.2d 18283 (1974), is similarly misplaced. That opinion also does not address whether the defendant obtained the victims' money by deception. It only holds that the conviction could not stand based merely on evidence that the victims' money was not applied for their benefit because cireumstances beyond the defendant's control had prevented his application of the money as promised.

The parties have cited no Colorado theft case, and we have found none, addressing sufficiency of the evidence where, as here, proof of intent permanently to deprive rests solely on testimony that, but for a defendant's misrepresentations, the victim would not have entered into the transaction.

Although "but for" theft by deception cases appear infrequently, convictions in other states have been upheld in similar cireum-stances. See, e.g., State v. Barker, 128 Ohio App.3d 233, 714 N.E.2d 447 (1998)(viectim received and kept puppy whose breed and health had been misrepresented).

Here, defendant's argument that application of the down payment was consistent with the victim's use or benefit is unpersuasive because the victim testified that, had he known the actual mileage on the car, he would not have bought it. Although the victim authorized defendant to apply the down payment to the purchase price, that authority concerned the car as represented. The jury could conclude that when defendant applied the down payment to the purchase price of a car that was not as represented, the victim's authorization ended. See People v. Treat, supra.

We are also unpersuaded by defendant's emphasis on the People's failure to prove that the car was worth less than the down payment plus the promissory note. Were such evidence necessary in what we have termed a "but for" theft by deception scheme, the case would turn solely on an objective analysis of exchange of value, without regard to subjective impact on the victim.

We discern no basis in the statutory language for this approach. The statute first addresses "anything of value." Value is an objective determination. See, eg., People v. Rosa, 928 P.2d 1865 (Colo.App.1996)(People must prove reasonable market value of stolen items).

In contrast, the statute's deprivation requirement does not refer to "value" of the property stolen, but to "use or benefit" of that property. Use or benefit can reasonably be determined based on the particular needs of the victim. When, as here, the alleged deception would have been material to a reasonable person, measuring the impact of that deception subjectively does not prejudice the defendant, who chose to deal with the victim.

Here, whatever its value, the car was illiquid, whereas the victim's down payment was liquid. The victim was not in the business of buying and selling used cars. Thus, the victim no longer had "use" of his down payment.

Furthermore, the victim testified that, once he learned of the car's actual mileage, it did not meet his objective of providing reliable transportation for his wife. Hence, the victim did not obtain the desired "benefit," despite ending up with possession of and title to the car.

The facts presented here might better fit other sections of the criminal code. See § 18-5-101, et seq., C.R.S.2002 (offenses involving fraud). However, to preclude use of § 18-4-401(1) for that reason would read "deception" out of the statute. Moreover, where criminal conduct violates more than one statute, the choice of charges generally represents a proper exercise of prosecutorial discretion. See, eg., People v. Wellington, 633 P.2d 1390 (Colo.1981).

Accordingly, we conclude the evidence was sufficient that defendant intended permanently to deprive the victim of something of value.

C. - Debtor-Creditor Relationship

Defendant's argument that the evidence showed only a civil dispute because he and the victim had a debtor-creditor relationship arising from a business transaction is unavailing for similar reasons.

The failure of a debtor to repay a creditor does not alone establish theft. However, it can constitute theft when the debtor does not perform as promised in a business transaction, and, as here, direct or circumstantial evidence shows that the debtor established the relationship never intending to perform as promised. People v. Stewart, supra; People v. Collie, 995 P.2d 765 (Colo. App.1999). That evidence may involve a pattern of deception, as in People v. Collie, supra, or conduct only in the transaction with the victim, as in People v. Stewart, supra, and in this case,

Because of the evidence defendant deceived the victim into making the down payment, signing the promissory note, and completing the transaction, defendant's reliance on cases such as People v. Rotello, 754. P.2d

765 (Colo.1988), is misplaced. There, the defendant-lessee only failed to pay his landlord increased rent owed based on gross sales. Deception by the defendant to induce the landlord to enter into the lease was not discussed. Moreover, the "thing of value" at issue was money owed to the landlord, not money obtained from the landlord. Thus, in Rotello, "obtain[ing] ... without authorization" could not be shown. Here, the down payment was taken from the victim.

Accordingly, we conclude defendant's conviction is supported by sufficient evidence.

III. Prosecutorial Misconduct

Defendant next contends prosecutorial misconduct occurred because the prosecutor cross-examined a defense witness about a nonexistent felony conviction, this cross-examination violated the rape shield statute, and the prosecutor violated the rules of discovery. We disagree.

A. Prior Felony

We find no reversible error arising from the mistaken questions about the witness's convictions.

Section 18-90-101, C.R.S.2002, allows admission of a prior felony conviction to impeach the credibility of a witness. However, when the prosecutor cross-examines a witness about a prior felony conviction, the prosecutor must ask the question in good faith. People v. Lewis, 180 Colo. 428, 506 P.2d 125 (1978). If the witness denies the conviction, then the prosecutor should establish good faith with an offer of proof. People v. Thompson, 182 Colo. 198, 511 P.2d 909 (19783).

Determining good faith is within the trial court's discretion, and we will not disturb the determination absent an abuse of discretion. People v. Renstrom, 657 P.2d 461 (Colo.

Here, on direct examination of a mechanic familiar with the car, defendant brought out that the witness had been convicted of a felony. On cross-examination, the prosecutor established that this conviction had been for sexual assault and kidnapping, and then asked the mechanic whether he had a second felony conviction, also for sexual assault and kidnapping. The witness denied a second felony conviction. Defendant immediately requested a bench conference, at which the trial court ruled the question had been asked in good faith.

The prosecutor based the question on a National Crime Information Center criminal history report that listed a 1978 conviction for sexual assault and kidnapping with a sentence of fifteen to thirty years, as well as a 1984 conviction for sexual assault and kidnapping with a sentence of fifteen to twenty-four years. Thus, we conclude the trial court acted within its discretion when it determined the prosecutor's question about a separate conviction in 1984 was asked in good faith.

After both parties rested and before the jury began its deliberations, however, defendant showed that the criminal history report used the same case number and other information for both entries and thus merely repeated the 1978 conviction in 1984. He asked for a curative instruction that the mechanic had not been convicted of a second felony. The trial court declined to give the instruction, explaining that the jury had heard the question and the denial.

Defendant acknowledges the absence of any Colorado authority requiring a curative instruction under these cireumstances. A eu-rative instruction is usually given to overcome an evidentiary error. See, eg., People v. McNeely, 68 P.3d 540, 2002 WL 31600819 (Colo App. No. 00CA1187, Nov. 21, 2002). Here, the better practice would have been to give the requested instruction. However, in light of our conclusion that the trial court acted within its discretion in ruling that the prosecutor asked the question in good faith, we discern no error obligating the trial court to give a curative instruction.

B. Rape Shield Statute

Defendant concedes he did not object during trial that the inquiry about the mechanic's prior felonies violated the rape shield - statute, § 18-3407, C.R.S.2002. Hence, we review for plain error, and we find none.

Unless necessary to correct plain error, an appellate court will decide only issues properly presented to the trial court by contemporaneous objection. People v. Snook, 745 P.2d 647 (Colo.1987). Plain error occurs only when the error so undermined the fundamental fairness of the trial that it creates serious doubt about the reliability of the conviction. People v. Wood, 748 P.2d 422 (Colo.1987).

As relevant here, the rape shield statute excludes evidence of a witness's prior or subsequent sexual conduct, except in narrowly defined cireumstances. People v. Mel-illo, 25 P.8d 769 (Colo.2001). However, the statute applies only when either the witness is a sexual assault victim or the crime charged is a sexual offense. See People v. Miller, 981 P.2d 654 (Colo.App.1998).

Here, the mechanic was not a sexual assault victim, and the trial concerned a theft by deception, not a sexual offense. Contrary to defendant's assertion, People v. Ghoiston, 26 P.3d 1 (Colo.App.2000), did not extend the rape shield statute to protect perpetrators who are not also victims.

Accordingly, we conclude the prosecution did not violate the rape shield statute, and there was no error, much less plain error.

C. Discovery Violation

Defendant also argues the prosecution violated Crim. P. 16(M(a)(1)(V) by not providing him with a copy of the mechanic's criminal history before trial. The People agree that no report was provided, but point out that Crim. P. 16(I)(a)(1)(V) only requires that the prosecutor make available to the defendant the eriminal record of the "accused, any codefendant or any person the prosecuting attorney intends to call as a witness."

The prosecution had no responsibility under Crim. P. 16(I)(a)(1)(V) to provide defendant with the mechanic's criminal history because he was a defense witness.

Accordingly, we conclude defendant was not deprived of a fair trial by alleged prose-cutorial misconduct.

IV. Evidentiary Ruling

Defendant next argues the trial court erred in refusing to admit an emissions test report on the car offered by defendant under CRE 807, the residual hearsay exception. We disagree.

Trial courts have considerable discretion in deciding on the admissibility of evidence, including application of the residual hearsay exception. People v. Fuller, 788 P.2d 741 (Colo.1990); People v. Huckleberry, 768 P.2d 1235 (Colo.1989). In general, we will not disturb an evidentiary ruling on appeal absent an abuse of discretion. People v. Jensen, 55 P.3d 135 (Colo.

Hearsay is inadmissible unless an exception or exclusion applies. CRE 801, 802; People v. Fry, 74 P3d 860, 2002 WL 31477777 (Colo.App. No. 00CA1459, Nov. 7, 2002).

To admit hearsay evidence under the residual exception, the proponent must establish: the statement has cireumstantial guarantees of trustworthiness; the statement is evidence of a material fact; the statement is more probative of the material fact than any other reasonably available evidence; admitting the evidence serves the purpose of the rules of evidence and the interests of justice; and the adverse party had adequate pretrial notice. People v. Fuller, supra, 788 P.2d at 744.

Here, defendant called a Colorado Motor Vehicle Division Emissions Section employee and through him attempted to introduce the report, purportedly conducted on the car by a testing station no longer in business. The witness could only confirm the document was an emissions test report. Defendant argues this testimony, coupled with the fact the report had the same vehicle identification number (VIN) as the car, made the report admissible under CRE 807.

The trial court refused to admit the report because it found the VIN and testimony an insufficient guarantee of trustworthiness, noting that defendant did not present evi-denee of who conducted the test, whether the test was performed accurately, and whether the test was actually conducted on the car sold to the victim.

Thus, we perceive no abuse of discretion.

V. Cumulative Error

Defendant finally argues the cumulative impact of the errors entitles him to a new trial. We disagree.

We may order a new trial when individual error does not warrant a new trial, but the aggregate impact of numerous formal irregularities denied the defendant a fair trial. People v. Roy, 728 P.2d 1345 (Colo.1986). However, when we find no individual error, or when the individual errors do not show an absence of a fair trial, reversal for cumulative error is not required. People v. Dore, 997 P.2d 1214 (Colo.App.1999).

We have upheld the trial court's rulings on the issues presented for appeal, and hence we further conclude there was no cumulative error.

Judgment affirmed.

Judge ROTHENBERG concurs.

Judge TAUBMAN dissents.

Judge TAUBMAN

dissenting.

Because I agree with defendant, David Carlson, that the evidence does not support his conviction for theft under § 18-4-401(1)(a), C.R.S.2002, I disagree with part II(B) and (C) of the majority opinion and respectfully dissent.

This case arose out of defendant's 1992 sale of a used 1974 Mercedes Benz to the victim for $5,450. After taking a test drive, the victim paid defendant $1,100 as a down payment and signed a promissory note for the balance. The car's title listed a third party as lienholder. After the sale, the vice-tim began experiencing mechanical trouble with the car, failed to make payments on the promissory note, and hid the car in a rented barn so that it would not be repossessed.

Defendant was charged with and convicted of theft based on his alleged misrepresentation of the mileage of the car.

I. Intent

Defendant argues that the prosecution did not prove beyond a reasonable doubt the essential element that he intended permanently to deprive the victim of the use or benefit of a thing of value. I agree.

I conclude that as a matter of law a defendant cannot commit the crime of theft when, during a purchase, the victim receives an item worth more than the money the defendant receives. Accordingly, I disagree with the majority's conclusion that a theft convietion may be sustained in cireumstances where proof of intent permanently to deprive a victim of the use or benefit of a thing of value relies solely on testimony that, but for the defendant's misrepresentations, the vice-tim would not have completed the transaction, from which the victim nonetheless received some value.

A person commits theft when he or she "knowingly obtains or exercises control over anything of value of another without authorization, or by threat or deception" and "(intends to deprive the other person permanently of the use or benefit of the thing of value." Section 18-4-401(1)(a). "A defendant has the requisite intent to commit the crime of theft if his [or her] intended use of another's money is inconsistent with the owner's use and benefit." People v. Erickson, 695 P.2d 804, 805 (Colo.App.1984).

When determining a challenge to the sufficiency of the evidence, appellate courts consider whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support the conclusion by a reasonable person that the defendant is guilty of the offense charged beyond a reasonable doubt. People v. Christian, 682 P.2d 1081, 1088 (Colo.1981).

Here, the evidence most favorable to the prosecution established that defendant sold the victim a used car for $5,450. Defendant told the victim that the car had been driven 75,000 miles and was owned by his elderly father, who rarely drove the car. The victim testified that he would not have purchased the car had he known that it had been driven 133,000 miles, The victim gave defendant $1,100 as a down payment on the car. In return, defendant applied the down payment toward the purchase price, and the victim and his wife signed a promissory note for the remaining balance. Defendant transferred title of the car to the victim, subject to a lien held by a third party in the amount of $4,450. The prosecution also presented evidence that someone had tampered with the car's odometer.

I conclude for several reasons this evidence was factually and legally insufficient to establish defendant committed the crime of theft under § 18-4-401(1)(a).

First, the information alleged that an expert in the valuation of used cars believed that such a car which had been driven 125,-000 miles was worth $3,500. However, at trial the prosecution presented no evidence of the value of the car. Instead, an automobile appraiser testified for the defense that if the car had been driven 135,000 miles, it was worth approximately $6,500 at the time of the sale and had probably increased in value about ten percent since that time. Another witness testified the car was eventually resold for $6,000.

Second, despite the victim's testimony that he would not have purchased the car had he known it had been driven 183,000 miles, there was no evidence that the victim knew the value of the car if driven 75,000 miles or if driven 133,000 miles.

Third, the prosecution did not proceed at trial on the theory that the thing of value was the difference between the value of the car if driven 75,000 miles ($5,000 to $6,500) as allegedly represented to the victim, and the value of the car if driven 138,000 miles ($3,500), the actual mileage according to the prosecution. Rather, the prosecution argued that the victim's $1,100 down payment constituted the thing of value. However, in my view, the evidence considered in the light most favorable to the prosecution established that the vietim received a car worth $6,000 to $6,500, paid defendant $1,100 as a down payment, and was liable for a lien in the amount of $4,450. There was no evidence that the purchase price was the $1,100 down payment, plus both the amount of the promissory note and the third-party lien, which would have totaled $9,990: The victim testified only that the total purchase price was $5,450.

Fourth, even though the car did not have the mileage the victim expected, he received use or benefit from his down payment because it was applied to the purchase price. Therefore, defendant did not use the thing of value, the down payment, inconsistently with the victim's use or benefit. See § 18-4-401(1)(a); People v. Erickson, supra.

Further, there was no evidence that defendant obtained or exercised control over the down payment without authorization. Instead, the undisputed evidence showed that the victim gave defendant the $1,100 down payment. See People v. Gracey, 940 P.2d 1050 (Colo.App.1996)(defining "without authorization"). Similarly, there was no evidence that defendant employed any threats.

Even if there were evidence of defendant's deception, still, as discussed above, there was no evidence that defendant intended to deprive the victim permanently of the use or benefit of his down payment, because the victim received a car of greater value in return. Even if the amount of the lien were considered, the evidence at most showed that the victim paid $1,100 and was responsible for a lien of $4,450, with a total "cost" of $5,550 for a car worth between $6,000 and $6,500,

Under these cireumstances, it is not reasonable to conclude that defendant committed theft by obtaining control of the victim's $1,100 where the asserted deception is that, but for defendant's misrepresentations, the victim would not have purchased the car. The majority's interpretation disregards the actual fair market value of the car the victim received. Even if the victim would not have purchased the car had defendant not misrepresented the car's mileage, the victim still could resell the car for approximately $6,000, some $450 more than he paid for it.

This result is different in kind from the more typical theft in which the victim buys something, but receives in return nothing or an item of little or no value.

Here, by contrast, even if we assume that defendant misrepresented the mileage on the car, he cannot be said to have deprived the victim of "the use or benefit" of his $1,100, because the victim received a car in return worth that amount or substantially more, even considering the lien on the car. Thus, I would conclude defendant is entitled to a judgment of acquittal.

II. Debtor-Creditor Relationship

Defendant next contends that the evidence established a debtor-creditor relationship and as such he can not be subjected to criminal prosecution for his conduct. I agree that a theft prosecution was not proper here.

There may be a eriminal prosecution for theft where a debtor-creditor relationship exists, but only if the defendant intended permanently to deprive the victim of the use or benefit of something of value. See People v. Collie, 995 P.2d 765, Ti4A-T5 (Colo. App.1999)(defendant engaged in a consistent pattern of negotiating contracts, obtaining initial payments, performing minimal work, and then demanding additional payment without performing any additional work); see also People v. Stewart, 789 P.2d 854 (Colo.1987)(defendant's depletion of bank account was evidence of his intent permanently to deprive the victim of the value of its products). However, I have already conelud-ed that evidence of such intent was lacking here.

People v. Rotello, 454 P.2d 765 (Colo.1988), provides a better analogy. There the supreme court held that the defendant-lessee's failure to pay a percentage of his gross profits to the county-lessor as mandated by his lease was not felony theft from the county. The money owed by the defendant to the county did not constitute "anything of value of another" under the theft statute, because "no money collected by [the defendant] became [the county's] property until it was transferred by [the defendant] in payment of the obligation." People v. Rotello, supra, 754 P.2d at 767 (quoting People v. Treat, 198 Colo. 570, 577, 568 P.2d 478, 477 (1977)); see also People v. McClure, 186 Colo. 274, 526 P.2d 1328 (1974)(evidence established debtor-creditor relationship rather than theft where there was no evidence of intent to deprive and no evidence defendant exercised unauthorized control over money given to him for a travel package).

In my view, a broad reading of the theft statute to allow eriminal prosecution under the cireumstances here would render meaningless the specific intent permanently to deprive another person of the use or benefit of a thing of value required under § 18-4-401(1)(a). See Dover Elevator Co. v. Indus. Claim Appeals Office, 961 P.2d 1141 (Colo. App.1998)(words and phrases should be given their plain and ordinary meaning, unless the result is absurd); see also People v. Dist. Court, 713 P.2d 918, 921 (Colo.1986)(courts should avoid statutory constructions that defeat the clear intent of the General Assembly). Such a broad interpretation would allow criminal prosecution of theft where a customer is dissatisfied with a purchase, even if he or she received the merchandise and the alleged thief credited the payment towards the purchase price.

This conclusion is supported by the overall statutory scheme of the eriminal code, which defines separate fraud and motor vehicle offenses for this type of conduct. See People v. Triantos, 55 P.3d 181, 184 (Colo.2002)(courts must construe each provision of a comprehensive statutory scheme to effectuate the overall legislative intent). In $ 18-5-101, et seq., C.R.8.2002, the General Assembly has defined numerous offenses involving fraud, such as forgery, simulation or impersonation, fraud in obtaining property or services, fraudulent and deceptive sales and business practices, offenses related to the Uniform Commercial Code, unauthorized use of financial transaction devices, and equity skimming of a motor vehicle. See, eg., §§ 18-5-102, 18-5-110, 18-5-301, 18-5-808, C.R.S.2002. Thus, the General Assembly is well aware of the wide range of fraudulent conduct, not all of which is theft.

In addition, the Certificate of Title Act makes it unlawful for any person to use or install any device that "causes an odometer to register any mileage other than the true mileage driven." Section 42-6-202(1), C.R.S. 2002. It is further unlawful for "any person or the person's agent to disconnect, reset, or alter the odometer of any motor vehicle with the intent to change the number of miles

indicated thereon." - Section 42-6-202(2), C.R.98.2002.

Here, where the evidence did not establish defendant committed the crime of theft, I conclude there was either a civil debtor-creditor relationship as in People v. Rotello, swpra, or, at most, a basis for eriminal prosecution for an offense involving fraud or odometer tampering. Accordingly, I would reverse the judgment of conviction.


author: Justice KIRSHBAUM.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Deborah WARD-GARRISON, Defendant Appellee.
    No. 02CA0620.
    Colorado Court of Appeals, Div. A.
    April 24, 2003.

      Jeanne M. Smith, District Attorney, Daniel C. Zook, Chief Deputy District Attorney, Cynthia A. McKedy, Deputy District Attorney, Gordon R. Denison, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellant.
    No Appearance for Defendant-Appellee.

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

   Opinion by

Justice KIRSHBAUM.

The People appeal from the district court judgment granting the petition of defendant, Deborah Ward-Garrison, to seal certain criminal records pursuant to $ 24-72-308, C.R.8.2002. We reverse and remand with directions to deny the petition.

The relevant facts are not in dispute. In the underlying eriminal case, the parties entered into a stipulation in 1998 pursuant to § 18-1.3-102(2), C.R.98.2002 (formerly § 16-7-408(2)), for entry of a deferred judgment and sentence upon defendant's guilty plea to a felony. The stipulation, executed by defendant, defendant's attorney, and the district sttorney, was approved by the trial court. The trial court accepted defendant's guilty plea and entered a deferred judgment and sentence incorporating the stipulated terms.

In the stipulation, which anticipated that the case would be dismissed at the end of the deferral period, defendant admitted that she "in fact committed a felony erime"; acknowledged that there was a public interest in providing law enforcement agencies with "permanent, open access" to any criminal records relating to her case; and agreed "to give up any future right I may have, whether provided by C.R.S. 24-72-8308 or by any other law, to have those records sealed by court order."

The criminal case was later dismissed in compliance with the provisions of § 18-1.3-102(2) and the terms of the stipulation.

Thereafter, in December 2001, defendant filed a petition pursuant to § 24-72-8308 requesting the court to seal these criminal records. The People objected, asserting that the sealing of these records would violate the plea agreement in the underlying criminal case, which included defendant's express waiver of such sealing rights.

At the hearing on the petition, the People reiterated their objection to the petition. Defendant neither responded to this objection nor addressed her prior express waiver during the proceedings.

The district court rejected the People's argument on the ground that the waiver provisions of the plea agreement are "opposed to public policy" and granted the petition. This appeal followed.

The People contend that defendant's waiver of her right to request sealing the records of the case was not contrary to public policy and that the district court erred in failing to enforce the terms of the stipulation against defendant. We agree.

Under the provisions of § 18-1.3-102(2), a defendant who enters into a deferred sentencing agreement "is obligated to adhere to such stipulation." Thus, the General Assembly has determined as a matter of public policy that the terms of such stipulations are to be enforced.

In addition, a trial court lacks authority under these statutory provisions to act unilaterally to modify the terms of such an agreement without the district attorney's consent. See People v. C.G., 12 P.3d 861 (Colo.App.2000). No such consent was given here.

When a defendant has received the benefit of a bargain made and has at no time objected to any term of the subsequent judgment and stipulation, we perceive no basis in public policy to permit the defendant to renege on that portion of the agreement expressly waiving the right to request the sealing of the record. Permitting defendant to do so would contravene the language and policy of the statute and could greatly reduce the use of such stipulations in practice.

It is also noteworthy that in entering her guilty plea under the plea agreement, defendant validly waived several fundamental constitutional rights in the underlying eriminal case. We see no basis to hold that defendant could not validly waive her right to request sealing the record, particularly when she did not argue to the trial court that her express waiver should not be enforced. See People v. Gurule, 748 P.2d 1829 (Colo.App.1987)(defendant's waiver of his future right to challenge prior convictions made as part of plea agreement did not violate public policy and was valid and enforceable in subsequent proceedings).

Review of the development of the statute here at issue supports this result.

In 1988, the categories of persons eligible to request the sealing of criminal records pursuant to § 24-72-308 were narrowed to include only persons not charged, persons whose cases were completely dismissed, or persons who were acquitted. See § 24-72-8308(1)(a)(T), C.R.S.2002; People v. Bushu, 876 P.2d 106 (Colo.App.1994). In 1996, the availability of the statute was further restricted to exclude cireumstances in which an offense was not charged "due to a plea agreement in a separate case" or in which a dismissal occurred "as part of a plea agreement in a separate case." - Section 24-72, 308(1)(a)(II), C.R.S.2002; see Colo. Sess. Laws 1996, ch. 155 at 736.

Here, the dismissal of the underlying criminal case was not due to a plea agreement in a separate case. Nevertheless, we view the 1996 amendments as reflecting a broad public policy against the sealing of criminal records in situations involving a favorable disposition to the defendant under a plea agreement, especially when, as here, the defendant has admitted committing a felony, received the benefit of the bargain, and offered no suggestion that the express waiver was otherwise invalid.

Thus, contrary to the district court's conclusions, we determine that under the circumstances here public policy favors the enforcement of defendant's express waiver of her statutory right to request the sealing of the criminal record in this ease. Consequently, the trial court erred in granting defendant's petition to seal such records.

In view of this disposition, we need not address the remaining contentions raised by the People.

Accordingly, the district court judgment is reversed, and the case is remanded to that court with directions to enter an order denying defendant's petition to seal the records.

Chief Judge HUME and Judge METZGER concur.


author: Judge ROY.

text:
    In the Matter of the ESTATE OF Adeline M. KISER, Deceased. Kathryn McDonald Freedman, a/k/a Katherine McDonald; Susan Maul; Nanci Burchess Smith; and Craig Burchess (Trust Beneficiaries), Appellants, v. Monique Campbell, Appellee.
    No. 02CA0765.
    Colorado Court of Appeals, Div. III.
    April 24, 2003.

      Frank J. Anesi, Durango, Colorado, for Appellants.
    Douglas R. Sitter, Durango, Colorado, for Appellee.
   Opinion by

Judge ROY.

In this probate proceeding, Kathryn McDonald Freedman, Susan Maul, Nanci Bur-chess Smith, and Craig Burchess (beneficiaries), appeal the trial court's judgment in favor of Monique Campbell (devisee) We affirm.

The issue here is whether, under the circumstances of this case, a parcel of real property (the property) passes under a trust agreement to beneficiaries or by testacy to devisee. We conclude that title passes by testacy.

Adeline M. Kiser (decedent) and her husband created a revocable trust. The trust was funded with, among other things, the property. The deed transferred the property from decedent and her husband to themselves as "co-trustees," but did not name the trust or its beneficiaries. In addition, no trust agreement or affidavit of trust specifying the trustees' powers or identifying the beneficiaries' names and addresses was recorded.

The trust agreement provided that upon the deaths of decedent and her husband, the residue and remainder of the trust estate would be distributed to the beneficiaries. It also provided that the trust could only be revoked in writing.

After decedent's husband died, she told her attorney that she wanted to revoke the trust. However, when he advised her that the trust might have formal revocation requirements which she must perform, decedent chose to avoid legal fees and directed that her attorney take no further action. While the parties stipulated that decedent wished to revoke the trust, it was never revoked.

Several years later, decedent executed her will, which bequeathed the property to devi-see. Upon the will being admitted to formal probate, decedent's personal representative petitioned the court to determine whether title to the property passed under decedent's will or pursuant to the trust. The parties submitted this question to the trial court on stipulated facts.

The trial court, relying on § 38-30-108, C.R.8.2002, concluded that the deed did not convey the property to the trust; rather, it conveyed the property to decedent and her husband as tenants in common. Thus, the trial court concluded that devisee received decedent's one-half interest in the property, and the other one-half interest is held by the unprobated estate of decedent's husband. This appeal followed.

Because the trial court's decision resolved a question of law, based on stipulated facts, an unambiguous written instrument, and its interpretation of a statute, we review the decision de novo. See Evinger v. Greeley Gas Co., 902 P.2d 941 (Colo.App.1995).

L.

Initially, we address beneficiaries' assertion that § 38-80-108, which governs conveyances of real property to trusts, does not protect devisees and thus does not apply here. We disagree.

Section 38-80-108 states in pertinent part:

(1) An instrument conveying an interest in real property, in which the grantee is de-seribed as trustee ... shall also describe the representative capacity of such grantee by one or more of the following means: (a) Naming the person so represented; (b) Identifying the statute, the trust or other agreement, or the court appointment under which the grantee is acting; or (c) Referring, by proper description to book, page, document number, or file to an instrument, order, decree, or other writing containing any such description of the representative capacity of the grantee that is recorded with the county clerk and recorder in the county where the real property is located.
(2) If the representative capacity of the grantee is not described as provided in subsection (1) ... the description of a grantee in any such representative capacity in such instrument of conveyance shall be presumed to be a description of the person only and shall not be notice of the representative capacity of such grantee.

The fundamental purpose of § 38-30-108 is to provide notice to an interested party, whether the property has been conveyed to a trust. It is a notice statute that enbances the alienability of property. See generally Lagae v. Lackner, 996 P.2d 1281 (Colo.2000). The General Assembly's intent was to "give credence to actions of a trustee in selling, pledging as collateral, or otherwise dealing with trust property." Lagae v. Lackner, supra, 996 P.2d at 1285. The statutory presumption allows third parties to rely on actions of a trustee concerning trust property, "without having to determine whether the trustee is or is not complying with his or her fiduciary duty to the trust beneficiaries." Lagae v. Lackner, supra, 996 P.2d at 1285-86.

When a deed does not name the beneficiaries or refer to the public record containing this information, and is thus noneompli-ant with the statutory notice requirement, the statute "(1) protects subsequent takers [of the property] by eliminating their duty of inquiry to ascertain the nature and effect of a trust relationship; and (2) prevents the undisclosed beneficiaries from contesting the interest of subsequent takers who obtained the property from the trustee or through the trustee's chain of title." Lagae v. Lackner, supra, 996 P.2d at 1286.

If the statute did not protect devi-sees, then a devisee would be foreed to inquire into the trustee's fiduciary duty to determine the quality of the devisee's title to trust property. Hence, we agree with devi-see that the purposes of § 38-30-108 as described in Lagae v. Lackner are broad enough to protect devisees.

Beneficiaries correctly note that the statute most often avoids problems faced by third parties who are "bona fide purchasers, lessees, mortgagees, or assignees" of trust property. Lagae v. Lackner, supra, 996 P.2d at 1287. However, unlike similar statutes in several other states, § 38-80-108 does not expressly limit those who may benefit from lack of the required notice. CJL, Ariz.Rev. Stat. § 88-404 (2002); Mont.Code Ann. § 70-21-8307 (2002); Neb.Rev.Stat. § 76-268 (2002).

Moreover, although the phrase is not defined in Lagae v. Lackner, supra, in our view "subsequent takers" includes devisees. The term "taker" means "[a] person who acquires, [especially] one who receives property by will, by power of appointment, or by intestate succession." Black's Law Dictionary 1467 (Tth ed.1999).

Accordingly, we conclude that the statute protects devisees in addition to bona fide purchasers and similar parties. See Avi-Comm, Inc. v. Colorado Public Utilities Commission, 955 P.2d 1023 (Colo.1998)(the court must give effect to the statute's plain and ordinary meaning and presume that the General Assembly intended a just and reasonable result) We agree with the trial court that to find otherwise would lead to an inconsistent and nonsensical result.

Thus, because the sole issue in this case is whether the deed at issue is sufficient to convey the property to the trust or whether devisee was bequeathed the property, we find that the statute is clearly applicable in this case.

IL

We next conclude that the deed here did not satisfy the statutory requirements and thus did not transfer the property to the trust.

A.

Section 38-80-108(1) requires a deed to: (1) name the beneficiaries of the trust; (2) identify the statute, trust agreement, or court appointment under which the grantee is acting; or (8) refer to the recorded doeument in the real property records in the county where the property is located. If the deed fails to conform, the property is presumed transferred to the grantee in his or her individual capacity, not in a representative capacity. See § 88-30-108(2).

Here, the deed only stated that it was transferring the property to decedent and her husband as co-trustees, which is insufficient to meet the statutory requirements. See Board of County Commissioners v. Blanning, 29 Colo.App. 61, 479 P.2d 404 (1970)(holding that failure to comply with the requirements of § 38-30-108 resulted in the grantee taking both legal and equitable title to the property).

B.

Nevertheless, beneficiaries contend that Lagae v. Lackner, supra, should be read to hold that a nonconforming deed transfers property to a trust when, as here, the party claiming an interest adverse to the trust did not obtain that interest through reliance on the chain of title We decline to extend Lagae beyond its facts and therefore reject beneficiaries' contention.

As here, Lagae involved a deed that attempted to transfer property to a trust, but did not satisfy § 38-80-108(1). Judgment creditors of one of the trustees, but not of the trust, sought to seize the property. They argued that, because the deed did not satisfy § 38-30-108(1), the property was transferred to the trustee individually and not in trust.

The supreme court held that the creditors could not seize the property. However, it limited its holding to narrow cireum-stances:

We hold that the failure of a personal representative's deed to list the beneficiaries of a trust or reference a document of record providing such information, pursuant to section 38-30-108, does not render trast property available to satisfy personal judgments against a trustee when the creditors placed no reliance on the nonconforming personal representative's deed in extending the credit.

Lagae v. Lackner, supra, 996 P.2d at 1284. This conclusion is consistent with the general rule that an unrecorded beneficial interest is not subject to execution by creditors of the holder of the legal interest. See, eg., Blalak v. Mid Valley Transportation, Inc., 175 Ariz. 588, 858 P.2d 683 (Ariz.Ct.App.1998).

The supreme court further explained that "[ojur statute is intended to protect the alien-ability of property and the integrity of the chain of title." Lagae v. Lackner, supra, 996 P.2d at 1287. Denying the statute's protection to the creditors in that case, who were not subsequent takers of the property, neither limited alienability nor clouded the chain of title. In contrast, denying the statute's protection to devisees, who would be subsequent takers, could limit alienability of real property by will and create uncertainty in the title chain when a devisee subsequently transfers title to the property.

Beneficiaries note that, both here and in Lagae, the parties claiming an interest adverse to the trust could not show reliance on the nonconforming deed. However, unlike in Lagae, here devisee asserts rights as a transferee of title to real property. In light of the legislative intent to protect alienability and title, we read Lagae's interpretation of § 38-30-108 as limited to circumstances in which the party claiming an interest adverse to the trust is not a transferee. CJ. Eastwood v. Shedd, 166 Colo. 136, 442 P.2d 428 (1968)(do-nee of real property who recorded her deed was protected by recording act against a prior unrecorded deed, although donee was not a bona fide purchaser for value).

Accordingly, we conclude that the deed did not transfer the property to the trust, and thus title vested in decedent and her husband as individuals.

ITL

We also reject beneficiaries' argument that their "Trust Registration Statement" cured the defect in the deed pursuant to § 38-30-1088), C.R.98.2002.

In the 2001 legislative session, the General Assembly amended § 38-30-108 with a new subsection (8). The amendment became effective on August 8, 2001, before beneficiaries filed their reply brief with the trial court. Beneficiaries argue that the amendment applies in this case and allows them to cure the deficiencies in the deed. Although we agree that the new subsection applies here, we do not agree that it provides beneficiaries with relief.

Section 38-30-108(8) provides:

After the recording of an instrument conveying an interest in real property in which the grantee is described as acting in a representative capacity, but in which the description of the grantee does not comply with subsection (1) ... and regardless of whether such instrument of conveyance was recorded prior to or after August 8, 2001, an affidavit that has been executed by or on behalf of such grantee, which refers by proper description by book, page, document number, or file to the recording information of such instrument of conveyance and that contains one of the descriptions of the representative capacity of such grantee described in subsection (1) ... may be recorded with the county clerk and recorder of the county where the real property is located.

(Emphasis added.)

Although the statute in effect at the time a claim accrues generally governs the claim, when the General Assembly clearly intends otherwise, the amended statute may be applied retroactively. See Academy of Charter Schools v. Adams County School Dist. No. 12, 32 P.3d 456 (Colo.2001).

Here, it is clear that the legislature intended the new section to be applied retroactively to deeds that had been filed before August 8, 2001, the effective date of the amendment. Therefore, the amended statute applies in this case.

Nevertheless, beneficiaries' argument that the trust registration statement cures the deed's defect is unpersuasive. The statute specifically requires that an affidavit be filed with the clerk and recorder in the county where the property is located. See § 88-80-1088). Here, unlike an affidavit, the trust registration statement is not sworn. Moreover, it is not filed with the county clerk and recorder, but with the trial court, and it was contrary to decedent's stipulated intent to revoke the trust and bequeath her interest in the property to devisee.

In addition, § 88-80-1088) requires that the affidavit be executed "by or on behalf" of the grantee. Here, beneficiaries created the trust registration statement without any authority from decedent and after she had died.

Moreover, the filing of such an affidavit by a grantee diminishes his or her interest in the property and is, therefore, presumably contrary to his or her interests. Here, the filing of the trust registration by beneficiaries was in, and not contrary to, their interests.

Finally, the trust registration statement was filed with the trial court not only following decedent's death, but after this controversy arose. Although the amendment does not establish a time limit within which the affidavit must be filed, the facts before us show that the affidavit was untimely. CL Sky Harbor, Inc. v. Jenner, 164 Colo. 470, 435 P.2d 894 (1968)(correction deed ineffective because filed after lien had attached).

Therefore, we conclude that the trust registration statement fails to satisfy the requirements in § 38-30-108(8) and thus does not cure the deed's deficiencies.

IV.

Finally, we reject beneficiaries' contention that the trial court erred by looking beyond the parties' stipulated facts in rendering its decision.

The parties in this case stipulated to a number of facts, including:

If it is determined that the property ... was conveyed to the Trust and no evidence is discovered with regard to the Trust's revocation or modification, the parties agree that the property remained in the Trust; the will does not operate to revoke or amend the Trust under applicable Colorado law; and the property will be distributed according to the terms of the Trust. If it is determined that the property ... was not conveyed to the Trust, the parties agree that the property will pass according to the terms of the will.

In making its findings of fact, the trial court stated:

Nor does the Court consider itself bound by the stipulation of the parties The Court sees no reason under the facts why, even were the deed to the Trust to be considered effective, the legislative intent discussed above would not allow the trustee to deal with the Trust property, even absent a proper termination.

The trial court was not bound by the parties' stipulations in its determination of questions of law or mixed questions of law and fact. See Bar 70 Enterprises, Inc. v. Tosco Corp., 703 P.2d 1297 (Colo.1985). In addition, the trial court explained that it "resolve[d] this case by finding the 1991 deed ineffective to convey to the Trust." Thus, we perceive no error by the trial court.

Having concluded that the deed was not effective to transfer the property to the trust, we need not address beneficiaries argument that decedent created a bona fide trust.

Accordingly, we conclude, as did the trial court, that a one-half interest in decedent's interest in the property passes to devisee under decedent's will, and no interest in the property passes to beneficiaries.

Judgment affirmed.

Judge DAVIDSON and Judge WEBB concur.


author: Judge CASEBOLT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Vincent Anthony SCURA, Defendant-Appellant.
    No. 01CA2146.
    Colorado Court of Appeals, Div. V.
    April 24, 2003.

      Ken Salazar, Attorney General, Cheryl Hone, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Naney J. Lichtenstein, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge CASEBOLT.

Defendant, Vincent Anthony Seura, appeals the order imposing a previously suspended ten-year sentence to the custody of the Department of Corrections (DOC). We vacate the order and remand for a hearing.

Defendant was charged with four counts of possession with intent to distribute a schedule II controlled substance. He pleaded guilty to a single count of possession of a schedule II controlled substance in exchange for a suspended sentence in the mandatory aggravated range of ten years in the custody of the DOC with three years of mandatory parole, The sentence was suspended on the condition, inter alia, that he complete and graduate within three years from a drug rehabilitation program administered by Ceni-kor, a private nonprofit organization.

Over a year later, the Cenikor program sent a letter to the court stating that it had terminated defendant from the program because staff there determined that he knew other residents were using drugs and staff suspected defendant was also using drugs. Two days later, a lab report based on a urinalysis taken from defendant indicated the general presence of opiates and ephedrine or pseudoephedrine, but did not indicate the type of substance or the amount.

Defendant was arrested and brought before the court. Defendant's attorney had entered an appearance earlier that same day, but did not appear in court with defendant. In response to the court's question whether he had filed a motion to impose the suspended sentence, the prosecutor stated he had not yet filed a motion, but he argued that, because defendant had violated the condition of his suspended sentence, the original sentence should be imposed. The court agreed and sentenced defendant to ten years imprisonment in the custody of the DOC, citing the Cenikor letter of termination and "the positive drug sereen for some various drugs."

After the court imposed this sentence, defendant inquired whether he was entitled to a hearing, explaining that his attorney was unable to attend. Defendant stated he had given his attorney all his paperwork and that the attorney wanted to have a hearing. The court denied the request.

Defendant subsequently moved to vacate his sentence and requested a hearing, arguing that he had been denied due process and that the court had improperly delegated its sentencing authority to an outside agency.

The court denied that motion, and this appeal followed.

1.

Defendant contends the trial court violated his right to procedural due process of law by imposing the previously suspended sentence without providing a hearing. We agree.

The issue in this case turns upon the process that is due when a suspended sentence is revoked. Section 18-1.3401(11), C.R.S. 2002, providing for suspended sentences, states, in pertinent part:

When it shall appear to the satisfaction of the court that the ends of justice and the best interest of the public, as well as the defendant, will be best served thereby, the court shall have the power to suspend the impogition or execution of sentence for such period and upon such terms and conditions as it may deem best....

However, the statutory scheme does not set forth any procedures that must be followed when a defendant is charged with violating the conditions of a suspended sentence. We therefore look to general principles of due process to determine this issue.

Due process entitles a defendant facing a parole revocation to an evidentiary hearing and the opportunity to confront and cross-examine witnesses. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); see also Gagnon v. Scarpell, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)(applying the procedural protections of Morrissey to probation revocation proceedings); People v. Atencio, 186 Colo. 76, 525 P.2d 461 (1974). These constitutional safeguards are required because a revocation may cause probationers or parolees to be placed in a more restrictive confinement, thereby impinging upon a liberty interest. And a defendant at liberty, even conditionally, may not be deprived of that liberty without due process. See Harper v. Young, 64 F.3d 568 (10th Cir.1995), affd, 520 U.S. 148, 117 S.Ct. 1148, 187 L.Ed.2d 270 (1997).

Here, because persons attending the Ceni-kor program under a suspended sentence have jobs in the community, perform community service, and have relatively unrestricted access to the attachments of normal life, see Beecroft v. People, 874 P.2d 1041 (Colo.1994), we conclude that the same due process protections outlined in Morrissey must be afforded to a person facing revocation of such a suspended sentence. See People v. McCoy, 939 P.2d 537 (Colo. revocation of a sentence to the Youth Offender System entails potential loss of freedom, due process protections required); People v. Berquist, 916 P.2d 629 (Colo.App.1996)(minimum due process protections are required for revocation of a deferred judgment and sentence).

We reject the People's contention that rev-ccation of a suspended sentence is more closely akin to revocation of a sentence to community corrections for which no due process protections are necessary.

Pursuant to § 17-27-105(1)(e), C.R.S.2002, a defendant who has been terminated from community corrections has no right to a resentencing hearing as long as the new sentence imposed does not exceed the original sentence, because the offender may be rejected from community corrections for "any or no reason." See People v. Abdul, 935 P.2d 4 (Colo.1997); People v. Duke, 36 P.3d 149 (Colo.App.2001). Because the statute very clearly gives the community corrections facility discretion to reject the offender before or after acceptance for "any or no reason," an offender who is rejected by community corrections has no reasonable expectation that he or she would be transferred only for misbehavior. People v. Abdul, supra (citing People v. Wilhite, 817 P.2d 1017 (Colo.1991)). Therefore, there is no due process right to a resentencing hearing in that context.

However, that statutory denial of the right to a hearing-and the limitations on due process that flow from it-is not present here. Further, a defendant with a suspended sentence has an expectation that the incarceration component of the sentence will not be imposed except for violation of the conditions attached to it.

Our determination is supported by Beec-roft v. People, supra, 874 P.2d at 1047. There, the defendant's suspended sentence was revoked when he failed to complete the Cenikor program. He sought presentence confinement credit for the time he had spent in the program. The supreme court rejected his contention, holding that: "A suspended sentence subject to the condition that the offender receive drug treatment is analogous to probation, or non-residential status at a community correctional facility; a suspended sentence is not analogous to confinement in a jail, DOC facility, or community corrections." After examining the legislative history, the court further concluded that "a suspended sentence accompanied by conditions is an intermediate sanction substantially similar to probation but available in contexts where probation is not." Thus, the court refused to give the defendant presentence confinement credit, as it would have done if the defendant had been sentenced to community corrections. Rather, the court treated the defendant's time in the Cenikor program as it would have treated a defendant's time on probation.

Other state courts have similarly held that the revocation of a suspended sentence is analogous to the revocation of probation. Johnson v. State, 753 So.2d 449 (Miss.Ct. App.1999); State v. Weeks, 141 NH. 248, 681 A.2d 86 (1996); Commonwealth v. Duffy, 452 Pa.Super. 130, 681 A.2d 219 (1996); Holden v. Commonwealth, 27 Va.App. 38, 497 S.E.2d 492 (1998); State v. Nelson, 103 Wash.2d 760, 697 P.2d 579 (1985).

The People nevertheless contend that the revocation of a suspended sentence is distinguishable from the revocation of probation because a court, when imposing a suspended sentence, actually imposes the sentence at the original sentencing hearing, but suspends its execution. Relying on People v. Frye, 997 P.2d 1223 (Colo.App.1999), and People v. Seals, 899 P.2d 359 (Colo.App.1995), they argue that, when a suspension is revoked for failure to abide by one of the conditions, the defendant is not resentenced; rather, the previous sentence is merely executed. We are not persuaded.

Neither Frye nor Seals addresses whether a defendant is entitled to a hearing when faced with the revocation of a suspended sentence. In Seals, the division concluded the defendant's original four-year suspended sentence to DOC governed his resentencing after he was terminated from community corrections. The division reasoned that the original suspended sentence was already imposed, even though it had not yet been executed.

In Frye, where the defendant received a suspended sentence conditioned on the sue-cessful completion of probation, another division of this court rejected the argument that the trial court could not impose both probation and imprisonment. The division held the suspended execution of that sentence did not result in the sentence being withdrawn; it was simply suspended, subject to an express condition.

More importantly, in both Frye and Seals the defendants received hearings before the imposition of the suspended sentences. Thus, Frye and Seals do not stand for the proposition that the execution of a suspended sentence requires no procedural protections. Rather, just as in the probation setting, the originally suspended sentence may be executed only after procedural protections have been provided and the court finds that a condition of the suspended sentence has been violated.

While defendants in parole and probation revocation proceedings are not entitled to the full range of constitutional guarantees afforded to defendants in eriminal proceedings, they are entitled to certain minimum requirements of due process. People v. Allen, 978 P.2d 620 (Colo.1999); People v. Atencio, supra. These requirements include: (1) written notice of the claimed violations; (2) disclosure to the defendant of evidence against him or her; (8) a fair opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and eross-examine adverse witnesses, unless there is good cause to deny such a right; (5) a neutral and detached hearing officer or judge; and (6) a written statement by the fact finder as to the evidence relied on and reasons for the revocation. People v. Atencio, supra (citing Morrissey v. Brewer, supra, and Gagmon v. supra); People v. McCoy, supra; see also People v. Elder, 36 P.3d 172 (Colo.App.2001){oral findings on the record satisfy the "written statement" requirement); People in Interest of TMH., 821 P.2d 895 (Colo.App.1991). The same protections are applicable in this case.

Here, defendant did not receive an adequate prerevocation hearing. A hearing includes the opportunity to support one's contentions by evidence and argument. Westar Holdings Partnership v. Reece, 991 P.2d 328 (Colo.App.1999). Defendant was allowed to speak before the imposition of the suspended sentence only to respond to the court's question about where he had been following his termination from Cenikor. The court did not allow defendant to explain the cireumstances of his termination, and he was not given an opportunity to present witnesses or documentary evidence.

Therefore, we must vacate the court's imposition of the suspended sentence and remand for a new hearing. Upon remand, defendant must be accorded the due process protections outlined above.

In view of this disposition, we need not address defendant's remaining contentions.

The order is vacated, and the case is remanded for a prerevocation hearing in accordance with the views expressed in this opinion.

Judge TAUBMAN and Judge NIETO concur.